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2022 DIGILAW 218 (MAN)

State of Manipur v. Baby Khushi Kumari (Minor)

2022-11-03

M.V.MURALIDARAN, SANJAY KUMAR

body2022
JUDGMENT Sanjay Kumar; CJ. - The State of Manipur; the Commissioner (Power), Government of Manipur; and the Manipur State Power Distribution Company Limited (MSPDCL) are in appeal against the judgment and order dated 19.03.2020 passed by a learned Judge of this Court in W.P. (C) No. 167 of 2019. They also filed MC (W.A.) No. 59 of 2020 seeking stay of operation of the said order, pending disposal of this appeal. By the order under appeal, the learned Judge allowed the writ petition and directed the appellants to pay compensation of Rs.10,00,000/- to the writ petitioners within 60 days, after deducting the amount, if any, already paid to them. In the event the amount was not paid within that time frame, interest was to accrue thereon @ 6% per annum and the amount of Rs. 10,00,000/- along with interest was to be paid within 60 days from the date of expiry of the earlier period of 60 days. The learned Judge also left it open to the petitioners to seek more compensation by approaching the concerned Civil Court. By interim order dated 11.12.2020, this Court granted stay of the order under appeal, subject to deposit of a sum of Rs.5,00,000/- by the appellants with the Registry of this Court. The appellants deposited the said amount under SBI Cheque dated 06.01.2021. Earlier, pursuant to the interim order dated 13.03.2019 passed in the writ petition, a sum of Rs.50,000/- was paid by the appellants to the writ petitioners. 2. Heard Mr. S. Nepolean, learned Government Advocate, appearing for the appellants/applicants; and Mr. Tungrei Ngakang, learned counsel, appearing for the respondents/writ petitioners. 3. On 17.12.2017, petitioner No. 1, a child aged about 5 years, was playing in the verandah of the first floor of the building, where she and her family were staying on rent, and she came in contact with a 11 KV electrical overhead line which passed adjacent to the building. In consequence, she sustained serious injuries resulting in amputation of both her arms at the shoulder level. Her disability was quantified as 90%. 4. Entreaties for compensation by petitioner No. 2, her father, fell on deaf ears, leading to institution of the writ petition. His claim therein was that artificial limbs for the child would cost about Rs.7,00,000/- and that apart, the child's future was severely impacted by the loss of her limbs. Her disability was quantified as 90%. 4. Entreaties for compensation by petitioner No. 2, her father, fell on deaf ears, leading to institution of the writ petition. His claim therein was that artificial limbs for the child would cost about Rs.7,00,000/- and that apart, the child's future was severely impacted by the loss of her limbs. The prayer for compensation of Rs.1,62,97,800/- was founded on the violation of the child's fundamental rights under Articles 14, 21 and 300 of the Constitution apart from an action in tort on the principles of res ipsa loquitur, strict liability and restitution in integrum. The assertion of the child's father was that the authorities concerned failed to abide by the statutory norms in relation to installation and maintenance of the overhead line, which resulted in his young daughter being maimed for life. 5. The stand of the Commissioner (Power), Government of Manipur, who was the only respondent who filed a reply in the writ petition, was that no negligence was attributable to the MSPDCL. According to the Under Secretary (Power), Government of Manipur, who deposed on his behalf, the child suffered electrocution owing to construction of a staircase very near to the overhead line. She pointed out that the building in question was constructed in the year 2009 without a staircase and the distance at that time from the 11KV line was about 1.9 metres, which was permissible as the minimum horizontal clearance required under the rules was only 1.2 metres. According to her, the staircase was constructed in the year 2014 without obtaining necessary permission and without notice to the electricity authorities and thereby, the distance from the 11 KV line to the staircase was reduced to just about 1.5 feet. She placed reliance on Rule 82 of the Indian Electricity Rules, 1956 (for brevity, 'the Rules of 1956'), and asserted that no liability could be attached to the MSPDCL. According to her, the authorities were abiding by all the measures prescribed under law and, therefore, they could not be mulcted with liability to pay compensation to the petitioners. 6. Mr. S. Nepolean, learned Government Advocate, would reiterate that the clear violation of Rule 82 of the Rules of 1956 would divest the MSPDCL of any responsibility for the accident and, therefore, the learned Judge was not justified and correct in directing payment of compensation to the writ petitioners. 7. 6. Mr. S. Nepolean, learned Government Advocate, would reiterate that the clear violation of Rule 82 of the Rules of 1956 would divest the MSPDCL of any responsibility for the accident and, therefore, the learned Judge was not justified and correct in directing payment of compensation to the writ petitioners. 