Himachal Pradesh High Court
Rekha vs The H.P. State Electricity Board & ... on 1 April, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 3647 of2011 Reserved on: 18.03.2017 Decided on: 1.04.2017 .
__________________________________________________________________ Rekha .....Petitioner.
Versus The H.P. State Electricity Board & another ......Respondents.
__________________________________________________________________ Coram of The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes.
For the petitioner:
rt Ms. Uma Manta, Advocate.
For the respondents: Mr. Vivek Sharma, Advocate.
__________________________________________________________________ Chander Bhusan Barowalia, Judge.
The petitioners, being parents of the deceased, Deepak Kumar (hereinafter referred to as 'the deceased'), maintained the present writ petition under Article 226 of the Constitution of India, seeking compensation from the respondents, i.e. Himachal Pradesh State Electricity Board, (hereinafter referred to as 'respondents-Board') on account of death the deceased due to electrocution, which as per the petitioners, was due to the negligence of the respondents-Board. During the pendency of the petition, petitioner No. 2 (father of the deceased) died and his legal representatives were brought on record.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 22:06:14 :::HCHP 22. Succinctly, the facts, as per the petitioners, essential for adjudication of this petition, are that on 18.04.2008 the deceased was standing on his lintel. Suddenly, the deceased was caught by .
the electric wires, which were hanging very low. The deceased, in an unconscious state, was shifted to Indira Gandhi Medical College on the same day, however, during hospitalization he died on 20.04.2008. The occurrence was also reported to the police on of 18.04.2008. Postmortem report revealed that the deceased died due to electrocution. As per the petitioners, the deceased died rt due to the negligence of the respondents, as the respondents-
Board did not lay the electric wires as per the prescribed norms under the Indian Electricity Act and Rules. It is further contended that the deceased was thirteen years of age at the time of the incident and was earning `4500/- per month by working in the locality. The deceased was contributing towards the expenses of the family and due to his death the family not only lost monetary contribution, but also lost his love, affection etc. As per the petitioners, the deceased died due to the negligence of the respondents-Board, as the respondents-Board is wholly responsible for upkeep and supply of electricity. It is further contended that the respondents have failed in supervising and taking necessary precautions while transmitting electricity through high tension electricity line. As per the petitioners, the respondents, by ::: Downloaded on - 15/04/2017 22:06:14 :::HCHP 3 negligently discharging their statutory duties, not only endangered, but have taken away the life of the deceased, by contravening Article 21 of the Constitution of India, thus they are liable to pay .
compensation to the petitioners. The petitioners have sought compensation to the tune of `10,00,000/- (rupees ten lac) from the respondents by issuing a legal notice dated 29.09.2010, however, respondents turned deaf ear and neither replied the notice nor of released any amount of compensation. Hence the petitioners were virtually forced to resort to the present writ petition.
3. rt The respondents, by way of filing reply to the petition, resisted the claim of the petitioners. As per the respondents, the petitioners have not approached this Court with clean hands, they have no locus standi and this Court has no jurisdiction to entertain the present petition. The respondents admitted the accident on 18.04.2008. As per the respondents, the accident took place in an under construction and unauthorized building of Shri Vicky and Shri Subhash (father of the deceased and his brother). The respondents on 16.04.2008 issued notice to Shri Subhash to stop the work, however, construction continued and the accident took place only due to the adamancy of Shri Subhash and Shri Vicky. The respondents have further averred that the electric line in question was erected in the year 1989 after taking all obligatory clearances and since then the same has been maintained by them properly.
::: Downloaded on - 15/04/2017 22:06:14 :::HCHP 4As per the respondents, the accident took place due to the unauthorized construction being raised by Shri Subhash and Shri Vicky. The respondents have also issued notice for maintaining .
adequate distance from the 33KV HT line, thus they cannot be held liable for the negligence of the petitioners. The deceased while playing on the lintel with an iron stick. Which got in contact with live wires and due to shock fell down on the road. The owner of the of building did not take mandatory clearances, as required under the law, from the respondents-Board and thus the petitioners are rt themselves liable for the accident.
