IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28.03.2011 CORAM THE HONOURABLE MR.JUSTICE M.M.SUNDRESH W.P. NO.38175 OF 2003 A.Murugan .. Petitioner Versus 1.The Government of Tamil Nadu Rep.by Secretary to Government Electricity Department Fort St.George Chennai – 600 009. 2.The Chairman Tamil Nadu Electricity Board Anna Salai, Chennai – 600 002. 3.The Chief Engineer Tamil Nadu Electricity Board (Distribution), Tirunelveli. 4.The Superintending Engineer Tamil Nadu Electricity Board (Distribution), Tirunelveli. 5.The Asst. Engineer Tamil Nadu Electricity Board (Distribution) Tirunelveli – 627 657 Tirunelveli District. .. Respondents PRAYER : Writ Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondents herein to pay a compensation of a sum of Rs.3 lakhs to the petitioner. For Petitioner : Mr.Rathinavel Pandian for M/s.Chitra Sampath For Respondents : Mr.P.Srinivas https://hcservices.ecourts.gov.in/hcservices/ O R D E R The petitioner herein has come forward to file this Writ Petition, seeking a direction to the respondents to pay a compensation for a sum of Rs.3,00,000/- due to the fatal accident caused to his son by the electrocution caused by the live wire getting snapped. Facts in brief: 2.The petitioner's son M.Barathkumar, who was studying in the 4th standard died of electrocution due to the snapping of the live wire of L.T. 3 Phase maintained by the respondents. 3.The petitioner's father lodged a complaint before the jurisdictional Police Station and sent a representation to the 5th respondent on 15.12.1999 seeking compensation for a sum of Rs.3,00,000/-. The petitioner thereafter sent another representation to the Honourable Chief Minister's Cell on 10.01.2003. Thereafter, a communication was sent to the petitioner from the 4th respondent informing him that a sum of Rs.25,000/- has been awarded as compensation payable towards the death of his son M.Barathkumar. The petitioner was further asked to furnish an Indemnity Bond that he would not seek any further compensation. Not being satisfied with the reply given to the petitioner, the present Writ Petition has been filed seeking compensation for a sum of Rs.3,00,000/-. 4.Heard the learned counsel appearing for the petitioner as well as the learned counsel appearing for respondents and perused the counter affidavit. 5.It is not in dispute that the duty of maintaining the L.T. 3 Phase Line was that of the respondents. It is also not in dispute that the accident has occurred due to the snapping of the live wire. The investigation also revealed the fact that the petitioner's son died of electrocution. The respondents have also admitted in the counter affidavit that the death was caused due to snapping of the live wire. However, an explanation was given by the respondents stating that due to heavy wind and the falling of the coconut leaf the live wire got snapped resulting in the accident. It is further stated in the counter affidavit that as per the norms provided under the Board Proceedings (FB) No.4 (Administration Branch), dated 29.01.1998, a compensation for a sum of Rs.25,000/- can be paid for the accident caused. Therefore, it is submitted by the learned counsel appearing for the respondents Mr.P.Srinivas that the accident being an Act of God and that the negligence is not on the part of the respondents, the claim sought for in the Writ Petition cannot be sustained and the https://hcservices.ecourts.gov.in/hcservices/ only course that is open to the petitioner is to approach the jurisdictional Civil Court. 6.As discussed above, it is admitted by the respondents in the counter affidavit that the liability to pay the compensation by the respondents is not denied. The very fact that the respondents have agreed to pay a sum of Rs.25,000/- itself would exemplify the position that they accept the liability. However, it is stated that the quantum beyond the permissible limit of Rs.25,000/- cannot be paid as the said payment is ex gratia payment payable on compassionate ground. The said stand taken by the respondents cannot be countenanced inasmuch as the liability having been admitted it is not open to the respondents to deny the just compensation. When the facts are not in dispute, this Court cannot drive a party, to approach the Civil Court, more so when a public duty is imposed upon a statutory authority and for the failure to perform such duty a citizen is put to hardship. 