Placing reliance on the judgments of this Courtin K.Samikkannu v. Union of India reported

search of the missing goats and at that time, he contacted with alive electric fencing laid by respondents 3 and 4, in their lands anddied on the spot, due to electrocution. But the respondents 3 and 4have removed his body and placed it, half a kilometer away from thespot. The Sub-Inspector of Police has registered a case in Cr.No.330of 2001, against respondents 3 and 4 for the offences under Sections304A and 201 IPC. As per the Post-Mortem Certificate, the death ofthe petitioner's son was reported due to electrocution, when hecontacted the live electric fencing. 3.The petitioner has further submitted that thedeath was due to improper supervision of respondents 1 and 2 and thatthey were also aware of the fact that respondents 3 and 4 haveillegally taken electricity from the main line, for fencing theirfield. According to him, if respondents 1 and 2 have taken propersteps against respondents 3 and 4 for the illegal use of electricity,for fencing the agricultural field, death would have not occurred.He has further submitted that his son was unmarried and that hisfamily was solely dependant on him. He was aged 25 years, a shepherdand earned Rs.2,500/- per month. 4.Placing reliance on the judgments of this Courtin K.Samikkannu v. Union of India reported in 1997 (I) CTC 275,D.Matsa Gandhi v. Tamil Nadu Slum Clearence Board reported in 2000(III) CTC 24, M.P.Electricity Board v. Shail Kumari reported in 2002(I) CTC 362, K.Sundari v. The State of Tamil Nadu [W.P.No.19668 of1999, dated 15.04.2009] and Ponnu Sankan v. State of Tamil Nadureported in 2011 (3) CTC 740, learned counsel for the petitionersubmitted that it is the duty of the Tamil Nadu Electricity Board toinspect, as to whether, the supply given to the agriculturists, isused properly or not and since the Field Officer is responsible forthe day to day usage and maintenance of electric line, they cannotplead ignorance of the power supply given for fencing of theagricultural land, owned by respondents 3 and 4 and in suchcircumstances, when the Post-Mortem Certificate clearly indicatesthat the death was due to electrocution, respondents 1 and 2 are alsoliable to pay compensation. According to him, negligence of theemployees of the respondents 1 and 2 is per se evident and therefore,the claim made against them is maintainable. As regards the cause ofdeath and the illegal activity of respondents 3 & 4, he also drew theattention of this Court to the contents in the letter, dated05.01.2002 of the Panchayat President, Nakasalem Muncipality, AlathurTaluk, Perambular District addressed to Executive Engineer, O & M,Tamil Nadu Electricity Board, Thuraiyur and also to the letter, dated25.12.2001 of the Assistant Executive Engineer (O & M/North), TamilNadu Electricity Board, Thuraiyur addressed to the Inspector ofPolice, Padalur. https://hcservices.ecourts.gov.in/hcservices/

5.On the basis of the counter affidavit andadditional counter affidavit, Mr.Gunaraj, learned counsel forrespondents 1 and 2 submitted that respondents 1 and 2 are notresponsible for the death of petitioner's son and that therefore,they are not liable to pay any compensation. He further submittedthat the Board is responsible for maintaining the main line only andthat too, for the main supply post of the TNEB and that they are notaware or responsible for the electrical fencing put up by respondents3 and 4. He also submitted that FIR in Cr.No.330 of 2001, underSections 304 A and 201 IPC has been registered only againstrespondents 3 and 4 and even the said FIR had been closed on24.11.2011, under Section 468(2) Cr.P.C. 6.He denied the contention that the employees ofrespondents 1 and 2 have given permission to respondents 3 and 4 toput up electric fencing in their agricultural field nor they werenegligent. He also denied the contention regarding impropersupervision on the part of respondents 1 and 2 and further submittedthat there are many agricultural fields, in which, serviceconnections have been provided and that it may not be possible forthe Field workers to inspect all the agricultural fields and findout, as to whether, there is any illegal tapping.7.He also added that only in the case of anyspecific complaint or during Meter reading or random inspection,irregularities could be noticed and considering the large number ofagricultural service connections and the vast area, in each division,it would not be possible to check any illegal tapping or drawing anypower supply for fencing the agricultural fields. Inviting theattention of this Court to the letter, dated 05.01.2002, he submittedthat respondents 3 and 4 alone were responsible for the death ofpetitioner's son and in the absence of any direct evidence,respondents 1 and 2 cannot be roped in, solely for the purpose ofclaiming compensation.8.According to the learned counsel for respondents1 and 2, the liability of respondents 1 and 2 is disputed on factsand in such circumstances, placing reliance on a decision of theSupreme Court in Chairman, Grid Corporation of Orissa Ltd., v.Sukamani Das reported in 1999 (7) SCC 298, Tamil Nadu ElectricityBoard v. Sumathi reported in 2000 (4) SCC 543 and The Chairman, TamilNadu Electricity Board v. Parvathi Ammal reported in 2003 (4) CTC517, he submitted that if there is a dispute question of fact andwhen there is no direct evidence, connecting negligence or anyirregularity on the part of respondents 1 and 2, the writ petition is https://hcservices.ecourts.gov.in/hcservices/ not maintainable against them and for the reasons stated supra, heprayed for dismissal against the official respondents.9.Respondents 3 and 4 have not filed any counteraffidavit. However, taking this Court through the contents of Post-Mortem Certificate, dated 25.12.2001, learned counsel for respondents3 and 4 submitted that apart from the charred wounds noticed on thebody of the deceased, there were other injuries also and that thebody has been found half a furlong away from the agricultural field,owned by them and in such circumstances, there cannot be any finding,rendered in this proceedings, as to how the death had occurred. Healso submitted that even the criminal case registered in Cr.No.330 of2001 has been closed by the Police. According to him, if the deathhas occurred due to negligence or any illegal act on the part ofrespondents 3 and 4, the same has to be proved by adducing oral anddocumentary evidence, before a Civil Court of competent jurisdictionand that liability cannot be fixed on the basis of mere pleadings ina writ petition. For the abovesaid reasons, he denied the liabilityof respondents 3 and 4 to pay compensation. 