WP(C) 4571/2006 BEFORE THE HON’BLE MR. JUSTICE IA ANSARI JUDGMENT AND ORDER The petitioner’s case is, in brief, thus: on 06-02-2005, at about 7 am, when the petitioner got up from his bed and raised his hands, his right hand hap pened to touch the roof of his dwelling house, which had CI sheet roofing and, o n so touching the roof, the petitioner’s right hand received electrical shock an d he fell unconscious. The cause of accident was that on 06-02-2005, at about 6 am, a storm had started blowing over the area of Vimapara village. Because of th e storm, an electrical live wire, having 33000 KV, happened to get snapped from the main power line, which was loosely and negligently fitted, the power line fe ll on the CI sheet roof of the petitioner’s house and became the cause of the el ectrical shock, which the petitioner had received. Immediately after the occurre nce, the petitioner’s son informed the police about the occurrence. The petition er, in unconscious state, was carried to the local PHC and, then, on being refer red, he was taken to, and treated at, the Civil Hospital, Dhubri. On 19-02-2005, the petitioner was referred by the said hospital to the Assam Medical College H ospital, Dibrugarh. The petitioner remained admitted there till 28-02-2005 and, then, on being referred by the said medical college, the petitioner was admitted at Gauhati Medical College Hospital, Guwahati, and was discharged on 29-03-2005 ; but he had to be, once again, admitted on 09-04-2005 and discharged, on 23-04- 2005, after having remained there as an indoor patient. The petitioner’s treatme nt has, however, continued. As the right hand of the petitioner stood permanentl y damaged, his right hand had to be amputated. The petitioner has already spent Rs. 65,000/- for his treatment. The accident took place entirely due to the negl igence of the respondents. The petitioner has suffered not only physically and f inancially, but he has also been mentally tormented inasmuch as he was the sole bread-earner of his family, which consists of his old parents, his minor brother s and sisters, but he, has, now, been rendered incapable of carrying out any wor k and thereby he has become a burden on his family. The petitioner, therefore, s eeks issuance of appropriate Writ(s) commanding the respondents to pay to the pe titioner a sum of Rs. 4,00,000/-, as compensation, for pain and sufferings, ment al agony, loss of earning capacity, etc. 2. The respondent Nos. 1, 3, 4 and 5 have resisted the writ petition by con tending, inter alia, thus: on 06-02-2005, a storm swept over Vimapara area and t he wind made a tree fall on one 33000 KV electrical wire. The electrical wire, t hus, got snapped. The live electrical wire fell down and came in contact with th e CI sheet roofing of the petitioner’s house. The petitioner might have touched the electrical wire and got electrocuted. The accident, which the petitioner suf fered, was not due to any negligence on the part of the respondents, but as a re sult of the act of God. 3. As far as the respondent No. 2 is concerned, it has chosen not to file a ny affidavit. This respondent has, however, produced the report of the Chief Ele ctrical Inspector-cum-Advisor, Assam. According to this report, the petitioner’s house stands under a live electrical wire, such a house is wholly unsafe for hu man dwelling and, hence, the respondents ought to have taken necessary care to e nsure that no live electrical wire passes over the said dwelling house. The resp ondents had not, however, according to the report taken necessary care and as a result of their negligence, the said accident took place. 4. I have heard Mr. A Mannaf, learned counsel for the petitioner, and Mr. D Bhattacharyya, learned Standing Counsel, ASEB, appearing on behalf of the respo ndent Nos. 1, 3, 4 and 5. 5. While considering this writ petition, it needs to be noted that in Khira dbala Nath & Ors, -vs- Assam State Electricity Board & Ors., reported in 2008 (4 ) GLT 116, this Court, having referred to a number of authorities including deci sions of the Supreme Court, has held that a writ petition seeking compensation f rom the State or its instrumentalities is maintainable, under Article 226 of the Constitution of India, for the tortiuous act done by the State or its instrumen talities in discharge of its duties or in colourable exercise of its duties prov ided that such a writ petition does not raise disputed question(s) of fact. The Court in Khiradbala Nath (supra) has also explained the concept and parameters o f strict liability in the following words: 31. In the case at hand, we are, thus, concerned with the rule of ’strict li ability’, which, in short, means that a person, who, for his own purposes, bring s on his land, collects and keeps there, anything likely to do mischief if it es capes, must keep it at his peril, and, if he does so, he is prima facie answerab le for all the damage, which is the natural consequence of its escape. 32. Thus, the rule of ’strict liability’, which makes a person liable to com pensate one, who suffers injury by an act of an undertaking, which is involved i n hazardous or risky exposure to human life, is subject to certain exceptions, w hich have been enumerated hereinabove, one of such exceptions being the default of the plaintiff, i.e., when damage is caused solely by the act of the plaintiff himself. This, in turn, means that the death or injury must have been caused by the act or default of the deceased or the injured, as the case may be. If the d eceased or the injured had merely contributed partly to the accident, the rule o f ’strict liability’ will still apply. The responsibility to supply electrical e nergy in the localities, where the accidents, in the present cases, took place, was statutorily conferred on the respondents. If the energy transmitted by the r espondents cause injury to, or death of, a human being, who gets unknowingly tra pped into it, the primary liability to compensate the sufferer is that of suppli er of the electric energy. So long as the voltage of electricity, transmitted th rough the wires, is potentially of dangerous dimension, the managers of its supp ly have the added duty to take all safety measures to prevent escape of such ene rgy or to see that the wire snapped would not remain live on the road or hanging on the road from electrical poles, for, users of such road would be under peril . [See M.P. Electricity Board -vs- Shail Kumari and others, reported in (2002) 2 SCC 162]. 