7.In the present case on hand, the petitioner has lost his son, a child of 9 years. To say that the petitioner is entitled to only a sum of Rs.25,000/- for the death cannot be accepted. A death of the child cannot be valued in terms of money. However, the petitioner will have to be compensated considering the undisputed fact that the child was nowhere responsible for the accident and the duty to maintain a L.T. Line rests with the respondents. Therefore, when the duty is upon the respondents it is for them to explain that there is no negligence on their part more so when they accept the liability. When the liability is on the respondents towards the payment of compensation as well as the maintenance of the L.T. Line, they cannot escape from them by stating that the occurrence being an Act of God a just compensation cannot be paid. It is nowhere stated in the counter affidavit as to when the live wire got snapped and whether any proper explanation was made. 8.As discussed above, it is for the respondents to satisfy that all proper steps have been taken. It is also not the case of the respondents that at the time of the accident the live wire got snapped. When it is not in dispute that there were coconut trees standing, the respondents being the public authority ought to have foreseen a situation in which the leaves of the said trees would fall on the overhead line. It is also not the case of the respondents that blowing of wind was unnatural. In other words, they were quite aware of the fact that the wind is blowing with high velocity in the particular area and there are standing coconut trees. Therefore, even assuming the reasons assigned by the respondents are correct it cannot be termed as an Act of God. Hence, this Court is of the view that the undisputed facts https://hcservices.ecourts.gov.in/hcservices/ involved in the present case on hand would clearly disclose that it is negligence on the part of the respondents who are otherwise responsible for maintaining the L.T. Line. 9.The issue involved in the present Writ Petition regarding the exercise of the power of judicial review under Article 226 of the Constitution of India is no longer res integra. The Honourable Apex Court considering the very same issue in M.P.ELECTRICITY BOARD vs. SHAIL KUMARI AND OTHERS [(2002) 2 SCC 162] has held as follows: "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 under law of torts to compensate for the injury suffered by any other person, irrespective 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 the very 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 comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If 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 harm by taking precautions." 10.The Honourable Apex Court has further held in the following manner: "12. In M.C. Mehta v. Union of India (1987) 1 SCC 395 this Court has gone even beyond the rule of strict liability by holding that: (SCC p.421, para 31) Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on anyone on account of the accident in the operation of such activity, the enterprise is strictly and absolutely https://hcservices.ecourts.gov.in/hcservices/ liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands v. Fletcher1. 13. In the present case, the Board made an endeavour to rely on the exception to the rule of strict liability (Rylands v. Fletcher1) being “an act of stranger”. The said exception is not available to the Board as the act attributed to the third respondent should reasonably have been anticipated or at any rate its consequences should have been prevented by the appellant-Board. In Northwestern Utilities Ltd. v. London Guarantee and Accident Co. Ltd. 1936 AC 108, the Privy Council repelled the contention of the defendant based on the aforecited exception. In that case a hotel belonging to the plaintiffs was destroyed in a fire caused by the escape and ignition of natural gas. The gas had percolated into the hotel basement from a fractured welded joint in an intermediate pressure main situated below the street level and belonging to the defendants which was a public utility company. The fracture was caused during the construction involving underground work by a third party. The Privy Council held that the risk involved in the operation undertaken by the defendant was so great that a high-degree care was expected of him since the defendant ought to have appreciated the possibility of such a leakage. 