10.Heard the learned counsel for the parties andperused the materials available on record.11.FIR in Cr.No.330 of 2001, has been given byMrs.Silambuselvi, Village Administrative Officer, Nakasalem Village,in person to the Sub-Inspector of Police, Padalur Police Station.According to her, body of the deceased was found near theagricultural field of one Palani, S/o.Chikena Gounder, NakasalemVillage. The deceased was working under one Karuppannan. That on31.12.2001 evening, the deceased had gone out in search of somemissing goats and that when he had come in contact with electricity,due to live electric fencing of the agricultural fields, owned byrespondents 3 and 4, he died due to electrocution. On the basis ofher complaint, the Sub-Inspector of Police has registered a case inCr.No.330 of 2001 under Sections 304 A and 201 IPC on 23.12.2001 at16.00 Hours, against respondents 3 and 4. 12.Perusal of the letter, dated 25.12.2001 of theAssistant Executive Engineer (O & M – North), Tamil Nadu ElectricityBoard, addressed to the Inspector of Police, Padalur, shows that hehad received a telegram from the brother of the deceased on24.12.2001 and thereafter, on 25.12.2001, he had enquired thePresident, Nakasalem Panchayat and other persons in the Village. Onenquiry, he came to know that electricity service connection stood inthe name of one Mrs.Arakani, W/o.Subbiah in Electricity ServiceNo.663 for the lines in Survey No.204/5. In the said letter, he hasalso stated in order to protect the crops from pigs, electric fencinghad been put up and that the deceased had come in contact with the https://hcservices.ecourts.gov.in/hcservices/ same on 21.12.2001. Letter, dated 05.01.2002 of Mr.Velusamy,President of Nakasalem Panchayat, addressed to the ExecutiveEngineer/O & M, T.N.E.B., Thuraiyur, is also on the same lines, asnarrated in the complaint lodged by the Village AdministrativeOfficer, Nakasalem Village, in person to the Sub-Inspector of Police,Padalur Police Station. Letter, dated 25.12.2001 of the AssistantExecutive Engineer (O & M – North), Tamil Nadu Electricity Board,addressed to the Inspector of Police, Padalur, is to the effect thatthe respondents 3 and 4 have taken electricity illegally to connectit to the fence, to prevent the crops from the pigs.13.Though the learned counsel for the respondents 3and 4 have submitted that there is some doubt over the death ofpetitioner's son on the grounds that there were some other injuries,apart from charred wounds and that the body of the deceased was foundat a considerable distance, away the agricultural fields, owned bythem, considering the evidence available on record, particularly,Post-Mortem Certificate, which indicates that the deceased wouldappear to have died of electric shock and the injuries, about 72-90hours, prior to autopsy conducted by the surgeon, this Court is ofthe view that when the medical report is duly supported by thestatements of the Village Administrative Officer, Nakasalem Villageand the President of Nakasalem Panchayat, there cannot be anydifficulty in arriving at the conclusion, regarding the cause ofdeath. 14.The facts pleaded in the supporting documents andthe materials produced before this Court in the form of typed set ofpapers, contents of which, set out in the foregoing paragraphs, havenot been disputed by respondents 3 and 4, by filing any counteraffidavit. Whereas, arguments have been advanced, disputing thecause of death and the consequential liability of the respondents 3and 4 to pay compensation. As regards the contentions of therespondents 3 and 4 that the facts pleaded in the supportingaffidavit to the writ petition, have to be proved before a CivilCourt of competent jurisdiction, in the matter of claim forcompensation, there is no hard and fast rule that in all the cases,relating to a claim for compensation due to electrocution, the CivilCourt is the only forum to seek for compensation. 15.On the basis of material on record, as thisCourt, has arrived at the conclusion regarding cause of death, thenext question remains to be considered, is whether, Electricityconnection was given to the fencing put up by respondents 3 and 4 toprevent the damage to the agricultural crops, which was the cause forelectrocution. Here again, it could be seen from the letter, dated25.12.2001 of the Assistant Executive Engineer (O & M – North), TamilNadu Electricity Board, addressed to the Inspector of Police, https://hcservices.ecourts.gov.in/hcservices/ Padalur, the letter, dated 05.01.2002 of Mr.Velusamy, President ofNakasalem Panchayat, addressed to the Executive Engineer/O & M,T.N.E.B., Thuraiyur and contents of the Police complaint, it isevident that respondents 3 and 4 have drawn a live wire, connectedthe same to the agricultural fence to prevent crops from damagecaused by pigs. 16.The statement and the contents of the lettershave also not been denied by the private respondents 3 and 4, byfiling any counter affidavit. Whereas, the official respondents havefiled a counter and additional counter affidavit, denying theallegation of negligence and collusion on the part of the employeesof the respondents 1 and 2, with the private respondents 3 and 4, inconnecting a live wire to the fence. No concrete materials have beenplaced before this Court to prove connivance between the officials ofrespondents 1 and 2 and private respondents 3 and 4. Allegations ofnegligence by the employees of respondents 1 and 2 made for thepurpose of vicarious liability, have not been established. Asrightly pointed out by the learned counsel for the Electricity Board,any mal-practice done by the respondents 3 and 4, can be noticed onlyduring inspection. Considering the vast extent of land covered underthe agricultural service scheme in the villages in the State of TamilNadu, it may not be possible for the Field Officers of theElectricity Board to frequently visit the villages and check theagricultural service connections. Even assuming that the ServiceConnections are being checked periodically, it is always possiblefor an agriculturist to connect a live wire to the fencing, duringnight time, to prevent any miscreants from entering into theagricultural land and to prevent animals from damaging the crops. Ifany such illegal act is done by an agriculturist during night time,it may not be possible for the field staff to notice the same andtake appropriate action, unless somebody brings it to the notice ofthe officials. 