4. I have heard the learned counsel for the parties and gone through the records.
5. The learned counsel for the petitioners has argued that the deceased died due to the negligence of the respondents. She has further argued that life of the deceased was curtailed due to the negligence of the respondents, so there is violation of right to life as provided under Article 21 of the Constitution of India and the respondents are liable to pay compensation to the petitioners. She has relied upon the following judicial pronouncements:
1. M.P. Electricity Board vs. Shail Kumari and others, (2002) 2 Supreme court Cases 162;
2. Paramjit Kaur & others vs. State of Punjab & others, AIR 2009 Punjab and Haryana 27;
3. Delhi Development authority vs. Bhagwan and others, 2015 ACJ 324; and
4. Naval Kumar alias Rohit Kumar vs. Sate of H.P. & others, ::: Downloaded on - 15/04/2017 22:06:14 :::HCHP 5 CWP No. 475 of 2013 (decided by a learned Single Judge of this Court on 09.01.2015).
6. Conversely, the learned counsel for the respondents-
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Board has argued that the deceased died due to the negligence of the petitioners, as they have raised unauthorized construction under the high tension electricity wires and despite notice of the respondents, they did not desist from raising construction. Thus, of negligence cannot be attributed to the respondents-Board and they are not liable to pay any compensation to the petitioners.
7. rt The first and foremost question is - whether this Court can grant compensation while exercising jurisdiction under Article 226 of the Constitution of India, as the petitioners have willingly invoked the jurisdiction of this Court under Article 226 of the Constitution of India without taking recourse to other civil remedies available to them under the law?
8. The above question is no longer res integra and in number of judgments it has been addressed. In Nilabati Behera (Smt) alias Lalita Behera (through the Supreme Court Legal Aid Committee) vs. State of Orissa and others, (1993) 2 Supreme Court Cases 746, it has been held by the Hon'ble Supreme Court that compensation can be granted while exercising writ jurisdiction, however, there must be prima facie proof that the accident took place due to the negligence of the respondents and the writ Courts ::: Downloaded on - 15/04/2017 22:06:14 :::HCHP 6 cannot shut its doors and relegate the approaching party to avail other efficacious remedies. It would be apt to extract para 17 of the judgment in Nilabati Behera's case (supra) herein:
.
"It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided of for the enforcement of a fundamental right is 'distinct from, and in addition to the remedy private law for damages for the tort' resulting from the contravention of the rt fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Arts. 32 and 226 of the Constitution. This is what was indicated in Rudul Sah (AIR 1983 SC 1086) and is the basis of the subsequent decisions in which compensation was awarded under Arts. 32 and 226 of the Constitution, for contravention of fundamental rights."
9. In yet another decision of the Hon'ble Apex Court in Chairman, Railway Board and Others vs. Chandrima Das (Mrs )and others, (2000) 2 Supreme Court Cases 465, it has been held that a writ petition under Article 226 of the Constitution of India, seeking ::: Downloaded on - 15/04/2017 22:06:14 :::HCHP 7 compensation against the State or its instrumentalities, is maintainable even if there are other alternative remedies available to the petitioner. Relevant paras of the judgment (supra) are .
reproduced hereinbelow:
"6. We may first dispose of the contention raised on behalf of the appellants that proceedings under Article 226 of the Constitution could not have been legally initiated for claiming damages from the Railways for the offence of rape committed on Smt. Hanuffa Khatoon and of that Smt. Hanuffa Khatoon herself should have approached the court in the realm of private law so that all the questions of fact could have been considered on the basis of the ingredients rt of the commission of "tort" against the person of Smt. Hanuffa Khatoon wee made out, so as to be entitled to the relief of damages. We may also consider the question of locus standi as it is contended on behalf of the appellants that Mrs. Chandrima Das, who is a practicing advocate of the High Court of Calcutta, could not have legally instituted these proceedings.
... ... ... ... ... ...
11. Having regard to what has been stated above, the contention that Smt. Hanuffa Khatoon should have approached the civil Court for damages and the matter should not have been considered in a petition under Article 226 of the Constitution, cannot be accepted. Where public functionaries are involved and the matter relates to the violation of fundamental rights or the enforcement of public duties, the remedy would still be available under the public law notwithstanding that a suit could be filed for damages under private law."
Therefore, keeping the above settled position of law in mind, the present writ petition is maintainable. The argument of the learned counsel for the respondents-Board that the compensation cannot ::: Downloaded on - 15/04/2017 22:06:14 :::HCHP 8 be granted by this Court while exercising writ jurisdiction and the petitioners may be relegated to appropriate Civil Court seeking compensation, comes a cropper. Therefore, compensation can be .
granted by the writ Courts while exercising writ jurisdiction, provided there must be prima facie proof of negligence of the respondents.
