IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4024 of 2002 MOST.CHINTA DEVI, W/o late Somaroo Yadav @ Shivjee, resident of Mohalla Mahajan Toli no.1, Thana Arrah Town, District- Bhojpur. . . . . . . Petitioner. Versus 1. BIHAR STATE ELECTRICITY BOARD through its Secretary having its office at Vidyut Bhawan, Bailley Road, Patna. 2. The Chairman, Bihar State Electricity Board, having its office at Vidyut Bhawan, Bailley Road, Patna. 3. The Secretary, Bihar State Electricity Board, Bailley Road, Patna. 4. The Electrical Executive Engineer, Electric Supply sub-Division (Town) Arrah. 5. Smt. Girija Rai W/o Shri Bashisth Ray, resident of Patel Nagar, Maulla Bagh, Arrah, District-Bhojpur. 6. The State of Bihar. 7. Union of India through General Manager, East Central Railway, Hazipur. 8. General Manager, East Central Railway, Hazipur. 9. Inspector General (Railway) Ara, Government Railway Police (G.R.P), East Central Railway, Patna. . . . . . Respondents. For the Petitioner : Mr. B.K. Shukla, Advocate, Mr. Anand K. Ojha, Advocate, For the Board : Mr. Vinay Kirti Singh, Advocate, Mr. Vijay Kumar Verma, Advocate, For the Railways : Mr. Anil Kumar Sinha, Advocate, Mr. Narendra Kumar Jha, Advocate, For the State : Mr. Sanjay Prakash Verma AC to G.A. V. ----------- 10/ 25.11.2009 Heard learned counsel for the petitioner and Railways as well as Electricity Board. The petitioner, who is widow of late Somaroo Yadav @ Shivjee, has filed this writ application for payment of compensation as her husband died due to electrocution from a live wire hanging unrepaired. Late Somaroo Yadav @ Shivjee was a licensed driver of a heavy vehicle. He used to generally ply a truck bearing registration no. BR 1D 0351. On the fateful day i.e. 26.09.2001 he was taking the truck towards Railway Godown Area for loading goods. He parked his vehicle in the left side of the Mal Godown Road near a temple, as some other vehicles parked ahead did not allow clean passage. As he - 2 - was stepping out of his truck, a live wire came in contact with the body of the truck, as a consequence petitioner died of electrocution. A First Information Report was instituted in which it has been stated that Somaroo Yadav @ Shivjee died due to electrocution. A copy of the First Information Report is annexed as Annexure-1. The inquest report and post-mortem report confirms death by electrocution. The police submitted final form (Annexure-10 series), concluding that the petitioner’s husband died of electrocution. The petitioner submits that all documents referred above pointed that late Somaroo Yadav @ Shivjee died on account of electrocution. The Electricity Board was negligent in not removing the live wire, which was hanging from above, on the road side. Learned counsel submits that petitioner’s husband has to park his truck by the side of the road, as the onward route was also blocked with other vehicles. The petitioner claims compensation, as life of her husband was deprived due to electrocution. In support of submission, reliance was placed in the case of M.P. Electricity Board Vs. Shail Kumar and others reported in A.I.R. 2002 SC 551 and in case of Ram Swaroop Yadav Vs. The Bihar State Electricity Board reported in 2004 (2) PLJR 525. A counter affidavit has been filed on behalf of the Board raising preliminary objections regarding the maintainability of the writ application. It has been stated in paragraph no. 5 of the counter affidavit that the death did not take place due to negligence on the part - 3 - of the respondent Board or within the jurisdiction of the Electricity supply network of the Bihar State Electricity Board. The case of the Board is that petitioner’s husband died within the campus of the Railway Mal Godown. In paragraph 6 of the counter affidavit it has been stated that Railway is an H.T. consumer of the Board which supplies electricity at one point, up to the transformer. Thereafter the electricity supply line / network belongs to the Railways The laying, upkeep, maintenance etc. of which are solely responsibility of the Railways and the Board has nothing to do. Learned counsel for the Board states that liability to pay compensation would arise only when negligence is proved. In support of his contention learned counsel has relied upon decisions in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others Vs. Sukamani Das (Smt) and another reported in (1999) 7 SCC 298, and Tamil Nadu Electricity Board Vs. Sumathi and others reported in (2000) 4 SCC 543. The Railway has also filed counter affidavit denying that the electrocution took place in its premises. In paragraph 7 of the counter affidavit it has been stated that even Mal Godown road falls in the civil area and is outside Railway premises. It has been asserted that Mal Godown road is not within the jurisdiction of the Railway authorities. In paragraph 8 of the counter affidavit, railways state that the petitioner in her rejoinder petition to the counter affidavit filed on behalf of respondent no.4 has stated in paragraph 4 that death took place on Mal Godown Road, which is out side the Railway Campus. - 4 - Further more, the truck had to take a turn after 50- 70 meters from the place of occurrence to enter the Railway campus. Heard the counsel for the parties. There is no dispute that the death occurred due to electrocution. The police report also confirmed death by electrocution. There is no dispute to the fact that a live wire had snapped and was hanging from the pole line at a place which is a general thorough fare. Whoever may be the authorities, it was required to remove and repair the snapped wire as it cause danger to life in case of any contact