Pushwinder Singh Vs State Of J&K And Others

M A Chowdhary, J

1. The present writ petition filed by the petitioner under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu & Kashmir, seeks indulgence of this Court for issuance of appropriate writ of mandamus thereby directing the respondents to pay him, an amount to the tune of Rs. 100.00 lakhs, @ 12 % P.A. from the date of accident as compensation in view of strict and absolute liability, who has become disabled due to negligence of the respondents and their employees.

2. Petitioner pleaded that he was a need based daily worker in the Power Development Department and was posted in the area of village Banipur, Sunderbani; that on the fateful day i.e. 08.11.2014, while working on an electric pole for disconnecting the jumper for restoration of power and to find out the fault, he suffered massive electric shock and fell down from it. It is pleaded that before climbing the pole, he was assured by his colleagues who were at Grid Station that electricity supply would not be restored, as long as, he was working on the pole. But due to negligence of the respondents, the electricity was restored resulting in an electrical accident. After having been severely injured due to electric shock, he was admitted in Sunderbani Hospital for treatment, thereafter at GMC Hosptial, Jammu and finally at Amritsar, where he was operated upon and his right arm had been amputated. It is further pleaded that with regard to the incident, an FIR bearing No.68/2016 was registered in Police Station Sunderbani.

3. It is being pleaded next that the State being a welfare State is having its liability to ensure the safety of its subjects as the right to life and liberty has been granted under Article 21 of the Constitution of India, the State being engaged in hazards and dangerous activities, is strictly under an obligation to compensate the petitioner for his disability, in respect of the negligence or carelessness on the part of its officials; that in the present case, the officials of the respondents were negligent in discharging their duties and this inaction on their part had put the life of the petitioner into danger, as such, the petitioner who became permanently disabled on account of the negligence of the respondents and their employees, is entitled to compensation, claiming to the tune of Rs.100.00 lacs.

4. In support of his contentions, learned counsel has placed reliance on the judgment of Hon’ble the Apex Court in the case of State of Himachal Pradesh & Ors. v. Naval Kumar alias Rohit Kumar reported in 2017 (3) SCC 115.

5. Pursuant to notice, respondents filed objections, asserting therein that the present petition is not maintainable as none of the fundamental, statutory or legal rights of the petitioner has been violated; that it involved the disputed question of law and facts which cannot be adjudicated by invoking the extra ordinary writ jurisdiction of this Court; that the respondents have come up with the policy in such like cases of electrocution/electrical injury, where the government grants ex-gratia amount to the tune of Rs.7.50 lacs in the case of grievous injuries and disabilities and likewise structured arrangement has been prepared and crystallized, but the petitioner has made a claim which is unattainable and is against the established norms and policies of the Government.

6. It has been further pleaded that in terms of policy envisaged by the Govt. for grant of ex-gratia relief to departmental and non-departmental persons who are killed/grievously incapacitated due to electrical accidents, are governed under Govt. Order No.328-PDD of 2011 dated 24.11.2011 and Govt. Order No. 454-F of 2019 dated 24.10.2019, subject to the explicit condition that the accident is not attributable to them but to lapses attributable to the Power Development Department. It is further contended that the petitioner has made an astronomical claim and the petitioner is not entitled to any compensation as he has failed to take the precautions/adhered to the guidelines required to maintain during the discharge of duties, which are explicitly mentioned in Govt. Order No.454-F of 2019 dated 24.10.2019; as such, the present writ petition deserves to be dismissed out rightly.

7. Learned AAG, ex adverso, argued that the respondents were not negligent at all, as the petitioner suffered injuries because of his own negligence because he has not taken precautions while discharging his duties. He has further argued that the J&K Government has come up with the policy in such like cases of electrocution/electrical accidents, where the government grants ex-gratia amount to the tune of Rs.10.00 lacs in the case of death and Rs. 7.50 lacs in cases of grievous injuries and disability. He has further argued as there is no negligence on the part of the respondents and prayed that the present petition be dismissed. Learned counsel for the Respondents has placed reliance on a judgment rendered by Hon’ble Apex Court in a case titled Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) & Ors. v. Sukamani Das & Anr. reported in “1999 AIR (SC) 3412.

