Judgment · High Court · 2012

Heard Mr. M. Singh, learned counsel appearing for the petitioner. Also h eard Mr. D. Bhattacharjee, learned Standing Counsel, Assam State Electricity Boa rd (ASEB) for respondent Nos. 1, 2 & 3 and Mr. S. Chakraborty, learned State Cou nsel for respondent No.4.

#2. By way of this application under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents for payment of compen sation of Rs. 2,00,000/- to the victim Sri Ropen Gorh for the physical disabilit ies suffered by him in an electrical accident.

#3. Case of the petitioner is that on 30.05.2002, his cousin Sri Rop en Gorh, aged about 13 years, met with an electrical accident, which resulted in the amputation of his right hand. He was proceeding to the paddy field along th e village road at about 8:00 a.m. in the morning when he came in contact with a live electrical wire, which was hanging perilously close to the ground. The vict im was immediately rushed to the Assam Medical College Hospital, Dibrugarh. The attending doctors found that his right hand was severely burnt and damaged and i n order to save his life, the right hand had to be amputated. Alleging negligenc e on the part of ASEB officials, a number of applications were filed on behalf o f the victim seeking compensation but there was no response. Aggrieved, the peti tioner has filed the present writ petition.

#4. The Assam State Electricity Board (ASEB) has filed its counter a ffidavit. The allegation of negligence on the part of the Board officials has be en denied. It is stated that the accident could have happened due to attempt at electrical theft by some miscreants of nearby areas. This Court by order dated 17.02.2004 had admitted the writ petit 5. ion and directed the respondent No. 4, Electrical Inspector, Government of Assam to make necessary enquiry in respect of the incident of electrocution as narrat ed in the writ petition and thereafter to submit his report.

#6. The Chief Electrical Inspector-cum-Advisor, Government of Assam in his report-dated 17.06.2004 has narrated in detail about the accident as well as the factors which led towards occurrence of the accident. After deliberating upon the factors which led to the accident, the Electrical Inspector concluded that the concerned ASEB authorities at Titabor did not install any section fuse as required under the Indian Electricity Rules, 1956. It was held that non-insta llation of the section fuse in the tapping point of the 11KB line to Sildubi vil lage was a violation of Rule 59 of the aforesaid Rules on the part of the concer ned ASEB authorities. He also suggested measures to prevent re-occurrence of suc h accidents.

#7. Rule 59 of the aforesaid Rules provides for precautions against failure of supply and notice of failure. The said Rule is quoted here-under for ready reference: (cid:28) 59. Precautions against failure of supply: Notice of failures- (1) The layout of the electric supply-lines of the supplier for the supply of energy throughout his area of supply shall under normal working conditions be sectionalised and s o arranged, and provided with cut-outs or circuit-breakers so located, as to res trict within reasonable limits the extent of the portion of the system affected by any failure of supply. (2) The supplier shall take all reasonable precautions to avoid any accidental i nterruptions of supply, and also to avoid danger to the public or to any employe e or authorised person when engaged on any operation during and in connection wi th the installation, extension, replacement, repair and maintenance of any works . (3) The supplier shall send to the Inspector [or any officer of a specified rank and class appointed to assist the Inspector] notice of failure of supply of suc h kind as the Inspector [or any officer of specified rank and class to assist th e Inspector] may from time to time require to be notified to him, and such notic e shall be sent by the earliest practicable post after the failure occurs or aft er the failure becomes known to the supplier and shall be in such form and conta in such particulars as the Inspector may from time to time specify. [(4) For the purpose of testing or for any other purpose connected with the effi cient working of the undertaking, the supply of energy may be discontinued by th e supplier for such period as may be necessary, subject (except in cases of emer gency) to not less than 24 hours notice being given by the supplier to all consu mers likely to be affected by such discontinuance: Provided that the supply of energy shall be discontinued during such hou rs as are likely to interfere the least with the use of energy by consumers and the energy shall not be discontinued if the Inspector so directs] (cid:29)

#8. Having heard the learned counsel for the parties and on perusal of the materials on record, this Court is of the view that the Senior Electrical Inspector being a statutory authority, his report and opinion should not be lig htly brushed aside but should be given due consideration.