17.Let me now consider the decisions relied on bythe learned counsel appearing for both the parties. In K.Samikkannuv. Union of India reported in 1997 (I) CTC 275, a 13 year oldstudent, who went to a mining operation site to have a look at agiant excavator, was trapped in a landslide, resulting in death.Death was due to negligence of Neyveli Lignite Corporation in nottaking preventive steps from entering into mining site. Petitionertherein has claimed compensation in a writ petition. The same wasopposed on the ground that entering into the mining area wasrestricted only to authorised persons, who were holding valid passesissued by the Manager/Mines under the Mines Act. It was furthersubmitted that at the entry point to the mining area from the publicroad, clear notice boards have been displayed, stating that it was aprohibited area for the public. It was also submitted that a https://hcservices.ecourts.gov.in/hcservices/ peripheral canal was dug right round the mining area, acting as abarricade and that canal was about 6 metres wide and 3 metres deepand that therefore, sufficient safeguards were provided and that thepublic were also cautioned. In the abovesaid circumstances, it wascontended on behalf of Neyveli Lignite Corporation that the WritCourt has no jurisdiction to go into the disputed questions of fact.On the above rival contentions and considering the decisions inM.C.Mehta v. Union of India reported in 1987 (1) SCC 395, UnionCarbide Corporation v. Union of India and others reported in 1989(III) SCC 38, Kumari v. State of Tamil Nadu and others reported in1992 (II) SCC 223 and Xavier v. State of Tamil Nadu and othersreported in 1994 WLR 373, this Court in K.Samikkannu's case, heldthat the High Court in exercise of writ jurisdiction has got powersto award compensation for loss of life due to negligence andcarelessness in not cautioning public about the imminent danger tolife, who visited the dangerous zone and not providing security, inthe danger zone. After considering the aspect of negligence and thequestion, as to whether the respondents therein had taken anypreventive measures to prevent any untoward incident, this Courtfurther held that Neyveli Lignite Corporation alone was negligent andat the time of death, the deceased was aged about 13 years and therewas no question of applying contributory negligence against a minor.18.In Chairman, Grid Corporation of Orissa Ltd., v.Sukamani Das reported in 1999 (7) SCC 298, compensation was claimedfor the death of the petitioner's husband therein, who had come incontact with a live wire, which had been lying on the road, aftergetting snapped from a overhead electric line, because of negligenceof the Grid Corporation and its employees. Grid Corporationdefended the claim, contending inter alia, that the wire got snappedbecause of thunderbolt and lightning and immediately after that,power was disconnected. The High Court granted compensation. Onappeal, having regard to the nature of defence taken by GridCorporation and the disputed facts, at Paragraph 6, the Supreme Courtheld as follows:“.....the High Court committed an errorin entertaining the writ petitions even though theywere not fit cases for exercising power under Article226 of the Constitution. The High Court went wrong inproceeding on the basis that as the deaths had takenplace because of electrocution as a result of thedeceased coming into contact with snapped live wires ofthe electric transmission lines of the appellants, that“admittedly/prima facie amounted to negligence on thepart of the appellants”. The High Court failed toappreciate that all these cases were actions in tortand negligence was required to be established firstlyby the claimants. The mere fact that the wire of the https://hcservices.ecourts.gov.in/hcservices/ electric transmission line belonging to the Appellant 1had snapped and the deceased had come in contact withit and had died was not by itself sufficient forawarding compensation. It also required to be examinedwhether the wire had snapped as a result of anynegligence of the appellants and under whichcircumstances the deceased had come in contact with thewire. In view of the specific defences raised by theappellants in each of these cases they deserved anopportunity to prove that proper care and precautionswere taken in maintaining the transmission lines andyet the wires had snapped because of circumstancesbeyond their control or unauthorised intervention ofthe third parties or that the deceased had not died inthe manner stated by the petitioners. These questionscould not have been decided properly on the basis ofaffidavits only. It is the settled legal position thatwhere disputed questions of facts are involved apetition under Article 226 of the Constitution is not aproper remedy.”19.In D.Matsa Gandhi v. Tamil Nadu Slum ClearanceBoard reported in 2000 (III) CTC 24, compensation was claimed by thepetitioner from Tamil Nadu Slum Clearence Board for the death of herdaughter, who fell into a Well. According to the petitioner, waterfrom the Well was drawn through a hole on a concrete slab coveringthe well. Due to rain, slab was wet and when the petitioner'sdaughter was drawing water from the well, she slipped and fell intothe Well. According to the petitioner therein, though severalrepresentations were made by the residents of the Colony, throughWelfare Associations, to the respondents and their subordinates toprovide water from overhead tanks and also to ensure safety of theWells, in the Colony, it was not done and that therefore, there was afailure in taking proper care and safety. The claim was opposed byTamil Nadu Slum Clearance Board, stating that water was provided tothe tenements through six water tanks. It was also alleged thatthe accident was purely due to negligence and carelessness of thedeceased and that the manholes provided in the Wells were meant forcleaning and repairing suction pipes. Adverting to the issue, as towhether the Slum Clearance Board had failed to maintain the Wells inproper condition, which resulted in the death of petitioner'sdaughter and taking note of the judgments in Nath Bros., ExaimInternational Ltd., v. Best Roadways Ltd., reported in 2000 (4) SCC553 and Parvati Devi and others v. Commissioner of Police, Delhi andothers reported in 2000 (3) SCC 