Punjab-Haryana High Court
Abshish @ Tanu vs Punjab State Electricity Board And ... on 12 July, 2011
Author: K. Kannan
Bench: K. Kannan
CWP No.2905 of 2001 (O&M) [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CWP No.2905 of 2001 (O&M)
Date of Decision: 12.07.2011
Abshish @ Tanu ... Petitioner
Versus
Punjab State Electricity Board and others ... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present: Mr. Gurcharan Dass, Advocate and
Mr. Vivek Sharma, Advocate,
for the petitioner.
Mr. K.S. Boparai, Advocate,
for the respondents.
*****
1. Whether reporters of local papers may be allowed to see the
judgment? YES
2. To be referred to the reporters or not? YES
3. Whether the judgment should be reported in the digest? YES
K. KANNAN, J. (Oral)
I. Scope of Dispute
1. The writ petition is a claim for compensation for the injuries sustained by the petitioner by coming in contact with a live electric wire. The incident had taken place on 06.02.2000 when the petitioner, who was a minor aged about 7 years at that time, was playing on the roof and came in contact with the electric wires that resulted in serious burn injuries. Subsequently, his left hand was amputated from the shoulder and all his toes were also amputated. There was also serious cosmetic disfigurement on his leg and a partial bend resulting in arc of the left leg.
2. The case comes by means of writ petition after representations CWP No.2905 of 2001 (O&M) [2] given to the Electricity Board imputing negligence on its part as having caused the ultimate untoward event. The electricity Board presents a stout defence through its counsel, contending that the high tension wires had been drawn several years prior to the construction of the house and the proximity of the high tension wires was the result of a building violation by putting up a construction without appropriate sanction from the local body. The defence is, therefore, that the accident was not the result of any negligence on the part of the respondents but was on account of the illegal construction made by the petitioner's father or his predecessor in erecting a construction so perilously close to the electric connection.
II. Disputed questions of fact: Proper explanation, production of documents and positive assertions pave way for adjudication
3. On pure issues of fact, while the petitioner would contend through his father that there had been representations and appeals to the Electricity Board pointing out to the dangers due to the proximity of the electrical wires and the imminent threat to safety for any occupant of any house in that road where the overhead wires had been laid. The respondents have denied these representations as well and contended that these representations have been created for the purpose of the case. An adjudication on a pure question of fact shall not be appropriate in writ jurisdiction where there is no scope for evidence of parties and there is still no scope for deciding the veracity of the claims of the respective contesting parties. The petitioner has responded to these denials by producing before me the copies of letters and representations which had been sent and the registration receipts or endorsements on the copies containing acknowledgments of the receipts. I have seen the notices sent on various dates namely on 28.06.1996, 08.10.1996, 07.02.2000 and CWP No.2905 of 2001 (O&M) [3] 25.01.2001. There is also yet another representation by Mohalla Sudhar Committee of Partap Nagar, Street No.1, Miller Ganj on 08.10.1996 to the Sub-Divisional Officer, PSEB. The initial letters or representations related to the period of 1996 where they have been repeated reminders to the Electricity Board that the wires posed a great danger to the safety of the public. The letters dated 28.06.1996 and 08.10.1996 bear the seal of the electricity department and acknowledgment of receipts. The representation through the Mohalla Committee is accompanied with a postal receipt of despatch of the letter through registered post. The notices dated 07.02.2000 and 25.01.2001 are also attached with registration receipts and certificate of posting endorsement from the post office. These documents no doubt have been served across the table from the bar but I still have no doubt in my mind about the genuineness of the documents looking at the age of the paper, the postal receipts, the acknowledgments of receipts by the Electricity Board and assertions already made in the writ petition with copies of documents attached to the writ petition even when the petition was filed in the year 2001. All these factors vouch for their genuineness and I will take not the issue of a disputed question as coming seriously in the way for the documents produced evoke confidence that they are true. A certain latitude of discretion is to be made in these proceedings and we cannot direct parties for a civil court trial only because some questions of fact are disputed. It is not uncommon where statements or affidavits are denied in the replies and there exists a need for Courts to still examine in the face of express denials whether the assertions could be true or not. On the examination of documents produced before me, I am convinced that they represent the correct state of affairs and there had been representations prior to the incident pointing out to the Electricity Board CWP No.2905 of 2001 (O&M) [4] the dangerous installations.
