JUDGMENT
Asok Potsangbam, J.
1. The writ petitioner is the mother of one Shri Samkuper Mawthoh who, while playing at the Children’ s Park of the Kharmalki locality in Malki, Shillong, came into contact with high tension electric wire on 06.10.1999 at about 5 P.M. and, thereupon, the minor son of the petitioner was electrocuted causing serious burn injuries to his person. The injured, who was 13 years old at that point of time, was taken to Shillong Civil Hospital from where the injured was referred to a Plastic Surgeon of Woodland Hospital, Shillong as the bum injury was grievous. At the Woodland Hospital, Shillong, the right arm of the injured, above the elbow, was amputated on the advice of the doctor at Woodland Hospital, Shillong. The petitioner, who is the mother of three sons including the injured, approached almost all the authorities including the Minister, Urban Affairs, Government of Meghalaya for payment of compensation on behalf of his minor son whose right arm was amputated as a consequence of the electrocution at the Children Park, without any contributory negligence. The petitioner who submitted a complaint to the police on 7.10.1999, was kept in dark about the progress of the FIR by the Officer-in-Charge of Laitumkhrah Police Station. East Khasi Hills District.
2. Having failed to evoke any positive response from the concerned authorities of the Government of Meghalaya, the petitioner approached this Court by filing this petition for a direction from this Court for holding an enquiry by a Judicial Officer of the level of District and Sessions Judge, into the circumstances and episode of electrocution of the petitioner’s son on 6.10.1999 at the Children Park of Kharmalki, Malki Shillong and fixation of liability of the concerned respondents for payment of compensation entitled to on account of electrocution leading to amputation of the right arm of the petitioner’s son.
3. In view of the denial of the liability by the State Respondents as well as the Meghalaya State Electricity Board, it also become necessary to enquire into the claim and counter claim of the parties on the question of electrocution of the son of the petitioner and, as such, by an order dated 17.8.2006, this Court directed the District and Sessions Judge, Shillong, to make an enquiry with regard to the incident and submit the report within a period of two months from the date of receipt of the order.
4. Pursuant to the direction of this Court, the learned District and Sessions Judge, Shillong held an enquiry in which 9 (nine) witnesses were examined by the petitioner and 10 (ten) witnesses were examined by the respondents. The enquiry report reveals that children of the locality used to play at the Children Park Kharmalki over which High Tension electric wire passed through. Carrying of High Tension wire from pole to pole, their maintenance, transmission of power and public safety required in this regard are the responsibility of the Meghalaya State Electricity Board. As per deposition of the Inspector of Electricity, Government of Meghalaya (R.W. No. 4) an internal enquiry was conducted by him and found that a huge 5 (five) tier sitting gallery was constructed at the aforesaid children park by two contractors on verbal instructions from one Shri T.C. Lyngdoh, MLA. No permission was ever obtained from the State Electricity Board to construct the gallery upto a height of three feet below the High Tension Wire. The enquiry report of the District and Sessions Judge also discloses that the height between the top of the gallery and the High Tension Power Line is only about 3 feet, so anyone can come into contact with the live wire from the top of the gallery. As per deposition of RW-10, the Director of Urban Affairs, Shillong, financial and technical sanction of the gallery have been issued by the Director of Urban Affairs, Government of Meghalaya and day to day supervision and construction of the gallery were supposed to be done by the Shillong Municipal Board. It is also stated that engineers of Shillong Municipal Board and Urban Affairs Department were involved in drawing the line and giving the site to the contractors. P.W-3 deposed that on 6.10.1999, the victim and the P. W-3 (afriend) went inside the children park and climbed the gallery in search of a ball and victim came into contact with a High Tension Wire and, as a consequence thereof, the victim fell down unconscious on the ground. The distance between the gallery and High Tension Wire was only 2/3 feet. The findings recorded by the learned District and Sessions Judge is quoted below:
On scanning of deposition of different P.Ws as well as R.Ws it is evident and apparent that the victim Sam Kapar Mawthoh came into contact with high tension electrical wire on 6.10.99 when he climbed and reached the top of the sitting gallery which was under construction at Children’s Park, Kharmalki.
On looking to Mt. Ext. 1 it is apparent that the electrical wire was passing between the electrical wire and the top of the gallery was not much even R.W. No. 8 also admitted that the distance between the top of the gallery and the electrical wire was about 3(three) feet which also reflect and found support from different witnesses.
