Arulmeri vs Superintendent Engineer, Tamil Nadu Electricity Board and Another

S. Manikumar, J.—Wife, who lost her husband due to electrocution on 11.5.2006, has sought for compensation of Rs. 5 lakhs from the

respondents. According to the petitioner, her husband was a fisherman. On 11.5.2006, when he was returning home, at 10.00 p.m., along with his

brother, he came in contact with a live wire, which fell on him and he died instantaneously. The factum of death was reported to Sayalkudi Police

Station on 12.5.2006 and that a criminal case was registered in Crime No. 160 of 2006. Post-mortem was done on 12.5.2006. The Post-mortem

doctor gave a report that the death was due to electric shock. For the death of the petitioner''s husband, the respondents are liable to pay

compensation. It is the case of the petitioner that on the date of accident, her husband was aged 29 years. He is survived by the petitioner and a 2-

1/2 years old female child. It is her further contention that as fisherman, he earned Rs. 7,000/- per month. She was wholly depending on her

husband and after his demise, the family is helpless, put on financial constraint and mental agony. Though representations were made to the

respondents seeking compensation, there was no response. Hence, the petitioner has come forward with the present writ petition for the relief,

stated supra.

The Superintending Engineer, Ramnad Electricity Distribution Circle, Ramanathapuram, in his counter affidavit has raised a preliminary objection

stating that the petitioner ought to have approached the appropriate civil Court for compensation. Without prejudice to the same, he has submitted

that the petitioner has to prove the age of the deceased, earning capacity and other factual aspects, which cannot be decided in a writ petition

under Article 226 of the Constitution of India. Reliance has also been placed on the decisions of the Supreme Court in (i) Tamil Nadu Electricity

Board Vs. Sumathi and Others, : Tamil Nadu Electricity Board Vs. Sumathi and Others, and (ii) S.D.O. Grid Corporation of Orissa Ltd. and

Others Vs. Timudu Oram, : S.D.O. Grid Corporation of Orissa Ltd. and Others Vs. Timudu Oram,

The Superintending Engineer, Ramanathapuram, has further submitted that due to unprecedented heavy rain, the electric line, though properly

connected, were mutilated and due to that, the accident had occurred. The respondents have denied negligence on the part of the Board in

maintaining the wires-He has also submitted that even in the Police complaint, no allegation against the Electricity Board has been levelled.

According to him, the petitioner has to prove the manner of accident and negligence on the part of the Board. For the abovesaid reasons, he has

prayed for dismissal of the writ petition.

Heard the learned counsel for the parties and perused the materials available on record.

Perusal of the First Information Report No. 160 of 2006, registered on 12.5.2006, on the file of the Sub-Inspector of Police, Sayalkudi, shows

that around 10.00 p.m., on 11.5.2006, when the petitioner''s husband was returning home, after completing his work, an overhead electric wire fell

on him. Though an attempt has been made to rescue, he died due to electrocution. The doctor, who conducted the post-mortem, on the dead

body of the petitioner''s husband, has clearly noticed electric burn injuries and certified that the death was due to electrocution. Thus, there cannot

be any dispute about the cause of death.

The respondents in their counter affidavits have denied the negligence on the ground that due to unprecedented heavy rain, the electric lines,

though properly connected, were mutilated and in the result, the accident had occurred. Insofar as the maintenance of the overhead electric wires

and the consequential liability of the Board to pay compensation in case of death, due to electrocution, there are many instances, wherein the

objection, regarding the maintainability of the writ petition and further contention that only a suit has to be filed by claiming compensation, has been

rejected. Death due to electrocution is an admitted fact. Fall of electric wire on the petitioner is also an admitted fact. When the petitioner''s

husband had not committed any act, contrary to law or the provisions of the Electricity Act, and when the death had occurred due to fall of electric

wire, whether it is due to unprecedented rain or Act of God, there is no need for the petitioner to go before the Civil Court and establish the cause

of the death or negligence. Certainly the death had not occurred due to the negligence of the petitioner, on the contrary, indisputably, due to the fall

of the electric wire, the accident had occurred. Therefore, this Court has no hesitation to hold that the officials of the Board were negligent in

properly maintaining the electric wires. Even, according to them, the electric lines were mutilated.

Though the Superintending Engineer, Electricity Distribution Circle, Madurai, the first respondent, has placed reliance on the decisions of the

Supreme Court in (i) Tamil Nadu Electricity Board v. Sumathi and Others (supra) and (ii) SDO, Grid Corporation of Orissa Ltd. v. Timudu Oram

(supra) and objected to the maintainability of the writ petition on the ground that public law remedy under Article 226 of the Constitution of India,

cannot be sought for, this Court is not inclined to accept the said contention in view of the following decisions:

(i) In The State of Rajasthan Vs. Mst. Vidhyawati and Another, it has been held that:

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.

(ii) In Joginder Kaur Vs. The Punjab State and Others 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.

(iii) In M.C. Mehta and another Vs. Union of India and others, dealing with a writ petition filed for closure of certain units, the Supreme Court

observed that when violations of fundamental right is brought to the notice of the Court, then hypertechnical approach should not be avoided, to

meet the ends of justice. The Apex Court has observed as follows:

The applications for compensation are for enforcement of the fundamental right to life enshrined in Art 21 of the Constitution and while dealing with

such applications, a hyper-technical approach which would defeat the ends of justice could not be adopted. If the Court is prepared to accept a

letter complaining of violation of the fundamental right of an individual or a class of individuals who cannot approach the Court for Justice, there is

no reason why the applications for compensation which have been made for enforcement of the fundamental right of the persons affected by the

oleum gas leak under Article 21 should not be entertained. The Court while dealing with an application for enforcement of a fundamental right must

look at the substance and not the form.

(iv) In Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, regarding the powers of the Court to grant compensation for

deprivation of fundamental right, the Hon''ble Supreme Court extensively considered the same and held as follows:

In Rudul Sah Vs. State of Bihar and Another, it was held that in a petition under Article 32 of the Constitution, this Court can grant

compensation for deprivation of a fundamental right. That was a case of violation of the petitioner''s right to personal liberty under Article 21 of the

Constitution. CHANDRACHUD, C.J., dealing with this aspect, stated as under: (paras 9 and 10)

It is true that Article 32 cannot be used as a substitute for the enforcement of rights and obligations which can be enforced efficaciously through the

ordinary processes of Courts, civil and criminal. A money claim has therefore to be agitated in and adjudicated upon in a suit instituted in a Court

of lowest grade competent to try it. But the important question for our consideration is whether in the exercise of its jurisdiction under Article 32,

this Court can pass an order for the payment of money if such an order is in the nature of compensation consequential upon the deprivation of a

fundamental right. The instant case is illustrative of such cases....

... The petitioner could have been relegated to the ordinary remedy of a suit if his claim to compensation was factually controversial, in the sense

that a civil Court may or may not have upheld his claim. But we have no doubt that if the petitioner files a suit to recover damages for his illegal

detention, a decree for damages would have to be passed in that suit, though it is not possible to predicate, in the absence of evidence, the precise

amount which would be decreed in his favour. In these circumstances, the refusal of this Court to pass an order of compensation in favour of the

petitioner will be doing mere lip-service to his fundamental right to liberty which the State Government has so grossly violated. Article 21 which

guarantees the right to life and liberty will be denuded of its significant content if the power of this Court were limited to passing orders to release

from illegal detention. One of the telling ways in which the violation of that right can reasonably be prevented and due compliance with the mandate

of Article 21 secured, is to mulct its violators in the payment of monetary compensation. Administrative sclerosis leading to flagrant infringements of

fundamental rights cannot be corrected by any other method open to the judiciary to adopt. The right to compensation is some palliative for the

unlawful acts of instrumentalities which act in the name of public interest and which present for their protection the powers of the State as a shield.

If civilisation is not to perish in this country as it has perished in some others too well known to suffer mention, it is necessary to educate ourselves

into accepting that, respect for the rights of individuals is the true bastion of democracy. Therefore, the State must repair the damage done by its

officers to the petitioner''s rights. It may have recourse against those officers.

The decision of Privy Council in Maharaj v. Attorney-General of Trinidad and Tobago (No. 2) (1978) 2 Ali. ER 670 is useful in this context.

