Lilly Stanislaus v. The Chairman T.N.E.B. 300 Anna Salai Chennai 600 002

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:11-2-2008CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIW.P.No.10954 of 1997.....Lilly Stanislaus... Petitionervs.1.The Chairman T.N.E.B. 300 Anna Salai Chennai 600 002.2.The Chief Engineer T.N.E.B. Electricity Avenue 300 Anna Salai Chennai 600 002.3.The Assistant Engineer T.N.E.B. Madhavaram, Chennai.... RespondentsWrit petition filed under Article 226 of the Constitution ofIndia praying for issuance of a Writ of Mandamus as statedtherein.For petitioner: Mr. I.ArokiasamyFor respondents: Mr. R.Subbaih..ORDERThe writ petition is filed for direction against therespondents to pay an amount of Rs.3 lakhs by way of compensationto the petitioner for the death of her husband.2. The petitioner is the wife of one Stanislaus, who was workingin Sri Kutchi Milan (Madras) Charitable Trust, Purasawalkam https://hcservices.ecourts.gov.in/hcservices/ and they have a married daughter apart from one un-married sonRuben and un-married daughter Jaculine. On 14.06.1996, in theearly morning at 5.00 a.m. the petitioner's husband went to procuremilk from the nearby Aavin Milk Booth. On the night there washeavy rain and when her husband was passing in Anna Street, nearthe tea shop, he had to step on the live wire, snapped fromelectrical post No.146 and he was thrown down due to electrocution.One boy by name Nataraj, tried to pull him and he was alsoelectrocuted and it was after two hours electric supply wasdisconnected and in the meantime, the petitioner's husband died onthe spot.2(a). A complaint was lodged to the Sub-Inspector of Police, G-1, Madhavaram Police Station, Madhavaram and First InformationReport was registered in Crime No.559/96 dated 17.06.1996. In thepost-mortem conducted on 17.06.1996, it was found that the area of2nd degree burns on the sacral region 45 x 20 cms. with blackeningand charring of the skin and the cause of death as per the saidcertificate consistent with the history of death was due toelectrocution.2(b). It is the case of the petitioner that due to thenegligence, carelessness and failure to perform the duty on thepart of the respondents in maintaining the electric poles properly,the accident has occurred, resulting the death of the petitioner'shusband. It is also the case of the petitioner that it wasbecause of the respondent's negligence in not maintaining theelectric poles with automatic fuse, which were not actuallyfunctioning, the petitioner has lost the only bread-winner of thefamily. The petitioner has also stated that there is violation ofvarious provisions of the Indian Electricity Act. The petitionerhas made many representations to the respondents and since therewas no reply, ultimately issued a legal notice on 17.06.1996. Itis the case of the petitioner that her husband was aged 50 years atthe time of death and he was physically healthy and has claimed anamount of Rs.3 lakhs by way of compensation for the death of herhusband.3. The respondents have filed counter affidavit. While it isadmitted that the petitioner's husband died due to electrocution onthe road on 14.06.1996 at 5.30 hours in the morning, it is the caseof the respondent Electricity Board that immediately on receivingsuch information over phone, a representative of the Board went tothe spot and at that time the third respondent was informed thatthe victim was admitted in the hospital for treatment. On enquiry,the respondent Board found that a person aged about 55 years wassnapped by the live conductor and his name https://hcservices.ecourts.gov.in/hcservices/ was Stanislaus. It is also admitted that the electrocution tookplace on the road when the said Stanislaus was proceeding from hishouse to nearby milk booth. It is also the case of the respondentBoard that it was due to heavy storm and rain on 14.06.1996, theaccident has taken place. However, it is the case of therespondent Board that the Board has been maintaining the poles andwires in good condition. It is also the further case of therespondent Board that the accident took place due to heavy rain andit is an act of God beyond the control of Electricity Board andthere was no negligence on the part of the respondent Board. Theallegation of the petitioner that the accident took place due tothe carelessness of the Board is denied. It is also further statedthat without prejudice to the above said contention thecompensation claimed is high.4. I have heard the learned counsel for the petitioner andrespondents and perused the relevant records.5. The learned counsel appearing for the petitioner wouldsubmit that on the factual issue there is no dispute that thepetitioner's husband died due to electrocution and by applying theprinciples of