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Judgment
Virender Singh, J.—Above captioned three appeals involve three different incidents causing two deaths and injuring one. In this regard three
different writ petitions were filed before the learned Writ Court for compensation, which have now been dismissed vide three different orders, but
solely on the ground that they involve disputed questions of fact and such cannot be adjudicated upon in writ jurisdiction in the light of the judgment
handed down by Hon'ble Apex Court in case S.D.O. Grid Corporation of Orissa Ltd. and Ors. v. Timudu Oram reported in AIR 2005 SCW
3715 (for short hereinafter to be referred as SDO Grid Corporation). Therefore, all these three appeals have been clubbed together for disposal.
Even for deciding the main issue with regard to the maintainability of the writ petitions, we have to look at the facts of each individual case,
which, in brief, are thus:
Hereinafter the Appellants shall be referred to as writ Petitioner(s) only.
LPAOW No. 34/2007 arising out of OWP No. 647/2002 In this case, there is an amputation of right arm of injured-writ Petitioner Joginder
Singh. His permanent disability is assessed as 60%. On the date of accident, he was working as a Conductor in private matador and his age was
25 years.
It is pleaded that on 11.04.2002, he was passing through land of one Dharam Singh S/o Sh. Kanshi Ram, where an electric pole was installed
by the State Electricity Department (Respondent), in which electric current was passing. He incidentally touched that pole and got electrocuted, as
a result thereof, received severe burn injuries, which ultimately resulted into amputation of his right hand from elbow. He has claimed Rs. 12 lacs as
compensation. Alongwith the main petition, he has attached certain documents with regard to his medical treatment etc.
Refuting the case of the Petitioner, the stand taken by the official Respondents is that he received injuries because of his own fault as he was
climbing the electric pole to snap the conductor in order to misuse the electricity. The incident was reported by the Lineman of the department and
ultimately the matter was investigated, in which, the statements of some locals were also recorded. On these pleas, the preliminary objection raised
by the official Respondents for dismissal of the writ petition was that all the facts involved in the petition were disputed one, which could not be
adjudicated upon in writ jurisdiction. LPAOW No. 58/2008 arising out of OWP No. 994/2003 This is a case of death, in which wife of the
Appellant-Tara Chand (writ Petitioner) died due to electric shock. It is pleaded that on 02.08.2003, she came in contact with live electric wire
attached with the electric pole installed by the State Electricity Department and was hanging loose in the maize field for the last 8-10 days on
account of heavy rains. In this connection, F.I.R. u/s 304-A RPC was also got lodged in Police Station, Ramnagar. It is further pleaded that
despite the fact of electric wire being loose brought to the notice of one Lineman, no attempt was made by the department to correct the defect
and, therefore, this occurrence.
The deceased is stated to be of the age of 26 years at the time of occurrence and a sum of Rs. 5 lacs is asked for as compensation in this
regard. The writ Petitioner has attached certain documents including the report prepared by the police, the post mortem report etc.
The stand taken by the official Respondents in their defence as borne out from the reply filed by them to the main petition is, that the incident has
occurred because of snapping of the conductor resulting into falling of the wire and therefore, it was purely an act of God and not on account of
negligence on the part of the department. It was further averred that due to heavy rains, there might have been the collision of the conductor
resulting into its snapping.
LPAOW No. 60/2008 arising out of OWP No. 892/2003 This case also relates to death of one Sanjay Kumar Sharma, an unmarried boy. His
parents and two brothers have filed the writ petition for compensation. At the time of death, Sanjay Kumar was running his own shop of a photo-
grapher. His age was 27 years.
It is averred that on the fateful day i.e. 18.12.2001 when the deceased was going to a shop, he had passed through a place known as Jhiri,
where the employees of Power Development Department were removing the temporary electric poles installed for Jhiri festival which was over.
One of the electric poles fell on the head of the deceased, which ultimately proved fatal. In this connection a criminal case was registered u/s 304-
A RPC against the officials of the Electricity Department. A sum of Rs. 7.5 lacs has been claimed as compensation. Alongwith the petition, the
copy of the post mortem, F.I.R. and other documents are attached by the Petitioners.