That case related to Section 6 of the Constitution of Trinidad and Tobago 1962, in the chapter pertaining to human rights and fundamental

freedoms, wherein Section 6 provided for an application to the High Court for redress. The question was, whether the provision permitted an

order for monetary compensation. The contention of the Attorney General therein, that an order for payment of compensation did not amount to

the enforcement of the rights that had been contravened, was expressly rejected. It was held, that an order for payment of compensation, when a

right protected had been contravened, is clearly a form of ''redress'' which a person is entitled to claim u/s 6, and may well be ''the only practicable

form of redress''.

We respectfully concur with the view that the Court is not helpless and the wide powers given to this Court by Article 32, which itself is a

fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and

enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that

is the only mode of redress available. The power available to this Court under Article 142 is also an enabling provision in this behalf. The contrary

view would not merely render the Court powerless and the constitutional guarantee a mirage, but may, in certain situations, be an incentive to

extinguish life, if for the extreme contravention the Court is powerless to grant any relief against the State, except by punishment of the wrongdoer

for the resulting offence, and recovery of damages under private law, by the ordinary process. If the guarantee that deprivation of life and personal

liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be

possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to

be more readily available when invoked by the have-nots, who are not possessed of the wherewithal for enforcement of their rights in private law,

even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate.

On basis of the above conclusion, we have now to examine whether to seek the right of redressal under Article 32 of the Constitution, which is

without prejudice to any other action with respect to the same matter which may be lawfully available, extends merely to a declaration that there

has been contravention and infringement of the guaranteed fundamental rights and rest content at that by relegating the party to seek relief through

civil and criminal proceedings or can it go further and grant redress also by the only practicable form of redress--by awarding monetary damages

for the infraction of the right to life.

It is axiomatic that convicts, prisoners or undertrials are not denuded of their fundamental rights under Article 21 and it is only such restrictions,

as are permitted by law, which can be imposed on the enjoyment of the fundamental right by such persons. It is an obligation of the State to ensure

that there is no infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody. The

precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, undertrials or other prisoners in custody, except

according to procedure established by law. There is a great responsibility on the police or prison authorities to ensure that the citizen in its custody

is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his

interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The

wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the

procedure established by law. I agree with Brother Verma, J. that the defence of ""sovereign immunity"" in such cases is not available to the State

and in fairness to Mr. Altaf Ahmed it may be recorded that he raised no such defence either.

Adverting to the grant of relief to the heirs of a victim of custodial death for the infraction or invasion of his rights guaranteed under Article 21

of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of a civil suit to claim damages for the tortious act of the

State as that remedy in private law indeed is available to the aggrieved party. The citizen complaining of the infringement of the indefeasible right

under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under

the public law by the Courts exercising writ jurisdiction. The primary source of the public law proceedings stems from the prerogative writs and the

Courts have, therefore, to evolve ''new tools'' to give relief in public law by moulding it according to the situation with a view to preserve and

protect the Rule of Law. While concluding his first Hamlyn Lecture in 1949 under the title ""Freedom under the Law"" LORD DENNING in his

own style warned:

No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do

things which they ought not to do; and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the

remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and

shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the

winning of freedom in the new age. They must be replaced by new and up-to date machinery, by declarations, injunctions and actions for

negligence.... This is not the task for Parliament... the Courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly

exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in

this country.

The old doctrine of only relegating the aggrieved to the remedies available in civil law limits the role of the Courts too much as protector and

guarantor of the indefeasible rights of the citizens. The Courts have the obligation to satisfy the social aspirations of the citizens because the Courts

and the law are for the people and expected to respond to their aspirations.

The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary

damages, in proceedings under Article 32 by this Court or under Article 226 by the High Courts, for established infringement of the indefeasible

right guaranteed under Article 21 of the Constitution is a remedy available in public law and is based on the strict liability for contravention of the

guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen

that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the Court moulds the relief by

granting ""compensation"" in proceedings under Article 32 or 226 of the Constitution seeking enforcement or protection of fundamental rights, it

docs so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its

public duty to protect the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally

understood in a civil action for damages under the private law but in the broader sense of providing relief by an order of making ''monetary

amends'' under the public law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The

compensation is in the nature of ''exemplary damages'' awarded against the wrongdoer for the breach of its public law duty and is independent of

the rights available to the aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a Court

of competent jurisdiction or/and prosecute the offender under the penal law.

This Court and the High Courts, being the protectors of the civil liberties of the citizen, have not only the power and jurisdiction but also an

obligation to grant relief in exercise of its jurisdiction under Articles 32 and 226 of the Constitution to the victim or the heir of the victim whose

fundamental rights under Article 21 of the Constitution of India are established to have been flagrantly infringed by calling upon the State to repair

the damage done by its officers to the fundamental rights of the citizen, notwithstanding the right of the citizen to the remedy by way of a civil suit or

criminal proceedings. The State, of course has the right to be indemnified by and take such action as may be available to it against the wrongdoer

in accordance with law--through appropriate proceedings. Of course, relief in exercise of the power under Article 32 or 226 would be granted

only once it is established that there has been an infringement of the fundamental rights of the citizen and no other form of appropriate redressal by

the Court in the facts and circumstances of the case, is possible. The decisions of this Court in the line of cases starting with Rudul Sah Vs. State of

Bihar and Another, granted monetary relief to the victims for deprivation of their fundamental rights in proceedings through petitions filed under

Article 32 or 226 of the Constitution of India, notwithstanding the rights available under the civil law to the aggrieved party where the Courts found

that grant of such relief was warranted. It is a sound policy to punish the wrongdoer and it is in that spirit that the Courts have moulded the relief by

granting compensation to the victims in exercise of their writ jurisdiction. In doing so the Courts take into account not only the interest of the

applicant and the respondent but also the interests of the public as a whole with a view to ensure that public bodies or officials do not act unlawfully

and do perform their public duties properly particularly where the fundamental right of a citizen under Article 21 is concerned. Law is in the

process of development and the process necessitates developing separate public law procedures as also public law principles. It may be necessary

to identify the situations to which separate proceedings and principles apply and the Courts have to act firmly but with certain amount of

circumspection and self-restraint, lest proceedings under Article 32 or 226 are misused as a disguised substitute for civil action in private law.

Some of those situations have been identified by this Court in the cases referred to by Brother VERMA, J.

(v) In Nilabati Behera v. State of Orissa (supra). In that case, the deceased was arrested by the police, handcuffed and kept in a police custody.

The next day, his dead-body was found on a railway track. This Court awarded compensation to the mother of the deceased. J.S. VERMA J., (as

he then was) spelt out the following principles:

Award of compensation in a proceeding under Article 32 by this Court or by the High Court under Article 226 of the Constitution is a remedy

available in public law, based on strict liability for contravention of fundamental rights to which the principle of sovereign immunity does not apply,

even though it may be available as a defence in private law in an action based on tort.

Enforcement of the constitutional right and grant of redress embraces award of compensation as part of the legal consequences of its

contravention.

A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the

Constitution, is an acknowledged remedy for enforcement and protection of such rights, and such a claim based on strict liability made by resorting

to a constitutional remedy provided for the enforcement of a fundamental right is ''distinct from, and in addition to, the remedy in private law for

damages for the tort'' resulting from the contravention of the fundamental right. The defence of sovereign immunity being inapplicable, and alien to

the concept of guarantee of fundamental rights, there can be no question of such a defence being available in the constitutional remedy. It is this

principle which justifies award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the

only practicable mode of redress available for the contravention made by the State or its servants in the purported exercise of their powers, and

enforcement of the fundamental right is claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of

the Constitution.

(emphasis supplied)

Dr. A.S. ANAND, J., (as he then was) in his concurring judgment elaborated the principle thus:

... Convicts, prisoners or under-trials are not denuded of their fundamental rights under Article 21 and it is only such restrictions, as are permitted

by law, which can be imposed on the enjoyment of the fundamental rights by such persons. It is an obligation of the State to ensure that there is no

infringement of the indefeasible rights of a citizen to life, except in accordance with law, while the citizen is in its custody.

