IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8605 of 2003 1.Md.Kashim Sah son of late Md. Samid 2.Md. Vakil Sah son of - do – 3.Zulaikha Khatoon widow of late Md. Samid 4.Roushan Ara daughter of of late Md. Samid 5.Nabisa Khatoon daughter of of late Samid 6.Nasima Khatoon daughter of of late Samid All are resident of village- Rasauk, P.S.-Morkahi, District-Khagaria ……. ……. Petitioners Versus 1.The State Of Bihar 2.The Bihar State Electricity Board, Patna through its Chairman 3.The Executive Engineer, Electricity Supply Division, Khagaria ……. …… Respondents --------- For the petitioners: Mr. Abdul Mannan Khan Md. Najmul Hoda For the B.S.E.B.: Mr. Dharmeshwar Mishra For the State: Mr. Gopi Jha. --------- 9. 24.6.2011. Heard learned counsel for the petitioner, learned counsel appearing on behalf of the respondent-Bihar State Electricity Board and learned counsel appearing on behalf of the State. In this writ petition, the petitioners have prayed for issuance of a writ of mandamus for payment of Rs.5,00,000/- with compound interest by way of death compensation to the petitioners on account of death of husband of petitioner no.3 and father of rest of the petitioners. The case of the petitioners is that Md. Samid died due to electrocution as transformer which was installed by the Bihar State Electricity Board exploded. It is the specific case of the petitioners that while the deceased was going to Khagaria Market and when he reached at Sanhauli Dhala Chak near Om Medical suddenly the 2 transformer installed by the Bihar State Electricity Board bursted and father of the petitioner was engulfed in the flame of fire. He got serious injury and was taken to Sadar Hospital, Khagaria where he died in the same evening. Learned counsel for the petitioners submits negligence on the part of the respondent- Bihar State Electricity Board was cause of death of the father of the petitioners and, thus, they are entitled to be compensated. In this case a counter affidavit has been filed on behalf of the Bihar State Electricity Board wherein defence has been taken that there was neither any laches nor any lapses or deficiency on the part of the respondent-Board as a result of which the accident took place and the deceased died. Learned counsel for the respondent- Board has further argued that a criminal case being Khagaria P.S. Case No.391 of 1996 was instituted for the offence under section 304A of the Indian Penal Code against the officials of the Board for causing death due to negligence. The case was duly investigated by the police and the police on completion of investigation submitted final report holding ‘the case is to be mistake of fact’. The said final report submitted by the police was also accepted. Learned counsel for the respondents further submits that the petitioner had also filed a protest petition in the criminal case which was subsequently treated as a complaint case and was registered as Complaint Case No.330C of 2001. In his counter affidavit he has annexed a copy of the order dated 3.8.2005 passed in Complaint Case No.330C of 2001 by learned Judicial Magistrate, Khagaria which goes to suggest that 3 the said complaint was dismissed in exercise of powers conferred upon him under section 203 of the Code of Criminal Procedure. It is relevant to point out here that while passing the order dated 3.8.2005 dismissing the complaint, the learned Magistrate had considered the letter dated 12.11.1996 written by the Electrical Executive Engineer to the Electrical Superintending Engineer, Saharsa, Electrical Circle, Saharsa. The learned Magistrate has indicated in his order that from the said letter it is apparent that some technical defect had crept in the transformer which was possible due to technical reasons and the explosion in transformer was not due to any departmental negligence. Learned counsel for the respondents, thus, submits that when a criminal court has given a definite finding that there was no negligence on the part of the department as a result of which explosion took place and since the explosion had taken place due to sudden technical fault, the Board cannot be held liable for payment of any compensation. In para-8 of the counter affidavit the respondents have categorically stated that father of petitioner no.1 died due to accident and not due to any negligence and deficiency on the part of the respondents. Further in para-6 of the counter affidavit the respondent-Board, as a matter of fact, has admitted that there was a sudden explosion in the transformer which was duly installed after thorough check up and the deceased died due to accident which took place due to unforeseen circumstance and, thus, no compensation can be awarded to the petitioners. Further contention made on behalf of the respondent-Board is that the writ petition has been filed after long lapse of time which would also 4 disentitle the petitioners from any compensation. Learned counsel for the petitioners, on the other hand, relied upon two decisions of this court reported in 2004(4) PLJR 307 (Ramawati Kuer Vs. State of Bihar and Others) and 2004(2) PLJR 525 (Ram Swaroop Yadav Vs. Bihar State Electricity Board and others) and submitted that the case of the petitioners is squarely covered by the decisions cited above. As noticed above, the facts which are not in dispute in this case are as follows:- (a) The deceased was an innocent pedestarian (b) there was no contributory negligence on the part of the deceased (c) the explosion in transformer took place due to technical defects which has crept in due to technical reasons (d) due to sudden explosion in the transformer installed by the Bihar State Electricity Board the deceased was engulfed in flame of fire (e) the deceased was immediately carried to hospital for treatment after the accident where he died on the same day. Learned counsel for the respondent-Board, however, contended that the deceased died due to accident which took place due to unforeseen circumstance and thus no compensation can be awarded to the petitioners. In my view, the point argued on behalf of the respondent-Board that criminal court has not held any person of the Board responsible for cause of death of the deceased would be of no consequence in this case for the reason that on account of the fact mentioned above an individual may not be held criminally liable to 5 be prosecuted for causing death due to negligence but at the same time there can be no denial from the facts that it was the duty of the Board to maintain transformer in a manner that life of any innocent citizen should not have been put at risk. The fact of death caused due to explosion on the very day of the accident stands admitted by the respondent- Board. Thus, I am of the view that principle of res ipsa loquitur would apply in the present case. In my view, when there is gross case of infringement of Article 21, this court in exercise of powers conferred under Article 226 of the Constitution of India would not hesitate in awarding compensation. I would further place reliance on the judgments cited by the learned counsel for the petitioners as mentioned above. It is argued on behalf of the petitioners that the approximate age of the deceased at the time of death was 45 years which has not been controverted by learned counsel appearing on behalf of respondent-Board. Learned counsel for the petitioners also submitted that the deceased had a surviving widow, two sons and three unmarried daughters, who were dependent upon him. Now the question arises as to what would be the appropriate amount of compensation to be awarded in this case. Taking into consideration the entire aspects of the matter and the facts and circumstances of the case, I am of the view that award of a sum of Rs.1,50,000/- to the petitioners would be just and proper compensation. Learned counsel for the petitioners submits that award amount may be handed over to petitioner no.3, who is surviving widow and guardian of other petitioners. Let the said 6 amount be paid by the respondent-Board to petitioner no.3 within a period four months from the date of receipt/production of a copy of this order. If they fail to make payment of the said amount within the above stipulated period, the petitioner no.3 would be entitled to interest at the rate of 8% per annum. With above observation and direction, this writ petition stands allowed. Md.S. (A.F.R.) ( Ashwani Kumar Singh, J.)