JUDGMENT
M.B.K. Singh, J.
1. This writ appeal arises out of the judgment and order dated 7.6.2005 passed by a learned Single Judge of this court in Writ Petition (C) No. 1636 of 2003 thereby directing the present appellants, who are the respondents in the writ petition, to pay a sum of Rs. 1,20,000/- with interest @ 12% per annum from the date of presentation of the writ petition till the realization to the present respondent, who is the writ petitioner, in connection with the death of his wife due to electrocution.
2. We have heard Mr. A. Jagat, learned Govt. Advocate appearing on behalf of the appellants and Mr. S. Rupachandra, learned Counsel appearing on behalf of the respondent, at length.
3. The following are the main grounds of objections submitted on behalf of the appellants challenging the impugned judgment and order:
(i) There are disputed questions of facts in the case and as such, the learned Single Judge should not have entertained the writ petition;
(ii) In the absence of clear negligence on the part of the Electricity Department, the learned Single Judge should not have passed the impugned judgment and order; and
(iii) In view of the existence of a Scheme of the Government for the payment of ex-gratia @ Rs. 50,000/- in respect of death due to electrocution, the learned Single Judge should not have directed either for payment of any compensation or any amount exceeding Rs. 50,000/-
4. The learned Counsel of the appellants draws our attention to the decision of the Hon’ble Supreme Court made in S.D.O. Grid Corporation of Orissa Ltd. and Ors. appellants v. Timudu Oram, respondent as the basis of the above said first and second grounds of objections. In the above referred case, the Hon’ble Supreme Court considered the question if the High Court was justified in exercising its powers under Article 226 of the Constitution of India and awarding compensation to the respondent/writ petitioner even though the appellants, who were the respondents in the writ petition, had denied the liability on the ground that the death had not occurred as a result of their negligence but because of negligence of the respondent themselves or an act of God or because of an act of some other persons. Relying to its earlier decision made in the Chairman, Grid Corporation of Orissa Ltd. v. Sukamani Das (Smt.) AIR 1999 SC 3412, the Hon’ble Supreme Court held to the effect that the High Court was not justified in exercising its power under Article 226 of the Constitution of India. In the opinion of the Hon’ble Supreme Court, since the appellants had disputed the negligence attributed to it and since no finding was recorded by the High Court that the GRIDCO was in any way negligent in the performance of its duty, on the basis of the decision made in Chairman, Grid Corporation of Orissa Ltd. (supra), the High Court was not justified in awarding compensation in exercise of its power under Article 226. It is to be noted that in S.D.O. Grid Corporation of Orissa Ltd. and Ors. (supra), no consideration was made regarding applicability or otherwise of the rule of strict liability in a case of death due to electrocution.
5. The above said decision in Chairman, Grid Corporation of Orissa Ltd. v. Sukamani Das (supra) was explained and limited by the Hon’ble Supreme Court in T.N. Electricity Board v. Sumathi and Ors of the latter case, it was held that:
In view of the clear proposition of law laid by this court in Sukamani Das case, when a disputed question of fact arises and there is clear denial of any tortious liability remedy under Article 226 of the Constitution may not be proper. However, it cannot be understood as laying a law that in every case of tortious liability recourse must be had to a suit. When there is negligence on the face of it and infringement of Article 21 is there, it cannot be said that there will be any bar to proceed under Article 226 of the Constitution. Right to life is one of the basic human rights guaranteed under Article 226 of the Constitution.
Thereafter, the Hon’ble Supreme Court referred to U.P State Coop. Land Development Bank Ltd. v. Chandra Bhan Dubey and quoted paragraph 27 of the said decision.
6. Further, in Parvati Devi and Ors. v. Commissioner of Police, Delhi and Ors. , the Hon’ble Supreme Court held that once the fact of death by electrocution while walking on road is established, authorities concerned (NDMC in the case) must be held to be negligent and thus responsible for the death. In the said case, the Hon’ble Supreme Court directed NDMC to pay compensation of Rs. 1 lakh to the legal heirs of the victim. In the above said case, though the Hon’ble Supreme Court did not consider the maxim of res ipsa loquitur, apparently it was applied while concluding that NDMC was negligent in the facts and circumstances of the case. It is to be noted that as a rule mere proof that an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstance constituting the accident in a particular case, may themselves proclaim in clear and unambiguous voice the negligence of somebody as the cause of the accident. It is to such cases that the maxim res ipsa loquitur may apply.
