Madras High Court
Duraisamy vs The Executive Engineer on 8 June, 2012
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 08.06.2012
Coram
THE HONOURABLE MR. JUSTICE S.MANIKUMAR
Writ Petition No.31744 of 2002
Duraisamy .. Petitioner
VS.
1. The Executive Engineer,
Operation & Maintenance,
Thuriayur Post,
Trichy District.
2. The Chairman,
Tamil Nadu Electricity Board,
Annasalai, Chennai.
3. Palani
4. Subbiya .. Respondents
Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Mandamus, directing the respondents to pay the compensation of Rs.5,00,000/- for the death of the petitioner's son.
For petitioner : Mr.M.Sridhar
for Mr.S.Muthukrishnan
For respondents 1 & 2 : Mr.P.Gunaraj
O R D E R
The petitioner, who has lost his son, due to electrocution in an agricultural field, has sought for a Mandamus, directing the respondents to pay the compensation of Rs.5,00,000/- for the death of his son.
2. According to him, their family members were agricultural labourers. Due to old age, he could not work and their family was solely depending on his son's income. That on 21.12.2001, his son, Thiru.Thaganapandian, went out to pasture goats at the foot of the Hill. In the Evening, he went to the foot of the hill in search of the missing goats and at that time, he contacted with a live electric fencing laid by respondents 3 and 4, in their lands and died on the spot, due to electrocution. But the respondents 3 and 4 have removed his body and placed it, half a kilometer away from the spot. The Sub-Inspector of Police has registered a case in Cr.No.330 of 2001, against respondents 3 and 4 for the offences under Sections 304A and 201 IPC. As per the Post-Mortem Certificate, the death of the petitioner's son was reported due to electrocution, when he contacted the live electric fencing.
3. The petitioner has further submitted that the death was due to improper supervision of respondents 1 and 2 and that they were also aware of the fact that respondents 3 and 4 have illegally taken electricity from the main line, for fencing their field. According to him, if respondents 1 and 2 have taken proper steps against respondents 3 and 4 for the illegal use of electricity, for fencing the agricultural field, death would have not occurred. He has further submitted that his son was unmarried and that his family was solely dependant on him. He was aged 25 years, a shepherd and earned Rs.2,500/- per month.
4. Placing reliance on the judgments of this Court in K.Samikkannu v. Union of India reported in 1997 (I) CTC 275, D.Matsa Gandhi v. Tamil Nadu Slum Clearence Board reported in 2000 (III) CTC 24, M.P.Electricity Board v. Shail Kumari reported in 2002 (I) CTC 362, K.Sundari v. The State of Tamil Nadu [W.P.No.19668 of 1999, dated 15.04.2009] and Ponnu Sankan v. State of Tamil Nadu reported in 2011 (3) CTC 740, learned counsel for the petitioner submitted that it is the duty of the Tamil Nadu Electricity Board to inspect, as to whether, the supply given to the agriculturists, is used properly or not and since the Field Officer is responsible for the day to day usage and maintenance of electric line, they cannot plead ignorance of the power supply given for fencing of the agricultural land, owned by respondents 3 and 4 and in such circumstances, when the Post-Mortem Certificate clearly indicates that the death was due to electrocution, respondents 1 and 2 are also liable to pay compensation. According to him, negligence of the employees of the respondents 1 and 2 is per se evident and therefore, the claim made against them is maintainable. As regards the cause of death and the illegal activity of respondents 3 & 4, he also drew the attention of this Court to the contents in the letter, dated 05.01.2002 of the Panchayat President, Nakasalem Muncipality, Alathur Taluk, Perambular District addressed to Executive Engineer, O & M, Tamil Nadu Electricity Board, Thuraiyur and also to the letter, dated 25.12.2001 of the Assistant Executive Engineer (O & M/North), Tamil Nadu Electricity Board, Thuraiyur addressed to the Inspector of Police, Padalur.
5. On the basis of the counter affidavit and additional counter affidavit, Mr.Gunaraj, learned counsel for respondents 1 and 2 submitted that respondents 1 and 2 are not responsible for the death of petitioner's son and that therefore, they are not liable to pay any compensation. He further submitted that the Board is responsible for maintaining the main line only and that too, for the main supply post of the TNEB and that they are not aware or responsible for the electrical fencing put up by respondents 3 and 4. He also submitted that FIR in Cr.No.330 of 2001, under Sections 304 A and 201 IPC has been registered only against respondents 3 and 4 and even the said FIR had been closed on 24.11.2011, under Section 468(2) Cr.P.C.
6. He denied the contention that the employees of respondents 1 and 2 have given permission to respondents 3 and 4 to put up electric fencing in their agricultural field nor they were negligent. He also denied the contention regarding improper supervision on the part of respondents 1 and 2 and further submitted that there are many agricultural fields, in which, service connections have been provided and that it may not be possible for the Field workers to inspect all the agricultural fields and find out, as to whether, there is any illegal tapping.
