State of Jammu & Kashmir and Others vs Mohd. Iqbal

J.P. Singh, J.—Decree dated November 30, 2004, of learned Additional District Judge, Kishtwar, awarding an amount of Rupees seven

lacs as compensation alongwith interest at the rate of 6 per cent till realization in favour of respondent, the father of two minor children who were

electrocuted because of short circuit affecting electric pole installed near an electric transformer at Bus Stand, Kishtwar, has been appealed against

by the State appellants.

The case of the respondent plaintiff is that he is a poor pedlar settled in Village Lal Pattan, Kishtwar, who started putting up in Kishtwar to make

his both ends meet. On July 22, 2000, two children of the respondent plaintiff, namely Akthar Hussain and Baby Rozy, were coming towards their

dwelling place, when at about 7 p.m., they were electrocuted near an electric transformer at Bus Stand, Kishtwar.

An amount of Rupees ten lacs was claimed as compensation under various heads. The appellants refuted their liability on the premise that the

electric transformer installed at Bus Stand had been properly fenced and was four yards away from the main road. Even if, it was faulty, the

pedestrians on the main road, would not be affected unless they fiddle with it. The appellants claimed that there was no fault or negligence on their

part and that they were not liable to pay compensation to the respondent, as the death of the children had occurred because of their own act.

Out of the pleadings of the parties, the trial Court framed following issues:

Whether on 22.7.2000 the children of the plaintiff namely, Akhter Hussain and Miss Rozi while going towards their house at about 7 PM died

on account of electrocution, near Bus Stand Kishtwar, caused due to the negligent act of the defendants as the electric pole installed near the

Transformer was short-circuit? OPP

If issue No. 1 is proved in affirmative whether the plaintiff is entitled to receive damages to the amount of Rupees ten lacs from the defendants

on account of death of the said children? OPP

Whether the plaintiff has not served the notice u/s 80 CPC & u/s 33 of the Electricity Act on the defendants, if so, what is its effect on the suit?

OPD

Whether the plaintiff has no cause of action against the defendants if so how? OPD

Relief.

After discussing evidence of the parties, Issues No. 1 to 4 were decided in favour of the respondent and an amount of Rupees seven lacs

alongwith interest at the rate of six per cent from the date of institution of suit was awarded as compensation in favour of the respondent plaintiff.

Mrs. S. Hakim, learned Dy. Advocate General for the appellants, submits that the State is not liable for the electrocution of the minors because

the minors had unauthorizedly made their entry in the electric transformer enclosure. They, thus, cannot take benefit of their own wrongs. Quantum

of compensation too is on higher side, submits the learned Dy. Advocate General.

M/s S. M. Wajahat and A. A. Hamal, learned Counsel for the respondent, on the other hand, submit that the State was negligent in maintaining

its electric transformer and electric pole and that the evidence of the appellants too acknowledges that the electrocution of the children was

because of the short circuit. They further submit that the State is under an obligation to take all requisite measures to ensure that the functioning of

the electric transformer/s and electric lines does not cause any harm to the passer-by. They further submit that the appellants have not led any

evidence on the basis whereof the claim of the respondent could be justifiably contested.

I have heard learned Counsel for the parties and gone through the records.

The case set up by the appellants in their reply to the petition of the respondent u/s 33 of the Code of Civil Procedure, gets demolished by the

official witnesses who were produced by them during the trial of the case.

DW- Asgar Hussain states that he was posted as Assistant Executive Engineer, Kishtwar and Bashir Ahmed was his Junior Engineer, who was

Incharge of Bus Stand area with Raiz Ahmed as incharge Line Man. He states that the electric transformer near the Bus Stand stood fenced from

three sides but was open from one side. When reached on spot on the date of occurrence, he found that the weather was bad and it was raining;

he found Gunny bag containing some wooden pieces on spot. One shoe of the deceased was also found within the boundary of the electric

transformer. According to this witness, the incident had taken place because of puncture in the High-Tension link insulator, which resulted in short

circuit of whole of the fenced area where electric transformer had been set up. He is emphatic in saying that there was no door installed near the

electric transformer enclosure and the children could go inside from the opening. He further said that there was no sign board near the electric

transformer which would indicate that the entry to the area was restricted.

