Uttarakhand High Court
Teeka Ram vs Laghu Urja Pariyojna Adhikari Ureda And ... on 21 September, 2017
Author: Rajiv Sharma
Bench: Rajiv Sharma
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 383 of 2012 (M/S)
Teeka Ram ....Petitioner
Versus
Urja Samiti Ramnagar & another ....Respondents
Mr. Amit Kapri, Advocate for the petitioner.
Mr. Deep Joshi, Advocate for the respondents.
Judgment Reserved- 16.08.2017
Date of Judgment - 21.09.2017
Hon'ble Rajiv Sharma, J.
Petitioner's wife died on 23.10.2010 when she came in contact with live wire. Petitioner submitted an application seeking compensation on 25.10.2010. He was paid a meager sum of Rs.25,000/-.
2. The case of the petitioner, in a nutshell, is that the respondents have failed to comply with the provisions of the Electricity Act, 2003 and the Rules framed thereunder.
3. His further case is that the principles of ''res ipsa loquitur' would apply. He has prayed for enhancement of compensation.
4. Learned counsel appearing on behalf of the respondents has vehemently argued that the respondents are not liable to pay for the negligent Act of the wife of the petitioner.
5. I have heard learned counsel for both the parties and gone through the record very carefully.
6. The Parliament has enacted an Act to consolidate the laws relating to generation, transmission, distribution etc. called the Electricity Act, 2003 (hereinafter referred to as the Act). Section 2(6) of the Act defines the 'Authority' to mean the Central Electricity Authority referred to in subsection (1) of Section 70. Section 2(20) defines the "electric line" to mean any line which is used for carrying 2 electricity for any purpose and includes (a) any support for any such line, that is to say, any structure, tower, pole or other thing in, on, by or from which any such line is, or may be, supported, carried or suspended; and (b) any apparatus connected to any such line for the purpose of carrying electricity. Section 2(48) defines the "overhead line" to mean an electric line which is placed above the ground and in the open air but does not include live rails of a traction system. Section 2(72) defines the "transmission lines".
7. Sections 53, 68 and 161 of the Act read as under:
"Section 53. (Provisions relating to safety and electricity supply):
The Authority may in consultation with the State Government, specify suitable measures for - (a) protecting the public (including the persons engaged in the generation, transmission or distribution or trading) from dangers arising from the generation, transmission or distribution or trading of electricity, or use of electricity supplied or installation, maintenance or use of any electric line or electrical plant; (b) eliminating or reducing the risks of personal injury to any person, or damage to property of any person or interference with use of such property ; (c) prohibiting the supply or transmission of electricity except by means of a system which conforms to the specification as may be specified; (d) giving notice in the specified form to the Appropriate Commission and the Electrical Inspector, of accidents and failures of supplies or transmissions of electricity; (e) keeping by a generating company or licensee the maps, plans and sections relating to supply or transmission of electricity; (f) inspection of maps, plans and sections by any person authorised by it or by Electrical Inspector or by any person on payment of specified fee; (g) specifying action to be taken in relation to any electric line or electrical plant, or any electrical appliance under the control of a consumer for the purpose of eliminating or reducing the risk of personal injury or damage to property or interference with its use. Section 68. (Provisions relating to Overhead lines): ---- (1) An overhead line shall, with prior approval of the Appropriate Government, be installed or kept installed above ground in accordance with the provisions of sub-section (2). (2) The provisions contained in sub-section (1) shall not apply- (a) in relation to an electric line which has a nominal voltage not exceeding 11 kilovolts and is used or intended to be used for supplying to a single consumer; (b) in relation to so much of an electric line as is or will be within premises in the occupation or control of the person responsible for its installation; or (c) in such other cases, as may be prescribed.
(3) The Appropriate Government shall, while granting approval under subsection (1), impose such conditions (including conditions as to the ownership and operation of the line) as appear to it to be necessary. (4) The Appropriate Government may vary or revoke the approval at any time after the end of such period as may be stipulated in the approval granted by it.
3(5) Where any tree standing or lying near an overhead line or where any structure or other object which has been placed or has fallen near an overhead line subsequent to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the conveyance or transmission of electricity or the accessibility of any works, an Executive Magistrate or authority specified by the Appropriate Government may, on the application of the licensee, cause the tree, structure or object to be removed or otherwise dealt with as he or it thinks fit.
(6) When disposing of an application under sub-section (5), an Executive Magistrate or authority specified under that subsection shall, in the case of any tree in existence before the placing of the overhead line, award to the person interested in the tree such compensation as he thinks reasonable, and such person may recover the same from the licensee.
Explanation. - For the purposes of this section, the expression "tree" shall be deemed to include any shrub, hedge, jungle growth or other plant.
Section 161. (Notice of accidents and injuries): --- (1) If any accident occurs in connection with the generation, transmission, distribution, supply or use of electricity in or in connection with, any part of the electric lines or electrical plant of any person and the accident results or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person shall give notice of the occurrence and of any such loss or injury actually caused by the accident, in such form and within such time as may be prescribed, to the Electrical Inspector or such other person as aforesaid and to such other authorities as the Appropriate Government may by general or special order, direct. (2) The Appropriate Government may, if it thinks fit, require any Electrical Inspector, or any other person appointed by it in this behalf, to inquire and report-
(a) as to the cause of any accident affecting the safety of the public, which may have been occasioned by or in connection with, the generation, transmission, distribution, supply or use of electricity, or
(b) as to the manner in, and extent to, which the provisions of this Act or rules and regulations made thereunder or of any licence, so far as those provisions affect the safety of any person, have been complied with. (3) Every Electrical Inspector or other person holding an inquiry under subsection (2) shall have all the powers of a civil court under the Code of Civil Procedure, 1908 for the purpose of enforcing the attendance of witnesses and compelling the production of documents and material objects, and every person required by an Electrical Inspector be legally bound to do so within the meaning of section 176 of the Indian Penal Code."
8. Section 185 (c) provides that the Indian Electricity Rules, 1956 (hereinafter referred to as the Rules) made under section 37 of the Indian Electricity Act, 1910 as it stood before such repeal shall continue to be in force till the regulations under section 53 of this Act are made.
49. The Central Government has also framed the Rules called the Intimation of Accidents (Form and time of service of notice) Rules, 2005. Rule 3 reads as under:
"3. Intimation of accidents.- (1) If any accident occurs in connection with the generation, transmission, supply or use of electricity in or in connection with, any part of the electric lines or other works of any person and the accident results in or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person or any authorized person of the generating company or licensee, not below the rank of a Junior Engineer or equivalent shall send to the Inspector a telegraphic report within 24 hours of the knowledge of the occurrence of the fatal accident and a report in writing in Form A within 48 hours of the knowledge of occurrence of fatal and all other accidents. Where possible a telephonic message should also be given to the Inspector immediately, if the accident comes to the knowledge of the authorized officer of the generating company/licensee or other person concerned.
(2) For the intimation of the accident, telephone numbers, fax numbers and addresses of Chief Electrical Inspector or Electrical Inspectors, District Magistrate, police station, Fire Brigade and nearest hospital shall be displayed at the conspicuous place in the generating station, sub-station, enclosed substation/switching station and maintained in the Office of the in-charge/owner of the Medium Voltage (MV)/High Voltage (HV)/Extra High Voltage (EHV) installations."
