P.C Misra, J.:— The petitioner in this writ application is an unfortunate father whose son Abhiram Lal died on 9-6-1988 at about 1.00 a.m near Manikghosh bazar in the town of Cuttack having come in contact with a live electric wire detached from the electric pole. He was coming on a bicycle and could not know of the existence of the hanging live wire and got electrocuted when he came in contact with the said live wire. The petitioner has prayed for a direction to the opposite parties to pay adequate compensation which, according to the petitioner, occurred on account of the gross negligence of the Electricity Board.

2. The petitioner has alleged that the Electricity Board is guilty of negligence as due care and caution was not taken by it for maintenance of the electric wires used for supply of electricity and it has further been alleged that in spite of information to the local electric sub-station, no preventive action was taken to disconnect the power line even after the detachment of the live wire from the electric pole. The petitioner issued a notice to the Electricity Board on 2-11-1989 claiming a compensation of Rs. 1,00,000/- (Rupees One lakh only) copy of which is Annexure 1 to the writ application. Since no action was taken on the aforesaid application, the petitioner has filed this writ application for appropriate relief.

3. Notice was issued at the stage of admission to the opposite parties indicating therein that the writ application is likely to be disposed of at that stage. On receipt of the notice the opposite parties have filed a counter-affidavit denying their liability to pay any compensation to the petitioner. In the counter-affidavit it has also been stated that the death of the petitioner's son was not due to rash and negligent conduct of the opposite parties, but it was due to unavoidable causes for which the opposite parties are not responsible. There was stormy weather on the fateful night and due to storm the live wire on the electric pole got detached. According to the opposite parties, the Electricity Board cannot be held responsible for snapping of live electric wire due to stromy weather in the dead of the night. The maintainability of the writ application has also been challenged on the ground that alternative remedy by way of suit is available to the petitioner. The opposite parties have also contended that this Court exercising writ jurisdiction would not be the proper forum for determination of the quantum of compensation as the same would depend on various other factors mostly involving disputed questions of fact.

4. Though the counter-affidavit filed by the opposite parties was captioned as ‘Preliminary Counter Affidavit’, the learned counsel appearing for the opposite parties submitted that he has nothing further to add to the said preliminary counter-affidavit. The writ application, therefore, was taken up for final disposal at the request and consent of both sides.

5. The death of petitioner's son Abhiram Lal on 9-6-1988 in the dead of the night being electrocuted coming in contact with a live hanging electric wire has not been disputed. At the hearing it was contended by the learned counsel appearing for the opposite parties that the above fact is not sufficient by itself to hold that the opposite parties are liable to compensate the petitioner unless it is proved that the opposite parties were negligent and as a result thereof the petitioner's son met his death. To elaborate the aforesaid point it has been contended by the learned counsel appearing for the opposite parties that the weather was stormy and a live wire having been detached from the pole could not be noticed in the dead of the night According to the opposite parties, the petitioner would not be entitled to any compensation from the Electricity Board without proof of the element of negligence in the aforesaid circumstances. In reply to the aforesaid contention the learned counsel appearing for the petitioner has urged that the petitioner's son having died because of a detached live wire from the electric pole it is for the Electricity Board to place the facts and circumstances from which their negligence could be ruled out.

