Delhi District Court
Master Parveen Kumar vs Delhi Transco Ltd on 17 November, 2009
IN THE COURT OF Dr. KAMINI LAU: ADDL.
DISTRICT JUDGE13: CENTRAL DISTRICT: DELHI
Suit No. 181/2004
Master Parveen Kumar, Minor son,
S/o Sh. Jijar Singh,
Through his next friend and natural guardian
Sh. Jijar Singh, Natural father,
R/o K400, Raghubir Nagar,
Delhi110027
....Plaintiff
Versus
1. Delhi Transco Ltd.,
Shakti Bhawan, Nehru Place,
New Delhi110019,
Through its Chairman.
2. B.S.E.S. Rajdhani Power Ltd.,
Regd. Office at B.S.E.S. Bhawan,
Nehru Place, New Delhi110019.
Through its CEO (Legal Cell),
Kamla Market, Delhi110002.
3. Govt. of N.C.T. of Delhi,
Through its Chief Secretary,
Delhi.
....Defendants
Date of Institution: 14.8.2004
Arguments heard on: 15.10.2009
Addl. Written synopsis filed on: 16.11.2009
Date of decision: 17.11.2009
: 1 :
: J U D G M E N T :
This suit for recovery of Rs.16 lacs for
compensation and damages due to electrocution has been filed
by the plaintiff Master Parveen Kumar against the defendants.
Briefly the facts relevant to the disposal of the same are as
under:
BRIEF FACTS:
Plaintiff's Case:
The case of the plaintiff is that he is a a resident of K400, Raghubir Nagar, New Delhi and the present suit is signed, verified and filed through his next friend and natural guardian Sh. Jijar Singh who is his father. On 15.08.2000 the plaintiff when he was about 10 years of age (as per the pleadings) was playing with kites along with other minor children of 5/6 years of age on the roof of his house. A High Tension electric wire was going on for the supply of electricity to the residents of Raghubir Nagar, Delhi which wire was just above five feet high from the roof level of the house and gives apprehension of danger to every one going up : 2 : stairs to the roof of the house. According to the plaintiff, not even the child but also adults can fall prey to this high tension wire being touched unknowingly and incidentally and the said high tension wire going over the roof of the house which was clearly a negligent and careless act on the part of the defendants/ authorities of D.V.B. which created dangerous situation for the residents of the locality of Raghubir Nagar, New Delhi. It was brought to the notice of the officials of the defendants many times that the high tension wire running across the roof of the house just above 5 feet which was seriously dangerous to the life of the residents but the officials of the defendants had not taken any steps to remove the said high tension wire.
According to the plaintiff on 15.08.2000 the plaintiff while playing with the kites, suddenly got touched with this high tension wire and was seriously injured and burn completely with the electric shock but was saved by Sh. Rattan Singh who was standing nearby. The said Sh. Rattan Singh also got himself saved when suddenly the transformer got switched off and electric current become cut off. A report : 3 : to this effect was made to the police post Raghubir Nagar, Delhi as well as police station Rajouri Garden, New Delhi vide DD No. 37 dated 15.08.2000 and the plaintiff was got admitted to Maharaja Agarsain Hospital, Punjabi Bagh, Delhi on 15.08.2000 with 7080% burn injuries. Medico legal report was prepared vide MLC No. 2154 dated 15.08.2000 at the said hospital. It is pleaded that the plaintiff had suffered injuries beyond proportions and remained admitted in the said hospital from 15.08.2000 till 24.02.2001 during which period he remained under special treatment of hospital. It is stated that blood transfusion was done with 25 or more bottles and the father of the plaintiff and his younger brother were directed by the hospital authorities to chop off their flesh from thighs or other parts of their own bodies and the said flesh was medically fixed with the body of the plaintiff. According to the plaintiff, expenses to the tune of Rs. 16 lacs were incurred on his medical treatment and the father of the plaintiff Sh. Jijar Singh is having medical bills and receipts of medicines purchased by him which is totalling about Rs. 9 lacs. It is pleaded that due to this treatment of the plaintiff, with costly : 4 : expenses, the father of the plaintiff has been made to suffer his life and all his earnings have been spoiled on the treatment of his minor son/ plaintiff and now the father of the plaintiff is penny less and cannot spend any more. It is stated that even the doctors have advised that the plaintiff is to be examined after every 56 months at the said hospital and the the hospital authorities charge their fees as per their schedule of payment, the cost of plastic surgery of the plaintiff has given a high dose of suffering and agony to the father of the plaintiff. It is stated that the plaintiff is entitled to claim compensation and damages along with interest @ 18% p.a. from the defendants who were negligent and careless in performing their duties and they are responsible for this high tension wire going over the residential portions of the roof of the house.
