Sashirekha Nayak vs Chief Executive Officer/Executive Director, NESCO (Electrical) and Others

S.K. Mishra, J.—The Petitioner, claiming to be the widow of deceased Upendra Nayak has filed this Writ Petition under Articles 226 & 227 of the Constitution of India for compensation arising out of death of the said Upendra Nayak.

The case of the Petitioner is that the deceased Upendra Nayak had been to his agricultural lands in early morning on 18.09.2004. There he came into contact with one live electric wire, as a result of which he suffered severe injuries on his body. He was shifted to Dharmasala C.H.C., but on the way he died. It is further pleaded that immediately thereafter, an F.I.R. was lodged before the Officer-in-charge, Dharmasala Police Station, for which U.D. Case No. 35 of 2004 corresponding to U.D.G.R. Case No. 210 of 2004 was initiated. the Police Officer conducted inquest on the dead body of the deceased. The dead body was also subjected to postmortem examination.

The Petitioner claims that the live electric were was lying on the path, which clearly proves that the Opp. Parties were negligent & they have failed to take safeguard to avoid the tragic death of the deceased. It is further pleaded that the deceased was a hardworking labourious person. He was also holding domestic animals. His monthly income was approximately Rs. 3,000. The Petitioner pleads that since there is no speedy, alternative & efficacious remedy available to the Petitioner, she approached this Court. On the above facts, the Petitioner claims Rs. 2,00,000 (Rupees two lakhs) along with interest '' 18% per annum from the date of accident towards compensation arising out the premature death of the deceased, mental pain & suffering of the Petitioner.

The Opp. Parties have filed their counter affidavit, inter alia, pleading that such claim of compensation basing on disputed questions of fact cannot be decided in a writ proceeding. The Opp. Party also plead that it is not known to them whether the Petitioner is the only legal heir of the deceased. It is also not definite that the deceased died with coming in contact with the live wire which was lying on road & that he died on electrocution.

The positive case of the Opp. Parties is that there is no laches or negligence on the part of the Opp. Parties, the NESCO authorities, for which they are not liable to pay any compensation. The incident does not belong to the area of Opp. Party No. 3, rather the alleged area comes with the Electrical Section, Neulpur. It is further pleaded that a Helper of Neulpur has reported to the Junior Engineer (Electrical) that on 18.09.2004 he came to know that in village, Batijanga a person died by electrocution. Then he went to the said place & found that one 11 K.V. line, which was going over the paddy field, has fallen down because of heavy rain, thunder & lightening occurred on the last night i.e. on 17.09.2004 & as a result, the pin insulator was punctured. But there has been no V.C.B. Trip. However, due to falling of the side wire by the return current, the person has died. It is further pleaded that the said incident was beyond the control of the NESCO authorities & that apart, no laches or negligence can be attributed to their action. The Opp. Parties further plead that the deceased should have been careful while going over his paddy field. As the incident took place in the morning & hardly there was any time to find out such fault & to rectify same.

The Opp. Parties further plead that the allegations of latches & negligence on the part of the NESCO authorities is totally based on surmises & conjectures. It is further pleaded that the live line had been taken authorisedly in accordance with the procedure & there is no bar to draw such line by erecting the poles as per the, provisions of the Act & the Rules. The further case of the Opp. Parties is that the deceased died due to his own negligence. The Opp. Parties also pleads that they were riot aware about the profession, income or financial condition of the Petitioner & there is no proof in support of the same. The Opp. Parties pleads that the only way for adjudication of the disputed questions of fact is to take shelter of the common Court of law instead of burdening the writ jurisdiction, wherein the same cannot be adjudicated. On such pleadings, the Opp. Parties submit that the Writ Petition should be dismissed.

At the outset, Learned Counsel appearing for the Opp. Parties raised the question of maintainability Of this Writ Petition. It is submitted that the Petitioner should have filed a suit for redressal of his grievance & a Writ Court cannot decide the disputed questions like contributory negligence, legal heirs of the deceased & the amount of compensation.

