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2010 DIGILAW 3332 (MAD)

Rani v. State of T. N.

2010-08-03

M.DURAISWAMY

body2010
Order:-By consent of both counsel, the writ petition itself is taken up for hearing. 2. The petitioners filed the above writ petition to issue a Writ of Mandamus directing the respondents to pay a sum of Rs.5,00,000/- with interest at the rate of 12% per annum for the accidental death of Sobanan, the husband of the first petitioner and the father of the petitioners 2 and 3. 3. The brief case of the petitioners' are as follows;- The first petitioner is a widow of late Sobanan and the petitioners 2 and 3 are their children. The said Sobanan was working as a Mason in the neighbouring Kerala State earning Rs.200/- per day. The neighbouring Kerala State is of walkable distance from the petitioners' place. On 21.08.2001, an electric line belonging to and maintained and controlled by the respondents 1 to 4 improperly, was lying on a telecommunication line belonging to and maintained and controlled by the respondents 5 to 8, which was also improperly lying too low. On the said day at about 5.15 a.m. the said Sobanan left his house for buying milk. While going, he unknowingly came into contact with the above said telephone wire which was in the air much less than a man's height from the ground. The said Sobanan's father and others immediately took him in a car to the nearby C.S.I. Hospital, Karakonam where the doctor examined him and declared him dead. Based on the complaint made by the said Sobanan's father, a case in Crime No.687 of 2001 on the file of Kaliakavilai Police Station under Section 174 of Cr.P.C. was registered. The said Sobanan died due to electrocution. The accident was due to the negligence by the respondents 1 to 8. The said Sobanan was the only bread winner of the family. There was no income for the family other than the income that he earned from his work. The petitioners were making repeated requests to the respondents for a suitable compensation. According to the petitioners, on 20.05.2004, petitioners submitted a petition to the second respondent for compensation. However, no compensation or assistance has so far been given to them. Therefore, the petitioners have filed the above writ petition claiming a compensation of Rs.5,00,000/- together with interest at the rate of 12% per annum from 21.08.2001 till the date of payment. 4. According to the petitioners, on 20.05.2004, petitioners submitted a petition to the second respondent for compensation. However, no compensation or assistance has so far been given to them. Therefore, the petitioners have filed the above writ petition claiming a compensation of Rs.5,00,000/- together with interest at the rate of 12% per annum from 21.08.2001 till the date of payment. 4. The brief case of the respondents 2 to 4 are as follows; According to the respondents, on 21.08.2001 a lorry with heavy load and abnormal height has dragged the service connection of D.26 Palukal fed from Manoorkonam SS about 600 meters from the spot of accident. Due to the above incident, the service was damaged and cut and in view of the same, the wire fell on the telephone wire at one end and got energised. According to the respondents, the said Sobanan died not because of the negligence on the part of the respondents 2 to 4, but only because of the above mentioned fact. The respondents 5 to 8 are alone responsible for the above incident and because of non-maintenance of the telephone wire, the alleged accident took place. The respondents also disputed the earning capacity of the deceased. According to the respondents, the petitioners never approached the TNEB in person requesting for compensation for the said accident and further negligence is not on the part of the electricity board. Unless the petitioners proved the accident by way of proper evidence and the loss of income, it is not viable to fix the quantum of compensation in the present writ petition. The writ petition is not a proper remedy for fixing the compensation. Therefore, prayed of dismissal of the writ petition. 