Orissa High Court
Kiranbala Dandapat And Four Ors. vs Secretary, Grid Corporation Of Orissa ... on 23 February, 1998
Equivalent citations: II(1998)ACC273, 2000ACJ1286, AIR1998ORI159, AIR 1998 ORISSA 159, (1998) 2 CIVILCOURTC 621, (1999) 1 TAC 233, (1998) 2 ACC 273, (2000) 2 ACJ 1286, (1998) 85 CUT LT 784
Bench: A. Pasayat, S.C. Datta
JUDGMENT Pasayat, J.
1. One Krushna Chandra Dandapat (hereinafter referred to as the 'deceased') lost his life on account of electrocution on 21-10-1993. His widow and minor children have filed this writ application for a direction to the Grid Corporation of Orissa Ltd. (hereinafter referred to as the 'Corporation') to compensate them.
2. Case of the petitioners sans unnecessary details is as follows :
On 21-10-1993, at about 6 a.m. the deceased had gone to his agricultural field to irrigate the land. A live high voltage 11 K.V. electric wire was lying on the field being disconnected from the pole. When the deceased came in contact with it, he sustained burn injuries and became senseless. Immediately he was taken to Derabis P.H.C. but his condition became serious. He was shifted to Kendrapara Hospital where he breathed his last. The matter was reported at Kendrapara Police Station basing upon which U.B. Case No. 55 dated 21-10-1993 was registered, Enquiry was conducted and it was clearly indicated that the death was due to electrocution. Compensation was claimed from the Corporation, but no heed was paid.
3. In the counter-affidavit filed by the Corporation it has been stated fhat there was no negligence involved. The Electrical Inspector submitted a report indicating that all possible steps were taken and suggested remedial measures, and therefore, no compensation was payable, and in any event the claim was belated. The death took place on 21-10-1993 and the writ application was filed on 20-12-1995. However, it is accepted that a claim was made before the Corporation on 6-12-1996, but the petition was without signature. The claim was lodged after the period of three years which is the prescribed period for claiming compensation.
4. A plea is raised that incidcni can be termed as an act of God and therefore, no compensation is payable.
Preventive measures suggested to be taken may provide safety in future. Those cannot be pressed into service lo deny liability of the Corporation. The term 'compensation' as stated in the Oxford Dictionary, signifies that which is given in recompence in equivalent rendered. 'Damages' on other hand constitute the sum of money claimed or adjudged to be paid in compensation for loss of injury sustained the value estimated in money, or something lost or withheld. The term 'compensation' ctymologically suggests the image of balancing one thing against another; its primary signification is equivalents, and the secondary and more common meaning is something given or obtained as an equivalent. Pecuniary damages are to be valued on the basis of 'full compensation'. That concept was first stated by Lord Blackborn in Livingstone v. Rawgarda Coel Co. (1980) AC 25.
5. The 'Rule of Law' requires that the wrongs should not remain unredressed. All the individuals or persons committing wrongs should be liable in an action for damages for breach of civil law or for criminal punishment. Law of torts is founded on the principle that every injury must have a remedy. 'Compensation' means anything given lo make things equivalent, a thing given or to make amends for loss, recompense, remuneration or pay; it need not, therefore, necessarily be in terms of money, because law may specify principles on which and manner in which compensation is to be determined as given. Compensation is an act which a Court orders to be done, or money which a Court orders to be paid, by a person whose acts or omissions have caused loss or injury to another in order that thereby the person damified may receive equal value for his loss or be made whole in respect of his injury; something given or obtained as equivalent; rendering of equivalent in value or amount an equivalent given for property taken or for an injury done to another; a recompense in value; a recompense given for a thing received recompense for whole injury suffered, remuneration or satisfaction for injury or damage or every description. The expression 'compensation' is not ordinarily used as an equivalent to 'damage' although compensation may often have to be measured by the same rule as damages in an action for a breach. The term 'compensation' as pointed out in the Oxford Dictionary signifies that which is given in recompense, an equivalent rendered, 'damages' on the other hand constitute the sum of money, claimed or adjudged to be paid in compensation for loss or injury sustained. 'Compensation' is a return for a loss or damages sustained. Justice requires that it should be equal in value, although not alike in kind. 'Amends' is return for something that is faulty in ourselves or towards others, 'satisfaction' is that which satisfies the individual requiring it, is given for personal injuries, and may be either by a return or otherwise, according to disposition of the person to be satisfied. 'Recompense' is a voluntary return for a voluntary service; it is made from generous feeling and derives its value not so much from the magnitude or service or return, as from intention of the parties towards each other; and it is received not so much as a matter of right as of courtesy. 'Remuneration' is not voluntary as recompense, but it is equally indefinite, being estimated rather according to condition of the person and dignity of service than its positive worth. 'Requital' is the return of a kindness, the making it is an act of gratitude. 'Reward' may be a bad return when it is inadequate to the merits of the person. In cases of assessment of damages, pure mathematics cannot be relied on exclusively to arrive at a reasonable estimate of just compensation, for much pertains to the realms of hypothesis, and in that region arithmetic is a good servant but a bad master therefore, an award should be of a round sum rather than one actually computed. (Per Lord Button J. in Bail v. Kraft, 1967 ACJ 235 (Supreme Court of British Columbia, Canada). The following broad principles govern the grant of damages :
(1) There should not be any negligence on the part of the claimant himself.
