H.S.BHALLA, J. W.P.(C ) NO.1723 OF 2010 (Decided on 07.07.2011) CHAMPA MALLICK ……..Petitioner. .Vrs. MANAGING DIRECTOR, NESCO & ORS. …….Opp.Parties. For Petitioner - Subhranshu B.Mohanty For Opp.Parties - H.M.Dhal H.S.BHALLA,J. The lights of the house of the present petitioner was switched off on 26.05.2009, when she lost her husband and the petitioner opted to knock the door of this Court for claiming compensation. 2. The other facts required to be noticed for disposal of this writ petition are that the husband of the petitioner, namely, Srushtidhar Mallick, who is a vegetable seller, while coming back to his village after selling the vegetables through a paddy field on 26.5.2009 at about 8.00 A.M., saw a cow was thrilling coming in contact with the live electric wire being snapped from the main 11 K.V. electric wire and was lying scattered nearby the Lift Irrigation point. The husband of the petitioner in order to rescue the cow from sudden death, ran away to her and came in contact with the live electric wire and fell down being senseless and later on succumbed to the injuries. On the same day F.I.R. was lodged before Soro Police Station and U.D.Case No. 25 dated 26.5.2009 was registered. The O.I.C., Soro Police Station made inquest over the dead body and sent the dead body to C.H.C., Soro for post mortem. The Medical Officer of C.H.C., Soro, who conducted post mortem opined that the cause of death of Srushtidhar Mallick was due to high voltage electrocution. The Xerox copy of the post mortem report of the doctor is filed as Annexure-4 series to this writ petition. The O.I.C., Soro Police Station after due investigation submitted final form stating that the cause of death of Srushtidhar Mallick was due to electrocution. The petitioner alleges that since NESCO authorities were liable for the cause of the unprecedented death of her husband and as the husband of the petitioner was the only earning member of her family, she has prayed for compensation of Rs.4 lakhs from the opposite parties. 3. Pursuant to the notice issued by this Court, opposite parties 1 and 2 filed their counter affidavit stating that there is no negligence on their part for the death of the husband of the petitioner, rather it is a negligence on the part of the husband of the petitioner. In paragraph 5 of the counter it is stated that the husband of the petitioner had availed power supply unauthorisedly by way of hooking through bare conductors from the OLIC point by connecting the electrical jumper for the purpose of cultivation. On the date of incident, i.e., on 26.5.2009 on getting the information, the Junior Technician rushed to the spot and found that the bare hooking conductor being hit by heavy rain and cyclone had fallen on the iron poles and as a result of which the electric pole was charged. It is further stated that the cow came in contact with the said iron pole and got electrocuted. The deceased rushed to the spot and while he was trying to disconnect the hooking arrangements made by him, got electrocuted. Therefore, the deceased and the cow got electrocuted due to the illegal and unauthorized hooking arrangements made by the deceased himself. The opposite parties have also denied the other averments made in the writ petition. 4. Learned counsel appearing for the opposite parties fairly submitted that because of unauthorized hooking through bare conductors from the OLIC point by the deceased, the cow as well as he himself got electrocuted and no negligence can be attributed to the opposite parties and they are not liable to pay any compensation to the petitioner. 5. On perusal of the averments made in the writ petition, no clinching material is available to show that actually because of hooking through bare conductors by the husband of the petitioner, he received the shock and ultimately died. It is also required to be examined whether the wire had snapped as a result of any negligence of the opposite parties and under which circumstances the deceased had come into contact with the wire. In view of the specific denial of the opposite parties regarding their negligence, they deserve an opportunity to prove that proper care and precautions were taken in maintaining the electric line and the live wire snapped because of circumstances beyond their control or unauthorized intervention of third parties or that the deceased had not died in the manner stated by the petitioner. These questions could not have been denied properly on the basis of affidavits only. It is the settled legal position that where disputed questions of facts are involved, a petition under Article 226 of the Constitution is not a proper remedy. 6. The Supreme Court in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others v. Sukamani Das (Smt.) and another (1999) 8 Supreme 57 examined the jurisdiction of the High Court under Article 226 of the Constitution. The fact of the said case is akin to the present case. In that case the deceased Pratap Kumar Das was moving on road, while he came in contact with a live electric wire, which was lying across the road after getting snapped from the over-head electric line. It was alleged that such electric wire had snapped because of negligence of the GRIDCO and its officers, as they were not maintaining the electric transmission line and therefore, they are liable to pay damages for this negligent act. In the said case this Court had awarded compensation. The GRIDCO preferred an appeal before the Supreme Court against the judgment passed by this Court. In the aforesaid case, the Supreme Court has held as follows : “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 deaths had taken place because of electrocution as a result of the deceased coming into contract 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 had snapped and the deceased had come in contract 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 2 a result of any negligence of the appellants and under which circumstances, the deceased had come in contract 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 wire had snapped because of circumstances beyond their control or unauthorized 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 where disputed questions of facts are involved a petition under Article 226 of the Constitution is not 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 O.J.C.No. 5229 of 1995.” (para-6) Similar view has been taken in Tamil Nadu Electricity Board v. Sumathi and others, (2000)4 SCC 543, wherein the Supreme Court held that where disputed questions of fact arises, the proper remedy is filing suits in the Civil Courts. 7. Thus, it is clear from the above that whenever there is any disputed fact in issue for adjudication, the writ jurisdiction is not the proper forum. The petitioner should have approached the Civil Court for redressal of her grievance. It cannot be said that in this case, denial of liability by the opposite parties is only for the sake of the same. Real disputed question of fact like negligence of the opposite parties, act of nature, contributory negligence and what should be the amount of compensation, which can be termed as just are to be decided in this case. This can be only done by a regular trial not on the basis of the affidavits. 8. Since in the present case, it is not possible to ascertain the cause of death and in what manner the accident took place and on account of whose negligence, the deceased met his edge of doom, some compensation by way of interim relief is required to be granted and in the final analysis, the opposite parties are directed to pay a sum of Rs.50,000/- (fifty thousand) to the petitioner within a period of one month from the date of passing of this order. It is further made clear that in case the amount is not paid to the petitioner within the period mentioned above, then in that event, the petitioner is entitled to interest at the rate of 9% per annum from the date of passing of this order till its realization. The petitioner would be at liberty to approach the Civil Court for obtaining compensation in accordance with law and if such an approach is made by the petitioner, the Civil Court shall dispose of the suit preferably within a period of six months from the date of appearance of the parties. The amount of Rs.50,000/- shall be adjusted by the opposite parties in case any further compensation is granted by the Civil Court. 9. The writ petition is disposed of accordingly. Parties are left to bear their own costs. Writ petition disposed of. 3