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2015 DIGILAW 273 (ORI)

Laxmikanta Mohanta v. Managing Director, Nesco

2015-04-22

B.R.SARANGI

body2015
JUDGMENT Dr. B.R. SARANGI, J. - The petitioners, who are the legal heirs of deceased Sukadev Mohanta who died due to electrocution on 27.03.2010 at about 8.30 A.M. while on his way to Jashipur Bazar through Mahanga Palasha village road by riding his bicycle, have filed this application claiming for compensation from opposite party nos.1 to 3 to a tune of Rs.3,20,000/- with interest at the rate of 12% per annum. 2.The short facts of the case in hand is that on 27.03.2010 at about 8.30 A.M. deceased Sukadev Mohanta while going to Jashipur Bazar through Mahanga Palasha village road by riding his bicycle to crush some mustard and tila seeds, on the way near Badakudar Tentuanala, he came in contact with 33 K.V. electric line which was in hanging position over a height of about 4 to 5 feet from the ground level. As a result, he was thrown away to a distance with his cycle sustained severe burn injuries and died at the spot. On receipt of the said message from the local people regarding electrocution of the deceased, petitioner no.1, the son of the deceased along with other villagers went to the spot and rescued the dead body. Thereafter, the dead body was sent to the Sub-divisional Hospital, Karanjia for post-mortem. Accordingly, Police registered a U.D. Case vide P.S. Case lNo.5/2010 on the basis of the U.D. F.i.R. lodged in the Police Station vide Annexure-1. After causing an inquiry, Police arrived on conclusion finding the deceased on the spot that the death was due to electrocution and there is no suspicion of any foul play, submitted charge-sheet. When the post-[mortem was caused by the Doctor, on autopsy, he opined that the deceased died due to accidental electric shock and there was no suspicion of any foul play, which has been indicated in the post mortem report vide Annexure-4 that the cause and nature of death can be opined due to electric burn probably coming in contact with live electric wire. Accordingly a death certificate was issued vide Annexure-5 by the competent authority indicating that the deceased died on 27.03,2010.On 21.08.2010, the petitioner no.1 made a representation vide Annexure-6 to the Collector Mayurbhanj claiming compensation of Rs.2 lakhs alleging that due to negligence on the part of the opposite parties, the deceased died on the accidental electric shock. Hence this application. 3.Mr. Hence this application. 3.Mr. P.B. Sinha, learned counsel for the petitioner strenuously urged that since the deceased died due to negligence of opposite party nos.1 to 3 and death due to electrocution having been established by the documents available on record, the petitioners being the legal heirs of the deceased are entitled to get compensation of Rs.3,20,000/- with 12% interest per month. The deceased died at the age of 65 years. To substantiate his case, learned counsel for the petitioners has relied upon the case of *Uday Gagarai v Executive Engineer, Electrical Division and another, 2014 (I) CLR 476 and Sambari Nayak v. The Chief General manager and others (W.A. No.420/2011 disposed of 29.6.2012). 4.Mr. P.K. Mohanty, learned Senior Counsel appearing for the opposite parties, strenuously disputed the contention raised by the learned counsel for the petitioner and stated that petitioner no.1 filed representation vide Annexure- 6 before the Collector, Mayurbhanj claiming Rs. 2,00,000/- on the plea that his father was the earning member of the family, but they filed the writ petition claiming Rs.3,20,000/- with 12% interest per annum. The basis of the claim has not been indicated. Due to variation of claims made in different times by the claimants-petitioners which is disputed by opposite parties such claim is not admissible in view of the disputed claim involved in the matter. He further urged that alternative remedy is available for redressal of the grievance of the petitioners and the petitioners have filed this writ petition by-passing the jurisdiction of the Civil Court where disputed question of fact and law can be resolved by adducing evidence. Therefore, the writ petition is not maintainable. At the same time, it is the admitted fact that the deceased died due to electrocution, who was found near 33 K.V. line on 27.03.2010, but disputed the said fact that no one ever claimed about the hanging of 33 K.V. line at any point of time and it is a fact that on 26.03.2010 midnight there was heavy rain and wind with lightening in that area which fact is also admitted by the petitioners in the F.I.R. It is urged that there is no deliberate negligence on the part of opposite party nos.1 to 3. Unless the petitioners establish deliberate negligence on the part of opposite party nos. 1 to 3, they are not entitled to get compensation. Unless the petitioners establish deliberate negligence on the part of opposite party nos. 1 to 3, they are not entitled to get compensation. It is further urged that the action in tort and negligence are required to be established by the claimant-petitioners. The mere fact that the wire of the electric transmission line belonging to the opposite parties had snapped and the deceased having come in the contact with it died by itself is not sufficient for awarding compensation thereby the claim made by the petitioners is not admissible in the eye of law. 5.On the basis of the pleaded facts above, it is admitted that the death of the deceased has been caused due to accidental electrocution having come in contact with live electric wire. No material has been produced on behalf of the petitioners to indicate 33 K.V. live wire was hanging over a distance of 4 to 5 feet from the ground level. In the F.I.R. it is specifically stated that 33 K.V. electric live wire was hanging at a distance of 4 to 5 feet from the ground level due to heavy rain and wind followed by storm. The factum of hanging of this 33 K.v. line have never been brought to the notice of opposite party nos.1 to 3. Both the doctor’s report as well as the Final Report submitted by the Police indicate that the cause of death is due to accidental