Calcutta High Court (Appellete Side)
Jay Prakash Rawat vs The Chairman on 17 May, 2012
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In The High Court At Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas.
W.P. No. 23906 (W) of 2009
Jay Prakash Rawat
v.
The Chairman, The Calcutta Electric Supply
Corporation Limited, & Ors.
Mr Manas K. Barman and Ms Prasupti Upadhya, advocates, for the petitioner.
Mr Subir Sanyal, Mr J.B. Panda and Mr Rishav Dutt, advocates, for CESC. Mr Jayanta Banerjee, advocate,
for the State.
Heard on: May 17, 2012.
Judgment on: May 17, 2012.
The Court: - The petitioner in this WP under art.226 dated December 23, 2009 is seeking the
following principal relief:
"a) Writ or Writs in the nature of Mandamus commanding the concerned respondents to
[au adequate compensation to the petitioner for his minor son to the tune of Rs.20,00,000/- (Rupees Twenty lakhs) considering the permanent irreparable loss of his right hand for the entire period of his life surrounded by darkness without any further right from the age of eight years;"
The petitioner's case will appear from paragraphs 2,3,6 and 13, which are quoted below. Paragraph 2 of the WP is as follows:
"2. That about 10 A.M. morning on November, 12th 2007, the eight years old son of the petitioner Suraj Rawat with his little sister while was playing in the Bhukailash ground adjacent to the house of the petitioner, there playing ball suddenly went inside the door less unprotected High Voltage (6000 Volts) Transformer room belongs to the respondent CESC Limited authority. The said son of the petitioner went inside the said high voltage transformer room through the unprotected doorless gate and tried to collect the playing ball lying therein."
Paragraph 3 of the WP is as follows:
"3. That at the time of picking up the said playing ball the eight years old son of the petitioner, Suraj Rawat received severe high voltage (6000 volts) electric shock from the said transformer of the respondent. The right hand of the little boy was totally burnt fatally at once, he became senseless."
Paragraph 6 of the WP is as follows:
"6. That after the said tragic accident due to gross willful negligence on the part of the respondent authority, it work up from its sleep and then only sent persons for fixing door and signboard notifying like "DANGER 6000 VOLTS" to affix the same in the said Transformer room."
Paragraph 13 of the WP is as follows:
"13. That after the said mere and bare assurance of looking into the matter by the respondent CESC authority on sympathetic, compassionate and humanitarian grounds which covers and limited upto cost of treatment only the petitioner has been running from pillar to post craving for justice and for his legitimate claim of getting compensation from the respondent authorities inasmuch as the liability of he respondent authority is direct and is not vicarious inasmuch as such unfortunate incident took place due to gross and willful/deliberate negligence by the respondent authority and it is a "Constitutional Torts" and compensation is a remedy for violation of constitutional right followed by infringement and denial of constitutional guarantees."
By an order dated May 13, 2010 the WP was admitted. The order dated May 13, 2010 is quoted below:
"None appears for the CESE Ltd. and/or its officers. Affidavit-of-Service filed in Court today shall be retained with the records.
The petitioner has claimed compensation for the loss of the right arm suffered by his con for utter negligence of the CESC Ltd. in keeping open a transformer room, thereby allowing access thereto of innocent children.
The issue requires examination of affidavits.
Let Affidavit-in-Opposition to the writ petition be filed within 3 weeks after vacation reply thereto, if any, be filed within a week thereafter.
List this writ petition under the heading "For Final Disposal"."
The first and third respondents, the Chairman and the Deputy General Manager (South) of CESC respectively, have filed an Affidavit-in-Opposition dated July 13, 2010. Their case has been stated in paragraphs 4,6,7(i) and 11, which are quoted below.
Paragraph 4 of the AO is as follows:
"4. At the very outset, I state and submit that the petition is not maintainable and/or entertainable in law inasmuch as the petition involves disputed questions of fact requiring determination on production of evidence and witnesses and thus cannot be gone into by this Hon'ble Court in its extra ordinary writ jurisdiction. The petitioner may take resort to the civil Court. Moreover, CESC Limited, the licensing company has not been impleaded as a party respondent to the petition and therefore, the petition cannot be properly and effectively adjudicated upon by this Hon'ble Court in the absence of the licensing company. In the absence of CESC Limited, the licensing company, the answering respondents cannot be impleaded or sued by the petitioner in their present capacity and in its present form."
Paragraph 6 of the AO is as follows:
"6. With reference to the paragraph 1 of the petition, I state that the answering respondents have no personal knowledge as to the allegations and/or statement made in paragraph 1 of the petition and as such they do not admit the same."