754, wherein, the Supreme Court hasawarded compensation of Rs.1 lakh to the legal heirs, in respect ofdeath, which occurred on account of electrocution, while walking onthe road, this Court in D.Matsa Gandhi's case, was inclined to accept https://hcservices.ecourts.gov.in/hcservices/ the contention of the petitioner therein, holding that a writpetition is maintainable and accordingly, awarded compensation underArticle 226 of the Constitution of India, finding that whennegligence was per se visible and when there was infringement ofArticle 21, relief can be granted.20.In Tamil Nadu Electricity Board v. Sumathireported in 2000 (4) SCC 543, legal representatives of the deceased,who died due to electrocution, filed writ petitions before the HighCourt, under Article 226, claiming compensation, contending interalia that electrocution was due to improper maintenance of theelectric wires or equipments by the Tamil Nadu Electricity Board.This Court appointed an Arbitrator to decide the question ofcompensation. Pending compensation, interim compensation has alsobeen granted. The Arbitrator gave his awards, which were made asrule of Court, after considering the objections and the High Courtalso examined the evidence recorded by the Arbitrator. Aggrieved bythe same, the Board filed an appeal to the Supreme Court, wherein, itwas contended that the High Court erred in creating a newjurisdiction to deal with the alleged negligence on the part of theappellant-Board and that the High Court also erred in appointing aforum in the adjudication of dispute. On behalf of the claimants, itwas contended that as the result of negligence on the part of theBoard, a Public Authority, right to life of the respondents underArticle 21 had been violated and that therefore, the High Court hasevery jurisdiction to award compensation under Article 226 of theConstitution of India. On the aspect of appointing of Arbitrator, itwas contended by the claimants that both the parties had consented toarbitration and that therefore, the High Court passed an award, onlyafter examining the arbitration proceedings. On the above pleadingsand submissions, the Supreme Court, held as follows:“There is no provision in the new Actfor referring the matter to arbitrator by interventionof the Court. However, if during the pendency of theproceedings in the court parties have entered into anarbitration agreement then they have to proceed inaccordance with the provisions of the new Act and whenaward is made it is a decree and it cannot be filed inthe High Court and it has to be filed in the court asdefined in clause (e) of Section 2 of the new Act forits enforcement as a decree under Section 36 of thenew Act. If there is challenge to the award recoursehas to be under Section 34 of the new Act.It is true that when a disputedquestion of fact arises and there is clear denial ofany tortuous liability remedy under Article 226 of theConstitution may not be proper. However, it cannot be https://hcservices.ecourts.gov.in/hcservices/ understood as laying a law that in every case oftortuous liability recourse must be had to a suit.When there is negligence on the face of it andinfringement of Article 21 is there it cannot be saidthat there will be any bar to proceed under Article226 of the Constitution. Right of life is one of thebasic human rights guaranteed under Article 21 of theConstitution.The language of Article 226 of theConstitution does not admit of any limitation on thepowers of the High Court for the exercise ofjurisdiction thereunder though by various decisions ofthis Court with varying and divergent views, it hasbeen held that jurisdiction under Article 226 can beexercised only when a body or authority, the decisionof which is complained, was exercising its power inthe discharge of public duty and that writ is a publiclaw remedy. Since disputed questions of facts arosein the present appeals the High Court should not haveentertained writ petitions under Article 226 of theConstitution and then referred the matter toarbitration in violation of the provisions of the newAct. There was no arbitration agreement within themeaning of Section 7 of the new Act. Under the new Actaward can be enforced as if it is a decree of a courtand yet the High Court passed a decree in terms of theaward which is not warranted by the provisions of thenew Act.”21.In M.P.Electricity Board v. Shail Kumari reportedin 2002 (I) CTC 362, a workman was riding his bicycle and whilereturning home, at night, from the factory, got electrocuted, becauseof a live electric wire lying on the road, which was inundated byrain water and died instantaneously. The dependants filed a suit,claiming compensation. The Board contended that the consumer hadunauthorisedly taken a live wire from the main supply line in orderto siphon electric energy for his own use and such an act ofpilferage done clandestinely had led to the electrocution andtherefore, the Electricity Board was not liable. Pilferage ofelectric energy was also disowned by the consumer concerned. Thetrial Court agreed with the Board. On appeal, the High Courtdisagreed and directed the Board to pay compensation. Testing thecorrectness of the same, the Board preferred an appeal to the SupremeCourt. On the aspect of responsibility of the Board to supplyelectric energy, duty of the Board to take all safety measures toprevent pilferage or snapping of live wire, by installing necessarydevices and electrocution from such divided lines, resulting in loss https://hcservices.ecourts.gov.in/hcservices/ of human life, the Supreme Court, at Paragraphs 7 to 9, held asfollows:“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 have theadded 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 such roadwould be under peril. It is no defence on the part ofthe management of the Board that somebody committedmischief by siphoning such energy to his privateproperty and that the electrocution was from suchdiverted line. It is the look out of the managers ofthe supply system to prevent such pilferage byinstalling necessary devices. At any rate, if any livewire got snapped and fell on the public road theelectric current thereon should automatically have beendisrupted. Authorities manning such dangerouscommodities have extra duty to chalk out measures toprevent such mishaps.8. Even assuming that all such measureshave been adopted, a person undertaking an activityinvolving hazardous or risky exposure to human life, isliable under 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 the negligenceor fault in this way i.e. the concept of negligencecomprehends that the foreseeable harm could be avoidedby taking reasonable precautions. If the defendant didall that which could be done for avoiding the harm hecannot be held liable when the action is based on anynegligence attributed. But such consideration is notrelevant in cases of strict liability where thedefendant is held liable irrespective of whether hecould have avoided the particular harm by takingprecautions. https://hcservices.ecourts.gov.in/hcservices/