In the objections, factum of death of Sanjay Kumar Sharma coming under the electric pole has been admitted, but the fault is shown of the
deceased himself stating that when the electric poles were being removed, he in a rash manner made an attempt to cross under the electric pole in
order to catch the matador standing across and one of the poles incidentally fell on his head, resulting into death.
This is all, in brief, with regard to the facts of each individual case. We have heard learned Counsel for the respective parties and gone through
the record minutely.
Submissions by Appellants counsel:
It is contended by the respective learned Counsel of each individual case that instead appreciating the each writ petition on the doctrine of strict
liability, they are rejected simply on the analogy that the disputed questions of facts are attracted in it, which cannot be gone into by the Writ Court,
which approach adopted by the learned Writ Court is not sustainable.
It is further submitted that in all the cases, the factum of occurrence is admitted and in two cases, even the challans have been filed against the
employees of PDD. This fact by itself proves the negligence. The learned Counsel further submit that if the present three cases are appreciated
applying the test of doctrine of strict liability then negligence or no negligence would pale into insignificance. It is then contended that the judgment
handed down by Honble Supreme Court in SDO Grid Corporations case (supra) referred to by the learned Writ Court for dismissing the writ
petitions, is, otherwise, not applicable to the facts of any of the cases at hand, as such, the impugned order(s) deserves to be set aside.
Submissions by Respondent's counsel:
Per contra, Mr. Thakur although admits the occurrence, yet does not admit the negligence submitting that all the three writ petitions involve
disputed questions of fact, which could not be gone into by the Writ Court in exercise of its writ jurisdiction, therefore, the writ petitions have been
rightly rejected. He prays for dismissal of the present three appeals also on the same rationale.
Our Discussion:
In the first instance, we would enter into detailed discussion with regard to the maintainability of the writ petition(s), primarily for which purpose,
we have clubbed all the present three appeals.
In normal course, it can be said that the exercise of the power under Article 226 of the Constitution, though discretionary, has to follow certain
well recognized norms and should not be used in each and every case where action complained of is not related to a fundamental right. This power
is also not to be exercised where the Petitioner has alternate remedy under ordinary law of land. It can also be said that extra-ordinary writ
jurisdiction cannot be exercised when civil rights of the parties are involved and the facts are disputed. However, all these well recognized norms
would not be attracted in a case of strict liability.
We would refer to para 6 of the judgment rendered in SDO Grid Corporations case (supra), in which, their Lordships, while relying upon
another judgment of Honble Supreme Court rendered in case Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and Ors. v. Sukamani Das
(Smt.) and Anr. reported in (1997) 7 SCC 298, observed as under:
In our opinion, the High Court committed an error in entertaining the writ petitions even though they were not fit cases for exercising power
under Article 226 of the Constitution. The High Court went wrong in proceeding on the basis that as the deaths had taken place because of
electrocution as a result of the deceased coming into contact with snapped live wires of the electric transmission lines of the Appellants, that
admittedly/prima facie amounted to negligence on the part of the Appellants. The High Court failed to appreciate that all these cases were actions
in tort and negligence was required to be established firstly by the claimants. The mere fact that the wire of the electric transmission line belonging
to Appellant 1 had snapped and the deceased had come in contact with it and had died was not by itself sufficient for awarding compensation. It
also required to be examined whether the wire had snapped as a result of any negligence of the Appellants and under which circumstances the
deceased had come in contact with the wire. In view of the specific defences raised by the Appellants in each of these cases they deserved an
opportunity to prove that proper care and precautions were taken in maintaining the transmission lines and yet the wires had snapped because of
circumstances beyond their control or unauthorized intervention of third parties or that the deceased had not died in the manner stated by the
Petitioners. These questions could not have been decided properly on the basis of affidavits only. It is the settled legal position that where disputed
questions of facts are involved under Article 226 of the Constitution is not a proper remedy. The High Court has not and could not have held that
the disputes in these cases were raised for the sake of raising them and that there was no substance therein. The High Court should have directed
the writ Petitioners to approach the Civil Court as it was done in OJC No. 5229 of 1995.