The public law proceedings serve a different purpose than the private law proceedings. The relief of monetary compensation, as exemplary

damages, in proceedings under Article 32 by the Supreme Court or under Article 226 by the High Courts, for established infringement of the

indefeasible right guaranteed under Article 21 is a remedy available in public law and is based on the strict liability for contravention of the

guaranteed basic and indefeasible rights of the citizen. The purpose of public law is not only to civilize public power but also to assure the citizen

that they live under a legal system which aims to protect their interests and preserve their rights. Therefore, when the Court moulds the relief by

granting ''compensation'' in proceedings under Article 32 or 226 seeking enforcement or protection of fundamental rights, it does so under the

public law by way of penalizing the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect

the fundamental rights of the citizen. The payment of compensation in such cases is not to be understood, as it is generally understood in a civil

action for damages under the private law but in the broader sense of providing relief by an order of making ''monetary amends'' under the public

law for the wrong done due to breach of public duty, of not protecting the fundamental rights of the citizen. The compensation is in the nature of

''exemplary damages'' awarded against the wrongdoer for the breach of its public law duty and is independent of the rights available to the

aggrieved party to claim compensation under the private law in an action based on tort, through a suit instituted in a Court of competent jurisdiction

or/and prosecute the offender under the penal law.

(vi) In M.S. Grewal and Another Vs. Deep Chand Sood and Others, the issue before the Supreme Court was regarding the direction given by the

High Court to pay a sum of Rs. Five lakhs as compensation to the parents of each of the children who died on account of drowning while they

were in the custody of the school authorities. While considering the maintainability of the Writ Petition for payment of compensation, Supreme

Court indicated the march of law on the subject of public law remedy thus:

Currently judicial attitude has taken a shift from the old draconian concept and the traditional jurisprudential system-affectation of the people

has been taken note of rather seriously and the judicial '' concern thus, stands on a footing to provide expeditious relief to an individual when

needed rather than taking recourse to the old conservative doctrine of the civil Court''s obligation to award damages. As a matter of fact the

decision in D.K. Basu has not only dealt with the issue in a manner apposite to the social need of the country but the learned Judge with his usual

felicity of expression firmly established the current trend of ""justice-oriented approach."" Law Courts will lose their efficacy if they cannot possibly

respond to the need of the society-technicalities there might be many but the justice-oriented approach ought not to be thwarted on the basis of

such technicality since technicality cannot and ought not to outweigh the course of justice.

(vii) In Rabindra Nath Ghosal Vs. University of Calcutta and Others, again indicated the obligation of Courts to meet the social aspiration of the

people thus:

The Courts having the obligation to satisfy the social aspiration of the citizens have to apply the tool and grant compensation as damages in

public law proceedings. Consequently when the Court moulds the relief in proceedings under Articles 32 and 226 of the Constitution seeking

enforcement or protection of fundamental rights and grants compensation, it does so under the public law by way of penalising the wrongdoer and

fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizens. But it would

not be correct to assume that every minor infraction of public duty by every public officer would commend the Court to grant compensation in a

petition under Articles 225 and 32 by applying the principle of public law proceeding. The Court in exercise of extraordinary power under Articles

32 and 226 of the Constitution, therefore, would not award damages against, public authorities merely because they have made some order which

turns out to be ultra vires, or there has been some inaction in the performance of the duties, unless there is malice or conscious abuse. Before

exemplary damages can be awarded it must be shown that some fundamental right under Article 21 has been infringed by arbitrary or capricious

action on the part of the public functionaries and that the sufferer was a helpless victim of that act.

(viii) In Chairman, Grid Corporation of Orissa Ltd. (Gridco) and Others Vs. Smt. Sukamani Das and Another, the Supreme Court held that the

fact relating to the proper maintenance of transmission lines and snapping of wire where it is beyond the control of the Grid Corporation or due to

unauthorised intervention of third parties or as to whether the deceased had not died in the manner stated in the Writ Petition requires factual

appreciation and that cannot be settled under Article 226 of the Constitution of India on the basis of affidavits only. In that case the Grid

Corporation of Orissa against which the claim of compensation for the death caused to the deceased due to its negligence had been raised. The

Grid Corporation has denied the accident and also contended that it was due to the intervention of the third parties, the electric wire got snapped

resulting in electrocution. While the High Court has granted compensation on the basis that it was the duty of Grid Corporation of Orissa to

maintain electric lines in a proper manner and the non-maintenance would amount to negligence, the Supreme Court, while reversing the said

judgment held that it was the specific case of the Grid Corporation of Orissa in their counter affidavit that because of the thunderbolt and lightning

one of the conductors of the 12 W LT line had snapped even though proper guarding was provided. It was also the specific case of the Grid

Corporation of Orissa that the deceased died due to the lightning and not because of his contact with snapped live wire. It was on the basis of the

factual situation, the Apex Court has held that the High Court ought not to have granted compensation while exercising jurisdiction under Article

226 of the Constitution of India. At paragraph 6, the Supreme Court has held as under:

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 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

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. 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 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 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

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 the writ petitioners to approach the civil Court as it was done in O. J.C. No. 5229 of 1995.

(ix) In Nirmala Thirunavukkarasu v. Tamil Nadu Electricity Board, (1997) LW 42, this Court after considering the maxim ''res ipsa loquitur'' held

that the usual plea of ''Act of God'' or mechanical failure cannot be considered as a defence while deciding a case for compensation arising out of

electrocution. In cases of negligence, relating to electrocution, it was held that in order to render justice to the parties, the general rules as to

damages to be construed liberally and not with rigidity. It was also held that the Courts should take into consideration not allowing a calamity to

turn into a windfall and the amount of compensation should be decided only with reference to pecuniary loss.

Issue No. 4: As the deceased has died as a result of the negligence of the defendants, they are bound to pay compensation to the plaintiffs for the

loss suffered by them. Now to the quantum of compensation. The amount of money as reparation for the results of tortious conduct for which the

law holds the wrong doer responsible is determined by applying as far as possible the general principle of restitution integrum. In many cases,

however, a perfect compensation is hardly possible and would even be unjust. The Court in doing justice between the parties considers the general

rules as to damages with some liberality and does not apply them rigidly, and, thus, the damages are in difficult case normally limited to a sum

which can in the circumstances be considered as a reasonable amount of compensation. Courts should not also in such cases allow a calamity to

turn into a windfall. In ascertaining the pecuniary loss caused to the dependants, it must be borne in mind that these damages are not to be given as

solatium for the loss of a son or daughter, wife or husband, father or mother, not on sympathetic or sentimental consideration, but only with

reference to pecuniary loss.

(x) In D. Matsa Gandhi Vs. Tamil Nadu Slum Clearance Board, this Court held that in cases where there is denial of tortious liability the writ

petitions cannot be maintained. However, when negligence per se is visible the same has to be construed as violation of right to life and liberty

guaranteed under Article 21 of the Constitution of India and the High Court has jurisdiction to grant compensation under Article 226 of the

Constitution of India. At paragraph 10, this Court has held as follows:

In the course of argument it is brought to my notice the recent decision of the Hon''ble Supreme Court Nath Bros. Exim International Ltd. Vs.

Best Roadways Ltd., and power of this Court under Article 226. No doubt, the Hon''ble Supreme Court has not accepted the action of the High

Court in granting compensation to the family of the victim who died by electrocution in a writ petition filed under Article 226. It is equally true that

when disputed questions of fact arises and if there is clear denial of tortious liability remedy under Article 226 of the Constitution may not be

proper. However, in the very same judgment their Lordships after saying so, in paragraph 10 have observed.

.... However it cannot be understood as laying a law that in every case of tortious liability recourse must be had to a suit. When there is negligence

on the face of it and infringement of Article 21 is there it cannot be said that there will be any bar to proceed under Article 226 of the Constitution.

(emphasis supplied)

In such circumstance and in view of the factual conclusion as referred to above, I am of the view that the petitioner is entitled reasonable

compensation from the respondent for the death of her daughter and in the interest of justice this Court would be justified in considering the relief

prayed by the petitioner.