with body. The viability of claim of the petitioner in writ jurisdiction is to be determined in back drop of laws laid down by Hon’ble Apex Court. In the case of Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others Vs. Sukamani Das (Smt) (supra), Grid Corporation disputed the writ petitioner’s version and raised defence that the wire had got snapped because of thunderbolt and lighting and immediately after knowing about it, power was disconnected. Thus the Hon’ble Apex Court held that it was not a fit case to be entertained under Article 226 as the same was an action in tort and negligence of the Grid Corporation was required to be established by the claimants in the first instance, and mere ownership of electric transmission line by the Grid Corporation was not by itself sufficient to award compensation in such a case. The Hon’ble Apex Court also observed that it was necessary to examine if there was any negligence on the part of the Grid Corporation, and what were the circumstances in - 5 - which the deceased came in contact with the wire. It would be relevant to quote paragraph 6 of the aforesaid judgment namely GRIDCO, which was relied upon by the counsel for the Board. “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 Article 226 of the Constitution. The High Court went wrong in proceeding on the basis that as the death 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. The mere fact that the wire of the electric transmission line belonging to Appellant 1 had snapped and the deceased had come in 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 in 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 petitioners. These questions could not have been decided properly on the basis of affidavits only. It is the settled legal position that - 6 - where disputed questions of facts are involved a petition under Article 226 of the Constitution 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 OJC No. 5229 of 1995.” In the case of Tamil Nadu Electricity Board (supra), the Hon’ble Apex Court observed that in view of disputed questions of fact and unequivocal denial of tortious liability, seeking remedy under Article 226 may not be proper. The Hon’ble Apex Court further observed that where there is negligence on the face of the matter and the body or authority concerned was exercising power in discharge of a public duty and there has been a violation of Article 21, there would be no bar to proceed under Article 226. However, the Hon’ble Apex Court held that in view of the disputed questions of fact surrounding death by electrocution of family members of respondents, High Court erred in holding Board liable and in appointing an arbitrator to decide the questions of compensation. It would be relevant to quote the relevant extract of paragraph 10 of the judgment rendered by their Lordships in the aforesaid case. “In view of the clear proposition of law laid by this Court in Sukamani Das Case when a disputed question of fact arises and there is clear denial of any tortuous liability remedy under Article 226 of the Constitution may not be proper. However, it cannot be understood as laying a law that in every case of tortuous liability recourse must be had to a suit. When there is negligence on the fact of it and infringement of Article 21 is - 7 - there it cannot be said that there will be any bar to proceed under Article 226 of the Constitution. Right of life is one of the basic human rights guaranteed under Article 21 of the Constitution. In U.P. State Coop. Land Development Bank Ltd. v. Chandra Bhan Dubey where one of us (Wadhwa, J.) was a party, this Court after examining various decisions of the courts on the power of the High Court under Article 226 of the Constitution observed that the language of Article 226 of the Constitution does not admit of any limitation on the powers of the High Court for the exercise of jurisdiction thereunder though by various decisions of this Court with varying and divergent views, it has been held that jurisdiction under Article 226 can be exercised only when a body or authority, the decision of which is complained, was exercising its power in the discharge of public duty and that writ is a public law remedy. However, the Hon’ble Supreme Court also observed that High Court is not denuded of its power to grant compensation in exercise of power under Article 226 of the Constitution of India. In the case of Shakuntala Devi (Smt) Vs. Delhi Electric Supply Undertaking & Others reported in (1995) 2 SCC 369, the Hon’ble Apex Court was also considering a case of electrocution and plea of compensation under Article 32 of the Constitution. Shakuntala Devi had claimed Rs. 5 lakhs as her husband got electrocuted by a live wire of electricity of the respondent. A live main electricity cable / wire lying which is resting on an electric pole had got snapped and was lying in the rainy and waterlogged village. Various complaints were made by the residents of the village to the officers of respondents, who were statutorily bound to maintain electric installation line in proper - 8 - condition. The deceased unaware of the electricity leakage, came into contact and got electrocuted and died instantly. The Hon’ble Supreme Court observed that deceased had left the petitioner and her own children destitute and also relying upon Article 21 of the Constitution, which got adversely affected on account of negligence of the official, directed payment of compensation finding it a fit case under Article 142 of the Constitution. In case of M.P. Electricity Board Vs. Shail Kumar and others reported in A.I.R. 2002 SC 551, the Hon’ble Apex Court was seized with