Madras High Court
K.Sundari vs The State Of Tamil Nadu on 15 April, 2009
Equivalent citations: AIR 2009 (NOC) 2874 (MAD.)
Author: K.N. Basha
Bench: K.N. Basha
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.04.2009 CORAM THE HONOURABLE MR. JUSTICE K.N. BASHA W.P.No.19668 of 1999 K.Sundari .. Petitioner Vs 1. The State of Tamil Nadu rep. by its Secretary to Government, Department of Electricity, Chepauk, Chennai-600 009. 2. The Chairman, Tamil Nadu Electricity Board, Anna Salai, Chennai-600 002. .. Respondents * * * Prayer : Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus, directing the respondents to pay the petitioner and her minor children adequate compensation for the loss of life of Kanniappan arising out of the gross negligence of the 2nd respondent. * * * For Petitioner : Mrs.Chitra Sampath For 1st Respondent : Mrs.Lita Srinivasan, Government Advocate For 2nd Respondent : Mr.A.Selvendran, Standing Counsel for TNEB O R D E R
The petitioner has come forward with this petition seeking for the relief of direction to the respondents to pay adequate compensation to the petitioner and her minor children as the living electricity wire snapped and fell on the street snatched the life of her husband, one Kanniappan.
2. The case of the petitioner is that her husband was working as a piece work civil contractor and earning not less than Rs.200/- per day and he was aged about 50 years at the time of his death. It is submitted that while the petitioner's husband was returning to his house on the way he came into contact with the live wire hanging from above snapped and fell on the street, namely, Shivaji Street, T.Nagar, Chennai, on 9.10.1998 and died on the spot due to electrocution.
3. The further case of the petitioner is that the second respondent department gave a police complaint and the body of her husband was also subjected to postmortem examination. The opinion of the Doctor as per the postmortem certificate is that the deceased died due to electrocution. It is submitted that the live wire which fell on the street wherein the occurrence said to have taken place was under the care and maintenance of the department of the second respondent. In view of the death of the husband of the petitioner, who was the sole bread winner of the family, the petitioner along with her three children are unable to make their ends meet. Thereafter, the petitioner sent a representation to the second respondent on 5.2.1999 requesting for adequate compensation and the said representation was received and acknowledged by the second respondent and no reply was given by the second respondent till the filing of the Writ Petition. Hence the petitioner has been constrained to come forward with this Writ Petition.
4. Mrs.Chitra Sampath, learned counsel appearing for the petitioner contended that the husband of the petitioner died due to electrocution while he came into contact with live wire hanging from the electrical post snapped and fell on the street and such fact was not disputed by the respondents. It is further submitted that the cause of death also made very clear through the postmortem certificate to the effect that the deceased died due to electrocution. The learned counsel for the petitioner also contended that the F.I.R. was registered in this matter only at the instance of the Electricity Board Officials, namely, the Assistant Engineer and as such, the staff of the Electricity Board were well aware about the cause of death of the husband of the petitioner. It is contended that the husband of the petitioner died only due to the negligence on the part of the respondents to maintain the electricity wires properly for the safety of the public from any electrocution. The learned counsel would also place reliance on the Rule 91 of the Indian Electricity Rules, 1956 (hereinafter referred to as "the Rules") to the effect that it is the duty of the Electricity Board Officials to protect the every overhead line erected over any part of a street or other public place with a device approved by the Inspector for rendering the electricity line harmless in case it breaks. It is pointed out by the learned counsel for the petitioner that there is absolutely no factual dispute in respect of the manner of occurrence in which the husband of the petitioner died due to electrocution. It is submitted that on the face of the records it is prima facie very clear that the occurrence took place due to the negligence on the part of the 2nd respondent officials and as such, they are liable to pay the adequate compensation to the petitioner as she has to maintain herself and three children.
5. In support of her contention, the learned counsel for the petitioner placed reliance on the following decisions :
1. M.P.Electricity Board v. Shail Kumari and Others (2002) 2 SCC 162;
2. H.S.E.B. And others v. Ram Nath and Others (2004) 5 SCC 793 ;
3. An unreported decision of this Court reported in Richerd Suares v. Government of Tamil Nadu rep. by Secretary, Electricity Department, Fort St. George, Chennai-9 and another, W.P.No.34905 of 2002 dated 5.1.2005; and
4. Lilly Stanislaus v. Chairman, T.N.E.B., Chennai and others, (2008) 3 MLJ 160.
6. Per contra, Mr.A.Selvendran, learned counsel appearing for the second respondent contended that the Writ Petition itself is not maintainable on the ground that this is a case involving disputed questions of fact. It is further contended that it is the burden of the petitioner to prove that the deceased died due to the negligence on the part of the second respondent officials. The learned counsel would further contend that it is the admitted case of the petitioner that there was rain water in the street wherein the occurrence said to have taken place and as such it is quite possible that the live wire could have been snapped due to rain and as such, the second respondent could not be held liable for the act of God. The learned counsel for the 2nd respondent would also place reliance on the decision reported in SDO, GRID Corporation of Orissa Limited and Others V. Timudu Oram, (2005) 6 Supreme Court Cases 156.