7. He also added that only in the case of any specific complaint or during Meter reading or random inspection, irregularities could be noticed and considering the large number of agricultural service connections and the vast area, in each division, it would not be possible to check any illegal tapping or drawing any power supply for fencing the agricultural fields. Inviting the attention of this Court to the letter, dated 05.01.2002, he submitted that respondents 3 and 4 alone were responsible for the death of petitioner's son and in the absence of any direct evidence, respondents 1 and 2 cannot be roped in, solely for the purpose of claiming compensation.
8. According to the learned counsel for respondents 1 and 2, the liability of respondents 1 and 2 is disputed on facts and in such circumstances, placing reliance on a decision of the Supreme Court in Chairman, Grid Corporation of Orissa Ltd., v. Sukamani Das reported in 1999 (7) SCC 298, Tamil Nadu Electricity Board v. Sumathi reported in 2000 (4) SCC 543 and The Chairman, Tamil Nadu Electricity Board v. Parvathi Ammal reported in 2003 (4) CTC 517, he submitted that if there is a dispute question of fact and when there is no direct evidence, connecting negligence or any irregularity on the part of respondents 1 and 2, the writ petition is not maintainable against them and for the reasons stated supra, he prayed for dismissal against the official respondents.
9. Respondents 3 and 4 have not filed any counter affidavit. However, taking this Court through the contents of Post-Mortem Certificate, dated 25.12.2001, learned counsel for respondents 3 and 4 submitted that apart from the charred wounds noticed on the body of the deceased, there were other injuries also and that the body has been found half a furlong away from the agricultural field, owned by them and in such circumstances, there cannot be any finding, rendered in this proceedings, as to how the death had occurred. He also submitted that even the criminal case registered in Cr.No.330 of 2001 has been closed by the Police. According to him, if the death has occurred due to negligence or any illegal act on the part of respondents 3 and 4, the same has to be proved by adducing oral and documentary evidence, before a Civil Court of competent jurisdiction and that liability cannot be fixed on the basis of mere pleadings in a writ petition. For the abovesaid reasons, he denied the liability of respondents 3 and 4 to pay compensation.
10. Heard the learned counsel for the parties and perused the materials available on record.
11. FIR in Cr.No.330 of 2001, has been given by Mrs.Silambuselvi, Village Administrative Officer, Nakasalem Village, in person to the Sub-Inspector of Police, Padalur Police Station. According to her, body of the deceased was found near the agricultural field of one Palani, S/o.Chikena Gounder, Nakasalem Village. The deceased was working under one Karuppannan. That on 31.12.2001 evening, the deceased had gone out in search of some missing goats and that when he had come in contact with electricity, due to live electric fencing of the agricultural fields, owned by respondents 3 and 4, he died due to electrocution. On the basis of her complaint, the Sub-Inspector of Police has registered a case in Cr.No.330 of 2001 under Sections 304 A and 201 IPC on 23.12.2001 at 16.00 Hours, against respondents 3 and 4.
12. Perusal of the letter, dated 25.12.2001 of the Assistant Executive Engineer (O & M North), Tamil Nadu Electricity Board, addressed to the Inspector of Police, Padalur, shows that he had received a telegram from the brother of the deceased on 24.12.2001 and thereafter, on 25.12.2001, he had enquired the President, Nakasalem Panchayat and other persons in the Village. On enquiry, he came to know that electricity service connection stood in the name of one Mrs.Arakani, W/o.Subbiah in Electricity Service No.663 for the lines in Survey No.204/5. In the said letter, he has also stated in order to protect the crops from pigs, electric fencing had been put up and that the deceased had come in contact with the same on 21.12.2001. Letter, dated 05.01.2002 of Mr.Velusamy, President of Nakasalem Panchayat, addressed to the Executive Engineer/O & M, T.N.E.B., Thuraiyur, is also on the same lines, as narrated in the complaint lodged by the Village Administrative Officer, Nakasalem Village, in person to the Sub-Inspector of Police, Padalur Police Station. Letter, dated 25.12.2001 of the Assistant Executive Engineer (O & M North), Tamil Nadu Electricity Board, addressed to the Inspector of Police, Padalur, is to the effect that the respondents 3 and 4 have taken electricity illegally to connect it to the fence, to prevent the crops from the pigs.
13. Though the learned counsel for the respondents 3 and 4 have submitted that there is some doubt over the death of petitioner's son on the grounds that there were some other injuries, apart from charred wounds and that the body of the deceased was found at a considerable distance, away the agricultural fields, owned by them, considering the evidence available on record, particularly, Post-Mortem Certificate, which indicates that the deceased would appear to have died of electric shock and the injuries, about 72-90 hours, prior to autopsy conducted by the surgeon, this Court is of the view that when the medical report is duly supported by the statements of the Village Administrative Officer, Nakasalem Village and the President of Nakasalem Panchayat, there cannot be any difficulty in arriving at the conclusion, regarding the cause of death.
