K.Sundari v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 15.04.2009CORAMTHE HONOURABLE MR. JUSTICE K.N. BASHAW.P.No.19668 of 1999K.Sundari.. PetitionerVs1. The State of Tamil Nadu rep. by its Secretary to Government, Department of Electricity, Chepauk, Chennai-600 009.2. The Chairman, Tamil Nadu Electricity Board, Anna Salai, Chennai-600 002. .. RespondentsPrayer :Writ Petition filed under Article 226 of the Constitutionof India to issue a Writ of Mandamus, directing the respondents topay the petitioner and her minor children adequate compensation forthe loss of life of Kanniappan arising out of the gross negligence ofthe 2nd respondent.For Petitioner : Mrs.Chitra SampathFor 1st Respondent : Mrs.Lita Srinivasan, Government AdvocateFor 2nd Respondent : Mr.A.Selvendran, Standing Counsel for TNEBO R D E RThe petitioner has come forward with this petition seeking forthe relief of direction to the respondents to pay adequatecompensation to the petitioner and her minor children as the livingelectricity wire snapped and fell on the street snatched the life ofher husband, one Kanniappan.2.The case of the petitioner is that her husband was workingas a piece work civil contractor and earning not less than Rs.200/-per day and he was aged about 50 years at the time of his death. It https://hcservices.ecourts.gov.in/hcservices/ is submitted that while the petitioner's husband was returning to hishouse on the way he came into contact with the live wire hanging fromabove snapped and fell on the street, namely, Shivaji Street,T.Nagar, Chennai, on 9.10.1998 and died on the spot due toelectrocution. 3. The further case of the petitioner is that the secondrespondent department gave a police complaint and the body of herhusband was also subjected to postmortem examination. The opinion ofthe Doctor as per the postmortem certificate is that the deceaseddied due to electrocution. It is submitted that the live wire whichfell on the street wherein the occurrence said to have taken placewas under the care and maintenance of the department of the secondrespondent. In view of the death of the husband of the petitioner,who was the sole bread winner of the family, the petitioner alongwith her three children are unable to make their ends meet.Thereafter, the petitioner sent a representation to the secondrespondent on 5.2.1999 requesting for adequate compensation and thesaid representation was received and acknowledged by the secondrespondent and no reply was given by the second respondent till thefiling of the Writ Petition. Hence the petitioner has beenconstrained to come forward with this Writ Petition.4.Mrs.Chitra Sampath, learned counsel appearing for thepetitioner contended that the husband of the petitioner died due toelectrocution while he came into contact with live wire hanging fromthe electrical post snapped and fell on the street and such fact wasnot disputed by the respondents. It is further submitted that thecause of death also made very clear through the postmortemcertificate to the effect that the deceased died due toelectrocution. The learned counsel for the petitioner also contendedthat the F.I.R. was registered in this matter only at the instance ofthe Electricity Board Officials, namely, the Assistant Engineer andas such, the staff of the Electricity Board were well aware about thecause of death of the husband of the petitioner. It is contendedthat the husband of the petitioner died only due to the negligence onthe part of the respondents to maintain the electricity wiresproperly for the safety of the public from any electrocution. Thelearned counsel would also place reliance on the Rule 91 of theIndian Electricity Rules, 1956 (hereinafter referred to as "theRules") to the effect that it is the duty of the Electricity BoardOfficials to protect the every overhead line erected over any part ofa street or other public place with a device approved by theInspector for rendering the electricity line harmless in case itbreaks. It is pointed out by the learned counsel for the petitionerthat there is absolutely no factual dispute in respect of the mannerof occurrence in which the husband of the petitioner died due toelectrocution. It is submitted that on the face of the records it isprima facie very clear that the occurrence took place due to the https://hcservices.ecourts.gov.in/hcservices/ negligence on the part of the 2nd respondent officials and as such,they are liable to pay the adequate compensation to the petitioner asshe has to maintain herself and three children.5.In support of her contention, the learned counsel for thepetitioner placed reliance on the following decisions :1.M.P.Electricity Board v. Shail Kumari and Others(2002) 2 SCC 162;2.H.S.E.B. And others v. Ram Nath and Others (2004)5 SCC 793 ;3.An unreported decision of this Court reported inRicherd Suares v. Government of Tamil Nadu rep. bySecretary, Electricity Department, Fort St. George,Chennai-9 and another, W.P.No.34905 of 2002 dated 5.1.2005;and4.Lilly Stanislaus v. Chairman, T.N.E.B., Chennaiand others, (2008) 3 MLJ 160.6.Per contra, Mr.A.Selvendran, learned counsel appearing forthe second respondent contended that the Writ Petition itself is notmaintainable on the ground that this is a case involving disputedquestions of