33. Yet another defence to the applicability of the doctrine of ’strict liab ility’, apart from an act of God, is this: Act of stranger i.e. if the escape w as caused by the unforeseeable act of a stranger, the rule does not apply. (Vid e p. 535, Winfield on Tort, 15th Edn.). It is, however, of immense importance to note that unlike the default of ’an act of stranger’, which is a good defence i n England, to the applicability of the doctrine of ’strict liability’, this defe nce appears to be substantially diluted, in India, by the Supreme Court’s decisi on, in M.P. Electricity Board (supra), inasmuch as the Supreme Court has pointed out, in M.P. Electricity Board (supra), that in a case, otherwise, covered by t he rule of ’strict liability’, it is no defence, on the part of the management o f an undertaking, which is involved in hazardous or risky exposure to human life , that somebody had committed mischief by siphoning such energy to his private p roperty or that the electrocution was from such diverted line. It is the lookout of the managers of the supply system to prevent such pilferage by installing ne cessary devices and at any rate, points out the Supreme Court in M.P. Electricit y Board (supra), when any live wire gets snapped and falls on a public road, the electric current thereto should be instantly disrupted and that the authorities , manning such dangerous commodities, have extra duty to chalk out measures to p revent such mishaps. 34. It may be noted, as already indicated above, that the rule of ’strict li ability’, with some modifications, has come to be formally embedded in the law o f compensation even in this country. The concept of ’strict liability’, as the s ame had evolved in English Common Law and the application thereof to the cases i n India, with such exceptions as have developed, in course of time, in India, ha ve succinctly dealt with in M.P. Electricity Board Vs. Shail Kumari and others, reported in (2002) 3 SCC 162, wherein, having explained the doctrine of ’strict liability’, the Supreme Court has clearly held that this doctrine is applicable to all such undertakings or bodies, which transmit electrical energy. Pointing o ut the applicability of the rule of ’strict liability’, in such undertakings and bodies, the Supreme Court, in M.P. Electricity Board (supra), if I may reiterat e, observed and held as follows: 7. It is admitted fact that the responsibility to supply electric energy in a particular locality was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human being who gets unwillingly trapped into it, the primary liability to compensate the suffers is that of the supplie r of the electric energy. So long as the voltage of electricity transmitted thro ugh 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 s uch road would be under peril. It is not defence on the part of the management o f the Board that somebody committed mischief by siphoning such energy to his pri vate property and that the electrocution was from such diverted line. It is the look out of the managers of the supply system to prevent such pilferage by insta lling necessary devices. At any rate, if any live wire got snapped and fell on t he public road, the electric current thereon should automatically have been disr upted. Authorities manning such dangerous commodities have extra duties, to chal k out measures to prevent such mishaps. 8. Even assuming that all such measures have been adopted, a person underta king an activity involving hazardous or risky exposure to human life is liable u nder Law of Torts to compensate for the injury suffered by any other persons irr espective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in th e very nature of such activity. The liability cast on such person is known in la w as strict liability . It differs from the liability which rises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defence did all that which could be done for avoiding the harm, he cannot be held liable when the action is based on any negligence attributed but such cons ideration is not relevant in cases of strict liability where the defence is held liable irrespective of whether he could have avoided the particular harm by tak ing precautions. 35. Before proceeding further, I may also pause here and mention that though an attempt has been made, on behalf of the respondents, to show that the concep t of ’strict liability’, which was resorted to in M.P. Electricity Board (supra) , has not been agreed to by the Apex Court in its later decision in Timudu Oram (supra), it needs to be pointed out that two decisions of this Court, having a lready considered similar submissions and having taken into account the facts of both the cases, namely, Sukamani Das and Timudu Oram (supra), have held that th e principle of ’strict liability’, which was taken resort to, and applied in, M .P. Electricity Board (supra), remained undiluted by the Supreme Court’s subsequ ent decision in Timudu Oram (supra). In Surjya Das Vs. Assam State Electricity B oard and Ors., reported in (2006) 2 GLT, 387, Gogoi, J, in this regard, observed as under : The rule of strict liability, which has its origin in English Common law, has b een applied to several situations in the country with suitable adaptations and modifications The following observations contained in para 8 of the judgment in M.P.Electricity Board (supra) would amply sum up the present day position in s o far as the application of the principle is concerned. 