IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 591 of 2002. Reserved on: 28.05.2007. Decided on: 13.07.2007. Smt. Kindri Devi … … … Petitioner. Versus H.P.S.E.B. and Another … … … Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 Yes. For the petitioner: Mr. Bipin C. Negi, Advocate. For the Respondents: Mr. Shrawan Dogra, Advocate. Rajiv Sharma, Judge: The brief facts necessary for the adjudication of this petition are that the petitioner’s husband late Shri Laiq Ram came in contact with a live electric wire resulting in his death on 23.6.2001. The Medical Officer, Ayurvedic Health Centre, Dhar Chandna, District Shimla had issued medical certificate dated 29.6.2001 stating there in that Shri Laiq Ram had died due to electrocution. The entry was also made in the Rapat Roznamcha by the Patwari, Dhar Chandna, District Shimla on 18th July, 2001 to the effect that Shri Laiq Ram had expired on 23rd June, 2001 due to electric shock. The family of the deceased Shri Laiq Ram had also informed the police authorities at Police Post, Whether reporters of local papers may be allowed to see the judgment? Yes. - 2 - Kupvi that Shri Laiq Ram had died due to electric shock. The A.S.I. Hari Singh, Police Post, Kupvi had sent this information to the Police Station, Chopal. The Gram Panchayat, Dhar Chandna had passed a resolution, the copy of which was sent to the Chief Minister, Deputy Commissioner and M.L.A. seeking compensation. The S.D.M., Chopal had informed the Chief Electrical Inspector on 14th August, 2001 about the accident dated 23rd June, 2001 resulting in the death of Shri Laiq Ram due to electric shock. The Pradhan, Gram Panchayat, Dhar Chandna, Sub Tehsil Kupvi, District Shimla had certified that he had inspected the spot in the presence of Shri Kedar Singh, T. Mate on 27.6.2001 and it was found that the height of the pole was 4 ½ meters and the height of the wire was 5 feet. The legal notice was also served upon the respondents-Board on 4th August, 2001 seeking compensation. The copies of the photographs have been placed on record for visual impression to substantiate that the electric wires were hanging precariously. Mr. Bipin Negi had strenuously argued that Shri Laiq Ram had died due to the negligence of the Board. Mr. Negi had submitted that it is a fit case where principle of “res-ipsa-loquitur” will apply. Mr. Shrawan Dogra had strenuously argued that the petitioner cannot be granted compensation in writ jurisdiction and the petitioner should have filed a civil suit in the Court of competent jurisdiction. I have heard the parties and gone through the record. The scenario which emerges from the above stated facts is that late Shri Laiq Ram had died due to electrocution on 23.6.2001. The Medical Officer, Ayurvedic Health Centre, Dhar Chandna had certified that Shri Laiq Ram had died due to electric shock. The Patwari, Dhar Chandna had made an entry in the Rapat Roznamcha about the death of Shri Laiq Ram due to electrocution. The A.S.I. Hari Singh had also - 3 - informed the Police Station, Chopal about the death of Shri Laiq Ram due to electric shock. He had specifically mentioned in his report that he had recorded the statements of the witnesses who have testified that Shri Laiq Ram had died due to electric shock. The Gram Panchayat had passed a unanimous resolution on 7.7.2001 calling upon the authorities to pay compensation to the family members of late Shri Laiq Ram. The S.D.M., Chopal had sent communication to the Chief Electrical Inspector on 14th August, 2001 specifically mentioning there in that Laiq Ram had died due to electric shock. He had annexed the copies of the certificate of Gram Panchayat and the medical officer certifying the death of Shri Laiq Ram. The Chief Electrical Inspector though legally bound to take action after the receipt of the letter dated 14th August, 2001 had not conducted any inquiry. The Pradhan had certified that the height of the wires was about 5 feet. This fact is also apparent from the photographs, placed on record of this case. It is evident from the combined reading of all the annexures filed with this petitioner, more particularly, the certificate issued by the Medical Officer, Ayurvedic Health Centre, Dhar Chandna, the report sent by the A.S.I., Police Post, Kupvi, Police Station, Chopal, the resolution passed by the Gram Panchayat on 7.7.2001, the letter sent by the S.D.M., Chopal on 14th August, 2001 that Laiq Ram had died due to electric shock. It was incumbent upon the Board to maintain the height of the wires prescribed as per Rule 91 of the Indian Electricity Rules, 1956, which reads as under:- “91. Safety and protective devices.