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2009 DIGILAW 69 (ORI)

JAGADISH PANIGRAHI v. CHIEF EXECUTIVE OFFICER, SOUTHERN ELECTRICITY SUPPLY CO. LTD.

2009-01-28

A.S.NAIDU

body2009
JUDGMENT : A.S. Naidu, J. The father and mother of one Jitu Panigrahi, who received electric shock and died due to the said shock, have approached this Court for issuance of a direction to the Opposite Parties to pay compensation of Rs. 3 lakhs along with interest and cost. 2. Bereft of unnecessary details, the short facts, which are necessary for effectual adjudication are that- Jitu Panigrahi, aged about 14 years was working as a daily labourer in the Hotel of one Rama Krush'na Panigrahi. On 16.9.2004 at about 8.30 A.M. he along with another person, it is alleged, were removing the tin sheets and wood from the rooftop of the hotel for the purpose of Ganesh Puja. Accidentally, the tin sheet came in contact with the live electric wire, which was passing by the side of the hotel and Jitu received electric shock and fell down over the line and became seriously injured. He was removed to the hospital where he was declared dead. The cause of death was assigned to be "Cardiac Arrythemia resulting from electrocution". An F.I.R. was filed on the same day and on the basis of the F.I.R. P.S.Case was registered, which was subsequently converted to U.D.Case No. 2 of 2004. After completing investigation, the Investigating Officer submitted his report concluding that the death of Jitu was due to accidental electric shock and there was no suspicion of any foul-play. The post-mortem report annexed to the Writ Petition and marked as Annexure-2 and the F.I.R. is marked as Annexure-1. According to the Petitioners, the live electric wire was drawn very near to the hotel without any safety and protective measure and it was in loose condition due to poor standard of maintenance by the Opposite Parties, and that was the cause, for the accidental death of Jitu. 3. After receiving notice, a counter affidavit has been filed by the Opposite Parties taking the stand that the L.T. line had been drawn in village Padmapur by the then O.S.E.B. to give power supply to the consumers of the village after following the guidelines prescribed in the Indian Electricity Rules. After due inspection and on being satisfied the line had been charged. It is averred that the supply system was being maintained properly to ensure regularity in the power supply. After due inspection and on being satisfied the line had been charged. It is averred that the supply system was being maintained properly to ensure regularity in the power supply. No complaint whatsoever was received at any point of time with regard to the lack-of maintenance or negligence and/or sagging of electric wires. It is averred that Jitu was working as a daily labourer. He was removing the tin sheets from the rooftop of the hotel. While removing the tin sheets, he did not keep in mind that the live electric wires were passing by the side of the hotel, consequently, the tin sheets touched the live electric wire and he received electric shock and fell down on the line and died due to such shock. Thus, according to the Opposite Parties, there was absolutely no negligence on their part, and the accident in fact took place due to the negligence of the hotel owner as well as Jitu, who was not careful, and only due to his negligence, the tin sheet, which he was carrying touched the live electric wire, as such, the Opposite Parties are not liable to pay any compensation whatsoever to the Petitioners. 4. The accident in question, as stated earlier, took place on 16.9.2004. The present Writ Petition has been filed in the year 2006, i.e., after lapse of two years. Mr. A.K.Mohapatra, Learned Counsel for the Petitioners, took much strain to convince this Court that in fact the accident took place due to the negligence of the Opposite Parties. According to him, due to non-maintenance of the live electric wires in proper way, a young boy lost his life and for such death, the Opposite Parties are squarely responsible. He strenuously relied upon several decisions on the point. In order to convince this Court that the Opposite Parties were negligent all through and due to such negligence, the death having occurred, without adhering to the technicalities, compensation can be awarded by the Writ Court. He strenuously relied upon several decisions on the point. In order to convince this Court that the Opposite Parties were negligent all through and due to such negligence, the death having occurred, without adhering to the technicalities, compensation can be awarded by the Writ Court. According to the Learned Counsel, there was gross violation of Rule 79 of the Indian Electricity Rules, 1956, which requires that the electric lines are to be drawn by leaving a specific distance between the wires and the residential houses and further in view of Rule 91 of the Indian Electricity Rules, 1956, the Opposite Parties were duty bound to adhere to safety and protective measure while drawing the live electric wires, and one of the safety measures is proper insulation of the electric wires. None of the said preventive measures having been taken by the Opposite Parties, this Court should hold that the Opposite Parties are negligent and .responsible for the untimely death of Jitu. Relying upon the decisions of the Supreme Court in the case of Rudul Sah Vs. State of Bihar and Another Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others The Chairman, Railway Board and Others Vs. Mrs. Chandrima Das and Others, and Smt. Kumari Vs. State of Tamil Nadu and others it is submitted that this Court while exercising the jurisdiction under Article 226 of the Constitution can direct the authorities for payment of compensation on account of tortuous acts. Learned Counsel for the Petitioners also relied upon several decisions to convince this Court that in similar cases the Supreme Court as well as this Court has granted compensation to the family members of the victims, who died due to electric shock. 