Orissa High Court
A. Krishna Patra vs Orissa State Electricity Board And Ors. on 12 December, 1996
Equivalent citations: II(1998)ACC367, 1998ACJ155, AIR1997ORI109, AIR 1997 ORISSA 109, (1997) 1 CIVILCOURTC 289, (1998) 2 ACC 367, (1998) 1 ACJ 155, (1997) 2 LJR 658, (1997) 83 CUT LT 356
Author: D. Misra
Bench: D. Misra
JUDGMENT P.C. Naik, J.
1. In this petition, the petitioner claims compensation of Rupees 1,00,000/- from the Orissa State Electricity Board (hereinafter called 'the O.S.E.B.') and its functionaries for the death of his wife who was electrocuted when she came in contact with a live conductor which had snapped and was lying on the ground.
2. According to the petitioner, the mishap was solely due to the negligence of the opposite parties who had failed to maintain the line in proper order, in utter disregard to the statutory safeguards. The opposite parties, i.e. the O.S.E.B. and its functionaries, have filed a counter denying its liability.
3. The fact that the petitioner's wife was electrocuted when she came in contact with a live conductor which had snapped and was lying on the ground, is not disputed. However, the allegation of negligence and poor supervision is denied. The stand taken by the opposite parties in reflected in paragraph 7 of their counter which reads thus :
"......There might be the death of the lady due to the electric shock but these opposite parties are no way responsible for the death of the wife of the petitioner, since these opposite parties are not aware of the fact that when the snapped conductor was fallen on the public road. The lineman of the area at about 5 a.m. at Gollasahi, Bellaguntha got the information that a conductor was fallen on the road and knowing this the lineman on his own disconnected the A. B. switch immediately. Thereafter at about 6.30 A. M. he informed the matter to the Jr. Engineer."
It is thus the case of the opposite parties that they are not guilty of any negligence, and hence no liability can be saddled on them. It appears that after the mishap, the matter was enquired into by the Electrical Inspector who had visited the spot and submitted a report (Annexure-B/1) to the effect that "the fatal electrical accident had occurred due to snapping of one of phase conductors from the I.T.O.H. line in the street which have outlived their service for more than 30 years and mechanically weak unsound due to aging." The police investigation also indicates that the death was due to electrocution. Thus, on the basis of the material on record, it cannot be denied that Smt. A. Tarini Patra, wife of the petitioner, was electrocuted.
4. The case of the petitioner in a nutshell is that the facts on record indicate lack of care on the part of the O.S.E.B. and as such, he is entitled to compensation.
5. During the course of arguments, a faint reference was also made to the principle of strict liability -- the rule laid down in the case of Rylands v. Fletcher, (1868) LR 3 HL 330.
6. In reply, the learned counsel for the opposite parties submits that generation and transmission of electricity may be a hazardous activity, but that by itself cannot be a ground for holding the opposite parties liable. It is further submitted that the snapping of conductor being an inevitable accident, liability ought not to be fastened on the opposite parties.
7. Having heard counsel for the parties, we are not inclined to agree with the submission advanced by the opposite parties. It is to be noticed that generation and transmission of electricity by the O.S.E.B. or other authority is by virtue of the provisions contained in the Electricity Act, 1910 read with the Electricity Supply Act, 1948 and the mere fact that the generation and transmission of electricity is a hazardous occupation, may not by itself give rise to liability. But, if it is a case of negligence, it would be no defence to fall back on the plea that transmission was under statutory authority. However, it cannot be denied that the more hazardous the activity is, the greater is the responsibility and higher is the standard of care and caution to be exercised in carrying out the activity and, in such a situation we feel that even a slight negligence on the part of the undertaking is sufficient to hold it liable.
8. The question relating to the liability of the Orissa State Electricity Board in case of death by electrocution due to snapping of transmission line or the like reason, came up for consideration before this Court in two recent cases, namely, Smt. Rajani Devi v. Chairman, Orissa State Electricity Board, (1996) 81 Cut LT 353, and Uttam Sahu v. Chairman, Orissa. State Electricity Board, (1996) 2 OLR 99. In both these cases, the cause of death was electrocution due to coming in contact with a snapped line which remained charged. While dealing with the question in Rajani Devi's case (supra), after referring to Rule 91 of the Indian Electricity Rules which relates to safety and protective devices and paragraphs 35 and 36 contained in Volume 37 of the Halsbury's Laws of England, 4th Edition, it has been held that the law is clear that the O.S.E.B. must take special precautions in the operations connected with the transmission of energy through over-head lines. It was further indicated therein that in such cases, the burden will be heavy on the Board to establish that they could have prevented the escape of electric current as such things do not happen, if those who have the management use proper care. In the case at hand, it is the plea of the O.S.E.B. that neither they were negligent nor was the snapping of the live conductor due to lack of supervision, However, this is belied by the report of the Electrical Inspector which indicates that one of the phased Conductors snapped as it had outlived its utility and had become mechanically weak. This clearly indicates the lack of care, caution and proper supervision on the part of the opposite parties. May, it indicates a clear case of object indifference, for it was the bounden duty of the opposite parties to see that a mechanically unsound and weak conductor is replaced, looking to the very serious consequences which are likely to follow, which indeed have happened in this case. Permitting transmission of electrical energy through conductors which have outlived their utility and have become mechanically weak and unsound would itself be an indication of negligence. If such a conductor snaps and the line does not become electrically harmless and thereby results in the death of a person, this would by itself be a ground for imputing negligence to the O.S.E.B. In such a case, the burden would, we feel, be on the O.S.E.B. to explain and not on the claimant to establish negligence of the O.S.E.B. The petitioner need show nothing more.