III. Proof of dangerous installations brought through local Commissioner's report
4. Originally the petition had been dismissed summarily by this Court and in SLP, the Hon'ble Supreme Court, had directed that a Commissioner shall be appointed to examine whether the child had suffered the serious injuries by coming in contact with live electric wire by undertaking a personal inspection of the site and examining the correctness or otherwise of the assertions made in the writ petition. A direction for undertaking a site inspection through Commissioner also became necessary in view of the express denials by the Electricity Board that there was no such accident and if there was, it was not on account of coming in contact with any live wire as alleged in the petition.
5. This Court had directed the Executive Engineer, Electrical-cum- Commissioner, Punjab Agricultural University, Ludhiana as a Commissioner to inspect the site. A report has been filed that records the fact that he had visited the site on 16.12.2003, 18.12.2003 and 19.12.2003. The Commissioner has also recorded statements of several persons in the vicinity who has spoken about the accident resulting from the child coming in contact with the electric wire. They also reported about the fact that subsequent to the accident, the Electricity authorities had shifted the installation in such a way as to remove it by a further distance of 0.54 meter away from the original position. The Commissioner has also submitted a sketch describing the location of the house and the electrical installations which were running proximately to the building owned by the petitioner's father.
6. It is not denied that the electrical installations were there from the CWP No.2905 of 2001 (O&M) [5] year 1971. The contention from the respondent is that the petitioner's construction is unauthorized but apart from giving details that the purchase was made by the petitioner's father and the relatives in October, 1993 and that the respective vendors had purchased the property on 05.03.1981 and that they had been construction even from the year 1981, no attempt is made to show that any sanction had been obtained for the construction in the place where the building exists. I will not take this to be very serious as it is not a new construction. Admittedly the place of accident was a mixed zone where there was also permission for residential living as well as location of industries. As a matter of fact, at the ground floor, the petitioner's father has a factory and the residential accommodation is at the first floor. The contention on behalf of the Electricity Board is that the petitioner's father has extended the construction at the first floor unauthorizedly closer to the electric wire and has thus brought a situation of inviting a danger. A tortious claim for damages according to the counsel, will arise only in respect of breach of duty or want of negligence in a situation where the defendants had a duty towards the plaintiff which was breached by negligence on the part of the defendants. According to him, the Electricity Board would owes no duty to remove the installation far away from the construction which was illegally made. IV. Greater degree of care cast against persons installing or managing inherently dangerous installation; Duty to remove construction proximate to live wires
7. An electrical installation is so made that could cause danger to any member of the public. It is normally kept at a reasonable distance to ensure that there is no harm caused to any person or to any member of the public, who has a right to live in the property of which he is the owner or a person who is authorized to stay in the property. There are enough provisions under CWP No.2905 of 2001 (O&M) [6] the Electricity Act that allow for removal of any construction dangerous to the electrical installations and the police powers extend to even demolition and removal of existing construction. Section 18(3) of the Indian Electricity Act, 1910 allows the Electricity Board or its licensee to have the obstruction or interference to existing electrical installation at the instance of any person by electrocution or otherwise to be removed by Magistrate of the First Class, or in a Presidency town by the application of the licensee. Rule 29 of the Indian Electricity Rules, 1956 mandates that all electric supply lines and apparatus shall be constructed, installed, protected, worked and maintained in such a manner as to ensure safety of human beings, animals and property. The power of removal of constructions extends to even authorized construction but the only liability in case of necessity for removal of any such authorized construction would be that the Electricity Board would have to pay compensation and if there exists a dispute, the owner could invoke the mechanism provided under the Electricity Act of 1910, since repealed but which was in force at that time. It could thus be noticed that there is a need for Electricity Board to ensure that none of their installations pose a threat to any person of public.