8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable unde r Law of Torts to compensate for the injury suffered by any other person, irresp ective of any negligence or carelessness on the part of the managers of such und ertakings. The basis of such liability is the foreseeable risk inherent in the v ery nature of such activity. The liability cast on such person is known, in law, as strict liability. It differs from the liability which arises on account of the negligence or fault in this way, i.e., the concept of negligence comprehend s that the foreseeable harm could be avoided by taking reasonable precautions. I f the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed, but such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular har m by taking precautions. The rule of strict liability with suitable modifications had come to be firmly e mbedded in the system of jurisprudence prevailing in the country and the law la id down by the Apex Court in the case of M.P. Electricity Board (supra) does not stand whittled by the subsequent pronouncements of the Apex Court in the case o f SDO Grid Corporation of Orissa Ltd. and others (supra). In paragraph 8 of the aforesaid judgment, the earlier decision of in the case of M. P. Electricity Bo ard (supra) was considered and the Apex Court, without, in any manner effecting the principle of strict liability/preferred not to rely on the judgment of the A pex Court in the case of M. P. Electricity Board (supra) as the said judgment ha d followed a determination of negligence by the Civil Court. In the above premis es, it can, therefore, be reasonably understood that the Apex Court in the case of SDO Grid Corporation of Orissa Ltd. And others (supra) had distinguished the judgment in the case of M. P. Electricity Board (supra) on its own facts without in any way affecting the principle of law laid down therein. 36. Similar views have been expressed in S.K.Shangring Lamkang & another ver sus State of Manipur & Others, reported in 2008 (1) GLT 32, by MBK Singh, J, too . 6. The sum and substance of what have been discussed above is that when a p erson carries on business of generation or transmission of electrical energy, wh ich is inherently dangerous, then, it is the duty of such a person to ensure tha t no injury results from his activities. If such a person finds that any unautho rised construction has taken place close to a live electrical wire, it is the du ty of such a person to ensure that the construction is demolished by moving appr opriate authority and, if necessary, by taking resort to courts of law or else, the person, dealing with the generation and/or transmission of electricity, woul d be liable for the consequences, which may ensue from his inaction. 7. In the backdrop of the position of law as discussed above, when one reve rts to the case of the present writ petitioner, what attracts the eyes, most pro minently, is that though the respondent Nos. 1, 3, 4 and 5 deny their liability, the fact remains that they are not able to show that they had taken all such ca re as were required in order to avoid harm or damage to the persons, who may hap pen to come close to the said electrical wire. In fact, the respondents plead th at it is possible that blowing of the wind had caused sagging of the live conduc tor from its normal height and the conductor came in contact with the CI sheet o f the petitioner’s roof resulting into the accident, in question. The stand of t he contesting respondents is, thus, vague, hypothetical and uncertain. The conte sting respondents have not set up any specific case to show how the said acciden t had taken place. As a matter of fact, the affidavit filed by the contesting re spondents does not reflect any bold and specific denial of the description of th e accident, which the petitioner has given. In the light of the Supreme Court’s decision in H.S.E.B. -VS- Ram Nath, reported in (2004) 5 SCC 793, it becomes cle ar, as correctly pointed out by the Chief Electrical Inspector, Government of As sam, that the contesting respondents ought not to have carried 33000 KV electric al wire over the house of the petitioner and had they not carried such a wire ov er the roof of the petitioner, the accident would not have taken place. In the p resent case, it is not contended by the contesting respondents that the petition er has raised his house unauthorisely. In such circumstances, the contesting res pondents must be held responsible for the injuries, which the petitioner has sus tained. What, now, falls for consideration is the quantum of compensation, which the petitioner is entitled to receive. 8. While considering the above aspect of the case, it needs to be noted tha t there is no dispute that the petitioner was 20 years old, when he sustained th e injuries. There is also no specific denial of the petitioner’s claim that he h as already spent Rs. 65,000/- on his treatment. Moreover, there is no denial of the fact that the petitioner was sole bread earner of his family, which consists of his parents, his minor brothers and sisters. Further-more, there is no dispu te that the petitioner’s right hand stands imputed. In such circumstances, the p etitioner, instead of having remained a source of earning for his family, has be come a burden on his family. 9. In view of the facts pointed out above, this Court is of the view that t he petitioner needs to be compensated not only for the physical pain and sufferi ngs, but also mental trauma. The petitioner also deserve to be compensated for t he loss of his earnings and earning capacity. As far as the expenses for treatme nt are concerned, the petitioner has already spent Rs. 65,000/- and he needs to continue his treatment. In such circumstances, a sum of Rs. 1,00,000/- needs to be paid to the petitioner, as compensation, for medical expenses, Rs. 1,00,000/- as pain and suffering, both physical as well as mental, and Rs. 1,00,000/- as l oss of his earnings and earning capacity. In all, therefore, the petitioner need s to be paid a sum of Rs. 3,00,000/- as compensation. 10. Because of what have been discussed and pointed out above, this writ pet ition partly succeeds. The respondent Nos. 1 and 2 are hereby directed to pay, i n all, Rs. 3,00,000/-, as compensation, to the petitioner within a period of thr ee months from today. 11. With the above observations and directions, this writ petition shall sta nd disposed of.