5. The brief case of the respondents 6 to 8 are as follows; According to the respondents, the Writ Petition filed for compensation of Rs.5,00,000/- with interest is not maintainable. There is no evidence with regard to the income earned by the deceased Sobanan. According to the respondents, telephone wires were properly maintained by guarding and properly earthing. Normally the flow of electric current in telephone line is 50 Volt DC. There was no negligence on the part of the respondents. Since the live line of TNEB at Palukal feed, had broken and fell on the telephone wire and caused the accident, the respondents 6 to 8 could not be held responsible for the negligence. Normally the flow of electric current in telephone line is 50 Volt DC. There was no negligence on the part of the respondents. Since the live line of TNEB at Palukal feed, had broken and fell on the telephone wire and caused the accident, the respondents 6 to 8 could not be held responsible for the negligence. The telephone wire is fully insulated and there is no possibility of passing current through telephone wire. It was learnt that the deceased was negligent. The criminal complaint made against the respondents in Crime No.687 of 2001 for electrocution was referred as accidental death. Only because of the fall of broken live wire of TNEB on the telephone wire, the alleged accident had happened. No representation for compensation was made to the respondents prior to the filing of the writ petition. Therefore, the respondents prayed for dismissal of the writ petition. 6. Heard, Mr.K.N.Thambi, the learned counsel for the petitioner, Mr.S.C.Herold Singh, the learned Government Advocate for the first respondent, Mr.M.Sureshkumar, the learned counsel for the respondents 2 to 4 and Mr.V.Ramasamy, the learned counsel for the respondents 5 to 8. 7. The learned counsel appearing for the petitioner submitted that on 21.08.2001 at about 5.15 a.m. the said Sobanan left his house for buying milk and while proceeding to buy milk, he unknowingly came into contact with the telephone wire which was in the air at less than a man's height from the ground. The said telephone wire came into contact with live TNEB wire running above the telephone wire which fell on the telephone wire thereby getting it energized. The said Sobanan was taken to hospital and he was declared dead due to electrocution. According to the petitioners, the said Sobanan was working as a mason and earning Rs.200/- per day in the neighbouring Kerala State. According to the petitioners, the said Sobanan was the only bread winner of the family. The said Sobanan was taken to hospital and he was declared dead due to electrocution. According to the petitioners, the said Sobanan was working as a mason and earning Rs.200/- per day in the neighbouring Kerala State. According to the petitioners, the said Sobanan was the only bread winner of the family. 8.The learned counsel appearing for the petitioners relied upon the following judgments; i) AIR 1993 SC 1960 (Nilabati Behera V. State Of Orissa) wherein the Honourable Apex Court while granting compensation in the Writ Petition in a case of custodial death observed that " If the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case". ii) In 2006 WLR 13 (C.Thekkamalai V. State Of Tamil Nadu & Others) the Division Bench of this Court held that when the matter clearly relates to the violation of basic human rights as well as Fundamental Right guaranteed under Article 21 of the Constitution, the victim would be entitled to a fair and reasonable compensation. iii)In 2006 WLR 608 (Lakshmana Naidu & Another V. The State Of Tamil Nadu And Another) this Court held that compensation can be awarded for violation of Fundamental Rights in public law domain and further held that the High Court being protector of Civil liberties of the citizen, has not only the power and jurisdiction, but also an obligation to grant relief under Article 226 of the Constitution to the victim or the heir of the victim whose fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or criminal proceedings. 9.Countering the submissions made by the learned counsel for the petitioners, the learned counsel for the respondents 2 to 4 would submit that the petitioners had filed the above writ petition for compensation after a lapse of six years from the date of the accident, therefore, the writ petition is liable to be dismissed on the ground of laches. 9.Countering the submissions made by the learned counsel for the petitioners, the learned counsel for the respondents 2 to 4 would submit that the petitioners had filed the above writ petition for compensation after a lapse of six years from the date of the accident, therefore, the writ petition is liable to be dismissed on the ground of laches. The learned counsel also submitted that the petitioners have not given any representation to the Tamil Nadu Electricity Board for compensation; that the Writ Petition is not the proper remedy for fixing the compensation. In support of his contention, the learned counsel relied upon the judgment reported in (2005) 6 SCC 156 (SDO, Grid Corpn Of Orissa Ltd. V. Timudu Oram) wherein the Honourable Apex Court held that the writ petition