Jairam Mishra Vs. Chief Executive Officer [Orissa High Court, 01-08-2016]



Date of Judgment:01.8.2016

W.P.(C) No.16804 of 2012

In the matter of an application under Articles 226 and 227 of theConstitution of India.

Jairam Mishra and another …. Petitioners


Chief Executive Officer (Electrical)C.E.S.U. and another …. Opposite parties

For Petitioners — Mr.D.C.Swain,Advocate;For Opp. Parties — Mr.Bibhuendra Dash,Advocate(For O.P.No.2)

Dr.A.K.Rath, J.

In this writ petition under Article 226 of the Constitution of India, the petitioners have prayed, inter alia, for a direction to the opposite parties to pay an amount of Rs.4,00,000/- towards compensation for the death of their only son, Bibhuti Ranjan Mishra, in electrocution.

2. Shorn of unnecessary details, the short facts of the case of the petitioners are that on 16.11.2008 afternoon while their son, Bibhuti Ranjan Mishra was going to market on the road, he came in contact with the live naked electric wire snapped from the pole, as a result of which, he sustained sever burn injuries and became senseless. Thereafter he was shifted to S.C.B. Medical College and Hospital, Cuttack for treatment. On the way he expired. On the very same day the matter was reported at Mangalabag Police Station whereafter Mangalabag P.S. U.D.Case No.1194 of 2008 was registered. Thereafter the dead body, on completion of inquest, was sent for autopsy. The police submitted the final report declaring that the cause of death of the deceased was due to electrical shock. The doctor, who conducted the postmortem, opined that the cause of death was due to electrocution complications. The deceased was a strong and stout young man of 21 years. He was continuing M.B.A. course. With this factual scenario, this petition has been filed.

3. Pursuant to issuance of notice, a counter affidavit has been filed by the opposite parties stating therein that the factum of death of the son of the petitioners had not been informed to the opposite parties or the local authorities of CESU. Though the occurrence took place on 16.12.2008, but the writ application was filed in the year 2012. It is further submitted that the death by electrical shock does not mean that the said electrical shock was occurred due to the negligence on the part of the opposite parties. The petitioners have not filed any Succession Certificate or legal heir Certificate from the competent authorities. The petitioners have not filed any document relating to the educational qualification of the deceased i.e., graduation or MBA course.

4. Heard Mr.D.C.Swain, learned counsel for the petitioner and Mr.B.Dash, learned counsel for opposite party no.2.

5. Really two points arise for consideration of this Court ;

(1) Whether a writ application under Article 226 of the Constitution of India is maintainable for payment of compensation when death is caused due to electrocution ?

(2) Whether opposite parties can deny the liability on the ground that the death of Bibhuti Ranjan Mishra was due to act of a third party ?

Point Nos.1 and 2.

6. An identical matter came up for consideration before a Division Bench of this Court in the case of

T. Bimala v. Cuttack Municipal Corporation, Cuttack and others, 2015(I) OLR-637

It was held as follows:-

“9. The language of Article 226 of the Constitution does not admit of any limitation on the powers of the High Court for the exercise of jurisdiction thereunder. The power conferred upon the High Courts under Article 226 of the Constitution is wide enough to reach injustice wherever it is found. The apex Court in catena of the decisions laid down certain guidelines and self-imposed limitations have been put there subject to which the High Courts would exercise jurisdiction. Those guidelines cannot be mandatory in all circumstances. When a citizen approaches the High Court in writ petition that a wrong is caused, the High Court will step into protect him, whether that wrong was done by the State or an instrumentality of the State. The High Court cannot pull down the shutters.

10. In

M.S. Grewal v. Deep Chand Sood, (2001) 8 SCC 151

the apex Court observed as under :

“Next is the issue of “maintainability of the writ petition” before the High Court underArticle 226 of the Constitution. The appellants though initially very strongly contended that while the negligence aspect has been dealt with under penal laws already, the claim for compensation cannot but be left to be adjudicated by the civil laws and thus the Civil Court’s jurisdiction ought to have been invoked rather than by way of a writ petition under Article 226 of the Constitution. This plea of non- maintainability of the writ petition though advanced at the initial stage of the submissions but subsequently the same was not pressed and as such we need not detain ourselves on that score, excepting however recording that the law Courts exist for the society and they have an obligation to meet the social aspirations of citizens since law Courts must also respond to the needs of the people. In this context, reference may be made to two decisions of this Court : the first in line is the decision in

Nilabati Behera v. State of Orissa, AIR 1993 SC 1960

wherein this Court relying upon the decision in Rudal Sah

Rudal Sah v. State of Bihar, AIR 1983 SC 1086

decried the illegality and impropriety in awarding compensation in a proceeding in which the Court’s power under Articles 32 and 226 of the Constitution stands involved and thus observed that it was a clear case for award of compensation to the petitioner for custodial death of her son. It is undoubtedly true, however, that in the present context, there is no infringement of the State’s obligation, unless of course the State can also be termed to be joint tortfeasor, but since the case of the parties stands restricted and without imparting any liability on the State, we do not deem it expedient to deal with the issue any further except noting the two decisions of this Court as above and without expression of any opinion in regard thereto.”