7. I have carefully considered the rival contentions put forth by either side and also perused the materials available on record.
8. At the outset it is to be stated that on the basis of the materials available on record it is prima facie crystal clear that the husband of the petitioner died only due to electrocution and that too while he came into contact with the live wires snapped and fell on the street while he was returning to the home from his work. The fact remains that even the law was set in motion by giving a report to the police only by the second respondent official namely, the Assistant Engineer. A perusal of the F.I.R. discloses that on the information furnished by the staff of the 2nd respondent, the Assistant Engineer preferred the report and on receipt of the same, the concerned police registered the F.I.R. in Cr.No.2662/1998. After the registration of the First Information Report, the body was sent for postmortem examination and a perusal of the postmortem certificate reveals that the deceased would appear to have died of electrocution.
9. Now the crux of the question involved in this matter is whether the negligence on the part of the respondents to maintain the live wire of the electricity connections properly and safely cost the life of the petitioner's husband ?
10. Before proceeding to consider the said question, it is relevant to refer Rule 91 of the Rules which reads hereunder :
91. Safety and protective devices : (1) Every overhead line (not being suspended from a dead bearer wire not being covered with insulating material and not being a trolley wire) erected over any part of a street or other public place or in any factory or mine or on any consumer's premises shall be protected with device approved by the Inspector for rendering the line electrically harmless in case it breaks.
(emphasis supplied)
11. A reading of the above said provision makes it crystal clear that it is the statutory obligation, duty and responsibility of the second respondent officials to provide safety and protective devices for rendering the electricity live wires line harmless in case it breaks. The Electricity Board Officials should take care and caution in respect of laying, installing and maintaining the over head lines as the said electric wires were carrying heavy load and as such it is highly dangerous. The Electricity Board officials should strictly follow Rule 91 of the Rules by taking safety measures by providing with a device approved by the Electrical Inspector for rendering the line electrically harmless in case it breaks.
12. In the light of the provision under Rule 91(1) of the Rules, let me now consider the factual scenario of the case on hand.
13. The undisputed fact remains that the husband of the petitioner one Kanniappan died due to electrocution while he came into contract with a live wire when he was returning to his house through the place of occurrence as the said live wire snapped and fell on the ground of the street due to rain. The Post-mortem certificate also reveals that the victim died due to electrocution. As already pointed out, a perusal of the First Information Report discloses that even the complaint was given only by the officials of the respondents, namely, the Assistant Engineer (Operation and Maintenance), TNEB, Chennai, and on such complaint the First Information Report was registered in Crime No.2662 of 1998. The First Information Report further discloses that the body of the victim was found on the ground of the street. If the respondents have taken the safety measures as per the Rule cited above rendering the live electricity wires as harmless in case it breaks, it could not have cost the life of the victim by electrocution. It is pertinent to note that no material available on record to establish that the second respondent officials have taken safety measures by providing any device rendering the live electricity wire as harmless in case it breaks. The respondents also not raised any plea before this Court to the effect that they have taken safety measures as stated above and as such the second respondent officials have not complied with the statutory obligation as contemplated under Rule 91 of the Rules. Therefore, in the case on hand a prima facie case of negligence was clearly made out against the respondents.
14. The learned counsel for the second respondent mainly raised the question of maintainability of the writ petition by placing reliance on the decision of the Hon'ble Apex Court in SDO, GRID CORPORATION OF ORISSA LTD., V. TIMUDU ORAM reported in 2005 (6) SCC 156. The Hon'ble Apex Court in the said decision held that the disputed questions of fact could not be decided under Article 226 of the Constitution of India. In that decision the Hon'ble Apex Court held that the High Court has not recorded any finding to the effect that the electricity board authorities was negligent in performance of their duty and further held that in view of the earlier dismissal of the suit, the subsequent writ petition would not be maintainable.
15. On the other hand, the learned counsel for the petitioner rightly placed reliance on the decision of the Hon'ble Apex Court reported in H.S.E.B. and others v. Ram Nath and Others (2004) 5 SCC 793. In that decision, the Hon'ble Apex Court held that no disputed questions of facts arose as there were no denials in the written statement that the wires were loose and drooping and confirmed the order of the High Court awarding compensation to the victim's family. The Hon'ble Apex Court ultimately held in that decision as hereunder :
"6. The appellants are carrying on a business which is inherently dangerous. If a person were to come into contact with a high-tension wire, he is bound to receive serious injury and/or die. As they are carrying on a business which is inherently dangerous, the appellants would have to ensure that no injury results from their activities. If they find that unauthorised constructions have been put up close to their wires it is their duty to ensure that that construction is got demolished by moving the appropriate authorities and if necessary, by moving a court of law. Otherwise, they would take the consequences of their inaction. If there are complaints that these wires are drooping and almost touching houses, they have to ensure that the required distance is kept between the houses and the wires, even though the houses be unauthorised. In this case we do not find any disputed question of fact."
