[CASE NUMBER] 1 HIGH COURT OF MADHYA PRADESH, JABALPUR Single Bench: HON'BLE SHRI JUSTICE A.K. SHRIVASTAVA W.P. No.11389/2005 PETITIONERS 1. Smt. [ENTITY] w/o [ENTITY] 2. [ENTITY] d/o Late [ENTITY] 3. [ENTITY] s/o Late [ENTITY] Petitioners No.2 and 3 are minors and are suing through their mother and natural guardian Smt. [ENTITY] w/o Late [ENTITY] All R/o Rampura, Thana & Tehsil Tendukheda, District Narsinghpur (M.P.) Versus RESPONDENTS 1. [ENTITY] (M.P.) 2. [ENTITY] (M.P.) 3. [ENTITY]. 4. [ENTITY] s/o Premnarayan Tinguriya, R/o Rampura, Thana & Tehsil Tendukheda, Distt. Narsinghpur Shri [ENTITY], Advocate for the petitioners. Shri [ENTITY], Advocate for the respondents 1 to 3. Shri [ENTITY], Panel Lawyer for the respondent No.4 [CASE NUMBER] 2 ORDER
(Passed on this 16th day of July, 2013) By this petition under [SECTION] of the [ACT] the petitioners are seeking a direction to the respondents to grant compensation to the extent of Rs.7,00,000/- jointly and severally along with interest @8% per annum on account of death of [ENTITY] who died due to electrocution.
2. In nutshell the case of the petitioners is that on 2.2.2005 at near about 11 A.M. [ENTITY] (hereinafter referred to as "the deceased") had gone to the agricultural field which was taken on Tribatia from [ENTITY]. In the said field, [ENTITY] (respondent No.4) had taken a temporary connection (T/C) from M.P. State Electricity Board on 3.1.2005 for a period of 30 days and period of temporary connection was upto 1.2.2005. It is the further case of the petitioner that on 2.2.2005 when the deceased was passing through the field, electric wire touched his body as a result of which he died on the spot on account of electrocution.
3. The contention of learned counsel for the petitioners is that on account of negligence of the respondents, they are jointly and severally liable to pay compensation to them. It is also the case of the petitioners that the deceased was a labourer and was earning Rs.150/- per day and thus, it has been prayed in this petition that compensation of Rs.7 Lac be awarded to him. In support of his contention, learned counsel for the petitioner has placed reliance upon the single Bench decision of this Court [ENTITY] v. Madhya Pradesh Electricity Board and others, AIR 2005 MP 2.
4. The respondent No.1 has filed return and has refuted the averments made in the petition and submitted that there are disputed questions of fact that who was negligent and whether on account of the negligence of the Board (respondents 1 to 3) the deceased had died. It is further a disputed question of fact whether the deceased was earning Rs.150/- per day and hence, it has been prayed that this petition be dismissed.
5. Having heard learned counsel for the parties I am of the view that no relief can be granted to the petitioners in the writ petition and the relief can be granted only in the civil suit, if it is filed by them.
6. The petitioners have filed the postmortem report of the deceased dated 3.2.2005 which is Annexure P-7. On bare perusal of the said report it appears that the deceased had died on account of electrocution. However, the question still remains that who are negligent, whether respondents 1 to 3 or all the respondents or the deceased himself was negligent. Indeed, this is a disputed question of fact and cannot be decided in this petition. The single Bench decision of this Court [ENTITY] (supra) is distinguishable on facts because in the said decision there was a finding of this Court that live wire was illegally taken for supply of electricity. However, in the present case there is nothing on record that the electric connection was illegally taken by the petitioners. On the contrary, it is borne out that the temporary connection was taken by the respondent No.4, which was upto 1st February, 2005 as averred by the petitioner in para 5.8 of the petition. Thus, it is still a disputed question of fact as to whether the period of temporary connection was extended or not and in such a situation whether the respondents 1 to 3 were negligent in not disconnecting the temporary electricity connection. Therefore, the decision of this Court [ENTITY] (supra) is not applicable.
