Sohan Singh Bhardwaj vs Himachal Pradesh State Electricity Board

Sandeep Sharma, J

Petitioner herein, son of late Fula Devi, who died on 08.09.2020 due to electrocution on account of negligence of respondent-Himachal Pradesh State Electricity Board Limited (for short, hereinafter ‘Board’), has approached this Court in the instant proceedings filed under Articles 226 and 227 of the Constitution of India, praying therein for following main relief:

“A. Writ of mandamus may kindly be issued directing the respondent board to pay a compensation of Rs. 6,00,000/- to the petitioner.”

Precisely, the facts of the case, as emerge from the record are that on 30.08.2020, deceased-Fula Devi, while walking on the road side near her residence, accidentally got electrocuted from the 33 KV high voltage electrical line, owned, controlled and maintained by the respondent-Board, as a result thereof, she suffered 45% electric burns on her body. On account of serious burn injuries, she was taken to PGIMER, Chandigarh, where she remained admitted for approximately nine days and thereafter ultimately succumbed to her injuries on 08.09.2020. Though petitioner herein, son of deceased-Fula Devi repeatedly requested respondent-Board to provide compensation, but since no steps were taken, he is compelled to approach this Court in the instant proceedings, praying therein for relief, as has been reproduced hereinabove.

Pursuant to notice issued in the instant proceedings, respondent-Board has filed reply, wherein factum of electrocution of deceased has not been denied, rather stands duly admitted. While fairly admitting factum with regard to crossing of 33 KV HT line in question, it is averred in the reply that after alleged incident, site inspection was conducted by Committee constituted for the purpose vide letter bearing No.6109 dated 21.10.2020 (Annexure RA-1), which after site inspection noticed that a black co-axial TV cable, pertaining to City Cable was hanging on the 33 KV HT line conductor, but not touching the ground. As per reply of respondent-Board, some miscreants from the uphill side of 33 KV HT line in Block-8 of Chopra Apartments threw pieces of co-axial cable wire on 33 KV HT line in the evening of 29.08.2020, as per the information received from local residents. Though, tripping was recorded in 33 KV HT line Kasauli Feeder by Electrical System, Division, Solan on 29.08.2020, but since one long piece of co-axial cable wire was hanging from 33 KV HT line, just few feet above the ground, line was not disconnected. As per respondent-Board, electrocution of deceased occurred on account of her coming in direct contact with 33 KV HT line through hanging co-axial cable wire. Since no complaint was made by local residents to respondent-Board or to the Police, no correctional measure could be taken prior to alleged incident of electrocution. In nutshell, it is averred in the reply filed by the respondent-Board that there was no fault, if any, of respondent-Board in the electrocution of deceased, rather, same had unfortunately occurred on account of act of some unknown person(s).

I have heard the parties and gone through the record of the case.

From the pleadings, as have been taken note hereinabove, it is quite apparent that on 30.08.2020, mother of the petitioner namely Fula Devi received serious burn injuries on account of her electrocution. As per site inspection done by Committee constituted by respondent-Board, one long piece of co-axial cable wire was hanging from 33 KV HT line just two feet above the ground and unfortunately, aforesaid deceased Fula Devi got trapped with the hanging wire and received serious burn injuries and ultimately died at PGIMER, Chandigarh on 08.09.2020.

Ms. Sunita Sharma, learned Senior Counsel representing respondent-Board vehemently argued that there was no fault, if any, of respondent-Board, because alleged incident had not happened on account of negligence, if any, of respondent-Board, rather, unfortunate incident occurred on account of mischief done by some miscreants, who threw pieces of co-axial cable wire on 33 KV HT line. Ms. Sharma further argued that there is nothing on record to suggest that factum of throwing of pieces of co-axial cable wire on 33 KV HT line or thereafter hanging of the same on 33 KV HT line was ever brought to the notice of respondent-Board, as such, it cannot be said that there was any fault on the part of respondent-Board, inasmuch as electrocution of deceased Fula Devi is concerned. She submitted that action, if any, to remove long piece of co-axial cable wire could only be taken by the respondent-Board, had the same been brought to the notice of Board, immediately, but the factum with regard to hanging of co-axial cable wire on 33 KV HT line only came to the knowledge of the department after alleged incident. Lastly, Ms. Sharma submitted that otherwise also, no compensation, if any, can be granted in the instant proceedings, especially on account of involvement of disputed questions of facts and law and in that regard, appropriate remedy, if any, for petitioner is to file civil suit.