7. In M.P. Electricity Board v. Shail Kumari and Ors. , the Hon’ble Supreme Court held the State Electricity Board liable to pay compensation in connection with the death of a person due to electrocution arising out of any negligence or carelessness on the part of the Board on the principle of strict liability. In the said case, a live wire snapped and fell on the public road which was partially inundated with rainwater. Not noticing that wire, a cyclist, while returning home at night, rode over the wire which twitched and snatched him and he was instantaneously electrocuted. The claim for damages made by the dependants of the deceased was resisted by the appellant State Electricity Board on the ground that the electrocution was due to a clandestine pilferage committed by a stranger unauthorisedly siphoning the electric energy from the supply line. The High Court directed the Board to pay compensation of Rs. 4.34 lakhs to the claimants. While dealing with the appeal filed against the Chairman against the decision of the High Court, the Hon’ble Supreme Court held at paragraph Nos. 7 and 8 as follows:
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 form 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 6r 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 caking precautions.
8. After noting the rule of strict liability had been followed in India in many earlier decisions, the Hon’ble Supreme Court applied the said rule of strict liability propounded in Rylands v.
Fletcher 1981-73 All ER, Rep 1 and dismissed the appeal. The Board made an attempt to
rely on the exception to the said rule of strict liability being “an act of stranger”. The Hon’ble Supreme Court held that the said exception was not available to the Board as the act attributed to the stranger should reasonably have been anticipated or at any rate its consequences should have been prevented by the appellant-Board. The Hon’ble Supreme Court referred to the decision of the Privy Council in Quebec Rly. Light, Heat, Power Company Ltd. v. Vandry 1920 AC 662 wherein the Privy Council held that the company supplying electricity is liable for the damages without proof that they had been negligent. Even the defence that the cables were disrupted on account of violent wind and high tension current found its way through the low tension cable into the premises of the respondents was held to be not a justifiable defence. In the opinion of the Hon’ble Supreme Court, 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. Though the above said case before the Hon’ble Supreme Court arose out of a Civil Suit, the law laid down therein regarding strict liability of the State Electricity Board in case of live wire getting snapped and falling on the public road is relevant in a writ proceeding. We do not find any appreciable reasons as to why the said law should not be applicable in a writ proceeding.
9. Keeping in view the above said principles of law, for enabling to appreciate the submissions of the learned Counsel of the appellants, in respect of first and second grounds of objection, we have perused the pleadings of the parties. There is a need to ascertain if there are really disputed question of facts or if they have been raised for the sake of raising them without any substance or basis. It is also required to ascertain if the present case is not a clear case of negligence on the part of the present appellants. On the basis of facts and circumstances which we may ascertain, we will have to consider if the rule of strict liability will be applicable or not.
10. The writ petitioner’s case, in brief, is as follows:
His wife Thiuriliu was found electrocuted on 21.3.2003 at 8.00 a.m. on her way to Jhum field. The matter was reported to the O.C. Tousem Police Station, Tamenglong by the Chairman of Longjon village. And U.D. Case No. 1/TSM-PS/2003 was registered. On 20.8.2003, the Superintendent of Police, Tamenglong submitted enquiry report of the O.C. Tousem about the said occurrence along with a copy of the FIR and report in respect of the post mortem performed on the dead body of the said Thiuriliu. Thereafter, he (the writ petitioner) submitted representation to the Deputy Commissioner, Tamenglong requesting for compensation in connection with the dead of his wife. In the meantime, the concerned Assistant Engineer of the Sub-Division submitted a report on 22.9.1993 to the concerned Executive Engineer in connection with the said occurrence stating that no power supply was to be given to the area in the 11 KV line and that an unauthorized person from the village switched on the isolator at Kambiron (The said report of the Assistant Engineer is at Annexure-A/4 of the writ petition). The Deputy Commissioner sent a letter (Annexure-A/5 to the writ petition) to the Executive Engineer, Electricity Department, Tamenglong requesting to look into the matter and find a solution in consultation with higher authorities of the department.
11. It is to be noted that the report of the concerned Assistant Engineer was purportedly submitted in the course of his official duties as per requirement of the relevant rules. As per the said report, the occurrence took place on 21.3.2003 at about 8.00 a.m. at Longjon village, Tamenglong. Regarding causes leading to the occurrence, the report state as follows at Sl. No. 10:
The 11 KV line leading to the Chingkhong long and Longjon village is isolated and no power supply is given to the areas and Jungle cutting and rectification by the Department was necessary. However, some unauthorized person from the Village switch on the isolator at Kambiron and the accident was occurred at the weak Point of Longjon village as the wire was fallen after a storm at night.