11. In this connection, we would like to profitably quote a paragraph from a decision of Madhya Pradesh High Court in the case of

Ramesh Singh Pawar v. Madhya Pradesh Electricity Board and others, AIR 2005 MP 2

It is held as follows:

“Currently judicial attitude has taken a shift from the old doctrine concept and the traditional jurisprudentia system – affection of the people has been taken note of rather serious and the judicial concern thus stands on a footing to provide expeditious relief to an individual when needed rather than taking recourse to the old conservative doctrine of the Civil Court’s obligation to award damages. As a matter of fact the decision in D.K. Basu has not only dealt with the issue in a manner apposite to the social need of the “Country but the learned Judge with his usual felicity of expression firmly established the current trend of justice-oriented approach”. Law Courts will lose their efficacy if they cannot possibly respond to the need of the society – technicalities their might be many but the justice-oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice.”

12. Thus we hold that a writ application for payment of compensation for the death of a person in electrocution is maintainable when the undisputed facts clearly reveal the same.

13. 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”.

14. The doctrine of strict liability has its origin in English Common Law when it was propounded in the celebrated case of

Rylands v. Fletcher, 1868 Law Reports (3) HL 330

Justice Blackburn had observed thus:

“The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does so he isprima facieanswerable for all the damage which is the natural consequence of its escape.”

15. There are seven exceptions formulated by means of case law to the said doctrine. One of the exceptions is that “Act of stranger i.e. if the escape was caused by the unforeceable act of a stranger, the rule does not apply”. (Winfield on Tort, 15th Edn. Page 535).

16. The rule of strict liability has been approved and followed in many subsequent decisions in England and decisions of the apex Court are a legion to that effect. A Constitution Bench of the apex Court in

Charan Lal Sahu v. Union of India, AIR 1990 SC 1480

and a Division Bench in

Gujarat State Road Transport Corpn. V. Ramanbhai Prabhatbhai, AIR 1987 SC 1690

had followed with approval the principle inRylands(supra). The same principle was reiterated in

Kaushnuma Begum v. New India Assurance Co. Ltd., AIR 2001 SC 485

17.Sukamani Das(supra),Timudu Oram(supra) on which reliance has been placed, the question of a strict liability was not taken up in those cases.

18. Sukamani 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, since right of life is one the basic human rights guaranteed under Article 21 of the Constitution.(emphasis laid)

19. In

M.P. Electricity Board v. Shail Kumar and others, AIR 2002 SC 551

one Jogendra Singh, a workman in a factory, was returning from his factory on the night of 23.8.1997 riding on a bicycle. There was rain and hence the road was partially inundated with water. The cyclist did not notice the live wire on the road and hence he rode the vehicle over the wire which twitched and snatched him and he was instantaneously electrocuted. He fell down and died within minutes. When the action was brought by his widow and minor son, a plea was taken by the Board that 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 even the notice of the Board and thatthe line got unfastened from the hook and it fell on the road over which the cycle ridden by the deceased slided resulting in the instantaneous electrocution. In paragraph 7, the apex Court held as follows:

“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 if 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 of 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.” (emphasis laid)

20. The principle ofres ipsa loquituris well known. It is explained in a very illustrative passage in Clerk & Lindsell on Torts, 16th Edn., pp. 568-569, which reads as follows:

“Doctrine ofres ipsa loquitur. The onus of proof, which lies on a party alleging negligence is, as pointed out, that he should establish his case by a pre-ponderance of probabilities. This he will normally have to do by proving that the other party acted carelessly. Such evidence is not always forthcoming. It is possible, however, in certain cases for him to rely on the mere fact that something happened as affordingprima facieevidence of want of due care on the other’s part: ‘res ipsa loquituris a principle which helps him to do so’. In effect, therefore, reliance on it is a confession by the plaintiff that he has no affirmative evidence of negligence. The classic statement of the circumstances in which he is able to do so is by Erle, C.J.:

‘There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.’ It is no more than a rule of evidence and states no principle of law. “This convenient and succinct formula”, said Morris, L.J., “possesses no magic qualities; nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin”. It is only a convenient label to apply to a set of circumstances in which a plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. He merely proves a result, not any particular act or omission producing the result. The court hears only the plaintiff’s side of the story, and if this makes it more probable than not that the occurrence was caused by the negligence of the defendant, the doctrineres ipsa loquituris said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability. It is not necessary forres ipsa loquiturto be specifically pleaded.”

7. On the anvil of the decisions cited supra, the case of the petitioners may be examined. Immediately after the death of the deceased on the way, the matter was reported to the Mangalabag Police Station. Thereafter Mangalabag P.S. U.D.Case No.1194 of 2008 was registered. After enquiry, the dead body was sent for postmortem. The postmortem report reveals that the cause of death was due to electrocution complications. The police had also submitted the final report stating that the cause of death was due to electrical shock. In view of the clinching material on record, the conclusion is irresistible that the son of petitioners died due to electrocution. As held above, 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. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps. The opposite parties can not shirk their responsibility on trivial grounds. For the lackadaisical attitude exhibited by the opposite parties, a valuable life was lost. The deceased was 21 years old at the time of accident and was prosecuting his study. Therefore, this Court directs the opposite parties to pay interim compensation of Rs.2,00,000/-(Two lakhs eighty thousand) to the petitioners within two months leaving the petitioners to work out their remedies in the common law forum for higher compensation.

8. The writ petition is allowed. No costs.

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