The plaintiff is claiming compensation to the tune of Rs.16 lacs towards the compensation and damages from the defendants, details of which are as under:
(i). On account of doctors services and medical expenses. Rs. 9.00 lacs
(ii). On account of pain and suffering. Rs. 5.00 lacs : 5 :
(iii). On account of mental anguish, neurosis, impairment of limbs shortening of physical activities Rs.1.00 lacs
(iv). Costs of special accommodation on account of catastrophic injuries. Rs.1.00 lacs ___________ Total: Rs.16.00 lacs ___________ The plaintiff has also got served a legal notice of demand calling upon the defendants to pay the compensation and damages to the plaintiff towards pain, agony, and expenses suffered by him due to electrocution which notice was duly served upon them but the defendants have not paid the compensation and damages as claimed in the said notice till date due to which reason the present suit has been filed.
Defendant's Case:
The record reveals that despite valid service the defendant no. 3 NCT of Delhi has not appeared before this court and therefore, vide order dated 27.11.2003 the defendant no. 3 has been proceeded exparte. Further, the defendant no.1 : 6 : Delhi Transco Limited has been deleted from the array of the parties by the Ld. Predecessor of this court vide order dated 11.3.2004.
The defendant no.2 BSES RPL has filed its written statement wherein a preliminary objection has been raised by the defendant that the plaintiff has not approached to this court with clean hands and has concealed the material facts from this Court. It is stated that as per the averments of the plaintiff, being a minor son of Shri Jijar Singh is resident of House No.K400, Raghubir Nagar, New Delhi and high tension electricity wire was going above just about 5 ft. of the roof of the house and the plaintiff was playing with kites on 15.08.2000 along with other children and he suddenly got touched with this high tension wire and was seriously injured. However, the site inspection was done by the Zonal Staff and found that no HT line near the house of the plaintiff bearing No. K400 or crossing above the roof of the house of the plaintiff, as alleged were found. It is stated that HT 11 KV wires are passing on the main road since long back, which is not accessible by any one in any circumstances and is far : 7 : away from the house of the plaintiff, which is situated in the interior in gali and therefore, it is not possible that any accident can be occurred in the house of the plaintiff, as alleged.
According to the defendant, no accident, as alleged by the plaintiffs, has occurred on 15.08.2000 at House of the plaintiff, due to negligence on their part. It is pleaded that no report regarding electrocution has been lodged with the complaint Center and as per the DD entry No.37 dated 15.08.2000 filed by the plaintiff himself, no alleged allegation has been levelled and further there is no FIR lodged against any of the officials of the defendant of the alleged incident and therefore, the present suit against the defendant is not maintainable and is liable to be dismissed.
It is further stated that the plaintiff has filed the present suit on 14.08.2003 claiming damages under tortuous liability due to negligence of the officials of the defendant and in such type of cases Article 72 of the Schedule of Limitation Act prescribes limitation of one year, would apply and the plaintiff has filed the present suit at a much belated stage due : 8 : to which reason the same is barred by limitation and is liable to be dismissed. It is also stated that there is no cause of action in favour of the plaintiff and against the defendants and hence the suit filed in the present form against the respondent is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure.
On merits, the defendant no.2 has denied all the allegations made against them by the plaintiff. It has been denied that the high tension wire was just above five feet high from the roof level of the house of the plaintiff and that the high tension wire is fixed at low level and is causing danger to everyone going upstairs to the roof of the house. It is pleaded that 11 KVA lines is in existence on the main road since long and later on the residents of the locality have constructed their houses unauthorizedly, in violation of the rules and regulations, without adhering to the safety measures. It is also stated that flying of kites is prohibited under the DP Act. It has been denied that the plaintiff is entitled to any compensation or damages as asked for in the plaint.