14. The Privy Council has observed in Quebec Rly., Light, Heat and Power Co. Ltd. v. Vandry 1920 AC 662 that the company supplying electricity is liable for the damage without proof that they had been negligent. Even the defence that the cables were disrupted on account of a violent wind and high-tension current found its way through the low-tension cable into the premises of the respondents was held to be not a justifiable defence. Thus, https://hcservices.ecourts.gov.in/hcservices/ merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding the live wire lying on the road. 15. In W.B. SEB v. Sachin Banerjee (1999) 9 SCC 21 the Electricity Board adopted a defence that electric lines were illegally hooked for pilferage purposes. This Court said that the Board cannot be held to be negligent on the said fact situation but the question of strict liability was not taken up in that case." 11.The Honourable Apex Court in V.SUBRAMANIAM vs. THE STATE OF TAMIL NADU [2009 (1) CTC 434] has held as follows: "11. An action for damages lies for bodily harm which includes battery, assault, false imprisonment, physical injuries and death. In case of assault, battery and false imprisonment the damages are at large and represent a solatium for the mental pain, distress, indignity, loss of liberty and death. As we have held hereinbefore that the son of Kamlesh Kumari aged 9 years died due to beating and assault by the SHO, Lal Singh and as such she is entitled to get the damages for the death of her son. It is well settled now that the State is responsible for the tortious acts of its employees. Respondent 2, Delhi Administration is liable for payment of compensation to Smt. Kamlesh Kumari for the death of her son due to beating by the SHO of Anand Parbat Police Station, Shri Lal Singh. 12. It is convenient to refer in this connection the decision in Joginder Kaur v. Punjab State, 1969 ACJ 28 wherein it has been observed that: “In the matter of liability of the State for the torts committed by its employees, it is now the settled law that the State is liable for tortious acts committed by its employees in the course of their employment.” https://hcservices.ecourts.gov.in/hcservices/ 13. In State of Rajasthan v. Vidhyawati, 1962 Supp (2) SCR 989, it has been held that: (SCR p. 1007) “Viewing the case from the point of view of first principles, there should be no difficulty in holding that the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such as any other employer. The immunity of the Crown in the United Kingdom, was based on the old feudalistic notions of justice, namely, that the King was incapable of doing a wrong, and, therefore, of authorising or instigating one, and that he could not be sued in his own courts. In India, ever since the time of the East India Company, the sovereign has been held liable to be sued in tort or in contract, and the Common Law immunity never operated in India. 14. In Peoples’ Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarters, 1989 (4) SCC 730, one of the labourers who was taken to the police station for doing some work and on demand for wages was severely beaten and ultimately succumbed to the injuries. It was held that the State was liable to pay compensation and accordingly directed that the family of the deceased labourer will be paid Rs 75,000 as compensation. 15. On a conspectus of these decisions we deem it just and proper to direct the Delhi Administration, respondent 2 to pay compensation to Kamlesh Kumari, mother of the deceased, Naresh a sum of Rs 75,000 within a period of four weeks from the date of this judgment. The Delhi Administration may take appropriate steps for recovery of the amount paid as compensation or part thereof from the officers who will be found responsible, if they are so advised. As the police officers are not parties before us, we state that any observation made by us in justification of this order shall not have any bearing in any https://hcservices.ecourts.gov.in/hcservices/ proceedings specially criminal prosecution pending against the police officials in connection with the death of Naresh. The Writ Petitions are disposed of accordingly.” In S.S. Ahluwalia v. Union of India, 2001 (4) SCC 452. In paragraph 2, the Supreme Court held as follows: ".... Therefore, it would be appropriate for us to direct the High Courts of Delhi, Rajasthan, Orissa, Punjab and Haryana, Himachal Pradesh, Patna, Madhya Pradesh, Allahabad and Bombay in the States of Delhi, Rajasthan, Orissa, Haryana, Himachal Pradesh, Bihar, Madhya Pradesh, Uttar Pradesh, Maharashtra and Goa to deal with the matter in respect of the allegations made herein in respect of the State falling in their jurisdiction by treating the Writ Petition as a Petition filed in that High Court. These proceedings, therefore, shall stand transferred to the respective High Courts. A copy of the Petition with annexures and response of the respective State Governments shall be sent to the High Court for appropriate action." In National Human Rights Commission v. State of Gujarat, 2004 (8) SCC 610, it was observed in the following manner by the Honourable Apex Court: "8.In our view, these all are issues which can be raised in the pending Writ Petitions before the High Court since the High Court would have the jurisdiction to consider each of the grievances raised. In fact, having regard to the nature of the claim it will be more appropriate, that the High Court should deal with the issues raised in the first instance." 