Bhagyabai v. Principal Secretary Department Of Energy Vikasa Soudha

JUDGMENT

The appellants herein were the petitioners in WP Nos. 20266/20270/2010. They had filed the said writ petition seeking for compensation of Rs. 10,00,000 with interest and also for a direction to the respondent to provide employment to the first appellant. The learned Single Judge has dismissed the writ petition reserving liberty to the petitioner to institute such legal proceedings as is permissible in law before a competent Court of law for recovery of compensation/damages. The petitioners claiming to be aggrieved by the said order dated 6-7-2010 are in appeal.

2. The brief facts on which the said relief was sought is that on 31-8-2008, the husband of the first appellant and the father of the appellants 2 to 3 died on account of electrocution. In this regard, the appellants had alleged negligence on the part of Bangalore Electricity Supply Co. (hereinafter referred to as the ‘BESCOM’ for short). It is contended that the deceased Thimmanaik, who was aged 35 years, being a daily wage agricultural labour had come into contact with the illegally electrified fence erected in the filed of one Sathya Goel. In this regard it was alleged that the respondents viz., BESCOM were negligent in not taking precaution in preventing the drawing of the illegal connection which ultimately lead to the death of Thimmanaik. The father of the deceased is also said to have lodged a complaint and the death of Thimmanaik due to electrocution was also established by the post-mortem report. The respondents at their end had also secured a report dated 3-12-2008 which indicated that Thimmanaik died of electrocution on coming in contact with illegally electrified fence. The appellants after obtaining all the particulars under the Right to Information Act, 2005 filed the petition.

3. The learned Single Judge though had noticed the legal position with regard to the fact that a person undertaking the activity having hazardous risk to life is liable to pay compensation for injury suffered by another person, irrespective of any negligence or carelessness on the part of such undertaking and also though accepting that the doctrine of ‘strict liability’ would apply, however, did not grant the compensation on the ground that there was no material to establish that the fence erected by Sathya Goel to protect the boundary of his land was charged with electricity. Hence had come to the conclusion that the said fact being in dispute, the BESCOM cannot be held liable.

4. In the above background, we have heard the learned counsel for the appellant as also the learned counsel for the respondents and perused the appeal papers.

5. Firstly, the aspect for consideration at the outset would be as to whether the fact of the said Sathya Goel having charged with electricity, the fence around his property illegally, is a disputed question or as to whether the admitted material on record would establish this aspect. In this regard, the first information report at Annexure-D would indicate that the father of the deceased had lodged a complaint to the Police stating that the owner of the land Sathyaprakash and others had unauthorisedly electrified the fence. The name Sathyparakash is referable to Sathya Goel. Pursuant to the same, the subsequent proceedings have taken place.

6. Insofar as the respondents are concerned, the documents at Annexure-G viz., the report submitted by the office of the Deputy Electrical Inspector, North Sub-division to the Principal Secretary Department of Power would indicate that for carrying out the investigation and preparing the report, the first information was received by the Deputy Electrical Inspector on 1-9-2008 from the Assistant Executive Engineer of the BESCOM. The reason for the accident depicted therein is that in the night at about 8.30 p.m of 31-8-2008 when the deceased Thimmanaik went in search of lost cow without knowing that the barb wire fence has been unauthorisedly electrified, he came into contact with it and died. The explanation in the report also refers to the fact that the land belongs to Sri. Sathyaprakash and he has erected barbwire fence all around his land. It is also stated that it is the regular practice for him to unauthorisedly electrify the fence in the night. The watchman of the said land, even on the said date (31-8-2008) had given electricity connection to the barb wire fence. The decision in the report is also that Sri. Sathyaprakash and the watchman Sri. Thimmarayappa, who have unauthorisedly electrified the barb wire fence have violated Rule 36(2) of Indian Electricity Rule, 1956 and therefore are responsible. Further the documents at Annexures-L and P whereunder the BESCOM has sought to reply the appellants with regard to their claim relating to compensation would indicate that the nature and fact of the accident by which the death had occurred had not been disputed but, the contention has been that the land owner and the watchman are liable to pay the compensation and not the BESCOM.

7. In the above stated circumstance, it would be appropriate to refer to the decision in the case of Madhya Pradesh Electricity Board v. Shail Kumari (AIR 2002 SC 551) relied on by the learned counsel for the appellant. In the said case, though the trial Court had come to the conclusion that the claimants are entitled to the compensation of Rs. 4,34,000 as against the claim of Rs. 6,90,000, had dismissed the suit only on the ground that the claimants failed to prove who was liable to pay the determined compensation. When the parties were before the High Court of Madhya Pradesh, the Division Bench allowed the appeal and directed the Electricity Board to pay the compensation, which had been determined. In that circumstance, when the Electricity Board had called in question the judgment of the Division Bench before the Hon'ble Supreme Court, the appeal was dismissed. In the said decision, the Hon'ble Supreme Court has observed as hereunder:

“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 look out 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.