9. The doctrine of strict liability hasits origin in English Common Law when it was propoundedin the celebrated case of Rylands v. Fletcher (1868 LawReports (3) HL 330). Blackburn J., the author of thesaid rule had observed thus in the said decision:"The rule of law is that theperson who, for his own purpose, brings on hislands and collects and keeps there anythinglikely to do mischief if it escapes, must keepit at his peril; and if he does so he is primafacie answerable for all the damage which isthe natural consequence of its escape."22.In the above reported judgment, though there wasan allegation of pilferage, the undisputed fact was that deathoccurred due to electrocution on account of contact with a live wire,on a public road. Doctrine of strict liability has been applied inthe above case, where there was a foreseeable risk in the nature ofactivity. In the opinion of this Court, the same yardstrick may notbe applicable to the facts of this case for the reason that even therisk of snapping a wire for providing electric supply to fence anagricultural land in the night time, cannot even be ordinarilyforeseen, as done in the case of a diversion of power supply by aconsumer or an outsider in a residential or commercial area, for anyother purpose, other the one, for which, the supply is given.Agricultural lands in the villages are located far away from theplace of inhabitation. Such action by an agriculturist, in theopinion of this Court, in normal circumstances, could not even beanticipated by the Board and prevention of tapping electricity duringnight time in agricultural fields, located in vast areas, is remote.23.In M.P.Electricity Board's case (cited supra),the Supreme Court has applied the doctrine of strict liability,following the earlier judgment of the Supreme Court in M.C.Mehta v.Union of India reported in 1987 (1) SCC 395, wherein, the Apex Courtheld that, “where an enterprise is engaged in a hazardous orinherently dangerous activity and harm is caused on any one onaccount of the accident in the operation of such activity, theenterprise is strictly and absolutely liable to compensate those whoare affected by the accident; such liability is not subject to any ofthe exceptions to the principle of strict liability under the rule inRylands v. Fletcher."24.In M.P.Electricity Board's case, reliance made bythe Board in Rylands v. Fletcher reported in 1868 (3) LR HL 330,being “an act of stranger”, has also been rejected by the SupremeCourt on the ground that the said exception is not available to theBoard as the act attributed to the third respondent therein, should https://hcservices.ecourts.gov.in/hcservices/ reasonably have been anticipated or at any rate its consequencesshould have been prevented by the Board. 25.The Supreme Court in M.P.Electricity Board'scase, also relied on a judgment in Quebec Railway, Light Heat andPower Company Ltd., v. Vandry and others reported in 1920 LR AC 6621,wherein, The Privy Council observed that the company supplyingelectricity is liable for the damage without proof that they had beennegligent. Even the defence that the cables were disrupted on accountof a violent wind and high tension current found its way through thelow tension cable into the premises of the respondents was held to benot a justifiable defence. Thus, merely because the illegal act couldbe attributed to a stranger is not enough to absolve the liability ofthe Board regarding the live wire lying on the road.26.The Supreme Court also distinguished the case inW.B.State Electricity Board v. Sachin Banerjee reported in 1999 (9)SCC 21, on the ground that the question of strict liability was notconsidered in the reported judgment, though the defence of theElectricity Board was that electric lines were illegally hooked forpilferage purposes. 27.In K.Sundari v. The State of Tamil Nadu[W.P.No.19668 of 1999, dated 15.04.2009], while the petitioner'shusband therein was returning to his house, on his way, he came incontact with a hanging live wire and died due to electrocution. Thedepartment gave a police complaint. The opinion of the Doctor, asper the Post-Mortem Certificate was death due to electrocution.Compensation was claimed under Article 226 of the Constitution ofIndia. Reliance was also placed in M.P.Electricity Board v. ShailKumari reported in 2002 (I) CTC 362, H.S.E.B., and others v. Ram Nathand others reported in 2004 (5) SCC 793, Richard Suares v. Governmentof Tamil Nadu [W.P.No.34905 of 2002, dated 05.01.2005] and LillyStanislaus v. Chairman, T.N.E.B., Chennai and others reported in 2008(3) MLJ 160. Per contra, in the reported case, the learned counselfor the Board has contended that the writ petition is notmaintainable on the ground that it was a case, involving disputedquestions of fact. It has also been contended that it is the burdenof the petitioner therein to prove negligence on the part of theBoard officials. Reliance has been placed on a decision in SDO, GridCorporation of Orissa Limited v. Timudu Oram reported in 2005 (6) SCC156. Rule 91 of the Indian Electricity Rules, 1956, which enjoins aduty on the part of the Electricity Board officials to protect everyoverhead line, has been considered for the purpose of arriving at theconclusion of negligence and infringement of Article 21, empoweringthe High Court under Article 226 of the Constitution of India toaward compensation. Perusal of the above unreported decision also https://hcservices.ecourts.gov.in/hcservices/ shows that the facts pleaded for claiming compensation has beenconsidered in the light of the statutory provisions, which cast aduty on the Board officials to protect the overhead line and thatthere was a failure.28.In Ponnu Sankan v. State of Tamil Nadu reportedin 2011 (3) CTC 740, a Mandamus has been sought for to paycompensation for the death of the petitioner's mother, who died dueto electrocution, as the overhead line snapped and fell on her neck.The Electricity Board disputed negligence and defended by contendingthat the Board had been maintaining the electric line very regularly.It has been further contended that a political party has erected aflex bord in the bus stand area and that due to heavy wind, the saidadvertisement board/flex board suddenly fell on the Electricity Boardlines, passing through the said street. Referring to Section 68 ofthe Electricity Act, 2003 and Rule 91 of the Indian ElectricityRules, 1956, which relates to maintenance of overhead lines, thisCourt held that the negligence of the Electricity Board was writlarge and that they cannot put the blame on the political party, whohad erected a flex board near the line. This Court has also heldthat the Board had not taken any action to remove the Flex Board. 