12. Shri V.H. Varte, Under Secretary (Power), Government of Manipur submitted an affidavit-in-opposition on behalf of the respondents. The relevant pleading regarding occurrence is at paragraph No. 3 of the affidavit-in-opposition:
That as regards the averments made in para Nos. 2 and 3 of the writ petition, it is to state that the 11 KV line leading to Chingkhonglong and Longjon village is an isolated area under the jurisdiction of the Executive Engineer, Tamenglong Division. There was heavy rain and storm on the night of 20.3.2003 and as such electrical accident was occurred at the weak point of Longjon village as the wire was fallen due to heavy storm at night. The deceased was electrocuted by the fallen wire while passing the road she had contacted with the wire. It was discovered by the officials of the Electricity Department that one wire was broken and fallen because of the thunderbolt and storm on the night of 20.3.2003. Therefore, it is submitted that the petitioner’s wife had died as a result of coming into contact with the fallen live electric wire which was purely a case of accident arising out of an act of God and her death was not because of any negligence on the part of the staff or officials of the Electricity Department in maintaining the transmission line.
At paragraph No. 5 of the affidavit-in-opposition, it is further stated as follows:
5. That there is a disputed question of facts leading to the death of the petitioner’s wife by electrocution. Hence, the present writ petition is not maintainable.
13. The pleading of the respondents that the death of the petitioner’s wife, having been resulted from contacting with a fallen live wire, was purely a case of accident arising out of an act of God and not a case of any negligence on the part of the staff or officials of the Electricity Department in maintaining the transmission line, is incompatible with the said report of the concerned Assistant Engineer submitted to his superior officer in the course of his official duty. There is no reason as to why the said report of the Assistant Engineer should not be relied upon in determining as to how the occurrence took place.
14. As per the said report of the Assistant Engineer, there were needs on the part of the Department to carry out jungle cutting and rectification and as such, the 11 KV line leading to Chingkhonlong and Longjon village was isolated and no power supply was to be given through the line. Thus, the officials of the Electricity Department were having knowledge of the risk and danger involved in allowing the electric current to pass through the line. Nothing is said about the steps taken by the authorities of the Department at the relevant time for ensuring that no electric current passed through the line as a result of an act of an unauthorized person. It is said that some unauthorized persons of the village switched on the isolator at Kambiron thereby allowing electric current to pass through the line leading to the occurrence.
15. On the basis of the said report of the Assistant Engineer, one can reasonably conclude that concerned officials of the Electricity Department, who were carrying on an inherently dangerous work of supplying electricity, ought to have taken all necessary precaution in order to ensure that no harm/injury was caused to anybody. The failure on the part of the officials of the Electricity Department to ensure that no harm/injury was caused to anybody shows negligence on their part. Had the electric current been not allowed to pass through the line, the electrocution would not have happened irrespective of facts that there were storms or lightening on that day. The said switching on of the isolator thereby allowing electric current to pass through the line cannot be considered as an act of God.
16. The pleadings of the respondents regarding the said death having been caused by an act of God and the absence of negligence on the part of the officials of the Electricity Department are not acceptable in the absence of any assertion from their side that the said report of the Assistant Engineer is not genuine or not reliable. In the facts and circumstances, the said pleadings of the respondents have been made for the sake of making them without any substance or basis. Accordingly, we are of the view that there is no any disputed question of fact in the case.
17. In our considered opinion, in the facts and circumstance, this is a clear case of negligence on the part of the officials of Electricity Department in maintaining the electric line.
18. The principle of law laid down in S.D.O. Grid Corporation of Orissa Ltd. and Ors. (supra) will not be applicable in the fact sand circumstances. The rule of strict liability will apply. The objections Nos. (i) and (ii) submitted by the appellants are not sustainable in the facts and circumstances of the case and as such, they are rejected. The appellants are responsible for the deprivation of the life of the petitioner’s wife due to electrocution. Right to life is one of the basic human rights guaranteed under Article 21 of the Constitution. The learned Single Judge passed the impugned judgment and order directing the appellants (the respondents in the writ petition) to pay the said amount of compensation in exercise of its power under Article 226 for doing justice. No rule or scheme, including the said scheme for payment of ex-gratia, can stand in the way of the Court rendering justice in exercise of its power under Article 226. It is to be noted that no ex-gratia amount has also apparently been given to the petitioner until now in connection with the death of his wife. The 3rd objection is also not sustainable in law and it is rejected.
19. In the result, we do not find sufficient grounds for interfering with the impugned judgment and order dated 7.6.2005 passed by the learned Single Judge.20. This appeal is dismissed. No order as to costs.