IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE Dr.JUSTICE VINEET KOTHARI WP Nos.19232-19233 OF 2015 (GM-KEB) BETWEEN 1. Smt. Kempamma W/o Late Ningaiah, Aged about 49 years.
2. Mr. Raju, S/o. Late Ningaiah, Aged about 30 years, R/o. Sogaala village, V. Pura Hobli, Channapatna Taluk, Ramanagara District – 571 511 (By Mrs. Jyoti M. Maradi, Advocate For Mr. Gowthamdev C. Ullal, Advocate) AND 1. Managing Director, Bangalore Electricity Supply Company Ltd., (BESCOM), Corporate Office, Bengaluru – 560 002 2. The Assistant Executive Engineer, Bangalore Electricity Supply ...Petitioners Company Ltd., (BESCOM) Rural Sub-Division, Opp: K.S.R.T.C Bus Stop, Channapatna Taluk, Ramanagara District – 571 511 ...Respondents (By Mr. H. V. Devaraju, Advocate) These writ petitions are filed under Articles 226 and 227 of the Constitution of India praying to direct the respondents to provide compensation on account of death of Radhamma @ Nadhamma of `15,00,000/- to the petitioners.
These petitions are coming on for preliminary hearing in ‘B’ Group, this day, the court made the following:
ORDER Mrs. Jyoti M. Maradi, Advocate For Mr. Gowthamdev C. Ullal, Advocate for petitioners Mr. H. V. Devaraju, Advocate for respondents.
1. Learned counsel for the petitioners submit that the controversy involved in the present case is covered by the decision of this Court in the case of Sri.P.Malappa and Ors vs. The Bengaluru Electricity Supply Co., (BESCOM) and Ors. in Writ Petition Nos.54502-506/2015 and connected matters(GM-KEB) in which this Court has held as under:
“11. In the circumstances narrated above, this Court is of the considered opinion that it is not appropriate for this Court to exercise writ jurisdiction under Article 226 of the Constitution of India, for not only determining the question of facts like the cause of accident, negligence of Electricity Distribution Companies or not, but on the other hand also, which criteria is to be adopted for determining the amount of compensation is also a material question.
12. The decisions cited at the bar do not appear to have referred to the provisions of the Fatal Accidents Act, 1855, which actually covers the field of such cases of accidents and cause of death, where on the basis of tortuious liability can be fixed on the Respondents-Electricity Distribution Companies.
13. The preamble of the said Act is that, it is an Act to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong. It is a 4 Sections Act and including its preamble provides for the compensation where no action or suit is maintainable in any Court against a person who by his wrongful act, neglect or default, may have caused the death of another person. The relevant provisions of the said Act with its preamble are quoted below for ready reference:-
“THE FATAL ACCIDENTS ACT, 1855 An Act to provide compensation to families for loss occasioned by the death of a person caused by actionable wrong.
Preamble.- WHEREAS no action or suit is now maintainable in any Court against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is often- times right and expedient that the wrong- doer in such case should be answerable in damages for the injury so caused by him. It is enacted as follows:-
1. Short title and extent.- (1) This Act may be called the Fatal Accidents Act, 1855 .
(2) It extends to the whole of India except the State of Jammu and Kashmir].
[1A.] Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.—Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony or other crime.
[***] Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased;
and in every such action, the court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the court by its judgment or decree shall direct.
COMMENTS (i) Under section 1A of the Fatal Accidents Act, 1855, compensation awarded for loss of dependency, worked out by applying the principle of multiplier is a part of damages “proportioned to the loss resulting from the death”; Fizabai v. Nemi Chand, AIR 1993 MP 79.
(ii) Section 1A of the Fatal Accidents Act, 1855 read with section 110B of the Motor Vehicles Act, 1939 (Now see Motor Vehicles Act, 1998), makes it obligatory on the tribunal to award “just compensation” which differs from case to case; Sardar Ishwar Singh v. Himachal Puri, AIR 1990 MP 282.
(iii) The maintainability of the claim for damages on account of the agony suffered by wife cannot be claimed by the plaintiff in a representative capacity. As husband he can claim damages either under the Fatal Accidents Act or under, the Motor Vehicles Act; M.L. Singhal v. Dr. Pradeep Mathur, AIR 1996 Del. 261.
2. Not more than one suit to be brought. - Provided always that not more than one action or suit shall be brought for, and in respect of the same subject-matter of complaint 1[***]:
Claim for loss to estate may be added: - Provided that, in any such action or suit, the executor, administrator or representative of the deceased may insert a claim for and recover any pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased.
3. Plaintiff shall deliver particulars, etc.- The plaint in any such action or suit shall give a full particular of the person or persons for whom, or on whose behalf, such action or suit shall be brought, and of the nature of the claim in respect of which damages shall be sought to be recovered.
4. Interpretation- clause.- The following words and expressions are intended to have the meanings hereby assigned to them respectively, so far as such meanings are not excluded by the context or by the nature of the subject- matter; that is to say [****] the word" person" shall apply to bodies politic and corporate; and the word “parent” shall include father and mother and grand- father and grand- mother; and the word “child” shall include son and daughter and grand- son and grand-daughter and step- son and step- daughter”.
14. In view of this, this Court is of the considered opinion that it would be not appropriate to invoke the writ jurisdiction in such cases and arbitrarily determine the compensation without any yardsticks or parameters.
15. The judgment of the Hon’ble Supreme Court upholding the Division Bench judgment of this Court in the case of Raman vs. Uttar Haryana Bijli Vitran Nigam Ltd., & Others was rendered in exercise of Article 142 of the Constitution of India, which power this Court does not have and therefore, the said decision does not decide the question, whether the writ petition in such case is maintainable or not.
16. In the circumstances narrated above, this Court holds that these writ petitions are not maintainable under Article 226 of the Constitution of India and the claimants/petitioners should approach the Civil Courts by way of civil suits, where all these question of facts can be established with relevant evidence proved in accordance with law. The delay in filing such suits, even now, however deserves to be condoned, since the petitioners availed a remedy which this Court at this stage is holding to be misconceived and not maintainable.
17. Therefore, the petitions are disposed of with a liberty and direction to the petitioners to file appropriate civil suits in competent civil courts and if such civil suits are filed within a period of 60 days from today, the Courts below, where such suits are filed are directed not to raise an objection of limitation in such cases but proceed to decide the suits on merits in accordance with law. No costs.”
2. Accordingly, these writ petitions are disposed of in the terms indicated above.
Sd/-
JUDGE dn/mds Sl.No.28