10. Chapter IV of the Indian Electricity Rules, 1956 deals with general safety requirements. Rule 29 provides that all electric supply lines and apparatus shall be of sufficient ratings for power, insulation and estimated fault current and of sufficient mechanical strength, for the duty which they may be required to perform under the environmental conditions of installation, and shall be constructed, installed, protected, worked and maintained in such a manner as to ensure safety of human beings, animals and property. According to sub-rule (2) of Rule 29, the relevant code of practice of the Bureau of Indian Standards including National Electrical Code, if any, may be followed to carry out the purposes of this rule and in the event of any inconsistency, the provision of these rules would prevail. As per sub Rule (3) of Rule 29, the material and apparatus used shall conform to the relevant specifications of the Bureau of Indian Standards where 5 such specifications have already been laid down. Rule 30 reads as under:
"30. Service lines and apparatus on consumer's premises-
(1) The supplier shall ensure that all electric supply lines, wires, fittings and apparatus belonging to him or under his control, which are on a consumer's premises, are in a safe condition and in all respects fit for supplying energy and the supplier shall take due precautions to avoid danger arising on such premises from such supply lines, wires, fittings and apparatus.
(2) Service-lines placed by the supplier on the premises of a consumer which are underground or which are accessible shall be so insulated and protected by the supplier as to be secured under all ordinary conditions against electrical, mechanical, chemical or other injury to the insulation.
(3) The consumer shall, as far as circumstances permit, take precautions for the safe custody of the equipment on his premises belonging to the supplier. (4) The consumer shall also ensure that the installation under his control is maintained in a safe condition."
11. Rule 35 provides that the owner of every medium, high and extra-high voltage installation shall affix permanently in a conspicuous position a danger notice in Hindi or English and the local language of the district, with a sign of skull and bones. Rule 44-A provides that if accident occurs in connection with the generation, transmission, supply or use of energy in or in connection with, any part of the electric supply lines or other works of any person and the accident results in or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person or any authorized person of the State Electricity Board/Supplier, not below the rank of a Junior Engineer or equivalent shall send to the Inspector a telegraphic report within 24 hours of the knowledge of the occurrence of the fatal accident and a written report in the form set out in Annexure XIII within 48 hours of the knowledge of occurrence of fatal and all other accidents.
12. Rule 46 provides for periodical inspection and testing of installation. Rule 51 provides for provisions required to be observed where energy at medium, high or extra-high voltage is supplied, converted, transformed or 6 used. Rule 74 of the Rules provides that all conductors of overhead lines other than those specified in sub-rule (1) of rule 86 shall have a breaking strength of not less than 350 kg. Rule 77 provides for clearance above ground of the lowest conductor. Rules 79, 80 and 91 read as under:
"79. Clearances from buildings of low and medium voltage lines and service lines-
(1) Where a low or medium voltage, overhead line passes above or adjacent to or terminates on any building, the following minimum clearances from any accessible point, on the basis of maximum sag, shall be observed: -
(a) for any flat roof, open balcony, verandah roof and lean-to- roof-
(i) When the line passes above the building a vertical clearance of 2.5 metres from the highest point, and
(ii) When the line passes adjacent to the building a horizontal clearance of 1.2 metres from the nearest point, and
(b) For pitched roof-
(i) When the line passes above the building a vertical clearance of 2.5 metres immediately under the lines, and
(ii) When the line passes adjacent to the building a horizontal clearance of 1.2 metres.
(2) Any conductor so situated as to have a clearance less than that specified in sub-rule (1) shall be adequately insulated and shall be attached at suitable intervals to a bare earthed bearer wire having a breaking strength of not less than 350 kg.
(3) The horizontal clearance shall be measured when the line is at a maximum deflection from the vertical due to wind pressure.
[Explanation- For the purpose of this rule, expression "building" shall be deemed to include any structure, whether permanent or temporary]
80. Clearances from buildings of high and extra-high voltage lines-
(1) Where a high or extra-high voltage overhead line passes above or adjacent to any building or part of a building it shall have on the basis of maximum sag a vertical clearance above the highest part of the building immediately under such line, of not less than-
(a) For high voltage lines 3.7 metres
upto and including 33,000
volts
(b) For extra voltage lines 3.7 metres plus 0.30
metre for every
additional 33,000 volts
or part thereof.
(2) The horizontal clearance between the nearest conductor and any part of such building shall, on the basis of maximum deflection due to wind pressure, be not less than-
7 (a) For high voltage lines upto 1.2 metres
and including 11,000 volts
(b) For high voltage lines above 2.0 metres
11,000 volts and up to and
including 33,000 volts
(c) For extra-high voltage lines 2.0 metres plus 0.3
metre for every
additional 33,000 volts
for part thereof.
[Explanation- For the purpose of this rule expression "building" shall be deemed to include any structure, whether permanent or temporary]
91. Safety and protective devices-
(1) Every overhead line, (not being suspended from a dead bearer wire and not being covered with insulating material and not being a trolley-wire) erected over any part of street or other public place or in any factory or mine or on any consumers' premises shall be protected with a device approved by the Inspector for rendering the line electrically harmless in case it breaks.
(2) An Inspector may by notice in writing require the owner of any such overhead line wherever it may be erected to protect it in the manner specified in sub-rule(l).
[(3) The owner of every high and extra-high voltage overhead line shall make adequate arrangements to the satisfaction of the Inspector to prevent unauthorised persons from ascending any of the supports of such overhead lines which can be easily climbed upon without the help of a ladder or special appliances. Rails, reinforced cement concrete poles and pre- stressed cement concrete poles without steps, tubular poles, wooden supports without steps, I-sections and channels shall be deemed as supports which cannot be easily climbed upon for the purpose of this rule.]"
13. The combined reading of the Electricity Act and the Rules framed thereunder and the Indian Electricity Rules, 1956, quoted hereinabove, provides safety measures required to be observed for supply of electricity. The electricity is a dangerous commodity and it is the statutory duty of the person responsible for the supply and maintenance to abide by all the protective measures. In case respondents in the present case had installed all the safety devices and had taken precautions, the accident could have been avoided.8
14. The wife of the petitioner came into contact with live wire hanging around her house. It is a fit case where principle of ''res ipsa loquitur' would apply. There is no merit in the contention of earned counsel for the respondents that the petitioner's wife was negligent. It is a sheer act of negligence on the part of the respondents, who have failed to take necessary safety measures in maintaining live wire. It was the duty of the field officers concerned under Rule 44-A of the Electricity Rules, 1956 and as provided under Rule 3 of the Intimation of Accidents (Form and time of service of notice) Rules, 2005 to give information of the accident to the higher authorities.
15. The respondents have failed to undertake periodical inspections as visualized under the Act and Rules framed thereunder. They have failed to protect the life and property of the general public. The present case falls within the ambit of strict liability. There is a flagrant violation of the Act and the Rules by the respondents by not providing any safeguards, checks and balances to prevent escape of energy which caused electrocution in the instant case. The hanging of wire in the close proximity of house was a potential danger and threat to public at large. The burden on the respondents was high involving the risk factor. The respondents have failed to discharge the onus placed upon them under the Statutes. There is also a criminal negligence on the part of the functionaries of respondent nos.1 and 2.