8. Shri Gurcharan Dass, learned counsel appearing for the petitioner argued that as the accident was a direct result of inaction, negligence and violation of statutory rules by the respondent Board, petitioner is entitled for compensation. Referring to the provisions of Rules 29, 44 and 46 of the Indian Electricity Rules and the various provisions of the Electricity Act, 1910, it was submitted by Shri Dass, learned counsel for the petitioner that the respondent Board having failed to discharge its statutory duty in following the safety measures and procedure contemplated for maintenance of electric lines CWP No.2905 of 2001 (O&M) [7] and the poles, they are responsible for the accident and, therefore, compensation is liable to be paid. The Supreme Court has held in M.P. Electricity Board v. Shail Kumari (2002) 2 SCC 162 that "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. In Ramesh Singh Pawar v. M.P. Electricity Board and others, AIR 2005 MP 2, the Madhya Pradesh High Court referred through the relevant provisions of Electricity Act, 1910 to hold thus:
"Under the Indian Electricity Act, 1910, the Electricity Supply Act and Electricity Rule and in particular provisions of Rules 29, 44, 45 and 46 the Board is required to conduct periodical inspection of the lines maintained by them, Board is required to take all such safety measures to prevent such accident and maintain the lines in such a manner that life and property of the general public is protected. The Board is duty bound to carry out activities in such a manner that safety and security provisions are enforced in accordance with the statutory rules. In the present case except for making denials of the claim made by the petitioner, respondents/Board has not produced any document, affidavit or other material to indicate or establish that in the present case they had taken steps to prevent such a mishap."
9. In Manohar Lal Sobha Ram Gupta v. M.P. Electricity Board, 1975 ACJ 494, the High Court held that it was negligence to omit to use all CWP No.2905 of 2001 (O&M) [8] reasonable means to keep electricity from harming a person. The standard of care required was held to be high owing to the inherently dangerous nature of electricity and the burden of proving that there was no negligence was on the authorities. The principle was reiterated in Angoori Devi v. Municipal Corporation, Delhi, AIR 1998 Delhi 305 and in Padma Behari v. Orissa State Electricity Board, AIR 1992 Orissa 68 wherein it was held that the Electricity Board was guilty of negligence as due care and caution was not taken by it for maintenance of the electric wires...... no preventive action was taken to disconnect the power line even after the detachment of the live wire from the electric pole.
10. The Electricity Board was at all times apprised of the danger that was involved in the location of its electrical installation. A public authority owes a duty to the public that its act or installations are such that they do not cause any danger to life and property of its citizens. The onus is on respondents that even an unwary or a negligent child does not come to harm by their installations in a public place. Indeed the expression of a negligent child should itself be discarded, for a child is entitled to such act as it might indulge in when it has not the age of discretion. We apply the logic of negligence only in a situation where a person understands that there is a danger lurking in the corner and he does an act unmindful of such danger or invites upon himself through an act that could be dangerous. These aspects ought to be irrelevant for a child. The Electricity Board's duty of care shall extend to provide for safety mechanism that will dispel harm even for an act of child. Accidents do take place involving children and in all such situations, Courts have always leaned in favour of minor children to protect CWP No.2905 of 2001 (O&M) [9] their interests that are asserted on their behalf and look for proof to see whether the cause for harm could have been quelled by the person, who had control over the device which had contributed to the harm by exercise of adequate care. I would, therefore, hold that the Electricity Board was negligent by not responding to the prayers of the petitioner's father and the Mohalla Committee by not securing its installation free of the danger. Ultimately it so happened that the Electricity Board has relented and shifted to a distance of 0.54 meters after the accident.
11. The installations had been dangerous is brought through the report of the Engineer, which is reproduced as under:
"i) At present the High Tension Wire is running at a distance of 1.11 meter away from the end point of the residence of the petitioner whereas as per Indian Electricity Rules, 1956 its horizontal distance should be 1.2 meter away from the end point of the building (photo state copy of the rule is attached for reference).
ii) Again I visited the site on 19.12.2003 and summoned some of the neighbours so as to know and ascertain the actual facts of the incidents and recorded the written statements of S/Sh. Surjit Singh s/o Sh. Satnam Singh, Harbhajan Singh s/o Inder Singh, Satnam Singh s/o Parkash Singh, Bhupinder Singh s/o Bishan Singh and Satnam Singh s/o Bhagat Singh, President of Mohalla Sudhar Committee, Partap Nagar, Ludhiana. Their original statements are appended for ready reference.
1). The incident took place on 06.02.2000 on the 11 KVA CWP No.2905 of 2001 (O&M) [10] line crossing through Street No.1 of Partap Nagar, Ludhiana known as Sangeet Feeder.
2). I personally met the child, his left arm was amputated and finger of both the feet are also amputated which caused due to electrocution.
