Also he ard Mr. D. Bhattacharjee v. Nos. 1 & 2. 2

By this writ petition, the petitioner has sought for a direction from this Court to be issued against the respondents for payment of compensatio n of an amount of Rs. 5 lakhs arising out of the death of the husband by electro cution. 3. The petitioner has stated that on 25.06.2004 at about 9 A.M. the petitioner’s husband was going to Nalirpam L. P. School by boat to drop his two minor daughters as the area was flooded. On the way, one live electric wire was found lying on the water. The petitioner’s minor daughter namely Mafida got an electric shock when she touched the said electric wire. The petitioner’s husband tried to remove the wire to save her daughter. As a result, the petitioner’s hu sband got electrocuted. Even though the petitioner’s husband was brought to the hospital immediately after the incident, her husband died. Post mortem was done at the Civil Hospital, Barpeta and thereafter, the petitioner received the body of her husband from the police. 4. An FIR was also lodged by the police in connection with the afor esaid accident. A copy of the post-mortem report in respect of the death of her husband has been annexed which shows that in the opinion of the doctor who cond ucted the post mortem, the death was due to cardiac arrest as a result of electr ocution. 5. The case of the petitioner is that the death of the petitioner’s husband by electrocution was due to negligence on the part of the electricity authorities. The learned counsel for the petitioner submits that at that time there was flood which had raised the level of the water. However, the Electrici ty authority did not take any precautionary steps or any preventive measures to ensure that the wire did not touch the water. 6. The learned counsel for the petitioner also submits that unless the wire came down very low, it could not have touched the water. Therefore, the fact that the live electric wire were hung at such a low level shows that the e lectricity authorities had neglected in maintaining proper heights of the runnin g live wire. 7. The Respondents No.1 and 2, Electricity authority filed an affid avit-in-opposition, in which it has been stated that an enquiry/investigation wa s conducted by the officials of the Assam State Electricity Board on 03.01.2006 after receipt of notice from this Court. In the said enquiry, it was concluded that at the place of the incident, there exists a 230 volt of Low Tension electr icity supply wire. It was also stated that on the day of the accident, the entir e Barpeta District was under heavy flood for which the petitioner’s husband had to take recourse to a boat to transport his minor daughters to their school. The petitioner’s husband used a bamboo to ride the boat. Due to heavy flood, the wa ter level had considerably risen to a high level and the accident occurred due t o low spacing of the conductor and the level of the water and further due to the bamboo carried by the deceased coming in contact with the live conductor. It ha s also stated that snapping of electrical wire was not reported during that peri od in that particular area. It has been further stated in the affidavit-in-opposition that i 8. t was beyond the control of the Electricity Board to prevent the death of the hu sband of the petitioner as the death of the husband of the petitioner was not du e to any negligence or carelessness on the part of the respondent Board in maint aining the 230 volt Low Tension electric supply line, but it was due to natural calamities which was beyond the control of the electricity Board for which the B oard cannot be held liable to pay compensation as claimed by the petitioner in t he instant petition. 9. It was asserted by the Respondents that no negligence can be at tributed to the respondent Board as the alleged accident took place due to heavy flood and high rise of water level and not due to non-maintenance of the said e lectric line. It was submitted that the accident took place due to reasons beyon d the control of the electricity Board and the Electricity Board cannot be held responsible for such unfortunate accident. As such, it would be unwarranted to b urden the Electricity Board for an accident occurring due to natural calamities. 10. Mr. D. Bhattacharjee, learned State counsel appearing for the re spondent Nos. 1 & 2 further submits that as required under Section 161 of the El ectricity Act, 2003 an enquiry has to be conducted by the Electrical Inspector a fter any accidental occurrence of death or loss of human life or injury arising out of supply or distribution or use of electricity or electrical lines. 11. The learned counsel, therefore, submits that in absence of the e nquiry report made by the aforesaid Electricity Inspector, it may not be appropi rate to put the blame on the Electricity Board as to the cause of death of the p etitioner. It would also not be proper to put liability on the electricity Board without heaving any reference to any such report to be made by the Electrical I nspector. 12. Even though it is desirable on the part of this Court to refer t o any enquiry report prepared by the Electrical Inspector as provided under Sect ion 161 of the Electricity Act, 2003, however, in view of the fact that the Res pondent Nos. 1 & 2 had themselves made an enquiry on 03.01.2006, the absence of the enquiry report of the Electrical Inspector would not come in the way of thi s Court in exercise power under Article 226 while dealing with the claim of the petitioner for compensation which is, admittedly under public law remedy.