It is pertinent to note that the decision of the Hon'ble Apex Court (cited supra) has been referred and considered by the Hon'ble Apex Court in its subsequent decision in SDO, GRID CORPORATION OF ORISSA LTD., V. TIMUDU ORAM reported in 2005 (6) SCC 156 as hereunder :
"Counsel for the appellants also cited a judgment in H.S.E.B. V. Ram Nath (2004) 5 SCC 793 in which a similar view was taken. In the said case it was observed by the Bench that where disputed questions of fact were involved writ petition would not be the proper remedy but since there was no denial in the written statement that wires were loose and drooping and the claimant had asked the Board to tighten the wires, the Board was held liable to pay the compensation. This finding was recorded because the supplier of electricity did not controvert the facts alleged by the respondent writ petitioner. Disputed questions of facts were not involved and as a result of which the finding recorded by the High Court was upheld."
16. A Division Bench of this Court (P.K.MISRA and S.RAJESWARAN, JJ) in W.P.No.5217 of 1999 (Parezade Mama V. State of Tamil Nadu rep. by Secretary to Government, Electricity Department and Others), while dealing with the case of death of the mother and father of the children, who died when the children playing in a lodge were to touch the running over head high tension line approximately 3 feet from the balcony of the lodge and the parents while attempted to rescue the children, by relying upon the judgment of the Supreme Court in Nath Bros. Exim International Ltd., V. Best Roadways Limited 2000 (4) SCC 553 held that on the fact of the conduct of the public authority, there is infringement of Article 21, and there is no bar for the High Court to proceed under Article 226 of the Constitution of India by granting necessary damages, as follows :
"17. It is true that writ petitions for claiming damages cannot be resorted when there is a clear denial of tortious liability. At the same time when the negligence is per se visible and it infringes Article 21, relief claiming damages could be granted under Article 226 of the Constitution of India.
18. In Nath Bros. Exim International Ltd. V. Best Roadways Ltd., (2000) 4 SCC 553 the Hon'ble Supreme Court no doubt held that the writ petition filed under Article 226 of the Constitution of India, High Court cannot grant compensation to the family of victim who died by electrocution. However, in the very same judgment the Hon'ble Supreme Court held that when there is negligence on the face of it and infringement of Article 21 is there, it cannot be said there will be any bar to proceed under Article 226 of the Constitution of India."
17. A learned Single Judge taken a similar view and awarded compensation in a case of electrocution death in Lilly Stanislaus V. Chairman, T.N.E.B., Chennai and others reported in (2008) 3 MLJ 160.
18. Therefore, as already pointed out, in the instant case there is no disputed questions of facts involved and the negligence on the part of the second respondent is per se visible and as such the petitioner has rightly invoked Article 226 of the Constitution of India to seek the remedy of compensation.
19. As far as the case on hand is concerned, as it is already pointed out by this Court, the manner of occurrence and cause of death of the victim due to electrocution were not disputed by the second respondent. At the risk of repetition, it is to be reiterated that the second respondent has not produced any material before this Court to show that they have taken safety measures and provided any devices approved by the Electrical Inspector for rendering the electricity line harmless in case it breaks as per the provision under Rule 91 of the Rules.
20. At this juncture, it is relevant to refer the decision of the Hon'ble Apex Court in M.P., EB V. Shail Kumari reported in 2002 (2) SCC 162 in which it was held by the Hon'ble Apex Court 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 lookout 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.
(emphasis supplied by this Court)
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."
The above decision rendered by the Hon'ble Apex Court makes it crystal clear that it is the statutory obligation on the part of the second respondent officials to take safety measures by providing suitable device ensuring that in the event of any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. But, in the case on hand, at the risk of repetition it is to be reiterated that the second respondent officials miserably failed to comply with the statutory obligation by taking safety measures by providing any device for rendering the electricity line harmless in case it breaks.
21. Now coming to the question of quantum of compensation to be paid to the petitioner, certain factual aspects to be borne in mind by this Court. The post-mortem certificate reveals that the victim, at the time of death due to electrocution, was aged about 50 years. It is not disputed that the victim was the sole bread-winner of the family and he was working as a piece work civil contractor and earning not less than Rs.200/- per day and the petitioner is now struggling for livelihood along with her three children. The petitioner lost her husband in the year 1998 and the writ petition filed in the year 1999. It is seen that the second respondent without prejudice to his contention said to have offered Rs.1,00,000/- before the Lok Adalat.
22 Considering the above said factors coupled with the mental agony undergone by the petitioner, this Court is of the considered view that granting the relief of compensation of a sum of Rs.3,00,000/- (Rupees three lakhs only) to the petitioner and her children would meet the ends of justice. Accordingly, the writ petition stands allowed and the second respondent is directed to pay a sum of Rs.3,00,000/- (Rupees three lakhs only) with interest at the rate of 6% per annum from 05.02.1999 within a period of eight weeks from the date of receipt of a copy of this Order. No costs.
tsi/gg To
1. The Secretary to Government, State of Tamil Nadu, Department of Electricity, Chepauk, Chennai-600 009.
2. The Chairman, Tamil Nadu Electricity Board, Anna Salai, Chennai 600 002