10. The deceased, was a boy of 13 years, was electrocuted and accident has been admitted by the respondents.
of Moreover, it has also been established, through the postmortem report that the deceased died due to electrocution. The deceased rt had a right to life enshrined under Article 21 of the Constitution of India, however, his life was curtailed due to the accident. Thus, clearly there is violation of right to life of the deceased and the Hon'ble Apex Court in Sube Singh vs. State of Haryana and others, (2006) 3 SCC 178, held that grant of compensation against the State or its instrumentalities is an appropriate and effective remedy for redressal of an established infringement of a fundamental right under Article 21 of the Constitution of India. It is gainful to reproduce para 38 of the judgment (supra), which is as under:
"38. It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved ::: Downloaded on - 15/04/2017 22:06:14 :::HCHP 9 person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under section 357 of Code of Civil Procedure."
.
11. The next question arises as to whether the respondents were negligent in maintaining their 33KV HT line and due to their negligence the deceased died?
of
12. The expression 'negligence' is focal point in this case and liability of compensation can only be fastened upon the respondents in case it is found that they were negligent or careless rt in maintaining their 33KV HT line. Apparently, by way of filing reply to the writ petition, the respondents averred that the deceased died due to the negligence of the petitioners. As per the respondents, the father of the deceased and his brother were raising unauthorized construction under the high tension electricity line and during the construction work the deceased was working with iron stick, which touched the high tension line and he died due to electrocution. Thus, the respondents-Board attributed the negligence of the petitioners and virtually refuted their carelessness in maintaining their high tension line. However, the question of negligence still subsists in this case, as negligence means whether the authorities were vigilant enough 'to take due care' in maintaining their high tension line and they, in order to obviate any danger to human life, taken all precautionary, protective and preventive ::: Downloaded on - 15/04/2017 22:06:14 :::HCHP 10 measures while performing their duties to safeguard the human life.
This point has already been set at right by the Hon'ble Apex Court in M.P. Electricity Board vs. Shail Kumari and others, (2002) 2 Supreme .
court Cases 162, wherein it was held that a person undertaking an activity involving hazardous or risky 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 of the managers of such undertakings. For ready reference para No. 8 of the judgment (supra) is extracted as under:
rt "Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky 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 cast 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 harm 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."
In view of the above referred ratio of law, the question of negligence does not at all arise in cases of strict liability, as the present one. In the present case as well, respondents were ::: Downloaded on - 15/04/2017 22:06:14 :::HCHP 11 statutorily under duty to provide electricity, upkeep the electricity lines and also to prevent any peril to the human life. Thus, in cases of perilous threat to human life, contributory negligence of .
individual(s), as alleged by the respondents-Board, can always be given a go-by and the authority, which is under statutory duty to maintain such perilous activity, is under obligation to compensate for the injury/death of the individual(s). Therefore, the argument of that the respondents were not negligent in maintaining their HT line and the deceased died due to the negligence of the petitioners is rt not acceptable, as irrespective of any negligence on the part of the respondents, they are liable to pay compensation to the petitioners and the respondents-Board cannot get the benefit of contributory negligence of the petitioners.
13. The learned counsel for the petitioners has also relied upon the judgment rendered by the Hon'ble Apex Court in M.P. Electricity Board vs. Shail Kumari and others, (2002) 2 Supreme court Cases 162, wherein it has been held that a person undertaking an activity involving hazardous or risky 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. This judgment is applicable to the facts of the case in hand, thus the respondents are saddled with liability to pay damages to the petitioners.
::: Downloaded on - 15/04/2017 22:06:14 :::HCHP 1214. In the instant case, the deceased was electrocuted and consequently he died. Admittedly, electricity is a dangerous commodity and statutory duty is on the shoulders of the .
respondents-Board. The respondents were duty bound to take preventive and protective measures to avoid perilous escape of electricity through their high tension electricity lines. The deceased came in contact with low and live high tension electricity wire, of when he was working/playing on the lintel, thus the present is a case where principle of 'res ipsa loquitour' is attracted. The rt principle of res ipsa loquitour means that "the mere occurrence of some types of accident is sufficient to imply negligence", so accident only is sufficient for grant of compensation to the petitioners.