fact. It is further contended that it is the burden ofthe petitioner to prove that the deceased died due to the negligenceon the part of the second respondent officials. The learned counselwould further contend that it is the admitted case of the petitionerthat there was rain water in the street wherein the occurrence saidto have taken place and as such it is quite possible that the livewire could have been snapped due to rain and as such, the secondrespondent could not be held liable for the act of God. The learnedcounsel for the 2nd respondent would also place reliance on thedecision reported in SDO, GRID Corporation of Orissa Limited andOthers V. Timudu Oram, (2005) 6 Supreme Court Cases 156.7.I have carefully considered the rival contentions put forthby either side and also perused the materials available on record.8.At the outset it is to be stated that on the basis of thematerials available on record it is prima facie crystal clear thatthe husband of the petitioner died only due to electrocution and thattoo while he came into contact with the live wires snapped and fellon the street while he was returning to the home from his work. Thefact remains that even the law was set in motion by giving a reportto the police only by the second respondent official namely, theAssistant Engineer. A perusal of the F.I.R. discloses that on theinformation furnished by the staff of the 2nd respondent, the https://hcservices.ecourts.gov.in/hcservices/ Assistant Engineer preferred the report and on receipt of the same,the concerned police registered the F.I.R. in Cr.No.2662/1998. Afterthe registration of the First Information Report, the body was sentfor postmortem examination and a perusal of the postmortemcertificate reveals that the deceased would appear to have died ofelectrocution.9.Now the crux of the question involved in this matter iswhether the negligence on the part of the respondents to maintain thelive wire of the electricity connections properly and safely cost thelife of the petitioner's husband ?10. Before proceeding to consider the said question, it isrelevant to refer Rule 91 of the Rules which reads hereunder :91. Safety and protective devices : (1) Every overheadline (not being suspended from a dead bearer wire not beingcovered with insulating material and not being a trolley –wire) erected over any part of a street or other publicplace or in any factory or mine or on any consumer'spremises shall be protected with device approved by theInspector for rendering the line electrically harmless incase it breaks.(emphasis supplied)11.A reading of the above said provision makes it crystalclear that it is the statutory obligation, duty and responsibility ofthe second respondent officials to provide safety and protectivedevices for rendering the electricity live wires line harmless incase it breaks. The Electricity Board Officials should take care andcaution in respect of laying, installing and maintaining the overhead lines as the said electric wires were carrying heavy load and assuch it is highly dangerous. The Electricity Board officials shouldstrictly follow Rule 91 of the Rules by taking safety measures byproviding with a device approved by the Electrical Inspector forrendering the line electrically harmless in case it breaks.12. In the light of the provision under Rule 91(1) of the Rules,let me now consider the factual scenario of the case on hand.13.The undisputed fact remains that the husband of thepetitioner one Kanniappan died due to electrocution while he cameinto contract with a live wire when he was returning to his housethrough the place of occurrence as the said live wire snapped andfell on the ground of the street due to rain. The Post-mortemcertificate also reveals that the victim died due to electrocution.As already pointed out, a perusal of the First Information Reportdiscloses that even the complaint was given only by the officials ofthe respondents, namely, the Assistant Engineer (Operation and https://hcservices.ecourts.gov.in/hcservices/ Maintenance), TNEB, Chennai, and on such complaint the FirstInformation Report was registered in Crime No.2662 of 1998. TheFirst Information Report further discloses that the body of thevictim was found on the ground of the street. If the respondentshave taken the safety measures as per the Rule cited above renderingthe live electricity wires as harmless in case it breaks, it couldnot have cost the life of the victim by electrocution. It ispertinent to note that no material available on record to establishthat the second respondent officials have taken safety measures byproviding any device rendering the live electricity wire as harmlessin case it breaks. The respondents also not raised any plea beforethis Court to the effect that they have taken safety measures asstated above and as such the second respondent officials have notcomplied with the statutory obligation as contemplated under Rule 91of the Rules. Therefore, in the case on hand a prima facie case ofnegligence was clearly made out against the respondents.14. The learned counsel for the second respondent mainly raisedthe question of maintainability of the writ petition by placingreliance on the decision of the Hon'ble Apex Court in SDO, GRIDCORPORATION OF ORISSA LTD., V. TIMUDU