To the contrary, Mr. Ram Murti Bisht, learned counsel representing the petitioner, while inviting attention of this Court to the reply filed by respondent-Board, vehemently argued that once respondent-Board has admitted factum with regard to alleged incident coupled with the fact that respondent-Board is/was under obligation/duty bound to maintain the electricity line, prayer made on behalf of the petitioner cannot be permitted to be defeated on the ground of alternate remedy, if any, available to the petitioner. He further submitted that since it is not in dispute that deceased Fula Devi died after being electrocuted and there was no overt action, if any of her, which brought her in contact with high tension electrical line, prayer made on behalf of the petitioner, being son of the deceased, deserves to be allowed.

While responding to the submission made by learned Senior Counsel representing respondent-Board with regard to act of some miscreant, Mr. Ram Murti Bisht, learned counsel representing the petitioner invited attention of this Court to judgment passed by Hon’ble Apex Court in case tilted as M.P. Electricity Board Vs. Shail Kumari and Others, 2002 (2) SCC 162, wherein Hon’ble Apex Court held that even assuming that all safety measures had been taken, 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. Most importantly, in the aforesaid judgment, Hon’ble Apex Court held that 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”, which 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.

“8. 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 (1868 Law Reports (3) HL 330). Blackburn J., the author of the said rule had observed thus in the said decision:

"The true rule of law is that the person who, for his own purpose, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does so he is prima facie answerable for all the damage which is the natural consequence of its escape."

There are seven exceptions formulated by means of case law to the doctrine of strict liability. It is unnecessary to enumerate those exceptions barring one which is this. "Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule doe snot apply". (vide Page 535 Winfield on Tort, 15th Edn.)

The rule of strict liability has been approved and followed in many subsequent decision in England. A recent decision in recognition of the said doctrine is rendered by the House of Lords in Cambridge Water Co. Ltd. v. Eastern Counties Leather Plc. {1994(1) All England Law Reports (HL) 53}. The said principle gained approval in India, and decisions of the High Courts are a legion to that effect. A Constitution Bench of this Court in Charan Lal Sahu v. Union of India and a Division Bench in Gujarat State Rod Transport Corporation v. Ramanbhai Prabhatbhai had followed with approval the principle in Rylands v. Fletcher. By referring to the above two decisions a two Judge Bench of this Court has reiterated the same principle in Kaushnuma Begum v. New India Assurance Co. Ltd. {2001 (2) SCC 9}.

In M.C. Mehta v. Union of India this Court has gone even beyond the rule of strict liability by holding that "where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands v. Fletcher."

In the present case, the Board made an endeavour to rely on the exception to the rule of strict liability (Rylands v. Fletcher) being "an act of stranger". The said exception is not available to the Board as the act attributed to the third respondent should reasonably have been anticipated or at any rate its consequences should have been prevented by the appellant-Board. In Northwestern Utilities, Limited v. London Guarantee and Accident Company, Limited {1936 Appeal Cases 108}, the Privy Council repelled the contention of the defendant based on the aforesaid exception. In that case a hotel belonging to the plaintiffs was destroyed in a fire caused by the escape and ignition of natural gas. The gas had percolated into the hotel basement from a fractured welded joint in an intermediate pressure main situated below the street level and belonging to the defendants which was a public utility company. The fracture was caused during the construction involving underground work by a third party. The Privy Council held that the risk involved in the operation undertaken by the defendant was so great that a high degree care was expected of him since the defendant ought to have appreciated the possibility of such a leakage.

The Privy Council has observed in Quebec Railway, Light Heat and Power Company Limited v. Vandry and Ors. {1920 Law Reports Appeal Cases 662} that the company supplying electricity is liable for the damage without proof that they had been negligent. Even the defence that the cables were disrupted on account of a violent wind and high tension current found it sway through the low tension cable into the premise of the respondents was held to be not a justifiable defence. Thus, merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding the live wire lying on the road.”