After considering the above decision and also of the objections raised by the Tamil Nadu Electricity Board as regards the maintainability of the writ

petition and also of the fact as to whether the petitioner therein should be driven to the Civil Court, a learned single Judge of this Court in an

unreported decision in R. Saroja v. The Chairman, Tamil Nadu Electricity Board, Chennai, and two others (W.P. No. 6437 of 1998 dated

16.4.2008) on the facts of the case held that,

The factum of electrocution and the death of the petitioner''s husband is not denied either by the 1st respondent or by the 2nd respondent, I am of

the considered view that it is not proper at this point of time, especially, when the accident took place in the year 1997 and the writ petition was

filed in the year 1998 and the same has been pending for the past 10 years to drive the parties to Civil Court. Such course will only cause further

injury to the family of the deceased.

So saying, this Court has awarded compensation.

(xi) In Susanta Samanta and Others Vs. WBSEB and Others death was due to electrocution. A writ petition was filed for compensation. Public

law remedy was opposed. Negligence was also attributed against the deceased. On the objections to the maintainability of the writ petition, it was

contended as follows:

Mr. Sumit Panja learned Lawyer appearing for the respondents contends that there is no dispute that the Court has ample power under Article

226 in the public law field to award compensation on the established and admitted case of negligence on the part of the Respondent No. 1. In this

case, it is totally incorrect to allege that the said deceased died owing to negligence of the Respondent No. 1. The Criminal case was dropped and

this shows there was no fault not to speak of negligence, and it was mere an accident which might have occurred due to his own fault. In view of

this serious disputed question of fact this Court cannot award any compensation unlike Apex Court under Article 142. What the Apex Court can

do under Article 142 cannot be done by the High Court even overstretching power under Article 226 of the Constitution of India. He submits that

the decision cited by the learned Lawyer for the petitioner of the Supreme Court is not a binding precedent and it was rendered on taking special

facts and circumstances into consideration and the Apex Court had explained expressly not to treat this judgment as a precedent. He submits the

Supreme Court explained in fairly recent decision under what circumstances the High Court can grant compensation in the public law field under

Article 226 of the Constitution of India. In support of his submission he has relied on the decision of the Supreme Court in Kandankutty and

Others Vs. State of Kerala and Others, J and K. Public Service Commission, etc. Vs. Dr. Narinder Mohan and others etc. etc., and AIR 2000

SC 3638

After considering Tamil Nadu Electricity Board v. Sumathi (supra), a learned single Judge of the Calcutta High Court at paragraph 10 held as

follows:

Therefore, it is clear from the aforesaid decision of the Supreme Court that it is not a bar to grant relief in the public law field in exercise of

jurisdiction under Article 226 in case of the deprivation of life due to negligence on the part of the State, which includes statutory authority. The

only decision cited by the learned Lawyer for the petitioners cannot be accepted to be precedent in view of the expressed pronouncement of the

Supreme Court itself in the penultimate sentence of the last paragraph.

(xii) In Chairman, Tamil Nadu Electricity Board, Madras and the Superintending Engineer, Tamil Nadu Electricity Board, Thiruvannamalai v. Ms.

Lalitha and two Others, (A.S. No. 20 of 1996, dated 23.11.2007), the Legal Representatives of one V. Shanmugam, who died on 27.9.1989,

claimed compensation. According to them, while he set his feet on a severed live electric wire that had fallen on the ground in an agricultural field,

belonging to one Munuswamy Naidu in S.U. Vanam, Ami Taluk, he died of electrocution instantaneously. It was reported to the police, FIR was

registered and postmortem was conducted. A suit was filed for compensation. It was defended that there was a heavy rain and wind, which started

in mid night on 26.9.1989 and continued till the next day morning. As there was sudden rain and speedy wind, without any prior symptom, the

department could not take steps to switch off the current. The service connection in S.C. No. 33 was not under use and the concerned consumer

had not intimated to disconnect the electric line, otherwise, the appellants could have taken immediate steps to disconnect the line and restore its

original position. After considering Rule 91 of the Electricity Rules and on the facts and evidence, this Court at paragraphs 14 to 16 held as

follows:

It is clear that Rule 91 of the Indian Electricity Rules, 1956 stipulates that every overhead electric line erected over any part of a street or other

public place or any factory or mine or any consumer''s premises shall be protected with a device approved by the Inspector for rendering the line

electrically harmless in case it breaks. It is seen that the electrocution had occurred only in the open place of the village and a poor man and his

dependents were made victims.

Considering the heavy rain and storm and also the non usage of the electric service for a long time by the consumer, as admitted by the

appellants in the written statement the same should have been disconnected or at least the particular service connection could have been switched

off, on account of the heavy rain and storm. On the facts and circumstances of the case and also the evidence available on record, I am of the view

that the principle of ""res ipsa loquitur "" is applicable to infer that the electrocution and the instantaneous death of V. Shanmugam, husband of the

first respondent and the father of the minor respondents 2 and 3 had occurred only due to the negligence of the Electricity Board.

It is seen that the mandatory safety measures stipulated under Rule 91 of the Indian Electricity Rules, 1956 were not complied with by the

concerned officials of the appellants, which had caused the death of the husband of the first respondent. The plea of the appellants that it was an

act of God or nature cannot be taken as ay legal defence.

(xiii) In Lilly Stanislaus Vs. The Chairman, T.N.E.B., The Chief Engineer, T.N.E.B. and The Assistant Engineer, T.N.E.B., the petitioner''s

husband went out to procure milk from the nearby Aavin Milk Booth. It is the case of the petitioner that earlier, there was heavy rain and when her

husband was passing near a tea shop, he had to step on the live wire, snapped from electrical post No. 146 and was thrown out to electrocution.

A boy who tried to pull him out, also was electrocuted. Two hours later, electric supply was disconnected. In the meantime, the petitioner''s

husband died. A complaint was lodged to the Sub Inspector of Police, G-1, Madhavaram Police Station and an FIR was registered in Crime No.

559 of 1996. In the postmortem conducted on 17.6.1996, it was found that there was blackening and charring of the skin. The cause of death was

due to electrocution. The petitioner therein contended that due to the negligence, carelessness and failure to perform duty on the part of the board

officials in maintaining electric posts properly, the accident had occurred resulting in the death of her husband. It was also contended that there was

negligence in not maintaining the electric poles with automatic fuse. The board disputed the contentions and inter alia contended that the poles and

the wires were in good condition. It was also contended that the accident took place due to heavy rain and that it is an Act of God, beyond the

control of the electricity board and that therefore there was no negligence on the part of the respondent board. On behalf of the petitioner, reliance

was also placed on Madhya Pradesh Electricity Board Vs. Shail Kumari and Others, Smt. Kumari Vs. State of Tamil Nadu and others, M.C.

Mehta v. Union of India (supra), Tamil Nadu Electricity Board v. Sumathi and Others (supra) and an unreported decision in P. Kumaraesan v.

Tamil Nadu Electricity Board and Others, W.P. No. 10310 of 1999 dated 31.7.2006 and Parezade Mama v. State of Tamil Nadu, rep. by

Secretary to Government, Electricity Department and Others W.P. No. 5217 of 1999 dated 5.1.2007, and it was contended that the High Court

or the Supreme Court in exercising the powers under Articles 32 and 226 of the Constitution, can award compensation in the case of infringement

of a right. Though the Electricity Board contended that tartitious liability cannot be fixed on the electricity board and a writ petition cannot be

entertained, as there was dispute regarding negligence of the board and that the accident was stated to be an Act of God, beyond the control of

the electricity board, The Hon''ble Mr. Justice JYOTHIMANI, upon consideration of the medical evidence, which proved that the death was due

to electrocution, at paragraphs 11 to 14, held as follows:

It is also not in much dispute that the petitioner''s husband was the only bread-winner of the family and the petitioner has three children out of

whom one daughter got married and there is one unmarried daughter and an un-married son. It was held by the Hon''ble Supreme Court in M.P.

Electricity Board v. Shail Kumari and Others (supra) that the liability of the Electricity Board under Law of Torts to compensate for the injuries

suffered cannot be denied on the basis that the Electricity Board has taken all safety measures since the liability of the Department is strict liability,

relying upon the renowned and celebrated case on the issue, viz., Rylands v. Fletcher (1868) 3 HL 330: 1861-73 All ER Rep. 1. The Supreme

Court has held as follows:

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.

The doctrine of strict liability has its origin in English common law when it was propounded in the celebrated case of Rylands v. Fletcher (supra).