29.The decisions in Chairman, Grid Corporation ofOrissa Ltd., v. Sukamani Das reported in 1999 (7) SCC 298, D.MatsaGandhi v. Tamil Nadu Slum Clearance Board reported in 2000 (III) CTC24 and Ponnu Sankan v. State of Tamil Nadu reported in 2011 (3) CTC740, relate to snapping of electrical overhead wires, where safetyand protection have not taken care of by the Board officials and thatthe negligence of the Electricity Board was writ large. InM.P.Electricity Board's case, the Supreme Court applied the Doctrineof strict liability, eventhough the Board defended the claim on theground that the third respondent therein had taken the wire on themain supply line for his own use and that the said act of pilferagewas done clandestinely, the line got unfastened from the hook and itfell on the road, over which, the cyclist came in contact, resultingin instantaneous electrocution. The accident has occurred on a road,where water was stagnated. Here again, it could be noticed that byobserving that the Board has got a duty to take all safety measuresor snapping of live wire by installing devices, the Apex Courtapplied the Doctrine of strict liability. The decision made inK.Sundari v. The State of Tamil Nadu [W.P.No.19668 of 1999, dated15.04.2009], is a case of snapping of overhead wire, where the Boardwas found to be negligent.30.A person is not liable in negligence, unless theaffected person proves that the former had failed to take reasonablecare. Unless the Electricity Board was negligent in taking adequatesafeguards, or obligated under the statutory provisions, no liability https://hcservices.ecourts.gov.in/hcservices/ in tort would arise from acts done by pilferators of electricity inthe interior parts of the villages, during night time, which wouldordinarily escape the notice of the board officials, and when Boardofficials act in good faith, reasonably, without negligence, theboard cannot be fastened with a liability to pay compensation to anaccident victim. If compensation has to be paid, on the facts ofthis case, i.e., where electricity is provided for agriculturalpurposes, then, the same yardstick can even be applied to a domesticsupplier also, in the case of negligence or tort by the consumer andif the accident occurs inside any house.31.Negligence is a specific tort and in any givencircumstances, the failure to exercise that care which thecircumstances demand, where there is a duty to exercise care,reasonable care must be taken to avoid acts or omissions which can bereasonably foreseen to be likely to cause physical injury to personsor property. The aggrieved must prove that in a given set ofcircumstances, there is a duty to take care and that the boardofficials breached such duty. In order to succeed in an action fordamages for breach, the aggrieved must establish breach of statutoryduty which on the construction of the statute. It is well settledthat those who claim negligence have to prove on the probabilities,as to whether breach or negligence, has caused or materiallycontributed to the damage suffered by the claimant. The onus ofcausal connection between the breach and the injury has to be provedand in the instant case, the petitioner has failed to prove causalconnection.32.Insofar as strict liability is concerned, it isthe settled position, that the rule and the reliance from time totime is that a person who for his own purposes, brings on his land,and collects and keeps there anything likely to do mischief, if itescapes, must keep it at his peril. If he fails to do so, he is primafacie liable to the damages which is the natural consequences of itsescape. The said rule on the facts and circumstances in my humbleopinion, cannot be made applicable to electricity board, who canneither be attributed with negligence nor failure to discharge theirstatutory duty in not preventing an agriculturist, from convertinghis ordinary agricultural fence into a electrical fence, during nighttime. Before fastening liability, there must be a reasonable andprobable cause whereby, an ordinary, prudent and cautious man wouldarrive at the conclusion of negligence or failure to exercise thestatutory duties. If want of reasonable care on the part of theboard officials is relied upon, that element has to be proved by theaggrieved and if such facts exist and constitute a reasonable andprobable cause, the burden is on the claimant to prove the same, forclaiming damages. https://hcservices.ecourts.gov.in/hcservices/

33.Though in M.S.Grewal and another Vs. Deep ChandSood and others, reported in 2001 (8) SCC 151, the Supreme Courtconsidered the aspect of negligence, and the duty of a teacher totake care of the students, yet the explanation to the term"negligence" requires consideration. In that case, the students whowent for a picnic, drowned in a river. On the aspect of negligence,the Supreme Court at paragraphs 14 and 16 has held as follows:-14.Negligence in common parlance mean andimply failure to exercise due care, expected of areasonable prudent person. It is a breach of duty andnegligence in law ranging from inadvertence to shamefuldisregard of safety of others. In most instances, it iscaused by heedlessness or inadvertence, by which thenegligent party is unaware of the results which may followfrom his act. Negligence is thus a breach of duty or lackof proper care in doing something, in short, it is want ofattention and doing of something which a prudent and areasonable man would not do (vide Blacks Law Dictionary).Though sometimes, the word inadvertence stands and used asa synonym to negligence, but in effect negligencerepresents a state of the mind which however is muchserious in nature than mere