Madras High Court
Mrs.Saroja vs The Government Of Tamil Nadu on 13 February, 2014
Citation;2014(4)T.A.C 558 Madras
This Writ Petition is filed praying to issue a Writ of Mandamus, directing the respondents to pay a compensation of Rs.5,00,000/- (Rupees Five Lakhs only) for the death of the son of the petitioner, viz., Rajendran.
2. Heard Mr.S.Umapathy, learned counsel appearing for the petitioner, Mr.V.Subbiah, learned Additional Government Pleader, appearing for the first respondent and Mr.P.Gunaraj, learned Standing Counsel for Electricity Board, appearing for the second respondent.
3. In the affidavit filed in support of the writ petition it is stated that the deceased Mr.Rajendran, was a coolie engaged in civil construction work. He died due to electric shock, when he tried to save one Mr.Perumal and minor girl Shanmugapriya, who also suffered electrocution due to leakage of electricity from nearby electricity post at 10.00 am on 6.12.2005. It is also the case of the petitioner, the mother of the deceased, that the said Perumal also died in electrocution. FIR was also lodged in Crime No.3644 of 2005 in V-3 J.J. Nagar Police Station. The post-mortem report clearly states that the deceased Rajendran, died due to the electric shock. The death of the petitioner's son was caused due to the carelessness and negligence of the respondents. At the time of death, the deceased Rajendran was earning a sum of Rs.150/- to Rs.200/- per day. Petitioner made repeated requests to the respondents for payment of compensation for the act of negligence on the part of the electricity board. She also issued a lawyer's notice on 15.1.2008 demanding compensation. Since it did not evoke any response, the widowed mother was forced to seek compensation in a sum of Rs.5,00,000/- by filing the writ petition.
4. The second respondent has filed a counter-affidavit. In the counter-affidavit it is stated that the writ petition is not maintainable since disputed questions of fact are involved and therefore, the only remedy to the petitioner is to file a civil suit. It is also stated that due to monsoon, there was heavy rain continuously for three days and as a result there was stagnation of water. On receipt of information, the officials of the 2nd respondent immediately rushed to the accident area and disconnected the power supply in that area. Respondent board has checked the underground cable in the area and removed the damaged cable and replaced it with a new cable. On investigating the cause of accident, it is learnt that efforts have been made by the local residents of that area to drain out the stagnated water by digging the road with crow bar and JCB vehicle. Due to above said work, the underground cable would have got disturbed and could have further damaged and got punctured by the pressure of gravel stones due to passing of heavy vehicles on that road. Due to which the electric current may have exposed and leaked through the stagnated water on the road and thus caused the accident.
5. On considering the rival contentions, it is clear that the respondents tried to wriggle out of their liability by stating that there is a dispute on fact, which apparently is not correct. The allegation of the respondents is that local residents of that area digged the road with crow bar and JCB vehicle and due to above work of the local residents the electrocution occurred and the deceased died and therefore, there is no vicarious liability on the electricity board for the death caused. Even assuming that some local residents of that area digged the road, it is for the Electricity Board to ensure that the electricity cables are maintained in good order. It is also admitted by the respondents that the water leakage due to rainy season was a factor that caused the fatal accident. That may be true. Admittedly, the deceased died due to electrocution in a public road and that too when the deceased tried to save two other persons, who suffered electrocution and consequently died.
6. Death due to electrocution is an admitted fact. When the petitioner's son had not committed any act contrary to law or the provisions of the Electricity Act, and when the death had occurred due to electric shock, whether it is due to unprecedented rain or Act of God, there is no need for the petitioner to go before the Civil Court and establish the cause of the death or negligence. Certainly the death had not occurred due to the negligence of the petitioner, on the contrary, indisputably, due to the electric shock, the accident had occurred. Therefore, this court has no hesitation to hold that the officials of the respondents Board were negligent in properly maintaining the electric wires. Even according to them, Respondent Electricity Board has removed the damaged cable and replaced it with a new cable. There is no justification in the contention of respondents Electricity Board to throw the blame on the third party.