In view of this version of the concerned Electric Engineer, I do not find any reason to come to a conclusion different from one reached at by

learned Additional District Judge, Kishtwar, on the basis of evidence produced by the parties.

When confronted with this statement of appellant's own witness, learned Counsel for the appellants, had nothing much to say on the factual

aspect of the case, that the children had died because of the short circuit of the electric pole, electric transformer and the enclosure.

Learned Counsel for the appellants admits that the responsibility to supply the electric energy in the area where electrocution had taken place

was that of the State.

The Jammu and Kashmir Electricity Rules, 1978, in Chapter IV prescribe various measures, which are required to be taken by a Supplier of

electric energy, to avoid danger arising from the electricity lines, equipments and the premises, where such supply lines, wires, fittings and

apparatus are installed.

Various safety measures are required to be taken by the Supplier of electric energy in terms of the Rules to ensure that no danger is caused to

anyone because of the use of electric energy, wires, apparatus or premises. If the electric energy so transmitted causes injury or death of anyone,

who gets trapped into it, the primary liability to compensate the sufferer is that of the supplier of the electric energy.

So long as the electricity transmitted through the wires is potential of dangerous dimensions, the Manager of its supply, i.e., State Government,

have the added duty to take safety measures to prevent escape of such energy and to see that there is no short circuit of such equipments, wires,

etc., and none is put to any peril.

The State cannot be conceded any defence of attributing mischief to users of the road for electrocution because of short circuit. This is

particularly so in case of minors, who under law, are presumed to be disabled of taking care of themselves. The transmission of electric energy by

the State, carries with it the added responsibility of ensuring that the carriage of such electric energy does not cause any damage to anyone and that

all the; electric lines and areas through which the energy is to pass, are not prone to damage to the users of public road or areas in and around such

areas.

The persons or authorities undertaking an activity involving hazardous or risky exposure to human life are liable under law of Torts to

compensate for the injury suffered by any other' person in respect of any negligence or carelessness on the part of the persons/authorities, who

undertake such hazardous or risky activity. The liability cast on this count is in law known as ""Strict Liability"". It differs from the liability, which

arises on account of the negligence or fault.

The Doctrine of Strict Liability as it is understood in English Common Law is that the person who for his own purposes collects and keeps

there anything liable 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 damages

which is natural consequence of its escape.

The respondent plaintiff has proved both these concepts from his evidence as also from appellants' evidence, who have acknowledged

electrocution because of short circuit.

The admission of the appellant's witness that one side of the electric transformer enclosure was open and there was no sign board of danger or

of any prohibition regarding entry in the enclosure, goes a long way in proving that the State and its functionaries have been negligent in taking

requisite measures to ensure that the electricity being supplied by it does not cause harm to the passers by.

In the Indian society, parents expect a lot from their off-springs and carry great expectations from them, who according to the culture, values

and ethos are supposed to take care of parents in their old age. The parents are, thus, required to be compensated for all that they had expected

from their children.

The compensation awarded, by the learned Additional District Judge, Kishtwar, to the father of the two minor children does not, therefore,

appear to be on the higher side as urged by Mrs. Hakim.

Finding of the learned trial Court on all the issues is, thus, affirmed, because nothing has been pointed out by the appellants regarding the

unsustainability of the findings of the trial Court. The plea raised by the learned Counsel for the appellants that the minors cannot take benefit of

their own wrongs is untenable, in view of the clear proposition of law that those carrying out activity involving hazardous or risky exposure to

human life, are required to carry out their activity only after taking such measures that their activity does not cause any loss or damage to anyone.

No other point has been urged by the learned Counsel for the appellants in support of the appeal.

This appeal is, therefore, without merit, which is, accordingly, dismissed with costs quantified as Rupees five thousand. Registry to draw

decree sheet.