inadvertence. There is thusexisting a differentiation between the two expressionswhereas inadvertence is a milder form of negligence,negligence by itself mean and imply a state of mind wherethere is no regard for duty or the supposed care andattention which one ought to bestow. Clerk & Lindsell onTorts (18th Ed.) sets out four several requirements of thetort of negligence and the same read as below:(1) the existence in law of a duty of caresituation, i.e. one in which the law attaches liability tocarelessness. There has to be recognition by law that thecareless infliction of the kind of damage in suit on theclass of person to which the claimant belongs by the classof person to which the defendant belongs is actionable;(2) breach of the duty of care by thedefendant, i.e. that it failed to measure up to thestandard set by law;(3) a casual connection between thedefendants careless conduct and the damage;(4) that the particular kind of damage tothe particular claimant is not so unforeseeable as to betoo remote. https://hcservices.ecourts.gov.in/hcservices/

34.Tracing the doctrine of vicarious liability fromthe English Laws and the approach of the Courts in India, the SupremeCourt in the above reported case, at paragraphs 18 and 21, explainedthe principles as follows:-18.Be it noted that the doctrine ofvicarious liability has had a fair amount of judicialattention in the English Courts. By the end of 18thcentury, the idea began to grow up that some specialimportance ought to be attached to the relationship ofmaster and servant and in 1849 it was officially held thatexistence of that relationship was essential. Thereafter,though primary liability on the part of anyone could beestablished on proof of direct participation in the tort,such direct participation was not even theoreticallyrequired to make a master liable for his servants torts.The liability is derived from the relationship and is trulyvicarious. At the same time, the phrase implied authoritywhich had been the cornerstone of the masters primaryliability gives way gradually to the modern course ofemployment. (vide Winfield & Jolowicz on Tort 15th Ed.).19.In recent years, the tendency has beenhowever, towards more liberal protection of third party andso in establishing a particular course of employment thecourt should not dissect the employees basic task intocomponent parts but should ask in a general sense: What wasthe job at which he was engaged for his employer? And it ison this perspective Lord Wilberforce in KooragangInvestments Pty. Ltd. v. Richardson & Wrench Ltd. (1982A.C. 462) stated:Negligence is a method of performing an act:instead of it being done carefully, it is done negligently.So liability for negligent acts in the course of employmentis clear. Cases of fraud present at first sight moredifficulty: for if fraudulent acts are not directlyforbidden, most relationships would carry an impliedprohibition against them. If committed for the benefit ofthe employer and while doing his business, principle andlogic demand that the employer should be held liable, andfor some time the law rested at this point. The classicjudgment of Willes J. in Barwick v. English Joint StockBank (1867) L.R. 2 Ex.259, 266 stated the principle thus:In all these cases it may besaid..........that the master has not authorised the act.It is true, he has not authorised the particular act but hehas put the agent in his place to do that class of acts andhe must be answerable for the manner in which the agent hasconducted himself in doing the business which it was the https://hcservices.ecourts.gov.in/hcservices/ act of his master to place him in.That was a case where the wrong was committed for themasters (viz., the banks) benefit, and Willes J. statedthis as an ingredient of liability at p.265:“.....the master is answerable for everysuch wrong of the servant or agent as is committed in thecourse of the service and for the masters benefit, thoughno express command or privity of the master be proved.”35.On the issue of maintainability of the writpetition before the High Court under Article 226 of the Constitutionof India, to deal with the case of compensation, the Supreme Court inM.S.Grewal's case, at paragraphs 26 to 28 has held as follows:-"26.Next is the issue maintainability ofthe writ petition before the High Court under Article 226of the Constitution. The appellant though initially verystrongly contended that while the negligence aspect hasbeen dealt with under penal law already, the claim forcompensation cannot but be left to be adjudicated by theCivil law and thus the Civil courts jurisdiction ought tohave been invoked rather than by way of a writ petitionunder Article 226 of the Constitution. This plea of non-maintainability of the writ petition though advanced at theinitial stage of the submissions but subsequently the samewas not pressed and as such we need not detain ourselves onthat score, excepting however recording that the law courtsexists for the society and they have an obligation to meetthe social aspirations of citizens since law courts mustalso respond to the needs of the people. In this contextreference may be made to two decisions of this court: Thefirst in line, is the decision in Nilabati Behera (Smt)alias Lalita Behera (Through the Supreme Court Legal AidCommittee) v. State of Orissa and Others (1993 (2) SCC 746)wherein this Court relying upon the decision in Rudal Sah(Rudal Sah v. State of Bihar & Anr. (1983 (4) SCC 141)decried the illegality and impropriety in awardingcompensation in a proceeding in which courts power underArticles 32 and 226 of the Constitution stand invoked andthus observed that it was a clear case for award ofcompensation to the petition for custodial death of herson. It is undoubtedly true however that in the presentcontext, there is no infringement of States obligationunless of course the State can also be termed to be a jointtort-feasor, but since the case of the parties standrestricted and without imparting any liability on theState, we do not deem it expedient to deal with the issueany further except noting the two decisions of this Court https://hcservices.ecourts.gov.in/hcservices/ as above and without expression of any opinion in regardthereto.27.The decision of this Court in D.K. Basuvs. State of West Bengal [(1997) 1 SCC 416] comes next.This decision has opened up a new vesta in thejurisprudence of the country. The old doctrine of onlyrelegating aggrieved to the remedies available in civil