5. Law is no more res integra that the powers of this Court under Article 226 of the Constitution are not circumscribed by any restrictions and this Court while exercising the said powers can grant reliefs in given cases. But then, the settled position of law is that a Writ Court should not entertain disputed questions of fact and try to decide the same. (See Chairman, Grid Corporation of Orissa Ltd. (Gridco) and Others Vs. Smt. Sukamani Das and Another, ). But then, the settled position of law is that a Writ Court should not entertain disputed questions of fact and try to decide the same. (See Chairman, Grid Corporation of Orissa Ltd. (Gridco) and Others Vs. Smt. Sukamani Das and Another, ). In the case of T.N. Electricity Board v. Sumathi AIR 2000 SC 1603 the Supreme Court observed: In view of the clear position of law laid down by this Court in Sukamani Das's case AIR 1999 SC 3383 : AIR 1999 SC 3412 , when disputed question of fact arises and there is clear denial of any tortuous liability, remedy under Article 226 of the Constitution may not be proper. However, it cannot be understood as laying a law that in every case of tortuous liability recourse must be had to the suit, When there is negligence on the face of it and infringement of Article 21 is there it cannot be said that there will be any bar to proceed under Article 226 of the Constitution. The said Judgment has been followed in number of cases by this Court while dealing with cases of electrocution. Nirmala Nayak and Others Vs. Chairman-cum-Managing Director, Grid Corporation of Orissa Ltd. and Another, After going through the decisions cited, this Court finds that there is no conflict with regard to the powers or jurisdiction of this Court under Article 226 and do not want to burden this Judgment with number of decisions in that regard. 6. In the case of Kumari Rita ' Gita Sahoo v. GRIDCO OJC No. 11105 of 1996 decided on 30.10.2008, a Division Bench of this Court relying upon the decisions of the Supreme Court in S.D.O. Grid Corporation of Orissa Ltd. and Others Vs. Timudu Oram Chairman, GRIDCO v. Sukamani Das (supra) and West Bengal Electricity Board and Ors. v. Sachin Banerjee and Ors. AIR 2000 SC 3629 observed that as disputed questions of fact are involved and the same cannot be effectually adjudicated under the Writ Jurisdiction, the Writ Petition may not be entertained. This Court further observed as to whether the Opposite Parties-Company has committed any negligence or not, as to what is the extent of disability and whether there is contributory negligence on the part of the .victim are the basic questions to be considered after assessing evidence by appropriate authority/Court. Therefore, the power of writ jurisdiction should not be exercised. This Court further observed as to whether the Opposite Parties-Company has committed any negligence or not, as to what is the extent of disability and whether there is contributory negligence on the part of the .victim are the basic questions to be considered after assessing evidence by appropriate authority/Court. Therefore, the power of writ jurisdiction should not be exercised. Thus, it is crystal clear that there cannot be an iron tight jacket with regard to the principles whether compensation can be granted under a writ jurisdiction. On the other hand, the fact of each case has to be adjudged and if the Court is satisfied that negligence of the party is very much apparent on the face of it and there is infringement of Article 21, the Writ Court can grant compensation. On the other hand, on scrutiny of the documents and materials, if the Court comes to a conclusion that several disputed questions of fact are involved and there is denial about the tortuous liability, the Court should be slow to exercise the jurisdiction under Article 226 of the Constitution and award compensation. 7. In the case in hand, the facts, as has been described in the F.I.R. and other documents, clearly reveal that Jitu, the 14 years son of the Petitioners was removing some tin sheets from the rooftop of the hotel in question. While doing so, he touched the live electric wire with the tin sheet. While assessing the question of negligence certain facts, i.e., (i) what was the height of the building, (ii) what was the gap of the building and the electric wires, (iii) what was the length of the tin sheets, (iv) whether the electric wires were within the arms distance from the place where Jitu was trying to remove the tin sheet, (v) conditions of the wires, i.e., whether they were sagging or intact and (vi) as to whether the 14 year boy could have been engaged to perform such hazardous job. The Petitioners have annexed to the Writ Petition the F.I.R., inquest report, post mortem report and final form submitted by the I.O. Though enough materials are available to prima facie presume that the death occurred due to the electric shock received by Jitu while removing the tin sheets from the rooftop of the hotel, but then, there are no materials to arrive at a conclusion as to whether the said shock was received due to the negligence of Jitu or due to lack of maintenance of the electric wires by the Opposite Parties. In the absence of any material to that effect, it cannot be held by a Writ Court as to whose negligence the death took place. 8. In view of the discussions made above, this Court being unable to record a finding of fact on factual controversies, grants liberty to the Petitioners to approach the Opposite Parties by filing proper application enclosing all necessary documents and praying to award necessary compensation as such an act is sine qua non before issue of a writ of mandamus. It is needless be said that if such a petition is filed, it is open to the Opposite Parties to consider the entire facts and decide as to whether the accident in question took place due to any negligence and or contributory negligence of the Opposite Parties. The Chief Executive Officer, Southern Electricity Supply Company Ltd. shall consider the entire episode taking a humanitarian approach to the grievances of the Petitioners, who have lost their son at a very tender age and if satisfied, pass appropriate orders for grant of ex-gratia amount to the Petitioners, if they are otherwise found eligible. The entire exercise shall be completed within a period of three months from the date of filing of the representation by the Petitioners.