9. The plea of an inevitable accident or an act of God advanced at the stage of hearing, cannot come to the aid of the opposite parties. While considering the question of inevitable accident or an act of God, it will be useful to reproduce a passage from the Law of Torts, 22nd Edition, by Justice G. P. Singh, which reads thus :
"All causes of inevitable accidents may be divided into two classes : (1) those which are occasioned by the elementary forces of nature unconnected with the agency of man or other cause; and (2) those which have their origin either in the whole or in part in the agency of man, whether in acts of commission or omission, non-feasance or mis-feasance, or in any other causes independent of the agency of natural forces. The terms 'act of God' is applicable to the former class."
An inevitable accident is an event which happens not only without the concurrence of the will of the man, but in spite of all efforts on his part to prevent it. It means, an accident physically unavoidable something which cannot be prevented by human skill or foresight. We have already referred to the report of the Electrical Inspector which indicates that the conductors snapped as it had outlived its utility and had become mechanically weak and unsound. Had the Board exercised proper care and supervision, it could have taken proper and prompt steps to replace the mechanically unsound and weak conductor in time, but that was not done. Thus, it cannot be said that the O.S.E.B. could not have prevented the incident by exercise of ordinary care, caution and proper supervision. Thus, it is not a case where the accident took place in spite of all efforts on the part of the O.S.E.B. to prevent it. In other words, it can be said that the accident was solely due to lack of care and caution on the part of the O.S.E.B. and its functionaries. Thus, it follows that the plea of an inevitable accident is wholely misconceived and cannot come to the aid of the opposite parties for getting out of its liability.
10. An 'act of God' is an inevitable or unavoidable accident without the intervention of the man; some casualty which the human foresight could not discern and from the consequence of which no human protection could be provided. This is not a case where the incident was due to unexpected operation of natural forces free from human intervention which no reasonable human foresight could be presumed to anticipate its occurrence or to prevent it. On the contrary, the material on record clearly indicates that but for indifference and inaction -- neglience of the O.S.E.B. in not replacing the mechanically unsound and weak conductor which had outlived its utility, the incident may not have occurred.
11. Thus, though under the Electricity Act 1910 and the Electricity Supply Act, 1948, transmission of electric energy may absolve the O.S.E.B. from liability for nuisance for the escape of electric energy but in a case of negligence or, we may say, due to lack of care, inasmuch as the O.S.E.B. fails to use all reasonable means to prevent such escape, the O.S.E.B. will be liable, for in view of the inherently dangerous nature of electricity, the standard of care will necessarily be very high and it would be for the O.S.E.B. to show that there was no negligence in a case like the one at hand.
12. As a reference was made to the case of Rylands v. Fletcher (186S-LR 3HL 330) (supra), the same may be dealt with briefly. In that case, the defendants had constructed a reservoir upon their land, in order to supply water to their mill. On the site that was chosen for the reservoir, there existed some shafts of a coal mine which was not in use. However, the passages also led to the adjoining mine which was owned by the plaintiff. This, however, was not discovered at the time of construction with the result that when the reservoir was filled, the water went down to the shaft and flooded the plaintiff's mine. Under these facts, the plaintiff instituted a suit for damages and succeeded. Dismissing the defendants' appeal, it was held by the House of Lords :
"The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings his land something which, though harmless while it remains there, will naturally do mischief if it excapes out of his land? It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbours; but the question arises whether the duty which the law casts upon him under such circumstances is an absolute duty to keep it at his peril or is, ...... merely a duty to take all reasonable and prudent precautions in order to keep it in, but no more ..............
We think that the true rule of law is that the 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 in at his peril, and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiffs default; or, perhaps, that the escape was the consequence of 'vis major' or the act of God; but as nothing of this sort exists here, it is unnecessary to enquire what excuse would be sufficient."
