Patna High Court
Ram Swaroop Yadav vs Bihar State Electricity Board And Ors. on 7 April, 2004
Equivalent citations: III(2004)ACC668, 2005ACJ2043, 2004(2)BLJR959
Author: Chandramauli Kr. Prasad
Bench: Chandramauli Kr. Prasad
JUDGMENT Chandramauli Kr. Prasad, J.
1. This application has been filed for issuance of a writ in the nature of mandamus commanding the respondents to pay to the petitioner a sum of Rs. 3,60,000/- by way of compensation on account of death of his son due to electrocution.
2. According to the petitioner, on 19.11.1997, while he and his son Mukesh Kumar were engaged in agriculture operation in their land, the over-head electrical wire of 33 KVA which passes over their land, all of a sudden, snapped and fell down while his son was working and as a consequence of the high voltage he died of electrocution. According to the petitioner, he gave report to the said effect to the Officer-in-charge of Lakhisarai Police Station and on that basis, Lakhisarai (UD) P.S. Case No. 9 of 1997 was registered. According to the inquest report, cause of death was electrical shock. In the opinion of the doctor who had conducted the post mortem also the deceased died due to electrical shock. On the premise that the petitioner's son died of electrical shock on account of snapping of the electrical wire, petitioner by his letter dated 5.12.1997 addressed to the Assistant Electrical Engineer, prayed for payment of compensation of Rs. 3,60,000/-. Such a demand was made by the petitioner before the Electrical Superintending Engineer and the Secretary of the Bihar State Electricity Board, but nothing was paid to him.
3. Petitioner has filed this application, inter alia, contending that his son having died of electrical shock on account of snapping of electrical wire because of the negligence of the functionaries of the Bihar State Electricity Board, (hereinafter referred to as the Board) he is entitled for grant of compensation.
4. Counter affidavit has been filed on behalf of respondent No. 4 and in paragraph 7 thereof, he has stated as follows :--
"6. That the petitioner has claimed in paragraph No. 5 of the writ petition that on 19.11.1997 while he and his son, Mukesh Kumar were engaged in cutting cauliflower in his own field at 12 noon over head electrical wire of 33 KVA which passes over his field running from Lakhisarai to Suryagarha all of a sudden snapped and fell down and his son was electrocuted causing instantaneous death. The said statement/claim of the petitioner is not correct. It is stated that 33 KVA Line does not pass through the land of the petitioner, hence there can be no question of conductor of 33 KVA line snapping and falling in the field of the petitioner on account of which any death or accident could have occurred.
5. It is relevant here to state that the petitioner in the writ application has stated that a 33 KVA line had passed over his land and his son died of snapping of the said wire and in paragraph 6 of the counter affidavit referred to above, the emphasis 'of respondents was that 33 KVA line is not passing and, therefore, there was no occasion for falling 33 KVA line. On being prima facie, satisfied that the respondents are trying to divert the issue and the counter affidavit suffers from the vice of suppresio veri and suggestio falsi, by order dated 15.1.2004, I had directed the respondents to file further counter affidavit as to whether any line passes over the land of the petitioner where the accident had taken place. In the light of the said order a supplementary counter affidavit has been filed and in paragraph 4 thereof, it has been stated as follows :
"The deponent along with Sri Ajit Kumar, Junior Electrical Engineer visited the site in question on 11.2.2004. On enquiry it was found that a 11 KVA electric line which starts from 33/11 KVA Power Sub Station Lakhisarai which is Suryagarh Reader passes over the land of Ram Swarup Yadav Mohalla English, Lakhisarai."
6. Mr. R.K.P. Singh, appearing on behalf of the petitioner contends that the petitioner's son having died on account of the electrocution because of the snapping of the wire due to negligence of the functionaries of the respondent-Board, this is a fit case in which the respondents be directed to compensate the petitioner. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of common cause a Registered Society v. Union of India and Ors., AIR 1999 SC 2979, and my attention has been drawn to paragraphs 38 and 39 of the said judgment which read a follows :--
"38. Under Article 226 of the Constitution, the High Court has been given the power and jurisdiction to issue appropriate writs in the nature of mandamus, certiorari prohibition, quo warranto and habeas corpus for the enforcement of Fundamental Rights or for any other purpose. Thus, the High Court has jurisdiction not only to grant relief for the enforcement of Fundamental Rights but also for "any other purpose" which would include the enforcement of public duties by public bodies. So also, the Supreme Court under Article 32 has the jurisdiction to issue prerogative writs for the enforcement of Fundamental Rights guaranteed to a citizen under the Constitution.
