Dilbung Tondon vs The State of Manipur

N. Kotiswar Singh, J.—Heard Ms. H. Bisheshwari, learned counsel for the petitioner and Mr. A. Vashum, learned G.A., for the respondents.

The present writ petition has been filed by the petitioner seeking payment of compensation of 8(eight) lakhs on account of the death of his wife due to electrocution on 30.12.2009.

According to the petitioner, on 30.12.2009 at about 4:30 p.m. while his wife was returning home after collecting fire woods from the eastern hill-side of the Leingangching village for domestic use, when she reached a distance of about 200 meters away from the house she was electrocuted by a fallen loose live L.T. electric wire from the electric pole on the public road. The broken live wire touched her left hand which led to her electrocution and death. Though she was evacuated immediately for medical treatment, she was declared dead by the doctor who examined her. Thereafter, a complaint was filed before the Officer-in-Charge of Waikhong Police Station and her case was registered under G.D. No. 140/WKG-PS/10 dated 11.01.2010. A report was subsequently submitted on 9.07.2010 by the Waikhong Police Station to the Senior Superintendent of Police, Thoubal District, Manipur informing about the death of the petitioner''s wife due to electrocution.

A report was prepared by the Assistant Engineer, Chandel Sub-Division, Electricity Department on 1.2.2010 relating to the electrocution of the petitioner''s wife. The said report, a copy of which is annexed as Annexure-A/4 to the writ petition, mentions that the injury suffered by the deceased was fatal and as against the column providing for detail causes leading to the accident, the report has mentioned as "BROKEN LIVE LINE". It is, therefore, clearly evident from the said report prepared by the Electricity Department that the death was caused due to the broken live wire. The officer-in-charge of the Waikhong Police Station had also submitted a certificate to the effect that an enquiry had been made into the matter and found that the petitioner''s wife died on 30.12.2009 due to electrocution while she was collecting fire woods from the hill-side of the Leingangching village for domestic use. According to the petitioner even though it has been ascertained and admitted by the Electricity Department that the petitioner''s wife died due to electrocution, in spite of several representations, no compensation has been paid. Accordingly, having no other alternative, the petitioner has approached this Court by filing the present writ petition.

The writ petition has been opposed by the State respondents by filing their affidavit-in-opposition.

In their affidavit-in-opposition, it has been stated that there is no negligence on the part of the respondents. It was submitted that due to wind pressure and falling trees on the live L.T. electric line it broke because of which the fateful accident had occurred. It has been also stated in the affidavit-in-opposition in para 13 that there was no report of broken wire and LT line might have broken due to wind pressure/lightening of thunder storms and such accident happened suddenly and the unfortunate incident happened beyond the control of human and it was an act of God. Further, State respondents in their affidavit-in-opposition had stated that the Government issued an order on 5.7.2008 by which the State Government had decided to grant ex-gratia payment payable to the family of victim and owners of the domestic livestock in case of electric accident in the State of Manipur. As per the said order, in case of death of a person, the ex-gratia amount has been fixed at Rs. 1 lakh (Rupees one lakh).

Heard the learned counsel for the parties and also considered the materials on record.

The fact that the petitioner''s wife had died due to electrocution on 30.12.2009 has not been denied by the respondents. All the documents annexed by the petitioner including the report submitted by the Assistant Engineer, Chandel Sub-Division on 1.02.2010 regarding the death of the petitioner''s wife clearly show that the cause of the death was the broken live wire. In other words, the respondents authorities had admitted this fact of electrocution due to broken live L.T. wire causing the death of the petitioner''s wife.

However, it is with reference to the claim of the damages that the State authorities have denied any liability. In their affidavit-in-opposition they have claimed that the breaking of live LT wire was due to wind pressure/thunder storm and falling of trees on the electric line and since there was no negligence on the part of the authorities, there could not be any liability. However, the stand of the State respondents is not consistent. While they have stated in para 4 of their affidavit-in-opposition that due to wind pressure and falling of trees the live LT wire was broken. But, in para 13 of the affidavit-in-opposition the respondents have stated that there was no report of broken wire of life LT line and it might have broken due to wind pressure/thunder storms and as such the accident happened suddenly. Apart from the aforesaid inconsistency, there is nothing on record of any material or basis on which the State respondents took the aforesaid stand. It is not known on what basis the State respondents took the plea that the LT line had broken due to wind pressure/lightning. Such an assertion has to be based on certain acceptable materials and none has been produced before this Court, though it was clearly the responsibility and duty of the State authorities to find out the real cause of the breaking of the electric live wire and the accident.

