Research › Search › Judgment

Chhattisgarh High Court · body

2014 DIGILAW 8 (CHH)

SANTOSH KUMAR KASHYAP v. STATE OF C. G.

2014-01-10

MANINDRA MOHAN SHRIVASTAVA

body2014
ORDER 1. By this petition under Article 226 of the Constitution of India, the petitioners have prayed for issuance of a direction to respondent No.3 to pay compensation of Rs.7 Lacs with interest as per demand notice dated 18-06-2004 (Annexure P-6). 2. Brief factual matrix necessary for determination of controversy involved in the petition are that in Village Kapan, Tahsil Janjgir, an unfortunate incident happened on 24-04-2004 in the evening at about 6 P.M., when due to storm, electric pole bearing live electric wires meant for supply or electricity fell down as a result of fall of tree on the pole. The petitioners along with their parents namely Late Sukhram and Rama Bai resided in the house, which is by the side of the electricity pole. Due to fall of electric pole and live electric wires, Sukhram and his wife Rama Bai came in contact with felled live electric wires and got electrocuted leading to their death. The incident was reported to the Police Station and police recorded merg intimation. Dead bodies were subjected to postmortem. In the incident, the parents of the petitioners lost their life at one stroke. Marriage of petitioner No.1 and his sister-petitioner No.4, which was to be performed on 27-04-2004 i.e. three days after the incident, were also cancelled due to untimely sad demise of both mother and father in the unfortunate tragic incident. 3. The petitioners claimed compensation of Rs.7 Lacs from the respondent-Board through demand notice dated 18-06-2004 (Annexure P-6), which was denied by the respondent-Board vide their reply dated 29-07-2004 (Annexure P-7) stating that the incident was a natural calamity. The petitioners thereafter filed this petition for the reliefs as stated above. 4. Learned counsel for the petitioners raised two-fold submissions. It is firstly contended that under the provisions contained in Rules 29, 44, 45 & 46 of the Electricity Rules, 1956, the Board is obliged to conduct periodical inspection of the electric lines maintained by them and the Board is required to take all safety measures to prevent accidents. These provisions relating to safety and security were not followed by the Board. Electric pole was loosely installed. The respondent-Board acted with gross negligence in restoring electricity supply after the storm without making proper enquiry regarding any loss, which may be caused to electricity poles and lines. Therefore, the Board has acted negligently and liable to pay compensation. These provisions relating to safety and security were not followed by the Board. Electric pole was loosely installed. The respondent-Board acted with gross negligence in restoring electricity supply after the storm without making proper enquiry regarding any loss, which may be caused to electricity poles and lines. Therefore, the Board has acted negligently and liable to pay compensation. In the alternative, the second submission is that in view of authoritative pronouncement of the Supreme Court in the case of Madhya Pradesh Electricity Board Vs. Shail Kumari and others 2002 ACJ 526, irrespective of whether death was caused due to negligence on the part of the respondent-Board, principles of strict liability are applicable as the Board carries on hazardous and dangerous activity. Therefore, in such a case, loss of life is required to be compensated by the Board without any enquiry into tortious liability of the Board under the ordinary law. 5. On the other hand, learned counsel for the respondent-Board submitted that the allegations that the accident happened due to negligence on the part of the Board have been specifically denied by the respondents and this gives rise to a disputed question of fact as to whether there was any negligence or not. This disputed question of fact cannot be gone into in this writ petition and proper course of action is to approach ordinary remedy of civil law or any other law of the land providing for payment of compensation and damages upon adjudication with regard to negligence, if any, on the part of the Board. In support of his contention, learned counsel for the respondent-Board has relied upon a decision in the case of S.D.O. Grid Corporation of Orissa Ltd. & Ors. Vs. Timudu Oran 2005(6) SCC 156 , West Bengal State Electricity Board and others Vs. Sachin Baneriee and others (2000) 10 SCC 211 , and S.P.S. Rathore Vs. State of Haryana & Other 2005 (10) SCC 1 6. Though ordinarily, a claim for compensation and damages caused due to negligence of other party has to be raised before the Civil Court or in cases where for a particular tortious liability any remedy is provided in any law, before the Court or Tribunal constituted under such laws, for example, cases relating to motor accidents, fatal accidents or workmen compensation. Though ordinarily, a claim for compensation and damages caused due to negligence of other party has to be raised before the Civil Court or in cases where for a particular tortious liability any remedy is provided in any law, before the Court or Tribunal constituted under such laws, for example, cases relating to motor accidents, fatal accidents or workmen compensation. However, the Supreme Court in the case of Shoil Kumari (supra) applied doctrine of strict liability which has its origin in English common law, in cases of death of a citizen due to snap electrocution. The factual premise of the aforesaid case were that a workman while returning from his factory on a bicycle met with disaster in the form of live electric wire lying on the road. As there was rain, the road was partially inundated with water. This could not be noticed by the cyclist resulting in he coming in contact with the electric wire in the road, as he rode the vehicle over the wire which twitched and snatched him and he was instantaneously electrocuted resulting in his death in minutes. When the action was brought by widow and his minor son, though nobody disputed the fact that victim therein died at the place and the time mentioned by the claimants, it was not disputed that that the victim was electrocuted by the live electric wire lying on the road. The claim was resisted by taking a defence that some other person had illegally hooked a wire from the main supply line in order to siphon energy for own purposes and the said act of pilferage was done clandestinely without noticing the Board. The line got unfastened from the hook and it fell on the road over which the cycle ridden by the deceased slided resulting in electrocution. Therefore, the accident was not because of any negligence on the part of the Board but because of the act of illegal hooking. 