In aforesaid judgment, Hon’ble Apex Court discussed seven exceptions to the doctrine of strict liability, out of which, one is “act of stranger” and held that if the escape was caused by the unforeseeable act of a stranger, the rule does not apply, but that exception is not available to the Board, as the act attributed to the third respondent should reasonably have been anticipated or at any rate its consequences should have been prevented by the appellant Board. In the case before the Hon’ble Apex Court, wherein facts were quite akin to the facts of the present case, a live wire got snapped and fell on the public road, which at relevant time was inundated from rainwater. A cyclist, aged 37 years, while returning home at night from the factory rode over the wire which twitched and snatched him and he was instantly electrocuted. Claim for damages made by the dependents of the deceased was resisted by the appellant State Electricity Board on the ground that the electrocution was due to clandestine pilferage committed by a stranger, unauthorizedly siphoning the electric energy from the supply line. High Court of Madhya Pradesh directed the Board to pay compensation of Rs.4.34 lakhs to the claimants, however, such order was laid challenge in the Hon’ble Apex Court and in those proceedings the Board attempted to rely on the exception to the rule of “strict liability” being “an act of stranger”, but as has been discussed hereinabove, aforesaid plea was not accepted for the reasons given in the judgment, taken note hereinabove.

In the instant case, no doubt, deceased Fula Devi had not came in direct contact with 33 KV HT line, which admittedly at relevant time had not fallen on the ground, rather, was hanging straight on polls, but it is also not in dispute that deceased Fula Devi died on account of electrocution, may be after her having come in contact with long piece of co-axial cable, hanging on 33 KV HT line, just two feet above the ground. As per own reply filed by respondent-Board, tripping was recorded in 33 KV HT line Kasauli Feeder by Electrical System, Division, Solan on dated 30.08.2020 at the time of occurrence of accident, meaning thereby, whenever high tension power line is interfered or tinkered with, information is received by respondent-Board, may be in the form of tripping. Though, in the case at hand, it is quite apparent that alleged incident happened due to an illegal act of some miscreants, who allegedly threw pieces of co-axial cable wire on 33 KV HT line, but at the same time, no action of deceased, prior to her having come in contact with piece of co-axial wire hanging on 33 KV HT line, can be construed to be negligence on her part. In the instant case, accident occurred on account of act of a stranger, but, as has been discussed in judgment passed by the Hon’ble Apex Court in M.P. Electricity Board’s case (supra), act of stranger, which has been taken out to be one of the exceptions of doctrine of strict liability, cannot be permitted to be used to defeat the rightful claim of the petitioner, especially when there is nothing to suggest that act attributed to the third respondent was not anticipated or at any rate, its consequences could not have been prevented by the appellant Board.

Even if it is assumed that respondent-Board had taken all measures to prevent the unfortunate accident, that happened in the case at hand, but since it undertakes an activity involving hazardous or risky exposure to human life, it is otherwise 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. Since very risk of such kind of accident is involved, basis of such liability is the foreseeable risk inherent in the very nature of such activity.

Next question which requires consideration is, “whether in the instant proceedings filed under Article 226 of the Constitution of India, this Court can proceed to grant compensation or not?”. Learned Senior Counsel representing the respondent-Board vehemently argued that compensation, if any, qua electrocution cannot be assessed in the instant proceedings, rather, for that purpose, appropriate proceedings are required to be initiated before appropriate forum. There cannot be any quarrel with the aforesaid submission made by learned Senior Counsel for the respondent-Board, but it also cannot be disputed that Court, while exercising power under Article 226 of the Constitution of India, can proceed to award interim compensation on account of death of mother of petitioner on account of electrocution.

In similar facts, Division Bench of this Court in Rakesh Kumar v. The Himachal Pradesh State Electricity Board and another, decided on 19.3.2019, directed the respondent Board to provide interim compensation to the tune of Rs.5,00,000 to the petitioner therein. Relevant paras of the judgment are reproduced as under:

“7. At this stage, the question which needs to be determined/examined is whether this court, while exercising power under Article 226 of the Constitution of India, can proceed toaward compensation on account of burn injuries by way of electrocution. Hon'ble Supreme Court in a catena of cases has ruled that in case it is established on record that the accident occurred due to negligence of the respondent/authority concerned, writ court can proceed to award compensation while exercising power under Article 226 of the Constitution of India. (See D.K. Basu v. State of W.B. (1997) 1 SCC 416, Rudal Shah.v. State of Bihar, (1983) 2 SCC 746 and MCD v. Subhagawanti & Ors. AIR 1966 SC 1750.) However, the Apex Court in case Chairman Grid Corpn. V. Sukamani Dass, (1999) 7 SCC 298, has held that if disputed questions of facts come on record, the same cannot be adjudicated by a writ court.

At this stage, it would be profitable to take note of the following paras of Chairman Grid Corpn. V. Sukamani Dass (supra):

“6. 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 theappellants, 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. Mere fact that the wire of the electric transmission line belonging to the appellant No. 1 had snapped and the deceased had come into 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 into 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 petitioner. 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 OJC No. 5229 of 1995.

