A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSIONAT HYDERABAD.
F.A. 243/2007 against C.C. 352/2003, Dist. Forum-II, Hyderabad.
Between:
S. Akshay (Minor)
Age: 8 years
Rep. by his father & Natural Guardian
P. Sanjeevan, ASI/RO
110 BN, CRPF
SIG, PL, Subhashnagar
Nizamabad. *** Appellant/
Complainant.
And
The Managing Director
Central Power Distribution Company
Of Andhra Pradesh Ltd.
Vidyut Soudha, Somajiguda
Hyderabad. *** Respondent/
Op.
Counsel for the Appellant: M/s. K. Rajendran
Counsel for the Resp: M/s. A. Jayaraju.
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
THURSDAY, THIS THE FIRST DAY OF JULY TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) Appellant is unsuccessful complainant.
2) The case of the complainant in brief is that he being a minor while watching other children playing on the road from the terrace of the building on 22. 1. 2002 at about 11.30 a.m. when was proceeding he came in touch with high tension electric line passing through hardly one foot away from the terrace of the building and got severe burn injury to the head and hands. He was admitted in Apollo Hospital, Hyderabad where his right hand was amputated. He was incapacitated for the rest of his life. The electricity department has been maintaining the lines. However, it did not take proper care. It amounts to negligence. The supply lines ought not to have been allowed to pass through thickly populated residential area. It could have been at a height where passing lines may not be able to contact. The amputation of rigt hand incapacitated him to lead his normal life. He became dependent on others for his needs. An amount of Rs. 4,31,949.59 was incurred towards treatment in Apollo hospital at Hyderabad. He was treated for five months. He incurred Rs. 50,000/- towards other expenses. The hospital bills were paid by the employer CRPF where his father has been working. Therefore he claimed a compensation of Rs. 17,50,000/-
3) The respondent electricity board resisted the case. While denying each and every allegation made in the complaint it alleged that 11 KV line was laid much prior to 1989. They were fixed on the road margin by affixing a side arm. The lines were erected by strictly following the clearance measures made in the electricity rules. The house of the complainant was constructed after 1996 by encroaching four feet towards road margin and reducing the gap between the HT lines and his house. There are no grills on the side of HT lines nor he constructed parapet wall to prevent any such untoward incident. However, after construction of the house, the department after inspection, insulated the HT line with PVC pipe to avoid any such incident. It had taken all precautions. On 22.1.2002 the boy had climbed the roof of the first floor and touched the insulated HT line to pull a kite hung on the said line. Had the HT line was not insulated he would have died of electrocution. He was negligent and careless. He did not take any precaution. Therefore, the department cannot be held liable for the negligence of the complainant. He cannot take advantage of his own latches. It was not collecting any money for services of HT line. He was not a consumer and therefore prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed the affidavit evidence of his father and got Exs. A1 to A4 marked while the respondent electricity board filed the affidavit evidence of its Asst. Divisional Engineer and got Exs. B1 to B5 marked.
5) The Dist. Forum after considering the evidence placed on record opined that there was negligence on the part of complainant and also that of the parents who did not take reasonable steps to see that the complainant had no access to the first floor in order to remove the kite. He touched the HT line which was already insulated. Therefore, no negligence can be attributed against the department and therefore dismissed the complaint.
6) Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either the facts or law in correct perspective. It ought to have seen that the department is a service provider supplying electricity and in the process laid HT line. While laying HT line through residential area it had to see that no untoward incident takes place. The respondent could not prove that he had encroached four feet towards road margin nor reduced the gap of HT line etc. Had there been protection by way of PVC insulation the complainant would not have sustained grievous injury. It shows that there was absolute negligence on the part of electricity department, and therefore prayed that compensation as prayed for be awarded.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law ?
8) It is an undisputed fact that the complainant a boy aged about five years at the time of accident, sustained electric shock on 22.1.2002 when he accidentally touched HT line passing through the terrace at a height of hardly one foot. It is not in dispute that the complainant was admitted in Apollo Hospital, Hyderabad where his right hand was amputated. In Ex. A2 discharge summary of the Apollo Hospitals wherein the boy underwent plastic surgery it was mentioned that he was admitted on 22.1.2002 and was discharged on 22.5.2002. He had sustained burn injuries to right hand, scalp, buttocks, back and both heels on 22.1.2002 at around 11.30 a.m. at his residence. The principal diagnosis was 15% deep electric burn with charring of right upper extremity. It was further mentioned that he underwent 7 surgeries which included serial wound debridements, Kollagen application and skin grafting. Amputation was made as right upper extremity was badly charred. It was mentioned that at the time of discharge the condition of the patient was satisfactory.