BLACKBURN, J., the author of the said rule had observed thus in the said decision: (All ER p. 7E-F)

(The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if

it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of

its escape.

Therefore, it is too late for the respondent Board to raise the plea as if the respondent Board is not negligent and they are not liable.

In Tamil Nadu Electricity Board v. Sumathi and Others (supra), even though the Hon''ble Supreme Court has held that in cases of disputed

questions of fact in existence, on the face of unequivocal denial of tortious liability, seeking remedy under Article 226 may not be proper, it was

held that the same cannot be understood that in every case of tortious liability the affected party should be directed to resort to filing of suit, holding

that when there is negligence on the face of it, the same to be treated under Article 21 of the Constitution of India and in such circumstances, to

enforce the basic human rights, Article 226 can be pressed into service. On the facts of the said case, the Supreme Court has come to the

conclusion that a disputed questions of fact was involved, but held in the circumstances of the case that the appellant Electricity Board shall not

recover the amount which has been paid to the respondents/victims. In that context, the Supreme Court has held as under:

In view of the clear proposition of law laid by this Court in Chairman, Grid Corporation of Orissa Ltd. (Gridco) and Others Vs. Smt.

Sukamani Das and Another, when a disputed question of fact arises and there is clear denial of any tortious liability remedy under Article 226 of

the Constitution may not be proper. However, it cannot be understood as laying a law that in every case of tortious liability recourse must be had

to a suit. When there is negligence on the face of it and infringement of Article 21 is there it cannot be said that there will be any bar to proceed

under Article 226 of the Constitution. Right of life is one of the basic human rights guaranteed under Article 21 of the Constitution. In U.P. State

Cooperative Land Development Bank Ltd. Vs. Chandra Bhan Dubey and Others, where one of us (WADHWA, J.) was a party, this Court after

examining various decisions of the Courts on the power of the High Court under Article 226 of the Constitution observed that the language of

Article 226 of the Constitution does not admit of any limitation on the powers of the High Court for the exercise of jurisdiction thereunder though

by various decisions of this Court with varying and divergent views, it has been held that jurisdiction under Article 226 can be exercised only when

a body or authority, the decision of which is complained, was exercising its power in the discharge of public duty and that writ is a public law

remedy. This Court then observed:

(It may not be necessary to examine any further the question if Article 226 makes a divide between public law and private law. Prima facie from

the language of Article 226, there does not appear to exist such a divide. To understand the explicit language of the article, it is not necessary for us

to rely on the decision of English Courts as rightly cautioned by the earlier Benches of this Court. It does appear to us that Article 226 while

empowering the High Court for issue of orders or directions to any authority or person, does not make any such difference between public

functions and private functions. It is not necessary for us in this case to go into this question as to what is the nature, scope and amplitude of the

writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are certainly founded on the English system of jurisprudence.

Article 226 of the Constitution also speaks of directions and orders which can be issued to any person or authority including, in appropriate cases,

any Government. Under clause (1) of Article 367, unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any

adaptations and modifications that may be made therein under Article 372, apply for the interpretation of the Constitution as it applies for the

interpretation of an Act of the legislature of the Dominion of India. ""Person"" u/s 2(42) of the General Clauses Act shall include any company, or

association or body of individuals, whether incorporated or not. The Constitution is not a statute. It is a fountainhead of all the statutes. When the

language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words

which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by

the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals, whether incorporated or not, or

even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon

him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this Court has laid down certain

guidelines and self-imposed limitations have been put there subject to which the High Courts would exercise jurisdiction, but those guidelines

cannot be mandatory in all circumstances. The High Court does not interfere when an equally efficacious alternative remedy is available or when

there is an established procedure to remedy a wrong or enforce a right. A party may not be allowed to bypass the normal channel of civil and

criminal litigation. The High Court does not act like a proverbial ""bull in a china shop"" in the exercise of its jurisdiction under Article 226.

(emphasis supplied)

In yet another case in Smt. Kumari v. State of Tamil Nadu and Others (supra), when a six year old boy of the appellant died falling in a 10 feet

deep uncovered sewerage tank in the City of Madras and the writ petition filed by the appellant was dismissed by the High Court, while setting

aside the said judgment, the Supreme Court has directed the State Government to pay compensation of Rs. 50,000/- with interest to the appellant,

however with a direction that the State Government can recover the said amount from appropriate authority, since the authority who is liable for

negligence was not able to be determined. The operative portion of the above cited judgment is as follows:

In the facts and circumstances of this case we set aside the High Court judgment and direct that respondent 1, the State of Tamil Nadu shall pay

to the appellant a sum of Rs. 50,000 (Rupees fifty thousand) with interest at 12 per cent per annum from 1.1.1990 till the date of payment. The

amount shall be paid within six weeks from today. It will be open to the State of Tamil Nadu to take appropriate proceedings to claim the said

amount or any part thereof from any of the respondents or any other authority which might be responsible for keeping the sewerage tank open.

The claim, if made, will be decided in accordance with law. The appeal is allowed in the above terms. There will be no order as to costs.

A Division Bench of this Court (P.K. MISRA and S. RAJESWARAN, JJ) in W.P. No. 5217 of 1999 Parezade Mama v. State of Tamil

Nadu rep. by Secretary to Government, Electricity Department and Others while dealing with the case of death of the mother and father of the

children, who died when the children playing in a lodge were to touch the running over head high tension line approximately 3 feet from the balcony

of the lodge and the parents while attempted to rescue the children, by relying upon the judgment of the Supreme Court in Nath Bros. Exim

International Ltd., v. Best Road-ways Limited (supra) held that on the face of the conduct of the public authority, there is infringement of Article

21, and there is no bar for the High Court to proceed under Article 226 of the Constitution of India by granting necessary damages, as follows:

It is true that writ petitions for claiming damages cannot be resorted when there is a clear denial of tortious liability. At the same time when the

negligence is per se visible and it infringes Article 21, relief claiming damages could be granted under Article 226 of the Constitution of India.

In Nath Bros. Exim International Ltd. v. Best Roadways Ltd. (supra), the Hon''ble Supreme Court no doubt held that the writ petition filed

under Article 226 of the Constitution of India, High Court cannot grant compensation to the family of victim who died by electrocution. However,

in the very same judgment the Hon''ble Supreme Court held that when there is negligence on the face of it and infringement of Article 21 is there, it

cannot be said there will be any bar to proceed under Article 226 of the Constitution of India.

Ultimately, leaving it to the appropriate forum to decide the final compensation, an interim compensation of Rs. 2 lakhs was awarded in the

following terms.

Therefore, in our opinion negligence on the part of the Electricity Board, municipality and the lodge is per se visible and this negligence

definitely infringes Article 21 of the Constitution of India and therefore we are of the considered opinion that interim compensation can be awarded

in this writ proceedings, leaving the final quantum to be decided by an appropriate forum.

Considering the nature of the extensive injuries suffered by the minor children, the loss of their parents and the exorbitant medical expenses, to

rehabilitate the children we award a sum of Rs. 6 lakhs in total to be paid equally by the municipality-4th respondent, Tamil Nadu Electricity Board

(second respondent) and the lodge-6th respondent. As such, each of them shall pay a sum of Rs. 2 lakhs as interim compensation to respondents

9 and 10 within a period of three months from the date of receipt of a copy of this order.

