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Judgment
Ajay Tewari, J. (Oral)—By this petition, the petitioner seeks compensation of electrocution.
The case of the petitioner is that he was working with the respondents as a contract worker. On 14.06.2014, he was directed to install/change the fuses of electricity transformer in Village Mahara. For that purpose, the electricity supply was shut. However, before the petitioner had finished the work, the electricity supply was switched on due to which the petitioner was electrocuted and gravely injured and suffered the following injuries:-
"40% burn of his face including damage of left eye, lost his left hand upto mid forearm due to gangrene and full thickness burns right groin (the area between the abdomen and the upper thigh on either side of the body) 72% permanent disability.
He seeks compensation from the respondents.
On the other hand, the case of the respondents is that the petitioner was not working as a contract worker with them. However, the following facts as mentioned in the written statement, filed by respondent Nos.2 to 4 reads as under:-
"It is relevant to mention that answering respondents had held the enquiry regarding the facts which led to the said accident, and the Executive Engineer, Electrical Inspectorate, Haryana, vide its report dated 21.11.2014 has held that the petitioner was unauthorizedly doing the work at the site of 100 KVA T/F L.D system Khurchand wala Village Mahra alongwith complaint staff and he climbed on the T/F and suddenly he got electric shock and met with non fatal accident, because of 11 KV Bhatana AP Feeder and 11 KV Mahara RDS feeder was touched to each other, causing flow of current in the Mahra RDS feeder as per narrative report of SDO (copy of the same is Annexure R-2). The narrative report of the SDO Murthal, and investigation report of XEN SUB Divn UHBVN Sonipat and SE (OP) Circle, UHBVN, Sonepat reveals that the accident could have been prevented if proper precautions were taken at that relevant time. The photocopies of the narrative report and investigation report are annexed herewith as Annexure R-2 and Annexure R-3. Therefore, the answering respondent has called the explanation for negligence and violation of Nigam instructions from Dilbag Singh, AFM O/o JE-I/Incharge (Op.) Sub-Office, UHBVN, Bhatgaon vide order dated 26.11.2014 and Mahender Singh Line Man, O/o JEI/Incharge (Op.) Sub-Office, UHBVN, Bhatgaon vide order dated 20.11.2014. (The true photocopies of the same are annexed herewith as Annexure R-4 & R-5)."
In view of the said averments, the Board''s assertion that the petitioner was not working with the respondents cannot be accepted. Apart from that it is clear from the said reply that the respondents themselves consider the act of their employees as negligent.
Faced with this, learned counsel for respondent Nos.2 to 4 asserts that the matter would have to be covered by the provision of the Workmen''s Compensation Act and consequently this Court should relegated the petitioners to that remedy. In view of the fact that accident took place almost three years ago, I consider that remedy is no longer an equally efficacious remedy.
Moreover, learned counsel for the petitioner has relied upon the judgment of Supreme Court in Raman v. Uttar Haryana Bijli Vitran Nigam Ltd. and others, 2016 (1) SCC (Cri) 827. In that case, the Supreme Court had upheld the findings of a single Bench that in such cases the Board cannot escape its liability and a writ Court is competent to grant damages. Para Nos. 17 and 18 of the said judgment is reproduced as under:-
"The learned Single Judge of the High Court has awarded compensation keeping all these aspects of the matter and has applied the guiding principle of multiplier method after adverting to the case of Sarla Verma & Ors. v. Delhi Transport Corporation & Anr[6]. for the purpose of computation of just and reasonable compensation in favour of the appellant which method should not have been applied to the case on hand, particularly, having regard to the statutory negligence on the part of the respondents in not providing the safety measures to see that live electric wires should not fall on the roof of the building by strictly following the Rules to protect the lives of the public in the residential area. This Court in the case of Dr. Balram Prasad v. Kunal Saha[7], has deviated from following the multiplier method to award just and reasonable compensation in favour of the claimant in a medical negligence case. The same principle will hold good in the case on hand too. The following case law is followed by this Court in the above referred case, the relevant paragraphs are extracted herein to award just and reasonable compensation in favour of the appellant:
........ three-Judge Bench decision of this Court in Indian Medical Assn. v. V.P. Shantha, wherein this Court has categorically disagreed on this specific point in another case wherein "medical negligence" was involved. In the said decision, it has been held at para 53 that to deny a legitimate claim or to restrict arbitrarily the size of an award would amount to substantial injustice to the claimant.