strict liability, the petitioner is entitled tocompensation. The learned counsel also submits that the SupremeCourt has held that even assuming that the Electricity Board hastaken all safety measures, the Board is liable to compensateirrespective of negligence or carelessness on the part of theManagers of such undertakings. The learned counsel would rely uponthe judgement of the Supreme Court in M.P.Electricity Board vs.Shail Kumari and others [2002 (2) SCC 162]. The learned counselwould also submit that while exercising the jurisdiction underArticle 226 of the Constitution of India, this Court can grantcompensation by relying upon the judgement of the Supreme Court inSmt.Kumari vs. State of Tamil Nadu and others (AIR 1992 SC 2069).The learned counsel would further rely upon the judgement of theSupreme Court in M.C.Mehta vs. Union of India (AIR 1987 SC 1086),where while exercising jurisdiction under Article 32 of theConstitution of India, the Hon'ble Supreme Court while dealingwith the claims of the victims of Oleum Gas escape for payment ofcompensation against Shriram, has directed the Deli Legal Aid andAdvice Board to take up the cases of sufferers to proceed by filingnecessary application for compensation and directing the High Courtto nominate one or more Judges for trying such action, toexpeditiously decide the amount of compensation. The learnedcounsel also relied upon the judgement of the Supreme Court inTamil Nadu Electricity Board vs. Sumathi and others (2000 (4) SCC543), which was dealing with the appeal of Tamil Nadu ElectricityBoard itself, wherein it was held that the power of the High Court https://hcservices.ecourts.gov.in/hcservices/ under Article 226 is vast and based on the guidelines issued by theSupreme Court and also the self-imposed limitations, the High Courtcan exercise its jurisdiction.6. On the other hand, the learned counsel for the respondentElectricity Board would rely upon an unreported judgement of thisCourt in W.P.No.10310 of 1999 dated 31.07.2006 (P.Kumaresan vs.Tamil Nadu Electricity Board and others) wherein, in respect ofdisability suffered due to the conduct of the respondentElectricity Board, this Court has granted compensation ofRs.1,80,000/-. The learned counsel has also submitted a DivisionBench judgement in W.P.No.5217 of 1999 dated 05.01.2007 (ParezadeMama vs. State of Tamil Nadu rep. By Secretary to Government,Electricity Department and others) wherein, the Electricity Boardand the Municipality apart from a Lodge were directed to paycompensation in respect of the injuries sustained by childrenresulting in amputation. However, the learned counsel submittedthat the claim of the petitioner is of tortious liability, whichrequires a factual evidence, and therefore, the writ petitioncannot be entertained.7. A reference to the counter affidavit makes it clear thatthere is no dispute about the death of the husband of thepetitioner on 14.06.1996 due to electrocution and it is also not indispute that the electrocution is because of the falling ofelectric line on the road. Even though it is stated that it wasnot due to the negligence on the respondent Electricity Board, butdue to "act of God", the fact remains that the petitioner'shusband died due to electrocution. 8. A reference to the post-mortem certificate issued by theAdditional Professor of Forensic Medicine, Stanley Medical CollegeHospital, Madras-1 dated 17.06.1996 makes it clear that the deathwas due to electrocution. The relevant portion of the certificatewhich is not in dispute is as follows:"An area of IInd degree burns on the sacral region 45 x20 cms. with blackening and charring of the skin.Internal Examination:- Heart - Filled with fluid blood.Lungs - Congested; Hyoid bone:Intact;Stomach:-Empty; Liver: Spleen & Kidneys:-Congested;Bladder:Empty; Brain:Congested.Cause of death: Post mortem findings consistent with thehistory of death due to electrocution." https://hcservices.ecourts.gov.in/hcservices/

9. The petitioner's specific case is that her husband wasworking as a "Watchman" in Sri Kutchi Milan (Madras) CharitableTrust, which was supported by a certificate issued by the saidTrust dated 03.09.1996, which states that the petitioner's husbandhas been working for the last 3½ years and drawing a gross salaryof Rs.1,500/- per month, which is as follows:" Dated:3.9.96 To Saint Andrews ChurchChoolai,Madras.THIS IS CERTIFY THAT SRI STANISLAUS HAS BEEN WORKINGAS A WATCHMAN SINCE THE LAST 3 ½ YEARS AND WAS DRAWING AGROSS SALARY OF RS.1500/- PER MONTH."10. The fact of employment of the petitioner's husband is notdenied in the counter affidavit, however the counter affidavitstates that the age of the said Stanislaus was 55 years. The FirstInformation Report has also been registered on the complaint givenby