On the other hand, the report submitted by the Assistant Engineer, a copy of which has been annexed as Annexure-A/4, nothing has been mentioned of any such factors which led to the snapping of the live LT wire which ultimately caused the death of the petitioner''s wife. Therefore, this Court is of the view that since the enquiry report submitted by the Electricity Department failed to explain how the live LT wire was broken which led to the death of the petitioner''s wife, the respondent authorities had utterly failed to discharge their onus that it was an act of God which caused the snapping of live wire so as to avoid any liability. Merely stating in the affidavit-in-opposition that the live LT line was broken due to the wind pressure/thunder storm without any supporting material is not acceptable. Therefore, this Court would not have any hesitation to hold that the respondent authorities were negligent in maintaining the live LT wire and as such, would be liable for injury caused to anybody due to snapping of such live and hazardous LT wire. It was the statutory duty of the authorities to maintain such hazardous wire in proper shape and condition to prevent any accident which is foreseeable. Occurrence of heavy rain or thunder storm in this part of the country is usual. Therefore, the authorities ought to have been taken adequate precautions for proper maintenance of the hazardous live wire to avoid such snapping of wire.

It may be noted that as per Section 25 of the Electricity Act, 2003, the authorities are to take suitable measures for protecting the public from dangers arising from generation, transmission, distribution or use of electricity supply or installation, maintenance or use of any electricity line and also reducing risk of personal injury to any person or damage to property of any person, etc. However, nothing has been disclosed in the affidavit as to what safety measures had been taken to prevent such occurrence of accidents which may lead to fatality.

Normally, Writ Court functioning under Section 226 of the Constitution of India is not the appropriate forum for dealing with the claims for compensation which are to be dealt with by the civil Courts. However, there has been a tremendous change in the approach and development in the field of public law in India under which High Courts in exercise of the jurisdiction under Article 226 of the Constitution of India or the Supreme Court under 32 of the Constitution of India have been endowed with the jurisdiction to entertain the claims for grant of compensation and damages in appropriate cases when it involves deprivation of fundamental rights of the citizen.

The Supreme Court in N. Nagendra Rao and Co. Vs. State of Andhra Pradesh, , had blurred the distinction between sovereign and non sovereign functions of the State and enlarged the scope of the liability of the State by invoking the principle of strict liability propounded in the famous case of "Rylands -vrs.-Fletcher" (1868) LR 3 HL 330 and "Donoghue -vrs.-Stevenson" (1932) AC 562 in discharge of public duties by the State and its instrumentalities.

In the celebrated case of Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, , the Supreme Court explained the jurisprudential basis for awarding damages/compensation in writ proceedings which was otherwise within the purview of the normal civil courts earlier and explained that the State authorities would be liable to pay compensation for the unlawful acts of the instrumentalities of the State if the right to life as ensured under Article 226 of the Constitution of India has been fragrantly violated. This law enunciated and developed on account of flagrant violation of human rights and right to life have been reaffirmed and extended to various other activities of the State Government which involve infringement and deprivation of right and personal liberty of the citizen even if they are discharging public duties. In Municipal Corporation of Delhi, Delhi Vs. Association of Victims of Uphaar Tragedy and Others, , the Supreme Court held as follows:

"58. Courts have held that due to the action or inaction of the State or its offices, if the fundamental rights of a citizen are infringed then the liability of the State, its officials and instrumentals is strict. Claim raised for compensation in such a case is not a private law claim for damages, under which the damages recoverable are large. Claim made for compensation in public law is for compensating the claimants for deprivation of life and personal liberty which has nothing to do with a claim in a private law claim in tort in an ordinary civil court.

This Court in Union of India (UOI) Vs. Prabhakaran Vijaya Kumar and Others, , extended the principle to cover public utilities like the railways, electricity distribution companies, public corporations and local bodies which may be social utility undertakings not working for private profit.... "

The Supreme Court also in Madhya Pradesh Electricity Board Vs. Shail Kumari and Others, , observed with reference to accidents involved with electricity. The Supreme Court in the aforesaid case of M.P. Electricity Board (supra) held that:

"7. It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into it the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the Board that somebody committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is the lookout of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps.