39. Essentially, under public law, it is the dispute between the citizen or a group of citizens on the one hand and the State or other public bodies on the other, which is resolved. This is done to maintain the rule of law and to prevent the State or the public bodies from acting in an arbitrary manner or in violation of that rule. The exercise of constitutional powers by the High Court and the Supreme Court under Articles 226 and 32 has been categorised as power of "judicial review". Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Article 14 read with other articles dealing with Fundamental Rights, every executive action of the Government of other public bodies, including instrumentalities of the Government or those which can be legally treated as "Authority" within the meaning of Article 12, if arbitrary, unreasonable or contrary to law, is now amenable to the writ jurisdiction of this Court under Article 32 or the High Courts under Article 226 and can be validly scrutinised on the touchstone of the constitutional mandates."
7. Another decision on which Mr. Singh has placed reliance is a judgment of the Delhi High Court in the case of Col. Dharam Vir Kataria v. Union of India and Ors., AIR 1999 Delhi 291, and my attention has been drawn to paragraph 18 of the judgment which reads as follows :
"18. Thus, claim in public law for compensation for deprivation of constitutionally guaranteed right to life and liberty is a claim based on strict liability. Such a claim can be entertained in a writ petition. It is a remedy in addition to the remedy available in private law for damages for tortuous acts of the State or its functionaries or public servants. Exercise of power by the High Court under Article 226 of the Constitution for grant of compensation for the violation of indefeasible and inalienable right of a person guaranteed under Article 21 is an exercise of the power of the Court under the public law jurisdiction for compelling the violator to make reparation of the wrong done."
8. Reliance has also been placed on a Division Bench judgment of Orissa High Court in case of Rajani Dei v. Chairman, Orissa State Electricity Board and Ors., 1996 ACJ 1146, to contend that compensation can be granted in exercise of the power under Article 226 of the Constitution of India.
9. Mr. R.K. Dutta, with his usual brilliance, contended that there is nothing on the record to show that the petitioner's son died due to electrocution and according to him, even if he died of electrocution, the petitioner had to establish that the accident had taken place on account of negligence of the Board. He emphasise that without proving negligence, nobody is entitled for compensation, In support of the submission, reliance has been placed on a decision of the Supreme Court in the, case of Chairman, Grid Corporation of Orissa Ltd. (Grido) and Ors. v. Sukamani Das (Smt) and Anr., (1999) 7 SCC 298 and my attention has been drawn to paragraph 6 of the said judgment which reads as follows :--
"6. In our opinion, the High Court committed an error in entertaining the writ petitions even though they were not fit cases for exercising power under Article 226 of the Constitution. The High Court went wrong in proceeding on the basis that as the deaths had taken place because of electrocution as a result of the deceased coming into contact with snapped live wires of the electric transmission lines of the appellants, that "admitted" prima facie amounted to negligence on the part of the appellant." The High Court failed to appreciate that all these cases were actions in tort and negligence was required to be established firstly by the claimants. The mere fact that the wire of the electric transmission line belonging to Appellant 1 had snapped and the deceased had come in contact with it and had died was nor by itself sufficient for awarding compensation. It also required to be examined whether the wire had snapped as a result of any negligence of the appellants and under which circumstances the deceased had come in contact with the wire, in view of the specific defence raised by the appellants in each of these cases they deserved an opportunity to prove that proper care and precautions were taken in maintaining the transmission lines and yet the wires had snapped because of circumstances beyond their control or unauthorised intervention of third parties or that the deceased had not died in the manner stated by the petitioners. These questions could not have been decided properly on the basis of affidavits only. It is the settled legal position that where disputed, questions of facts are involved a petition under Article 226 of the Constitution is not a proper remedy. The High Court has nor and could not have held that the disputes in these cases were raised for the sake of raising them and that there was no substance therein. The High Court should have directed the writ petitioners to approach the Civil Court as it was done in OJC No. 5229 of 1995."
10. Reliance has also been placed on a decision of the Supreme Court. In the case of Tamil Nadu Electricity Board v. Sumatni and Ors., (2000) 4 SCC 543, and in the said judgment it has been held as follows :--
"10. In view of the clear proposition of law laid by this Court in Sukamani Das case when a disputed question of fact arises and there is clear denial of any tortious liability remedy under Article 226 of the Constitution may not be proper. However, it cannot be understood as laying a law that in every case of tortious liability recourse must be had to a suit. When there is negligence on the face of it and infringement of Article 21 is there it cannot be said that there will be any bar to proceed under Article 226 of the Constitution. Right of life is one of the basic human rights guaranteed under Article 21 of the Constitution. In U.P. State Coop. Land Development Bank Ltd. v. Chandra Bhan Dubey, where one of us (Wadhwa, J.) was a party, this Court after examining various decisions of the Courts on the power of the High Court under Article 226 of the Constitution observed that the language of Article 226 of the Constitution does not admit of any limitation on the powers of the High Court for the exercise of jurisdiction thereunder though by various decisions of this Court with varying and divergent views, it has been held that jurisdiction under Article 226 can be exercised only when a body or authority, the decision of which is complained, was exercising its power in the discharge of public duty and that writ is a public law remedy." (Underlining mine)
11. From the conspectus of the decision of the Supreme Court referred to above, there is no difficulty in accepting the broad submission that without proving negligence, nobody is entitled for compensation and when the liability is denied on the ground that there was no negligence, or there is a disputed question of fact, remedy under Article 226 of the Constitution is not a proper remedy. Further it is true that the right claimed by the petitioner is not capable of being established in a summary proceeding under Article 226 of the Constitution of India and one has to bear in mind that the object of conferment of jurisdiction under the said Article is for enforcement and not establishment of right. This is further a rule of discretion and not of exclusion of jurisdiction, hence this Court in exercise of its power of judicial review is not incompetent to decide an issue of fact, which can be determined from the materials on record. Further one can not lost sight of the fact that right to life is a fundamental right guaranteed under supreme law of the country and when there is negligence on the face of it, it can not be said that recourse must be had to suit. It is one thing to say that the writ petition be dismissed on the ground that same involves disputed question of fact, then to say that the person claiming compensation be put to strict proof of the same.