lawlimits stands extended since Anand, J. (as His Lordshipthen was) in no uncertain terms observed:The courts have the obligation to satisfy the socialaspirations of the citizens because the courts and the laware for the people and expected to respond to theiraspirations. A court of law cannot close its consciousnessand aliveness to stark realities. Mere punishment of theoffender cannot give much solace to the family of thevictim civil action for damages is a long drawn and acumbersome judicial process. Monetary compensation forredressal by the court finding the infringement of theindefeasible right to life of the citizen is, therefore,useful and at time perhaps the only effective remedy toapply balm to the wounds of the family members of thedeceased victim, who may have been the breadwinner of thefamily.28.Currently judicial attitude has taken ashift from the old draconian concept and the traditionaljurisprudential system affectation of the people has beentaken note of rather seriously and the judicial concernthus stands on a footing to provide expeditious relief toan individual when needed rather than taking recourse tothe old conservative doctrine of civil courts obligation toaward damages. As a matter of fact the decision in D.K Basuhas not only dealt with the issue in a manner apposite tothe social need of the country but the learned Judge withhis usual felicity of expression firmly established thecurrent trend of justice oriented approach. Law courts willlose its efficacy if it cannot possibly respond to the needof the society technicalities there might be many but thejustice oriented approach ought not to be thwarted on thebasis of such technicality since technicality cannot andought not to outweigh the course of justice."36.In my humble opinion, the decisions relied on bythe learned counsel for the petitioner cannot be strictly applicableto the facts of this case for the reason that in the case on hand,insofar as supply of electricity to the agricultural filed isconcerned, it is done in the interior areas of the Villages, throughout the State and that the chances of inspecting, as to whether there https://hcservices.ecourts.gov.in/hcservices/ is any pilferage or malpractice is rather remote, unless specificcomplaints are received, as compared to the case of a supply ofelectricity for residential/commercial purposes, where there is atariff. It is also to be noted, when agriculturalists are notlevied any charges for use of electricity, there would not be anypossibility of taking metre reading at regular intervals for thepurpose of levying consumption charges. Therefore, considering thevast extent of agricultural lands, one cannot expect inspection atthe place of supply frequently, unless there is any specificcomplaint/report of illegal usage of the same for any other purpose,other than agriculture. 37.No doubt, a public duty is cast on theauthorities to inspect and verify, as to whether the main supplylines are not tampered or snapped for any other purpose, for which,the supply is given, where public has access to the place. Astatutory duty is also cast upon the Board, in respect of overheadlines. The verification or inspection can be legitimately expectedto be done, in a place, where the general public has access to movefreely, whereas, in the case of an agricultural lands, owned by theprivate individuals and located in a far away distance from the placeof habitation, access to the general public to enter into theirlands, is less. 38.In the event of breach of public or statutoryduty or negligence, compensation can be fixed on the servants andconsequently, the application of various liability can be invoked.The breach of duty and care by the Board officials alleged, in notpreventing the agricultural consumer from using electricity forfencing his lands, during night hours, cannot be said to be acareless act or failure on the part of the officials, upto thestandards set by law. It cannot be said that there is a casualconnection between the officials' carelessness, which resulted in theloss of life, which is so unforseeable and also remote. Negligenceon the part of the Electricity Board cannot be said to be writ largeand not proved by any concrete material. So also, the allegation ofconnivance is also not supported by any material evidence. 39.Per contra, there are sufficient materialdocuments, indicating that respondents 3 and 4 have used electricityfor fencing agricultural field. The Writ Petition has been filed inthe year 2002 and more than 10 years have lapsed. No counteraffidavit has been filed by respondents 3 and 4, refuting theallegations. In the abovesaid circumstances, this Court is of theview that the petitioner has proved that due to electrocution, therewas a death and on the facts and circumstances of the case, thisCourt is inclined to fasten liability only against respondents 3 and4 for payment of compensation. Closure of a criminal complaint wouldnot preclude the petitioner from claiming compensation. https://hcservices.ecourts.gov.in/hcservices/

40.The deceased was stated to be aged 25 years andearned Rs.2,500/- per month. The petitioner, father, dependant wasaged 60 years at the time of filing the writ petition. There is nospecific method for computing the compensation provided under theElectricity Act and the Rules framed thereunder in the case of death,due to electricution. However, as the death has been caused due tonegligence and illegal use of electricity, it would be appropriate toapply the method, as provided for in Motor Vehicles Act, for thepurpose of computation, which works out to Rs.3,40,000/- (Rs.2,500 x12 x 17 x 1/3).41.In the result, the Writ Petition is allowed asagainst respondents 3 and 4, who are directed to pay compensation ofRs.3,40,000/-. As the compensation is ordered against privateindividuals, the petitioner is at liberty to move the Board torecover the amount from the land owners from the deposit made, withina period of two months from the date of receipt of a copy of thisorder. The respondents 1 and 2 are also directed to take all stepsto recover the amount from the landowners and disconnect the supplyfor wrongful act. Accordingly, the writ petition is dismissedagainst respondents 1 and 2. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.skmTo1. The Executive Engineer, Operation & Maintenance, Thuriayur Post, Trichy District.2. The Chairman, Tamil Nadu Electricity Board, Annasalai, Chennai.W.P.No.31744 of 2002BKY (CO)kk 1/8