#9. Normally and as a general rule, claims of compensation based on tortious liability are to be decided in the Civil Court of competent jurisdictio n. But in a case of loss suffered because of negligence in the discharge of stat utory duty, there can be no bar for a writ Court to entertain a claim of compens ation for such loss.

#10. Even otherwise, considering the public character of the duties c arried out by ASEB and its successor companies, it cannot escape from the advers e consequence which may arise on account of any omission in the discharge of its duties by applying the principle of strict liability. Explaining the concept of strict liability, the Apex Court in the case on M. P. Electricity Board Vrs. Sh ail Kumari and others; reported in (2002) 2 SCC 162 held as under: (cid:28)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 unde r law of torts to compensate for the injury suffered by any other person, irresp ective of any negligence or carelessness on the part of the managers of such und ertakings. The basis of such liability is the foreseeable risk inherent in the v ery nature of such activity. The liability cast on such person is known, in law, as (cid:28)strict liability (cid:29). 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 b e held liable when the action is based on any negligence attributed. But such co nsideration 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 (cid:29) Again, this Court in the case of (cid:28)Mosht. Amena Bewa Vrs. Assam S

#11. tate Electricity Board & Ors.; reported in 2007 (3) GLT 32 held as under: (cid:28)12. Under the law, a very onerous obligation is cast on the Board in transmitti ng and supplying electrical energy. Having regard to the nature of the enterpris e undertaken, the Board has to be extra vigilant and cautious so much so that th e lives and properties of persons are not exposed to any risk or fatal consequen ces. This makes it incumbent on the Board to be meticulously watchful about the installation for supplying such energy so that any omission in maintaining the s ame would make it liable for all adverse consequences flowing therefrom followin g the principle of strict liability (cid:29)

#12. In view of the above and on consideration of the report of the S enior Electrical Inspector, this Court is of the view that ASEB is liable to pay compensation to the victim for the disabilities caused to him, which is of perm anent nature.

#13. Having held so, the quantum of compensation to be paid to the vi ctim is now required to be determined. In the case of Mosht. Amena Bewa (supra), this Court has held that compensation under Article 226 of the Constitution of India is in the nature of palliative and some guess work is inevitable, which sh ould however have to be reasonable.

#14. It is seen that ASEB had issued an office memorandum dated 22.12 .2008 fixing the amount of compensation in respect of victims of electrical acci dents who are not in employment in the ASEB. As per the said office memorandum, in the case of death of a person up-to the age of 20 years, the amount of compen sation has been fixed at Rs. 1,00,000/-. In case of injuries, the compensation i s to be determined as per provisions of Workmen’s Compensation Act, 1923.

#15. In the present case, the victim was aged about 13 years at the t ime of the accident and he belongs to the tea garden community. The permanent di sability that he has suffered because of the electrical accident would have a de cisive bearing on his earning capacity. Without carrying out the exercise as is required under the provisions of the Workmen’s Compensation Act, 1923, in the ab sence of evidence adduced, keeping in mind that the ASEB authorities have themse lves fixed Rs. 1,00,000/- for a fatal case in case the victim is below 20 years age, which however, appears to be on the lower side considering the high level o f inflation, this Court is of the view that the victim Sri Ropen Gorh should be paid a compensation of Rs. 1.25 lakhs. The said amount shall be deposited by the ASEB within a period of 6 (six) weeks from today in the Registry of this Court, which shall be released to the victim on proper identification by his counsel. It is also made clear that if the victim is not satisfied with t 16. he aforesaid amount, it will be open for the victim to institute appropriate pro ceeding in accordance with law before the competent Civil Court for higher compe nsation.

#17. Writ petition stands disposed of.