13. Salmond and Beuston on the "Law of Torts", 20th Edition, observed that "the rule in Rylands v. Fletcher has been narrowly interpreted by the courts and has not in practice been widely applied outside the context, largely influenced by the law of nuisance, in which it was first developed. Today, however, the extension of strict liability to cover, on a less restrictive basis, things and activities which involve special danger (i.e. a more than ordinary risk of accident or a risk of more than ordinary damage if accidents in fact result) would be regarded by many as highly desirable." Thus, in Northwestern Utilities Ltd. v. London Guarantee & Accident Co. Ltd., (1936) AC 108, the appellants who were carrying gas at high pressure under the streets were held liable when a hotel insured by the respondents was destroyed owing to the escape of gas due to a leak caused by the operations of third persons, since those operations were conspicuous and ought to have been foreseen and guarded against. But, "They left it all to chance," and were thereby guilty of negligence."
14. Though the strict rule of Rylands v. Fletcher, (1868 LR 3 HL 330) was not applicable to damage caused by the act of God and in this view of the matter, the action of the plaintiff failed in the case of Nichols v. Marsland, (1876) 2 Ex. D 1. The defendant, in that case, was in possession of certain artificial pools formed by damming a natural stream. The embankments and weirs were well and carefully constructed and were adequate for all ordinary occasions. A very violent sterm, however, described by witnesses as the heaviest within human memory broke down the embankments, and the rush of water down the stream carried away certain bridges, in respect of which damage the action was brought. It was held, notwithstanding Rylands v. Fletcher, that the defendant was not liable, inasmuch as the jury had found that there was no negligence on the part of anyone and that the accident was due directly to the act of God.
15. A similar defence of act of God raised by the defendant failed in the case of Greenock Corporation v. Caledonian Railway Co., (1917) AC 556, which had come up before the House of Lords. This was a case in which the municipal authority in laying out a park, constructed a concrete paddling pond for children in the bed of a stream and altered the course of the stream and obstructed the natural flow of water therefrom. Owing to a rainfall of extraordinary violence the stream overflowed at the pond, and, as the result of the operations of the authority, a great volume of water, which would have been carried off by the stream in its natural course without mischief, poured down a public street into the town and damaged the property of two railway companies. It was held by the Privy Council that the extraordinary rainfall was not a damnum fatale which obsolved the authority from responsibility, and that they were liable in damages to the railway companies. In that case, Lord Finlay L.C. observed :--
"In the case now under appeal the Lord Ordinary found, and in my opinion rightly found, that the flood could not be regarded as in the nature of damnum fatale, and that the appellants in constructing the culvert ought to have foreseen the possibility of such an occurrence and to have provided against it........."
16. In 'The Law of Torts' by Salmond & Heuston, the authors have observed that "Indeed Nichels v. Marsland is believed to be the only reported case in which act of God proved successful as a defence to an action under the rule in Rylands v. Fletcher."
17. The rule laid down in Rylands v. Fietcher, (1868 LR 3 HL 330) (supra) was considered by the Apex Court in M. C. Mehta v. Union of India, (1987) 1 SCC 395 ; (AIR 1987 SC 1086). This case was by way of a public interest litigation highlighting the tragedy due to leakage of oleum gas from one of the units of Shriram Food and Fertilizers Industries. The question before the Court was as to what should be the measure of liability of an enterprise which is engaged in a hazardous or inherently dangerous industry, if by reason of an accident occurring in such an industry persons die or are injured. The question arose whether the rule in Rylands v. Fletcher would apply or is there any other principle on which liability may be determined. The Constitutional Bench observed :
"......But it is not necessary for us to consider these decisions laying down the parameters of this rule because in a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry as part of the developmental programme, this rule evolved in the 19th century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in the context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constructed by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have lo build our own jurisprudence and we cannot countenance an argument that merely because the law in England docs not recognise the rule of strict and absolute liability in cases of hazardous or inherently dangerous activities or the rule laid down in Rylands v. Fletcher as developed in England recognises certain limitations and exceptions, we in India must hold back our hands and not venture to evolve a new principle of liability since English courts have not done so........"
The Court further observed :
"......We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to" ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken......".
And, "......We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principles of strict liability under the rule in Rylands v. Fletcher."
Thus, the plea of inevitable accident had, in cases of this type, practically lost all its utility.
18. In the light of the discussions above, the petitioner must succeed and the opposite parties must compensate the petitioner for the death of his wife, who was electrocuted due to snapping of a live conductor.
19. The writ application is accordingly allowed. Considering the age of the deceased and the fact that she was assisting her husband (the petitioner) in tending the cattle and cultivation, we feel, an award of compensation of Rs. 50,000/- (Rupees fifty thousand) will be proper in full and final settlement of the claim and we order accordingly. The amount be deposited within a period of four months from today.
D. Misra, J.
20. I agree.