3). As per Indian Electricity Rules, 1956, the Horizontal clearance between the conductor and the nearest part of the building should be 1.2 meter for 11 KVA line whereas the original Horizontal distance of the conductor from the end of the building was originally 0.54 meter or 1'-9 ½" (if building chhajj of size 0.60 meter is excluded).
It was thus against the Electricity Rules, 1956.
4). In the writ petition the age of the child, who met with an accident has been indicated as 6-7 years. It, therefore, does not appeal how the child who is a small one had touched the 11 KVA conductor passing at a distance of 0.54 meter or 1'-9 ½" from the end part of the building.
There can be a possibility that the child might have touched the living wire by some other means."
12. Learned counsel appearing for the respondents still points out that the report in para 4 referred to above shows that the electric wire was passing at a distance about 1'-9 ½" and he could not have come in contact unless he had touch the wire by some other means. It does not detract from the issue that the installation was still dangerous. There might to be sufficient latitude for some amount of indiscretion by the child in holding out some object that could have earthed the electrical installation through the child. The finding, CWP No.2905 of 2001 (O&M) [11] therefore, shall be that the serious injury that was caused to the petitioner had arisen by the act of the Electricity Board which had been negligent in its conduct, in the manner referred to above.
V. Resort to public law remedy: Justification
13. There is adequate authority for the proposition of law that a public law remedy through writ petition is available by petition under Article 226 of the Constitution. To cite one from the Supreme Court and another from a decision of Division Bench of this Court in typical situations of victims of life electric wires, I reproduce the decisions cited by the counsel for the petitioner in "H.S.E.B. and others v. Ram Nath and others, 2005 ACJ 342 (SC)" where the remedy under Article 226 was held to be available for a claim against the Electricity Board. In yet another action before this Court in "Prem Chand and another v. Uttari Haryana Bijli Vitran Nigam Ltd., 2003 ACJ 1794" a Division Bench of this Court had come to the same conclusion. In that case the Court held that inaction of officials of the Electricity Board in not keeping the high tension wires to a safe height was held to be enough to establish negligence. I have held in this case that the negligence was to be inferred from the want of an appropriate action for the representations and also the failure of Electricity Board to secure its installation free of any misuse or harm by keeping safe distance to the existing structures or to cause the removal of the constructions that were proximate to the wires at the appropriate time.
VI. Quantum of compensation
14. The only issue that would survive for consideration is the quantum of compensation that could be awarded to the child. The petitioner has taken CWP No.2905 of 2001 (O&M) [12] treatment immediately but it has prolonged for quite some time. It has required not merely the physical amputation of the hand and the toes but it has also required surgical and cosmetic correction for the serious burn injuries that the child has suffered. The petitioner has filed a medical bill for `2,96,707/- of CMC hospital, Ludhiana and also certain other bills referring to purchase of medicines for `30,314/- and `30,094/- towards payment to one Dr. Afzal. There is also a certificate issued by the Doctor that the child had been admitted on 25.11.2000 and discharged on 10/12.00. Photographs have also been filed to show the extent of disfigurement of child. The counsel for the respondents states that these medical bills cannot be admitted without appropriate evidence. These medical bills total upto `3,57,015/-. For the nature of injuries which the petitioner has suffered even without the bills, it shall be possible to project the likely expenses that could have been incurred and I will not find the amounts secured through the bills are either exaggerated or artificial. I allow `3,60,000/- as medical expenses incurred. The extent of disability that is caused to the child by the loss of the arm from the shoulder and the loss of toes would constitute a 100% loss of his earning capacity as per the scale of assessment made under the Workmen Compensation Act. The Doctor has also certified that the injuries have resulted in 100% disability. The serious injuries have dimmed the prospects of frolic and felicity for a child and I would also estimate that loss of amenities of life for the child at `1,00,000/-. I would project an average income the he would have earned at `2,500/- and adopt a multiplier of 18 to find the loss of earning capacity for the petitioner at `5,40,000/-. I would provide for `50,000/- for pain and suffering and make a further provision of CWP No.2905 of 2001 (O&M) [13] `1,00,000/- for loss of amenities of life. In all, the total amount of compensation shall be `10,50,000/-. This amount shall attract interest @ 6% from the date of petition till date of payment. The liability shall be on the respondents in the light of the observations made above.
15. The writ petition is allowed on the above terms.
JULY 12, 2011 ( K. KANNAN ) Rajan JUDGE