CIVIL WRIT JURISDICTION CASE No.4053 OF 1993 1. Smt. Shila Devi, Wife of Late Sitaram Poddar 2. Ganour Thakur, S/o Late Lakhan Thakur 3. Bharat Mahton, S/o Yogendra Mahton All resident of village Mathurapur, P.S. Waris Nagar, District – Samastipur. -------------------- Petitioners. Versus 1. The State of Bihar through the Secretary, Department of Energy, Bihar, Patna. 2. The Electrical Inspector, Government of Bihar, Patna 3. The Bihar State Electricity Board through its Secretary 4. The Electrical Superintending Engineer, Samastipur, Electrical Circle, Samastipur. ----------------- Respondents. -------------- For The Petitioner : Mr. Chittaranjan Sinha, Sr. Adv. Mr. Siddhartha Prasad, Adv. For the Respondent B.S.E.B. : Mr. Vinay Kirti Singh, Adv Mr. Vijay Kr. Verma, Adv. For the State : Mr. Mukund Mohan Jha, J.C. to S.C. 7 --------------- P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI ************* A. K. Tripathi, J. Heard learned counsel for the parties. The three petitioners in the present writ application are immediate relation, namely wife and father of three of the persons who died due to suffering burnt injuries. The burn was caused by a burst of 100 KVA Transformer and gushing out of hot furnace oil from the same. Petitioners allege negligence against the respondents namely Bihar State Electricity Board and are now demanding compensation for loss of life for the near and dear ones. - 2 - As per the assertions made in the writ application on 11.04.1992, which was Ramnavami day, large number of crowd had assembled near the Kali Mandir in the village of Mathurapur in the District of Samastipur. At about 6.30 P.M. there was a huge spark which bursted the transformer and many people suffered burnt injury due to the hot transformer oil having spilt on the crowd. Victims were treated at Samastipur Sadar Hospital, but at least five deaths had occurred due to the said accident. It is further stated that one Junior Engineer and a Line Man were working at the site and some repair work on the transformer was going. It was due to sheer negligence the accident happened. Some communications made between the officials have been brought on record to show that it is a case of negligence and the liabilities is made out upon the respondents Electricity Board. These petitioners therefore have a right to claim compensation under Article 226 of the Constitution of India. In this regard, learned counsel for the petitioners relies on two decisions in the case of Ram Swaroop Yadav Versus The Bihar State Electricity Board & others reported in 2004 (2) PLJR 525 and a Division Bench decision arising out of the same case in The Bihar State Electricity Board & another Versus Ramswarup Yadav & others reported in 2006 (3) PLJR 18. In so far as the principle enunciated in the said two - 3 - decisions are concerned. It cannot be disputed that the High Court does exercise powers vested under it under Article 226 of the Constitution of India more so, in cases of negligence of the kind which may be totally within the realm of a civil dispute or tortuous liabilities, when a breach is alleged against either the State or a statutory body akin to a State. There have been instances based on the given facts where compensation has been doled out in favour of the claimant. The question however, arises for consideration in the present case is whether it is an open and shut case of negligence having been made out against the respondents. There has to be enough evidence and material to show and gross negligence in the first part before a liability can be fastened upon the defaulter or the agency having committed tortuous action in the present case. The court does not find that there are enough materials to pin the respondents. The maximum which the petitioners have succeeded in bringing on record is a report of the Electrical Inspector which only shows that the Transformer burst may be because of over loading and short-circuit, but that opinion may not be enough for holding the respondents Electricity Board guilty of negligence. There are many unexplained technical factors which could also be the reason for such an accident. In absence of materials and findings, the court would like to go by the wisdom of Hon’ble Supreme Court and the ratio - 4 - laid down in the case of Chairman, Grid Corporation of Orissa Ltd. (Grido) and others Versus Sukamani Das (Smt.) and another (1999) 7 SCC 298. The court is tempted to quote paragraph no.6 of the said judgment which lays down the ambit and the scope of the High Court while dealing with such matters. “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 transmission lines of the appellants, that “admitted/prima facie amounted to negligence on the part of the appellant”. 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 1 had snapped and the deceased had come in contact with it and had died was - 5 - 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 in contact with the wire. In view of the specific defence 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 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 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 - 6 - the writ petitioners to approach the civil court as it was done in OJC No. 5229 of 1995”. Keeping the above ratio in mind, the pleadings and the materials which has been brought on record by the petitioners the court has difficulty in holding in their favour and directing the respondents to compensate them for the so-called accident caused by their negligence. The dismissal of the writ application does not mean that the petitioners do not have a cause of action. If their right survives, they will have to choose the forum where adequate evidence can be brought on record for that forum to reach the conclusion which the petitioners wants this court to reach and may be thereafter liabilities can be fastened upon the respondent. In so far as the writ application is concerned, it is dismissed for the reasons indicated above, but liberty is granted to the petitioners to explore the avenue of a Civil Court, if so advised. Patna High Court The 4th day of December, 2008, NAFR/AFR, Rajeev/ (Ajay Kumar Tripathi, J.)