(xiv) In Smt. S.K. Shangring Lamkang and Another v. State of Manipur, AIR 2008 Gau 46, a writ petition was filed by the widows for the death

of their respective husbands, who died due to falling of a high tension electric line from its pole while they were proceeding in a Scooter. According

to the petitioners therein, the electric line was broken and detached from its pole as it was very old and it was not also repaired, despite request

made by one R.D. Kowar Anal, Chairman, Chief Area Association of Sulam Chandel on 18.4.2002 to Respondent No. 3, for repairing the

electric post, as well as about the weakness of the electric wire between Khongjon village and Bongku village. The, case of the petitioners was to

the effect that, had the respondents taken appropriate steps in respect of the electric post and wire, the said falling of the wire would not have

taken place leading to the electrocution, resulting in death of two persons. The respondents contended that the fall of the electric wire was due to

the lightning stroke resulting breaking of a tension disc Insulator and not due to negligence of any of the respondents. Further, according to the

respondents, no one complained to Respondent No. 3, for repairing the electric post and also about the weakness of electric wiring at or near the

place of occurrence. It was the case of the respondents that since there are disputed questions of fact in the case in respect of the question of

negligence, it will not be proper on the part of the Court to award any compensation in exercise of its power under Article 226 of the Constitution

of India. Reliance was placed on Chairman, Grid Corporation of Orissa Ltd. v. Sukamani Das (supra). After considering the subsequent decision

of the Supreme Court in Parvati Devi v. Commissioner of Police, Delhi, 2000 (3) SCC 754 M.P. Electricity Board v. Shail Kumari (supra), a

Division Bench of the Gauhati High Court, at paragraphs 8 to 10, held as follows:

After noting about following the rule of strict liability in India in many earlier decisions the Hon''ble Supreme Court applied the said rule of strict

liability and dismissed the appeal. The Board made an attempt to rely on the exception to the said rule of strict liability being ""an act of stranger"",

the Hon''ble Supreme Court held that the said exception was not available to the Board. The Hon''ble Supreme Court referred to the decision of

Privy Council in Quebec Rly. Light, Heat, Power Co. Ltd. v. Vandry (1920) SC 662 wherein the Privy Council held that the Co. supplying

electricity is liable for the damages without proof that they had been negligent. Even the defence that the cables were disrupted on account of

violent wind and high tension current found its way through the low tension cable into the premises of the respondent was held to be not a

justifiable defence. In the opinion of the Hon''ble Supreme Court, merely because the illegal act could be attributed to a stranger is not enough to

absolved the liability of the Board regarding the live wire lying on the road. Though the above said case before the Hon''ble Supreme Court arose

out of a civil suit, the law laid down therein regarding strict liability of the State Electricity Board in case of live wire getting snapped and falling on

the public road is relevant in a writ proceeding also. I do not find any appreciable reason as to why the said law should not be applicable in the writ

proceeding.

In my considered opinion, the possibility of falling of high tension electric line from its pole as a result of storm or lightning should have been

reasonably anticipated by the respondents and as such appropriate steps should have been taken by them so that no harm was caused when

someone touched the fallen electric line. The risk involved in the management of supply of electricity was very great and a high degree care was

expected of the respondents Inasmuch as they ought to have appreciated the possibility of falling of the electric line from its pole as a result of

storm or lightning. Apart from the said consideration, since the management of supply of electricity is a hazardous or inherently dangerous activity,

when harm is caused to any one on account of any cause in the operation of the activity, the respondent, who are responsible in respect of the said

activity, shall be strictly and absolutely liable to compensate to those who are harmed in the course of, operation of the said activity. Such liability is

not to be subject to any exception to the principle of strict liability under the rule in Ryland v. Fletcher. Accordingly, the respondents are liable to

pay compensation in respect of the death of the said two persons resulting from electrocution.

It is to be noted that the question of strict liability was never considered in Chairman, Grid Corporation of Orissa Ltd. v. Sukamani Das (supra)

and SDO, Grid Corporation of Orissa Ltd. v. Timudu Oram (supra).

(xv) In E. Joseph v. Tamil Nadu Electricity Board, rep. by its Chairman, Mount Road, Chennai, W.P. No. 4992 of 2001 dated 30.10.2008, the

plaintiffs father died due to electrocution, when he came in contact with a live wire, which was lying on the road. The request of the petitioner for

compensation was refused. Hence the writ petition. The Board denied negligence and contended that death was due to an accident which

happened due to heavy rain and wind and not due to the negligence of the Board. An objection was also raised regarding the maintainability of the

writ petition. After considering the objections, and decision of this Court in Lilly Stanislaus v. The Chairman, Tamil Nadu Electricity Board,

Chennai and three Others (supra), at paragraphs 15 and 16, this Court held as follows:

Once it is accepted by the respondent electricity Board that the death was caused as a consequence of the snapped electricity line belonging to

the respondent Electricity Board, there would be an obligation cast on the respondent Board to pay atleast a reasonable compensation to the legal

heirs of the deceased person. Raising of technical pleas to avoid payment of such compensation is not to be appreciated. Only when there are

seriously disputed facts, the party making the claim for compensation may be asked to go before the Civil Courts to seek his remedies. Such a

situation does not prevail in the present case, as the basic facts are not in dispute.

In such circumstances, in view of the averments made on behalf of the petitioner, as well as on behalf of the respondent Board and in view of

the decision cited above, this Court is of the view that the respondent Electricity Board, is liable to compensate the petitioner and the other legal

heirs of the deceased person. Since it has been stated that both the sisters of the petitioner had submitted a consent letter to the respondent Board

stating that they have no objection for the compensation amount to be paid to the petitioner, the respondent Electricity Board is directed to pay an

amount of Rs. 75,000/- to the petitioner as compensation, within a period of twelve weeks from the date of receipt of a copy of this order.

Accordingly, the proceedings of the second respondent is set aside and the respondent Electricity Board is directed to pay the compensation to the

petitioner within the specified period.

(xvi) In K. Sundari v. State of Tamil Nadu, rep. by its Secretary to Government, Department of Electricity, Chennai, W.P. No. 19668 of 1999,

dated 15.4.2009, the case of the petitioner was that her husband was working as a civil contractor. While he was returning to his house, on the

way, he came in contact with the live wire hanging from above snapped and fell on the street, and died on the spot, due to electrocution. The

further case of the petitioner was that the second respondent department gave a police complaint and that the body of her husband was also

subjected to postmortem examination. The opinion of the Doctor as per the postmortem certificate was that the deceased died due to

electrocution. It was submitted that the live wire which fell on the street wherein, the occurrence was said to have taken place was under the care

and maintenance of the department. She claimed compensation. No reply was given. Hence the writ petition. Reliance was placed on the Rule 91

of the Indian Electricity Rules, 1956 (hereinafter referred to as ""the Rules"") to the effect that it is the duty of the Electricity Board Officials to

protect the every overhead line erected over any part of a street or other public place with a device approved by the Inspector for rendering the

electricity line harmless in case it breaks. It was also pointed out that there was absolutely no factual dispute in respect of the manner of

occurrence, in which the husband of the petitioner died due to electrocution.

Per contra, the Electricity Board contended that Writ Petition itself is not maintainable on the ground that it was a case involving disputed questions

of fact. It was further contended that it is the burden of the petitioner to prove that the deceased died due to the negligence on the part of the

second respondent officials. It was also contended that it was an Act of God and the Board also relied on a decision in SDO, GRID Corporation

of Orissa Limited and Others v. Timudu Oram (supra). Rule 91 of the rules considered by this Court is extracted hereunder:

Safety and protective devices: (1) Every overhead line (not being suspended from a dead bearer wire not being covered with insulating

material and not being a trolley wire) erected over any part of a street or other public place or in any factory or mine or on any consumer''s

premises shall be protected with device approved by the Inspector for rendering the line electrically harmless in case it breaks.

(emphasis supplied)

This Court held as follows:

A reading of the above said provision makes it crystal clear that it is the statutory obligation, duty and responsibility of the second respondent

officials to provide safety and protective devices for rendering the electricity live wires line harmless in case it breaks. The Electricity Board

Officials should take care and caution in respect of laying, installing and maintaining the over head lines as the said electric wires were carrying

heavy load and as such it is highly dangerous. The Electricity Board officials should strictly follow Rule 91 of the Rules by taking safety measures

by providing with a device approved by the Electrical Inspector for rendering the line electrically harmless in case it breaks.

(xvii) In Rani v. The State of Tamil Nadu, represented by its Secretary, Department of Electricity, Chennai, and seven Others, W.P. (MD) No.

7415 of 2007, dated 3.8.2010, the petitioner therein claimed compensation of Rs. 5,00,000/- with interest@ 12% per annum for the period

between 21.8.2001 to till the date of payment for the accidental death of the 1st petitioner''s husband who died due to electrocution. A criminal

case was registered. Opposing the relief sought for in the writ petition, the respondents 2 to 4 therein, contended that on 21.8.2001, a lorry with a

heavy load and abnormal height has dragged the service connection of D. 26 Palukal fed from Manoorkonam SS about 600 meters from the spot

of accident and due to the abovesaid incident, the service was damaged and cut. In view of the same, the electric wire fell on the telephone wire at

one end and got energised. It was the case of the claimants therein, that the deceased came in contact with a telephone wire which was in the air,

much less than a man''s height from the ground, got electrocuted and died. Though the Board objected to the relief sought for in the writ petition on

the ground that they were not negligent and hence not liable to pay compensation, this Court after considering C. Thekkamalai Vs. State of Tamil

Nadu, Lakshmana Naidu (deceased) and Others Vs. The State of Tamil Nadu, Tamil Nadu Electricity Board Vs. Sumathi and Others, rejected

the objections of the board, as regards the maintainability of the writ petition and awarded compensation by applying multiplier method.