-(1) Every overhead line, (not being suspended from a dead bearer wire and not being covered with insulating material and not being a trolley-wire) erected over any part of street or other public place or in any factory or mine or on any consumers’ premises shall be protected with a device - 4 - approved by the Inspector for rendering the line Electrically harmless in case it breaks. (2) An Inspector may by notice in writing require the owner of any such overhead line wherever it may be erected to protect it in the manner specified in sub- rule(1). [(3) The owner of every high and extra-high voltage overhead line shall make adequate arrangements to the satisfaction of the Inspector to prevent unauthorised persons from ascending any of the supports of such overhead lines which can be easily climbed upon without the help of a ladder or special appliances. Rails, reinforced cement concrete poles and pre-stressed cement concrete poles without steps, tubular poles, wooden supports without steps, I- sections and channels shall be deemed as supports which cannot be easily climbed upon for the purpose of this rule.] Shri Laiq Ram, had gone to his fields, but had come in contact with live electric wire which was precariously hanging at the height of 5 feet. There was no occasion for him to fiddle with the electric wire as stated in the reply. A man of reasonable prudence knows the consequences of the touching the live electric wire. A news item had also appeared in the daily edition of Himachal Times, dated 10th July, 2002 under the caption “Keeping danger alive … live wires passing through Shimla orchards.” The Chief Electrical Inspector was bound to hold an inquiry after the receipt of communication sent by the S.D.M., Chopal. Section 36 of the Indian Electricity Act, 1910 provides for the appointment of Electrical Inspectors. The qualifications for the appointment of Inspectors are provided under Rule 4 of the Indian Electricity Rules, 1956. The State Government had already made - 5 - appointment of the Chief Electrical Inspector under Section 36 of the Indian Electricity Act, 1910. Section 33 of the Indian Electricity Act reads as under:- “33. Notice of accidents and inquiries. - [(1) If any accident occurs in connection with the generation, transmission, supply or use of energy in or in connection with, any part of the electric supply - lines or other works of any person and the accident results or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person shall give notice of the occurrence and of any such loss or injury actually caused by the accident, in such form and within such time as may be prescribed, to the Electrical Inspector and to such other authorities as the appropriate Government may by general or special order, direct.] (2) [The appropriate Government] may, if it thinks fit, require any [Electrical Inspector], or any other competent person appointed by it in this behalf, to inquire and report – (a) as to the cause of any accident affecting the safety of the public, which may have been occasioned by or in connection with, the generation, transmission, supply or use of energy, or (b) as to the manner in, and extent to, which the provisions of this Act or of any licence or rules thereunder, so far as those provisions affect the safety or any person, have been complied with. [(3) Every Electrical Inspector or other person holding an inquiry under sub-section (2) shall have all the powers of a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), for the purpose of - 6 - enforcing the attendance of witnesses and compelling the production of documents and material objects; and every person required by an Electrical Inspector or such other person as aforesaid to furnish any information shall be deemed to be legally bound to do so within the meaning of Section 176 of the Indian Penal Code (45 of 1860)].” Rule 44 A of the Indian Electricity Rules, 1956 reads as under:- “[44A. Intimation of Accident. – If any accident occurs in connection with the generation, transmission, supply or use of energy in or in connection with, any part of the electric supply lines or other works of any person and the accident results in or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person or any authorised person of the State Electricity Board/Supplier, not below the rank of a Junior Engineer or equivalent shall send to the Inspector a telegraphic report within 24 hours of the knowledge of the occurrence of the fatal accident and written report in the form set out in Annexure XIII within 48 hours of the knowledge of occurrence of fatal and all other accidents. Where practicable a telephonic message should also be given to the Inspector immediately the accident comes to the knowledge of the authorised officer of the State Electricity Board/Supplier or other person concerned.]” It is evident from the combined reading of the provisions as mentioned hereinabove of the Indian Electricity Act, 1910 read with the Indian Electricity Rules, 1956 that it was incumbent upon functionaries of the Board to inform about the accident to the Chief Electrical Inspector in telegraphic report within 24 hours of the knowledge of the occurrence of the fatal accident and a written report - 7 - in the form set out in Annexure-XIII within 48 hours of the knowledge of the occurrence of the fatal accident or others. The S.D.M., Chopal had sent the report to the Chief Electrical Inspector on 14the August, 2001 though the death has taken place on 23rd June, 2001. It can safely be presumed that the death of Shri Laiq Ram was within the knowledge of the functionaries of the Board and it was mandatory on their part, more particularly, the Junior Engineer to inform the Inspector of the accident within 24 hours in telegraphic manner and in a written report within 48 hours. The authorities of the Board including the Secretary, Superintending Engineer, Executive Engineer, Assistant Engineer, and Junior Engineer were informed of the accident which took place on 23rd June, 2001 when a legal notice was served upon them by the petitioner’s Advocate Shri Rajinder S. Negi. The authorities were bound to act after the receipt of the