16. A person injured by the negligent act of others is definitely entitled to general damages for non-pecuniary loss such as pain, suffering and loss of amenities and also pecuniary loss, both past and future. The petitioner's wife was agriculturalist and was also looking after the cattle. She was contributing to the income of the family.9
17. In the case of "Paine vs. Colne Valley Electricity Supply Co., Ltd. And British Insulated Cables, Ltd.", Reported in (1938) 4 All E.R. 803, it was held that as there was no efficient screening of the dangerous parts in accordance with the provisions of that Act, there was a breach of statutory duty by the first defendants and they were held liable. It was held as follows:
"In these circumstances, counsel for the first defendants admitted that if the kiosk were an electrical station within thedefinition given in the Factory and Workshop Act, 1901, Sched. VI, he had no defence, owing to the lack of efficient screening. As an electrical station is defined in Sched. VI, para (20) as ...... any premises or that part of any premises in which electrical energy is generated or transformed for the purpose of supply by way of trade........... and as the transformer here was enclosed in a separate cubicle, he argued that only that cubicle was an electrical station, and that those in which the switches and the oil switch were housed were not. With all respect, that seems to me to be an impossible argument. I think that it is clear that the whole of the kiosk was an electrical station, and that the division into cubicles was only a method of screening or protection. The definition is dealing with places where current is either generated and then distributed, or delivered in bulk and transformed for distribution to a commercial voltage.
It may be possible to have a transformer with no switches, but, if they are both under the same roof, as in this case, both must be protected. It follows, in my opinion, not only that there had been a breach of the Factory and Workshop Act, 1901, but also that the first defendants had failed to provide a safe place for their workmen, and had, therefore, committed a breach of their common law duty as recently laid down in Wilsons & Clyde Coal Co., Ltd., v. English. This is a duty which cannot be avoided by delegation. It is no answer to say, as counsel for the first defendants submitted: "We employed competent contractors to provide a safe place or plant". The class of cases in which the employment of a competent contractor affords a defence belongs to a wholly different category in the law of negligence. I have no hesitation in holding that the first defendants have no defence whatever to the plaintiff's claim."
18. In the case of "Hawkins vs. Coulsdon and Purley Urban District Council", reported in (1954) 1 All. E.R. 97, the Court of Appeal has held the requisitioning authority liable in the case of defective steps of requisitioned house. It has been held as follows:
"If a licensor had actual knowledge of the physical condition of his property and a reasonable man would have realized that it was a danger, the licensor was under a duty to use reasonable care to prevent damage from the danger unless it was obvious, and he could not escape liability by showing that he himself did not appreciate the risk involved; the plaintiff 10 had discharged the burden of proof which was on her, and, therefore, she was entitled to damages against the defendants.
Per DENNING and ROMER, L. JJ. When leaving the house in the dark, the plaintiff was entitled to assume that the steps were suitable for the purpose for which they were provided, and, therefore, the fact that the accident occurred during the hours of darkness was irrelevant.
Per DENNING, L.J: The defendants, being an urban district council, were, of course, not the householder and could not be on the spot to warn visitors of the danger, but that does not rid them of their responsibility. It only means that, being unable to warn, they ought to have mended the step. They cannot shift their responsibility on to the occupants of the house for the simple reason that they retained the possession and control and are responsible in law. They cannot get rid of their responsibility by the plea that they are only a requisitioning authority. They ought to do whatever a reasonable man in their position would do, and that is, mend the step."
19. In the case of "Manohar Lal Sobha Ram Gupta and others vs. Madhya Pradesh Electricity Board", reported in 1975 ACJ 494, the Division Bench has held that the Electricity Board is a statutory Authority and as such the standard of care required is high one owing to the dangerous nature of electricity. It has been held as under:
"[4] The defendant has a statutory authority under the Electricity Act, 1910, read with the Electricity Supply Act, 1948 to transmit electric energy. The defendant, therefore, cannot be made liable for nuisance for the escape of electrical energy on the principle accepted in the case of Rylands v. Fletcher, (1866) LR 1 Ex 265. The defendant, however, is still liable for negligence. It is negligence to omit to use all reasonable known means to keep the electricity harmless; (see Clerk & Lindsell on Torts, 13th Edition, paragraph 1536), The burden of proving that there was no negligence is on the de- fendant and there is no obligiation on he plaintiff to prove negligence. Further, the standard of care required is a high one owing to the dangerous nature of electricity; (see Charlesworth on Negligence, 5th Edition, p. 531). If the defendant produces no material and offers no evidence to negative negligence, negligence will be presumed. This result will also follow on the principle of res ipsa loquitur. Live broken electric wires carrying, high tension energy are generally not found in a public place, street or road and, therefore, if such a thing happens a prima facie inference can be drawn that there has been some carelessness on the part of the defendant in transmitting electric energy or in properly maintaining the transmission lines. This inference is further supported by Rule 91 of the Indian Electricity Rules, 1956. This rule provides that every over head line which is not covered with insulating material and which is erected over any part of a street or other public place or any factory or mine or on any consumer's premises shall be protected with a device approved by the Inspector for rendering the line electrically harmless in ease it breaks. If the precaution under this rule is 11 taken the line in case it breaks would become dead and harmless. The fact that the line after it broke did not become harmless shows that necessary precaution was not taken. As the defendant has not produced any evidence whatsoever to place the facts showing that all necessary precautions were taken and there was no negligence on its part, it must be held that the accident happened because of the negligence of the defendant."
20. In the case of "The Kerala State Electricity Board Trivandrum vs. Suresh Kumar", reported in AIR 1986 Kerala 72, the Division Bench has held that where the evidence in the case clearly show that the sagging was the consequence of sabotaging committed by the employees of the Board itself, the fact that sabotage was committed by the employees during the period of their strike cannot exonerate the Board from statutory duty cast upon it by provisions of the Act and Rules. It has been held as under:
"6. According to the plaintiff the 11 K..V. electric line which passes across the paddy field was sagging to a height of about 1 metre from the ground from 6th May 1978. PW 4, a resident of the locality swears to this fact The Assistant Executive Engineer examined as DW 1 swears that the employees of the. Board or their supporters have caused the sabotage. The defendant's case is that the employees had gone on strike from 4-5-1978, that they were engaged in sabotaging the electric lines and that the sagging of the electric line which caused the accident was the result of these activities of the- employees and their supporters and so the Board is not liable to pay any damages to the plaintiff. We find it very difficult to accept this argument. The Electricity Rules, 19% casts a duty on the Electricity Board to properly maintain the electrical installations and lines carrying the electrical energy. Rule 77( 3) specifically imposes a duty on the Board to see that 11 K. V. overhead lines are held at a height not less than 4.572 metres (15 feet) above the ground. If the line is shown to be sagging to a height of up to 3 feet above the ground, prima facie negligence on the part of the Board can be inferred. The evidence in the case clearly goes to show that the sagging was the consequence of sabotgaging committed by the employees of the Board itself. Whether the sabotage was committed by the employees during the period of their strike or not, the Electricity Board cannot get itself exonerated from the statutory duties cast upon it by the provisions of Electricity Supply Act and the Electricity Rules, 1956. In this view of the matter we have no hesitation to hold that the sagging of the 11 K. V. line was the result of the negligence on the part of the Kerala State Electricity Board."