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In Govind Yadav v. New India Insurance Co. Ltd. this Court at para 15 observed as under which got reiterated at SCC pp. 639-40, para 13 of Ibrahim v. Raju:
"15. In Reshma Kumari v. Madan Mohan, (2009) 13 SCC 422 this Court reiterated that the compensation awarded under the Act should be just and also identified the factors which should be kept in mind while determining the amount of compensation. The relevant portions of the judgment are extracted below:
The compensation which is required to be determined must be just. While the claimants are required to be compensated for the loss of their dependency, the same should not be considered to be a windfall. Unjust enrichment should be discouraged. This Court cannot also lose sight of the fact that in given cases, as for example death of the only son to a mother, she can never be compensated in monetary terms.
The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guesswork may be inevitable. That may be so.
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In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration.
One of the incidental issues which has also to be taken into consideration is inflation. Is the practice of taking inflation into consideration wholly incorrect? Unfortunately, unlike other developed countries, in India there has been no scientific study. It is expected that with the rising inflation the rate of interest would go up. In India it does not happen. It, therefore, may be a relevant factor which may be taken into consideration for determining the actual ground reality. No hard-and- fast rule, however, can be laid down therefor.''
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.......................... he has also strongly placed reliance upon the observations made at para 170 in Malay Kumar Ganguly''s case referred to supra wherein this Court has made observations as thus: (SCC p. 282)
"170. 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. The said principle provides that a person entitled to damages should, as nearly as possible, get that sum of money which would put him in the same position as he would have been if he had not sustained the wrong. (See Livingstone v. Rawyards Coal Co.)"
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103.1. In Ningamma''s case, this Court has observed at para 34 which reads thus: (SCC p. 721)
"34. .......in our considered opinion a party should not be deprived from getting ''just compensation'' in case the claimant is able to make out a case under any provision of law. Needless to say, the MVA is beneficial and welfare legislation. In fact, the court is duty-bound and entitled to award ''just compensation'' irrespective of the fact whether any plea in that behalf was raised by the claimant or not."
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The claimant has also placed reliance upon Nizam''s Institute of Medical Sciences v. Prasanth S. Dhananka''s [(2009) 2 SCC (Civil) 686] case in support of his submission that if a case is made out, then the Court must not be chary of awarding adequate compensation. The relevant paragraph reads as under:
"88. We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The ''adequate compensation'' that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned."
Further in para 119, it is held ......this Court has rejected the use of multiplier system to calculate and award the quantum of compensation which must be just and reasonable. The relevant paragraph is quoted hereunder: (SCC para 92)
"92. Mr. Tandale, the learned counsel for the respondent has, further submitted that the proper method for determining compensation would be the multiplier method. We find absolutely no merit in this plea. The kind of damage that the complainant has suffered, the expenditure that he has incurred and is likely to incur in the future and the possibility that his rise in his chosen field would now be restricted, are matters which cannot be taken care of under the multiplier method."