In SDO Grid Corporations case (supra), the decision of the Apex Court rendered in Madhya Pradesh Electricity Board Vs. Shail Kumari and
Others, was also considered and distinguished observing that in the said case finding of negligence was already recorded by the trial Court against
the Electricity Board. In so far as application of Strict Liability is concerned, the Honble Supreme Court in M.P. Electricity Boards case (supra)
has observed in paras 8 and 9 as under:
8 Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is
liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the
managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such
person is known, in law, as strict liability. It differ from the liability which arises on account of the negligence or fault in this way i.e. the concept of
negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the Defendant did all that which could be
done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in
cases of strict liability where the Defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.
9 The doctrine of strict liability has its origin in English common law which it was propounded in the celebrated case of Rylands v. Fletcher (1868)
3 HL 330. Blackburn, J., the author of the said rule had observed thus in the said decision: (All ER p.7E-F)
The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it
escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its
escape.
(emphasis supplied)
In the aforesaid judgment, there is a reference to the Constitution Bench judgment of Honble Supreme Court rendered in case M.C. Mehta
and another Vs. Union of India and others, , in which the Apex Court has gone even beyond the rule of Strict Liability by holding in para 12 of the
judgment as under:
Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on anyone on account of the accident in the
operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not
subject to any of the exceptions to the principle of strict liability under the rule in Rylands v. Fletcher (1868) 3 HL 330.
In SDO Grid Corporations case (supra), there is a reference to another judgment of Honble Supreme Court rendered in case H.S.E.B. and
Ors. v. Ram Nath and Ors. (2004) 5 SCC 793, which is also distinguished on its own facts. In this case, an appeal was filed in the Supreme Court
by Haryana Electricity Board against the compensation awarded by Punjab and Haryana High Court to the claimants on account of death of a
child by taking the plea that since disputed questions of fact had arisen in the said case, the High Court should not have entertained the writ
petition. Their Lordships of the Apex Court while dismissing the appeal of H.S.E.B. observed in paras 2 to 6 as under:
Reliance is placed upon the case of Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) v. Sukamani Das wherein a person walking along
the road came in contact with a live wire which was lying on the road after having got snapped from the overhead electric line. The writ petition
was filed claiming compensation. The High Court directed payment of compensation. However, this Court held that disputed questions of fact
arose and that a writ petition was not a proper remedy. On the basis of this authority, it is urged that even in this case disputed questions of fact
arose and that, therefore, the High Court should not have entertained the writ petition.
In order to consider this submission, one has to look at the averments made in the petition and the reply to those averments.
In para (2) of the petition it is stated as follows:
(2) That the Petitioners are residing in their house in Sakti Nagar Colony near Kabri Railway Crossing for over 15 years and a HT line is passing
over the house of the Petitioners at a much lower height than that prescribed under the Rules. The said line has become quite loose and drooping
and touching the roof of the house of the Petitioners for the last about two years. The Petitioners as well as other inhabitants of the aforesaid colony
have been requesting Respondents 3 and 4 to tighten the said HT line for the last about two years repeatedly in writing and verbally by calling on
them in their respective offices but they did not bother for the same.
In the written statement there is no denial to these averments. All that is claimed is that the entire colony was an unauthorized colony and that
unauthorizedly the height of the houses had been raised. It is claimed that the wires were at the prescribed height of 20 feet from the ground level
and that the height of the wire was as per the standard prescribed under the Rules.
It is submitted that these averments would show that there was a disputed question of fact as to whether or not the wires were touching the roof.
We are unable to accept this submission. To the categoric averments set out hereinabove that the wires had become loose and were drooping and
touching the roof of the houses, there is no denial. To the categoric averments that complaints had been made, both in writing and orally, requesting
that the wires had to be tightened, there is no denial. A mere vague statement to the effect that the height was as per the prescribed limit does not
detract from the fact that there is a deemed admission that the wires were drooping and touching the roofs.
The Appellants are carrying on a business which is inherently dangerous. If a person were to come into contact with a high-tension wire, he is
bound to receive serious injury and/ or die. As they are carrying on a business which is inherently dangerous, the Appellants would have to ensure
that no injury results from their activities. If they find that unauthorized constructions have been put up close to their wires it is their duty to ensure
that that construction is got demolished by moving the appropriate authorities and if necessary, by moving a court of law. Otherwise, they would
take the consequences of their inaction. If there are complaints that these wires are drooping and almost touching houses, they have to ensure that
the required distance is kept between the houses and the wires, even though the houses be unauthorized. In this case we do not find any disputed
question of fact.