#13. Normally the Writ Courts functioning under Article 226 of the Co nstitution of India, is not the appropriate forum for dealing with claims for co mpensation or damages which are dealt with by the Civil Courts. However, during the last about three decades, there has been tremendous developments in the fiel d of public law whereby the Courts exercising jurisdiction under Art. 226 or the Supreme Court under Art. 32 have entertained and granted compensation and damag es in appropriate cases. 14. The traditional view of sovereign and non-sovereign function of the State which restricted the liabilities of the State as explained by the Cons titutional Bench Judgment of (cid:28)Kasturi Lal -vrs.- State of U.P. : AIR 1965 SC 103 9, has now been diluted to a great extent making the liability of the State more extensive. In N. Nagendra Rao -vrs.- State of A.P. AIR 1994 SC 2663, a thre e Judge Bench of the Supreme Court succinctly explained the thin line that divid es the non sovereign functions and sovereign functions and observed that any suc h compartmentalisation of the functions of the State as sovereign and non sovere ign is no more sound jurisprudential view considering the myriad functions disch arged by the State in a welfare State like India which touch upon the lives of l arge number of citizen in their day to day affairs and that there is no rational for the proposition that even if the officer is liable, the State can not be s ued. It was also observed that the ratio of Kasturi Lal (Supra) would be applicable in those rare and limited cases where statutory authority acts as a delegate of such functions for which it can not be sued in a Court of law. The principle of strict liability which was propounded in the famous case of (cid:28)Ry lands -vrs.- Fletcher (cid:29) (1868) LR 3 HL 330, (cid:28)Donoghue -vrs.- Stevenson (cid:29) (1932) AC 562 continues to be the guiding principle with the Courts. The maxim (cid:28)res-ipsa loquitur (cid:29) is applied by our Courts in those cases where the State agents or offi cials are dealing with hazardous objects or explosive substances. 15. The Supreme Court in the landmark judgement of Nilabati Behera v . State of Orissa, (1993) 2 SCC 746, after discussing the earlier cases in which the Supreme Court had intervened and awarded compensation for violation of fund amental rights succinctly explained the jurisprudential basis for such judicial interventions. The legal principles forming the basis of intervening and awardin g damages/compensation in writ proceedings which was otherwise within the purvie w of the normal civil courts explained in Nilabati Behera’s case (supra), has be en reiterated in D.K. Basu v. State of W.B., (1997) 1 SCC 416, where it observed that, (cid:28)44. The claim in public law for compensation for unconstitutional deprivation o f fundamental right to life and liberty, the protection of which is guaranteed u nder the Constitution, is a claim based on strict liability and is in addition t o the claim available in private law for damages for tortious acts of the public servants. Public law proceedings serve a different purpose than the private law proceedings. Award of compensation for established infringement of the indefeas ible rights guaranteed under Article 21 of the Constitution is a remedy availabl e in public law since the purpose of public law is not only to civilise public p ower but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved. Grant of compensat ion in proceedings under Article 32 or Article 226 of the Constitution of India for the established violation of the fundamental rights guaranteed under Article 21, is an exercise of the courts under the public law jurisdiction for penalisi ng the wrongdoer and fixing the liability for the public wrong on the State whic h failed in the discharge of its public duty to protect the fundamental rights o f the citizen. The Supreme Court thus held that the defence of sovereign immuni 16. ty being inapplicable, and alien to the concept of guarantee of fundamental righ ts, there can be no question of such a defence being available in the constituti onal remedy. It is this principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when th at 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 enfo rcement of the fundamental right is claimed by resort to the remedy in public la w under the Constitution by recourse to Articles 32 and 226 of the Constitution. 17. The aforesaid principle which was adopted initially mainly to de al with cases of abuse of human rights, was gradually extended to other cases of violation of fundamental rights, viz. cases where loss of lives occurred due to negligent acts of the state or its agents as being violative of Article 21 of t he Constitution of India by invoking the principles of strict liability. It has been held by the Supreme Court in (cid:28)Municipal Corporation of Delhi, Delhi Vs. Association of Victims of Uphaar Tragedy and Ors. (cid:29), AIR 2012 SC100 , (cid:28) 58. Courts have held that due to the action or inaction of the State or its of fices, if the fundamental rights of a citizen are infringed then the liability o f the State, its officials and instrumentals is strict. Claim raised for compens ation in such a case is not a private law claim for damages, under which the dam ages recoverable are large. Claim made for compensation in public law is for com pensating the claimants for deprivation of life and personal liberty which has n othing to do with a claim in a private law claim in tort in an ordinary civil co urt. 59. This Court in Union of India v. Prabhakaran (2008) (9) SCC 527, extended the principle to cover public utilities like the railways, electricity distribution companies, public corporations and local bodies which may be social utility und ertakings not working for private profit. ............ & & & &. ................... ....... (cid:29). In M.P. Electricity Board v. Shail Kumari, (2002) 2 SCC 162, the Supreme Court h eld that, (cid:28)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 trapp ed into it the primary liability to compensate the sufferer is that of the suppl ier of the electric energy. So long as the voltage of electricity transmitted th rough 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 energ y 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 o f the Board that somebody committed mischief by siphoning such energy to his pri vate property and that the electrocution was from such diverted line. It is the lookout of the managers of the supply system to prevent such pilferage by instal ling necessary devices. At any rate, if any live wire got snapped and fell on th e public road the electric current thereon should automatically have been disrup ted. 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, irrespe ctive of any negligence or carelessness on the part of the managers of such unde rtakings. The basis of such liability is the foreseeable risk inherent in the ve ry 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 t hat the foreseeable harm could be avoided by taking reasonable precautions. If t he 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 con sideration is not relevant in cases of strict liability where the defendant is h eld liable irrespective of whether he could have avoided the particular harm by taking precautions. (cid:29) 18. In the present case, as per the petitioner, as well as, as pe r the findings of the Respondent Nos. 1 & 2, it appears that there was flood in the Barpeta area because of which the water level had risen considerably. It is not the case of anybody that there was a flash flood or sudden rise in the wate r level on the day of occurrence. It was also not the case of anybody that wate r level rose so high that it almost submerged the poles or the live wire. It see ms to be a normal flood. Flood is a normal and routine natural occurrence in tha t part of the State during rainy season which was reasonably foreseeable. Theref ore, in view of the rise of the water level because of the flood during rainy se ason, the State Electricity Board ought to have taken such precautionary measure s to ensure that such hazardous wire like L T wire, do not come very near the ri sing water level. It was the duty of the Electricity Department to take all such appropriate steps to prevent any such possibility of live wire which was hazard ous in nature, to come close to the water level or to come in touch with rising water level. As required under Rule 29 of the Indian Electricity Rules, 1956, it was the duty of the electricity authorities to ensure proper maintenance of the live wire which included steps to prevent live wire coming close to high water level by maintaining proper height of the running wire. 19. There is nothing on record to show that steps had been taken by the State Electricity Board authorities to ensure that such hazardous wire is p roperly maintained by maintaining necessary heights in the stringing of wire to ensure that when the flood occurs in those part of the State, such live wire doe s not come in contact with water or come near the water level. 20. It has been admitted by the State Electricity Board that the acc ident occurred also due to low spacing of the conductor and level of water. It w as the duty of the authority to keep the electric installation and also to wires in safe bounds so that these are not easily accessible to general public and no t to cause any injury to a person passing nearby. In the instant case, it was th e duty of the Electricity Board to install the conductor/ electric wires at adeq uacy height so that the possibility of wire coming close to or touching the wate r level is prevented, which they had failed to do. The contention that the wire did not snap does not mitigate the liability or responsibility of the State Elec tricity authority in not maintaining proper height of the conductor in flood pro ne areas. 21. Accordingly, this Court is of the view that the electrocution of the hus band of the petitioner was due to negligent act on the part of the Assam State E lectricity Board. Thus, by causing death of the husband of the petitioner, the r ight to life of the husband of the petitioner guaranteed under Article 21 of the Constitution has been violated and this Court by exercise of powers under Art. 226 of the Constitution can award compensation in favour of the petitioner under public law remedy as discussed above.

