Judgment:
A. Pasayat, Actg. C.J.
1. One Narayan Parabhai (hereinafter referred to as 'deceased') having died due to electrocution, this writ application has been filed for a direction to the Grid Corporation of Orissa (in short, the ('Corporation') for payment of compensation to his legal heirs. According to petitioners, Narayan died on account of negligence of the Grid Corporation of Orissa (O. party No. 1). Proper care and caution was not taken to prevent persons from coming in touch with live-wire and had such action been taken deceased would have been alive.
2. Background facts as projected by the petitioners in short are as follows :
On 21 -7-1995 one electric pole fell down on the ground being uprooted. On 22-7-1995 in the early morning the deceased while going on the road near the electric pole suddenly came in contact with the live 11 M.V. electric line and got electrocuted due to the shock received by him. The Executive Engineer, Kalahandi West Electrical Division, Western Electricity Supply Company of Orissa Ltd. a subsidiary company of Gridco, In the counter affidavit filed has taken a stand that there was continuous heavy rain accompanied by lightning and storm in the night of 21 -7-1995. Due to such continuous heavy rain, a portion of the ridge of the village tank washed out as a result of which the electric pole standing on the said portion of the ridge fell on the ground. As this has happened in the late night of 21-7-1995, opposite party No. 1 had no occasion to know about the falling of electric pole and no information was received to that effect from anybody. Had there been no rain and storm, the electric pole would not have fallen, and as such the accident was not on account of any negligence. It is stated that all precautions such as periodical checking of lines and pre-monsoon checking of lines had been taken up, but there was no defect in the electric line at the place of accident. Continuous rain and storm are acts of God over which opp. party No. 1 has no control. Though from the records it is revealed that the deceased died due to electrocution, that cannot be of any consequence to show any negligence.
The Subdivisional Police Officer, Dhararngarh (opposite party No. 3) has filed counter affidavit indicating that on getting information about the accidental death of the deceased lodged by the brother of the deceased at Kutru Out Post on 22-7-1995, the A.P.I. of the said Out Post took up investigation and intimated the Junior Engineer of Electric Department of Kutru to disconnect the supply of electricity by snapping the live line immediately.
3. Preventive measures suggested to be taken may provide safely in future. Those cannot be pressed into service to deny liability of the Corporation. The term 'compensation' as stated in the Oxford Dictionary, signifies that which is given in recompense, an equivalent rendered, 'Damages' on the other hand constitute the sum of money claimed or adjudged to be paid in compensation for loss of injury sustained, the value estimated in money, or something lost or withheld. The term 'compensation' etymologically suggests the image of balancing one thing against another; Its primary signification is equivalence, and the secondary and more common meaning is something given or obtained as an equivalent. Pecuniary damages are to be valued on the basis of 'full compensation'. That concept was first stated by Lord Blackborn in Livingstone v. Rawyards Coal Co. (1880) AC 25,
4. The 'Rule of Law' requires that the wrongs should not remain unredressed. All the individuals or persons committing wrongs should be liable In an action for damages for breach of civil law or for criminal punishment. Law of torts is founded on the principle that every injury must have a remedy, 'Compensation' means anything given to make things equivalent, a thing given or to make amends for loss, recompense, remuneration or pay; it need not, therefore, necessarily be in terms of money, because law may specify principles on which and manner in which compensation is to be determined as given. Compensation is an act which a Court orders to be done, or money which a Court orders to be paid, by a person whose acts or omissions have caused loss or injury to another in order that thereby the person damnified may receive equal value for his loss; or be made whole in respect of his injury; something given or obtained as equivalent, rendering of equivalent in value or amount, an equivalent given for property taken or for an injury done to another, a recompense in value a recompense given for a thing received, a recompense for whole injury suffered; remuneration or satisfaction for injury or damage or every description. The expression 'compensation' is not ordinarily used as an equivalent to 'damage' although compensation may often have to be measured by the same rule as damages in an action for a breach. The term 'compensation' as pointed out in the Oxford Dictionary signifies that which is given in recompense an equivalent rendered, 'damages' on the other hand constitute the sum of money, claimed or adjudged to be paid in compensa- tion for loss or injury sustained. 'Compensation' is a return for a loss or damages sustained. Justice requires that it should be equal in value, although not alike in kind, 'Amends' is return for something that is faulty in ourselves or towards others. 'Satis faction' is that which satisfies the individual requiring it, is given for personal injuries, and may be made either by a return or otherwise, according to disposition of the person to be satisfied. 'Recompense' is a voluntary return for a voluntary service, it is made in a generous, feeling and derives its value not so much from the magnitude or service or return, as from intention of the parties towards each other, and it is received not so much as a matter of right as of courtesy. 'Remuneration' is not voluntary as recompense, buy it is equally indefinite; being estimated rather according to condition of the person and dignity of service than its positive worth. 'Requital' is the return of a kindness, the making it is an act of gratitude. 'Reward' may be a bad return when it is inadequate to the merits of the person. In cases of assessment of damages, pure mathematics cannot be relied on exclusively to arrive at a reasonable estimate of just compensation for much pertains to the realms of hypothesis, and in that region arithmatic is a good servant but a bad master and therefore, an award should be of a round sum rather than one actually computed. (Per Lord Ruttan, J. in Ball v. Kraft 1967 ACJ -235, Supreme Court of British Columbia, Canada). The following broad principles govern the grant of damages :
(1) There should not be any negligence on the part of the claimant himself.
