ORISSA HIGH COURT, CUTTACK.
W.P.(C) No.11255 of 2005 An application under Articles 226 and 227 of the Constitution of India.
---------- Sukei Kuanr & others … Petitioners Versus The Chief Executive Officer (C.E.O) Western Electricity Supply Company LTD.Corporate Office, at-Burla, Dist.-Sambalpur & another … Opposite Parties For Petitioners : Mr.Dhananjaya Mund.
For Opp.
Parties : Mr.B.K.Nayak, M/S.Prakash Ku.
Mohanty, S.K.Sahoo, M.
Das.
---------- PRESENT : THE HONOURABLE Mr.JUSTICE BISWANATH RATH --------------------------------------------------------------------------------------------------- Date of hearing: 14 .11 .2014 Date of Judgment : 16.11.2014 --------------------------------------------------------------------------------------------------- Biswanath Rath, J.
By filing this writ petition petitioners claim for compensation of Rs.3,00,000/- (Rupees Three Lakhs) with interest on account of the death of the deceased by electrocution which is to be paid by the opposite parties for their negligence in maintaining the electric line in the locality.
2 (2) The case of the petitioners is that Kirtan Kuanr, the deceased had gone to attend the call of nature to the land of one Balakrishna Hans towards the Sub-station side being located on the last part of the village and accidentally came in contact with live electric wire being disconnected from the sub-station and laying on the ground.
It is alleged that due to heavy impact of electric shock, the deceased fell down and sustained grievous burning injuries on his legs and other vital parts of his body and died at the spot on 16.01.2005.
Immediately after the incident occurred a F.I.R.was lodged at Turekela Police Station on 16.01.2005 itself.
On lodging of F.I.R.an U.D.Case was registered by the Turekela Police Station as P.S.U.D Case No.01/05 and investigation was taken up.
On police requisition the dead body of the deceased was sent for post-mortem to the C.H.C., Kantabanji.
The doctor who conducted the post-mortem submitted the post-mortem report vide Annexure-2 indicating that the death has occurred due to burns resulting from electrocution.
(3) Similarly, an inquest report is also submitted by the local Police vide Annexure-3 clearly indicates that the death of the deceased was due to electrocution.
Final form was also submitted in U.D.Case No.01/05 vide Annexure-4 with conclusion that the death has occurred due to electrocution.
The petitioners claimed that the death has caused due to negligence of the opposite parties.
They have further claimed that the deceased was working as a Daily labourer and was earning Rs.2,500/- (Rupees Two thousand five hundred only) per month at the time of his death with a contribution of Rs.1,500/- 3 (Rupees One thousand five hundred only) towards the maintenance of the petitioners and the deceased was 40 (forty) years old at the time of death.
The petitioners i.e.the claimants by filing this writ petition have claimed a sum of Rs.3,00,000/- (Rupees three lakhs only) as fair and equitable compensation alongwith interest as admissible.
(4) Per contra, the opposite parties have filed their joint counter inter-alia contending therein that the writ petition suffers on account of non-joinder of proper party vis-à-vis the opposite party No.2 is No.a necessary party to the litigation.
The opposite party in filing the counter, further contended that though a case vide U.D.Case No.01/05 was instituted involving the incident, inquest report, postmortem report, final form even though indicated the death occurred on account of electrocution, there is no negligence on the part of the opposite parties.
They claimed that the plea on the allegation of negligence and poor standard of maintenance of the line were all out and out false.
The opposite parties disputed the claim of the petitioners regarding the negligence by the opposite parties in absence of any fact finding report to the said effect.
The opposite parties also disputed the claim of the petitioners as the legal heirs of the deceased as well as the claim of the petitioners with regard to the earnings of the deceased.
It is on these premises; the opposite parties claimed for dismissal of the writ petition on the ground of being involved with disputed question of facts.
4 (5) In filing the writ petition the petitioners have No.only categorically submitted that the death of the deceased was on account of negligence on the part of the opposite parties, they have also referred to many documents such as the F.I.R., Inquest Report, Postmortem Report as well as the Final Form, all these documents very cogently indicate that the reason of death of the deceased was on account of electrocution.
The opposite parties even though disputed the death of the deceased but have failed in bringing any document to the contrary.
Similarly, the disputes of the opposite parties are that the petitioners are the legal heirs of the deceased, who has died on account of electrocution.
It appears to be a formal denial.
If the opposite parties disputed the fact of petitioners being the legal heirs of the deceased then it was incumbent upon the opposite parties to establish the contrary in absence of which the denial of the opposite parties has no leg to stand.