(2) There should not be any improper conduct on the part of the claimant himself.
(3) The claimant should have taken all the reasonable action to maintain the loss or injury sustained by him.
(4) The acts of the claimant should be lawful, just and reasonable.
(5) The amount of damages should not exceed the loss sustained by him, and such damages may be minimised if own conduct has resulted contributory negligence, or has rendered some of the damage too remote or has constituted a failure to mitigate the damages, either by not taking such steps to reduce the original loss or to avert further loss.
6. It is true that perfect compensation is hardly possible and money cannot renew a physique frame that has been battered and shattered, as stated by Lord Morris in West v. Sheppard, 1964 AC 326. Justice requires that it should be equal in value, although not alike in kind. Object of providing compensation is to place claimant as far as possible in the same position financially, as he was before accident. Broadly speaking in the case of death basis of compensation is loss of pecuniary benefits to the dependants of the deceased which includes pecuniary loss, expenses, etc. and loss to the estate. Object is to mitigate hardship that has been caused to the legal representatives due to sudden demise of the deceased in the accident. Compensation awarded should not be inadequate and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring value of human life and measure of damage cannot be arrived at by precise mathematical calculation but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is decreed nor it should be a source of refit of the person in whose favour it is awarded. Upjohn LJ in Charter House Credit v. tolly, (1963) 2 QB 683 remarked, 'the assessment of damages has never been an exact science; it is essentially practical.'
7. It is pleaded by the opposite parties that there was no negligence involved. The doctrine of res ipsa loquitur would seem to apply to the facts of the case. It is explained in a very illustrative passage in Clerk and Lindsell on Torts (Sixteenth Edition) pages 568-569, which reads as follows :
"Doctrine of res ipsa loquitur, the onus of proof, which lies on a party alleging negligence is as pointed out that he should establish his case by a preponderance of probabilities. This he will normally have to do by proving that the other party acted carelessly, such evidence is not always forthcoming. It is possible, however in certain cases for him to rely on the mere fact that something happened as affording prima facie evidence of want of due care on the other's part : 'res ipsa loquitur is a principle which helps him to do so.' In effect, therefore, reliance on it is a confession by the plaintiff that he has no affirmative evidence of negligence. The classic statement of the circumstances in which he is able to do so is by Erle C.J. :
"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."
It is no more than a rule of evidence and states no principle of law. "This convenient and succinct formula", said Morris L.J.. "possesses no magic qualities nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin, "it is only convenient label to apply to a set of circumstances in which a plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. He merely proves a result, not any particular act or omission producing the result. The Court hears only the plaintiff's side of the story, and if this makes it more probable than not that the occurrence was caused by the negligence of the defendant, the doctrine res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebut that probability. It is not necessary for res ipsa loquitur to be specifically pleaded."
Reference may be made to another passage from the same book at page 723 which reads as follows :
"Liability to children. An occupier must be prepared for children to be less careful than adults. Something which would not be a danger to an adult may very well be one to a child, and a warning sufficient for an adult may be insufficient for a child. In Soleney v. Lambath London Borough Council an occupier was held liable to a four year old boy who fell through the bare of a balustrade. If a person the size of the plaintiff lost his balance he was liable to go through the gap. The staircase did not comply with the occupier's duty a care to a child of that age. But in Kanj v. Portfordshire C.D. it was held there was no liability to a child aged eight who fell against a long standing brick and flint wall in a school's playground. The wall was not inherently dangerous and the presence of a supervisor would not have prevented the accident."