14. The facts pleaded in the supporting documents and the materials produced before this Court in the form of typed set of papers, contents of which, set out in the foregoing paragraphs, have not been disputed by respondents 3 and 4, by filing any counter affidavit. Whereas, arguments have been advanced, disputing the cause of death and the consequential liability of the respondents 3 and 4 to pay compensation. As regards the contentions of the respondents 3 and 4 that the facts pleaded in the supporting affidavit to the writ petition, have to be proved before a Civil Court of competent jurisdiction, in the matter of claim for compensation, there is no hard and fast rule that in all the cases, relating to a claim for compensation due to electrocution, the Civil Court is the only forum to seek for compensation.
15. On the basis of material on record, as this Court, has arrived at the conclusion regarding cause of death, the next question remains to be considered, is whether, Electricity connection was given to the fencing put up by respondents 3 and 4 to prevent the damage to the agricultural crops, which was the cause for electrocution. Here again, it could be seen from the letter, dated 25.12.2001 of the Assistant Executive Engineer (O & M North), Tamil Nadu Electricity Board, addressed to the Inspector of Police, Padalur, the letter, dated 05.01.2002 of Mr.Velusamy, President of Nakasalem Panchayat, addressed to the Executive Engineer/O & M, T.N.E.B., Thuraiyur and contents of the Police complaint, it is evident that respondents 3 and 4 have drawn a live wire, connected the same to the agricultural fence to prevent crops from damage caused by pigs.
16. The statement and the contents of the letters have also not been denied by the private respondents 3 and 4, by filing any counter affidavit. Whereas, the official respondents have filed a counter and additional counter affidavit, denying the allegation of negligence and collusion on the part of the employees of the respondents 1 and 2, with the private respondents 3 and 4, in connecting a live wire to the fence. No concrete materials have been placed before this Court to prove connivance between the officials of respondents 1 and 2 and private respondents 3 and 4. Allegations of negligence by the employees of respondents 1 and 2 made for the purpose of vicarious liability, have not been established. As rightly pointed out by the learned counsel for the Electricity Board, any mal-practice done by the respondents 3 and 4, can be noticed only during inspection. Considering the vast extent of land covered under the agricultural service scheme in the villages in the State of Tamil Nadu, it may not be possible for the Field Officers of the Electricity Board to frequently visit the villages and check the agricultural service connections. Even assuming that the Service Connections are being checked periodically, it is always possible for an agriculturist to connect a live wire to the fencing, during night time, to prevent any miscreants from entering into the agricultural land and to prevent animals from damaging the crops. If any such illegal act is done by an agriculturist during night time, it may not be possible for the field staff to notice the same and take appropriate action, unless somebody brings it to the notice of the officials.
17. Let me now consider the decisions relied on by the learned counsel appearing for both the parties. In K.Samikkannu v. Union of India reported in 1997 (I) CTC 275, a 13 year old student, who went to a mining operation site to have a look at a giant excavator, was trapped in a landslide, resulting in death. Death was due to negligence of Neyveli Lignite Corporation in not taking preventive steps from entering into mining site. Petitioner therein has claimed compensation in a writ petition. The same was opposed on the ground that entering into the mining area was restricted only to authorised persons, who were holding valid passes issued by the Manager/Mines under the Mines Act. It was further submitted that at the entry point to the mining area from the public road, clear notice boards have been displayed, stating that it was a prohibited area for the public. It was also submitted that a peripheral canal was dug right round the mining area, acting as a barricade and that canal was about 6 metres wide and 3 metres deep and that therefore, sufficient safeguards were provided and that the public were also cautioned. In the abovesaid circumstances, it was contended on behalf of Neyveli Lignite Corporation that the Writ Court has no jurisdiction to go into the disputed questions of fact. On the above rival contentions and considering the decisions in M.C.Mehta v. Union of India reported in 1987 (1) SCC 395, Union Carbide Corporation v. Union of India and others reported in 1989 (III) SCC 38, Kumari v. State of Tamil Nadu and others reported in 1992 (II) SCC 223 and Xavier v. State of Tamil Nadu and others reported in 1994 WLR 373, this Court in K.Samikkannu's case, held that the High Court in exercise of writ jurisdiction has got powers to award compensation for loss of life due to negligence and carelessness in not cautioning public about the imminent danger to life, who visited the dangerous zone and not providing security, in the danger zone. After considering the aspect of negligence and the question, as to whether the respondents therein had taken any preventive measures to prevent any untoward incident, this Court further held that Neyveli Lignite Corporation alone was negligent and at the time of death, the deceased was aged about 13 years and there was no question of applying contributory negligence against a minor.