: 9 : ISSUES FRAMED:
On the basis of the pleading of the parties, the Ld. Predecessor of this court vide order dated 2.5.2005 framed the following issues:
1. Whether the plaintiff had suffered injuries by electrocution on account of negligence on the part of defendants no. 1 & 2? (OPP)
2. Whether the plaintiff is entitled to recover any compensation from the defendants? If so, to what amount? (OPP)
3. Whether the suit of the plaintiff is barred by limitation?
(OPD)
4. Relief.
EVIDENCE:
In order to prove his case the plaintiff has examined 4 witnesses. PW1 Ct. Raju from PS Rajouri Garden has proved the DD No. 37 dated 18.5.2000 which is Ex.PW1/1.
PW2 K.D. Sharma Record Keeper from Maharaja Agarsain Hospital has brought the record in respect of the : 10 : plaintiff. According to the witness, the patient remained admitted in the hospital w.e.f. 15.8.2000 to 6.10.2000 and was admitted to the hospital on 15.8.2000 with a case of 70% electrical burns. He has placed on judicial file the entire medical record which is Ex.PW2/A to Ex.PW2/F. PW3 Dr. Devansh Sharma has proved that Master Parveen Kumar (minor) remained under special treatment being head of the Plastic Surgery Department and was discharged on 30.2.2000. He has further deposed that the plaintiff was admitted several times for dressings and other necessary treatments as day care patient. He has proved the medical charge slips which are in his handwriting and are Ex.PW2/A to Ex.PW2/H. According to the witness, the patient was finally discharged on 19.12.2000.
The plaintiff Master Parveen Kumar who was minor at the time of filing the suit, became major during the pendency of the suit and has examined himself as PW4 and in his examination in chief by way of affidavit he has corroborated what has been earlier stated in the plaint. He has placed on record copy of the MLR which is Ex.PW4/A; the : 11 : legal notice dated 4.6.2003 which is Ex.PW4/C and its postal receipts which are Ex.PW4/C1 to Ex.PW4/C4; the bills issued by the Hospital for inpatient treatment which are Ex.PW4/1 to Ex.PW4/16 and the bills of medicines purchased from outside which are Ex.PW4/17 to Ex.PW4/41.
In rebuttal the defendant no.2 BSES RPL has examined its Assistant Manager Vimal Kumar who has in his examination in chief by way of affidavit deposed that during the inspection it was found that there is no 11 KV HT line near the house of the plaintiff nor crossing above the roof of the house of the plaintiff. He has placed on record the photographs of 11 KV HT lines which are Ex.DW1/1 to Ex.DW1/3 and the negatives of the same which are Ex.DW1/4 to Ex.DW1/6.
FINDINGS:
I have heard the arguments advanced before me by the counsels for both the parties and have gone through the records of the case. My findings on the various issues are as under:
: 12 : Issue no.1 Whether the plaintiff had suffered injuries by electrocution on account of negligence on the part of defendants no.1 & 2?
Issue no.2 Whether the plaintiff is entitled to recover any compensation from the defendants? If so, to what amount?
Both the issues are clubbed together for the sake of convenience involving common discussion. Onus of proving both the issues was upon the plaintiff. The plaintiff in the present case namely Master Parveen Kumar (now become major during the pendency of the proceedings) had filed the present suit through his father Sh. Jijar Singh as an indigent person for recovery of compensation from the defendants on account of burn injuries of an electric shock received by him on 15.8.2000 while he was playing with the kites on the roof of his house when the dor/ Manja of the kite touched the electric wire going along with the roof of his house and the plaintiff received 70% burn injuries on account of the same. The plaintiff at the time of incident was hardly aged about 14 to 15 years and was admitted to Kheterpal Nursing Home and thereafter referred to Maharaja Agarsen Hospital vide MLC : 13 : No. 2154 dated 15.8.2000. The plaintiff who had suffered 70% burn injuries remained admitted in the hospital w.e.f. 15.8.2000 to 24.2.2001 during which period he remained under special treatment and also the blood transfusion was done with more than 25 bottles. Plastic surgery took place after taking the flesh from the other relatives including the younger brother and father of the plaintiff for purposes of grafting and the expenses of more than Rs.16 lacs were incurred. It is alleged that the father of the plaintiff had purchased the medicines worth Rs.9 lacs in addition to the expenses incurred on the stay of the plaintiff in the hospital and for the plastic surgery given to him. Ever since the plaintiff remained under treatment, he was to visit the hospital after every week in order to check up further complications in the medical treatment and is still continue to visit the said hospital on regular bases. Now before this court he has filed the claims for compensation and damages on the following counts:
1. On account of doctors services and medical expenses: Rs. 9 lacs : 14 :
2. On account of paid and suffering: Rs. 5 lacs
3. On account of mental anguish, neuroses, impairment of limbs shortening of physical activities: Rs.1 lacs
4. Costs of special accommodation on account of catastrophic injuries: Rs. 1 lacs The case of the plaintiff is that the entire incident happened on account of negligence of the defendants since alongwith the roof of the house of the plaintiff there is also an electric wire which is under the control of the BSES RPL/ DISCOMS who is responsible for its maintenance and control of the electric operations. It is stated that since the installation of electric wire alongwith the roof of the house of the plaintiff is dangerous to the lives of the children which wire is at a height of 5 to 6 feet of the roof and it is natural that when the children play kites on the roof of the house, they were bound to be entangled in the wires, which can be dangerous.