21. In the case of "Smt. Angoori Devi and ors. vs. Municipal Corporation of Delhi", reported in AIR 1988 Delhi 305, the learned Single Judge has held that where a 12 temporary electric connection by means of loose and naked wires had been taken in a wooden shack installed on the road side and as a result of such loose connections, the rain water which was collected around the shack and also the area around the shack got electrified and as a result thereof the boy died by way of electrocution, while crossing such area, the death of the boy was due to the gross negligence of the Board and its servants. It has been held as under:
"(5) I have heard the learned counsel for the parties and have perused the record of the case. My findings on the issues ere as under :-
Issue NO. 1:
The plaintiff No. 1 while appearing as Public Witness 2 has deposed that she is the widow of the deceased and plaintiffs No. 2 to 5 are his daughters and plaintiffs No. 6 to 9 are his sons. Not only her statement has remained un- challenged but there is no evidence in rebuttal. I have, therefore, no hesitation in holding that the plaintiffs are the legal representatives of deceased Gopi Ram. The issue is accordingly decided in favor of the plaintiffs and against the defendant.
Issues NO. 2 & 3:
Both these issues are inter-connected and being disposed of together. Public Witness I Kailash Chand and Public Witness 3 Ram Charan are the witnesses of the occurrence and both of them have their shops at the Madras Road near the scene of occurrence.
PW-1 Kailash Chand has deposed that near the Khokha in question there was a shop of fodder seller and the owner of the said shop had affixed a balance with the help of a nail in the wall of the khokha and that on 18th August, 1976 at about 8.15 A.M. while he was taking tea at his shop, he had noticed that the deceased and one chhote were stuck to the balance whereupon he picked a wooden stool and threw it on the scale which got moved with the result that the deceased and Chhote were released there from and Chhote fell on the left hand side and the deceased fell on the left hand side i.e. towards the khokha and died due to the electric shock. He further deposed that at that that there was current even in the water and he has lodged a report with the police: He proved the copy of the F.I.R. as Ex. P-1, He further deposed that after some time a linesman of the Desu came and cut off the electric connection from the khokha, with the result the current in the khokha as well as in the water disappeared. Ram Charan Public Witness 3 has corroborated the statement of Public Witness 1. D.W. 1 S.P. Chopra is the Executive Engineer of the Desu, who had joined the area office of the Desu in September 1976 and who is stated to have made enquiries from the members of the staff 13 and prepared his report. He proved his report as Ex. DW-1/1 DW-2 is Raj Kumar, the Inspector of the DESU. This witness deposed that on receiving a complaint in his office on 19th August, 1976 about the leakage "at the spot, he had gone there Along with the Gang mistress and had got the electric connection tested but did not find any leakage at the spot. D.W/3 is Hari Ram, linesman who after going to the spot had disconnected the electric connection of the khokha on 18th August, 1976 after the occurrence. He deposed that there was no leakage either in the khokha or in the water but he had disconnected the electric connection as people were complaining about the current in the water and khokha. D.W.4 is Kameshwar, Head Mistry of the defendant who also went to the spot on 19th August, 1976 after learning about the electrocution of the deceased. He has deposed that with the help of all-time or he had tested the lines but found no leakage therein.
It may be noticed that the statement of Public Witness 1 that the deceased died due to electrocution firstly after getting stuck with the scale and thereafter by the side of khokha had remained unchallenged. The statement of Public Witness 3 Ram Charan in this regard has also not been challenged, in crossexamination and no evidence has been produced in rebuttal. Although Raj Kumar, Inspector appearing as D.W. 2 and Kameshwar, Head Mistry as D.W. 3 had deposed that test work were conducted at the spot no test report has been produced on record. Admittedly they reached the spot a day after the day of occurrence, when the electric connection had already been disconnected. Mr. S. P. Chopra, D.W. 1 came to the scene after about a month of the date of occurrence and the witnesses, whose statements he recorded during the course of the enquiry, have not been produced. Ex. DW-1/1 is the copy of the letter dated 30th November, 1976 written by Mr. S. P. Chopra, DW-1 to the S.H.O Kashmere Gate, Delhi slating that according to the enquiry conducted by him, the death did not occur due to the negligence but it is possible that the deceased died from an electric shock either from the water or from the scale hanging on the shack. It has been admitted by D.W. 2 Raj Kumar and D.W. 4 Kameshwar that there was no other structure near the khokha in question where the electricity connection was available and Hari Ram, D.W. 3 in cross- examination deposed that he had not noticed any other structure near the khokha where electricity might have been provided. If there was no other structure near the khokha in question having electric connection and as noted above, if the deceased had died after receiving shock either from the current coming out of the balance or from the current in the water near the khokha, it is not explained as to how the current could be found either in the scale or in the water unless there had been leakage from the electric connection in the khokha. As noted above, the test report has also not been placed on record. The fact that the electric current leaked at the spot is itself a proof of negligence on the part of Desu and its employees, I have, therefore, no hesitation in holding that the deceased died because of electrocution and as a result of negligence of the defendant and its employees. Both these issues are accordingly decided in favor of the plaintiffs and against the defendant"
Issue No. 4:14
The first thing to be seen is : as to what was the age of the deceased. It is of course true that the plaintiffs.No.1's statement that the deceased was 35 "years of age at the time of his death, has remained un-challenged in the cross- examination but in view of the fact that it has been pleaded in the plaint that he was 40 years old at the time of death, the age of the deceased cannot be taken to be 35 years at-that time. There being no evidence in rebuttal, I hold that the deceased was 40 years of age at the time of his death.
It has next to be seen as to what was the income, of the deceased at the time of his death. The statement of the plaintiff No. 1 that the deceased used to ply a bullock cart and carry goods on hire has also remained unchallenged and un- rebutted. It is correct that the statement of the plaintiff No. 1 that he used to give to her a sum of Rs. 25.00 to Rs. 301-every day for household expenses has remained un-challenged but in view of the fact that it has been pleaded in the plaint that the deceased used to make a net earning of Rs. 600.00 per month i.e. Rs. 20.00 per delay after meeting all the expenses and the said amount was being spent entirely on the plaintiffs it cannot be taken that the amount being spent paid by the deceased to the plaintiff No. 1 for house-hold expenses was more than Rs. 600/ per month, In these circumstances, I hold that the plaintiff No. 1 was getting from the deceased a sum of Rs. 600.00 per month by way of house-hold expenses. There were
10. members of the family including the deceased and even if the deceased share was 1/10th. i.e. Rs. 60.00 towards the-
expenses, the remaining amount that was being spent on the plaintiffs, out of the earnings of deceased comes Rs. 540.00 per month. The family thus got Rs. 6480.00 per year the expenses and maintenance of the plaintiffs. Considering the life expectancy in these days it can easily be said that the deceased would have lived and worked till the age of 60 years. The plaintiffs who are the legal representatives of the deceased have thus lost his earnings for a period of 20 years. The amount thus lost would come to about Rs. 1,29,600/. Although on account of rise in price the benefit of lump sum payment become negligible, even if the amount on account of such payment is deducted @ 15 per cent the amount payable to the plaintiffs would be more than Rs. I lakh. The plaintiffs have however, claimed only a sum of Rs. 1 lakh way of damages from the defendant and consequently I hold that they are entitled to receive a sum of Rs. 1 lakh only (Rupees one lakh only) by way of damages from the defendant. The issue is decided accordingly."
