W.P. No. 15363.05 Writ Petition No. 15363 of 2005 29.11.2011 Shri R. S. Verma, learned counsel for the petitioner. Shri Lalit Joglekar, learned counsel for the respondents No. 1 and 4. Shri Vivek Rusia, learned counsel for the respondents No. 2 and 3. Shri Uday Kumar, learned counsel for the respondent No. 5. Extra-ordinary jurisdiction is invoked by the petitioner vide this petition under Article 226 of the Constitution of India, seeking direction to respondents to compensate the untimely death of her son Mukesh who died of electrocution on 18-10-2005 while grazing cattle in the fields in village Semariya, tehsil Sirmour, district-Rewa, when he came in contact with live electricity wire which as per the petitioner was being left unattended by respondent No. 5 who need the electricity for irrigating the field. To overcome the preliminary objection as to maintainability of the petitioner raised by respondent in the light of decision in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) v. Smt. Sukamani Das and another : AIR 1999 SC 3412, and S.D.O. Grid Corporation of Orissa Ltd. and others v. Timudu Oram : (2005) 6 SCC 156, it is contended by learned counsel for the petitioner that the compensation is claimed on the basis of strict liability fastened on the bulk supplier of electricity i.e. respondent No. 2, who is duty bound to maintain the electricity lines W.P. No. 15363.05 and with present case since the deceased came into contact with the live wire, which was to be but not maintained properly by the electricity company, therefore, the strict proof of negligence being not required, the petitioner can claim compensation by invoking extra-ordinary jurisdiction. Facts of the case reveal that the deceased was earning his livelihood by selling milk. On 18-10-2005 while grazing his cattle in the field he came in contact with high tension live electric wire resulting in instant death. First information report was lodged and an offence under section 304-A of the Indian Penal Code was registered against respondent No. 5 in whose fields the live electric wire was lying. The respondent No. 5 was held guilty of negligence and by order dated 28-10-2009 was inflicted with a penalty of Rs. 1,000/-. These facts thus go to show that the concept of strict liability which the petitioner intends to propound in the present case is not attracted because it is negligence on the part of consumer, i.e., respondent No. 5 which led to said accident resulting in untimely death of petitioner's son. In Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) v. Smt. Sukamani Das and another (supra) it is observed :- “6. 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 contact with snapped live wires of the electric W.P. No. 15363.05 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. Mere fact that the wire of the electric transmission line belonging to the appellant No. 1 had snapped and the deceased had come into 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 into 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 petitioner. 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 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 S.D.O. Grid Corporation of Orissa Ltd. and others v. Timudu Oram (supra) it is observed : “8. As against this counsel for the respondent cited a later judgment of this Court in M.P. Electricity Board Vs. Shail Kumari & Ors., 2002 (2) SCC 162, wherein this Court has taken the view that the Electricity Board could be fastened with the liability in a case in which W.P. No. 15363.05 the live wire snapped and fell on the public road which was partially inundated with rainwater. The observation made by this Court in the aforesaid case would not be applicable to the facts of the present case as in the said case a suit had been filed in which a finding of negligence was recorded by the trial Court against the Board. The trial Court after coming to the conclusion that the respondents were entitled to a compensation of Rs.4.34 lakhs non- suited the respondents solely on the premise that the claimants had failed to prove their liability for such compensation. The High Court in the said case had recorded a finding: "Therefore, the defences put up by MPEB are absolutely without any basis and do not reflect the real position at the spot, rather attempt has been made to conceal the real position in order to avoid responsibility and liability for payment of compensation." On these facts, this Court came to the conclusion that the claimants were entitled to the compensation. Counsel for the appellants also cited a judgment in H.S.E.B. and others Vs. Ram Nath and others, (2004) 5 SCC 793, in which a similar view was taken. In the said case it was observed by the Bench that where disputed questions of fact were involved writ petition would not be the proper remedy but since there was no denial in the written statement that wires were loose and drooping and the claimant had asked the Board to tighten the wires, the Board was held liable to pay the compensation. This finding was recorded because the supplier of electricity did not controvert the facts alleged by the respondent writ petitioner. Disputed questions of facts were not involved and as a result of which the finding recorded by the High Court was upheld. 9. In the present case, the appellants had disputed the negligence attributed to it and no finding has been recorded by the High Court that the GRIDCO was in any way negligent in the performance of its duty. The present case is squarely covered by the decision of this Court in Chairman, Grid Corporation of Orissa Ltd. W.P. No. 15363.05 (GRIDCO) and others (supra). The High Court has also erred in awarding compensation in Civil Appeal No 4552 of 2005 [@ SLP(C) No.9788 of 1998]. The subsequent suit or writ petition would not be maintainable in view of the dismissal of the suit. The writ petition was filed after a lapse of 10 years. No reasons have been given for such an inordinate delay. The High Court erred in entertaining the writ petition after a lapse of 10 years. In such a case, awarding of compensation in exercise of its jurisdiction under Article 226 cannot be justified.” In view of the law as it exists and the facts of present case, the preliminary objection raised by respondents as to maintainability of the petition is upheld. For the said reasons the petition is dismissed. The petitioner is at liberty to seek remedy under civil law. (SANJAY YADAV) JUDGE sc