From the deposition of different witnesses it is also clear that no signboard has been displayed indicating the danger or preventing entrance of public in the place of construction. It is also strange and unbelievable how a Headman or Durbar of the locality had no knowledge about the construction of the said gallery and why no steps have been taken from the Durbar as well as Contractors and Municipal authority to shift the high tension wire prior to construction of the said gallery. And from the deposition of R.W. No. 1 it appears that till date no officer has been entrusted by Me. S.E.B. to look after the public safety, which I feel is not proper and Me.S.E.B should take step to see to the safety of the public in general and children in particular. From the deposition it is evident that no formal permission has been obtained from the concerned authority though some officials of Municipal accompanied by Urban Officials visited the site of construction and drew the line, and also it is an admitted fact that while drawing the line for construction municipal Officials were aware about the presence of live high tension wire even though no step has been taken to remove the said wire from the place of construction nor Contractors who constructed the gallery had taken sufficient step to ensure the public safety. Therefore, I am of the considered view that, had the local Durbar, Shillong Municipal authority and the Contractors taken steps and remained vigilant keeping in mind the public safety in general such incident or accident could have been aborted.
5. From the report of the District and Sessions Judge and other documents available on record, it is fully established that the son of the petitioner was electrocuted on 6.10.1999 at Kharmalki Children Park after coming into contact with the live High Tension wire belonging to the State Electricity Board and, as a consequence thereof, the right arm of the petitioner’s son was amputated. It is also admittedly established that no permission was obtained for construction of the gallery in the children park either from the Headman of the Durbar of the area or from the Electricity Board. However, it is apparent that all the concerned authorities were aware of the construction of a huge gallery in the children park, which would have taken not less than six months. It is not the case of Me. SEB (Respondent No. 2) that they ever objected to, before, during and after completion of the construction of the five tier gallary which nearly touched the High Tension live wire passing through the children park.
6. The plea to disown the liability to pay compensation by the Urban Affairs Department, Government of Meghalaya, is not sustainable as the Department, while according financial and technical sanction for construction of the gallery, is presumed to have examined the pros and cons of the proposal for construction of the gallery within the space of a children park and other requirements of law. Further, the site plan was drawn by the engineers both from the Shillong Municipal Board and Urban Affairs Department, Shillong Municipal Board, which is under the administrative control of the Urban Affairs Department, is admittedly headed by an officer appointed by the Urban Affairs Department. Under the circumstances, the Urban Affairs Department is liable for contributory negligence of not obtaining necessary clearance required by law before the technical and financial sanctions were issued. Secondly, the Maghalaya State Electricity Board cannot disown its liability to pay compensation as it is their High Tension wire which passed through over a Children Park and that they cannot deny knowledge of the construction of the gallery which could have possibly taken not less than six months and non appointment of the Public Safety Officer is also another factor which cannot be lost sight of.
7. Applying the principles of strict liability, the Electricity Board can also be fastened with pecuniary liability under the Doctrine of Strict Liability, and the Apex Court have laid down the principles of strict liability at relevant paras –7 and 8 of the Judgment in (2002) 2 SCC 162 (M.P. Electricity Board v. Shail Kumari and Ors.) and the same are quoted below:
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 added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain 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 lookout 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. By now the petitioner’s son has become major and is apparently about 21 years old and he has not only suffered permanent disability but also has been deprived of right to grow as a normal young man and he has to spend the rest of the life without his right arm. Because of the loss or right arm, he cannot be employed in all kind of works, neither can he make a sufficiently decent earning with one hand and there is a miserable life ahead.
9. From the discussion made above, it can be safely concluded that both the Department of Urban Affairs and Meghalaya State Electricity Board are jointly and severally liable to pay compensation to the petitioner or to her son, who has by now become a major.
10. Having regard to all aspects of the matter, I am of the opinion that the petitioner or her son is entitled to an amount of Rs. 3 lakhs by way of compensation and 50% of this amount shall be paid by the respondent No. 2 i.e. Meghalaya State Electricity Board and the remaining 50% of the amount shall be paid by the Secretary, Department of Urban Affairs, Government of Meghalaya within a period of two months from today, failing which the aforesaid amount will carry interest at the rate of 714 percent per annum after a period of two months from today.
The writ petition is allowed subject to above directions. No costs.