S.R.Ruban, son of the said deceased Stanislaus. Even though thepost-mortem certificate states the age of the deceased as 50 years,the affidavit filed by the petitioner in support of the writpetition dated 21.07.1997 shows that her age at the time filing ofwrit was 50 years and therefore, the age of the petitioner'shusband on the date of his death, viz., on 14.06.1996 may not be 50and it may be slightly more than that.11. It is also not in much dispute that the petitioner'shusband was the only bread-winner of the family and the petitionerhas three children out of whom one daughter got married and thereis one unmarried daughter and an un-married son. It was held bythe Hon'ble Supreme Court in M.P.Electricity Board vs. Shail Kumariand others [2002 (2) SCC 162] that the liability of the ElectricityBoard under Law of Torts to compensate for the injuries sufferedcannot be denied on the basis that the Electricity Board has takenall safety measures since the liability of the Department is strictliability, relying upon the renowned and celebrated case on theissue, viz., Rylands vs,. Fletcher (1868 (3) HL 330 : 1861-73 AllER Rep.1). The Supreme Court has held as follows:"8. Even assuming that all such measures have beenadopted, a person undertaking an activity involvinghazardous or risky exposure to human life, is liable underlaw of torts to compensate for the injury suffered by anyother person, irrespective of any negligence orcarelessness on the part of the managers of such https://hcservices.ecourts.gov.in/hcservices/ undertakings. The basis of such liability is theforeseeable risk inherent in the very nature of suchactivity. The liability cast on such person is known, inlaw, as "strict liability". It differs from the liabilitywhich arises on account of the negligence or fault in thisway i.e. the concept of negligence comprehends that theforeseeable harm could be avoided by taking reasonableprecautions. If the defendant did all that which could bedone for avoiding the harm he cannot be held liable whenthe action is based on any negligence attributed. But suchconsideration is not relevant in cases of strict liabilitywhere the defendant is held liable irrespective of whetherhe could have avoided the particular harm by takingprecautions. 9. The doctrine of strict liability has its origin inEnglish common law when it was propounded in thecelebrated case of Rylands v. Fletcher (1868 (3) HL 330 :1861-73 All ER Rep.1). Blackburn, J., the author of thesaid rule had observed thus in the said decision: (All ERp. 7E-F) "[The true rule of law is that the person who, for his ownpurposes, brings on his land, and collects and keeps thereanything likely to do mischief if it escapes, must keep itat his peril, and, if he does not do so, he is prima facieanswerable for all the damage which is the naturalconsequence of its escape."Therefore, it is too late for the respondent Board to raise theplea as if the respondent Board is not negligent and they are notliable.12. In Tamil Nadu Electricity Board vs. Sumathi and others(2000 (4) SCC 543), even though the Hon'ble Supreme Court has heldthat in cases of disputed questions of fact in existence, on theface of unequivocal denial of tortious liability, seeking remedyunder Article 226 may not be proper, it was held that the samecannot be understood that in every case of tortious liability theaffected party should be directed to resort to filing of suit,holding that when there is negligence on the face of it, the sameto be treated under Article 21 of the Constitution of India and insuch circumstances, to enforce the basic human rights, Article 226can be pressed into service. On the facts of the said case, theSupreme court has come to the conclusion that a disputed questionsof fact was involved, but held in the circumstances of the casethat the appellant Electricity Board shall not recover the amount https://hcservices.ecourts.gov.in/hcservices/ which has been paid to the respondents/victims. In that context,the Supreme Court has held as under:"10 . In view of the clear proposition of law laid bythis Court in Sukamani Das case (1999 (7) SCC 298) when adisputed question of fact arises and there is clear denialof any tortious liability remedy under Article 226 of theConstitution may not be proper. However, it cannot beunderstood as laying a law that in every case of tortiousliability recourse must be had to a suit. When there isnegligence on the face of it and infringement of Article21 is there it cannot be said that there will be any barto proceed under Article 226 of the Constitution. Right oflife is one of the basic human rights guaranteed underArticle 21 of the Constitution. In U.P. State Coop. LandDevelopment Bank Ltd. v. Chandra Bhan Dubey (1999 (1) SCC741 : 1999 SCC (L&S) 389) where