12. Bearing in mind the principle aforesaid, I proceed to examine the facts of the present case. The respondents in their first counter affidavit, tried to divert the issue by saying that as 33 KVA line is not passing over the field of the petitioner, there was no occasion for the petitioner's son dying of electrical shocks on account of snapping of the electric line. In my opinion, the Board which happens to be a statutory authority performing a public duty, ought to have been more honest and should have stated that instead of 33 KVA line. 11 KVA line was passing from over the field where the accident took place which fact is disclosed only after a direction was given by this Court to file further affidavit. Further, the assertion made by the petitioner that 33 KVA line was passing from over the field cannot be said to be without any substance as in the supplementary counter affidavit itself respondents have clearly stated that the electric line started from 33/11 KVA from power Sub Station. It is too much to expect from a citizen as to where this 33 KVA power line has come down to 11 KVA.
13. Not only this, in the counter affidavit, respondents have not stated as to how the accident had taken place. In fact, respondents have not joined the issue on this question but their plea in the counter affidavit is to put the petitioner to strict proof of its assertion. I am clearly of the opinion that the dispute if at all in the case has been raised for the sake of it, which can be decided in a writ application on the basis of the material on record. Petitioner has placed on record the report given to the police which shows that his son's dead body was found in the field of cauliflower and he died due to electrical shock. Inquest report and the post mortem report in specific term show that the death had occurred due to electrical shock. Nothing has been placed on behalf of the respondents so as to cloud the assertion of the petitioner. No explanation has been put forth to controvert the petitioner's assertion that his son died on account of electrical shock due to snapping of the electrical wire on account of negligence of the respondents. In my opinion, in case the electrical wire snaps and falls on the ground, unless rebutted, an inference is irresistible that there has been carelessness and negligence on the part of the authority who had the responsibility to maintain it. The irresistible conclusion of the aforesaid discussion is that the petitioner's son had died of shock in his field on account of snapping of electrical wire due to negligence of the respondents and, therefore, he is entitled for the compensation.
14. In the case of Sukmani Das (supra) relied on by Mr. Dutta, a specific defence was raised that although proper care and precaution were taken but the conductor had snapped because of thunderbolt and lightning and in such a situation the Supreme Court held the writ application to be not an appropriate remedy and the issue can not be determined on the basis of affidavit as it involves disputed questions of fact. There is no such pleading in the present case. Further in case of Sumathi (supra) after referring to the decision in Sukmani Das (supra) the Supreme Court has clearly held that "it can not be understood as leaving a law that in every case of tortious liability recourse must be had to suit". Thus the decision of the Supreme Court in the case of Sukmani Das is clearly distinguishable whereas its decision in the case of Sumathi does not support the case, of the respondents.
15. Now, the question is as to how much compensation the petitioner shall be entitled, compensation is a device which the law has contemplated to be paid to a person who had suffered the loss by a person whose act or omission had led to loss or the injury and Justice demands that it should be equal in value. However, it is equally well settled that perfect compensation is hardly possible. Compensation awarded should be adequate and reasonable but should not be excessive or fanciful. There can be no exact or. firm rule for measuring value of human life and the loss cannot be arrived at by precise mathematical calculation but has to be decided on the basis of broad facts and circumstances of each case. It should neither be punitive nor it should be a source of profit. In the facts of the present case I am of the opinion that a compensation of Rs. 2 lakhs shall be just and proper. However, in case the petitioner believes that he is entitled for more compensation, nothing shall prevent him from bringing an appropriate action for that purpose. The respondents shall also be at liberty to make inquiry, asertain the cause and pin point the person/persons responsible for snapping of the electrical wire and to recover the amount from him.
16. In the result, the writ application is allowed. The respondents are directed to pay to the petitioner a sum of Rs. 2 lakhs within eight weeks from today. In view of the unfair stand of the respondents, I am inclined to award the cost of this litigation to the petitioner, which I assess at Rs. 5,000/-.