similar issue of payment of compensation to the family of deceased, who died on account of electrocution. It would be relevant to quote paragraph 7 of the aforesaid judgment. “ It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human, being, who gets unknowingly trapped into it the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the Board that somebody committed mischief by siphoning such energy of his private property and that the electrocution was from such diverted line. It is the look out for the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public - 9 - road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps.” This Court, in case of Ram Swaroop Yadav Vs. Bihar State Electricity Board was also considering the issue of payment of compensation on account of electrocution in writ jurisdiction. After considering various decisions in the case of Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others Vs. Sukamani Das (Smt) and another, reported in (1999) 7 SCC 298, and Tamil Nadu Electricity Board Vs. Sumathi and others, reported in (2000) 4 SCC 543, respectively observed as follows: “From the conspectus of the decision of the Supreme Court referred to above, there is no difficulty in accepting the board submission that without proving negligence nobody is entitled for compensation and when the liability is denied on the ground that there was no negligence, or there is a disputed question of fact, remedy under Article 226 of the Constitution is not a proper remedy. Further it is true that the right claimed by the petitioner is not capable of being established in a summary proceeding under Article 226 of the Constitution of India and one has to bear in mind that the object of conferment of jurisdiction under the said Article is for enforcement and not establishment of right. This is further a rule of discretion and not of exclusion of jurisdiction, hence this Court in exercise of its power of judicial review is not incompetent to decide an issue of fact, which can be determined from the materials on record. Further one can not lose sight of the fact that right to life is a fundamental right guaranteed under supreme law of the country and when there - 10 - is negligence on the fact of it, it can not be said that recourse must be had to suit. It is one thing to say that the writ petition be dismissed on the ground that same involves disputed question of fact, then to say that the person claiming compensation be put to strict proof of the same.” It would appear from the aforesaid decisions that in appropriate cases, the Court can entertain the writ for payment of compensation in case of electrocution where there is negligence on the face of the matter of a body or authority obliged to discharge such public duty with all proper care and pre-caution, the non-observance of which may lead to infringement of Article 21 of the Constitution. It would appear from decision, in case of Shail Kumar (supra) that it is for the Board to prove before the Court that it had taken due and proper care and in absence of such proof before the court wrong doer can not serve the liability. The claim for damages on account of death requires to prove firstly that there was a death and it occurred on account of negligence of somebody or public authority. In the instant case, there is no dispute that there was a death by electrocution. A live wire had remained hanging from above the pole line uncared. It has not been denied that in affidavit of either of the parties that a live wire was not hanging from a pole line and was not hazardous to both life and property, in case of any contact. Whoever, being responsible of its supervision, was negligent in not removing the live wire or disconnecting the electric line. The First Information Report, inquest report, post-mortem - 11 - report, police report and even the affidavits of the Railways and the Board, unmistakenly point that the petitioner’s husband died on account of electrocution. The authorities were negligent in not repairing the same, thus making themselves liable to pay compensation. Once having decided that petitioner’s husband died on account of electrocution due to negligence, the next issue would be fixation of quantum of compensation and the authority that would be liable to pay. It is not denied that husband of the petitioner was a young truck driver and sole bread earner of his family. Even, in case of motor vehicle death immediate compensation to the tune of Rs. 50,000/- is granted. In view of the above facts, I allow interim compensation of Rs. 50,000/- to the petitioner to be paid by the authorities, who would be liable for the upkeep and maintenance of electricity line. Both the Railways and Board has shifted the liability to pay, on each other. In such circumstances, I refer this matter to the Collector, Ara to make an enquiry and to find whether it would be Electricity Board or Railway, which would be responsible for upkeep and maintenance of electric wire at place of occurrence. The Collector, Ara would make an enquiry and finalize his report preferably within a period of three months from the date of receipt of a copy of this order and the authority which would be responsible for repairing the live wire would be liable to pay the compensation to the petitioner. It would be open for both the authorities, the Railway and the Board, to place their points before the Collector, Ara. In case, the petitioner believes that she would be entitled to a larger amount, she could move the - 12 - A.F.R. Uday/ appropriate forum for the same. With the aforesaid direction, this writ application is disposed of. (Samarendra Pratap Singh, J.)