After referring to all the judgments, in our considered view, the ratio of the judgment handed down by the Apex Court in SDO Grid
Corporations case (supra) relied upon by Mr. Thakur and also made the basis for rejection of all the three writ petitions filed by the Appellants,
does not whittle down the law laid down by the Apex Court in M.P. Electricity Boards case as in SDO Grid Corporations case (supra), the Apex
Court considered the earlier decision rendered in M.P. Electricity Boards case and without affecting the principle of strict liability distinguished the
said judgment on the ground that the question of negligence was determined by Civil Court. Therefore, it can be reasonably understood that M.P.
Electricity Boards case has been distinguished on its own facts and the Honble Supreme Court has not taken any contrary view from the one
already taken with regard to the doctrine of strict liability as discussed in extenso in the judgment of Constitution Bench of Supreme Court in M. C.
Mehtas case (supra). Their Lordships in a recent judgment rendered in case Union of India (UOI) Vs. Prabhakaran Vijaya Kumar and Others, in
a case of railway accident, while dealing with the doctrine of strict liability, observed as under:
However, apart from the principle of strict liability in Section 124-A of the Railways Act and other statutes, we can and should develop the
law of strict liability dehors statutory provisions in view of the Constitution Bench decision of this Court in M.C. Mehta case. In our opinion, we
have to develop new principles for fixing liability in cases like the present one.
Viewed thus, it can be comfortably said that simply on raising preliminary objection on the point of maintainability in a particular case taking the
plea of disputed questions of fact, it shall not call for its dismissal outrightly on the strength of SDO Grid Corporations case (supra). Therefore,
each individual case in this regard has to be tested on the touchstone of doctrine of strict liability on its own facts, but taking into consideration the
averments made in the petition coupled with the documentary evidence, if any, and the reply submitted thereto by the opposite side.
Having said so, let us now examine the facts of the case of Joginder Singh (LPAOW No. 34/2007 arising out of OWP No. 647/2002), facts
thereof, in brief, have already been depicted hereinabove. His case is that when he was passing through the field of one Dharam Singh S/o Sh.
Kanshi Ram, he came in contact with the electric pole in which electric current was passing, as a result of which, he received burn injuries which
ultimately resulted into amputation of his right arm above the elbow. While admitting the incident, the Respondents/PDD Department has shifted the
liability upon the injured only stating that he wanted to fiddle with the power supply system by climbing on the pole. The other ground taken is that
the matter was investigated by the Executive Engineer and other senior officers of the department, in which statement of certain locals were also
recorded and ultimately the matter was reported to the police. We do not find any document on the file attached with the reply so as to indicate
that some inquiry was ever conducted by any senior officer/ official of the department or any mater was reported with the police. In the absence of
any evidence to strengthen the plea of the Respondents, even prima facie so as to presume any over act attributable to the injured/writ Petitioner
resulting into electrocution, and while testing the present case on the doctrine of strict liability, we can comfortably hold that the State and its
functionaries were negligent. Therefore, rejecting the case of the writ Petitioner by the learned Writ Court on the basis of the judgment rendered in
SDO Grid Corporations case (supra) is not sustainable, as in our view, the said judgment is distinguishable on facts of the present case.
Let us now advert to other two cases in which there is one death in each case.
In Tara Chands case (LPAOW No. 58/2008 arising out of OWP No. 994/2003), wife of the writ Petitioner has died on account of
electrocution. The case set up by him is that she came in contact with a live wire hanging loose from the pole in the fields which remained
unattended by the officials of the Respondent-department for a long period. The incident is admitted by the Respondent-department, but the
negligence is not admitted on the plea that it was purely an act of God as on account of heavy rains, there was snapping of the conductor. In our
considered view, the plea taken by the Respondents does not absolve them of their liability. It was the duty of the Electricity Department to take all
the precautions. The liability cast on the State in law, would fall within the ambit of strict liability. The basis of strict liability is the foreseeable risk
inherent in the very nature of the activity. The doctrine of strict liability as discussed in extenso in M. C. Mehtas case (supra) is straightway
attracted in the present case. The State and its functionaries, who were engaged in supplying electric energy in a particular area knew it very well
that the live electric wire has dangerous dimensions. Therefore, it was their added responsibility to take all precautionary/ safety measures to
prevent snapping of the wire.