The defendants have denied the claim of the plaintiff. According to them, there is no HT line over the roof of the house of the plaintiff. The manner in which the : 15 : accident had occurred has also been denied. It is stated that the DD No. 37 dated 15.8.2000 does not show any allegation and therefore, no FIR has been got lodged by the plaintiff. According to the defendants, 11 KVA lines are existing on the main road. Initially an application had been filed by the plaintiff under Order 32 Rule 15 CPC for permitting the cross examination of his father on his behalf as he was incompetent to depose being of unsound mind. The plaintiff Praveen Kumar was called to the court and examined in the Chamber and after examination of the plaintiff, this court vide its detailed order dated 12.1.2009 made an observation that the plaintiff has become a major and is not of an unsound mind and therefore, under these circumstances, his father Jijar Singh who had filed the petition on his behalf when he was minor, cannot now be allowed to be examined on behalf of the plaintiff since the plaintiff Praveen Kumar had become a major during the pendency of the suit and was capable of taking care of his interests.
The plaintiff has examined one Ct. Raju as PW1 who has brought the DD register/ Roznamcha and has proved : 16 : the entry bearing no.37 dated 15.8.2000. Dr. Devansh Sharma has been examined as PW2 who has proved that the plaintiff Master Parveen Kumar who was minor on 15.8.2000 was brought to the hospital at 7:20 pm with 70% electrical burns and remained under the special treatment of the hospital being head of the Plastic Surgery Department. He has also deposed that the plaintiff was admitted several times in the department for dressing and other necessary treatments as day care patient and the various slips in his hand in this regard are Ex.PW2/A to Ex.PW2/H. He has specifically deposed to the extent that there is a definite physical disfigurement and disability in the plaintiff but the doctor has not been able to make any observations with regard to the shortening of the life span. He has proved that the plaintiff had been referred by Kheterpal Nursing Home and had sustained accidental electrical burns of about 70% at 5 pm due to contact of high voltage electric wire with iron rode which was held by the patient. According to him, when the patient was finally discharged on 19.12.2000 his wounds were healed. The witness has stated that the disabilities and disfigurements in case of such accidents are : 17 : always present as a matter of rule and the disabilities can only be assessed six months after the healing is completed. He has further stated that the patient had been coming to him even thereafter. PW2A K.D. Sharma (wrongly examined as PW2) as brought the summoned record of the plaintiff proving that he was admitted in Maharaja Agarsain Hospital on w.e.f. 15.8.2000 to 6.10.2000 with 70% electrical burns. He has placed on record the medical record of the plaintiff which is Ex.PW2/B during which period the bill for a sum of Rs.2,29,820/ was raised and paid by the parents of the plaintiff in cash. The said witness has also proved that the bill amount of patient which are Ex.PW1/A, PW1/B & PW1/C. He has in his crossexamination admitted that the receipt of Rs.2,360/ as mentioned in Ex.PW2/A; receipt of Rs.2,425/ as mentioned in Ex.PW2/B; payment receipt of Rs.1,915/ and the receipt of deposit of Rs.2,400/ are not on record. The plaintiff has examined himself as PW3 who has in his examination in chief by way of affidavit corroborated what has been earlier stated in the plaint. According to him, on : 18 : 15.8.2000 at about 56 pm he was playing with the kite being the Raksha Bandhan day when is friends and other children were playing with kites on the roofs of their houses. He has testified that in the adjoining street there was an electric pole at one end of his house and another electric pole at the other end and the low tension electric wire was going over the roof of their house which was at a height of 4 to 5 feet of the roof and it is at about 6 pm his kite got stuck in the live wires. PW3 has deposed that when he tried to free his kite from the live wire, he received an electric shock and got severe burn injuries when he was immediately rushed to Maharaja Aggarsain Hospital. In his crossexamination the witness has admitted that he is living in the interior from the main gali and that 11 KV HT line passes through the main road, Raghubir Nagar but he has denied that it is situated at some distance from his house. He has further admitted that the live wire in which his kite got stuck/ entangled is at some distance from his house. The witness cannot read or write and has stated that the wire from which he had got the electric shock is still existing at the site. He is not aware if his father had ever : 19 : written to the department to remove said wires and states that he was very small at that time after which he was under
continuous treatment.