ORAM reported in 2005 (6) SCC156. The Hon'ble Apex Court in the said decision held that thedisputed questions of fact could not be decided under Article 226 ofthe Constitution of India. In that decision the Hon'ble Apex Courtheld that the High Court has not recorded any finding to the effectthat the electricity board authorities was negligent in performanceof their duty and further held that in view of the earlier dismissalof the suit, the subsequent writ petition would not be maintainable.15. On the other hand, the learned counsel for the petitionerrightly placed reliance on the decision of the Hon'ble Apex Courtreported in H.S.E.B. and others v. Ram Nath and Others (2004) 5 SCC793. In that decision, the Hon'ble Apex Court held that no disputedquestions of facts arose as there were no denials in the writtenstatement that the wires were loose and drooping and confirmed theorder of the High Court awarding compensation to the victim's family.The Hon'ble Apex Court ultimately held in that decision as hereunder :"6. The appellants are carrying on a businesswhich is inherently dangerous. If a person were to comeinto contact with a high-tension wire, he is bound toreceive serious injury and/or die. As they are carryingon a business which is inherently dangerous, theappellants would have to ensure that no injury resultsfrom their activities. If they find that unauthorisedconstructions have been put up close to their wires itis their duty to ensure that that construction is gotdemolished by moving the appropriate authorities and ifnecessary, by moving a court of law. Otherwise, theywould take the consequences of their inaction. If there https://hcservices.ecourts.gov.in/hcservices/ are complaints that these wires are drooping and almosttouching houses, they have to ensure that the requireddistance is kept between the houses and the wires, eventhough the houses be unauthorised. In this case we donot find any disputed question of fact."It is pertinent to note that the decision of the Hon'ble Apex Court(cited supra) has been referred and considered by the Hon'ble ApexCourt in its subsequent decision in SDO, GRID CORPORATION OF ORISSALTD., V. TIMUDU ORAM reported in 2005 (6) SCC 156 as hereunder :"Counsel for the appellants also cited a judgment inH.S.E.B. V. Ram Nath (2004) 5 SCC 793 in which a similarview was taken. In the said case it was observed by theBench that where disputed questions of fact were involvedwrit petition would not be the proper remedy but sincethere was no denial in the written statement that wireswere loose and drooping and the claimant had asked theBoard to tighten the wires, the Board was held liable topay the compensation. This finding was recorded becausethe supplier of electricity did not controvert the factsalleged by the respondent writ petitioner. Disputedquestions of facts were not involved and as a result ofwhich the finding recorded by the High Court was upheld." 16. A Division Bench of this Court (P.K.MISRA and S.RAJESWARAN,JJ) in W.P.No.5217 of 1999 (Parezade Mama V. State of Tamil Nadu rep.by Secretary to Government, Electricity Department and Others), whiledealing with the case of death of the mother and father of thechildren, who died when the children playing in a lodge were to touchthe running over head high tension line approximately 3 feet from thebalcony of the lodge and the parents while attempted to rescue thechildren, by relying upon the judgment of the Supreme Court in NathBros. Exim International Ltd., V. Best Roadways Limited 2000 (4) SCC553 held that on the fact of the conduct of the public authority,there is infringement of Article 21, and there is no bar for the HighCourt to proceed under Article 226 of the Constitution of India bygranting necessary damages, as follows :"17. It is true that writ petitions for claimingdamages cannot be resorted when there is a clear denialof tortious liability. At the same time when thenegligence is per se visible and it infringes Article21, relief claiming damages could be granted underArticle 226 of the Constitution of India.18. In Nath Bros. Exim International Ltd. V. BestRoadways Ltd., (2000) 4 SCC 553 the Hon'ble SupremeCourt no doubt held that the writ petition filed underArticle 226 of the Constitution of India, High Court https://hcservices.ecourts.gov.in/hcservices/ cannot grant compensation to the family of victim whodied by electrocution. However, in the very samejudgment the Hon'ble Supreme Court held that when thereis negligence on the face of it and infringement ofArticle 21 is there, it cannot be said there will be anybar to proceed under Article 226 of the Constitution ofIndia." 17. A learned Single Judge taken a similar view and awardedcompensation in a case of electrocution death in Lilly Stanislaus V.Chairman, T.N.E.B., Chennai and others reported in (2008) 3 MLJ 160. 