18. In Chairman, Grid Corporation of Orissa Ltd., v. Sukamani Das reported in 1999 (7) SCC 298, compensation was claimed for the death of the petitioner's husband therein, who had come in contact with a live wire, which had been lying on the road, after getting snapped from a overhead electric line, because of negligence of the Grid Corporation and its employees. Grid Corporation defended the claim, contending inter alia, that the wire got snapped because of thunderbolt and lightning and immediately after that, power was disconnected. The High Court granted compensation. On appeal, having regard to the nature of defence taken by Grid Corporation and the disputed facts, at Paragraph 6, the Supreme Court held as follows:
.....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 admittedly/prima facie amounted to negligence on the part of the appellants. 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 the Appellant 1 had snapped and the deceased had come in contact with it and had died was not 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 defences 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 the 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.
19. In D.Matsa Gandhi v. Tamil Nadu Slum Clearance Board reported in 2000 (III) CTC 24, compensation was claimed by the petitioner from Tamil Nadu Slum Clearence Board for the death of her daughter, who fell into a Well. According to the petitioner, water from the Well was drawn through a hole on a concrete slab covering the well. Due to rain, slab was wet and when the petitioner's daughter was drawing water from the well, she slipped and fell into the Well. According to the petitioner therein, though several representations were made by the residents of the Colony, through Welfare Associations, to the respondents and their subordinates to provide water from overhead tanks and also to ensure safety of the Wells, in the Colony, it was not done and that therefore, there was a failure in taking proper care and safety. The claim was opposed by Tamil Nadu Slum Clearance Board, stating that water was provided to the tenements through six water tanks. It was also alleged that the accident was purely due to negligence and carelessness of the deceased and that the manholes provided in the Wells were meant for cleaning and repairing suction pipes. Adverting to the issue, as to whether the Slum Clearance Board had failed to maintain the Wells in proper condition, which resulted in the death of petitioner's daughter and taking note of the judgments in Nath Bros., Exaim International Ltd., v. Best Roadways Ltd., reported in 2000 (4) SCC 553 and Parvati Devi and others v. Commissioner of Police, Delhi and others reported in 2000 (3) SCC 754, wherein, the Supreme Court has awarded compensation of Rs.1 lakh to the legal heirs, in respect of death, which occurred on account of electrocution, while walking on the road, this Court in D.Matsa Gandhi's case, was inclined to accept the contention of the petitioner therein, holding that a writ petition is maintainable and accordingly, awarded compensation under Article 226 of the Constitution of India, finding that when negligence was per se visible and when there was infringement of Article 21, relief can be granted.
20. In Tamil Nadu Electricity Board v. Sumathi reported in 2000 (4) SCC 543, legal representatives of the deceased, who died due to electrocution, filed writ petitions before the High Court, under Article 226, claiming compensation, contending inter alia that electrocution was due to improper maintenance of the electric wires or equipments by the Tamil Nadu Electricity Board. This Court appointed an Arbitrator to decide the question of compensation. Pending compensation, interim compensation has also been granted. The Arbitrator gave his awards, which were made as rule of Court, after considering the objections and the High Court also examined the evidence recorded by the Arbitrator. Aggrieved by the same, the Board filed an appeal to the Supreme Court, wherein, it was contended that the High Court erred in creating a new jurisdiction to deal with the alleged negligence on the part of the appellant-Board and that the High Court also erred in appointing a forum in the adjudication of dispute. On behalf of the claimants, it was contended that as the result of negligence on the part of the Board, a Public Authority, right to life of the respondents under Article 21 had been violated and that therefore, the High Court has every jurisdiction to award compensation under Article 226 of the Constitution of India. On the aspect of appointing of Arbitrator, it was contended by the claimants that both the parties had consented to arbitration and that therefore, the High Court passed an award, only after examining the arbitration proceedings. On the above pleadings and submissions, the Supreme Court, held as follows:
There is no provision in the new Act for referring the matter to arbitrator by intervention of the Court. However, if during the pendency of the proceedings in the court parties have entered into an arbitration agreement then they have to proceed in accordance with the provisions of the new Act and when award is made it is a decree and it cannot be filed in the High Court and it has to be filed in the court as defined in clause (e) of Section 2 of the new Act for its enforcement as a decree under Section 36 of the new Act. If there is challenge to the award recourse has to be under Section 34 of the new Act.
It is true that 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 of life is one of the basic human rights guaranteed under Article 21 of the Constitution.
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.
Since disputed questions of facts arose in the present appeals the High Court should not have entertained writ petitions under Article 226 of the Constitution and then referred the matter to arbitration in violation of the provisions of the new Act. There was no arbitration agreement within the meaning of Section 7 of the new Act. Under the new Act award can be enforced as if it is a decree of a court and yet the High Court passed a decree in terms of the award which is not warranted by the provisions of the new Act.
