JAMMU: In a significant decision, the Jammu and Kashmir High Court has directed the Power Development Department (PDD) to pay Rs 30.2 lakhs as compensation to a 5-year-old boy disabled for life by 33,000 KV HT line laid by Department in Bandipora district of Kashmir Valley.
Overruling the government’s defence that the victim was electrocuted due to his own negligence while playing with some metallic object on his 3rd storied residential house, the court said that it was government’s responsibility to have not permitted the alleged construction of 3rd story of the house in close proximity of HT line in question.
“Where an enterprise is engaged in a hazardous and inherently dangerous activity and harm is caused on anyone on account of the accident in operation of the such activity, the enterprise is strictly and absolutely liable to compensate those who get affected by the accident and such liability is not subject to any of the exceptions to the principle of strict liability,” said Justice Javed Iqbal Wani.
The incident dates back to November 17, 2018, when the victim Aatif Ershad Kumar, then aged 5 years came in a direct contact with live 33000 KV HT line passing through adjacent to his residential house situated at Mantrigam Bandipora.
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The residential house was constructed in the year 2008 and the 33000 KV HT line was laid by the government in the year 2012. The said HT line is stated to have been knowingly installed by the PDD adjacent to the residential house in question despite objections raised by the inhabitants of the village including Irshad Ahmad Kumar, father of the victim, also the petitioner in the case.
The victim suffered severe burnt injuries on account of electrocution and consequently admitted in SMHS hospital Srinagar, where he was operated number of times resulting into amputation of his right hand, thumb of the left hand, finger of right foot, besides burnt injuries to the whole body, and leading to 90% Permanent Disability.
The victim was also shifted to Delhi for further treatment where the authorities assessed the cost of providing an artificial limb at Rs. 13,36,633, even as the parents of the victim incurred an amount of Rs 2 lakhs for getting the victim treated at Delhi.
With the victim requiring a monthly treatment amounting to Rs. 30000-35000, the father of the victim approached the government official including Deputy Commissioner, Bandipora, for providing assistance in this regard as also for grant of compensation which, however, is stated to have not been provided compelling him to approach the High Court for grant of reliefs, Rs 1.22 Crores along with bank interest.
During the course of hearing, the PDD said that the electrocution of the victim cannot be attributed to the department, as there is no negligence on its part.
The PDD said that that the HT line in question was laid in the year 2012 passing through the road side all along its feasibility routes, however, the father of victim petitioner constructed 3rd story of his residential house after laying of HT line, as such, there was no negligence on the part of the department.
The court said that this assertion of the PDD is not based on any proof or documentary evidence supporting the said assertion.
“The said assertion is stated to be based on the version of the locals whose particulars even have not been provided in the objections. Assuming for the sake of arguments the said assertion of the respondents (PDD) to be true and correct yet, it was incumbent and obligatory for the respondents under and in terms of the provisions of the Jammu and Kashmir Electricity Act, 2010 read with Jammu and Kashmir Electricity Rules 1978 to have not permitted the father of the victim petitioner to raise alleged construction of 3rd story of his residential house in close proximity of HT line in question,” said Justice Wani.
“In law the liability cast upon the respondents being the functionaries of the State in law under Law of Torts to compensate the petitioner on account of negligence and carelessness would lie within the parameters of ‘strict liability’, he said, rejecting PDD’s defence.
Deciding the amount for compensation, the Court computed the pain, suffering together with shock as an ingredient of pain and suffering on the strength of loss of amenities together with notional loss of income at Rs. 10,00,000.
Under the Pecuniary Heads, the court assessed the cost towards providing and fixing of artificial limb at Rs 13.50 lakhs, cost incurred for treatment at New Delhi including Transportation at Rs. 2.50 lakhs, and expenses to be incurred towards hiring of service of attendant keeping in view disability of 90% for minimum period of 07 years and Rs 5000 per month at Rs 4.20 lakhs.
“The respondents are commanded to pay an amount of Rs 30,20,000 along with interest at the rate of 6% per annum from the date of filing of the petition till the date of actual deposit to the victim petitioner by depositing the same in a Fixed Deposit Account in the name of the victim (minor). The monthly interest earned during the period of minority of the victim petitioner will be withdrawn by the father of the victim and spend upon victim as monthly expenses including treatment,” the court ruled.