1. By this writ application the petitioners have claimed compensation of a sum of Rs. 50 lacs on account of the death of one Satish Chandra Samanta since deceased, resulted in electrocution owing to alleged negligence on the part of the respondent No. 1 and/or its officials.

2. The fact of the case as it runs in the petition, in gist is stated hereunder:

The said deceased was late father of petitioner Nos. 1, 3, 4 and 5 and late husband of the petitioner No. 2. He was the absolute owner of the property bearing Dag Nos. 604 and 609 appertaining to Khatian Nos. 763/3 and 763/4 under Mouza Chautara within the Dhaniakhali Police Station in the district of Hooghly. He along with the aforesaid members of the family till his death had been residing at the said plot of land in a small house built on a portion thereof. He got electric connection for running a shallow-tube well given by respondent No. 1. His complaint was that without his consent from the point of his aforesaid electric connection an overhead electric line was drawn to give supply line to the other villagers. The said supply line was drawn without keeping minimum horizontal distance over his residential house. During his lifetime he made complaint to the authority concerned followed by proceeding under Section 144 and 107 of the Code of Criminal Procedure before the appropriate forum. Having found no tangible result he came to this Court by filing an application under Art. 226 for removal of the aforesaid overhead line. The said writ petition (hereinafter referred to as the first writ petition) was disposed of by His Lordship the Hon'ble Mr. Justice S.B Sinha (as His Lordship then was) by passing an order dated 2nd July 1997, whereby His Lordship was pleased to observe amongst others that the respondent No. 1 is obliged to observe Rule 79 of the Electricity Rules. Therefore, His Lordship was pleased to direct the Divisional Engineer, West Bengal State Electricity Board, Chandannagar, to inspect personally the said overhead line to ascertain whether Rule 79 of the aforesaid Rules had been complied with or not. In the event of non-compliance, there shall be forthwith disconnection of the electricity supply through the overhead line.

3. In spite of communication of the aforesaid order nothing was done so the said deceased filed a second writ petition being numbered 2876 (W) of 1997 and prayed for amongst others removal of the electric pole erected unlawfully on the land of the petitioner and disconnection of electric service connection given through the overhead illegal transmission line. His Lordship Hon'ble Mr. Justice P.C Ghose disposed of the second writ petition finally on 13th January, 1998 whereby His Lordship was pleased to direct the respondent No. 1 to take necessary steps for removal of the transmission line after making an enquiry into the allegations made by the petitioner in the writ petition. The Secretary of the respondent No. 1 was also directed to take all necessary steps in this matter in the light of the order passed by S.B Sinha, J. in the first writ petition within four weeks from the date of communication of the order. In spite of the aforesaid two orders no step was taken either by removal of electric pole or by disconnection of supply line.

4. On 2nd July, 1998 the said Satish Chandra Samanta died of electrocution occurred due to illegal installation of electric pole erected in his property, and for negligent failure to remove the same in deliberate disobedience of the orders dated 2nd July, 1997 and 13th January, 1998.

5. In the affidavit-in-opposition filed by the respondent No. 1 it has denied and disputed its liability and/or obligation to pay any compensation, and the allegations of negligence has also been denied and disputed. It is stated annexing supporting document that in due compliance of the orders of this Court every step was taken but the said deceased did not co-operate with its officials. In terms of the order of the learned Magistrate enquiry was held and it was found that horizontal distance from the top of the house of the aforesaid deceased was kept in accordance with the Rules and there was no violation nor any infraction of any of the provisions of the law. In the affidavit-in-opposition however, it has been admitted the factum of death due to electrocution. In the said affidavit in opposition it is further stated, without any supporting document, that actually the said deceased used to consume electric energy by unauthorised abstraction from the line and while attempting to do so the said deceased died of electrocution. As such the respondent No. 1 has no obligation to make payment of compensation, as there was no negligence on its part, rather it was of his misdeed, which had caused his death. It is stated further that no complaint was made and no FIR was lodged. However, it is admitted there is a system and/or procedure for ex gratia payment of compensation in the event any death occurred due to any accident in the electricity line and this is done after making an enquiry. In the affidavit-in-opposition maintainability of the action has also been challenged.