Paragraph 7(i) of the AO is as follows:
"(i) I deny and dispute each and every allegation made in paragraphs 2,3 and 4 of the petition. I categorically deny and dispute that Bhukailash Rajbari Outdoor Type Transformer of CESC Limited was doorless and unprotected as alleged therein. I state that the said allegation is incorrect, false, concocted and afterthought, baseless and without merit. I specifically state that transformer of 6000 Volts installed by the side of the Bhukailash Rajbari ground was/is protected by boundary wall/fencing on all sides which had a gate with affixed door for ingress and egress of CESC officials. On November 12, 2007 all the said walls/fencing and the gate with the door affixed thereat were intact and/or well maintained. There had been no complaint whatsoever in regard to failure or negligence in the matter of maintenance of the walls/fencing and doors of the gate of the said transformer space of CESC Limited from any person of the said locality. I further specifically state that there was/is a signed board with the intimation to all concerned "Danger 6000 Volts" affixed on the wall/fencing of the said transformer space. I specifically state that on the day of the incident, there was no interruption of supply which clearly suggest that the flash over was so momentary that none of the feeder tripped at the time of the accident. The fact of such accident was subsequently brought to the notice of CESC Limited through the representation dated January 21, 2008 addressed to the Power Department, Government of West Bengal which was in turn forwarded to CESC Limited, a copy whereof is annexed hereto and marked as Annexure "R-I"."
Paragraph 11 of the AO is as follows:
"11.I dispute the submissions made in paragraphs 15 and 16 of the petition. I state that there was no illegality on the part of CESC Limited nor was there any fault or negligence in maintaining and protecting the transformer space, transformer, its boundary wall with proper fencing and gate with doors on the part of CESC Limited. The entire transformer space and transformer were all protected and it was not accessible from outside except with the help of some means."
The document at p.16 of the AO is an accident report. The contents of the document are quoted below:
"ANNEXURE TO OUR LETTER NO. MM(D):1190 DATED 29TH JANUARY 2008 Investigation revealed that the victim reportedly entered into the compound of Bhukailas Rajbari outdoor type transformer, door of which was earlier dislodged by miscreants. The victim opened the inside door of the feeder pillar box and touched the live part causing electrical flash. As a result Sri Rawat received electrical shock and burn injury on his right hand.
Controlling fuse did not blow due to intermittent nature of contact."
The petitioner has filed an Affidavit-in-Reply dated April 20, 2012. He has disputed the case stated in the AO and reiterated his case stated in the WP.
Paragraph 5 of the AR is as follows:
"5. With reference to paragraph no.7(i),(ii),(iii), 9 and 11 of the opposition, I deny and dispute each and every contents made therein and I categorically reiterate that the said Outdoor Type Transformer was always had been doorless, gateless and unprotected and there was no signboard notifying any caution like "Danger 6000 volts" was affixed on the date of tragic accident inasmuch as such false claim of the concerned respondents "contradicts" with their own "Accident Report" dated 29th January 2008 being their own Annexure "R-2" Page 16 of Affidavit- in-Opposition wherein it is specifically reported that in the said transformer room there was neither any door nor any guard as per own showing that the door was "earlier dislodged by miscreants". Institution of police case on hospital's information is no ground to escape. It could be possible that after the pathetic accident the respondent authority concerned woke up from their deep sleep and thereafter only affixed alleged door, gate boundary wall and guard."
Section 161 of the Electricity Act, 2003 and the Intimation of Accidents (Form and Time of Service of Notice) Rules, 2005 were applicable to the accident in question. In view of s.161 of the Act CESC was under
an obligation to give notice of the accident and the injury actually caused by it to the petitioner's son, in prescribed form, to the Electrical Inspector concerned, and the Electrical Inspector was under an obligation to inquire and report as to the cause of the accident to the Appropriate Government.
The provisions of the Intimation of Accidents (Form and Time of Service of Notice) Rules, 2005 created an obligation of CESC to send to the Chief Electrical Inspector or the Electrical Inspector appointed under sub-s.(1) of s.162 of the Act a telegraphic report of the accident and injury within 24 hours of the knowledge of the occurrence and a report in writing in prescribed form within 48 hours of the knowledge of the occurrence.
Case stated in paragraph 7(ii) of the AO is as follows:
"(ii) On being reported of about such incident, a Statutory Accident Intimation Report was filed with the office of the Chief Electrical Inspector, West Bengal on January 29, 2008.
A copy of the said report is annexed hereto and marked as Annexure "R-2"."
It is the case in the AO that the document at p.14 thereof is a copy of the notice of the accident dated January 29, 2008 CESC sent to the Chief Electrical Inspector, West Bengal. In the notice it was stated that CESC had learnt of the accident from the petitioner on January 21, 2008.