information from the office of the S.D.M., Chopal, dated 14th August, 2001 as well as on the basis of the notice dated 4.8.2001. The Board had admitted in its reply the receipt of notice dated 4th August, 2001. Accordingly, this court is of the firm opinion that the Chief Electrical Inspector despite the knowledge of the incident dated 23rd June, 2001 did not hold any inquiry. The authorities as mentioned in the notice dated 4th August, 2001 after the receipt of the information through this notice were bound to inform the Chief Electrical Inspector, which admittedly has not been done by them. The contention of Mr. Shrawan Dogra that the petitioner should have approached the civil Court for compensation can not be accepted at the stage of hearing. The present writ petition was filed on 23rd April, 2002 and was admitted on 19.8.2002. The petition thereafter is pending for hearing before this Court. This Court has held in the case titled as Darshanu Ram and others versus Sub- - 8 - Registrar and others, CWP No.1100 of 2002, decided on 16.5.2007 that if the petition is admitted and pending for a considerable period, the parties will not be relegated to avail the alternative remedy. The contention of Mr. Shrawan Dogra that this Court has no jurisdiction to award the compensation/damages in its writ jurisdiction is no more res-integra in view of the law laid down by the Hon’ble Supreme Court and various High Courts as under:- The Rajasthan High Court in Rajasthan State Electricity Board and another V. Janta and others, 2001 ACJ 562 had awarded a sum of Rs.1,80,000/- towards compensation for the death of an agriculturist due to electrocution while cultivating his fields. The Hon’ble Single Judge has held as under:- “Right to life and personal liberty is one of the most important fundamental rights. It is enshrined in Article 21 of the Constitution of India. No one can by any act or omission deprive any other person of his life or personal liberty unless such deprivation can be justified in accordance with the procedure established by the law. The duty, not to indulge in such act or omission as is likely to result in deprivation of life or personal liberty is implicit in fundamental rights under Article 21 of the Constitution of India. It is, therefore, the bounden duty of all those persons and authorities who intend to indulge in such act or omission as is likely to harm others to take sufficient care that they do not endanger the lives and personal liberty of others. The fundamental right under Article 21 of the Constitution of India does not admit of any exception other than the procedure established by law mentioned in Article 21 itself. Therefore, no one, who wants to escape the responsibility for causing loss of life or loss of personal liberty to any one, must prove that his case was within the exception recognised by law. If he fails to discharge this responsibility and it is established - 9 - that death and harm to any person was the direct result of any act or omission then it will have to be inferred that the person who is responsible for such loss of life or harm was negligent in discharging the responsibility imposed by Article 21 of the Constitution of India. In Parvati Devi v. Commissioner of Police, Delhi, (2003) 3 SCC 754, it was observed by the Hon’ble Supreme Court that: “The appellants moved the High Court of Delhi claiming compensation as the husband of the appellant No.1 died on account of electrocution while walking on the road. That the death was on account of electric shock is established in view of the CFSL report from Calcutta, but as the appellants could not produce relevant materials indicating the negligence of any particular officer of the authority, the High Court refused to award compensation. It is against this order, the present appeal has been filed. Once it is established that the death occurred on account of electrocution while walking on the road, necessarily the authorities concerned must be held to be negligent and, therefore, in the case in hand, it would be N.D.M.C. who would be responsible for the death in question.” The Division Bench of Hon’ble Delhi High Court in Shyama Devi and others V. National Capital Territory of Delhi and others, 2001 ACJ 988 has held that where failure to perform the duties by the functionaries of the State resulting in deprivation of right to life attracting Article 21 of Constitution of India, the aggrieved party is entitled to invoke Article 226 to claim compensation. Their Lordships have opined as under: “In the instant case, the heavy duty of care lay upon the State since an explosive device was kept in - 10 - the Malkhana. As the device was not defused this duty of care was clearly breached by the State and its concerned officials. In such like cases the courts expect strict and high standard of care from them. When there is a failure to perform duty which results in physical injury, deprivation of life or loss of property, Article 21 of the Constitution is attracted and the aggrieved party is entitled to invoke Article 226 to claim monetary or pecuniary compensation as such a remedy is available in public law based on strict liability for breach of fundamental right. As held in Unni Krishnan, J.P. v. State of Andhra Pradesh, (1993) 1 SCC 645, Article 21 act as a shield against deprivation of life or personal liberty. Personal liberty and life have to be given expanded