(xviii) In Karuppaye Ammal and Ms. Guruvammal v. The Chairman, Tamil Nadu Electricity Board, Anna Salai, Chennai, and two Others, W.P.

(MD). Nos. 9555 and 9557 of 2007, dated 29.6.2011), widows filed separate writ petitions for the death of their husbands due to electrocution.

One Krishnasamy was the husband of the petitioner in W.P. (MD). No. 9555 of 2007 and Velusamy was the husband of the petitioner in W.P.

(MD). No. 9557 of 2007. Krishnasamy owned lands in S. Nos. 152/1B and 1A and he had grown lemon trees and cotton. To irrigate those lands

using motor pumps, he went to the agricultural field along with his neighbour Velusamy. While they were proceeding towards the aforesaid lands,

Krishnasamy came in contact with the live wire in S. No. 152/3. The land in S. No. 152/3 belonged to one Pandia Naicker, whose land was very

near to Krishnasamy''s land. He died due to electrocution as he came in contact with the snapped live wire. When, Velusamy attempted to rescue

Krishnasamy, he also got electrocuted. Both of them died. A First Information Report on 1.6.1998 was lodged on the file of Vasudevanallur

Police Station and that the same was registered in Cr. No. 233 of 1998 u/s 174 Cr.P.C. Each of the petitioners was paid a sum of Rs. 25,000/-

towards ex gratia by the TNEB. Thereafter, representations were made for compensation. They filed writ petitions. Preliminary objection was

raised regarding maintainability. Limitation was also a ground for opposing the prayer for compensation. It was stated that there was no negligence

on the part of the electricity board and therefore, the petitioners therein were not entitled to claim compensation for the death of their husbands. On

the aspect of maintainability, at paragraph 7, this Court held as follows:

7.........There is no limitation as such provided for invoking Article 226 of the Constitution of India and the parties should be vigilant to approach

the Court claiming relief under Article 226 of the Constitution of India. But, the Court cannot shut eyes and reject the applications at the threshold

without taking notice of the facts of each case. When the records of the respondents itself disclose that the snapping of live wire was due to the

ageing of conductors, the claim for compensation could not be rejected without examining the same on merits. Furthermore, the respondent being

State, under Article 12 of the Constitution of India, is duty bound to answer the claim on merits and they could not take the technical plea more

particularly in these type of cases. It is not the case where the respondent board is fighting against the persons who have indulged in theft of

electrical energy. On the other hand, victims are the persons who came in contact with the live wire and lost their precious life..............

On the basis of the evidence on record and arriving at a categorical finding that the death had occurred due to the negligence of the Board, this

Court computed the compensation.

(xix) In a recent decision in Ponnu Sankan @ Kumar Vs. The State of Tamil Nadu and The Tamil Nadu Electricity Board, a learned Judge had an

occasion to consider the case of death due to electrocution and while dealing with the aspect of safety and protective devices to be made by the

Tamil Nadu Electricity Board, at paragraphs 13 to 15, held as follows:

Section 68 of the Electricity Act, 2003 contains provisions relating to overhead lines. The said provision reads thus:

Overhead lines.-(1) An overhead line shall, with prior approval of the Appropriate Government, be installed or kept installed above ground in

accordance with the provisions of sub-section (2).

(2) The provisions contained in sub-section (1) shall not apply-

(a) in relation to an electric line which has a nominal voltage not exceeding 11 kilovolts and is used or intended to be used for supplying to a single

consumer;

(b) in relation to so much of an electric line as is or will be within premises in the occupation or control of the person responsible for its installation;

or

(c) in such other cases, as may be prescribed.

(3) The Appropriate Government shall, while granting approval under sub-section (1), impose such conditions (including conditions as to the

ownership and operation of the line) as appear to it to be necessary.

(4) The Appropriate Government may vary or revoke the approval at any time after the end of such period as may be stipulated in the approval

granted by it.

(5) Where any tree standing or lying near an overhead line or where any structure or other object which has been placed or has fallen near an

overhead line subsequent to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the conveyance or

transmission of electricity or the accessibility of any works, an Executive Magistrate or authority specified by the Appropriate Government may, on

the application of the licensee, cause the tree, structure or object to be removed or otherwise dealt with as he or it thinks fit.

(6) When disposing of an application under sub-section (5), an Executive Magistrate or authority specified under that sub-section shall, in the case

of any tree in existence before the placing of the overhead line, award to the person interested in the tree such compensation as he thinks

reasonable, and such person may recover the same from the licensee.

Rule 91 of the Indian Electricity Rules, 1956 also provides for safety and protective devices. The said provision reads thus:

safety and protective devices.-(1) Every overhead line; (not being suspended from a dead bearer wire and not being covered with insulating

material and not being a trolley-wire) erected over any part of street or other public place or in any factory or mine or on any consumers'' premises

shall be protected with a device approved by the Inspector for rendering the line electrically harmless in case it breaks.

(2) An Inspector may by notice in writing require the owner of any such overhead line wherever it may be erected to protect it in the manner

specified in sub-rule (1).

Section 68 gives authority to a District Magistrate to remove the trees, structures or objects placed near an overhead line. The Board should

be vigilant in the matter of maintenance of electric lines and they cannot be heard to say that without their permission, political parties have erected

flex board and the incident has happened only because of the contact of such flex boards with the electric line.

The objection to the maintainability of the writ petition, is rejected.

The next question to be considered is the quantum of compensation. There is no specific method under the Electricity Act or Rules for

assessment of the compensation. Courts have consistently held that the structured formula under the Motor Vehicles Act, 1988 and the principles

of law in awarding the compensation to the victims of the accidents in claim cases, can always be applied on the principles of just compensation.

According to the petitioner, at the time of accident her husband was aged 29 years. Perusal of the post-mortem report shows that the age of the

deceased has been mentioned as 29. In the absence of any birth extract or certificate, determination of age, on the basis of Post-Mortem

Certificate, cannot be said to be faulty, in view of the judgment in Fakeerappa and Another Vs. Karnataka Cement Pipe Factory and Others,

This Court also in the The Managing Director, Tamil Nadu State Transport Corporation Vs. Mary, Inikko and Maria Kensy, has held that age

mentioned in the post-mortem certificate can be taken into consideration for the purpose of computing of compensation.

According to the petitioner, her husband as fisherman earned Rs. 7,000/- per month. To maintain his wife and a child in the year 2006 and to

meet out the expenditures towards food, shelter, clothing, health and such other incidental expenses, and also considering the prevailing rate of

inflation, at that point of time, even a labourer, would have required a sum of Rs. 4,500/- (Rupees Four Thousand and Five Hundred only) per

month, approximately. The petitioner has lost her husband and a child has lost the love and affection of the father. All the principles applicable to

the case of Motor Vehicle Accidents, can also equally be applied to the case of electrocution. Certainly, for the negligence in not maintaining the

overhead lines by the respondents, the Tamil Nadu Electricity Board, being the Master, is vicariously responsible.

Considering the factors stated supra, this Court is inclined to fix the monthly income of the deceased husband of the petitioner at Rs. 4,500/-

(Rupees Four Thousand and Five Hundred only) per month and after deducting 1/3rd amount towards his personal expenses, the monthly

contribution of the deceased husband comes to Rs. 3,000/- (Rupees Three Thousand only). As per the decision of the Honourable Supreme

Court in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, the multiplier applicable to the deceased husband of the

petitioner is ''17'' and the total compensation works out to a sum of Rs. 6,12,000/- (Rupees Six Lakhs and Twelve Thousand only) thus:

Though the petitioner has restricted her claim to a sum of Rs. 5,00,000/-, it is well known that the Courts have got powers to enhance the

compensation. Useful reference can be made to few decisions on this aspect:

(a) In National Insurance Company Ltd. v. Rani and Others (2004) 4 LW 151, the Division Bench has summed up the legal position, as follows:

(i) The power conferred under Order 41 Rule- 33 to the Appellate Court is a very wide power to do complete justice, but however, discretion to

use such power is to be exercised judiciously with care and caution and only in rare cases.

