Gauhati High Court
Smt. S.K. Shangring Lamkang And Anr. vs State Of Manipur And Ors. on 16 November, 2007
Equivalent citations: AIR2008GAU46, 2008(1)GLT32, AIR 2008 GAUHATI 46, 2008 (3) AIR KAR R 389, 2008 A I H C (NOC) 315 (GAU), (2008) 3 GAU LR 137, (2008) 1 GAU LT 32
ORDER Maibam B.K. Singh, J.
1. Heard Mr. Aleng Vashum, learned Counsel appearing on behalf of the petitioners and Md. Jalal-Uddin, learned Addl. Govt. Advocate appearing on behalf of Government respondents.
2. This writ petition has been filed praying for directing the respondents to pay a compensation of Rs. 8 lakhs to each of the two petitioners in respect of the death of their respective husbands due to the electrocution on 22-4-2002 at about 1.15 p.m. caused by a falling of a high tension electric line from its pole while they were proceeding riding a scooter and approaching Khongjon village. The name of the deceased husband of petitioner No. 2 Is said to be S.K. Thamnok Lamkang. According to the petitioner, a U.D. Case No. 1/2002 was also registered in connection with the said occurrence. Further according to the petitioners, the electric line was broken and detached from its pole as it was very old and It was not also repaired despite request made by one R.D. Kowar Anal, Chairman, Chief Area Association of Sulam Chandel on 18-4-2002 to respondent No. 3 for repairing the electric post as well as about the weakness of the electric wire between Khongjon village and Bongku village. The, case of the petitioners Is to the effect that had the respondents taken appropriate steps in respect of the electric post and the wire, the said falling of the wire would not have taken place leading to the said electrocution resulting into the death of the two persons.
3. There is no dispute that the said two persons died due to electrocution on 22-4-2002 at about 1.15 p.m. caused by a falling of a high tension electric line from its pole while they were proceeding riding a scooter towards Khongjon village. The respondents also admitted about the registration of a U.D. Case No. 1/2002 at Chandel Police Station. According to the respondents, the fall of the electric wire was due to the lightning stroke resulting breaking of a tension disc Insulator and not due to negligence of any of the respondents. Further, according to the respondents, no one complained to respondent No. 3 for repairing the electric post and also about the weakness of electric wiring at or near the place of occurrence. It Is the case of the respondents that since there are disputed questions of fact in the case in respect of the question of negligence, it will not be proper on the part of this" Court to award any compensation in exercise of its power under Article 226 of the Constitution of India. In support of their case, the respondents cited the decision of the Apex Court made In Chairman, Grid Corporation of Orissa Ltd. v. Sukamani Das .
4. In S.D.O. Grid Corporation of Orissa Ltd. v. Timudu Oram , the Apex Court considered the question if the High Court was justified in exercising its power under Article 226 of the Constitution of India and awarding compensation to the writ petitioner even though the appellants who were the respondents in the writ petition had denied the liability on the ground that the death had not occurred as a result of their negligence but because of negligence of the writ petitioner or an act of God or because of an act of some other persons Relying to its earlier decision made in Chairman, Grid Corporation of Orissa Ltd. (supra), the Hon'ble Supreme Court held to the effect that the High Court was not justified in exercising its power under Article 226 of the Constitution of India. In the opinion of the Hon'ble Supreme Court, since the appellants had disputed the negligence attributed to it and since no finding was recorded by the High Court that the Grid Corporation was in any way negligent in the performance of its duty, on the basis of the decision made in Chairman, Grid Corporation of Orissa Ltd. (supra), the High Court was not justified in awarding compensatiou in exercise of its power under Article 226 of the Constitution. It is however, to be noted that in S.D.O. Grid Corporation of Orissa Ltd. (supra), no consideration was made regarding the applicability or otherwise of the rule of strict liability in a case of death due to electrocution.
5. The above said decision in Chairman, Grid Corporation of Orissa Ltd. (supra), was explained and limited by the Hon'ble Supreme Court in T.N. Electricity Board v. Sumathi . At paragraph 10 of the later case, it was held that:
In view of the clear proposition of law laid by this Court in Sukumani Das case when a disputed question of fact arises and there is clear denial of any tortuous 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 tortuous 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 to life is one of the basic human rights guaranteed under Article 226 of the Constitution.
Thereafter, the Hon'ble Supreme Court, referred to U.P. State Co-op. Land Development Bank Ltd. v. Chandrabhan Dubey and quoted paragraphs 27 of the said decision.
6. Further in Parvati Devi v. Commissioner of Police, Delhi , the Hon'ble Supreme Court held that once the fact of death by electrocution while walking on road is established authorities concerned (NDMC in the case) must be held to be negligent and thus responsible for the death in the said case, the Hon'ble Supreme Court directed NDMC to pay compensation of Rs. 1 lakh to the legal heir of the victim. In the above said case, though the Hon'ble Supreme Court did not consider the maxim of res ipsa loquitor, apparently, it was applied while concluding that NDMC was negligent in the facts and circumstance of the case. It is to be noted that as a rule mere proof that an accident has occurred, the cause of which is unknown is not evidence of negligence but the peculiar circumstances constituting the accident in a particular case may themselves proclaim in clear and unambiguous voice the negligence of somebody as the cause of the accident. It is to such cases that the maxim res ipsa loquitur may apply.