7. The contention of the respondents that the petitioner has to approach the Civil Court for claiming compensation is not correct. This court considering the various decisions held that if the facts are not in dispute, and the death is due to negligence on the part of the State authorities, the legal heirs of the deceased can claim compensation in writ proceedings, vide the decision in the case of K.Sambath - v. - The Superintendent Engineer-I, Puducherry Electricity Board reported in 2013 Writ Law Reporter 176. Relevant portion of the decision reads as follows:-
"8. It is a well settled principle of law declared by the Honourable Supreme Court that if the facts are not in dispute, the legal heirs of the victims of riot, custodial killing or death due to negligence on the part of the State authorities, can claim compensation in writ proceedings. The only impediment in entertaining writ petition is, there may be factual disputes such as the manner of death, whether there was negligence or not, age and income of the deceased, etc. In this case there is no dispute with regard to the manner of death, age of the deceased and income of the deceased.
9. Payment of compensation can be ordered by the High Court in appropriate case, particularly when there is no factual disputes, under Article 226 of the Constitution of India, is no longer res integra. In this regard, the following decisions can be usefully referred to.
(i) In AIR 2000 SC 988 : (2000) 2 SCC 465 (Chairman, Railway Board v. Chandima Das), a sum of Rs.10 lakhs was awarded as compensation to a Bangladeshi National, who was sexually assaulted by Eastern Railway Employee. Order of the High Court awarding the said compensation was upheld by the Supreme Court.
(ii) In AIR 2001 SC 3668 : (2001) 8 SCC 151 (M.S.Grewal v. Deep Chand Sood), Rs.4.10 lakhs each was awarded for the unfortunate death of 14 young children, who died due to drowning in a river, when they were on picnic organised by the School authorities.
(iii) In (2005) 9 SCC 586 (MCD v. Association of Victims of Uphaar Tragedy) the Supreme Court ordered payment of compensation to the families of those, who died in Uphaar Tragedy and directed the MCD to deposit Rs.3,01,40,000/- (Rupees Three Crores One lakh and Forty thousand) and 50% of the said amount was directed to be distributed to the Claimants.
(iv) In 2011 AIR SCW 4916 (Delhi Jal Board v. National Campaign for Dignity and Rights of Sewerage and Allied Workers), the Supreme Court enhanced the compensation awarded by the High Court of Delhi to sewerage workers' family to Rs.3.29 lakhs, over and above Rs.1.71 lakhs already paid by the Government.
Insofar as our High Court is concerned, the said issue is dealt with in several cases. Few decisions are as follows:
(a) 2001 WLR 174 (C.Chinnathambi v. State of Tamil Nadu) # Rs.1.50 lakhs with 12% interest was ordered to be paid to each school students, who died while water tank broke and fell on them.
(b) 2004 WLR 346 (Smt.R.Dhanalakshmi v. Government of Tamil Nadu) - Rs.9.00 lakhs was ordered to be paid to the family of a prisoner, who was killed while in custody.
(c) 2004 WLR 611 (DB) (The Chief Secretary to the Government of Tamil Nadu v. Mrs.R.Selvam)# Rs.5.00 lakhs was ordered to be paid by the State due to the killing of a medical student inside the Government Medical College Hostel.
(d) 2006 WLR 13 (DB) (C.Thekkamalai v. State of Tamil Nadu) # The Division Bench enhanced the compensation from Rs.75,000/- to Rs.5.00 lakhs for the rape victim, who was illegally arrested and raped.
(e) 2006 WLR 608 (Lakshmana Naidu (decd) v. State of Tamil Nadu & Another) # A sum of Rs.5.00 lakhs was ordered as compensation to the family of the deceased.
(f) 2008 (6) CTC 144 (P.N.Kanagaraj v. Chief Secretary, State of Tamil Nadu) # Rs.4.10 lakhs with 9% interest was ordered for the death of a school boy.
(g) 2009 (1) CTC 434 (Subramaniam v. State of Tamil Nadu) # A sum of Rs.3.50 lakhs was directed to be paid for the death of a student in the school due to negligence of the Government School Teacher.