one of us (Wadhwa, J.) wasa party, this Court after examining various decisions ofthe courts on the power of the High Court under Article226 of the Constitution observed that the language ofArticle 226 of the Constitution does not admit of anylimitation on the powers of the High Court for theexercise of jurisdiction thereunder though by variousdecisions of this Court with varying and divergent views,it has been held that jurisdiction under Article 226 canbe exercised only when a body or authority, the decisionof which is complained, was exercising its power in thedischarge of public duty and that writ is a public lawremedy. This Court then observed: (SCC pp. 758-59, para27) "[It may not be necessary to examine any further thequestion if Article 226 makes a divide between public lawand private law. Prima facie from the language of Article226, there does not appear to exist such a divide. Tounderstand the explicit language of the article, it is notnecessary for us to rely on the decision of English courtsas rightly cautioned by the earlier Benches of this Court.It does appear to us that Article 226 while empowering theHigh Court for issue of orders or directions to anyauthority or person, does not make any such differencebetween public functions and private functions. It is notnecessary for us in this case to go into this question asto what is the nature, scope and amplitude of the writs ofhabeas corpus, mandamus, prohibition, quo warranto andcertiorari. They are certainly founded on the Englishsystem of jurisprudence. Article 226 of the Constitutionalso speaks of directions https://hcservices.ecourts.gov.in/hcservices/ and orders which can be issued to any person or authorityincluding, in appropriate cases, any Government. Underclause (1) of Article 367, unless the context otherwiserequires, the General Clauses Act, 1897, shall, subject toany adaptations and modifications that may be made thereinunder Article 372, apply for the interpretation of theConstitution as it applies for the interpretation of anAct of the legislature of the Dominion of India. ‘Person’under Section 2(42) of the General Clauses Act shallinclude any company, or association or body ofindividuals, whether incorporated or not. The Constitutionis not a statute. It is a fountainhead of all thestatutes. When the language of Article 226 is clear, wecannot put shackles on the High Courts to limit theirjurisdiction by putting an interpretation on the wordswhich would limit their jurisdiction. When any citizen orperson is wronged, the High Court will step in to protecthim, be that wrong be done by the State, aninstrumentality of the State, a company or a cooperativesociety or association or body of individuals, whetherincorporated or not, or even an individual. Right that isinfringed may be under Part III of the Constitution or anyother right which the law validly made might confer uponhim. But then the power conferred upon the High Courtsunder Article 226 of the Constitution is so vast, thisCourt has laid down certain guidelines and self-imposedlimitations have been put there subject to which the HighCourts would exercise jurisdiction, but those guidelinescannot be mandatory in all circumstances. The High Courtdoes not interfere when an equally efficacious alternativeremedy is available or when there is an establishedprocedure to remedy a wrong or enforce a right. A partymay not be allowed to bypass the normal channel of civiland criminal litigation. The High Court does not act likea proverbial ‘bull in a china shop’ in the exercise of itsjurisdiction under Article 226." (Emphasis supplied)13. In yet another case in Smt.Kumari vs. State of Tamil Naduand others (AIR 1992 SC 2069), when a six year old boy of theappellant died falling in a 10 feet deep uncovered sewerage tank inthe City of Madras and the writ petition filed by the appellant wasdismissed by the High Court, while setting aside the saidjudgement, the Supreme Court has directed the State Government to https://hcservices.ecourts.gov.in/hcservices/ pay compensation of Rs.50,000/- with interest to the appellant,however with a direction that the State Government can recover thesaid amount from appropriate authority, since the authority who isliable for negligence was not able to be determined. The operativeportion of the above cited judgement is as follows:"3. In the facts and circumstances of this case we setaside the High Court judgement and direct that respondent1, the State of Tamil Nadu shall pay to the appellant asum of Rs.50,000 (Rupees fifty thousand) with interest at12 per cent per annum from January 1, 1990 till the dateof payment. The amount shall be paid within six weeks fromtoday. It will be open to the State of Tamil Nadu to takeappropriate proceedings to claim the said amount or anypart thereof from any of the respondents or any otherauthority which might be responsible for keeping thesewerage tank open. The claim, if made, will be decided inaccordance with law. The appeal is allowed in the aboveterms. There will be no order as to costs. 