claiming compensation is not maintainable for the reason that civil suit filed by the petitioners in respect of the same cause of action was dismissed earlier and on the ground of resjudicata, the Writ Petition filed subsequent to the dismissal of the civil suit is not maintainable. The facts and circumstances of the case differs from the case on hand. Therefore, the judgment is not applicable to the present case. 10.The learned counsel also relied upon the judgment reported in 2000(4) SCC 543 (T.N. Electricity Board V. Sumathi) wherein the Honourable Apex Court held that appointing an arbitrator to decide the question of compensation, is erroneous. The facts and circumstances of the case differs from the case on hand, therefore, the judgment is not applicable to the present case. 11.The learned counsel appearing for the respondents 6 to 8 would submit that there was no evidence that the deceased Sobanan was earning Rs.200/- per day and therefore, the compensation cannot be fixed in the present Writ Petition. The learned counsel also submitted that the live wire of TNEB at Palukal feed had broken and fell on the telephone wire and caused the accident, for which the respondents 6 to 8 could not be held responsible for the negligence. Further, the learned counsel also submitted that the telephone lines are properly maintained by guarding and proper earthing and the normal flow of electric current in telephone wire is only 50 Volt DC. The learned counsel also submitted that the petitioners did not give any representation for compensation to the respondent 6 to 8 prior to the filing of the Writ Petition. The learned counsel also submitted that the petitioners did not give any representation for compensation to the respondent 6 to 8 prior to the filing of the Writ Petition. In these circumstances, the counsel for the respondents prayed for dismissal of the writ petition. 12.On a careful consideration of the materials available on record and on the submissions made by both sides, it could be seen that it is not in dispute that the deceased Sobanan, who is the husband of the first petitioner and the father of the petitioners 2 and 3, died due to electrocution on 21.08.2001. On 21.08.2001 at about 5.15 a.m. the said Sobanan unknowingly came into contact with the telephone wire which was in the air at less than a man's height from the ground. The said telephone wire came into contact with the TNEB live wire running above the telephone wire which fell on the telephone wire thereby getting it energized. According to the respondents 2 to 4, on 21.08.2001 a lorry with heavy load and abnormal height has dragged the service connection No.D.26 Palugal feed from Manoorkonam SS about 600 meters from the spot of accident and due to the said incident, the service connection was damaged and cut and in view of the same, the live wire fell on the telephone wire and got energised. Therefore, from the counter affidavit filed by the respondent 2 to 4, it is clear that live wire was damaged and cut and in view of the same the wire fell on the telephone wire at one end and consequently the telephone wire got energised. Even assuming that a lorry with heavy load and abnormal height has dragged the service connection on 21.08.2001, the electricity board is duty bound to rectify the defect immediately and avoid any damage being done to any person or to his belongings. In the case on hand no such act was done by the electricity board which resulted in the death of Sobanan on 21.08.2001. Negligence is purely on the part of the respondents 2 to 4. If the TNEB had taken necessary steps to stop the supply in power line, they could have very well averted the accident on 21.08.2001. The inaction on the part of respondents 2 to 4 had cost the loss of valuable life of Sobanan. The death of Sobanan had caused irreparable loss to the family. If the TNEB had taken necessary steps to stop the supply in power line, they could have very well averted the accident on 21.08.2001. The inaction on the part of respondents 2 to 4 had cost the loss of valuable life of Sobanan. The death of Sobanan had caused irreparable loss to the family. The death of Sobanan was only because of the negligence of the respondents 2 to 4. Therefore the respondents 2 to 4 are liable to pay the compensation to the petitioners for the death of Sobanan on 21.08.2001. Respondents 6 to 8 cannot to be held negligent for the reason that the live wire of TNEB fell on the telephone wire thereby caused the death of Sobanan. That apart the flow of electric current in the telephone wire is only 50 Volt D.C. Therefore, the respondents 6 to 8 cannot be held negligent. 