There is specific indication with regard to death of the deceased on account of electrocution.
F.I.R.and registration of U.D.Case also involved the Department.
Nothing prevented the department to have its internal inquiry to find out as to whether there is negligence in their duty or not.
This writ petition was also filed in the year 2005 and there is no such inquiry at the instance of the opposite parties as on date to find out whether such an incident had taken place due to their negligence or not.
The opposite parties being a public authority must act with all fairness.
So far as the dispute raised by the opposite parties that the writ petition suffers on account of non-joinder of the proper parties.
Perusal of the records it 5 is made clear that even though the petitioners have No.made a proper party at opposite party No.2 but they have made opposite party No.1 who is the ultimate head of the department owning the electricity line in the locality.
In such view of the matter the plea of the opposite parties on the maintainability of the writ petition canNo.be sustained.
(6) On perusal of the counter I also do No.find any serious attempt by the opposite parties to de-establish the claim of the petitioneRs.The death aspect is also admitted by both the parties.
(7) Before stepping into decide the issue of compensation, it is necessary to fiRs.go to the meaning of “negligence”.
which is the main limb of the case and decide whether the opposite party No.1 is negligent or No.it runs as follows:According to Black’s Law dictionary 6th edition the term “negligence”.
has been defined as “the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affaiRs.would do, or the doing of something which a reasonable and prudent man would No.do”.
According to the American Heritage Dictionary of the English Language, 4th Edition “Failure to exercise the degree of care considered reasonable under the circumstances, resulting in an unintended injury to another party.”
.
6 According to the Century Dictionary and Cyclopedia The fact or the character of being negligent or neglectful; deficiency in or lack of care, exactness, or application; the omitting to do, or a habit of omitting to do, things which ought to be done, or the doing of such things without sufficient attention and care; carelessness; heedless disregard of some duty.
Specifically, in law, the failure to exercise that degree of care which the law requires for the protection of those interests of other persons which may be injuriously affected by the want of such care.
In Advanced Law LexiCo.negligence has been defined as follows: of 3rd Edition 2009, “Negligence”.
is No.an affirmative word, it is a negative word; it is the absence of such care, skill and diligence as it was the duty of the person to bring to the performance of the work, which he is said No.to have performed.”
.
Negligence may consist as well in No.doing the thing which ought No.to be done as in doing that which ought No.to be done when in either case it has caused loss and damage to another.
Negligence is “the absence of proper care, caution and diligence; of such care, caution and diligence, as under the circumstances reasonable and ordinary prudence would require to be exercised”.In the case of Donoghue v Stevens [1932].AC 562, Lord Atkin stated that; 'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour'.
This is the establishment of a general duty of care.
7 No.coming to kNo.the meaning of the negligence as enumerated by the Hon’ble Apex Court through many of its judgments which runs as follows :In Malay Kumar Ganguly v.
Dr.Sukumar Mukherjee, (2009) 9 SCC 221= AIR 2010 SC 1162, the apex Court considering the meaning of “negligence‟, held as follows: “Negligence is breach of duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate conduct of human affairs would do, or doing something which a prudent and reasonable man would No.do.
Negligence means either subjectively a careless state of mind, or objectively careless conduct.
It is No.an absolute term but is a relative one; it is rather a comparative term.
In determining whether negligence exists in a particular case, all the attending and surrounding facts and circumstances have to be taken into account.
Negligence is strictly nonfeasance and No.malfeasance.
It is omission to do what the law requires, or failure to do anything in a manner prescribed by law.
It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to dictates of ordinary prudence.
In JaCo.Mathew (supra) the apex Court considering the meaning of “negligence”., held as follows: “The jurisprudential concept of negligence defies any precise definition.
In current forensic speech, negligence has three meanings.
They are : (i) a state of mind, in which it is 8 opposed to intention; (ii)careless conduct; and (iii) the breach of a duty to take care that is imposed by either common or statute law.
All three meanings are applicable in different circumstances but any one of them does No.necessarily exclude the other meanings.”
.
In M.S.Grewal v.
Deep Chand Sood, (2001) 8 SCC 151 = 2001 SCC (Cri) 1426, the apex Court in para 14 stated as follows : “Negligence in common parlance means and implies “failure to exercise due care, expected of a reasonable prudent person”.It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of the safety of otheRs.In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act.
Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would No.do.
Though sometimes the word “inadvertence”.
stands and is used as a synonym to negligence, but in effect negligence represents a state of the mind which, is much more serious in nature than mere inadvertence.