(ii) The nature of power conferred under Order 41 Rule 33 has been explained by the Supreme Court in the rulings in Banarsi and Others Vs. Ram

Phal, and The State of Punjab and Others Vs. Bakshish Singh,

The provision confers power of widest amplitude on the appellate Court so as to do complete justice between the parties. The power is subject to

atleast three limitations.

Firstly, the power cannot be exercised to the prejudice or disadvantage or a person not a party before the Court. Secondly, a claim given up or

lost cannot be revived. Thirdly, such part of the decree which essentially ought to have been appealed against or objected to by a party and which

that party has permitted to achieve a finality cannot be reversed to the advantage of such party. The Court can invoke such power provided it is

consistent with the findings arrived at by the appellate Court and that the same would remove the inconsistencies, inequities or inequalities in reliefs

granted to similarly placed parties.

Some of the decisions relied on by the Division Bench is extracted as follows:

(a) In Rameshwar Prasad and Others Vs. Shyam Beharilal Jagannath and Others, a bench consisting of three judges of Supreme Court, pointed

out the scope of Order 41, Rule 33, in the following terms:

It empowers the Appellate Court to pass any decree and make any order which ought to have been passed or made in the proceedings before it

and thus could have reference only to the nature of the decree or Order in so far as it affects the rights of the appellant. It further empowers the

Appellate Court to pass or make such further or other decree or Order as the case may require. The Court is thus given wide discretion to pass

such decrees and Orders as the interest of justice demand. Such a power is to be exercised in exceptional cases when its non-exercise will lead to

difficulties in the adjustment of rights of the various parties.

(emphasis supplied)

(b) The next ruling that can be referred to is Nirmala Bala Ghose and Another Vs. Balai Chand Ghose and Others, Here again, a Bench consisting

of three Judges of Supreme Court pointed out that though the terms employed are wide, the same have to be applied with discretion and to cases

where interference in favour of the appellant necessitates interference also with a decree which has by acceptance or acquiescence become final so

as to enable the Court to adjust the rights of the parties. The Court in that case observed as under,

Where in an appeal the Court reaches a conclusion which is inconsistent with the opinion of the Court appealed from and in adjusting the right

claimed by the appellant it is necessary to grant relief to a person who has not appealed, the power conferred by 0.41, Rule 33 may properly be

invoked. The rule however does not confer an unrestricted right to re-open decrees which have become final merely because the appellate Court

does not agree with the opinion of the Court appealed from.

(emphasis supplied)

What has to be noted is that the Supreme Court made it clear that the rule does not confer an unrestricted right to re-open decrees, which have

become final.

(c) Then we have the ruling Harihar Prasad Singh and Others Vs. Balmiki Prasad Singh and Others, where the Court pointed out that a party who

is aggrieved by a decree, to escape from its operation, file an appeal and where he fails to do so, no relief should ordinarily be given under Order

41, Rule 33. Of course, the Court pointed out three exceptions by way of illustrations. Let us proceed to quote the relevant portion, which is as

under,

But there are well-recognised exceptions to this rule. One is where as a result of interference in favour of the appellant it becomes necessary to

readjust the rights of other parties. A second class of cases based on the same principle is where the question is one of settling mutual rights and

obligations between the same parties. A third class of cases is when the relief prayed for is single and indivisible but is claimed against a number of

defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only to the

appellants there is the possibility that there might come into operation at the same time and with reference to the same subject-matter two decrees

which are inconsistent and contradictory.

(emphasis supplied)

(d) Then we have the ruling in Mahant Dhangir and Another Vs. Madan Mohan and Others, In that decision, the Court took the view that the rule

itself is liberal enough and that to invoke the said rule, only two requirements are to be satisfied.

Firstly, the parties before the lower Court should be there before the appellate Court and secondly, the question raised must properly arise out of

judgment of the lower Court. In paragraph 12 of the said Judgment, the Supreme Court has referred the ruling in Pannalal Vs. State Bombay and

Others, It has to be noted that the rulings of the Supreme Court Rameshwar Prasad and Others v. Shyam Beharilal Jagannath and Others (supra);

Nirmala Bdla Ghose and Another v. Balai Chand Ghose and Another (supra); and Harihar Prasad Singh and Others v. Balmiki Prasad and Others

(supra) were not brought to the notice of the Court.

(e) The next ruling is State of Punjab and Others v. Bakshish Singh (supra). Paragraphs 8 and 9 are relevant, which we quote hereunder in

extenso.

This provision gives very wide power to the appellate Court to do complete justice between the parties and enables it to pass such decree or

order as ought to have been passed or as the nature of the case may require notwithstanding that the party in whose favour the power is sought to

be exercised has not filed any appeal or cross objections.

The discretion, however, has to be exercised with care and caution and that too in rare cases where there have been inconsistent findings and an

order or decree has been passed which is wholly uncalled for in the circumstances of the case. The appellate Court cannot, in the garb of

exercising power under Order 41 Rule 33, enlarge the scope of the appeal. Whether this power would be exercised or not would depend upon

the nature and facts of each case.

(emphasis supplied)

Here again, it has to be noted that such a power must be exercised in rare cases where there have been inconsistent findings and an order or

decree has been passed which is wholly uncalled for.

(f) Finally we have a very recent judgment to be mentioned, which is Banarsi and Others Vs. Ram Phal, The Supreme Court, after considering

various rulings referred by us above, so also some more rulings, has laid down the law as under:

Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into

existence in the same suit. The abovesaid provisions confer power of widest amplitude on the appellate Court so as to do complete justice

between the parties and such power is unfettered by consideration of facts like what is the subject matter of appeal, who has filed the appeal and

whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though

confirming the impugned decree, the appellate Court may still direct passing of such decree or making of such order which ought to have been

passed or made by the Court below in accordance with the findings of fact and law arrived at by the Court below and which it would have done

had it been conscious of the error committed by it and noticed by the Appellate Court. While allowing the appeal or otherwise interfering with the

decree or order appealed against, the appellate Court may pass or make such further or other, decree or order, as the case would require being

done, consistently with the findings arrived at by the appellate Court. The object sought to be achieved by conferment of such power on the

appellate Court is to avoid inconsistency, inequity, inequality in reliefs granted to similarly placed parties and unworkable decree or order coming

into existence. The overriding consideration is achieving the ends of justice. Wider the power, higher the need for caution and care in discretion

while exercising the power. Usually the power under Rule 33 is exercised when the portion of the decree appealed against or the portion of the

decree held liable to be set aside or interfered by the appellate Court is so inseparably connected with the portion not appealed against or left

untouched that for the reason of the latter portion being left untouched either injustice would result or inconsistent decrees would follow. The

power is subject to at least three limitations: firstly, the power cannot be exercised to the prejudice or disadvantage or a person not a party before

the Court, secondly, a claim given up or lost cannot be revived; and thirdly, such part of the decree which essentially ought to have been appealed

against or objected to by a party and which that party has permitted to achieve a finality cannot be reversed to the advantage of such party. A case

where there are two reliefs prayed for and one is refused while the other one is granted and the former is not inseparably connected with or

necessarily depending on the other, in an appeal against the latter, the former relief cannot be granted in favour of the respondent by the Appellate

Court exercising power under Rule 33 of Order 41.

(emphasis supplied)

It has to be noted that the Supreme Court considered the ruling in Panna Lal v. State of Bombay (supra). In fact, in that ruling itself the Supreme

Court held that the facts of that case was similar to the illustrations given in the code.

In the light of the above, this writ petition is allowed. The petitioner is entitled to a total compensation of Rs. 6,39,000/- (Rupees Six lakhs and

thirty nine thousand only) with interest at the rate of 7.5% per annum from the date of the writ petition till the date of deposit. The respondents are

directed to pay the said compensation to the petitioner within a period of three months from the date of receipt of a copy of this order. No costs.