The defendants have examined one Vimal Kumar Assistant Manager as DW1 who has stated that during the inspection it was found that there is no 11 KV HT line near the house of the plaintiff nor crossing above the roof of the house of the plaintiff whereas 11 KV HT wires as passing along the main road which is not accessible by anyone under any circumstances and is far from the house of the plaintiff which is in the interior of the gali. He has placed on record the photographs of 11 KV HT line which are Ex.DW1/1 to Ex.DW1/3 and the negatives of the same are Ex.DW1/4 to Ex.DW1/6. The said witness has not been crossexamined by the counsel for the plaintiff.
I have considered the testimonies of all the witnesses and the rival contentions of both the parties. The short issue before this court is whether the plaintiff who admittedly got an electric shock having sustained 70% burn injuries on account of his kite coming into contact of the live : 20 : wire, is entitled for compensation on account of negligence of the defendants.
Before proceedings to decide the said issue, it is necessary to discuss the law relating to negligence which is as under:
A negligent wrongdoer is who does not sufficiently desire to avoid doing it. A person is guilty of negligence when he does not desires the consequences and does not act in order to produce them, but is nevertheless indifferent or careless whether they happen or not and therefore does not refrain from the act notwithstanding the risk that they may happen. Carelessness as to possible consequences very often results in a failure to bring those consequences to mind. The careless person not only does not intend the consequence but does not even advert to it; its possibility or probability does not occur to his mind. Negligence is a conduct, not a state of mind. A careless conduct which involves an unreasonably great risk of causing damage. There is no necessary element of "f ault" in the sense of moral blameworthiness involved in a findings that a person : 21 : has been negligent.
Alderson B. in the case of Blyth Vs. Birminghan Water works Co. reported in (1856) 11 Exch. 781,784 has observed that:
" ....Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do....."
Also in the case of Lochgelly Iron and Coal Co. vs. M'Mullan reported in (1934) A.C. 1, 25 it has been observed by Lord Wright that:
" ......In strict legal analysis, negligence means more that headless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing......"
: 22 : It is evident from the aforesaid observations that in negligence the three elements of duty, breach and damage may penetrate to one another. Further, it must be established that the defendant has been careless in breach of legal duty to take care. The concept of reasonable foresight is used to ascertain whether the defendant was under any legal duty of care at all and if so, whether he observed the standard required in the circumstances of the case. On the one hand it is required to be shown that there is a breach of legal duty and on the other hand there has to be a breach of requisite standard of care required to be maintained by the defendant under the given circumstances. Lord Aktin in the case of Donoghue vs. Stevenson reported in (1932) A.C. 562 had formulated the concept of reasonable foreseeability. The scope or extent of duty of care which the defendant owes to the plaintiff is often formulated simply in terms of reasonable foresee ability.
What the defendant ought reasonably to have foreseen in the circumstances of a particular case is the question which is required to be answered, hence, it is clear : 23 : that the defendant should have foreseen the likelihood of the harm to the plaintiff in the given circumstances.
Further, the damage resulting on account of the said negligence should be direct and proximate and in case whether the court ultimately finds that the negligence is made out on the proximity basis, the said damages should be granted keeping in view the nature of physical injury to the person or property and the psychiatric/ psychological damage, economic/ financial damages and social damage on the basis of the same unless it is contrary to the public policy.
The theory of strict liability for hazardous activities can be said to have originated from the historic judgment of Blackburn, J. in Rylands Vs. Fletcher (1866) LRI Ex.265. Strict liability focuses on the nature of the defendant' s activity rather than as in negligence, the way in which it is carried on. This principle of strict liability states that the undertakers of these activities have to compensate for the damage caused by them irrespective of any fault on their part.