22. In the case of "Sagar Chand and anr. vs. State of J & K and anr.", reported in AIR 1999 J & K 154, the learned Single Judge has held that when conductor of line which was just 3 feet above ground level remained unattended for 5 days, the negligence was on the part of lineman and the children were granted compensation. It has been held as under:
15[4] Now the question involved is, whether illness of the lineman could be a ground to leave the repair work unattended for about five days without ensuring that no person other than the line-man of the area or a duly authorised persons of the Department could switch on the line which could prove fatal as it did? On the admitted facts of the case, there is no escape from the conclusion that both, the children were electrocuted because of the criminal negligence of the Line-man of the area. In case the lineman was sick it was for the Department concerned to make alternative arrangement. So the failure of the Department to make alternative arrangement is further prove of the fact that the immediate officers to whom the line- man was subordinate did not act with promptitude and failed to take care and caution as expected of a reasonable person in the similar circumstances. No reasonable person could be expected to leave a sub-station manned by a Line-man unattended so as to allow anybody to switch on the power when part of the line was not only damaged but left in such a manner that its conductor was almost touching the ground. Assuming that the line was commissioned by an unauthorised person, as pleaded, it could lead to casualties, both human as well as live-stock because the line passes through open paddy fields of the village and any unsuspecting person may come in contact with the overhanging conductor. Infant children cannot be attributed the knowledge that coming into contact with such an object is not only dangerous, but fatal. Thus, the failure of the Lineman and the Department not to complete the repair work which admittedly had already commenced and leaving it unattended for so many days, is a case of gross negligence. Why in the absence of Line-man the work was not completed for so many days is not explained. It appears, the authorities ignored the danger of leaving an over-hanging conductor without ensuring that in the absence of line-man no one should switch on the line. The officials concerned, it appears, took every thing for granted because of which two budding children lost their lives leaving behind the grieving parents. Such gross negligence on the part of the officials concerned cannot be justified on any ground whatsoever. It is a case where the Line-man of the area and his immediate officers intended the consequence by their negligence. Negligence is defined as a breach of the duty caused by the omission to do something which a reasonable man, guided by those considerations which regulate the conduct of human affairs would do, or doing something which a prudent and a reasonable man would do. Actionable negligence consists in the neglect of the use of the ordinary care or skill towards a person to whom the defendant owes duty of observing ordinary care by which neglect the plaintiff has suffered injury to his person or property. In the instant case, the petitioners have suffered injuries because of the negligence of the line-man of the area who failed to take ordinary care by ensuring that the line under repairs did not remain unattended. According to Winfield." negligence as a tort is the breach of a duty to take care which results in damage, undesired by the defendant to the plaintiff. This definition involves three constituents of negligence:
(i) A legal duty to exercise due care on the part of the party complained of towards the party complaining the formers conduct within the scope of the duty; (ii) breach of the said duty; and (iii) consequential damage. All these constituents are present in the present case because it was the duty of the Line-
man to maintain the electric supply. It was also his duty that in 16 case of any damage to the line, the same should be repaired. Consequently, it follows that when the conductor was so loose as only three feet above the ground, he should have ensured that electric supply is not put on till the conductor is restored to its proper position. Since he left the station unattended, it was the breach of a duty he owes to the people of the locality of the unsuspecting passers-by through the open field where the conductor was hanging. This carelessness on the part of the Line-man to take care has caused the death of two innocent children of the petitioners. It is thus a case where maxim res- ipsa-loquitur applies because the circumstances constituting the accident proclaim the negligence of the Department. The electrocution of the two children is an accident of a kind which does not happen in the ordinary course of things. In such a case once the accident is admitted, as in this case, the respondent cannot escape the liability, as observed in Padma Behari Lal v. Orissa State Electricity Board, AIR 1992 Orissa 68, which reads as under :--
"................The rule of evidence accepted by all courts of law put the onus on the respondent to prove that the accident was not on account of negligence on its part where the circumstance leading to an accident is such that it is improbable that it would have occurred without the negligence of the respondent. The aforesaid rule of evidence is commonly known as "res ipsa loquitur". The said maxim applies in action for negligence in which the accident speaks for itself. In such cases, the claimant is not required to allege and prove any specific act or omission on the part of the respondent. If he proves the accident and the attending circumstances so as to make the aforesaid maxim applicable, it would be then for the respondent to establish that the accident happened due to some cause other than his/its negligence. The petitioner's son in this case was moving on a bicycle on the public road. His movement on the road on a bicycle was not the cause of his death. His death was due to electrocution having come in contact with the live electric wire. The electric wires have been carried supported by the electric poles, the maintenance of which is admittedly the duty of the Electricity Board. Any live wire getting detached from the pole is likely to cause loss of life. The responsibility of the Electricity Board is, therefore, all the more greater for its maintenance by replacement of wire, checking of the points where the wire has been joined or fixed to the pole and to take all precautions to use materials which would stand a stormy weather......."
In view of this, it is clear that the Line-man was negligent and since the conclusion as inescapable that since he was an employee of the respondent, the State is vicariously liable for his negligence.
[5] Now the question is what should be the quantum of compensation payable towards the petitioner. The determination of the quantum of compensation would evidently depend upon various factors including the age of the deceased at the time of accident, the earning capacity and the contribution he was making to the family of his income, if any. These facts can be established only in a civil suit which in fact is the only remedy available under law, except where the facts are admitted. However, the age of both the victims in this case being only 7 and 11, the question of income or contribution to the family does not arise. Still the question remains, what should be the amount of compensation? The minimum amount of compensation on account of no fault liability under Section 17 140 of the Motor Vehicles Act, 1988 in case of death irrespective of the age is Rs. fifty thousand. This should provide enough guide to determine the amount which is reasonable. Considering the age of the children who lost their lives, the petitioners are held to be entitled to an amount of Rs. 75,000/- and Rs. 60,000/- for the untimely death of Jatinder Singh and Puja respectively. This amount shall be paid with 12% annual interest from the date of this order. No costs."