While dismissing the writ petition of writ Petitioner-Tara Chand, the learned Writ Court referring to the facts of the case observed thus:
In the present case disputed question of fact arise. The Petitioner alleges negligence on the part of department, but the Respondents have denied
the same. In this circumstance, the court can not proceed on the basis that death has taken place because of electrocution, which has resulted due
to the negligence on the part of Respondent. The mere fact that electric wire snapped and fell on the deceased was not by itself sufficient to
establish negligence on the part of the Respondents. It is required to be examined whether the wire has snapped as a result of any negligence of the
Respondents and that under which circumstances the deceased has come in contact with the wire.
If the present case is tested on the doctrine of strict liability the observations made by the learned Writ Court will not be sustainable and, as
such, deserves to be disturbed.
Let us now advert to the death of Sanjay Kumar Sharma (LPAOW No. 60/2008 arising out of OWP No. 892/2003). He has not been died
because of electrocution. The case set up by the writ Petitioners is that Electricity Department had installed certain electric poles at a particular
place (Jhiri) with regard to some Mela organized in that village. After that was over, the employees of the department were removing the poles and
one of the poles fell on the head of the deceased, which ultimately proved fatal. In this regard, a case u/s 304-A RPC was also registered against
the employees of the department.
While controverting the averments made by the writ Petitioners, the main stand taken by the Respondents is that the deceased wanted to catch
the matador and in a hurry he went towards the side where electric poles were being removed and incidentally one pole fell on the head of the
deceased, resulting into his death.
Virtually, the incident is admitted but the entire fault is shifted to the deceased himself. The learned Writ Court taking it to be a case of disputed
question of facts, observed as under:
In the present case also disputed questions of fact have been raised. The Petitioner alleges negligence result of any negligence of the Respondents.
Following the judgment rendered in SDO Grid Corporations case (supra), ultimately the writ petition was dismissed.
We are not in agreement with the view taken by the learned Writ Court on a simple rationale that the exercise being carried out by the
employees of the Respondent department could result in risky exposure to the human life. Therefore, they were supposed to take all the
precautions at the time of removing the poles so that nobody could enter that particular area. Admittedly, that is not the case of the Respondents.
So appreciating it from that very angle and testing the case on the doctrine of strict liability it cannot be said to be a case of disputed questions of
fact as held by the learned Writ Court.
For the sake of repetition, we may observe here that the doctrine of strict liability is to be appreciated on the rationale of a celebrated case of
Rylands v. Fletcher (1868) 3 HL 330, referred hereinabove, in which it is observed that:
The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it
escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its
escape.
Although there are exceptions to the above rule of strict liability, yet what has come to be accepted by Courts in India including Supreme
Court of India, may be stated as follows:
Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the
operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not
subject to any of the exceptions to the principle of strict liability under the rule in Rylands v. Fletcher (refer to M.C. Mehta and another Vs. Union
of India and others, .
In view of the above settled legal position and after appreciating all the three cases at hand in the light of the aforesaid discussion, where facts
of each individual case have been taken into account, we hold that the negligence in these cases is writ large, which makes the Respondents liable
to compensate the writ Petitioner(s) for deaths/injury.Resultantly, the impugned orders passed in each of the three cases on different dates
dismissing the writ petitions are liable to be set aside. Ordered accordingly.
Discussion on quantum of compensation:
The next question arises for our consideration is that, what should be the quantum of compensation to be awarded in each case. We could remand
all the three cases to the learned Writ Court for assessment of compensation, once we have held the Respondents being negligent, but remanding
for determination of compensation, at this stage, will further delay the matter. Therefore, to shorten the litigation and to do complete justice
between the parties, we embark upon the exercise ourselves to assess the compensation in each individual case. For the purpose of assessing
compensation, we would apply the same analogy, which the legislature in its wisdom and as a social security measure has provided to the victim of
the motor vehicle accident enacting 163-A of the Motor Vehicle Act sanctioning payment of compensation on the basis of the structured formula
prescribed in Second Schedule appended to the Motor Vehicle Act, 1988 (for short to be referred to as Act only).