7. That apart, there is a decision of the Supreme Court Chairman, [PRECEDENT] wherein it is held as under:-
"6. In our opinion, the High Court committed an error in entertaining the writ petitions even though they were not fit cases for exercising power under [SECTION] of the [ACT]. 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. Mere fact that the wire of the electric transmission line belonging to the appellant No.1 had snapped and the deceased had come into 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 circumstances the deceased had come into 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 parties or that the deceased had not died in the manner stated by the petitioner. 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 [SECTION] of the [ACT] 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 [CASE NUMBER]."
In this context, I may also profitably place reliance upon the decision of the Supreme Court S.D.O. Grid Corporation of Orissa Ltd. and others v. Timudu Oram, (2005) 6 SCC 156 where in para-8 and 9 the Supreme Court has observed, thus:-
"8. As against this counsel for the respondent cited a later judgment of this Court in [PRECEDENT], wherein this Court has taken the view that the Electricity Board could be fastened with the liability in a case in which the live wire snapped and fell on the public road which was partially inundated with rainwater. The observation made by this Court in the aforesaid case would not be applicable to the facts of the present case as in the said case a suit had been filed in which a finding of negligence was recorded by the trial Court against the Board. The trial Court after coming to the conclusion that the respondents were entitled to a compensation of Rs.4.34 lakhs non-suited the respondents solely on the premise that the claimants had failed to prove their liability for such compensation. The High Court in the said case had recorded a finding:
"Therefore, the defences put up by MPEB are absolutely without any basis and do not reflect the real position at the spot, rather attempt has been made to conceal the real position in order to avoid responsibility and liability for payment of compensation."
On these facts, this Court came to the conclusion that the claimants were entitled to the compensation. Counsel for the appellants also cited a judgment in [PRECEDENT], in which a similar view was taken. In the said case it was observed by the Bench that where disputed questions of fact were involved writ petition would not be the proper remedy but since there was no denial in the written statement that wires were loose and drooping and the claimant had asked the Board to tighten the wires, the Board was held liable to pay the compensation. This finding was recorded because the supplier of electricity did not controvert the facts alleged by the respondent writ petitioner. Disputed questions of facts were not involved and as a result of which the finding recorded by the High Court was upheld.
9. In the present case, the appellants had disputed the negligence attributed to it and no finding has been recorded by the High Court that the GRIDCO was in any way negligent in the performance of its duty. The present case is squarely covered by the decision of this Court in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others (supra). The High Court has also erred in awarding compensation in [CASE NUMBER] [@ [CASE NUMBER]]. The subsequent suit or writ petition would not be maintainable in view of the dismissal of the suit. The writ petition was filed after a lapse of 10 years. No reasons have been given for such an inordinate delay. The High Court erred in entertaining the writ petition after a lapse of 10 years. In such a case, awarding of compensation in exercise of its jurisdiction under [SECTION] cannot be justified." In this view of the matter, I am of the view that learned counsel for the petitioners may be right in his contention that the deceased had died on account of negligence on the part of the respondents but the forum is not proper because the facts are highly disputed. Hence, the petitioners, if so advised, they may file civil suit with an application under [SECTION] of the [ACT] that under the bona fide belief they were prosecuting the case before the wrong forum. This Court hopes and trust that if such an application is filed along with the plaint it will be considered sympathetically by the learned Trial Court keeping in mind that prima facie it appears on the basis of the postmortem report (Annexure P-7) that the deceased had died on account of electrocution. Let the suit be filed within a period of two months. If the suit is filed within two months, the learned Trial Court is hereby directed to decide it as early as possible preferably within a period of one year from the date of its filing by the petitioners.
8. With the aforesaid observation, this petition is disposed of.
([ENTITY]) Judge S/