18. Therefore, as already pointed out, in the instant case thereis no disputed questions of facts involved and the negligence on thepart of the second respondent is per se visible and as such thepetitioner has rightly invoked Article 226 of the Constitution ofIndia to seek the remedy of compensation.19. As far as the case on hand is concerned, as it is alreadypointed out by this Court, the manner of occurrence and cause ofdeath of the victim due to electrocution were not disputed by thesecond respondent. At the risk of repetition, it is to be reiteratedthat the second respondent has not produced any material before thisCourt to show that they have taken safety measures and provided anydevices approved by the Electrical Inspector for rendering theelectricity line harmless in case it breaks as per the provisionunder Rule 91 of the Rules.20. At this juncture, it is relevant to refer the decision ofthe Hon'ble Apex Court in M.P., EB V. Shail Kumari reported in 2002(2) SCC 162 in which it was held by the Hon'ble Apex Court as follows:"7. It is an admitted fact that theresponsibility to supply electric energy in theparticular locality was statutorily conferred on theBoard. If the energy so transmitted causes injury ordeath of a human being, who gets unknowingly trappedinto it the primary liability to compensate thesufferer is that of the supplier of the electricenergy. So long as the voltage of electricitytransmitted through the wires is potentially ofdangerous dimension the managers of its supply havethe added duty to take all safety measures to preventescape of such energy or to see that the wire snappedwould not remain live on the road as users of suchroad would be under peril. It is no defence on thepart of the management of the Board that somebodycommitted mischief by siphoning such energy to hisprivate property and that the electrocution was from https://hcservices.ecourts.gov.in/hcservices/ such diverted line. It is lookout of the managers ofthe supply system to prevent such pilferage byinstalling necessary devices. At any rate, if anylive wire got snapped and fell on the public road theelectric current thereon should automatically havebeen disrupted. Authorities manning such dangerouscommodities have extra duty to chalk out measures toprevent such mishaps.(emphasis supplied by this Court)8. Even assuming that all such measures have beenadopted, a person undertaking an activity involvinghazardous or risky exposure to human life, is liableunder law of torts to compensate for the injurysuffered by any other person, irrespective of anynegligence or carelessness on the part of the managersof such undertakings. The basis of such liability isthe foreseeable risk inherent in the very nature ofsuch activity. The liability cast on such person isknown, in law, as "strict liability". It differs fromthe liability which arises on account of thenegligence or fault in this way, i.e. the concept ofnegligence comprehends that the foreseeable harm couldbe avoided by taking reasonable precautions. If thedefendant did all that which could be done foravoiding the harm he cannot be held liable when theaction is based on any negligence attributed. Butsuch consideration is not relevant in cases of strictliability where the defendant is held liableirrespective of whether he could have avoided theparticular harm by taking precautions."The above decision rendered by the Hon'ble Apex Court makes itcrystal clear that it is the statutory obligation on the part of thesecond respondent officials to take safety measures by providingsuitable device ensuring that in the event of any live wire gotsnapped and fell on the public road the electric current thereonshould automatically have been disrupted. But, in the case on hand,at the risk of repetition it is to be reiterated that the secondrespondent officials miserably failed to comply with the statutoryobligation by taking safety measures by providing any device forrendering the electricity line harmless in case it breaks.21. Now coming to the question of quantum of compensation to bepaid to the petitioner, certain factual aspects to be borne in mindby this Court. The post-mortem certificate reveals that the victim,at the time of death due to electrocution, was aged about 50 years.It is not disputed that the victim was the sole bread-winner of thefamily and he was working as a piece work civil contractor and https://hcservices.ecourts.gov.in/hcservices/ earning not less than Rs.200/- per day and the petitioner is nowstruggling for livelihood along with her three children. Thepetitioner lost her husband in the year 1998 and the writ petitionfiled in the year 1999. It is seen that the second respondentwithout prejudice to his contention said to have offeredRs.1,00,000/- before the Lok Adalat.22 Considering the above said factors coupled with the mentalagony undergone by the petitioner, this Court is of the consideredview that granting the relief of compensation of a sum ofRs.3,00,000/- (Rupees three lakhs only) to the petitioner and herchildren would meet the ends of justice. Accordingly, the writpetition stands allowed and the second respondent is directed to paya sum of Rs.3,00,000/- (Rupees three lakhs only) with interest at therate of 6% per annum from 05.02.1999 within a period of eight weeksfrom the date of receipt of a copy of this Order. No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrartsi/ggTo1. The Secretary to Government, State of Tamil Nadu, Department of Electricity, Chepauk, Chennai-600 009.2. The Chairman, Tamil Nadu Electricity Board, Anna Salai, Chennai-600 002.+ 1 CC to Mr.A.Selvendran SR.14948+ 1 CC to Mr.Chitra Sampath SR.14361W.P.No.19668 of 1999RL(CO)BB / 28-5-09