(h) 2010 WLR 851 (DB) : 2010 (1) CWC 455 (T.Sekaran v. State of Tamil Nadu & Others) - A sum of Rs.9,07,000/- was directed to be paid to the family of a person, who was shot dead by the Security Warden of Madurai Central Prison.
(i) 2011 (1) CWC 786 (The Registrar Administration, Madurai Bench of Madras High Court v. Secretary to Government, Home Department) # A sum of Rs.10 lakhs was ordered to the family of an advocate, who died due to not providing immediate medical treatment, in the High Court premises.
(j) 2011 (6) CTC 636 (P.Ravichandran v. The Government of Tamil Nadu) # A sum of Rs.18.00 lakhs was ordered as compensation to the victim, who suffered 100% disability while doing drainage work.
(k) 2012 (2) CTC 848 (Ganesan v. The State of Tamil Nadu) # A sum of Rs.10.00 lakhs was ordered to be paid by the State to the family of a victim, who died due to bomb attack while travelling in a Transport Corporation Bus.
(l) In (2011) 1 MLJ 1409 (V.Ramar v. Director of Medical and Rural Health Services) this Court directed the State to pay a sum of Rs.5.00 lakhs to the family of a woman, who died during delivery due to the negligence of the Government Hospital authorities.
(m) In (2011) 1 MLJ 1329 (Thangapandi v. Director of Primary Health Services) # A sum of Rs.5 lakhs was ordered to the family of a woman, who died after delivery, due to not giving proper treatment by Government Hospital Doctors.
(n) In W.P.No.23003 of 2011 dated 24.11.2011 this Court awarded a sum of Rs.10.00 lakhs to the family of a deceased student as he was killed while staying in Government Hostel.
(o) In W.P.No.20081 of 2007 dated 4.6.2012 I had an occasion to award a sum of Rs.29.26 lakhs to the petitioner therein, who lost both his parents due to fall of a tree on the road side.
Applying the above decisions to the facts of this case, I am of the view that the respondent department is liable to pay compensation to the family of the petitioner for the death of petitioner's wife Malathy due to electrocution on 17.5.2009.
10. There is no codified law for arriving at the quantum of compensation in cases of this type. The enactments like Motor Vehicles Act, 1988; Workmen Compensation Act, 1948; and Fatal Accidents Act, 1855 may be applied for arriving at the just compensation. In the decision reported in (1969) 3 SCC 64 (C.K.Subramania Iyer v. T.Kunhikuttan Nair) the Supreme Courtheld that there is no exact uniform rule for measuring the value of human life and the measure of damages cannot be arrived at precisely. In the decision reported in (2001) 8 SCC 151 (M.S.Grewal v. Deep Chand Sood) the Supreme Court held that multiplier method may be adopted to arrive at the just compensation. The age of the deceased can also be taken for arriving at a correct multiplier as per the judgment of the Supreme Court reported in 2011 (5) LW 408(P.S.Somanathan & Others v. District Insurance Officer & Another).
11. How the Court should decide the cases of this nature is emphasised by the Supreme Court in the decision reported in (2011) 10 SCC 634 (Ibrahim v. Raju). In para 9 it is held thus, "9. This Court has time and again emphasised that the officers, who preside over the Tribunals adopt a proactive approach and ensure that the claims filed under the Act are disposed of with required urgency and compensation is awarded to the victims of the accident and/or their legal representatives in adequate measure keeping in view the relevant factors. Unfortunately, despite repeated pronouncements of this Court in which guiding principles have been laid down for determination of the compensation payable to the victims of road accidents and/or their families, the Tribunals and even the High Courts do not pay serious attention to the imperative of awarding just compensation to the claimants."
In (2009) 13 SCC 422 (Reshma Kumari v. Madan Mohan) the Supreme Court pointed out the need of giving just compensation to the victim. In paragraphs 26 and 27 it is held thus, "26. 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.
27. 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 guess work may be inevitable. That may be so."
This Court is bound to bear-in-mind the above stated principles for arriving at just compensation.