6. In the given circumstances of this case, the question for determination is as to whether the petitioner is entitled to compensation from the opposite parties without proving as to how the accident took place. It is well established in law that in an action for damage in tort, the general rule is that onus to prove negligence on the part of the respondent rests on the claimant. But there are cases in which the claimant is not in a position to produce evidence as to the negligence of the respondent which caused the accident. In those cases it may be that the claimant would not be in a position to know the true cause of the unfortunate action. In some of the such cases the cause of accident, though not known to the claimant might be within the special knowledge of the respondent. The rule of evidence accepted by all courts of law put the onus on the respondent to prove that the accident was not on account of negligence on its part where the circumstance leading to an accident is such that it is improbable that it would have occurred without the negligence of the respondent. The aforesaid rule of evidence is commonly known as “res ipsa loquitur”. The said maxim applies in action for negligence in which the accident speaks for itself. In such cases the claimant is not required to allege and prove any specific act or omission on the part of the respondent. If he proves the accident and the attending circumstances so as to make the aforesaid maxim applicable, it would be then for the respondent to establish that the accident happened due to some cause other than his/its negligence. The petitioner's son in this case was moving on a bicycle on the public road. His movement on the road on a bicycle was not the cause of his death. His death was due to electrocution having come in contact with the live electric wire. The electric wires have been carried supported by the electric poles, the maintenance of which is admittedly the duty of the Electricity Board. Any live wire getting detached from the pole is likely to cause loss of life. The responsibility of the Electricity Board is, therefore, all the more greater for its maintenance by replacement of wire, checking of the points where the wire has been joined or fixed to the pole and to take all precautions to use materials which would stand a stormy weather. The very fact that live wire in a stormy weather which caused the death of the son of the petitioner was detached from the pole and was hanging over the road makes the maxim ‘res ipsa loquitur’ applicable and in such event, it is not for the petitioner to prove any specific act or omission amounting to negligence of the Electricity Board. In these circumstances, the burden lies on the opp. parties to establish that the Electricity Board was not negligent. The opp. parties have failed to establish that the accident occurred due to some cause other than the negligence of the Electricity Board. The petitioner is thus entitled to compensation from the opp. parties on account of the death of his son which in the circumstances must be held to be due to negligence of the Electricity Board in maintaining the electric wire running over the poles (vide 1987 ACJ 880 : (AIR 1988 Ker 206) Thressia v. Kerala State Electricity Board).

7. The petitioner in this writ application has alleged that his son was aged 22 years at the time of unfortunate death. He was working as a worker in the Goldsmith shop and was earning Rs. 900/- per month, out of which he was contributing a sum of Rs. 500/- to the family of the petitioner. In his notice in Annexure-1, the petitioner claimed a compensation of Rs. 1,00,000/- from the opp. parties. The determination of the quantum of compensation would evidently depend upon various factors including the age of the deceased at the time of accident, his earning capacity, expected longevity and the contribution he was making to the family out of his income, if any. As rightly contended by the learned counsel for the opp. parties, these facts cannot be determined without opportunity being given to both the parties to lead evidence. From the mere averments in the writ application, it is not possible for this Court exercising writ jurisdiction to determine due compensation, if payable to the petitioner. We, therefore, leave it to be decided by the competent court.

8. During the course of argument the learned counsel appearing for the petitioner urged that the petitioner should be granted an interim compensation without which it may not be possible for him to live or to take any action for determination and realisation of the compensation which he may be entitled to. He has relied upon a decision reported in 1988 ACJ 1083 : (AIR 1988 HP 13). (Jaram Singh v. State of Himachal Pradesh) in which their Lordships awarded an ad hoc or ad interim compensation of Rs. 30,000/-. Even though the accident had occurred on 9-6-88 and the petitioner had sent a notice claiming compensation of Rs. 1,00,000/-, no action appears to have been taken by the Electricity Board to investigate and find out the true cause of snapping of the live wire and the petitioner's claim has not been considered in its own merits. He does not appear to have been favoured with any reply to the notice in Annexure-1. The callous indifference of the opp. parties in the matter is shocking. We are fully in agreement with the view of their Lordships in the aforesaid case (1988 ACJ 1083) and allow an ad hoc interim compensation of Rs. 30,000/- (Rupees Thirty thousand) to be paid to the petitioner by the Electricity Board.

9. In the result, we allow the writ application awarding an ad hoc interim compensation of Rs. 30,000/- to be paid to the petitioner by the opp. parties within two months from the date of receipt of the writ and further direct that effort should be made to amicably settle the due compensation payable to the petitioner within a reasonable period not exceeding four months failing which the petitioner would take recourse to appropriate court of law for appropriate relief. Since we have awarded interim compensation, we do not want to award costs against the opp. parties.

S.K Mohanty, J.:— 10. I agree.

Petition allowed.