23. In the case of "Padma Behari Lal vs. State Electricity Board and another", reported in AIR 1992 Orissa 68, the learned Single Judge has held that where cyclist came in contact with a live hanging wire detached from the electric pole, the Electricity Board was found negligent. It has been held as under:
"6. In the given circumstances of this case, the question for determination is as to whether the petitioner is entitled to compensation from the opposite parties without proving as to how the accident took place. It is well established in law that in an action for damage in tort, the general rule is that onus to prove negligence on the part of the respondent rests on the claimant. But there are cases in which the claimant is not in a position to produce evidence as to the negligence of the respondent which caused the accident. In those cases it may be that the claimant would not be in a position to know the true cause of the unfortunate action. In some of the such cases the cause of accident, though not known to the claimant might be within the special knowledge of the respondent. The rule of evidence accepted by all courts of law put the onus on the respondent to prove that the accident was not on account of negligence on its part where the circumstance leading to an accident is such that it is improbable that it would have occurred without the negligence of the respondent. The aforesaid rule of evidence is commonly known as "res ipsa loquitur". The said maxim applies in action for negligence in which the accident speaks for itself. In such cases the claimant is not required to allege and prove any specific act or omission on the part of the respondent. If he proves the accident and the attending circumstances so as to make the aforesaid maxim applicable, it would be then for the respondent to establish that the accident happened due to some cause other than his/its negligence. The petitioner's son in this case was moving on a bicycle on the public road. His movement on the road on a bicycle was not the cause of his death. His death was due to electrocution having come in contact with the live electric Wire. The electric wires have been carried supported by the electric poles, the maintenance of which is admittedly the duty of the Electricity Board. Any live wire getting detached from the pole is likely to cause loss of life. The responsibility of the Electricity Board is, therefore, all the more greater for its maintenance by replacement of wire, checking of the points where the wire has been joined or fixed to the pole and to take all precautions to use materials which would stand a stormy weather. The very fact that live wire in a stormy weather which caused the death of the son of the petitioner was detached from the pole and was hanging over the road makes the maxim 'res ipsa loquitur' 18 applicable and in such event, it is not for the petitioner to prove any specific act or omission amounting to negligence of the Electricity Board. In these circumstances, the burden lies on the opp, parties to establish that the Electricity Board was not negligent. The opp. parties have failed to establish that the accident occurred due to some cause other than the negligence of the Electricity Board. The petitioner is thus entitled to compensation from the opp. parties on account of the death of his son which in the circumstances must be held to be due to negligence of the Electricity Board in maintaining the electric wire running over the poles (vide 1987 ACJ 880 : (AIR 1988 Ker
206) Thressia v. Kerala State Electricity Board)."
24. In the case of "Asa Ram and another vs. M.C.D. and others", reported in AIR 1995 Delhi 164, the learned Single Judge has held that the principle of 'res ipsa loquitur' would be attracted where un-insulated loose overhead electric wire caused death. In this case the multiplier of 30 was applied. It has been held as under:
"10. From the oral and documentary evidence discussed above one thing clearly emerges and that is that Karan Singh died due to coming in contact with the electric current. The point for consideration is whether there was any naked wire hanging on the staircase of plaintiff's house or whether deceased fiddled with the electric wire illegally and unauthorisedly. The defense set up by the defendants in their written statement was that the deceased fiddled with the electric main. But this defense was not put to plaintiff when he appeared as PW-1. Only a half-hearted suggestion was given about fiddling with the wire which of course was denied. PW-1 and PW-2 were not confronted with any material which could prove that deceased fiddled with electric mains in order to get illegal electricity. Even the fact that the transformer was defective and there was no electricity in the pole has not been established nor any suggestion in this regard was put to PW-1 and PW-3. Rather from the evidence it clearly emerges that the deceased came in contact with the loose wire hanging on his staircase which caused his death. Defendants have not been able to prove that there was no naked and un insulated wire hanging on the house of the plaintiff. On the contrary photograph Ex.PW-1/9 taken on the date of the accident show a loose wire separated from the main and hanging on the staircase of the house of the plaintiffs. According to plaintiffs' witnesses current was passing through this loose wire. Defendants have not been able to controvert the documentary and oral evidence led by plaintiff. PW-1/2 testimony that he lodged complaint on 6-7-85 regarding loose naked wire hanging and the current passing from the same crossing over his house, has remained unrebutted on the record. In fact defendant's own witness, DW-3 admitted that DESU maintained separate complaint register regarding the complaint of a naked hanging wire. But neither the said register was produced nor copy of the plaintiff's complaint was produced. For the non-production of these material documents an adverse inference can be drawn against the defendants. Had these material documents namely complaint register of hanging wire and the original complaint 19 lodged by plaintiffs, been produced it would have gone against the defendants and would have falsified defendant's defense. Statement of PW-1 that he lodged complaint on 6th July, 1985 regarding a loose wire hanging on his staircase and current passing through it thus stand fully proved. Lodging of the report on 6th July, 1985 vide Entry No. 490687/490688 has not been denied by DW-2, rather Sh. A. K. Gupta admitted in no uncertain words that he did receive the complaint in the month of July, 1985 from the plaintiff. He also admitted that a separate complaint register was maintained in this regard. Hence, it does not lie in the mouth of the defendant now to contend that a loose wire was not hanging or that Karan Singh died because he was fiddling with electrical main. Heavy reliance has been placed by the counsel for defendant on Ex. DW-1/1 i.e. submission of detail by the Executive Engineer D-9 regarding the incident. Reading of Ex. DW-1/1 shows that this report was based on the information fed by Sh. Guru Adhar break down Superintendent of the DESU, He on receiving the information of Karan Singh's death switched off the supply and went to the site to enquire. The said Guru Adhar has not been examined nor his report has been proved on record. Perusal of Ex.DW-1/1 shows that it is in fact Guru Adhar who gathered the information about the death of Karan Singh. Since, neither Guru Adhar has been examined nor his report in original has been produced, therefore, no reliance can be placed on Ex. DW- 1/1. It is not known as to from whom Sh. Guru Adhar enquired that Karan Singh with the help of a bamboo stick was trying to restore the electricity supply. In the absence of such details and more so Ex.DW-1/1 being based on hear say the same cannot be relied upon. Similarly Ex. DW-1/2 is an incident report given by Executive Engineer-D again based on the alleged information given by Guru Adhar, Break-down Superintendent. Hence it cannot be relied upon. Any information which is based on an information given by someone else has no value unless the informer who gathered the information is produced and opposite party given an opportunity to cross-examine him. Ex.D W-1/1 and DW-1/2 show that copy of the same was addressed to Electrical Inspector, Delhi Administration for information. It had all along been the case of the plaintiffs that Electrical Inspector, after inspection found wire hanging and current passing through it. The said report has not been placed on record. A very feeble defense was given for the non-production of the said . report. According to defendant, the Electrical Inspector being not an employee of the DESU, hence his report was irrelevant. Secondly the said Electrical Inspector inspected the site on 5th August, 1985 but submitted his report in November, 1985. In these circumstances counsel contended that such a report of the electrical inspector is not worth reliance. It was only a waste paper. The said Electrical Inspector being not an employee of DESU hence his report has no value. To my mind, this submission has no merits. The Electrical Inspector being an independent Government official functionary, his report carried authenticity and, to my mind, more valuable piece of evidence than the oral testimony of defendants. His report would have thrown light on the actual position at site. In fact the whole controversy would have been solved. The contention of the defendants that the Electrical Inspector, Delhi Administration, has not the authority or that he was not competent to inspect and report is belied from defendants own conduct. If he had no authority then why the copy of exhibit 20 DW-1/1 and DW-1/2 were sent to him. The Electrical Inspector being a person in authority, his report carries more authenticity. For the non-production of the said report it can be said that defendants are concealing true facts. To my mind, the non-production of that report is deliberate. Had that report been produced, it would have gone against the defendants. That is the reason it has not been produced. Contention of Mr. Jayant Nath that exhibit DW-2/1 was the only complaint received from plaintiffs in July 1985 and the reading of the same would show that plaintiff complained only about the non- supply of electricity and not of hanging wire. This argument has no force because as per D W-3 there were three kinds of complaint registers maintained by DESU namely (i) Meter Replacement Register, (ii) Service Line Replacement Register, and (iii) Complaint Register regarding naked wire known as service line register. The complaints regarding naked wire were registered in the Service Line Register. The said register was not produced nor Ex. DW-2/1 pertained to the said Line Register. Ex.DW-2/1 is only a copy of another Register. Hence the entries in Ex.DW-2/1 cannot be relied upon. The remarks made in Ex.DW-2/1 cannot be relied upon in the absence of original complaint lodged by plaintiff and the Service Line Register. The person who made these remarks has also not been produced to explain as to from where and on what basis he recorded the remarks in that register, copy of which is Ex.DW-2/1. Hence, plaintiffs claim and version cannot be nullified because of these remarks on Ex.DW-2/1. Even otherwise complaint regarding naked wire were registered in Service Line Register which Mr. Gupta, DW-2 did not produce. For this reason also DW-2/1 cannot be relied upon. In fact, the DESU/defendant has miserably failed to prove that the deceased was fiddling with the electric main and, therefore, got electrocuted. From the evidence discussed above one can safely conclude that defendants have not been able to establish that deceased illegally fiddled with the electric main in order to have electricity supply available at his house. Nor have the DESU been able to prove that on 4th August, 1985 there was no electricity in the house of the plaintiff or in the village. If this suggestion be accepted, then the defense of the defendant that deceased was fiddling with the electricity main falls to the ground. This is contradictory to the defense set up in the written statement. It shows defendants are not sure of their stand. Defendants have failed even remotely to establish that there was any negligence on the part of the deceased in coming into contact with the electric wire which caused his death.