6. In course of hearing having noticed statements and averments made in the affidavit in opposition to the effect that no Police Case was initiated nor any FIR was lodged, I directed the Officer-in-Charge of Dhaniakhali Police Station to produce the relevant records relating to Police Case No. 60 of 1998, since a copy of the post mortem report was annexed to the writ petition. On production of the records it appears that an investigation was undertaken, but finally they dropped the case in view of the final report being accepted by the learned SDJM. In the final report it was stated that though there was a case of unnatural death due to electrocution but there was no foul play.

7. The learned Lawyer for the writ petitioners contends that admittedly the aforesaid person died due to electrocution. Admittedly, before his death he fought for the negligence of the respondent No. 1 at different stages before two different Courts. In spite of the Courts order the said pole was not withdrawn nor the electric connection, which was drawn by an overhead line, was removed. Had the respondent No. 1 and its official acted in terms of the order of the Court the electric line could have been withdrawn and the aforesaid person would not have died. This failure amounts to culpable negligence. As such the respondents are bound to compensate for the loss suffered by the petitioners owing to death of the sole bread earner. In view of his death the petitioners and each of them have been almost starving and the minor daughters had to terminate their studies prematurely, as a result the income of the petitioners after the death of their father have become absolutely uncertain. In support of his submission he has relied on a decision of the Supreme Court reported in (1995) 2 SCC 369 : (1995 AIR SCW 1436).

8. Mr. Sumit Panja learned Lawyer appearing for the respondents contends that there is no dispute that the Court has ample power under Art. 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 Art. 142. What the Apex Court can do under Art. 142 cannot be done by the High Court even overstretching power under Art. 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 Art. 226 of the Constitution of India. In support of his submission he has relied on the decision of the Supreme Court reported in (2000) 4 SCC 543 : (AIR 2000 SC 1603), AIR 1996 Kerala 337, (1994) 2 SCC 630 : (AIR 1994 SC 1808) and (1999) 9 SCC 40 : (AIR 2000 SC 3638).

9. Having heard the respective contention of the learned Counsels for the parties I am not oblivious of the legal proposition as to what power High Court has under Art. 226 of the Constitution of India to award compensation in case of death in illegal infringement of fundamental right of any person including a foreigner. Such infringement may arise because of the illegal act and negligent omission. This negligent omission must be related to statutory provision, and undisputed one. The citation of Mr. Panja, of the Supreme Court decision reported in (2000) 4 SCC 543 : (AIR 2000 SC 1603) is a guide to proceed in a case of this nature. This judgment of Supreme Court has analysed and explained the previous decisions of the Apex Court in paragraph 10 amongst others that:

“10. …….. It may not be necessary to examine any, further the question if Art. 226 makes a divide between public law and private law. Prima facie from the language of Art. 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 Art. 226 while empowering the High Court for issue or 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 writ of habeas corpus, mandamus, prohibition, quo warranto and certiorari, they are certainly founded on the English directions and orders which can be issued to any person or authority including in appropriate cases, any Government…………”

10. 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 Art. 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.

11. In the context of the aforesaid legal proposition now it has to be examined whether the writ petition can succeed in this public law field or not. In the body of the writ petition it has not been stated categorically or specifically how and where the said deceased got electrocuted, was he electrocuted at his residential house or at the agricultural fields. The writ petitioners have tried to project the story of negligence of the respondent No. 1 because of failure on the part of the officials of the respondents for taking any action for removal of alleged illegal erection of the pole and drawing overhead electric connection above his residential house in terms of the orders of this Court. From the affidavit-in-opposition I find as has been rightly pointed out by Mr. Panja the officials of the respondents duly carried out not only the orders of this Court but also the order of learned Magistrate. Accordingly, it was found the overhead connection was not drawn illegally and this was drawn in accordance with the provision of the Rules. But admitted position is that the said person died. The respondents dismissed the case of negligence what the petitioners state.