21. In M.P.Electricity Board v. Shail Kumari reported in 2002 (I) CTC 362, a workman was riding his bicycle and while returning home, at night, from the factory, got electrocuted, because of a live electric wire lying on the road, which was inundated by rain water and died instantaneously. The dependants filed a suit, claiming compensation. The Board contended that the consumer had unauthorisedly taken a live wire from the main supply line in order to siphon electric energy for his own use and such an act of pilferage done clandestinely had led to the electrocution and therefore, the Electricity Board was not liable. Pilferage of electric energy was also disowned by the consumer concerned. The trial Court agreed with the Board. On appeal, the High Court disagreed and directed the Board to pay compensation. Testing the correctness of the same, the Board preferred an appeal to the Supreme Court. On the aspect of responsibility of the Board to supply electric energy, duty of the Board to take all safety measures to prevent pilferage or snapping of live wire, by installing necessary devices and electrocution from such divided lines, resulting in loss of human life, the Supreme Court, at Paragraphs 7 to 9, held as follows:
7. It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human being, who gets unknowingly 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 no 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 out 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 duty 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 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.
9. The doctrine of strict liability has its origin in English Common Law when it was propounded in the celebrated case of Rylands v. Fletcher (1868 Law Reports (3) HL 330). Blackburn J., the author of the said rule had observed thus in the said decision:
"The rule of law is that the person who, for his own purpose, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does so he is prima facie answerable for all the damage which is the natural consequence of its escape."
22. In the above reported judgment, though there was an allegation of pilferage, the undisputed fact was that death occurred due to electrocution on account of contact with a live wire, on a public road. Doctrine of strict liability has been applied in the above case, where there was a foreseeable risk in the nature of activity. In the opinion of this Court, the same yardstrick may not be applicable to the facts of this case for the reason that even the risk of snapping a wire for providing electric supply to fence an agricultural land in the night time, cannot even be ordinarily foreseen, as done in the case of a diversion of power supply by a consumer or an outsider in a residential or commercial area, for any other purpose, other the one, for which, the supply is given. Agricultural lands in the villages are located far away from the place of inhabitation. Such action by an agriculturist, in the opinion of this Court, in normal circumstances, could not even be anticipated by the Board and prevention of tapping electricity during night time in agricultural fields, located in vast areas, is remote.
23. In M.P.Electricity Board's case (cited supra), the Supreme Court has applied the doctrine of strict liability, following the earlier judgment of the Supreme Court in M.C.Mehta v. Union of India reported in 1987 (1) SCC 395, wherein, the Apex Court held that, where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands v. Fletcher."
24. In M.P.Electricity Board's case, reliance made by the Board in Rylands v. Fletcher reported in 1868 (3) LR HL 330, being an act of stranger, has also been rejected by the Supreme Court on the ground that the said exception is not available to the Board as the act attributed to the third respondent therein, should reasonably have been anticipated or at any rate its consequences should have been prevented by the Board.
25. The Supreme Court in M.P.Electricity Board's case, also relied on a judgment in Quebec Railway, Light Heat and Power Company Ltd., v. Vandry and others reported in 1920 LR AC 6621, wherein, The Privy Council observed that the company supplying electricity is liable for the damage without proof that they had been negligent. Even the defence that the cables were disrupted on account of a violent wind and high tension current found its way through the low tension cable into the premises of the respondents was held to be not a justifiable defence. Thus, merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding the live wire lying on the road.
26. The Supreme Court also distinguished the case in W.B.State Electricity Board v. Sachin Banerjee reported in 1999 (9) SCC 21, on the ground that the question of strict liability was not considered in the reported judgment, though the defence of the Electricity Board was that electric lines were illegally hooked for pilferage purposes.
27. In K.Sundari v. The State of Tamil Nadu [W.P.No.19668 of 1999, dated 15.04.2009], while the petitioner's husband therein was returning to his house, on his way, he came in contact with a hanging live wire and died due to electrocution. The department gave a police complaint. The opinion of the Doctor, as per the Post-Mortem Certificate was death due to electrocution. Compensation was claimed under Article 226 of the Constitution of India. Reliance was also placed in M.P.Electricity Board v. Shail Kumari reported in 2002 (I) CTC 362, H.S.E.B., and others v. Ram Nath and others reported in 2004 (5) SCC 793, Richard Suares v. Government of Tamil Nadu [W.P.No.34905 of 2002, dated 05.01.2005] and Lilly Stanislaus v. Chairman, T.N.E.B., Chennai and others reported in 2008 (3) MLJ 160. Per contra, in the reported case, the learned counsel for the Board has contended that the writ petition is not maintainable on the ground that it was a case, involving disputed questions of fact. It has also been contended that it is the burden of the petitioner therein to prove negligence on the part of the Board officials. Reliance has been placed on a decision in SDO, Grid Corporation of Orissa Limited v. Timudu Oram reported in 2005 (6) SCC 156. Rule 91 of the Indian Electricity Rules, 1956, which enjoins a duty on the part of the Electricity Board officials to protect every overhead line, has been considered for the purpose of arriving at the conclusion of negligence and infringement of Article 21, empowering the High Court under Article 226 of the Constitution of India to award compensation. Perusal of the above unreported decision also shows that the facts pleaded for claiming compensation has been considered in the light of the statutory provisions, which cast a duty on the Board officials to protect the overhead line and that there was a failure.