There is thus existing a differentiation between the two expressions- whereas inadvertence is a milder form of negligence, “negligence”.
by itself means and implies a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow.”
.
9 In Poonam Verma v.
Ashwin Patel, (1996) 4 SCC 332, „negligence‟ has been dealt with by the apex Court which has stated thus: 10 “Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would No.do.
The definition involves the following constituents: (1) a legal duty to exercise due care; (2) breach of the duty; and (3) consequential damages.”
.
It is No.necessary to notice the provisions contained in section 91 & 92 of the Indian Electricity Rules, 1956 which runs as follows :“91.
Safety and protective devices.-(1) Every overhead line erected over any part of street or other public place or in any factory or mine or on any consumers’ premises shall be protected with a device approved by the Inspector for rendering the line electrically harmless in case it breaks.
(2) An Inspector may by notice in writing require the owner of any such overhead line wherever it may be erected to protect it in the manner specified in sub-rule (1).(3) The owner of every high and extra-high voltage overhead line shall make adequate arrangements to the satisfaction of the Inspector to prevent unauthorized persons from ascending any of the supports of such overhead lines which can be easily climbed upon without the help of a ladder or special appliances.
Rails, reinforced cement concrete poles and pre-stressed cement concrete poles without steps, tubular poles, wooden supports without steps, [sections and channels shall be deemed as supports which canNo.be easily climbed upon for the purpose of this rule.].10 92.
Protection against lightening.-(1) The owner of every overhead line [sub-station or generating station].which is so exposed as to be liable to injury from lightning shall adopt efficient means for diverting to earth any electrical surges due to lightening.
[(2) The earthing lead for any lightening arrestor shall No.pass through any iron or steep pipe, but shall be taken as directly as possible from the In view of definition of negligence and under the ruling of the Hon’ble Apex Court referred to hereinabove, and under the provisions contained at Rule 91 & 92 of the Indian Electricity Rules, 1956 it is No.to be considered as to whether there is any negligence on the part of the Electric Supply Company or not.
(8) From the pleadings as narrated herein above, there is no dispute that the deceased had come in contact with a live electric wire.
There is also no dispute that there was an incident in the particular area, as a consequence of which the deceased died.
The documents vide Annexures-1 to 4 clearly establish the death occurred on account of electrocution.
In absence of any internal inquiry at the time of incident or at least by the time of filing of the writ petition, it appears that the attempt of the opposite parties is only to cover up their latches.
In view of the above narrated facts, definition of negligence and the provision contended in the Indian Electricity Rules 1956 and the rulings of the Hon’ble Apex Court narrated hereinabove.
I find the opposite party No.1 is negligent in its duty and the death of the deceased is an outcome of such negligence of the opposite party No.1.
“No.coming to the question of the compensation, the facts in the 11 writ petition reveals that the petitioners have claimed that the deceased was a labourer and he was earning Rs.2,500/- (Rupees Two thousand five hundred only) per month at the time of his death and out of which income he was contributing Rs.1,500/- (Rupees Fifteen hundred only) per month to his family.
Even though the opposite parties have made a denial to the earning of the deceased but they have No.brought any material to establish to the contrary.
Further looking to the minimum income of a person per day at the relevant point of the time being No.less than Rs.100/- (Rupees one hundred only) a day.
I do No.find any unjustified claim made by the petitioners with regard to wage component of the deceased.
The opposite parties have also very casually disputed the age of the deceased.
On perusal of the cause title I find the age of the mother of the deceased was 60 years whereas the wife of the deceased was 38 years at the time of cause of action.
This being the position, the claim of the petitioners regarding age of the deceased as 40 (forty) years canNo.be disbelieved.
Taking into consideration, the life expectancy of a person in this country to be at the minimum 65 yeaRs.The petitioners are entitled to get the minimum 20 (twenty) multiplier and taking into Rs.100/- (Rupees one hundred only) per day income of the deceased, the whole compensation would have been much more, but considering the claim of the petitioners in the writ petition limited to Rs.3,00,000/(Rupees Three Lakhs).I am confining the compensation to Rs.3,00,000/- (Rupees Three Lakhs) which amount be paid to the petitioners alongwith interest @8% per annum from the date of filing of the writ petition.
12 The compensation amount alongwith interest be calculated within a period of four weeks from the date of judgment and the total dues be released in favour of the petitioners within a period of two weeks thereafter.
(9) The writ petition succeeds to the extent directed hereinabove.
However, there shall be no order as to cost.
…………………….Biswanath Rath, J.
Orissa High Court, Cuttack.
The 20th day of November, 2014.