8. Heard, perused and considered.

9. The judgment relied upon by learned AAG for the respondents in the case of Sukamani Das supra is not applicable to the present case as the distinguishable factor in that case is that there was no negligence and the incident was on account of the act of God, but in the present case, it is clear cut case of negligence on part of the Respondents. The electrical accident had been reported on the prescribed format in terms of Rule 44-A by the Assistant Executive, EM & RE Sub Division, Sunderbani countersigned by Executive Engineer, EM & RE Division Rajouri, stating that on 08.11.2014, petitioner a Need Based Worker, while on duty as helper with the concerned Lineman Subash Chander (Tech.IV), had suffered electrical accident at Neela Dab Sunderbani due to restoration of power on 11 KV feeder. A case with regard to this electrical accident had also been registered vide FIR No.68/2016 U/Ss 336/337/338 RPC at Police Station Sunderbani on 02.10.2016 and after investigation of the case, charge sheet for the aforementioned offences was laid in the court of law against Subash Chander, Tilak Raj, Inder Paul employees of the respondent department. Further, a perusal of the order sheets would reveal that vide order dated 14.07.2020, an amount of Rs. 2,00,000/- has been directed to be released in favour of the petitioner. The petitioner has placed on record various communications inter se the department, perusal whereof, would show that the petitioner was daily need based worker of the PDD and was discharging his duties when the accident occurred.

10. The Apex Court and the various High Courts including that of ours have awarded compensation of electrocution in exercise of extraordinary and appellate jurisdiction and have held that the Power Development Department of the Government or Corporation/Electricity Boards are duty bound to take precautionary measures under the provisions of the Electricity Act and the Rules framed thereunder. The contention of the learned counsel for the respondents that in view of the mixed question of fact and law the matter cannot be decided in a writ petition and the parties should be relegated to a forum where evidence can be lead for and against is not tenable in view of admitted position by the respondent Departments that the petitioner had been engaged as a Need Based Worker and deployed on duty to some work on a pole and in the meanwhile without information to him the power supply was restored to the line which resulted into the electric shock to the petitioner who fell down from the pole as has been recorded in the reports filed by officers/officials of the respondent Department and also in the FIR registered at the local police station and would sustain injuries which not only which not only resulted into the amputation of his right arm but also he suffered paraplegia, therefore, there is no disputed question of fact which has to be ascertained by any such forum and the matter can be decided under the extraordinary writ jurisdiction.

11. The injury suffered by the petitioner, due to electric burn, unfortunately resulted into amputation of right upper limb. The disability certificate issued on 19.10.2022 by the Medical Authority, Rajouri (J&K) records locomotor disability affecting right arm with remarks that petitioner has

‘Transhumeral Amputation Right Side’ which amounts to 90% physical impairment and also physical impairment affecting ‘Bladder’ with remarks ‘Patient has alleged H/O Electric Shock Rt Arm with 2 degree injury to Spine, and Paraplegia with Neurogenic Bladder on ID catheter, Grade II Bed Sores, Amputation Rt. Upper limb, which amounted to 60% physical impairment.

12. The perusal of disability certificate issued by Medical Authority as well as locomotor disability/transhumeral impairment and paraplegia certified by the Medical Authority is 90% and 60%, respectively, however, such a disability has to be related to functional disability. In the considered opinion of this court, with the kind of the locomotive disability of an upper limb coupled with paraplegia and other impairments, the petitioner has suffered 100% permanent disability. Therefore, the loss of earning capacity of the petitioner has to be accepted equally at 100%.

13. Indisputably, grant of compensation involving an accident is within the realm of law of torts. It is based on the principle of restitutio in integrum. This principle provides that a person is entitled to damages should, as nearly as possible, get that sum of money which put him in the same position as he would have been, if he had not sustained the wrong.

14. Hon’ble Apex Court and this court. Hon’ble Apex Court in a case titled Rekha Jain v. National Insurance Co. Ltd. reported as (2013) 8 SCC 389, held in paras 34 and 35 as:

“34. …….In deciding on the quantum of damages to be paid to a person for the personal injuries suffered by him, the Court is bound to ascertain all considerations which will make good to the sufferer of the injuries, as far as money can do, the loss which he has suffered as a natural consequence of the wrong done to him. [K. Narasimha Murthy v. The Manager, Oriental Insurance Company Limited & Anr. ILR 2004 KAR 2471]

35. …. Therefore, the general principle which should govern the assessment of damages in personal injury cases is that the Court should award to injured person such a sum of money as will put him in the same position as he would have been in if he had not sustained the injuries. But, it is manifest that no award of money can possibly compensate an injured man and renew a shattered human frame.”