28. In Ponnu Sankan v. State of Tamil Nadu reported in 2011 (3) CTC 740, a Mandamus has been sought for to pay compensation for the death of the petitioner's mother, who died due to electrocution, as the overhead line snapped and fell on her neck. The Electricity Board disputed negligence and defended by contending that the Board had been maintaining the electric line very regularly. It has been further contended that a political party has erected a flex bord in the bus stand area and that due to heavy wind, the said advertisement board/flex board suddenly fell on the Electricity Board lines, passing through the said street. Referring to Section 68 of the Electricity Act, 2003 and Rule 91 of the Indian Electricity Rules, 1956, which relates to maintenance of overhead lines, this Court held that the negligence of the Electricity Board was writ large and that they cannot put the blame on the political party, who had erected a flex board near the line. This Court has also held that the Board had not taken any action to remove the Flex Board.
29. The decisions in Chairman, Grid Corporation of Orissa Ltd., v. Sukamani Das reported in 1999 (7) SCC 298, D.Matsa Gandhi v. Tamil Nadu Slum Clearance Board reported in 2000 (III) CTC 24 and Ponnu Sankan v. State of Tamil Nadu reported in 2011 (3) CTC 740, relate to snapping of electrical overhead wires, where safety and protection have not taken care of by the Board officials and that the negligence of the Electricity Board was writ large. In M.P.Electricity Board's case, the Supreme Court applied the Doctrine of strict liability, eventhough the Board defended the claim on the ground that the third respondent therein had taken the wire on the main supply line for his own use and that the said act of pilferage was done clandestinely, the line got unfastened from the hook and it fell on the road, over which, the cyclist came in contact, resulting in instantaneous electrocution. The accident has occurred on a road, where water was stagnated. Here again, it could be noticed that by observing that the Board has got a duty to take all safety measures or snapping of live wire by installing devices, the Apex Court applied the Doctrine of strict liability. The decision made in K.Sundari v. The State of Tamil Nadu [W.P.No.19668 of 1999, dated 15.04.2009], is a case of snapping of overhead wire, where the Board was found to be negligent.
30. A person is not liable in negligence, unless the affected person proves that the former had failed to take reasonable care. Unless the Electricity Board was negligent in taking adequate safeguards, or obligated under the statutory provisions, no liability in tort would arise from acts done by pilferators of electricity in the interior parts of the villages, during night time, which would ordinarily escape the notice of the board officials, and when Board officials act in good faith, reasonably, without negligence, the board cannot be fastened with a liability to pay compensation to an accident victim. If compensation has to be paid, on the facts of this case, i.e., where electricity is provided for agricultural purposes, then, the same yardstick can even be applied to a domestic supplier also, in the case of negligence or tort by the consumer and if the accident occurs inside any house.
31. Negligence is a specific tort and in any given circumstances, the failure to exercise that care which the circumstances demand, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The aggrieved must prove that in a given set of circumstances, there is a duty to take care and that the board officials breached such duty. In order to succeed in an action for damages for breach, the aggrieved must establish breach of statutory duty which on the construction of the statute. It is well settled that those who claim negligence have to prove on the probabilities, as to whether breach or negligence, has caused or materially contributed to the damage suffered by the claimant. The onus of causal connection between the breach and the injury has to be proved and in the instant case, the petitioner has failed to prove causal connection.
32. Insofar as strict liability is concerned, it is the settled position, that the rule and the reliance from time to time is that a person who for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief, if it escapes, must keep it at his peril. If he fails to do so, he is prima facie liable to the damages which is the natural consequences of its escape. The said rule on the facts and circumstances in my humble opinion, cannot be made applicable to electricity board, who can neither be attributed with negligence nor failure to discharge their statutory duty in not preventing an agriculturist, from converting his ordinary agricultural fence into a electrical fence, during night time. Before fastening liability, there must be a reasonable and probable cause whereby, an ordinary, prudent and cautious man would arrive at the conclusion of negligence or failure to exercise the statutory duties. If want of reasonable care on the part of the board officials is relied upon, that element has to be proved by the aggrieved and if such facts exist and constitute a reasonable and probable cause, the burden is on the claimant to prove the same, for claiming damages.