12. With regard to the quantum of compensation is concerned, the learned counsel for the petitioner submitted a calculation memo, which reads as follows:
Calculation Income of the deceased .. Rs.3,000/-
Less: 1/4th Expenses .. Rs. 750/-
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(per month) Rs.2,250/-
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Annual Income(Rs.2,250/-x12) Rs. 27,000/-
Multiplier (27,000/- x 13) Rs.3,51,000/-
Add: Funeral Expenses Rs. 5,000/-
Loss of Consortium Rs. 10,000/-
Loss of Love and Affection Rs. 10,000/-
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Total Compensation Rs.3,76,000/-
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The learned counsel for the petitioner further submitted that the petitioner is entitled to get compensation from the date of death of his wife with 9% interest and interest alone comes to Rs.40,000/- approximately.
13. In the light of above cited decisions of the Honourable Supreme Court as well as this Court, and in the circumstances of the case, and having regard to the death of petitioner's wife Malathy at the age of 47 years, the writ petition is allowed of with a direction to the respondents to pay a sum of Rs.4,00,000/- (Rupees Four Lakhs only) in lumpsum as compensation to the petitioner's family, within a period of two weeks from the date of receipt of copy of this order. Out of the said amount, petitioner is entitled to Rs.1,00,000/- and the two sons of the petitioner are entitled to Rs.1,50,000/- each. No costs.
For reporting compliance of this order, post on 21.1.2013."
8. In this case it is stated that the deceased was a bachelor aged about 25 years. He was a mason. It is stated that he was earning a sum of Rs.150/ to Rs.200/- per day. In the counter, there is no denial about the age, occupation and the income of the deceased. Hence this court fixed the age of the deceased at 25 years. The date of accident is 6.12.2005. Therefore, the income of the deceased is taken at Rs.4,000/- per month and Rs.48,000/- per annum.
9. In view of the decision reported in Santosh Devi - vs. - National Insurance Company Ltd. and others reported in (212)6 SCC 421, 30% of the income can be added towards future prospects. If 30% is added towards future prospects, the loss of income of the deceased would be Rs.62,400/- (Rs.48,000/- + Rs.14,400/- = Rs.62,400/-) per annum.
10. Since the deceased was a bachelor, one half of the income has to be deducted towards personal and living expenses of the deceased in view of the decision reported in Sarla Verma vs. - Delhi Transport Corporation reported in 2009(2) TN MAC 1 (SC). Accordingly, the loss of income to the mother of the deceased is fixed at Rs.31,200/- (Rs.62,400/- x 50% -= Rs.31,200/-) per annum.
11. Based on the age of the deceased at 25 years, proper multiplier to be adopted in this case would be 18 in view the decisions reported in 2009(2) TN MAC 1 (SC) (cited supra). If multiplier 18 is applied, the loss of income to the mother of the deceased would be Rs.5,61,600/- (Rs.31,200/- x 18 = Rs.5,61,600/-).
12. In addition, a sum of Rs.30,000/- is granted towards loss of love and affection and Rs.10,000/- is granted towards funeral expenses. A sum of Rs.3,000/- is granted towards transport expenses. In all the following amounts are granted as compensation to the mother of the deceased:
Sl.No.
Heads Amount of compensation Loss of income to the mother of the deceased Rs.5,61,600/-
Loss of love and affection to the mother of the deceased Rs. 30,000/-
Funeral expenses Rs. 10,000/-
Transport expenses
Rs. 3,000/-
Total
Rs.6,04,600/-
13. Though the petitioner has claimed a sum of Rs.5,00,000/-, it is well known that the courts have got powers to enhance the compensation. This Court in the case of Arulmeri vs. - Superintendent Engineer, TNEB reported in (2013)2 MLJ 302, citing various decisions of this Court and the Apex Court granted higher compensation than the claim of the petitioner.
14. In view of the above, the Writ Petition is allowed as follows:-
(1) The petitioner is entitled to a sum of Rs.6,04,600/- (Rupees Six Lakhs Four Thousand and Six Hundred only) towards compensation on the death of her minor son.
(2) The respondents are directed to pay the above amount with interest at 7.5% per annum from the date of writ petition till date of deposit.
(3) The respondents are granted eight weeks time from the date of receipt of a copy of this order to deposit the above amount.
(4) There will be no order as to costs.
The connected M.P.'s are closed.
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