Reliance placed by the learned counsel for the respondents on the decision of this Court in Shakuntala Devi v. Delhi Electric Supply Undertaking, [1995] 2 SCC 369 is really of no avail to the respondents. Even while entertaining a writ petition under Article 32 of the Constitution, in view of the peculiar facts of that case, this Court observed in clear terms that "the question of negligence of officials of Respondent 1 can be properly examined in a suit where correct facts can be established."

In that case, respondent No. 1 was directed to make payment of reasonable amount ex-gratia in exercise of the power under Article 142 of the Constitution and that too because respondent No. 1 had agreed to that course being adopted. The power which is available to this Court under Article 142 is not available to the High Courts, as observed by this Court in Sanchalakshri & Anr. v. Vijayakumar Raghuvirprasad Mehta & Anr. JT (1998) 8 SC 55.”

It is quite apparent from the aforesaid exposition of law that where disputed questions of facts are involved, petition under Article 226 of the Constitution of India is not a proper remedy. The question re: extent of negligence of the officials of the respondent/authority concerned thus can be properly examined in a suit, where correct facts can be established.

Though, in the case at hand, factum with regard to petitioner’s having suffered multiple burn injuries on account of electrocution has not been denied but the respondent Electricity Board while referring to some enquiry report submitted by an Enquiry Committee set up after the alleged incident, has taken a stand that the accident did not occur on account of negligence of its officials, rather same happened due to terrain/dangerous location/hill. Hence, we are of the considered view that the degree and extent of negligence on the part of officials of respondent Board is required to be proved in accordance with law, by the petitioner by leading cogent and convincing evidence in civil proceedings, if any, filed by him.

Though, we are fully alive and conscious of the fact that the damages/compensation as claimed in the present petition can not be determined/quantified in the instant proceedings, because question with regard to negligence and dereliction of duty on the part of employees of the respondent Board is required to be proved in accordance with law by the petitioner in the appropriate proceedings of law, but, having taken note of the fact that there is no dispute that the petitioner has suffered multiple injuries on account of electrocution, we deem it fit to award some compensation as an interim measure enabling him to meet his day-to-day expenses as well as legal expenses which he may incur on account of proceedings, if any, filed on his behalf for damages/compensation in the appropriate court of law.

Consequently, in view of discussion made herein above, present petition is disposed of with the direction to the respondents to pay a sum of 5.00 Lakh as an interim compensation to the petitioner within a period of four weeks. Needless to say, aforesaid amount awarded to the petitioner as an interim measure would be adjusted /counted towards the compensation, if any, granted in favour of the petitioner, in appropriate proceedings,which may be initiated by him.

Aforesaid judgment passed by the Division Bench of this Court is based on various judgments passed by Hon'ble Apex Court, as taken note therein. In the judgment supra, Division Bench of this Court, held that where disputed questions of facts were involved, proceedings under Article 226 are not proper remedy, but once factum with regard to electrocution is not denied, coupled with the fact that on account of electrocution, a person suffered permanent disability, some compensation as interim measure enabling him/her to meet his/her day-to-day expenses and legal expenses, which he/she may have to incur, on account of proceedings for damages/compensation in competent Court of law, can be granted in the proceedings filed under Article 226 of the Constitution of India.

Similar view has been taken by this Court in CWP No.2313 of 2019 titled Romi Devi v. Himachal Pradesh State Electricity Board Ltd. decided on 24.10.2019, CWP No.159 of 2020 titled Nisha Devi v. Himachal Pradesh State Electricity Board Ltd., decided on 11.11.2021 and CWP No.2463 of 2016, titled Dharamveer Sharma Vs. State of H.P. and Others, decided on 14.12.2023.

Consequently in view of detailed discussion and law taken into consideration, this Court deems it fit to dispose the present petition by directing the respondent-Board to pay sum of Rs.5.00 lakhs, as interim compensation to the petitioner, on account of death of his mother, within eight weeks, which amount shall be adjusted/counted towards compensation, if any, granted to the petitioner in appropriate proceedings, if any, initiated by him.  Ordered accordingly.

Observations made in the instant petition shall have no bearing on decision of case, if any, to be filed by petitioner before competent Court of law for damages, which shall be decided on its own merits.

In the aforesaid terms, present petition stands disposed of, along with all pending applications, if any.