7. Before considering the issue on merits, it would be appropriate to take note of the statutory scheme relating to the responsibility of the authorities under the electricity laws. Section 2(20) of the Electricity Act, 2003 (for brevity, 'the Act of 2003') defines 'electric line' to mean any line which is used for carrying electricity for any purpose. Section 2(48) of the Act of 2003 defines 'overhead line' to mean an electric line which is placed above the ground and in the open air, but does not include live rails of a traction system. Section 53 of the Act of 2003 makes provision for the Central Electrical Authority, in consultation with the State Government, to specify suitable measures for protecting the public from dangers arising from generation, transmission or distribution of electricity, or use of electricity supplied, or installation, maintenance or use of any electric plant. Section 162 of the Act of 2003 empowers the appropriate Government to appoint qualified persons to be Electrical Inspectors who would be required to exercise such powers and perform such functions as may be prescribed in respect of such class of works and electric installations and subject to such restrictions as the appropriate Government may direct. Section 185 of the Act of 2003 is titled 'Repeal and Saving' and provides that the Indian Electricity Rules, 1956, made under Section 37 of the repealed Indian Electricity Act, 1910, shall continue to be in force till Regulations are made under Section 53 of the Act of 2003. As no such Regulations have been made till date, the Rules of 1956 still continue to operate. Rule 2(y) of the Rules of 1956 defines 'installation' to mean any composite electrical unit used for the purpose of generating, transforming, transmitting, converting, distributing or utilizing energy. Rule 2(ai) of the Rule of 1956 defines 'overhead line' to mean any electric supply line which is placed above the ground and in the open air. Significantly, an entire chapter in the Rule of 1956, viz, Chapter IV, is devoted to 'General Safety Requirements'. Rule 2(ai) of the Rule of 1956 defines 'overhead line' to mean any electric supply line which is placed above the ground and in the open air. Significantly, an entire chapter in the Rule of 1956, viz, Chapter IV, is devoted to 'General Safety Requirements'. Rule 29(1) in Chapter IV provides that all electric supply lines shall be of sufficient insulation and shall be constructed, installed, protected, worked and maintained in such a manner as to ensure safety of human beings, animals and property. Rule 46 in Chapter IV deals with 'periodical inspection and testing of installation' and Rule 46(1)(a) provides that where an installation is already connected to the supply system, every such installation shall be periodically inspected and tested at intervals not exceeding five years, either by the Electrical Inspector or any officer appointed to assist the Inspector or by the suppliers as may be directed by the Government concerned. Rule 46(1)(c) provides that the forms of inspection report contained in Annexure (IX A), subject to the approval of the Inspector, may be used for the purposes of this sub-rule. Rule 46(2)(c) states that in the event of failure of the owner of an installation to rectify the defects in the installation pointed out by the Inspector within time, such installation would be liable to be disconnected under the directions of the Electrical Inspector as per due procedure. 8. Perusal of the photographs placed on record reflects that the overhead line in question passes very close to the staircase of the building where the incident occurred. The building is situated on a busy thoroughfare, as is evident from the photographs. Had periodical inspections been undertaken as mandated by Rule 46 of the Rules of 1956, this incident could, perhaps, have been prevented. It may also be noted that in a congested city with narrow lanes, such as Imphal, it is the responsibility of the MSPCL to see that proper insulation is provided to overhead electrical lines which pass in close proximity to the living quarters of citizens. In the case on hand, it is clear that the 11 KV line had no protective insulation, as required under Rule 29(1) of the Rules of 1956. 9. Rule 79 of the Rule of 1956 prescribes the clearances to be maintained between buildings and low/medium voltage lines. In the case on hand, it is clear that the 11 KV line had no protective insulation, as required under Rule 29(1) of the Rules of 1956. 9. Rule 79 of the Rule of 1956 prescribes the clearances to be maintained between buildings and low/medium voltage lines. It reads to the effect that so far as low and medium voltage lines and service lines are concerned, the minimum horizontal clearance from any accessible point when the line passes adjacent to a building shall be 1.2 metres from the nearest point. Presently, it is an admitted fact that the addition of the staircase to the building in question took place only in the year 2014 and there is no evidence of compliance with Rule 82 of the Rules of 1956 by the owner of the building. There is, thus, clear violation by the owner of the building, in so far as Rule 82 is concerned. However, such violation would not be sufficient, in itself, to exempt the MSPDCL from responsibility, as maintenance of safety standards and periodic inspection of all installations and overhead lines is a statutory duty cast upon it under Rules 29 and 46 of the Rules of 1956. Failure of the MSPDCL to abide by its mandatory duties would outweigh the violation by the building owner under Rule 82. The statutory responsibility weighing upon the MSPDCL, as the distributor of electrical energy, is far higher and sacrosanct than the narrow responsibility resting upon an individual building owner. This is clear from the fact that Rule 140 of the Rules of 1956 levies only the meagre penalty of fine on such errant building owner. Further, it is not open to the MSPDCL, which undertakes supply and distribution of hazardous electrical energy to wash its hands off statutory measures put in place to ensure public safety and claim that individual building owners, who violate the mandate of Rule 82, would be at fault and, consequently, absolve it of all liability. Further, though the Under Secretary (Power), Government of Manipur, attempted to project the weak financial condition of the MSPDCL as a reason to absolve it of liability from paying compensation, the same needs mention only to be rejected. As a State instrumentality, the MSPDCL cannot escape its liability for failure to abide by statutory norms. Further, though the Under Secretary (Power), Government of Manipur, attempted to project the weak financial condition of the MSPDCL as a reason to absolve it of liability from paying compensation, the same needs mention only to be rejected. As a State instrumentality, the MSPDCL cannot escape its liability for failure to abide by statutory norms. More so, when such norms pertained to the measures to be taken for ensuring public safety and the victim of such failure is a young child whose future lies in ruin as a result thereof. 