: 24 : Fleming in his book 'Torts' (6th Edition page 302) has observed that " permission to conduct such activity is in effect made conditional on its absorbing the cost of the accidents it causes, as an appropriate item of its overheads" . This is unjust when a wholly innocent victim sustains catastrophic harm through some trivial fault and is left virtually without compensation.
The Hon'bl e Supreme Court has in the case of M.P. Electricity Board Vs. Shail Kumari reported in 2002 (1) SCR 164 = AIR 2002 SC 551 observed that:
" ..... It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily, conferred on the Board. If the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into it, the primary liability to compensate the sufferer is that of the supplier of the electric energy, so long as the voltage of electricity potentially of dangerous dimension, the managers of its supply have the added duty to take care all : 25 : safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the Board that somebody committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is the lookout of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps....."
Further, in a recent judgment in the case of Smt. Mamta Devi & Ors. Vs. BSES & Ors. reported in 126 (2006) DLT 663 has awarded the compensation to the victim to the extent of Rs.1,00,000/ subject to the final result of the civil suit before the trial court.
: 26 : Applying these principles to the facts of the present case firstly it is an admitted case of the parties that Master Parveen Kumar who was the minor on the date of the accident had suffered 70% burn injuries on account of electrocution on 15.8.2000. Secondly the plaintiff has placed on record his detailed medical record proving that huge expenses had been incurred by his parents on account of sustained treatment over years particularly the expenses incurred on Skin Grafting and plastic surgery. Thirdly the physical examination of the plaintiff by the court proves that not only as he suffered physical disfigurement but also mental retardation adversely effecting his speech to some extent. Fourthly it is not denied that a HT wire is passing through the area, the only dispute being that the according to the plaintiff it is very near to his house whereas according to the defendants it is at some distance away and on the main road. Lastly it is an admitted case that the defendant BSES RPL is the agency responsible for maintaining and control of the electricity operation and its installations in the area.
: 27 : The general rule is that it is for the plaintiff to prove negligence but in certain cases the plaintiff can only prove the accident but not how it happened so as to show its origin in the negligence of the defendant. However by application of res ipsa loquitur Sir William Erle in the case of Scott vs. London & St. Katherine Docks Co. reported in (1865) 3 HC 596 had held that :
" Where the thing is shown is under the management of the defendant or his servants and the accident is such, as in the ordinary course of things does not happened, if those who have the management use proper care.
Then in the absence of any explanation by the defendant, it can be presumed that the accident arose for want of care. In such cases mere happening of the accident affords a reasonable evidence in the absence of any explanation by the defendant that it was due to the negligence of the defendant.
: 28 : Applying the principles of res ipsa loquitur to the facts of the present case, it is evident that the plaintiff/ victim was a young boy who had been electrocuted while he was flying his kite on the roof of his house on the evening of Raksha Bandan day in the year 2000, when the dor/ Manjha of his kite came into contact with the live HT wires of the defendant. The strict application of law of negligence would prove unjust to the innocent victim to sustained catastrophic harm through some trivial fault and left virtually without compensation. The agency who carries ultra hazardous activity is liable to another for the harm resulting thereto from that which makes the activity ultra hazardous although the utmost case is exercised to prevent such harm. The concept of social injustice and social security as integral parts of the general theory of the Welfare State, have been firmly established and strictly embodied in our system. A victim on account of hazardous activity cannot be left without any protection.
In the present case it is evident that the plaintiff has discharged the initial onus of proving the accident, : 29 : therefore, the onus of proving that there was no negligence in maintaining the system shifted upon the defendant which onus they have failed to discharge. No explanation is forthcoming as to why adequate precautions were not taken by the defendants who are responsible for maintaining the HT lines which were running very near to the residential area. It is no defence on the part of the defendant that the electrocution occurred on account of the fact that the plaintiff himself was a wrong doer and was flying the kite which is in violation of the provisions of The Delhi Police Act prohibiting the flying of the kites. It is the lookout of the Managers of the supply system to install necessary safety devices and the authority manning the dangerous commodities should exercise extra duty to chalk out measures to prevent such mishaps. Therefore, under these circumstances, I hereby hold that the plaintiff had suffered injuries by electrocution on account of negligence on the part of the defendants. Issue no. 1 is decided in favour of the plaintiff and against the defendants.