7. The Supreme Court applied the principle of strict liability irrespective of any negligence or carelessness on the part of the Managers/Operators of undertakings with activity involving hazardous or risky exposure to human life. It was held:- 8. 7. The Supreme Court applied the principle of strict liability irrespective of any negligence or carelessness on the part of the Managers/Operators of undertakings with activity involving hazardous or risky exposure to human life. It was held:- 8. "Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law or torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions. 9. The doctrine of strict liability has its origin in English common law when it was propounded in the celebrated case of Rylands v. Fletcher. Blackburn, J., the author of the said rule had observed thus in the said decision: (All ER p. 7E-F) "The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape." The Supreme Court also noted judicially evolved exceptions to application of rule of strict liability in para 10 of its judgment as under: 10. "There are seven exceptions formulated by means of case-law to the doctrine of strict liability. It is unnecessary to enumerate those exceptions barring one which is this: "Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply." (Vide p. 535, Winfield on Tort, 15th Edn.)" 8. "There are seven exceptions formulated by means of case-law to the doctrine of strict liability. It is unnecessary to enumerate those exceptions barring one which is this: "Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply." (Vide p. 535, Winfield on Tort, 15th Edn.)" 8. The law laid down in the case of M. C. Mehta Vs. Union of India 1987 ACJ 386 (SC), was also taken note of by the Supreme Court in following words:- 12. In M.C. Mehta v. Union of India this Court has gone even beyond the rule of strict liability by holding that: (SCCp. 421, para 31) Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on anyone on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Ryland v. Fletcher. 9. In the aforesaid case, though an attempt was made to escape liability under the shield of exception of "act of stranger", the contention was repelled. 10. The factual premise and circumstances, in which, parents of the petitioner died in the present case, are almost similar. If, I may say so, the present case stands on a better footing in as much as in the circumstances of the present case, the respondents have not even come out with any defence that the rule of strict liability will not apply as the present being an exceptional case of "act of stranger". The fact that Sukhram and his wife Rama bai died due to electrocution on account of fall of live electric wire maintained by Electricity Board in the house of petitioners which got snapped resulting in electrocution have not been substantially disputed. In another words, as to how death took place, has not been disputed by the respondents, but what the respondents have disputed is their liability by contending that it was not as a result of any negligence on the part of the respondents. In another words, as to how death took place, has not been disputed by the respondents, but what the respondents have disputed is their liability by contending that it was not as a result of any negligence on the part of the respondents. Therefore, the principles of strict liability laid down by the Supreme Court in the case of Shail Kumaril (supra) are squarely applicable to the facts and circumstances of the present case, entitling the petitioners to proper compensation from the respondent-Board irrespective of whether the Board acted negligently but due to the fact that the respondent-Board is engaged in dangerous and hazardous activity in supplying electricity through electricity wires. 11. The decisions which have been relied upon by the respondents are those where the claim was not founded on strict liability principles but on the contention that death was caused due to negligence of other party. In all cases, the ratio of the decisions relied upon by the respondents is that where liability and allegations of negligence are not admitted but disputed, those disputed facts cannot be gone into in the writ petition and the proper remedy available under the law in such cases would be to seek compensation and damages. The judgment in the case of Sachin Banerjee (supra) was distinguished by the Supreme Court in the case of Shail Kumari (supra) by observing that in that case, the electricity board adopted defence that the electric lines were illegally hooked for pilferage purposes and in these circumstances, it was held that the Board cannot be held to be negligent on the said conduct and situation but the question of strict liability was not taken up in that case. In the case of Timudu Oram (supra), the Supreme Court held that the case in hand would fall in the category of Sachin Banerjee (supra) and not Shail Kumari (supra). The distinction though fine was noticed by the Supreme Court that in a case where the claim is founded on a plea of negligence, which requires enquiry into disputed question of fact, the writ petition is not appropriate remedy. 12. In the result, the writ petition is allowed. As to what should be the amount of compensation, the provisions contained in second schedule to the provisions of Motor Vehicles Act can be taken as guidelines. However, the claimants have not given any basis for claiming compensation of Rs.7 Lacs. 12. In the result, the writ petition is allowed. As to what should be the amount of compensation, the provisions contained in second schedule to the provisions of Motor Vehicles Act can be taken as guidelines. However, the claimants have not given any basis for claiming compensation of Rs.7 Lacs. There are no undisputed details of status of family and financial condition. No authentic records were placed by the petitioners before the Court as to age of his father and mother. In his notice (Annexure P-6), the age of father has been stated to be 60 years, but the basis for claim of Rs.7 Lacs has not been stated. In these circumstances, in the opinion of this Court, interest of justice would be met, if lump sum compensation of Rs.3,50,000/- is awarded to the petitioners to be payable to them by respondents No.2 & 3. 13. The petition is accordingly allowed. No orders as to cost. Petition Partly Allowed.