(emphasis supplied)
Further under paragraph No. 121, the relevant paragraph from United India Insurance Co. Ltd. v. Patricia Jean Mahajan read as under: (SCC pp. 295-96, paras 20)
"20. The court cannot be totally oblivious to the realities. The Second Schedule while prescribing the multiplier, had maximum income of Rs. 40,000 p.a. in mind, but it is considered to be a safe guide for applying the prescribed multiplier in cases of higher income also but in cases where the gap in income is so wide as in the present case income is 2,26,297 dollars, in such a situation, it cannot be said that some deviation in the multiplier would be impermissible. Therefore, a deviation from applying the multiplier as provided in the Second Schedule may have to be made in this case. Apart from factors indicated earlier the amount of multiplicand also becomes a factor to be taken into account which in this case comes to 2,26,297 dollars, that is to say, an amount of around Rs. 68 lakhs per annum by converting it at the rate of Rs. 30. By Indian standards it is certainly a high amount. Therefore, for the purposes of fair compensation, a lesser multiplier can be applied to a heavy amount of multiplicand. A deviation would be reasonably permissible in the figure of multiplier even according to the observations made in Susamma Thomas where a specific example was given about a person dying at the age of 45 leaving no heirs being a bachelor except his parents."
(emphasis supplied)
Further, in paragraph 177, it was held as under:-
"177. Under the heading of loss due to pain and suffering and loss of amenities of the wife of the claimant, Kemp and Kemp write as under:
"The award to a plaintiff of damages under the head "pain and suffering" depends as Lord Scarman said in Lim Poh Choo v. Camden and Islington Area health Authority, "upon the claimant''s personal awareness of pain, her capacity of suffering. Accordingly, no award is appropriate if and in so far as the claimant has not suffered and is not likely to suffer pain, and has not endured and is not likely to endure suffering, for example, because he was rendered immediately and permanently unconscious in the accident. By contrast, an award of damages in respect of loss of amenities is appropriate whenever there is in fact such a loss regardless of the claimant''s awareness of the loss."
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''Even though the claimant may die from his injuries shortly after the accident, the evidence may justify an award under this head. Shock should also be taken account of as an ingredient of pain and suffering and the claimant''s particular circumstances may well be highly relevant to the extent of her suffering. ..........''
By considering the nature of amenities lost and the injury and pain in the particular case, the court must assess the effect upon the particular claimant. In deciding the appropriate award of damages, an important consideration show long will he be deprived of those amenities and how long the pain and suffering has been and will be endured. If it is for the rest of his life the court will need to take into account in assessing damages the claimant''s age and his expectation in life......."
(emphasis supplied)
Further, in the case of Rekha Jain v. National Insurance Co. Ltd.[8] this Court at paras 34 and 35, with regard to the quantum of damages, has held as under:
"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 vs. the Manager, Oriental Insurance Company Limited and 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."
39.....In Mediana, in re [1900 AC 113 (HL)], it is held at para
32 which is extracted as herein
''......... 32....In personal injury cases, the Court is constantly required to form an estimate of chances and risks which cannot be determined with precision. It is because, the law will disregard possibilities which are slight or chances which are nebulous; otherwise, all the circumstances of the situation must be taken into account, whether they relate to the future which the plaintiff would have enjoyed if the accident had not happened, or to the future of his injuries and his earning power after the accident. Damages are compensation for an injury or loss, that is to say, the full equivalent of money so far as the nature of money admits; and difficulty or uncertainty does not prevent an assessment.'' [K. Narasimha Murthy vs. the Manager, Oriental Insurance Company Limited and Anr.] [ILR 2004 KAR 2471]
In Fowler v. Grace, [(1970) 114 Sol Jo 193 (CA)] Edmund Davies, L.J., has said that:
"It is the manifest duty of the Tribunal to give as perfect a sum as was within its power''. There are many losses which cannot easily be expressed in terms of money. If a person, in an accident, loses his sight, hearing or smelling faculty or a limb, value of such deprivation cannot be assessed in terms of market value because there is no market value for the personal asset which has been lost in the accident, and there is no easy way of expressing its equivalent in terms of money."
McGregor on Damages (14th Edn.) at Para 1157, referring to the heads of damages in personal injury actions, states as under:
"The person physically injured may recover both for his pecuniary losses and his non-pecuniary losses. Of these the pecuniary losses themselves comprise two separate items viz. the loss of earnings and other gains which the plaintiff would have made had he not been injured and the medical and other expenses to which he is put as a result of the injury, and the courts have subdivided the non-pecuniary losses into three categories viz. pain and suffering, loss of amenities of life and loss of expectation of life.