7. In M.P. Electricity Board v. Shail Kumari the Hon'ble Supreme Court held the State Electricity Board liable to pay compensation in connection with the death of a person due to electrocution on the principle of strict liability. In the said case, the live wire snapped and fell on the public road which was partially inundated with rain water. Not noticing that wire, a cyclist while returning home at night rode over the wire which twitched and snatched him and he was instantaneously electrocuted. The claim for damages made by the dependants of the deceased was resisted by the appellant State Electricity Board on the ground that the electrocution was due to a clandestine pilferage committed by a stranger unauthorisedly siphoning the energy from the supply line. The High Court directed the Board to pay compensation of Rs. 4.34 lakhs to the claimants. While dealing with the appeal filed against the Chairman against the decision of the High Court, the Hon'ble Supreme Court held at paragraphs 7 and 8 as follows:
7. It is admitted fact that the responsibility to supply electric energy in a particular locality was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human being who gets unwillingly trapped into it, the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension, the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is not defence on the part of the management of the Board that somebody committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is the look but of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road, the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duties to chalk out measures to prevent such mishaps.
8. 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 persons 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 defence 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 defence is held liable irrespective of whether he could have avoided the particular harm by taking precautions.
8. After noting about following the rule of strict liability in India in many earlier decisions the Hon'ble Supreme Court applied the said rule of strict liability and dismissed the appeal. The Board made an attempt to rely on the exception to the said rule of strict liability being "an act of stranger", the Hon'ble Supreme Court held that the said exception was not available to the Board. The Hon'ble Supreme Court referred to the decision of Privy Council in Quebec Rly. Light, Heat, Power Co. Ltd. v. Vandry 1920 SC 662 wherein the Privy Council held that the Co. supplying electricity is liable for the damages without proof that they had been negligent. Even the defence that the cables were disrupted on account of violent wind and high tension current found its way through the low tension cable into the premises of the respondent was held to be not a justifiable defence. In the opinion of the Hon'ble Supreme Court, merely because the illegal act could be attributed to a stranger is not enough to absolved the liability of the Board regarding the live wire lying on the road. Though the above said case before the Hon'ble Supreme Court arose out of a civil suit, the law laid down therein regarding strict liability of the State Electricity Board in case of live wire getting snapped and falling on the public road is relevant in a writ proceeding also. I do not find any appreciable reason as to why the said law should not be applicable in the writ proceeding.
9. In my considered opinion, the possibility of falling of high tension electric line from its pole as a result of storm or lightning should have been reasonably anticipated by the respondents and as such appropriate steps should have been taken by them so that no harm was caused when someone touched the fallen electric line. The risk involved in the management of supply of electricity was very great and a high degree care was expected of the respondents Inasmuch as they ought to have appreciated the possibility of falling of the electric line from its pole as a result of storm or lightning. Apart from the said consideration, since the management of supply of electricity is a hazardous or inherently dangerous activity, when harm is caused to any one on account of any cause in the operation of the activity, the respondent, who are responsible in respect of the said activity, shall be strictly and absolutely liable to compensate to those who are harmed in the course of, operation of the said activity. Such liability is not to be subject to any exception to the principle of strict liability under the rule in Ryland v. Fletcher. Accordingly, the respondents are liable to pay compensation in respect of the death of the said two persons resulting from electrocution.
10. It is to be noted that the question of strict liability was never considered in Chairman, Grid Corporation of Orissa Ltd. (supra) and S.D.O. Grid Corporation of Orissa Ltd. (supra).
11. In the light of the above discussions, the respondents shall be liable to pay compensation for the death of two persons resulting from the electrocution. In the absence of sufficient materials before this Court. It is not possible to determine, if the petitioners are entitled to a sum of Rs. 8 lakhs each in respect of the death of their respective husbands or not. However, in my opinion in exercise of power under Article 226 of the Constitution of India it will be proper and just for this Court to award a reasonable sum as compensation to each of the petitioners in respect of the death of their respective husbands.
12. Having regards to all the relevant considerations, the respondents shall pay a sum of Rs. 2 lakhs to each of the petitioners in respect of the death of their respective husbands due to electrocution. The said payment is to be made within a period of 3 (three) months from today. Award of this compensation will not, however, affect the right of the petitioners or any other heir of the deceased to resort to such other remedies as may be available to them in law on account of the said death due to electrocution except that the amount awarded herein shall be taken into consideration for adjustment in the event of any other proceeding taken by any such heir for compensation on the sjime ground.
With this, this writ petition stand disposed of.