11. It is not disputed that the electric wire was crossing from the house of the plaintiffs. This fact find support from Ex.PW- 1/9 a photograph taken on the dale of the accident. It shows a small loose wire hanging on the staircase of the plaintiffs. It is the statutory duty of the -DESU to ensure that every overhead line is covered with insulating material. Any overhead line erected over any part of the house, street, or public place should be protected with a devise by which the line crossing that house should become harmless, in case it breaks. But that care has not been taken in the case in hand. The uncontroverted evidence of the plaintiff coupled with the document Ex.PW-1/9 taken on the first available opportunity and the complaint lodged by the plaintiff with the DESU would show that loose live wire was hanging on the house of the plaintiff and while climbing the stairs, deceased came in contact with the same. In fact the defendants have not been 21 able to prove the case as set up by them. Therefore, it can safely be said that this is a case where principle of res ipsa loquitur would apply. It can be said that deceased Karan Singh died because of the negligence and carelessness of the defendants. The burden was on the DESU to show that the deceased fiddled with the electric main illegally, but it failed to prove the same. On the other hand, plaintiffs by their testimony and from the testimony of the neighbour have been able to prove that DESU had been negligent and careless in maintaining the overhead lines crossing the house of the plaintiffs. Defendants have failed to prove that any necessary precaution against the danger of live wire hanging on the staircase of the plaintiffs was taken. DESU has not been able to prove that the accident in the instant case was due to the factors beyond their control. Deceased Karan Singh died having come in contact with the live wire hanging on the staircase of his house. This fact is also supported by the post-mortem report E.x.PW-2/1 in which cause of death has been stated to be electric current. His death has been proved on record by Ex. P-4. DD Report lodged to the police immediately upon the happening of the accident is proved as Ex.P-2."
25. In the case of "R.S.E.B. & another vs. Jai Singh and others", reported in AIR 1997 Rajasthan 141, the learned Single Judge has held that all wires resulting in electrocution would attract the maxim 'res ipsa loquitur'. The learned Single Judge has held as under:
"12. Khuman Singh, Helper, who is none but the employee of the Board itself, has clearly stated that on 15-2- 1992 itself, after his duty was over he went to Charbhujaji arm he was told by Girija Shankar that the earth wire of 11 K.V. line was snapped at Tadawara and that an insulator pin was also detached and, therefore, after shutting down electricity supply, repairs are required to be carried out. However, he went to his village and learnt at about 11 p.m. in the same night through Phool Singh and Lehri Lal that because of damage to the live electric wires resulting in electrocution of the three deceased persons such an incident had taken place. Besides, the petitioner-defendants heaver pleaded that the sparks resulted from the live electricity passing wires resulted in setting grass lying on the terrace of the house of one Rafique Mohd, on fire as a result of which the wires melted and got snapped and its end fell on the ground which resulted in electrocution of the deceased. Assuming so, the sparks must have resulted due to fluctuation and trimming in the supply of electricity and besides, as per the pleadings of the petitioners themselves the grass was lying on the terrace of the house which was quite nearer to the overhead passing electric wires and, therefore, it was also negligent act by way of an omission from the side of the defendants in not having raised the height of the passing wires or to have removed the same from their present position. Besides, the plaintiffs have consistently maintained that such electric wires got snapped and broken on three or four occasions earlier since the same were old and damaged, it was incumbent on the defendants to have replaced the same and they must have taken every precaution as a result of which they could neither got snapped nor sparks 22 could be released from there due to any disorder in supply of the electric wires. The defendants apparently failed to do so. Therefore, for the present, the defendants cannot dispute that they were, operating and maintaining supply of electricity through the electric poles located on both sides of the place of incident and electricity wires joints with both the poles were passing above the field of the deceased persons. Thus, the field whereon the residential house of the deceased was also situated, were agricultural fields the area was inhabited and, therefore, it was the duty of the officials/ agents of the R.S.E.B. that the electric lines passing over bead were perfectly in order and there was no visible possibility and apprehension of their being snapped and sparks being released from them resulting in electrocution and fire to the property. However, R.S.E.B. positively failed to do so which is an apparent omission on their part.
13. That being so, when the deceased I persons were not at the fault at all and on the contrary, the R.S.E.B. through its officials/ agents were negligent and at its faulting end, as held in the decision of Padam Beharilal case (AIR 1992 Orissa 68) (supra) by the Orissa High Court, since it was the positive duty of the R.S.E.B. to maintain the electric wire lines free from such incident. It is having failed to do so, the maxim res ipsa loquitur, it was not for the plaintiffs but, when admittedly parents of the petitioners along with his son Kishan Singh were electrocuted immediately and they were burnt on the spot, in such event it is not for the plaintiffs to prove any such specific act or omission amounting to negligence of the R.S.E.B. but the burden shifts on the defendants to establish that the unfortunate incident was not a result of negligence on the part of the R.S.E.B."