9) The complainant filed Ex. A3 to show that he has been paying current consumption charges bills to his residence obviously in order to show that he is a consumer.
10) The electricity department did not dispute about the accident where the complainant had sustained injuries resulting in amputation of right hand. The Asst. Divisional Engineer, Falaknuma, Hyderabad submitted Ex. B1 form for reporting electrical accident wherein he had mentioned at coloumn No. 10 : Detailed causes leading to the accident : While playing on roof, come in contact with 11 KV line. It was also mentioned he was admitted to CRPF hospital for first aid and then shifted to Apollo Hospital. He also filed Exs. B2 to B5 photographs showing 11 KV line passing through the terrace of the complainant’s house.
11) Though the electricity department alleged that lines were laid in 1989 when no houses were there it did not file any record to that effect. Equally when it alleged that the complainant had constructed the first floor by encroaching four feet towards road margin and reducing the gap between the HT line and to his house it did not try to file any evidence to that effect. The fact remains that 11 KV line was passing above the terrace of the complainant’s house. It was at a height of one foot. The complainant was hardly aged about 5 years at the time of accident and when he went to the terrace to see the children playing on the road, he accidentally came in contact with live HT wire passing above the terrace and sustained grievous injuries. Though in Ex. B1 the Asst. Divisional Engineer stated that while removing the over hanging kite from the HT line he had come into contact with live wire, no evidence whatsoever was placed in this regard. The father of the complainant after coming to know about the incident he gave report to the police basing on which a case was registered in Crime No.30/2002 vide Ex. A1.
12) In the complaint made by his father against the electricity department he categorically stated that on 22.1.2002 at about 11.30 hours his son Master Akshay aged about 5 years went to the terrace to watch the children who were playing on the road. He came in contact with the HT electric line which is only 3-4 inches away from the terrace of the building and suffered severe electric burn injury in right hand, scalp, back and both heels. Hearing his loud cry his wife Smt. Sandhya and neighbors went to the terrace and saw him lying on the floor with severe burn injuries in right hand, scalp, back and both heels. With the help of neighbors his wife rushed him to the Base Hospital-II, CRPF, Hyderabad where he was administered first aid and further referred to Apollo Hospital, Jubilee Hills, Hyderabad. During the time of accident he was on duty. Therefore his statement could not be recorded. There was no other person who was playing along with him. Even assuming that he was playing on the terrace and accidentally touched the wire the fact remains that HT line was not fool proof in the sense, it allowed the current to flow causing shock to the complainant.
13) The electricity department has in a way admitted that after construction of the house, and after inspection it had insulated the HT line with PVC pipe to avoid any such untoward incident. If really the father of the complainant was at fault in encroaching the road and reducing the gap between the HT line and house it could have issued notice demanding the owner of the house to remove the encroachment and restore status-quo. Equally it did not complain to the municipality. When it knew that there was every likelihood of persons coming into contact with live HT line passing near to the house it could have taken necessary precautions. Having said that it has insulated the line with PVC pipes, it could have seen that PVC pipes are fool proof in the sense that no untoward incident would occur. The electricity department in order to get over the latches, in its counter it was mentioned “ If HT line was not insulated the boy might have died due to electrocution.” This observation is unjustified. In a way it would show that insulation was not properly done. Had insulation been proper the boy would not have sustained electrical shock. Having knew the consequences the electricity department cannot get over by stating that it had adequately insulated the HT line. It is begging the question. Had the PVC insulation been proper the boy could not have sustained electric shock wherein he had lost his right hand.
14) In this regard it is important to note that the Supreme Court in M.P. Electricity Board Vs. Shail Kumar reported in 2002 (2) ALD 4 (SC) taking cognizance of these cases of electrocution opined::
“It is an admitted fact that the responsibility to supply electric energy in the particular was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into if the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the Board that somebody committed mischief by siphoning such energy of his private property and that the electrocution was from such diverted line. It is the look out of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps.”
It was further observed:
“Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risk 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 case on such person is known, in law, as “strict liability”.
It differs 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 hard 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.”
15) When the respondent could not prove that there was negligence on the part of a boy of five years of age, and when the electricity department having not insulated the over hanging wire properly which led to accident it would be liable to pay compensation.
16) In his affidavit the complainant mentioned at para 12 “ I state that the complainant - infant herein was under treatment for over 5 months in Apollo Hospitals, Hyderabad and the bill of which is about Rs. 4,31,949.59 besides other expenses of over Rs. 50,000/- incurred by his parents (me and my wife). The hospital bill was footed by my employer i.e., CRPF.”