Finding in:
LPAOW No. 34/2007 arising out of OWP No. 647/2002 Let us take the case of Joginder Singh-injured/writ Petitioner.
The medical evidence on record indicates that it is a case of amputation of right hand. The certificate of disability issued by the Government
Medical College and Hospital, Jammu reflects permanent disability to the extent of 60%. His age in the medical record is shown as 25 years. He
asserts in his petition that besides engaging himself in agricultural pursuits, sometimes he used to work as conductor also with the matador. May be
there is no evidence with regard to this aspect, still one fact, which this Court cannot lose sight of is that at the time of incident, Appellant-Joginder
Singh was of the age of 25 years and, therefore, even if we consider his earning capacity at the level of a daily wager, his income should be
minimum Rs. 3,000/- per month. Permanent disability in his case is to the extent of 60%. He is, therefore, entitled to compensation for future loss
of earning. In a very recent judgment handed down by Honble Supreme Court in case Yadava Kumar v. The Divisional Manager, National
Insurance Co. Ltd. and Anr. 2010 (5) Rec. Apex Jud. 116, while drawing the distinction between compensation and damage their Lordships have
observed in para 20 as under:
The High Court and the Tribunal must realize that there is a distinction between compensation and damage. The expression compensation may
include compensation.
In the aforesaid case, the permanent disability received by the injured was assessed as 20% and the income was assessed as Rs. 36,000/- per
annum. While taking into account Second Schedule u/s 163-A of the Motor Vehicles Act, 1988, which gives a structured formula for calculating
compensation in accident cases, considering the age of the injured, multiplier of 17 was adopted and for assessing loss of future income, by
applying the multiplier on the actual income vis--vis the disability, loss of future earning was assessed as Rs. 1,22,400/-.
For reference, Clause 5 of the Schedule deals with disability in non fatal accidents, which reads as follows:
Disability in non-fatal accidents:
The following compensation shall be payable in case of disability to the victim arising out of non-fatal disablement not exceeding fifty two weeks.
PLUS either of the following:
(a) In case of permanent total disablement the amount payment shall be arrived at by multiplying the annual loss of income by the Multiplier
applicable to the age on the date of determining the compensation, or
(b) In case of permanent partial disablement such percentage of compensation which would have been payable in the case of permanent total
disablement as specified under item (a) above.
Injuries deemed to result in Permanent Total Disablement/Permanent Partial Disablement and percentage of loss of earning capacity shall be as per
Schedule I under Workmens Compensation Act, 1923.
Let us apply the ratio of the aforesaid judgment on the case of injured-Joginder Singh also. His income has been assessed by us as Rs. 3,000/-
p.m. It comes to Rs. 36,000/- p.a. At the time of accident, his age was 25 years. Even if we apply the multiplier of 17, it come to Rs. 6,12,000/-.
Percentage of disablement is 60%. The loss of future earning would be thus Rs. 3,67,200/-. We round it to Rs. 3,70,000/-. Mr. Chandel has
relied upon a judgment of Delhi High Court rendered in case of a labourer suffering from permanent disability of 60% has been granted
compensation to the tune of Rs. 9 lacs. In the said case, Tribunal had taken the income at minimum wages of Rs. 2,783/- p.m. and considering the
rise in cost of living and future prospects, assessed average income at Rs. 4,175/- p.m., adopted the multiplier of 18 and after assessing functional
disability at 75%, awarded Rs. 6,76,350/- for loss of earning capacity. Besides this, Rs. 1,00,000/- for pain and suffering, Rs. 2,00,000/-for
permanent disability/loss of amenities, Rs. 26,000/- for medical expenses, Rs. 75,00/- for conveyance/attendant charges and Rs. 25,000/- for loss
of marriage prospects was granted. The total awarded amount was Rs. 10,34,850/-. By Appellate Court, amount for loss of earning was reduced
to Rs. 5,41,080/- and ultimately the injured claimant was granted about Rs. 9 lacs.
We, after considering the case of Joginder Singh-injured on all aspects, grant a sum of Rs. 6,40,000/- as per following break up under
different heads:
Rs.3,70,000/- for loss of future earning.
Rs. 1,00,000/- for pain and suffering.
Rs. 70,000/- for medical expenses.
