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2010 DIGILAW 165 (ORI)

Sashirekha Nayak v. Chief Executive Officer/ Executive Director, NESCO (Electrical), Balasore

2010-03-12

S.K.MISHRA

body2010
JUDGMENT S.K. MISHRA, J. : The petitioner, claiming to be the widow of deceased Upendra Nayak has filed this writ petition under Articles 226 and 227 of the Constitution of India for compensa¬tion arising out of death of the said Upendra Nayak. 2. The case of the petitioner is that the deceased Upendra Nayak had been to his agricultural lands in early morning on 18.09.2004. There he came into contact with one live electric wire, as a result of which he suffered severe injuries on his body. He was shifted to Dharmasala C.H.C., but on the way he died. It is further pleaded that immediately thereafter, an F.I.R. was lodged before the Officer-in-charge. Dharmasala Police Sta¬tion, for which U.D. Case No.35 of 2004 corresponding to U.D.G.R. Case No.210 of 2004 was initiated. The Police Officer conducted inquest on the dead body of the deceased. The dead body was also subjected to postmortem examination. The petitioner claims that the live electric wire was lying on the path, which clearly proves that the opposite parties were negligent and they have failed to take safeguard to avoid the tragic death of the deceased. It is further pleaded that the deceased was a hard-working labourious person. He was also hold¬ing domestic animals. His monthly income was approximately Rs.3,000/- The petitioner pleads that since there is no speedy, alternative and efficacious remedy available to the petitioner, she approached this Court. On the above facts, the petitioner claims Rs.2,00,000/- (Rupees two lakhs) along with interest @ 18% per annum from the date of accident towards compensation arising out the premature death of the deceased, mental pain and suffering of the petition¬er. 3. The opposite parties have filed their counter affida¬vit, inter alia, pleading that such claim of compensation basing on disputed questions of fact cannot be decided in a writ pro¬ceeding. The opposite party also plead that it is not known to them whether the petitioner is the only legal heir of the de¬ceased. It is also not definite that the deceased died with coming in contact with the live wire which was lying on road and that he died on electrocution. The positive case of the opposite parties is that there is no laches or negligence on the part of the opposite parties, the NESCO authorities, for which they are not liable to pay any compensation. The positive case of the opposite parties is that there is no laches or negligence on the part of the opposite parties, the NESCO authorities, for which they are not liable to pay any compensation. The incident does not belong to the area of oppo¬site party No.3, rather the alleged area comes with the Electri¬cal Section, Neulpur. It is further pleaded that a Helper of Neulpur has reported to the Junior Engineer (Electrical) that on 18.09.2004 he came to know that in village Batijanga a person died by electrocution. Then he went to the said place and found that one 11 K.V. line, which was going over the paddy field, has fallen down because of heavy rain, thunder and lightening oc¬curred on the last night i.e. on 17.09.2004 and as a result, the pin insulator was punctured. But there has been no V.C.B. Trip. However, due to falling of the side wire by the return current, the person has died. It is further pleaded that the said incident was beyond the control of the NESCO authorities and that apart no laches or negligence can be attributed to their action. The opposite parties further plead that the deceased should have been careful while going over his paddy field. As the incident took place in the morning and hardly there was any time to find out such fault and to rectify same. The opposite parties further plead that the allegations of latches and negligence on the part of the NESCO authorities is totally based on surmises and conjectures. It is further pleaded that the live line had been taken authorisedly in accordance with the procedure and there is no bar to draw such line by erecting the poles as per the provisions of the Act and the Rules. The further case of the opposite parties is that the deceased died due to his own negligence. The opposite parties also pleads that they were not aware about the profession, income or financial condition of the peti¬tioner and there is no proof in support of the same. The opposite parties pleads that the only way for adjudication of the disputed questions of fact is to take shelter of the common Court of law instead of burdening the writ jurisdiction, wherein the same cannot be adjudicated. On such pleadings, the opposite parties submit that the writ petition should be dismissed. 4. The opposite parties pleads that the only way for adjudication of the disputed questions of fact is to take shelter of the common Court of law instead of burdening the writ jurisdiction, wherein the same cannot be adjudicated. On such pleadings, the opposite parties submit that the writ petition should be dismissed. 4. At the outset, learned counsel appearing for the opposite parties raised the question of maintainability of this writ petition. It is submitted that the petitioner should have filed a suit for redressal of his grievance and a writ Court cannot decide the disputed questions like contributory negli¬gence, legal heirs of the deceased and the amount of compensa¬tion. 5. Learned counsel for the petitioner, on the other hand, submitted that in Nirmala Nayak and others v. Chairman-cum-Managing Director, Grid Corporation of Orissa Ltd. and another, 2005 (II) CLR 136; Parvati Palai v. Chairman-cum-Managing Direc¬tor, GRID Corporation of Orissa Ltd. and another, 2006 (supp.-1) OLR 1114; Ketaki Lenka and another v. C.E.S.C.O.and others, 2007 (I) CLR 516 and Gangadhar Mohanty v. Chief Executive Officer, CESCO, IDCO Tower, Bhubaneswar and others, 2007(I) CLR 150, this Court have awarded compensation in favour of the petitioner in cases of electrocution. Learned counsel for the petitioner also cites orders passed in W.P.(C) No.15498 of 2006 (Patitapaban Das and others v. Chief Executive Officer, CESCO and others) and W.P.(C) No.4335 of 2007 (Danoi Mohanty v. Chief Executive Offi¬cer, CESCO and others), wherein this Court has awarded compensa¬tion in similar cases. 