In the case of State of Himachal Pradesh & Ors. v. Naval Kumar @ Rohit Kumar, in Civil Appeal No.11466 of 2014, a lumpsum compensation of Rs. 90 lakhs was granted to a boy aged 8 years who lost both of his arms due to electrical accident, by the Apex Court. Apex court in this case modified the quantum of compensation from an amount of Rs. 1.25 crore to Rs. 90 lakhs granted by the High Court to an eight year old boy who had lost both of his arms. In another case titled Raman v. Uttar Haryana Bijli Vitran Nigam limited & Ors. reported as (2014) 15 SCC 1, the Apex Court was pleased to restore the compensation of an amount of Rs. 60 lakhs granted by the Writ Court and modified by the Division Bench to Rs. 30 lakhs in a case of electrocution of a four years old boy who lost both his legs and one arm.

15. A co-ordinate bench of this Court, in a case OWP No.1669/2014 titled. Mala Begum v. State of J&K & Ors., on 25.11.2022, had granted compensation, in case of 100% permanent disability to the following extent:

1. Loss of future earnings = Rs. 9,00,000/-

2. Medical expenses = Rs. 5,00,000/-

3. Attendant charges = Rs. 2,00,000/-

4. Conveyance charges = Rs. 50,000/-

5. Diet & nutrition charges = Rs. 50,000/-

6. Cost of artificial limbs = Rs. 6,00,000/-

7. Loss of amenities of life = Rs. 1,00,000/-

8. Pain and suffering = Rs. 2,00,000/-

Total = Rs. 26,00,000/-

16. Petitioner’s age at the time of unfortunate electrical accident was 28 years. He was daily need base worker in the PDD. In the year 2014, the Govt. Rate for need based worker (skilled labour) was Rs.200/- per day. Therefore, the monthly income of the petitioner in terms of Minimum Wages Act should be (30 x 200) Rs. 6000/-. At the age of 28 years, the future income is to be assessed by stepping up the same with 25%. With addition of 25%, the income of the petitioner is to be accepted as (6000+1500) Rs. 7500/-. On a loss of 100% of the earning capacity, monthly loss of income shall be Rs.7500/- which annually comes to (7500 x 12) Rs. 90,000/- This figure of Rs. 90,000/- has to be accepted as multiplicand.

17. Having regard to the age of 28 years, on the principles of law laid down in case titled “Sarla Verma & Ors vs Delhi Transport Corporation & Anr”., reported as (2009) 6 SCC 121 and reiterated in case titled “National Insurance Company vs Pranay Sethi & Ors”, reported as (2017) 16 SCC 680, by the Hon’ble Apex Court, at the age of 28 years, the applicable ‘multiplier’ shall be 17.

18. With annual loss of Rs. 90,000/- as multiplicand and use of 17 as multiplier, the total loss of income to the petitioner comes to (90000x17) Rs. 15,30,000/- Besides loss of income, the petitioner is also found entitled to Rs.3,80,000/- as medical expenses as per vouchers/bills on his treatment; Rs. 50,000/- as conveyance charges; Rs. 50,000/- as Diet and Nutrition charges; Rs. 2,00,000/- as Loss of Amenities of life; Rs. 2,00,000/- as damages for Pain and Sufferings, Rs. 2,00,000/- as Loss of marriage prospects, Rs. 2,00,000/- as Future Medical Expenses. Petitioner is, thus, found entitled to the compensation for disability as per following details:

19. Since an amount of Rs. 2,00,000/- as ex-gratia relief has been ordered to be released in favour of the petitioner vide order dated 14.07.2020, therefore, the amount of Rs. 2,00,000/- is to be adjusted against the total amount of Rs. 28,10,000/-. Therefore, having regard to the foregoing discussion and reasons stated hereinabove, the petition is allowed holding, petitioner being entitled to Rs. 28,10,000/- (Twenty eight lakhs and ten thousands only) as compensation for his permanent disability along with simple interest @ 5% per annum, except the loss of income, from the date of institution of this petition, till realization of the amount. The respondents are directed to make payment, within six weeks, from the date a certified copy of this judgment is made available to the respondent nos.1 and 2 for compliance. No order as to costs.

20. The writ petition, along with pending application(s), is disposed of.