17) The complainant admitted that the entire medical expenses were paid by the department, where his father was working. It is not the case of the complainant that his father was made liable or had to reimburse the amount to the department. Therefore the compensation that could be awarded to the complainant is for the loss of his right hand.
18) The complainant’s father is employed and working in CRPF drawing a salary of Rs. 10,407/- per month. He passed his metric. The complainant is the only son. The disability due to the accident to his right arm is 80% vide certificate issued by Orthopaedic Surgeon, Department of Orthopaedics, NIMS, Punjagutta, Hyderabad. He was born on 17. 8. 1996 studying 8th standard. It is not known as to what exactly the complainant’s position in regard to his educational qualifications. Unfortunately the complainant did not let in any evidence as to the potentiality and whether he would be gainfully employed in his battalion on the civil side in case of such eventuality.
19) It is settled law reiterated by Supreme Court in Ashwani Kumar Mishra Vs. Munium Babu AIR 1999 SC 2261:
"Broadly speaking while fixing an amount of compensation payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those which the victim has actually incurred and which is capable of being calculated in terms of money; whereas non-pecuniary damages are those which are incapable of being assessed by arithmetical calculations. In order to appreciate two concepts pecuniary damages may include expenses incurred by the claimant:
(i) medical attendance;
(ii) loss of earning of profit up to the date of trial;
(iii) other material loss.
So far non-pecuniary damages are concerned, they may include:
(i) damages for mental and physical shock, pain suffering, already suffered or likely to be suffered in future;
(ii) damages to compensate for the loss of amenities of the life which may include a variety of matters, i.e. on account of injury the claimant may not be able to walk, run or sit;
(iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened;
(iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life."
20) In the instant case the record discloses that he was admitted in the Apollo Hospitals on the very day of accident viz., on 22. 1. 2002 and was discharged on 22.5.2002. In other words he underwent treatment for a period of four months. Amputation was conducted. The recovery was satisfactory. If a reasonable amount of Rs. 10,000/- per month for keeping attendant and unable to attend during that time is assessed under the above head it would come to Rs. 40,000/-.
21) In regard to physical shock, pain and suffering which he had suffered and likely to be suffered in future, any discussion would be hypothetical . From the documents it has been clear that he has been pursuing his education. No evidence was let in to show that on account of accident he was unable to pursue his education. However, mental shock, pain and suffering cannot be ruled out. Under this head an amount of Rs. 25,000/- could be awarded.
22) Looking into the nature of the injury being 80% permanent disability and the loss of right hand may be not in a position to carry out his affairs efficiently besides frustration and mental distress, we have to award compensation under the head of general damages. In cases of this nature, it was stated that compensation awarded must be reasonable, must be assessed with moderation having regard to the awards made in comparable cases, the sums awarded should to a considerable extent be conventional keeping in line with the changes in the value of money. It is only by adherence to these self imposed rules that the courts can decide like cases in like manner and bring about a measure of predictability of their awards. These considerations are of great importance if administration of justice in this field is to command the respect of community. Shafiq Vs. Pramod Kumar Bhatia AIR 1997 MP 142 where there was 50% permanent disability a compensation of Rs. 84,000/- was fixed in a case of amputation of leg of injured aged 22 years for the accident that took place in 1981.
23) The Supreme Court in Jai Bhagwan Vs. Laxman Singh, (1994) 5 SCC 5 where the injured was 22 years of age at the time of accident where left leg was amputated enhanced compensation of Rs. 45,000/- to Rs. 80,000/-.
24) In Chaturji Amraji and others Vs. Ahmad Rahimbux 1979 Cri.LJ 107 at p. 116 where the injured lost his right forearm would be a serious handicap to him in his working life affecting his prospects. 80% which is adopted on the basis of workman’s compensation act though it may not be strictly relevant cannot be said to be irrelevant, even if the overall effect of the loss of limb on the total body functioning and earning capacity is taken into account. The award is on the conservative side, bearing in mind the correct standard in personal injury cases of such nature, where a vital limb like the right forearm has been lost. There is no reason to interfere with the award of the Tribunal.
25) In view of the fact that right hand was amputated and in the light of decisions we are of the opinion that the compensation awarded should to a considerable extent be conventional keeping in line with the changes in the value of money, an amount of Rs. 1 lakh could be awarded under this head. In all Rs. 1,65,000/- which we feel reasonable and modest.
26) In the result the appeal is allowed, and consequently the complaint is allowed in part granting a compensation of Rs. 1,65,000/- with interest @ 9% p.a., from the date of accident viz., 22. 1. 2002 till the date of realization together with costs of Rs. 5,000/-. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 01. 07. 2010.
*pnr
“UP LOAD – O.K.”