electric shock and there is no suspicion of foul play. So far as negligence on the part of opposite party nos. 1 to 3 is concerned, no material has been produced before this Court to come to a conclusion that due to negligent conduct of the opposite parties the deceased has breathed his last. In addition to that the age of the deceased is 65 years has been indicated in the post mortem report, inquest report and except indicating in the application for compensation filed by the petitioners that the father of the petitioners was the earning member of the family, no other materials have been placed indicating his income, contribution to the family and his avocation so as to determine the compensation in the event of the admission to be made by the opposite parties. In Uday Gagarai (supra) it is held that unless negligence on the part of the opposite parties are established, no compensation can be awarded in favour of the legal heirs of the deceased, who died by electrocution. In Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221 : AIR 2010 SC 1162 , the apex Court considering the meaning of “negligence” held as follows : “ Negligence is breach of duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Negligence means either subjectively a careless state of mine, or objectively careless conduct. It is not an absolute term but is a relative one; it is rather a comparative term. In determining whether negligence exists in a particular case, all the attending and surrounding facts and circumstances have to be taken into account. Negligence is strictly nonfeasance and not malfeasance. It is omission to do what the law requires, or failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to dictates of ordinary prudence”. In Uday Gagarai (supra) this Court elaborately discussed the meaning of negligence wherein it has been held that negligence means failure to exercise due care expected of a reasonable prudent person. It is a breach of the duty and the deceased is entitled to get compensation for consequential damages. 6.Applying the said principle as laid down in Uday Gagarai (supra) to the present context, there is no doubt that maintenance of electric live wire is primary duty of the electricity authorities. But, in the present context it is admitted by the petitioners that due to heavy rain and storm in previous night dated 26.03.2010, the electric live wire was in a hanging position at a distance of 4 to 5 feet above the ground level which is unreasonable distance. This factum of hanging of wire at an unreasonable distance has never been brought to the notice of the opposite party Nos.1 to 3. In any case, responsibility is cast on the authority to maintain the live wire and more particularly, 33 K.V. line. This factum of hanging of wire at an unreasonable distance has never been brought to the notice of the opposite party Nos.1 to 3. In any case, responsibility is cast on the authority to maintain the live wire and more particularly, 33 K.V. line. Therefore, this Court comes to a conclusion that opposite party nos. 1 to 3 are negligent in their due discharge of statutory duty in maintaining the live electric wire and when the factum of death due to accidental electrical shock is proved on the basis of the documents available on record, the inevitable conclusion is that the deceased died due to negligence on the part of the electricity authorities. Thereofre, the petitioners are entitled to get compensation. 7.So far as quantum of compensation is concerned, the apex Court laid down guidelines in Tata Wadhwa and others v.State of Bihar and others, (2201) 8 SCC 197 and other cases in which it is held that compensation can be computed considering the income, status as well as age of the person concerned. As it appears from the record that the deceased was only 65 years of age and earning member of his family, but nothing has been indicated with regard to his income and status in any of the documents available on record. The petitioners are the son and daughters of the deceased Sukadev Mohanta and all the three daughters have married. Therefore, the only son who is petitioner no.1 is claiming compensation by filing the writ petition. On the representation before the Collector vide Annexure-6 though the petitioner claimed compensation of Rs.2,00,000/-, but by filing writ petition the petitioners claim Rs.3,20,000/- with interest of 12% per annum but nothing has been placed before this Court for variation of such claim made at different point of time. In absence of any material, it is difficult to compute the compensation claimed by the petitioners even if the deceased died due to electrocution. Since the death due to electrocution is admitted on account of negligence on the part of opposite party nos. In absence of any material, it is difficult to compute the compensation claimed by the petitioners even if the deceased died due to electrocution. Since the death due to electrocution is admitted on account of negligence on the part of opposite party nos. 1 to 3, this Court is of the considered view that in order to give sustenance to the deceased family an adinterim compensation of Rs.1,00,000/- to be granted leaving the petitioners to establish their case by adducing their suitable evidence before the appropriate forum regarding income, status and contribution to the family by the earning member being a deceased due to electrocution. It is needless to say that out of the awarded compensation of Rs.1,00,000/- 50% of the said amount shall be kept in fixed deposit in any Nationalised Bank in the name of the petitioners for a period of five years with a condition that the monthly interest on such fixed deposit shall be debited to the S/B Account of petitioner No.1 permitting him to withdraw the said amount every month and balance 50% shall be released in favour of the petitioners proportionately subject to final adjudication of the compensation by the competent forum in the event the petitioners file any application therein to establish the case by adducing due evidence in accordance with law. With the aforesaid observation and direction, the writ petition is disposed of. No order to cost. Petition disposed of.