#22. The petitioner’s husband was aged about 30 years and his monthly income was about Rs. 3000/-, and was stated to be the only earning member of th e family leaving behind the petitioner and four minor children. Though the Respo ndents have denied these averments as regards his profession and income, it will not come in the way of the Court to award compensation to the petitioner. The r espondents have not denied the facts about the legal heirs who have survived him , i.e. the petitioner and four daughters who were minors at the relevant time. 23. Therefore, the next question which arises for consideration is a s regards the quantum of compensation. There is no uniformity of yardstick follo wed in awarding damages for violation of Fundamental Rights as observed in D.K. Basu’s case (Supra). In fact in Sube Singh -vrs.- State of Hariyana 2006 SCC 178 , the Supreme Court held that the quantum of compensation will, depend upon the facts and circumstances of each case. The Supreme Court in Municipal Corporatio n of Delhi (supra), after considering the series of decision in this regard obse rved that in such circumstances, the Court can invoke its own method depending t he facts and circumstances of each case till appropriate comprehensive legislati on dealing with tortuous liabilities of the State, its instrumentalities is enac ted. Situated thus, we will now proceed to determine the amount of co 24. mpensation. In the present case there are not sufficient materials before this C ourt for awarding a definitive amount which the petitioner and other legal heirs may be deserving. Even though this Court had held in (cid:28)Fakir Chand -vrs.- State of Assam & Ors. (cid:29) reported in 2001(1) GLT 670 that the compensation can be based on reasonable guess work, this Court however, does not intend to determine com pensation on the basis of guesswork and would like to leave it to the appropriat e Court to determine the same. In view of the finding of this Court that there was negligence o n the part of the State Electricity Board in not properly maintaining the heigh t of hazardous LT live wire which was also responsible for the death of the husb and of the petitioner and also considering the fact that the deceased was about 30 years and left behind the petitioner and four minor daughters, two of whom w ere school going at the relevant time which have not been controverted by the R espondents, by invoking the principle of constitutional tort based on strict lia bility as discussed above, this Court is of the opinion that it would be just an d proper in the facts and circumstances of the case that the respondents be dire cted to pay a sum of Rs. 2,00,000/- (Rupees two lakhs) to the legal heirs of the deceased person, which may be adjusted at the time of final determination of th e adequate compensation by the appropriate civil court. 25. In this connection, the learned counsel for the Respondents subm its that the Assam State Electricity Board/State authorities had issued a Memora ndum on 02.09.2008 by which the amount for compensation in respect of the accide ntal victims who die due to electrocution have been already notified. In respect of persons up to age to 20 years, it has been fixed at Rs. 1 lakh and in respec t of age 20-55 years an amount of Rs. 1.5 lakhs have been fixed. That is a benef icial policy decision taken by the Assam State Electricity Board/authority in th e public interest to deal with such accidental cases as a palliative measure and not as a compensation for negligence on the part of the Electricity authority. Therefore, that provision will be in addition to the claim entitled to the peti tioner under the public law remedy for negligence on the part of the Electricity authority. Since the petitioner was about 30 years, the petitioner would be also entitled to a sum of Rs.1.5 lakhs in terms of the aforesaid memorandum dat ed 02.09.2008, which would be in addition to the sum of Rs. 2 lakhs awarded by this Court in the present proceeding. 26. As stated above, this compensation of the amount of Rs.2.0 lakhs is in addition to the claim for damages for compensation which the petitioner m ay claim under the normal remedy available. The Supreme Court has clarified in (cid:28) Sube Singh Vs. State of Haryana (cid:29) : 2006 (3) SCC 178 that award of such compensat ion (by way of public law remedy) will not come in the way of the aggrieved pers on claiming additional compensation in a civil court, in the enforcement of the private law remedy in tort, nor come in the way of the criminal court ordering c ompensation under Section 357 of Cr.PC. As such, the petitioner would be at libe rty to approach the competent Court of law for claiming higher compensation as s he may consider adequate in accordance with law. It is also clarified that the t ime spent on pursuing this claim under the present proceedings would not be coun ted for the purpose of limitation in approaching the appropriate Court of law cl aiming for an enhanced compensation under the normal civil law. 27. In view of the above, the State Electricity Board would be requi red to deposit the aforesaid amount of Rs. 2.0 lakhs in addition to Rs.1.5 lakhs , if not already paid, within a period of 3 (three) months with the Registry of this Court and the petitioner would be entitled to withdraw the same on being properly indentified. It is also provided that out of the aforesaid sum of Rs.2 lakhs awarded by this Court, a sum of Rs.1 lakh would be kept in a fixed deposit in a Scheduled Bank/Nationalized Bank in the name of the minor daughters of the petit ioner for a period of at least 5 years. With the above observations and directions, the petition is allo wed. No order as to costs.