33. Though in M.S.Grewal and another Vs. Deep Chand Sood and others, reported in 2001 (8) SCC 151, the Supreme Court considered the aspect of negligence, and the duty of a teacher to take care of the students, yet the explanation to the term "negligence" requires consideration. In that case, the students who went for a picnic, drowned in a river. On the aspect of negligence, the Supreme Court at paragraphs 14 and 16 has held as follows:-
14. Negligence in common parlance mean and imply failure to exercise due care, expected of a reasonable prudent person. It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do (vide Blacks Law Dictionary). Though sometimes, the word inadvertence stands and used as a synonym to negligence, but in effect negligence represents a state of the mind which however is much serious in nature than mere inadvertence. There is thus existing a differentiation between the two expressions whereas inadvertence is a milder form of negligence, negligence by itself mean and imply a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow. Clerk & Lindsell on Torts (18th Ed.) sets out four several requirements of the tort of negligence and the same read as below:
(1) the existence in law of a duty of care situation, i.e. one in which the law attaches liability to carelessness. There has to be recognition by law that the careless infliction of the kind of damage in suit on the class of person to which the claimant belongs by the class of person to which the defendant belongs is actionable;
(2) breach of the duty of care by the defendant, i.e. that it failed to measure up to the standard set by law;
(3) a casual connection between the defendants careless conduct and the damage;
(4) that the particular kind of damage to the particular claimant is not so unforeseeable as to be too remote.
34. Tracing the doctrine of vicarious liability from the English Laws and the approach of the Courts in India, the Supreme Court in the above reported case, at paragraphs 18 and 21, explained the principles as follows:-
18. Be it noted that the doctrine of vicarious liability has had a fair amount of judicial attention in the English Courts. By the end of 18th century, the idea began to grow up that some special importance ought to be attached to the relationship of master and servant and in 1849 it was officially held that existence of that relationship was essential. Thereafter, though primary liability on the part of anyone could be established on proof of direct participation in the tort, such direct participation was not even theoretically required to make a master liable for his servants torts. The liability is derived from the relationship and is truly vicarious. At the same time, the phrase implied authority which had been the cornerstone of the masters primary liability gives way gradually to the modern course of employment. (vide Winfield & Jolowicz on Tort 15th Ed.).
19. In recent years, the tendency has been however, towards more liberal protection of third party and so in establishing a particular course of employment the court should not dissect the employees basic task into component parts but should ask in a general sense: What was the job at which he was engaged for his employer? And it is on this perspective Lord Wilberforce in Kooragang Investments Pty. Ltd. v. Richardson & Wrench Ltd. (1982 A.C. 462) stated:
Negligence is a method of performing an act: instead of it being done carefully, it is done negligently. So liability for negligent acts in the course of employment is clear. Cases of fraud present at first sight more difficulty: for if fraudulent acts are not directly forbidden, most relationships would carry an implied prohibition against them. If committed for the benefit of the employer and while doing his business, principle and logic demand that the employer should be held liable, and for some time the law rested at this point. The classic judgment of Willes J. in Barwick v. English Joint Stock Bank (1867) L.R. 2 Ex.259, 266 stated the principle thus:
In all these cases it may be said..........that the master has not authorised the act. It is true, he has not authorised the particular act but he has put the agent in his place to do that class of acts and he must be answerable for the manner in which the agent has conducted himself in doing the business which it was the act of his master to place him in.
That was a case where the wrong was committed for the masters (viz., the banks) benefit, and Willes J. stated this as an ingredient of liability at p.265:
.....the master is answerable for every such wrong of the servant or agent as is committed in the course of the service and for the masters benefit, though no express command or privity of the master be proved.
35. On the issue of maintainability of the writ petition before the High Court under Article 226 of the Constitution of India, to deal with the case of compensation, the Supreme Court in M.S.Grewal's case, at paragraphs 26 to 28 has held as follows:-
"26. Next is the issue maintainability of the writ petition before the High Court under Article 226 of the Constitution. The appellant though initially very strongly contended that while the negligence aspect has been dealt with under penal law already, the claim for compensation cannot but be left to be adjudicated by the Civil law and thus the Civil courts jurisdiction ought to have been invoked rather than by way of a writ petition under Article 226 of the Constitution. This plea of non-maintainability of the writ petition though advanced at the initial stage of the submissions but subsequently the same was not pressed and as such we need not detain ourselves on that score, excepting however recording that the law courts exists for the society and they have an obligation to meet the social aspirations of citizens since law courts must also respond to the needs of the people. In this context reference may be made to two decisions of this court: The first in line, is the decision in Nilabati Behera (Smt) alias Lalita Behera (Through the Supreme Court Legal Aid Committee) v. State of Orissa and Others (1993 (2) SCC 746) wherein this Court relying upon the decision in Rudal Sah (Rudal Sah v. State of Bihar & Anr. (1983 (4) SCC 141) decried the illegality and impropriety in awarding compensation in a proceeding in which courts power under Articles 32 and 226 of the Constitution stand invoked and thus observed that it was a clear case for award of compensation to the petition for custodial death of her son. It is undoubtedly true however that in the present context, there is no infringement of States obligation unless of course the State can also be termed to be a joint tort-feasor, but since the case of the parties stand restricted and without imparting any liability on the State, we do not deem it expedient to deal with the issue any further except noting the two decisions of this Court as above and without expression of any opinion in regard thereto.