26. In the case of "T. Gajayalakshmi Thayumanavar and anr. vs. Secretary, Public Works Department, Govt. of Tamil Nadu, Madras and ors.", reported in AIR 1997 Madras 263, the Division Bench has held that when the wire snapped and fell on cycle rider and the cycle rider was electrocuted, the incident occurred due to negligence of Board as it has not maintained the electric system properly. It was further held that snapping of electric wire was not an act of God. It has been held as under:
"20. On an appraisal of the evidence of P.Ws. 1 to 3 and R. W. 1, it is manifest that the Electricity Board had not maintained the fuse mechanism properly and had it been maintained properly, the death of Suryaprakash could have been avoided as the fuse would have been blown off automatically on the snapped electric overhead conductor falling on him and getting earthed through his body when he was lying on the ground. We are unable to accept the contention of the learned counsel for the Electricity Board that respondents 2 and 3 had taken the necessary precautions and that the death of Suryaprakash by electrocution could not have occurred due to the snapping wire falling on him. R.W. 1 had 23 not witnessed the occurrence nor the respondents examined members of the public to show as to how the occurrence had taken place if it was not as categorically spoken to by P.W. 3. The snapping of the electric line is not disputed by respondents 2 and 3 in the counter affidavit filled before the Arbitrator. The fact that the conductor/live wire had snapped shows its negligent maintenance by the Tamil Nadu Electricity Board. We are also unable to accept the contention of the learned counsel for the Electricity Board that it was an unexpected incident due to rain and wind and that the snapping of the electric line was an Act of God. We are further unable to appreciate the contention of the learned counsel for the Electricity Board that the death of Suryaprakash took place only due to the negligence of Suryaprakash in his leaving the home that day in the rain and wind. We are of the view that the death of Suryaprakash had occurred due to the overhead electric line having snapped and falling on him in the circumstances narrated by P.W. 3 and it was due to the negligence on the part of the Electricity Board as it has not maintained the electric system properly. Therefore, we hold that respondents 2 and 3 are responsible for the death of Suryaprakash and that they are liable to pay compensation."
27. Their lordships of the Hon'ble Supreme Court in the case of "M.P. Electricity Board vs. Shail Kumar and others", reported in AIR 2002 SC 551, have held 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. Their lordships have further held that the Board is also liable under the strict liability rule and the basis of such liability is the forceable risk inherent in the very nature of such activity. Their lordships have held as under:
"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 24 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.
10. There are seven exceptions formulated by means of case law to the doctrine of strict liability. It is unnecessary to enumerate those exceptions barring one which is this. "Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule doe snot apply". (vide Page 535 Winfield on Tort, 15th Edn.)
13. In the present case, the Board made an endeavour to rely on the exception to the rule of strict liability (Rylands v. Fletcher) being "an act of stranger". The said exception is not available to the Board as the act attributed to the third respondent should reasonably have been anticipated or at any rate its consequences should have been prevented by the appellant-Board. In Northwestern Utilities, Limited v. London Guarantee and Accident Company, Limited {1936 Appeal Cases 108}, the Privy Council repelled the contention of the defendant based on the aforesaid exception. In that case a hotel belonging to the plaintiffs was destroyed in a fire caused by the escape and ignition of natural gas. The gas had percolated into the hotel basement from a fractured welded joint in an intermediate pressure main situated below the street level and belonging to the defendants which was a public utility company. The fracture was caused during the construction involving underground work by a third party. The Privy Council held that the risk involved in the operation undertaken by the defendant was so great that a high degree care was expected of him since the defendant ought to have appreciated the possibility of such a leakage."
28. In the case of "H.S.E.B. & ors. vs. Ram Nath and others", reported in (2004) 5 SCC 793, their Lordships of the Hon'ble Supreme Court have held that it was the appellants' duty to ensure that the electricity wires were at a safe distance from the building. Their lordships have further held that where there was no denial in the written 25 statement that the wires were loose and drooping and that the respondent had asked the appellants to tighten the wires, the writ was maintainable. It has been held as follows:
"4. In the written statement there is no denial to these averments. All that is claimed is that the entire colony was an unauthorised colony and that unauthorisedly the height of the houses had been raised. It is claimed that the wires were at the prescribed height of 20 feet from the ground level and that the height of the wire was as per the standard prescribed under the Rules. 5. It is submitted that these averments would show that there was a disputed question of fact as to whether or not the wires were touching the roof. We are unable to accept this submission. To the categoric averments set out hereinabove that the wires had become loose and were drooping and touching the roof of the houses, there is no denial. To the categoric averments that complaints had been made, both in writing and orally, requesting that the wires had to be tightened, there is no denial. A mere vague statement to the effect that the height was as per the prescribed limit does not detract from the fact that there is a deemed admission that the wires were drooping and touching the roofs.
6. The appellants are carrying on a business which is inherently dangerous. If a person were to come into contact with a hightension wire, he is bound to receive serious injury and/or die. As they are carrying on 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 consequences of their inaction. If there are complaints that these wires were 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."
29. The learned Single Judge in the case of "Ramesh Singh Pawar vs. Madhya Pradesh Electricity Board and others", reported in AIR 2005 MP 2, has found the Electricity Board liable to pay compensation to the petitioner not only on the ground of negligence but on the principle of strict liability also. The learned Single Judge has held that the Writ petition was maintainable. It has been held as follows:
"16. Considering the totality of the facts and circumstances of the case, in the backdrop of discussion made hereinabove and keeping in view the specific findings recorded by the Supreme Court in the case of Shail Kumari and the observations made in Paras 8, 9, 11 and 13 reproduced 26 hereinabove. There is no doubt that not only on the ground of negligence but on the principle of strict liability, the Board is liable to pay compensation to the petitioner.
18. Having heard, the petition is maintainable and the Board is liable to pay compensation in the present case. The next question that requires determination is as to what should be the compensation that should be awarded in such cases."
30. Their Lordships of the Hon'ble Supreme Court in the case of "Nilabati Behera vs. State of Orissa and ors.", reported in (1993) 2 SCC 746, have held that a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection, of such rights, and such a claim is based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right. It has been held as follows:
"17. It follows that 'a claim in public law for compensation' for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting to a constitutional remedy provided for the enforcement of a fundamental right is 'distinct from, and in addition to, the remedy in private law for damages for the tort' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inap- plicable, and alien to the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution. This is what was indicated in Rudul Sah and is the basis of the subsequent decisions in which compensation was awarded under Articles 32 and 226 of the Constitution, for contravention of fundamental rights.
34. The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen that they live under a legal system which aims to protect their interests and 27 preserve their rights. Therefore, when the court molds the relief by granting "compensation" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it does so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making 'monetary amends' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of exempellary damages' awarded against the wrong doer for the breach of its public law duty and is independent of the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a court of competent jurisdiction or/and persecute the offender under the penal law."
31. In the case of "Sube Singh vrs. State of Haryana and ors.", reported in (2006) 3 SCC 178, their Lordships of the Hon'ble Supreme Court have held that it is well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. It has been held as follows:
"38. It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under Article 21, by a public servant. The quantum of compensation will, however, depend upon the facts and circumstances of each case. Award of such compensation (by way of public law remedy) will not come in the way of the aggrieved person claiming additional compensation in a civil court, in enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering compensation under section 357 of Code of Civil Procedure."
32. The age of the petitioner was 65 years, as per the affidavit, sworn by him on 04.03.2012. The Court can presume the age of the petitioner's wife was 60 years at the time of accident. She was agriculturist and also maintaining the cattle. Thus, her income can be taken as Rs.5,000/- per month and. by making statutory deductions, her income is assessed to Rs.3,000/- per month. The annual income of the petitioner's wife would be Rs.36,000/-. The multiplier of '10' at the age of 60 years 28 would be reasonable. The petitioner is also entitled to Rs.50,000/- for loss of consortium. Accordingly, the petitioner would be entitled for compensation of Rs.4,10,000/- (36,000/- X10 + 50,000/- = Rs.4,10,0000/-).
33. Accordingly, the writ petition is allowed. The respondents are directed to pay Rs.4,10,000/- to the petitioner with interest @9% per annum, within a period of eight weeks from today.
(Rajiv Sharma, J.) NISHANT