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.”

8. The said conclusion had been reached by the Hon'ble Supreme Court after noticing the contention on behalf of the Electricity Board that the death had occurred in a circumstances where one Hari Gaikwad had taken a wire from the main supply line in order to siphon the energy for his own use and the said act of pilferage was done clandestinely without the notice of the board. The said contention was however not accepted by the Hon'ble Supreme Court.

9. In that circumstance, though the learned counsel for the respondent/BESCOM has relied on the decision of the Hon'ble Supreme Court in the case of S.D.O Grid Corporation of Orissa Ltd. v. Timudu Oram [(2005) 6 SCC 156], the same would not assist the contention of the respondent.

10. The facts in the said decision cannot be said to be analogous, since, firstly the petition under Article 226 of the Constitution of India was filed belatedly after a civil suit had already been dismissed on the same cause of action; secondly, the decision in the case of Shail Kumari cited by the learned counsel for the appellants herein, though noticed by the Hon'ble Supreme Court, has not been commented upon or disapproved in the said decision, though subsequent, but, has only been distinguished as not applicable to the facts which was being examined by the Hon'ble Supreme Court. In that background, since we have already noticed that a similar defence as put forth in the case on hand has been rejected by the Hon'ble Supreme Court in the case of Shail Kumari wherein it was held that the dependants of the deceased were entitled to compensation, in the instant case also, the appropriate compensation is to be determined and granted.

11. Having arrived at the conclusion that the appellants are entitled to compensation, for determining the quantum of compensation, it would be appropriate to take guidance from the decision of the Hon'ble Supreme Court in the case of Smt. Sarla Verma v. Delhi Transport Corporation (AIR 2009 SC 3104), since all parameters relating to grant of compensation has been considered therein, though it was in the context of Motor Vehicles Act. Towards quantification compensation, no doubt, the appellants have contended that the deceased was aged 35 years. However, the post mortem report and the investigation report relied on by the appellants depict the age as 40 years. Hence, it would be appropriate to reckon the same. As such ‘15’ will be the multiplier to be applied. Relating to the income, though it is contended that he was earning a sum of Rs. 250 per day, the same is not supported by any material. However, the avocation of the deceased as a daily wage agricultural labour is not in dispute inasmuch as the investigation report also would refer to this fact. Further considering that he had four dependents and since the family was residing in Bangalore Rural District, almost at the periphery of the urban area, the daily income in any event, can be reckoned at Rs. 130. The monthly income would therefore be in sum of Rs. 3900. Out of the said amount, a sum amounting to one-fourth is to be deducted for personal expenses since he had four dependents. The loss of dependency per month would be in a sum of Rs. 2925 which accordingly is a sum of Rs. 35,100 per annum. Applying the multiplier of 15, the total loss of dependency would be in a sum of Rs. 5,26,500 which is to be awarded as compensation. The said sum is awarded as a global compensation and the claimants would not be entitled to claim any interest on the said amount except for the period, if there is any default in paying the amount awarded herein within the time frame.

13. Though a prayer was made in the writ petition seeking for mandamus to provide employment to the first appellant in BESCOM, the learned counsel for the appellant would fairly submit that the said prayer is not pressed. Accordingly, the said prayer stands rejected.

14. In the result, we pass the following:

ORDER

i) These writ appeals are allowed in part.

ii) The respondent No. 2 is directed to pay the total sum of Rs. 5,26,500 (Rupees Five Lakhs Twenty Six Thousand Five Hundred only) as compensation to the appellants, which shall be apportioned in equal proportion among the appellants.

iii) The said amount shall be paid by the second respondent within a period of eight weeks from the date of receipt of a copy of this order, failing which the said amount shall carry interest at 9% p.a from the date of expiry of eight weeks till the date of payment.

iv) The disbursement to the first appellant shall be made by way of demand draft. The amount apportioned to the share of appellants No. 2 to 4 shall be kept in fixed deposit in a Nationalised Bank by the second respondent in consultation with the first appellant, for a period of three years and the fixed deposit receipts shall be handed over to first appellant who is their natural guardian, under acknowledgment.

v) The parties shall bear their own costs.