15. The judgment rendered by Hon'ble Delhi High Court in Delhi Development Authority vs. Bhagwan and others, 2015 ACJ 324, is also relied upon by the learned counsel for the petitioners, wherein it has been held that primary function of maxim res ipsa loquitour is to avoid injustice. Relevant portion of para 3 of the judgment (supra) is extracted as under:
"3. .....................................
"(9) ... The maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. The principal function of the maxim is to prevent injustice which would result if a plaintiff was invariably ::: Downloaded on - 15/04/2017 22:06:14 :::HCHP 13 compelled to prove the precise cause of the accident and the defendants responsible for it, even when the facts bearing on the matter are at the outset unknown to him and often within the knowledge of the defendant...The maxim is based on common sense and its .
purpose is to do justice when the facts bearing on the causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant."
Thus, in the present set of circumstances, maxim res ipsa loquitour is of relevant and applicable. The petitioners have a right to compensation, as mere occurrence of an accident, as in the rt present case, is sufficient to imply negligence of the respondents-
Board and the judgment referred to above is also applicable to the facts of the present case.
16. The learned counsel for the petitioners has further relied upon a judgment of Hon'ble High Court of Punjab and Haryana rendered in Paramjit Kaur & others vs. State of Punjab & others, AIR 2009 Punjab and Haryana 27, wherein the deceased was 35 years of age and was earning `25,000/- per month, it was held that in cases of fatal accidents of electrocution while determining compensation underlying principles of Motor Vehicles Act, 1988, can be adopted. In the case in hand, the income of the deceased, as per the petitioners, was `4,500/- per month, however, there is nothing on record to establish this fact. So, the bald assertion of the petitioners, qua the income of the deceased, ::: Downloaded on - 15/04/2017 22:06:14 :::HCHP 14 without any lateral support cannot be accepted. Therefore, the judgment (supra) is not applicable to the present case.
17. After exhaustively dealing both with facts and law, this .
Court is of the opinion that while exercising writ jurisdiction compensation can be granted and merely on the ground that other civil remedy was available to the petitioners, they cannot be relegated to resort to that, as that would defeat the very purpose of of justice. This Court also comes to the conclusion that irrespective of any negligence or carelessness on the part of the respondents-
rt Board, they are liable to pay compensation to the petitioners.
18. Now, the only point remains unaddressed is what should be the just and fair compensation? As already discussed above, parameters of Motor Vehicle Act, are not strictly attracted in the present case, as nothing substantial, qua the income of the deceased, has come on record. As per the petitioners, the deceased, at the time of accident, was 13 years of age, however, income of the deceased cannot be construed only on the basis of pleadings made by the petitioners, especially when such pleadings lack any supporting mateiral. Therefore, this Court is left with no other option, but to grant lump sump general damages to the petitioners for non-pecuniary loss viz., pain, suffering, trauma, frustration, loss of love and affection etc. and the respondents-
Board is directed to pay compensation of `6,00,000/- (Rupees six ::: Downloaded on - 15/04/2017 22:06:14 :::HCHP 15 lac) to the petitioners within a period of three months, failing which it shall carry interest @ 7.5% per annum till disbursement of the same, from the date of passing of the judgment.
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19. Taking into consideration the relationship of the petitioners with late Shri Vicky (father of deceased-Deepak Kumar), it is ordered that Smt. Rekha (mother of deceased-Deepak Kumar and wife of late Shri Vicky) is entitled to `2,00,000/- (Rupees two of lac), Master Sahil (minor son of late Shri Vicky) is entitled to `2,00,000/- (Rupees two lac) and Smt. Dawarka Devi and Shri Biloo rt Ram alias Prithu (parents of late Shri Vicky) are entitled to `1,00,000/- (Rupees one lac) each. The amount falling to the share of Master Sahil be deposited in a Fixed Deposit till he attains the age of 25 years, however, the interest to be accrued thereupon will be disbursed to him after every three months, if he so chooses.
20. In view of the above, the writ petition is allowed and disposed. All pending application(s), if any, also stand(s) disposed of.
(Chander Bhusan Barowalia) Judge 1st April, 2017 (virender) ::: Downloaded on - 15/04/2017 22:06:14 :::HCHP