The plaintiff before this court Master Praveen Kumar was a minor at the time of the freak accident, when he : 30 : was electrocuted while flying kite on his roof on the eve of Raksha Bandhan in the year 2000 as his dor/ Manja got entangled in the High Tension wire of the defendant BSES RPL. He was saved by a good Samaritan but not before he had suffered 7080% burn injuries as a result of which he was hospitalized for a continuous period of 5 months and is still under treatment having suffered severe physical disfigurement and limited mental retardation effecting his speech. It is unfortunate that life had changed for this hale and hearty young boy and the least that can be done is to create some kind of financial security for his future, so that he does not have look upon anyone else.
In so far as the aspect of amount of compensation from the defendant is concerned, it is evident that the plaintiff, at the time of accident, was about 1415 years of age. He has placed on record the medical certificates/ documents which show that an amount of Rs.2,29,820/ were incurred by his parents. Apart from the pain and agony on account of the accident the plaintiff has also suffered physical disfigurement and limited mental disability. Therefore, under these : 31 : circumstances, I hereby hold that the interest of justice would be met if the plaintiff is awarded a compensation to the tune of Rs.3,00,000/ (Rs. three lacs) on account of medical expenses incurred by him till date; Rs.2,00,000/ (Rs. two lacs) on account of pain and agony suffered by the plaintiff and Rs.2,00,000/ (Rs. Two lacs) on account of limb impairment/ physical disfigurement and mental retardation i.e. a total of Rs.7,00,000/ (Rs. Seven Lacs). Issues are disposed off accordingly.
Issue no.3 Whether the suit of the plaintiff is barred by limitation?
Onus of proving this issue was upon the defendant. The case of the defendant is that the suit of the plaintiff is highly time barred and has been filed after the period of limitation is expired which as per the Limitation Act is one year. Ld. counsel for the defendant has placed his reliance on the authority of P.V. Raghunandan Vs. Registrar General & Ors. reported in 149 (2008) DLT 529 wherein it has been observed that the limitation for suing in : 32 : relation to cases for damages/ compensation is one year as the suit is governed by the provisions of Article 72 & 79 of the Limitation Act and the suit should have been filed by the plaintiff within a period of one year to be reckoned from the date of incident.
The case of the plaintiff is that at the time of filing of the suit he was a minor and a person suffering from the disability and therefore, he would be governed by the provisions of Article 6 of the Limitation Act.
I have considered the submissions made before me. It is an admitted case of the parties that at the time when the present suit was filed, the plaintiff/ victim who had suffered electrocution, was a minor and had filed the suit through his father Jijar Singh. The provisions of Section 6(1) of the Limitation Act provides that:
Where a person entitled to institute a suit or make an application for the execution of a decree is, at the tine from which the prescribed period is to be reckoned, minor or insane, or an : 33 : idiot, he may institute the suit or make the application within the same period after the disability was ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule.
The Delhi High Court in the case of Darshan Singh & Ors. Vs. Gurdev Singh reported in 56 (1994) DLT 219 (SC) and also in the case of Smt. Abha Yadav & Ors.
Vs. Municipal Corporation of Delhi & Ors. reported in 105 (2003) DLT 875 has under similar circumstances in a suit filed by the person suffering from disability, held that the suit which is filed after the period of limitation the said limitation would get extended by legal fiction and would not be barred by time.
In the present case admittedly the plaintiff Master Parveen Kumar was a minor at the time of accident and it was only during the pendency of the present case that he became major. Not only that he also suffered severe physical and mental disability (to a limited extent) and therefore, under : 34 : these circumstances, the period of limitation gets extended by legal fiction on account of disability/ minority of the plaintiff and therefore, I hold that the suit of the plaintiff is not barred by time. Issue is decided in favour of the plaintiff and against the defendant.
Relief:
In view of my findings on the various issues, I hereby hold that the plaintiff is entitled to a total compensation of Rs.7 lacs (Rs. Seven Lacs) from the defendant BSES RPL.
Suit of the plaintiff is hereby decreed partly. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room. Announced in the open court (Dr. KAMIN LAU) Dated: 17.11.2009 Addl. District Judge: Delhi : 35 : Master Praveen Kumar Vs. Delhi Transco Ltd.
Suit No. 181/2004
17.11.2009
Present: None for the plaintiff.
Sh. Ashok Kumar, advocate for the defendant.
Vide my separate detailed order dictated and announced in the open court but not yet typed, the suit of the plaintiff is hereby hereby decreed partly. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
(Dr. Kamini Lau) ADJ: DELHI/ 17.11.2009 : 36 :