12.Similarly, a Division Bench of this Court in THE CHIEF SECRETARY TO THE GOVERNMENT OF TAMIL NADU & OTHERS vs. MRS.R.SELVAM [2004 WLR 611] has held as follows: "17. .... The parents while admitting their children, be it a boy or a girl, do so with the fond hope that their wards will be properly looked after. The hostel run by the Thanjavur Medical College is not a commercial establishment. It is the bounden duty of the https://hcservices.ecourts.gov.in/hcservices/ hostel authorities to take every reasonable, possible and necessary step in providing security arrangements. They have to be more careful and vigilant when they take the responsibilities of providing boarding and lodging for the girl students. In fact, this Court is surprised with the stand taken by the appellants in the counter affidavit filed in the Writ Petition to the effect that they are not responsible since no separate amount was collected under the head 'for security arrangements'." 13.The ratio laid down in the above said pronouncements was also followed by this Court in V.SUBRAMANIAM vs. THE STATE OF TAMIL NADU [2009 (1) CTC 434]. 14.Recently in the judgment rendered between the respondents namely, THE CHAIRMAN, TAMIL NADU ELECTRICITY BOARD vs. R.BAKKIAVATHY [2010 (1) CTC 33], this Court was pleased to hold in the following manner: "19.The Electricity Board being the suppliers of electricity are expected to maintain the supply system in a sound condition. Great care and attention are expected from the Electricity Board in maintaining live wire and other electrical system engaged in the transmission of electricity. When an incident happens involving electricity line, inference can surely be drawn that there has been an element of carelessness on the part of the Electricity Board in maintaining the supply line. The burden of proof in such cases is clearly on the Board that they have taken all reasonable care in maintaining the transmission lines. Common man has no control over the electrical system and the transmission line and as such, in the event of any untoward incident involving the transmission cable, onus is heavy on the Electricity Department to absolve themselves from the charge of negligence." 15.Therefore, analysing the ratio laid down in the judgments referred supra, this Court is of the view that the power of judicial review under Article 226 for awarding compensation due to the negligence on the part of the public authorities where the facts are not in dispute is very much available to this Court. https://hcservices.ecourts.gov.in/hcservices/ 16.The petitioner has claimed for a sum of Rs.3,00,000/- as compensation. The petitioner's son was studying in 4th standard at the time of the accident which is not in dispute. It is trite law for fixing the just compensation, the guidelines provided under the Motor Vehicles Act can be adopted. Therefore, considering the fact that the petitioner has lost his son due to the negligence on the part of the respondents, this Court is of the view that it would be just reasonable that a sum of Rs.2,00,000/- would be appropriate to be payable by the respondents as compensation. The said sum will have to be paid with an interest at the rate of 7.5% from the date of the accident till the amount is paid. Infact the very same procedure has been adopted by this Court in the THE CHAIRMAN, TAMIL NADU ELECTRICITY BOARD vs. R.BAKKIAVATHY [2010 (1) CTC 33] and also in V.SUBRAMANIAM vs. THE STATE OF TAMIL NADU [2009 (1) CTC 434]. Therefore, considering the facts of the case, this Court is of the view that the amount referred above would be just and reasonable. 17.In the result, the Writ Petition is allowed, by directing the respondents to pay a sum of Rs.2,00,000/- with 7.5% interest from the date of the death of petitioner's son till the actual payment. The respondents are directed to make the payment within a period of eight (8) weeks, from the date of receipt of a copy this order. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. SRI To 1.The Secretary Government of Tamil Nadu Electricity Department Fort St.George Chennai – 600 009. 2.The Chairman Tamil Nadu Electricity Board Anna Salai, Chennai – 600 002. https://hcservices.ecourts.gov.in/hcservices/ 3.The Chief Engineer Tamil Nadu Electricity Board (Distribution), Tirunelveli. 4.The Superintending Engineer Tamil Nadu Electricity Board (Distribution), Tirunelveli. 5.The Asst. Engineer Tamil Nadu Electricity Board (Distribution) Tirunelveli – 627 657 Tirunelveli District. 1 cc to M/s. Chitrasampath, Advocate, Sr. 22227 1 cc to Mr.P. Srinivas, Advocate, Sr. 22864 W.P.NO.38175 OF 2003 KJ (CO) kk 19/4 https://hcservices.ecourts.gov.in/hcservices/