HIGH COURT OF JAMMU AND KASHMIR AT JAMMU OWP No. 412/2003 Date of Decision: 04.12.2008 Parkasho Devi & anr. Vs. State of J&K & Ors. ________________________________________________________ Coram: MR. JUSTICE J. P. SINGH, JUDGE. Appearing Counsel: For Appellants : Mr. Kishore Kumar, Advocate... For Respondents : Ms. Shaista Hakim, Dy.A.G. i) Whether to be reported in Press/Journal/Media : Yes/No ii) Whether to be reported in Digest/Journal : Yes/No Kuldeep Raj, employed as a daily wager in the Power Development Department of the State of Jammu and Kashmir, was performing his duties as a Lineman at Rambagh Kullian, a Station attached to Assistant Electric Engineer, Electric Maintenance and Rural Electricity Sub- Division, Miran Sahib, Jammu when he is stated to have been electrocuted because of the negligence of the Electric Department which had switched on the electricity without ensuring that he had climbed down the electric pole on which he had been working under the orders of his superiors. 2 Petitioners, his parents, have approached this Court seeking issuance of a command in the nature of a writ of mandamus to the respondents to pay them Rs.5 lacs as compensation for the death of their son. According to the petitioners, the deceased aged 26 years was getting an amount of Rs.1860/- per month as his wages from the respondents, besides looking after the agricultural pursuits of the petitioners. Admitting Kuldeep Raj to have been employed as a daily wager at a monthly wages of Rs.1860/- but denying that he was earning any amount from agricultural pursuits, the respondents have urged that he had died because of his own negligence while adjusting an electric wire and no compensation was thus payable for his death. The respondents have, however, admitted, in paragraph no. 8 of their reply to the writ petition, that according to the official records the accident had taken place because of putting on the electric supply while the deceased was still working on the electric line. Relying upon a Division Bench judgment titled State of Jammu and Kashmir versus Altaf Ahmed Ganai and another and a Single Bench judgment titled Chuni Lal and Ors. Versus State of Jammu and Kashmir, OWP No. 308/2002 of this Court, Sh. Kishore Kumar, learned counsel 3 for the petitioners submits that in view of the admission of the respondents that Kuldeep Kumar had died during the course of his employment and because of the negligence of the respondents, the petitioners’ writ petition is required to be allowed in view of the law laid-down in the aforementioned judgments. Smt. Shaista Hakim, learned Deputy Advocate General, on the other hand, submitted that petitioners are not entitled to maintain the writ petition because it raises disputed questions of fact as to whether the deceased had died because of his own negligence or the negligence of the respondents. She alternatively submitted that petitioners may not be entitled to compensation more than the one which is payable to the employees of the Electricity Department dying in harness in terms of Government Order No. 273-PDD of 1994 dated 19.10.1994 which permits payment of an amount of Rs.1 lac only for such type of deaths. I have considered the submissions of learned counsel for the parties. State counsel’s plea that petitioners’ writ petition may not be maintainable as disputed questions of fact arise in the present case, may not, in my view, be sustainable in view of respondents’ candid admission flowing from paragraph no. 8 4 of their objections in which they have admitted that Kuldeep Raj was still working on the electric line when someone in the Electric Department had joined the detached links facilitating flow of electric energy in the electric line on which the deceased had been working. Plea of learned State Counsel as to the non-maintainability of the writ petition is, therefore, rejected in view of the law laid-down by Hon’ble Supreme Court of India, in H. S. E. B and anr. v. Ram Nath and others reported as (2004) 5 SCC 793, where while dealing with the case of electrocution of a child, their Lordships had held as follows:- “4. 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 unauthorisedly 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. 5. It is submitted that these averments would show that there was 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 have 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 next question which falls for consideration in this petition is as to whether the petitioners are entitled to compensation for the death of Kuldeep Raj and, if so, to what amount? 5 As Kuldeep Raj is admitted by the respondents to have died during the course of his employment with them, so the respondents cannot deny their statutory liability to compensate the petitioners for the death of Kuldeep Raj in view of the provisions of the Workmen’s Compensation Act, 1923. Compensation payable for the death of a workman under Workmen’s Compensation Act is, therefore, required to be assessed in terms of Section 4 read with Schedule-IV of the Act. Thus calculated compensation for the death of Kuldeep Raj taking into consideration his age at 26 years and half of his monthly pay at Rs.930/-, would come to Rs.2,00,210/-. State counsel’s plea that compensation more than Rs. 1 lac as prescribed in Government Order No. 273-PDD of 1994 dated 19.10.1994 may not be payable to the petitioners is thus unsustainable as the Government Order relied upon by the State Counsel has to relent to the provisions of the Workmen’s Compensation Act which prescribe payment of compensation on the lines indicated in Section 4 read with Schedule-IV of the Act. Keeping all the facts and circumstances of the case in view, I am of the opinion that the petitioners who have lost their son who had been admittedly earning an amount of Rs.1860/- cannot be denied compensation on the lines 6 indicated in the provisions of the Workmen’s Compensation Act. Petitioners are, therefore, held entitled to an amount of Rs.2,00,210/- by way of compensation. As the respondents have not paid any amount to the petitioners either in terms of the Government Order or under the provisions of the Workmen’s Compensation Act, so the petitioners are held entitled to interest also on the amount of compensation from the date of the filing of the writ petition. This petition is, accordingly, allowed directing the respondents to pay an amount of Rs.2,00,210/- to the petitioners along with interest @ 6% per annum from the date of filing of the writ petition till its realization within a period of two months. ( J. P. Singh ) Judge JAMMU: 04.12.2008 Pawan Chopra