Rs. 25,000/- for conveyance and attendant charges
Rs. 75,000/- towards loss of amenities.
We would like to mention here that in the memo of appeal, Joginder Singh-Appellant in the relief clause has prayed for compensation to the
tune of Rs. 3 lacs, but we ignore that fact and go to the original writ petition wherein a sum of Rs. 12 lacs is asked for.
Finding in:
LPAOW No. 58/2008 arising out of OWP No. 994/2003 Let us now take the case of Tara Chand, in which his wife- Lakshmi has died. He has
prayed for Rs. 5 lacs as compensation. At the time of death, the deceased was of 26 years. She is said to be housewife. In the petition, Tara
Chand has not said a word about any child born out of their wedlock. Therefore, we will presume that Appellant-Tara Chand is the only legal heir
of the deceased.
Mr. Thakur, learned Counsel for Respondents, argued before us that since Lakshmi was a house wife, she cannot be said to be an earning
member and, therefore, not entitled to any compensation. We do not agree with the submissions advanced by Mr. Thakur. In a very recent
judgment of Honble Supreme Court handed down in case Arun Kumar Agrawal and Anr. v. National Insurance Company and Ors. 2010 (4)
R.A.J. 262, their lordships while dealing with the compensation part on account of death of a house wife in a motor accident held that service
rendered by a house wife cannot be compared with that of house-keeper or servant. It was observed in para 23 as under:
In India the Courts have recognized that the contribution made by the wife to the house is invaluable and cannot be computed in terms of
money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs
cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family
throughout the day and night unless she is employed and is required to attend the employers work for particular hours. She takes care of all the
requirements of husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable
guidance to them for their future life. A housekeeper or maidservant can do the household work,, such as cooking food, washing clothes and
utensils, keeping the house clean etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.
It was further held that in absence of any definite criteria for determining the compensation payable to the dependents of a nonearning house
wife/mother, it would be reasonable to rely upon the criteria specified in Clause (6) of the Second Schedule and then apply appropriate multiplier.
In para 32 of the aforesaid judgment, it was observed as under:
In our view, it is highly unfair, unjust and inappropriate to compute the compensation payable to the dependents of a deceased wife/mother,
who does not have regular income, by comparing her services with that of a housekeeper or a servant or an employee, who works for a fixed
period. The gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no
evidence or data can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money, the loss
of personal care and attention suffered by the husband and children on the demise of the housewife. In its wisdom, the legislature had, as early as in
1994, fixed the notional income of a non-earning person at Rs. 15,000/- per annum and in case of a spouse, 1/3rd income of the earning/ surviving
spouse for the purpose of computing the compensation. Though, Section 163A does not, in terms apply to the cases in which claim for
compensation is filed u/s 166 of the Act, in the absence of any other definite criteria for determination of compensation payable to the dependents
of a non-earning housewife/mother, it would be reasonable to rely upon the criteria specified in clause(6) of the Second Schedule and then apply
appropriate multiplier keeping in view the judgments of this Court in General Manager Kerala State Road Transport Corporation v. Susamma
Thomas (Mrs.) and Ors. (supra), U.P.S.R.T.C. v. Trilok Chandra (supra), Sarla Verma (Smt.) and Ors. v. Delhi Transport Corporation and Anr.
(supra) and also take guidance from the judgment in Lata Wadhwas case. The approach adopted by different Benches of Delhi High Court to
compute the compensation by relying upon the minimum wages payable to a skilled worker does not commend out approval because it is most
unrealistic to compare the gratuitous services of the housewife/mother with work of a skilled worker.
As to how to assess the loss of dependency in the event of death of a house wife, it would be apt to reproduce para 10 of the judgment
handed down by Apex Court in Lata Wadhwa and Others Vs. State of Bihar and Others, , which reads thus:
So far as the deceased housewives are Rs.50,000/- towards the conventional figure.
Viewed, thus, we do not even deduct any amount in consideration of the expenses, which the victim could incur towards maintaining herself in
this particular case and hold that the claimant/writ Petitioner has lost the contribution/source of dependency on account of death of his wife to the
tune of Rs. 3,000/- per month, thus Rs. 36,000/- per annum and by applying the multiplier of 17 considering the age of the deceased, it comes to
Rs. 6,12,000/- (Rs. 36,000 x 17). A sum of Rs. 20,000/- for loss of consortium and Rs. 10,000/- for funeral expenses etc. is also added to it.