meaning. Though Article 21 is couched in negative terms, it also has a positive content. It contains a person’s right to life and liberty. Concepts of the life and liberty were purposely not defined in the Constitution so that expanded meaning could be given in accordance with the march of time. Dereliction of duty on the part of the servants of the State resulting in loss of precious life would amount to violation of Article 21 of the Constitution and the State will be vicariously liable for their acts. In P.A. Narayanan v. Union of India, 1999 ACJ 374 (SC), the Supreme Court in an appeal arising from a writ petition held that dereliction of duty which results in loss of life renders the guarantee under Article 21 of the Constitution illusory. In that case the wife of the appellant lost her life while traveling in the first class railway compartment at the hands of dacoits. It was found that the incident exhibited negligence of the railway employees in the performance of their duties. The Supreme Court in the circumstances of that case, asked the Railway of pay a sum of Rs.2,00,000 as compensation to the appellant for the death of his wife. Therefore, it is too late in the day to contend that compensation for the tortious acts of the functionaries - 11 - and servants of the State can not be awarded in a writ petition. The myth was convincingly exploded in Nilabati Behera v. State of Orissa, 1993 ACJ 787 (SC), which was based upon the principles laid down in Bhagalpur Blinding Cases: Khatri (II) v. State of Bihar, (1981) 1 SCC 627; Khatri (IV) v. State of Bihar, (1981) 2 SCC 493 and Union Carbide Corporation v. Union of India, (1991) 4 SCC 584. In Nilabati Behera’s case (supra), the Apex Court held that in a case of violation of fundamental rights by the State and its instrumentalities or servants the court can direct the State to pay monetary or pecuniary compensation to the victim. It also held that principle of sovereign immunity was inapplicable in such cases; a proceeding under Article 32 or 226 of the Constitution for award of compensation is a public law remedy as distinct from private law remedy; and the aggrieved party cannot be relegated to a civil suit. The observations of the Supreme Court in this regard are as follows: “Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights as guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the courts have, therefore, to evolve ‘new tools’ to give relief in public law by moulding it according to the - 12 - situation with a view to preserve and protect the Rule of Law. While concluding his First Hamlyn Lecture in 1949 under the title ‘Freedom under the law’, Lord Denning in his own style warned: ‘No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things tat they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up- to-date machinery, by declarations, injunctions and actions for negligence. This is not the task of Parliament, … the courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised, the new powers of the executive lead to the welfare State; but abused they lead to a totalitarian State. None such must ever be allowed in this country’.” The decision of the Apex Court in Nilabati Behera’s case (supra) was followed in D.K. Basu v. State of West Bengal, (1997) 1 SCC 416, where the Supreme Court held as under: “(43) Till about two decades ago the liability of the Government for tortious acts of its public servants was generally limited and the person affected could enforce his right in tort by filing a civil suit and there again the defence of sovereign immunity was allowed to have its play. - 13 - For the violation of the fundamental right to life or the basic human rights, however, this court has taken the view that the defence or sovereign immunity is not available to the State for the tortious acts of the public servants and for the established violation of the rights guaranteed by Article 21 of the Constitution of India. In Nilabati Behera v. State of Orissa (supra), the decision of this court in Kasturilal Ralia Ram Jain v. State of U.P., AIR 1965 SC 1039, wherein the plea of sovereign immunity had been upheld in a case of vicarious liability of the State for the tort committed by its employees was explained thus: ‘In this context, it is sufficient to say that the decision of this court in Kasturilal upholding the State’s plea of sovereign immunity for tortious acts of its servants is confined to the sphere of liability in tort, which is distinct from the State’s liability for contravention of fundamental rights to which the doctrine of sovereign immunity has no application in the Constitutional scheme, and is no defence to the Constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights, when the only practicable mode of enforcement of the fundamental rights can be the award of compensation. The decisions of this court in Rudul Sah, AIR 1983 SC 1086 and others in that line relate to award of compensation for contravention of fundamental rights, in the Constitutional remedy under Articles 32 and 226 of the Constitution. On the other hand, Kasturilal related to the value of goods seized and not returned to the owner due to the fault of Government servants, the claim being of damages for the tort of conversion under the ordinary process, and not a claim for - 14 - compensation for violation of fundamental rights, Kasturilal is, therefore, inapplicable in this context