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."

Therefore, in the light of the aforesaid decisions of the Supreme Court, the liability of the State to pay compensation for the death of the petitioner''s wife cannot be doubted.

However, having held that the authorities are liable to pay compensation for the death of the petitioner''s wife, the next question which arises is as regards the quantum of compensation. As has been observed in D.K. Basu Vs. State of West Bengal, , the quantum of compensation will, depend upon the facts and circumstances of each case and the Supreme Court in Uphaar''s case (supra), after considering the earlier of decisions in this regard observed that the Court can invoke its own method depending on the facts and circumstances of each case till appropriate comprehensive legislation dealing with tortuous liabilities of the State, its instrumentalities is enacted.

In the light of the aforesaid position of law, we can examine the issue as regards the quantum of compensation which may be paid in this case. Though the petitioner had made the claim of Rs. 8 lakhs (Rupees eight lakhs), on account of loss dependency, loss of life, loss of love, affection, mental agony and pain, funeral expenditure, this Court in exercise of the public law remedy for the constitutional liability of the State is of the view that such criteria may not be the appropriate criteria to decide as suggested by the petitioner is not an appropriate one, as such criteria are normally adopted by the civil courts for the purpose of assessment. This Court, while granting compensation under public law remedy as mentioned above, is concerned primarily with the failure of the State agencies in ensuring prevention of such accidents/incidents which lead to deprivation of right and personal liberties of citizens, rather than compensate for the personal loss one may suffer on account of such negligence on the part of the State. The damages or compensation awarded is more in the nature of punitive or palliative depending on the facts and circumstances of the case.

That apart, nothing has been mentioned in the petition of the petitioner''s wife other than stating that she was about 37 years old and left behind a child and the petitioner. More detail facts and circumstances leading to the death of the petitioner''s wife which could perhaps throw some more light on this exercise of determination of the quantum are missing, thus, leading to the sole discretion of the Court.

Accordingly, considering the facts and circumstances as disclosed in the case, this Court is of the view that it would be just and proper if the respondents are directed to pay a sum of Rs. 2 lakhs (Rupees two lakhs) to the petitioner.

It is also clarified that this compensation is in addition to the claim for damages for compensation which the petitioner may seek under normal civil remedy available. It is also further clarified that this amount of Rs. 2 lakhs (Rupees two lakhs) which has been directed to be paid by the respondents to the petitioner, having been granted under the public law remedy would be independent of any other beneficial scheme which may be framed by the State Government in this regard. It has been stated by the State respondents that there is an order issued by the Government on 5.07.2008 by which the State Government has prepared the scheme for grant of ex-gratia payable to the families of victims and owners of domestic livestock in case of electrical accidents in the State of Manipur. It seems that the grant of ex-gratia as mentioned in the said order dated 5.07.2008 is not related to any negligence or otherwise of either the individual or the authorities but purely as a humanitarian gesture towards those who are victims of electrical accidents. Accordingly, the petitioner will also be additionally entitled to grant of ex-gratia in terms of the aforesaid order dated 5.07.2008 which the authorities will consider payment in terms of the said scheme within a period of 4 (four) months from today. It is also clarified that considering the facts and circumstances of the cases as discussed above, the delay in the submission of the claim for ex-gratia by the petitioner to the respondent authorities shall not be a ground for denying the benefit to the petitioner.

Accordingly, for the reasons discussed above, the present writ petition is allowed. The respondent authorities are directed to pay a sum of Rs. 2 lakhs (Rupees two lakhs) to the writ petitioner as compensation under the public law remedy which is independent of any other compensation or grant which may be given in terms of the order dated 5.07.2008, to be paid within 4 (four) months from today.

The State respondents are also directed to consider payment of ex-gratia to the petitioner on account of the death of the petitioner''s wife in terms of the order dated 5.07.2008 for which the petitioner shall submit a detailed representation with the relevant supporting documents to the authorities concerned within a period of 2 (two) weeks from today and thereafter, the authorities will decide on the payment of ex-gratia to the petitioner within a period of 4 (four) months thereafter.

With the above observations and directions, the present writ petition stands allowed.