14. A Division Bench of this Court (P.K.Misra andS.Rajeswaran,JJ) in W.P.No.5217 of 1999 ((Parezade Mama vs. Stateof Tamil Nadu rep. By Secretary to Government, ElectricityDepartment and others), while dealing with the case of death of themother and father of the children, who died when the childrenplaying in a lodge were to touch the running over head high tensionline approximately 3 feet from the balcony of the lodge and theparents while attempted to rescue the children, by relying uponthe judgement of the Supreme Court in Nath Bros. Exim InternationalLtd., vs. Best Roadways Limited (2000 (4) SCC 553) held that on theface of the conduct of the public authority, there is infringementof Article 21, and there is no bar for the High Court to proceedunder Article 226 of the Constitution of India by grantingnecessary damages, as follows: "17. It is true that writ petitions for claimingdamages cannot be resorted when there is a clear denial oftortious liability. At the same time when the negligenceis per se visible and it infringes Article 21, reliefclaiming damages could be granted under Article 226 of theConstitution of India.18. In 2000 (4) SCC 553 (Nath Bros. EximInternational Ltd. vs. Best Roadways Ltd.,), the Hon'bleSupreme Court no doubt held that the writ petition filedunder Article 226 of the Constitution of India, High Courtcannot grant compensation to the family of victim who died https://hcservices.ecourts.gov.in/hcservices/ by electrocution. However, in the very same judgement theHon'ble Supreme Court held that when there is negligenceon the face of it and infringement of Article 21 is there,it cannot be said there will be any bar to proceed underArticle 226 of the Constitution of India."Ultimately, leaving it to the appropriate forum to decide the finalcompensation, an interim compensation of Rs.2 lakhs was awarded inthe following terms."22. Therefore, in our opinion negligence on the partof the Electricity Board, municipality and the lodge isper se visible and this negligence definitely infringesArticle 21 of the Constitution of India and therefore weare of the considered opinion that interim compensationcan be awarded in this writ proceedings, leaving the finalquantum to be decided by an appropriate forum.23. Considering the nature of the extensive injuriessuffered by the minor children, the loss of their parentsand the exorbitant medical expenses, to rehabilitate thechildren we award a sum of Rs.6 lakhs in total to be paidequally by the municipality-4th respondent, Tamil NaduElectricity Board (second respondent) and the lodge-6threspondent. As such, each of them shall pay a sum of Rs.2lakhs as interim compensation to respondents 9 and 10within a period of three months from the date of receiptof a copy of this order."15. By applying the ratio laid down in the above cases to thefacts and circumstances of the present case, there is no difficultyto come to the conclusion that no further factual assertion isrequired since the incident is not denied; the death of thepetitioner's husband is not in dispute. In respect of age, whilethe petitioner states it was 50, the respondent says it is 55, andin the circumstance that the petitioner's husband himself wasearning only Rs.1,500/- per month as consolidated amount and evenif half of the amount is taken as the amount which he would havecontributed to the benefit of the family and by taking his age atthe time of death as 53 years, and fixing another 10 years as hisexpectation of life, the amount which can be paid to the petitionerwill be around Rs.90,000/-.16. Taking into consideration of the fact that the writpetition has been pending in this Court from 1997, I am of theconsidered view that at this late point of time the petitioner cannot be driven to Civil Court and therefore she has to be https://hcservices.ecourts.gov.in/hcservices/ compensated. In view of the same, the writ petition is disposed ofwith a direction to the first respondent, Electricity Board to payan amount of Rs.90,000/- (Rupees ninety thousand only) ascompensation to the petitioner for the death caused to her husbandStanislaus in the electrocution which took place on 14.06.1996. Nocosts.KhSd/-Asst. Registrar./true copy/Sub Asst. Registrar.To1.The Chairman T.N.E.B. 300 Anna Salai Chennai 600 002.2.The Chief Engineer T.N.E.B. Electricity Avenue 300 Anna Salai Chennai 600 002.3.The Assistant Engineer T.N.E.B. Madhavaram, Chennai.1 cc to M/s.I.Arokiasamy, Advocate, SR.6707avm (co)dv/19.2.W.P.No.10954 of 1997