27. The decision of this Court in D.K. Basu vs. State of West Bengal [(1997) 1 SCC 416] comes next. This decision has opened up a new vesta in the jurisprudence of the country. The old doctrine of only relegating aggrieved to the remedies available in civil law limits stands extended since Anand, J. (as His Lordship then was) in no uncertain terms observed:
The courts have the obligation to satisfy the social aspirations of the citizens because the courts and the law are for the people and expected to respond to their aspirations. A court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim civil action for damages is a long drawn and a cumbersome judicial process. Monetary compensation for redressal by the court finding the infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family.
28. Currently judicial attitude has taken a shift from the old draconian concept and the traditional jurisprudential system affectation of the people has been taken note of rather seriously and the judicial concern thus stands on a footing to provide expeditious relief to an individual when needed rather than taking recourse to the old conservative doctrine of civil courts obligation to award damages. As a matter of fact the decision in D.K Basu has not only dealt with the issue in a manner apposite to the social need of the country but the learned Judge with his usual felicity of expression firmly established the current trend of justice oriented approach. Law courts will lose its efficacy if it cannot possibly respond to the need of the society technicalities there might be many but the justice oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice."
36. In my humble opinion, the decisions relied on by the learned counsel for the petitioner cannot be strictly applicable to the facts of this case for the reason that in the case on hand, insofar as supply of electricity to the agricultural filed is concerned, it is done in the interior areas of the Villages, through out the State and that the chances of inspecting, as to whether there is any pilferage or malpractice is rather remote, unless specific complaints are received, as compared to the case of a supply of electricity for residential/commercial purposes, where there is a tariff. It is also to be noted, when agriculturalists are not levied any charges for use of electricity, there would not be any possibility of taking metre reading at regular intervals for the purpose of levying consumption charges. Therefore, considering the vast extent of agricultural lands, one cannot expect inspection at the place of supply frequently, unless there is any specific complaint/report of illegal usage of the same for any other purpose, other than agriculture.
37. No doubt, a public duty is cast on the authorities to inspect and verify, as to whether the main supply lines are not tampered or snapped for any other purpose, for which, the supply is given, where public has access to the place. A statutory duty is also cast upon the Board, in respect of overhead lines. The verification or inspection can be legitimately expected to be done, in a place, where the general public has access to move freely, whereas, in the case of an agricultural lands, owned by the private individuals and located in a far away distance from the place of habitation, access to the general public to enter into their lands, is less.
38. In the event of breach of public or statutory duty or negligence, compensation can be fixed on the servants and consequently, the application of various liability can be invoked. The breach of duty and care by the Board officials alleged, in not preventing the agricultural consumer from using electricity for fencing his lands, during night hours, cannot be said to be a careless act or failure on the part of the officials, upto the standards set by law. It cannot be said that there is a casual connection between the officials' carelessness, which resulted in the loss of life, which is so unforseeable and also remote. Negligence on the part of the Electricity Board cannot be said to be writ large and not proved by any concrete material. So also, the allegation of connivance is also not supported by any material evidence.
39. Per contra, there are sufficient material documents, indicating that respondents 3 and 4 have used electricity for fencing agricultural field. The Writ Petition has been filed in the year 2002 and more than 10 years have lapsed. No counter affidavit has been filed by respondents 3 and 4, refuting the allegations. In the abovesaid circumstances, this Court is of the view that the petitioner has proved that due to electrocution, there was a death and on the facts and circumstances of the case, this Court is inclined to fasten liability only against respondents 3 and 4 for payment of compensation. Closure of a criminal complaint would not preclude the petitioner from claiming compensation.
40. The deceased was stated to be aged 25 years and earned Rs.2,500/- per month. The petitioner, father, dependant was aged 60 years at the time of filing the writ petition. There is no specific method for computing the compensation provided under the Electricity Act and the Rules framed thereunder in the case of death, due to electricution. However, as the death has been caused due to negligence and illegal use of electricity, it would be appropriate to apply the method, as provided for in Motor Vehicles Act, for the purpose of computation, which works out to Rs.3,40,000/- (Rs.2,500 x 12 x 17 x 1/3).
41. In the result, the Writ Petition is allowed as against respondents 3 and 4, who are directed to pay compensation of Rs.3,40,000/-. As the compensation is ordered against private individuals, the petitioner is at liberty to move the Board to recover the amount from the land owners from the deposit made, within a period of two months from the date of receipt of a copy of this order. The respondents 1 and 2 are also directed to take all steps to recover the amount from the landowners and disconnect the supply for wrongful act. Accordingly, the writ petition is dismissed against respondents 1 and 2. No costs.
skm To
1. The Executive Engineer, Operation & Maintenance, Thuriayur Post, Trichy District.
2. The Chairman, Tamil Nadu Electricity Board, Annasalai Chennai