The Chief Electrical Inspector, West Bengal was not a party to the WP. Under the circumstances, an order was passed on May 7, 2012 directing his addition as a respondent. He was added and notice was served on him. Inspite of notice he did not appear. Hence an order was passed on May 16, 2012 directing him to produce the records connected with the case.
The order dated May 16, 2012 is quoted below:
"Counsel for the petitioner submits that in compliance with the last order notice has been given to the Chief Electrical Inspector. Since none appears for the Chief Electrical Inspector, Mr Banerjee has appeared for him on the basis of the standing instructions from the Government Pleader.
Relying on Chairman, Grid Corporation of Orissa Ltd. v. Sukamani Das, (1999) 7 SCC 298, Mr Sanyal appearing for CESC questions the maintainability of the WP.
I think it will be appropriate to direct the Chief Electrical Inspector to produce the records connected with the case.
Hence I direct him to send an officer with all the records connected with the case tomorrow. To daily list for hearing tomorrow. Certified xerox."
Mr Banerjee has produced a copy of the inquiry report dated July 31, 2008 the Chief Electrical Inspector, West Bengal submitted to the OSD & Ex Officio Deputy Secretary, Department of Power & Non Conventional Energy Sources, Government of West Bengal with a covering letter dated August 4, 2008.
Nothing in the report proves the petitioner's allegations that the accident in question occurred because of negligence on the part of CESC. As to the cause of the accident, the Electrical Inspector conducting the inquiry mentioned that direct contact with live conductor of transformer caused the electrocution, as the main entrance gate of transformer compound had been stolen by some unknown miscreants.
Mr Sanyal appearing for the contesting respondents has produced a copy of a decision dated August 11, 2010 of this Court in a CRR No.4276 of 2008. From the decision it appears that on the basis of the petitioner's complaint against six officers of CESC, a Criminal Court took cognizance of commission of offence by those officers under s.287 IPC on May 13, 2008 and issued process.
This Court allowed the CRR and quashed the criminal case holding as follows:
"Therefore, I hold that cognizance taken in the case, is bad in law and the same is not sustainable. Moreover, the nature of alleged offence, I find that it is a tortuous liability which can be decided by civil court."
Mr Sanyal has argued that the WP is not maintainable, for the two questions-- negligence and quantum of compensation--to be proved by the petitioner, cannot be decided by the Writ Court, when CESC is not a party to the WP and the contesting respondents have categorically denied negligence on their part or on the part of CESC.
He has relied on the decisions of the Supreme Court in Chairman, Grid Corporation of Orissa Ltd. & Ors. v. Sukamani Das & Anr., (1999) 7 SCC 298, Tamil Nadu Electricity Board v. Sumathi & Ors., (2000) 4 SCC 543, and S.D.O. Grid Corporation of Orissa Ltd. & Ors. v. Timudu Oram, AIR 2005 SC 3971.
Relying on Surjya Kant Talukdar v. Assam State Electricity Board & Ors., 1999 SCC (Cri) 251 and M.P. Electricity Board v. Shail Kumar & Ors., AIR 2002 SC 551, Mr Barman appearing for the petitioner has strenuously argued that on the facts the Writ Court is the appropriate forum to order CESC, evidently guilty of negligence, to pay compensation for the injury the accident in question caused to the petitioner's son.
The questions are whether the accident in question occurred due to negligence on the part of CESC; and if so, whether the victim is entitled to any compensation.
The petitioner's allegation that the accident in question occurred due to negligence on the part of CESC has been categorically denied and disputed by the contesting respondents, as is evident from the case they have stated in their AO, a few paragraphs of which have been quoted hereinbefore. Hence there is no basis to say that negligence on the part of CESC is an admitted fact.
The negligence issue involves highly disputed questions of fact. The issue cannot be decided by this Court under art.226. The decisions in Sukamani, Sumathi and Timudu lend support to this view.
The decision in Surjya Kant cannot advance the petitioner's case, for nothing was decided in that case. The decision cannot be taken to be an authority for the proposition that in such a case as the present one a WP under art.226 is of course maintainable. The decision in Shail Kumar was given in an appeal that arose out of a suit. Here the contesting respondents have set up a case that the petitioner's remedy, if any, was a suit before the Civil Court.
In my opinion, the defence is a substantial one. The defence also gets total support from the decision of this Court in the CRR quashing the criminal case filed by the petitioner. I am, therefore, of the view that the petitioner has to be relegated to the Civil Court.
For these reasons, I dispose of the WP relegating the petitioner to the Civil Court. No Costs. Certified xerox.
(Jayanta Kumar Biswas, J.) ss(c);ab(f).