8. The question of negligence of a company engaged in transmission of electric energy was considered in Subbas Railway Light Heat Power Company Ltd. v. Vandry, 1920 AC 662. The concerned railway company in exercise of statutory powers had erected two overhead cables for the distribution of electric current. In that case, on account of a violent wind, a branch from a tree growing about 28 feet away from the cables was broken, which resulted in the breaking down on the cables and the high tension current found its may along with the low tension cable into the respondents' premises and caused a fire. An action for damages was brought by the respondents against the concerned power company. The Court of Appeal held that the company was liable for the damage without proof that it had been negligent. since it had failed to establish that it could not have prevented the escape of the electric current further that its statutory power afforded no defence, since the escape of the current was not necessarily incident to the exercise of those powers.
9. In Erusion Equipment and Chemical Ltd. v. State of West Bengal, AIR 1975 SC 266, the Court while dealing with the question of invalidity of action of the Government in black listing a contractor without giving him an opportunity of hearing, also dealt with the larger question of the manner in which contracts by the State need to be awarded. In this regard it held as follows :
"It is true that neither the petitioner nor the respondent has any right to enter into a contract but they are entitled to equal treatment with others who offer tender or quotations for the purchase of the goods. This privilege arises because it is the Government which is trading with the public and the democratic form of Government demands quality and absence of arbitrariness and discrimination in such transactions. Nonfled treats privileges as a form of liberty as opposed to a duty. The activities of the Government have a public element and, therefore, there should be fairness and equality. The State need not enter into any contract with any one but if it does so, it must do so fairly without discrimination and without unfair procedure."
10. The expression 'act of God' signifies the operation of natural force free from human intervention, such as lightning. It may be thought to include such unexpected occurrences of nature as severe gale, snowstorms, hurricanes, cyclones and tidal-bures and the like. But every unexpected wind and storm does not operate as an excuse from liability, if there is a reasonable possibility of anticipating their happening. An act of God provides no excuse, unless it is so unexpected that no reasonable human foresight could be presumed to anticipate the occurrence, having regard to the conditions of time and place known to be prevailing at. For instance, where by experience of a number of years, the railway administration knows that in a particular area during a particular season there have been heavy down-pours of rain and consequent extraordinary floods causing damage to their track, they cannot take the plea, that they were due to act of God because it is within their competence to take such steps as would prevent damage. Lord Westbury defined act of God (damnum fatals in Scotch Law) as an occurrence which no human foresight can provide against and or which human prudence as not bound to recognise the possibility. This appears to be the nearest approach to the true meaning of act of God. Lord Westbury's definition was approved by Lord Demdia and Shaw in the House of Lords in Brenock Corporation v. Galcdesian Ry. Similarly, Lord Blandaburgh spoke of it as 'an irresistible and unsearchable providence nullifying all human effort'. That principle has no application to the case at hand.
The term 'act of God' (vis major) is used in English law to mean some act or convulsion of nature, so extraordinary that it could not be foreseen; or if foreseen could not be guarded against, for example, an extraordinary high tide, a tempest of rare violence, and the like. 'In the biblical sense of term, everything almost is said to be the act of God; but in a mercantile sense, it means an extraordinary circumstance which could not be foreseen and which could not be guarded against'. (Per Esher M. R. in 55 L.J. Qz 548).
11. So far as the plea of delayed approach is concerned, it may be noted that the young widow and four fatherless children whose ages range between four to ten years are the claimants. Limitation and laches operate in different fields. Laches mean doing nothing. The statute of limitation is a statute of repose founded on considerations of public policy and expediency. Lapse of time or delay in suing, unaccounted for by some disability, ignorance or other circumstances constitute laches. Some systems of law refuse to assist a person, who sleeps over his rights and neglects to enforce them within a certain time with reasonable diligence. But laches do not have the effect of cutting short the allowable statutory period. The fact skuation in the case at hand does not show any laches. Additionally, a statutory body like the Corporation should not stand on technicalities, when the poor dependants of a electrocution victims are the claimants.
12. Considering the age of the deceased and his avocation of life, compensation of Rupees 60,000/- (sixty thousand) would meet the ends of justice. But of the said amount a sum of Rs. 45,000/- be kept in a fixed deposit in the name of the claimants jointly for a period of five years with a stipulation that no withdrawal shall be permitted against the fixed deposit. However, on the petitioners making an application for withdrawal of money from the fixed deposit justifying the need for the same, this Court can permit withdrawal of such sum which would meet the requirement of the petitioners. The balance amount of Rs. 15,000/- shall be released in favour of the petitioners on being identified by any of the learned counsel appearing for them in this Court. The amount of compensation as fixed above shall be paid by the opposite parties within two months from today.
The writ application is allowed to the extern indicated above. No costs.
S.C. Datta, J.
13. I agree.