The total amount of compensation to which the Appellant/writ Petitioner now becomes entitled is Rs. 6,42,000/-.
However, we restrict his claim to Rs. 5 lacs only as in his basic writ petition, writ Petitioner-Tara Chand is claiming the said amount.
Finding in:
LPAOW No. 60/2008 arising out of OWP No. 892/2003 Let us now take the case of death of Sanjay Kumar Sharma, in which his parents
(Petitioner Nos. 1 & 2) and two real brothers are praying for grant of compensation. Mr. Gandotra at the very outset submits that Petitioner Nos.
3 and 4 (real brothers of the deceased) were not dependent upon the earning of the deceased and as such he would confine his case with regard to
the compensation part qua Petitioner No. 1 and 2 only being the parents of the deceased.
Deceased, at the time of accident, was of the age of 27 years. His earning has been shown as Rs. 4,000/- p.m. However, no documentary
evidence has been placed on record with regard to the earning part. A sum of Rs. 7,50,000/- as compensation has been asked for. Since no
conclusive proof of income of the deceased has brought on record, we by our guess work and for assessing just compensation, fix the income of
the deceased as Rs. 3,000/- p.m. Out of monthly income, 1/3rd is to be deducted towards the personal expenditure of the deceased, thus, leaving
behind a sum of Rs. 2,000/- per month. It come to Rs. 24,000/- per annum. For applying suitable multiplier, we would apply the same test as
observed by their Lordships in case titled Sarla Verma (Smt.) and Ors. v. Delhi Transport Corporation and Anr. AIR 2009 ACJ 1298, wherein it
is observed thus:
In New India Assurance Co. Ltd. Vs. Charlie and Another, , thus court noticed that in:
Age of the Multiplier Multiplier scale Multiplier scale Multiplier Multiplier Deceased scale as scale as scale in specified actually envisaged adopted
Trilok in second used in Susamma in Chandra column in Second Thomas Trilok as clarified in the Schedule Chandra in Charlie Table to MV Act
in Second (as seen Schedule from the to MV Act. Quantum of compensation.
(1) (2) (3) (4) (5) (6)
Upto 15 years - - - 15 20
15 to 20 years 16 18 18 16 19
21 to 25 years 15 17 18 17 18
26 to 30 years 14 16 17 18 17
31 to 35 years 13 15 16 17 16
36 to 40 years 12 14 15 16 15
41 to 45 years 11 13 14 15 14
46 to 50 years 10 12 13 13 12
51 to 55 years 9 11 11 11 10
56 to 60 years 8 10 9 8 8
61 to 65 years 6 8 7 5 6
Above 65 years 5 5 5 5 5
Tribunals/courts adopted and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas.
We, therefore, hold that the multiplier to be used should be as mentioned in column 4 of the Table above (prepared by applying Susamma
Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years, reduced
by one unit for every five years, that is, M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M- 14 for 41 to 45 years,
and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for
61 to 65 years and M-5 for 66 to 70 years.
Since the age of the deceased at the time of occurrence was 27 years as pleaded in the writ petition and clear from the post mortem report
also, in our considered view, multiplier of 17 will be attracted. Adopting the same, the dependency of the Petitioners is assessed as 24000 X 17=
Rs. 4,08,000/-. Beside this amount, a sum of Rs. 50,000/- is being granted for love and affection and another sum of Rs. 10,000/- for funeral
expenses. The total amount, thus, comes to Rs. 4,68,000/-. We round it to Rs. 4,70,000/-. Granted accordingly.
Before parting with the judgment, we would like to mention here that the Appellants/writ Petitioners have not prayed for interest on
compensation either in the main petition(s) or in the memo of appeal(s), therefore, we do not grant any interest on the amount of compensation
awarded by us in each individual case. However, we direct the Respondents to release actual amount of compensation to the Appellants/writ
Petitioners within three months from the date of passing of the judgment, failing which they shall be entitled to interest at the rate of 7% per annum
from the date of the judgment till its realization. All the appeals, thus, stand allowed and disposed of in the aforesaid terms.