Delhi High Court
Renu Kumari & Anr. vs Bses Rajdhani Power Ltd. & Ors on 7 March, 2011
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 7th March, 2011.
+ W.P.(C) 2045/2001
% RENU KUMARI & ANR. ..... Petitioners
Through: Mr. P. Bashista, Adv.
Versus
BSES RAJDHANI POWER LTD. & ORS. ..... Respondents
Through: Mr. Samrat Nigam, Adv. for R-1.
Ms. Sana Ansari, Adv. for Ms.
Zubeda Begum, Adv. for R-3
GNCTD.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The writ petition was filed by the widow and the brother of the deceased claiming compensation of `5 lacs from Delhi Jal Board (DVB) W.P.(C)2045/2001 Page 1 of 6 and the Govt. of NCT of Delhi on account of death due to electrocution on 8th November, 1999. Notice of the writ petition was issued. Counter affidavits have been filed by the respondents. Rule was issued on 19 th February, 2004. Vide order dated 30 th January, 2008 the status report was called from the police and in response whereto report dated 6 th March, 2009 has been filed by SHO, P.S.-Uttam Nagar, New Delhi. As per the First Information Report (FIR), the deceased was carrying on activity as a barber on an open plot of land; that there was an electric pole nearby; the deceased caught the wire holding/supporting the said pole and which wire was energized and the deceased fell down and was declared dead. The incident happened in the evening of 8th November, 1999 and the FIR was lodged on 9th November, 1999.
2. Upon the unbundling of the DVB, M/s BSES Rajdhani Power Ltd. was impleaded as respondent no.1 and has filed a counter affidavit in which it is stated that the deceased died while attempting to illegally tap electricity from the electricity pole and the respondent no.1 is thus not liable.
3. The respondent no.1 in its counter affidavit has relied on Chairman, W.P.(C)2045/2001 Page 2 of 6 Grid Corporation of Orissa Ltd. (GRIDCO) Vs. Smt. Sukamani Das (1999) 7 SCC 298, judgment of this Court in W.P.(C) No.5016/2002 titled Smt. Ram Wati Vs. BSES Yamuna Power Ltd., judgment of this Court in W.P.(C) No.1108/2001 titled Sh. Dharampal Vs. DTC and judgment of this Court in W.P.(C) No.3548/2007 titled Gunman Singh Rawat Vs. BSES Rajdhani Power Ltd. to contend that without finding any neglect on the part of the respondent, no order granting compensation can be made and where disputed questions of fact arise, the granting of such a relief in writ jurisdiction is not appropriate.
4. The counsel for the petitioner has based his arguments only on the status report filed by the SHO, P.S.-Uttam Nagar to the effect that during the investigation one Mr. Inderjeet Khandelwal an employee of DVB was found liable for lapse and was arrested and challan was filed in the Court on 21st October, 2010. At the time of filing of the status report, the said prosecution was stated to be still pending. Neither counsel, today has any knowledge as to the fate of the said prosecution. The counsel for the petitioners has however argued that when the investigation by the State W.P.(C)2045/2001 Page 3 of 6 itself which was then controlling DVB revealed that an employee of DVB was liable for the lapse and the said employee was arrested and was being prosecuted, it prima facie shows the negligence of the respondent no.1 BSES Rajdhani Power Ltd. as the successor of DVB and the petitioners are entitled to compensation on this ground. Reliance is placed on para 6 of H.S.E.B. Vs. Ram Nath (2004) 5 SCC 793 laying down that an electricity company carrying on a business which is inherently dangerous ought to know that if a person were to come into contact with a high-tension wire, he is bound to receive serious injury and/or die and would thus be liable.
5. Per contra, the counsel for the respondent no.1 has contended that in view of the dispute raised in the counter affidavit, the petitioners ought to be relegated to a suit. He has fairly stated that since the writ petition has remained pending in this Court for long and the limitation for filing the suit may have lapsed, the petitioners can be given benefit of Section 14 of the Limitation Act as has been given in the judgments listed in the counter affidavit.
6. The judgment in the case of Ram Nath (supra) related to death of a W.P.(C)2045/2001 Page 4 of 6 five year child coming into contract with high-tension wire passing over the roof of her house. The facts in that case spoke for themselves and there were no disputed questions. However herein the deceased was a grown up person carrying on activity of barber shop. The petitioners have not filed any rejoinder to the counter affidavit of the respondent no.1. In the writ petition also no facts are given as to how the deceased came into contact with a live wire. Ordinarily, the wires transmitting electricity are above human height and there is no occasion for anyone to come into contract with the said wires and the wires supporting the pole are not energized. In this regard, the time of death of the deceased becomes important. The deceased died in the evening in the month of November when it gets dark early. In the circumstances, the plea of the respondent no.1 that the deceased was attempting to illegally tap electricity and thus came into contact with the live wire, cannot be out rightly rejected. If the deceased had died in stark daylight when there would have been no occasion for him to so tap electricity to carry on of his hair cutting activity, it could have been presumed that the negligence was of the respondent no.1/its predecessor.
W.P.(C)2045/2001 Page 5 of 6
7. As far as the arguments of the counsel for the petitioners of the investigation by the State is concerned, the counsel for the petitioners has himself stated that the same leads to only a prima facie conclusion. No relief on the basis of such prima facie conclusion can be granted.
8. The petitioners are as such not found to have brought any such material or facts before this Court to lead to an inescapable conclusion of the negligence being of the respondent no.1/its predecessor for the relief of compensation to be granted in writ jurisdiction.
9. The writ petition is therefore dismissed as not maintainable. However, subject to the petitioners filing a suit for compensation on or before 30th April, 2011, the same shall be entertained without any objection as to limitation and shall be decided on merits.
No order as to costs.
RAJIV SAHAI ENDLAW (JUDGE) MARCH 07, 2011 bs W.P.(C)2045/2001 Page 6 of 6