6. The Supreme Court in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others v. Sukamani Das (Smt) and anoth¬er, (1999) 7 SCC 298 ; examined the jurisdiction of the High Court under Article 226 of the Constitution. The fact of the case filed by Sukamani Das, widow of one Pratap Chandra Das in the reported case is almost similar to the present case. In that case also, deceased Pratap Kumar Das was moving on road, while he came into contact with a live electric wire, which was lying across the road, after getting snapped from the over-head electric line. It was alleged that such electric wire had snapped because of negli¬gence of the GRIDCO and its officers, as they were not maintain¬ing the electric transmission line, and therefore they are liable to pay damages for this negligent act. F.I.R. was lodged, inquest was held and the dead body was subjected to autopsy. It was alleged that such electric wire had snapped because of negli¬gence of the GRIDCO and its officers, as they were not maintain¬ing the electric transmission line, and therefore they are liable to pay damages for this negligent act. F.I.R. was lodged, inquest was held and the dead body was subjected to autopsy. In a batch of cases of similar line, this Court had awarded compensation to the petitioners, who pleaded that they are the legal heirs of the deceased. The GRIDCO preferred an appeal before the Supreme Court against such cases. At paragraph 6 of the judgment, the Supreme Court has held as follows : “In our opinion, the High Court committed an error in enter¬taining the writ petitions even though they were not fit cases for exercising power under Article 226 of the Constitution. The High Court went wrong in proceeding on the basis that as the deaths had taken place because of electrocution as a result of the deceased coming into contact with snapped live wires of the electric transmission lines of the appellants, that “admittedly/prima facie amounted to negligence on the part of the appellants”. The High Court failed to appreciate that all these cases were actions in tort and negligence was required to be established firstly by the claimants. The mere fact that the wire of the electric transmission line belonging to appellant 1 had snapped and the deceased had come in contact with it and had died was not by itself sufficient for awarding compensation. It also required to be examined whether the wire had snapped as a result of any negligence of the appellants and under which circum¬stances, the deceased had come in contact with the wire. In view of the specific defences raised by the appellants in each of these cases they deserved an opportunity to prove that proper care and precautions were taken in maintaining the transmission lines and yet the wires had snapped because of circumstances beyond their control or unauthorised intervention of third par¬ties or that the deceased had not died in the manner stated by the petitioners. These questions could not have been decided properly on the basis of affidavits only.It is the settled legal position that where disputed questions of facts are involved a petition under Article 226 of the Constitution is not a proper remedy. These questions could not have been decided properly on the basis of affidavits only.It is the settled legal position that where disputed questions of facts are involved a petition under Article 226 of the Constitution is not a proper remedy. The High Court has not and could not have held that the disputes in these cases were raised for the sake of raising them and that there was no substance therein. The High Court should have directed the writ petitioners to approach the civil Court as it was done in O.J.C. No.5229 of 1995.” Similar view has been taken in Tamil Nadu Electricity Board v. Sumathi and others, (2000) 4 SCC 543 , wherein the Supreme Court held that where disputed questions of fact arises, the proper remedy is filing suits in the Civil Court. 7. Thus, it is clear from the above that whenever there is any disputed fact in issue for adjudication, writ jurisdiction is not the proper forum. The petitioner should have approached the Civil Court for redressal of her grievance. It cannot be said that in this case, denial of liability by the opposite party is only for the sake of the same. Real disputed question of fact like negligence of the opposite parties, act of nature, contribu¬tory negligence, if the petitioner is the only legal heir of the deceased and what should be the amount of compensation, which can be termed as just are to be decided in this case. This can be only done by a regular trial not on the basis of the affidavits. The learned counsel for the petitioner submitted that rightly or wrongly, the petitioner has approached this Court and in the meantime about three years has elapsed. If the petitioner is directed to file a civil suit, then she will suffer insurmount¬able hardship. While exercising the discretionary jurisdiction under Article 226 of the Constitution of India,Court must not forget that law is to be tempered with equity and if equitable circumstance demands appropriate interim relief should be grant¬ed. In exercise of the writ jurisdiction under Article 226, discretion would be so exercised by the Court that the justice may be rendered to both the parties. 8. In view of the aforesaid discussions, this Court comes to the conclusion that the petitioner should approach the Civil Court for redressal of the grievances. On such an event, the Civil Judge (Sr. 8. In view of the aforesaid discussions, this Court comes to the conclusion that the petitioner should approach the Civil Court for redressal of the grievances. On such an event, the Civil Judge (Sr. Division), in whose Court the case is filed shall do the needful to expeditiously dispose it of, preferably within a period of 6 (six) months from filing of the same. In the meantime, the opposite parties are directed to deposit a sum of Rs.50,000/- (Rupees fifty thousand) with the Registrar (Judicial) of the Court within a month of passing of this order. The said amount shall be released in favour of the petitioner on her production of any material, viz. Legal Heir Certificate, to show that she is the only legal heir of the deceased. Such amount shall be adjusted towards the final compensation to be determined by the Civil Court. The writ petition is accordingly disposed of. No costs. Petition disposed of.