Besides, the Court is well advised to remember that the measures of damages in all these cases ''should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure.'' The observation of Lord Devlin that the proper approach to the problem or to adopt a test as to what contemporary society would deem to be a fair sum, such as would allow the wrongdoer to ''hold up his head among his neighbours and say with their approval that he has done the fair thing'', is quite apposite to be kept in mind by the Court in assessing compensation in personal injury cases."
(emphasis supplied)
In R. Venkatesh v. P. Saravanan the High Court of Karnataka while dealing with a personal injury case wherein the claimant sustained certain crushing injuries due to which his left lower limb was amputated, held that in terms of functional disability, the disability sustained by the claimant is total and 100% though only the claimant''s left lower limb was amputated. In para 9 of the judgment, the Court held as under: (Kant LJ p. 415)
''9. As a result of the amputation, the claimant had been rendered a cripple. He requires the help of crutches even for walking. He has become unfit for any kind of manual work. As he was earlier a loader doing manual work, the amputation of his left leg below the knee, has rendered him unfit for any kind of manual work. He has no education. In such cases, it is well settled that the economic and functional disability will have to be treated as total, even though the physical disability is not 100%.''
Lord Reid in Baker v. Willoughby has said: (AC p. 492A) "... A man is not compensated for the physical injury: he is compensated for the loss which he suffers as a result of that injury. His loss is not in having a stiff leg: it is in his inability to lead a full life, his inability to enjoy those amenities which depend on freedom of movement and his inability to earn as much as he used to earn or could have earned...."
Now the issue is as to what compensation has to be granted to the petitioner.
The various heads under which the petitioner may be entitled to compensation are:-
(i) Loss of future income
(ii) Pain and suffering
(iii) Loss of amenities
(iv) Attendant, transportation and diet charges already incurred and to be incurred in the future
(v) Medical expenses already incurred and future medical expenses
As regards the loss of future income, the petitioner stated that he was being paid Rs. 6,000/- per month. He was 26 years old on the date of accident. It is also on the record that he is a diploma holder. He was a qualified electrician. In today''s day and age a trained electrician can easily earn Rs. 15,000/- per month. Keeping in view that he was a skilled workman and the fact that he has lost an eye and a hand he cannot work as an electrician. His permanent disability has thus to be taken as 100%. In the totality of circumstances, I deem it appropriate to take loss of future income at Rs. 15,00,000/-.
As regards pain and suffering, the petitioner has lost an eye and an arm and he has also been severely burnt. I deem it appropriate to grant him compensation on account of pain and suffering at Rs. 5,00,000/- As regards the loss of amenities of life on account of his arm and one eye, I deem it appropriate to grant Rs. 5,00,000/- on account of loss of amenities of life.
As regards future transportation, attendant charges and special diet, in my opinion it would be appropriate that respondents create a fixed deposit of Rs. 10,00,000/-. The petitioner would be entitled to quarterly interest thereon towards these three heads during his life time and after his demise, the said fixed deposit amount would revert back to the respondents.
As regards the issue of past medical expenses and of special diet, transportation and attendant charges already incurred, as well as future medical expenses I do not feel confident in hazarding a guess on this account in the absence of evidence and consequently, I deem it appropriate to refer this issue to the District Judge, Sonepat, who will take the evidence on this issue from both the parties. He is directed to send his report within eight months and parties through counsel are directed to appear before the said Court on 21.03.2017. A complete copy of the paper book and a copy of this order be also sent to the District Judge, Sonepat through special messenger.
As regards the amount which this Court has already determined, the same will carry interest @ 8% per annum from the date of accident till the date of payment. The payment be made within three months.
This Court has taken the unusual step of deciding a part of the case by way of this order in view of the extreme circumstances of the petitioner who has a wife and children to feed.
The compensation on the heads of actual medical expenses already incurred and future medical expenses would be determined after the report of the Sessions Judge, Sonepat.
Adjourned to 20.12.2017.