12. But I got independent materials namely records of the Police Case, which was initiated immediately on death of the aforesaid person. Copies of such report were also supplied to the Board. No further affidavit was filed challenging the correctness of the report and records. I have seen the inquest report, copy of the written complaint made by the third party and also the final report which was prepared by the Investigating Officer after examining various witnesses under Section 161 of the Criminal Procedure Code. From the copy of the complaint lodged by one Sukumar Mallik and the villagers contemporaneously and also the final report it appears that the aforesaid deceased was of 64 years of age. The said deceased went to graze his cow in the agricultural field and he got contacted with the live wire spiraling electric pole. This coiled wire around electric pole was within the reach of any person. Anyhow he got electrocuted and he died instantly.

13. From the report it is clear that the electric pole and its accompanying spiralled wire was not properly maintained and looked after. It was the duty rather liability of the officials of the respondent No. 1 to take care of the electric installation, its live wire with proper and reasonable precautionary measure, so that there may not occur any accident that might result loss of lives and destruction of property. The final report, though says that there was foul play, but the aforesaid fact reveals clear case of negligence, it may not be termed to be criminal or culpable one but it is no doubt an actionable wrong. Negligence may be defined in various ways. If anything is omitted to be done under the statute either deliberately or indeliberately the case of negligence is established to grant compensation.

14. Therefore, I hold this fact of negligence has been established, as the aforesaid findings of the final report have not been challenged. Moreover, I find in the affidavit-in opposition in its paragraph 3(q) that respondent No. 1 has devised a package wherein compensation is paid to the heirs of the members of the public killed or injured by an accident in the Board's installation. Such payment however, is subject to the findings of the Enquiry Committee constituted by the competent authority under existing order provided the victim was not at fault in the accident.

15. In spite of having received the information of death due to electrocution no enquiry was undertaken. The aforesaid incident of death is certainly one kind of accidents. The Board nowhere in affidavit stated that all possible precautionary measure were taken as far as the electric poles and line are concerned. It was their special knowledge to establish so. The factum of death in a case of this nature per se suggest presumption of negligence of the Board, until it is disproved by cogent evidence. Moreover, the victim before his death came to this Court for relief in reference to this electric connection and line. As such in this case it cannot be said that the respondent No. 1 has no liability to make any compensation. The respondent in its own saying had said that in case of death a sum of Rs. 50,000/- is paid by way of ex gratia.

16. Therefore, I think in this case the petitioners being the next kin of the aforesaid deceased are entitled to get compensation. Now what could be the amount is the precise question, could the amount be what is claimed by the petitioners, or any other approximate amount which could have been earned reasonably by the deceased had he been alive. I am of the view that the petitioners are not entitled to what they have claimed. According to me the sum is extraordinarily tall claim. It was quite improbable for a labour-cum-small agriculturist like the victim to earn so much of amount as suggested in the petition. Nothing has been produced to prove that he had ability to earn from his all known sources the amount mentioned in the petition. The deceased at the time of his death was 64 years of age, going by the longevity of the Indian working class in agriculture sector, he could not have earned after attaining the age of 70 years with his working ability, even going by the highest estimation. It is common knowledge that the villagers are more stout and stable and have working ability than that of counter part in urban area. The victim died at the age of sixty four years, he could earn six years more for livelihood for himself and for the members of his family consisting five in numbers. He could comfortably maintain this family of six members including of himself and could meet his other social obligation from his own income. Therefore, in order to maintain this family with a living wages one has to has earned Rs. 4,000/- at least in a month. Then it goes to Rs. 48,000/- in a year. This amount would be Rs. 2,88,000/- and I think after giving deduction amounting to Rs. 38,000/- taking into consideration his illness and infirmity during his lifetime. So the reasonable compensation should be around Rs. 2,50,000/-. Accordingly I direct the respondent No. 1 to pay the sum of Rs. 2,50,000/- to the petitioners within a period of 8 weeks from the date of communication of this order. Failing which this amount will carry interest at the rate of 10 per cent per annum until realization.

17. The petitioners are entitled to cost in additions thereto assessed at Rs. 3000/- to be paid by the respondents.

Order accordingly.