Learned Counsel for the Petitioner, on the other hand, submitted that in Nirmala Nayak and Ors. v. Chairman-cum-Managing Director, Grid Corporation of Orissa Ltd. and Anr. 2005 (II) CLR 136; Parvati Palai v. Chairman-cum-Managing Director, GRID Corporation of Orissa Ltd. and Anr. 2006 (Supp.-I) OLR 1114; Ketaki Lenka and Anr. v. C.E.S.C.O. and Ors. 2007 (I) CLR 516 & Gangadhar Mohanty v. Chief Executive Officer, CESCO, IDCO Tower, Bhubaneswar and Ors. 2007 (1) CLR 150, this Court have awarded compensation in favour of the Petitioner in cases of electrocution. Learned Counsel for the Petitioner also cites orders passed in W.P.(C) No. 15498 of 2006 (Patitapaban Das and Ors. v. Chief Executive Officer, CESCO and Ors.) & W.P.(C) No. 4335 of 2007 (Danoi Mohanty v. Chief Executive Officer, CESCO and Ors.), wherein this Court has awarded compensation in similar cases.

The Supreme Court in Chairman, Grid Corporation of Orissa Ltd. (Gridco) and Others Vs. Smt. Sukamani Das and Another, ; examined the jurisdiction of the High Court under Article 226 of the Constitution. The fact of the case filed by Sukamani Das, widow of one Pratap Chandra Das in the reported case is almost similar to the present case. In that case also, deceased Pratap Kumar Das was moving on road, while he came into contact with a live electric wire, which was lying across the road, after getting snapped from the overhead electric line. It was alleged that such electric wire had snapped because of negligence of the GRIDCO & its officers, as they were not maintaining the electric transmission line, & therefore they are liable to pay damages for this negligent act. F.I.R. was lodged, inquest was held & the dead body was subjected to autopsy. In a batch of cases of similar line, this Court had awarded compensation to the Petitioners, who pleaded that they are the legal heirs of the deceased. The GRIDCO preferred an appeal before the Supreme Court against such cases. At paragraph 6 of the Judgment, the Supreme Court has held as follows:

In our opinion, the High Court committed an error in entertaining the Writ Petitions even though they were not fit cases for exercising power under Article 226 of the Constitution. The High Court went wrong in proceeding on the basis that as the deaths had taken place because of electrocution as a result of the deceased coming into contact with snapped live wires of the electric transmission lines of the Appellants, that "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 & 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 & the deceased had come in contact with it & 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 & under which circumstances, he 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 & precautions were taken in maintaining the transmission lines & 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 & could not have held that the disputes in these cases were raised for the sake of raising them & 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.

Similar view has been taken in Tamil Nadu Electricity Board Vs. Sumathi and Others, , wherein the Supreme Court held that where disputed questions of fact arises, the proper remedy is filing suits in the Civil Court.

Thus, it is clear from the above that whenever there is any disputed fact in issue for adjudication, writ jurisdiction is not the proper forum. The Petitioner should have approached the Civil Court for redressal of her grievance. It cannot be said that in this case, denial of liability by the Opp. Party is only for the sake of the same. Real disputed question of fact like negligence of the Opp. Parties, act of nature, contributory negligence, if the Petitioner is the. only legal heir of the deceased & what should be the amount of compensation, which can be termed as just are to be decided in this case. This can be only done by a regular trial not on the basis of the affidavits. The Learned Counsel for the Petitioner submitted that rightly or wrongly, the Petitioner has approached this Court & in the meantime about three years has elapsed. If the Petitioner is directed to file a civil suit, then she will suffer insurmountable hardship. While exercising the discretionary jurisdiction under Article 226 of the Constitution of India, Court must not forget that law is to be tempered with equity & if equitable circumstance demands appropriate interim relief should be granted. In exercise of the writ jurisdiction under Article 226, discretion would be so exercised by the Court that the justice may be rendered to both the parties.

In view of the aforesaid discussions, this Court comes to the conclusion that the Petitioner should approach the Civil Court for redressal of the grievances. On such an event, the Civil Judge (Sr. Division), in whose Court the case is filed shall do the needful to expeditiously dispose it of preferably within a period of 6 (six) months from filing of the same. In the meantime, the Opp. Parties are directed to deposit a sum of Rs. 50,000 (Rupees fifty thousand) with the Registrar (Judicial) of the Court within a month of passing of this order. The said amount shall be released in favour of the Petitioner on her production of any material, viz. Legal Heir Certificate, to show that she is the only legal heir of the deceased. Such amount shall be adjusted towards the final compensation to be determined by the Civil Court.

The Writ Petition is accordingly disposed of. No costs.