13.In AIR 1993 SC 1960 (cited supra), 2006 WLR 13 (cited supra) and 2006 WLR 608 (cited supra), it was held that compensation can be awarded in a writ petition. 14.The respondents have disputed the earning capacity of the deceased. According to the petitioners, the deceased was working as a Mason and was earning a sum of Rs.200/- per day i.e. Rs.6,000/- per month. However, the petitioners have not produced any documentary evidence to prove that the deceased was earning Rs.6,000/- per month. It is understandable that since the deceased was working as a Mason the petitioners could not have had any document as proof with regard to the income earned by the deceased. Even assuming that the deceased was not earning Rs.6,000/- per month, it is not in dispute that he was maintaining his wife and two children. For the maintenance of the family, the deceased would have earned atleast Rs.100/- per day i.e. Rs.3,000/- per month. According to the postmortem report the deceased was aged 32 years at the time of his death. Since no document was produced by the petitioners with regard to the income of the deceased, I fix the monthly income of the deceased at Rs.3,000/-; deducting 1/3rd of his monthly income towards his personal expenses, he would have contributed Rs.2,000/- per month to his family. As per the Motor Vehicles Act, multiplier to be adopted will be 16 and the compensation that could be arrived at is Rs.3,84,000/-. As per the Motor Vehicles Act, multiplier to be adopted will be 16 and the compensation that could be arrived at is Rs.3,84,000/-. Towards love and affection for the two minor children a sum of Rs.20,000/- could be awarded and towards consortium to the first petitioner, the wife of the deceased, Rs.10,000/- could be awarded and a sum of Rs.11,000/- could be awarded towards mental agony and suffering of the petitioners, totalling in all a a sum of Rs.4,25,000/- towards compensation to the petitioners. 15. Admittedly the accident took place on 21.08.2001. According to the petitioners they have been making repeated requests to the respondents for compensation and the matter had been taken up with higher-ups. Since neither any compensation nor any reply was given, the petitioners submitted representation to the respondents 2 to 4 on 20.05.2004. The first petitioner is an illiterate poor woman. In paragraph 12 of the affidavit, the petitioners have stated that they are practically starving after the death of Sobanan. The petitioners also stated that there was nobody to help them. In these circumstances, the petitioners had filed the writ petition only on 28.08.2007. Hence, the delay in filing the Writ Petition is only because of the petitioners, so, the respondents cannot be asked to pay the interest for the period from 21.08.2001 to 27.08.2007. The respondents 2 to 4 are liable to pay a total compensation of Rs.4,25,000/- (Rupees four lakhs twenty five thousand only), together with interest at the rate of 6% per annum. However, the respondents 2 to 4 are liable to pay interest at the rate of 6% per annum only from the date of filing of writ petition i.e. 28.08.2007 till the date of payment. 16.This Court is of the view that considering the pathetic family circumstances and poverty driven conditions of the petitioners, ends of justice would be met if the respondents 2 to 4 are directed to pay a sum of Rs.4,25,000/- as compensation together with interest at the rate of 6% per annum from 28.08.2007 till the date of payment, to the petitioners within a period of 8 weeks from the date of receipt of a copy of this order. The respondents 2 to 4 are directed to pay the compensation of Rs.4,25,000/- together with interest to the petitioners in the following manner; a) Rs.1,25,000/- together with interest at the rate of 6% per annum from 28.08.2007 till the date of payment to the first petitioner; b)Rs.1,50,000/- together with interest at the rate of 6% per annum from 28.08.2007 till the date of payment to minor Jersha (the 2nd petitioner) c) Rs.1,50,000/- together with interest at the rate of 6% per annum from 28.08.2007 till the date of payment to minor Jerine (the 3rd petitioner). The compensation awarded to the minor petitioners 2 and 3 shall be deposited in a nationalised bank in Kanyakumari District initially for a period of three years. After the expiry of such period of three years the deposit shall be renewed till the minor petitioners attain the age of majority. The petitioners are entitled to receive the interest accrued on such deposit once in three months. 17. In the result, the writ petition is disposed of in the above terms. Consequently, the connected miscellaneous petition is closed. No costs.