10. It may also be noted that, though Mr. S. Nepolean, learned Government Advocate, would assert that there was no negligence on the part of the MSPDCL, the eloquent silence of the MSPDCL, evidenced by its failure to file a separate affidavit-in-opposition, speaks for itself. No material has been produced by it in proof of safety standards being maintained, in accordance with Rule 29 of the Rules of 1956, and periodical inspections having been carried out, in terms of Rule 46 of the Rules of 1956, at any point of time. Had any such inspection been made by the authorities concerned, it may have resulted in some safety measures being put in place and saved this child from a lifetime of suffering. The negligence of the MSPDCL is therefore demonstrable and it resulted in tragedy for this little girl. In this regard, it may also be noted that a Division Bench of this Court had occasion to deal with increasing incidents of electrocution of citizens in PIL No. 48 of 2017. By final order dated 11.07.2018 passed therein, the Division Bench noted that a series of orders had been passed directing the authorities to ensure proper maintenance of electricity service lines, transformers, etc., so as to protect the citizens and the Managing Director, MSPDCL, was directed to take serious action in case of failure on the part of his subordinates. Had proper action been taken pursuant to this order vis-à-vis the 11 KV line in question, perhaps the mishap involving this unfortunate child could have been averted altogether. 11. That apart, the petitioners maintain their claim for compensation not only by way of an action in tort but also based on the violation of the fundamental rights of the child, which is clear and manifest. 11. That apart, the petitioners maintain their claim for compensation not only by way of an action in tort but also based on the violation of the fundamental rights of the child, which is clear and manifest. As rightly noted by the learned Judge, redressal of such violations, in terms of being compensated monetarily, is amenable to the writ jurisdiction of this Court under Article 226 of the Constitution (See Rudul Sah v. State of Bihar and others [ (1983) 4 SCC 141 : 1983 Legal Eagle (SC) 190], Nilabati Behera (Smt) alias Lalita Behera v. State of Orissa and others [ (1993) 2 SCC 746 : 1993 Legal Eagle (SC) 269], D.K. Basu v. State of West Bengal [ (1997) 1 SCC 416 : 1996 Legal Eagle (SC) 2122] and M.C. Mehta and another v. Union of India and others [ (1987) 1 SCC 395 : 1986 Legal Eagle (SC) 576]. 12. Even if it is to be taken that the petitioners are only maintaining a claim in tort, the negligence on the part of the MSPDCL is writ large. When the authorities concerned, and more particularity the MSPDCL, were dealing with distribution and transmission of a potentially dangerous and hazardous commodity, viz., electricity, it was incumbent upon them to abide by all the prescribed statutory norms in the context of safety. The MSPDCL never undertook any such measures as it seems to have failed to maintain safety standards under Rule 29 of the Rules of 1956 and carry out periodical inspections, as mandated by Rule 46 thereof. 13. Reliance placed by Mr. S. Nepolean, learned Government Advocate, on Chairman, Grid Corporation of Orissa Ltd. and others v. Smt. Sukamani [ (1999) 7 SCC 298 : 1999 Legal Eagle (SC) 988] and SDO, Grid Corporation of Orissa Ltd. v. Timudu Oram [ (2005) 6 SCC 156 : 2005 Legal Eagle (SC) 548] is of no avail as those were cases where the Supreme Court held that exercise of jurisdiction under Article 226 was unsustainable on the ground that negligence was not established on the part of the electricity authorities. However, as the finding of this Court in the case on hand is to the contrary and the negligence of the MSPDCL is spelt out in clear terms, the ratio laid down in these judgments has no application. 14. However, as the finding of this Court in the case on hand is to the contrary and the negligence of the MSPDCL is spelt out in clear terms, the ratio laid down in these judgments has no application. 14. On the above analysis, this Court holds that the learned Judge was correct and justified in exercising writ jurisdiction and awarding compensation to the petitioners at least to the tune of Rs.10,00,000/- with interest thereon. No grounds are made out for interference with the order under appeal. 15. The writ appeal is devoid of merit and is accordingly dismissed. In consequence, the interim order of stay is vacated and MC (W.A.) No. 59 of 2020 is dismissed. The balance of the compensation amount of Rs.10,00,000/-, after deducting the amount already paid, shall be released to the petitioners along with interest thereon, as directed by the learned Judge, within one month from today. The Registry shall forthwith release the sum of Rs.5,00,000/- deposited with it, along with the standard interest applicable to savings bank accounts in the State Bank of India for the entire period of such deposit, to petitioner No.2 under proper acknowledgement. Though deserving, we refrain from making any order as to costs.