(2) There should not be any improper conduct on the part of the claimant himself.
(3) The claimant should have taken all the reasonable action to maintain the loss on injury sustained by him.
(4) The acts of the claimant should be lawful, just and reasonable.
(5) The amount of damages should not exceed the loss sustained by him, and damages may be minimised If own conduct has resulted contributory negligence, or has rendered some of the damages too remote or has constituted a failure to mitigate the damages, either by not taking such steps to reduce the original loss or to avert further loss,
5.' It is true that perfect compensation is hardly possible and money cannot renew a physique frame that has been battered and shattered, as stated by Lord Morris in West v. Shephard : (1964) AC 326. Justice requires that it should be equal in value, although not alike in kind. Object of providing compensation is to place claimant as far as possible in the same position financially, as he was before accident. Broadly speaking, in the case of death basis of compensation is loss of pecuniary benefits to the dependants of the deceased which includes pecuniary loss, expenses, etc. and loss to the estate. Object is to mitigate hardship that has been caused to the legal representative due to sudden demise of the deceased in the accident. Compensation awarded should not be inadequate 'and should neither be unreasonable, excessive, nor deficient. There can be no exact uniform rule for measuring value of human life arid measure of damage cannot be arrived at by precise mathematical calculation but amount recoverable depends on broad facts and circumstances of each case. It should neither be punitive against whom claim is de-creed nor it should be a source of profit of the person in whose favour it is awarded. Upjohn L. J., in Charter House Credit v. Tolly : (1963) 2 QB 683 remarked, 'the assessment of damages has never been an exact science; it is essentially practical'.
6. It is pleaded by the opposite parties that there was no negligence involved. The doctrine of res ipsa loquitur would seem to apply to the facts of the case. It is explained In a very Illustrative passage in Clerk and Lindsell on Torts (Sixteenth Edition) pages 568-569, which reads as follows:
'Doctrine of res ipsa loquitur. The onus of proof, which lies on a party alleging negligence is, as pointed out, that he should establish his case by preponderance 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 reply on the mere fact that something happened as affording prima facie evidence of want of due care on the other's part; 'res ipsa loquitur is 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 Erie 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 plaintiffs 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 doctrine res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability. It is not necessary for res ipsa loquitur to be specifically pleaded'.
Reference may be made to another passage from the same book at page 723 which reads as follows :
'Liability to children, an occupier must be prepared for children to be less careful than adults. Something which would not be a danger to an adult may very well be one to a child, and a warning sufficient for an adult may be insufficient for a child. In Moleney v. Lambeth London Borough Council an occupier was held liable to a four years old boy who fell through the bare of a balustrade. If a person the size of the plaintiff lost his balance he was liable to go through the gap. The staircase did not comply with the occupier's duty of care to a child of the age. But in Ward v. Nertfordshire Co. it was held there was no liability to a child aged eight who fell against a long standing brick and flint wall in a school's playground. The wall was not inherently dangerous and the presence of a supervisor would not have prevented the accident.'
7. The question of negligence of a company engaged in transmission of electric energy was considered in Quebec Railway, Light, Heat and Power Company Ltd. v. Vandry (1920) AC 662. The concerned railway company in exercise of statutory powers had erected two overhead cables for the distribution of electric current. In that case, on account of a violent wind, a branch from a tree growing about 28 feet away from the cables was broken, which resulted in the breaking down on the cables and the high tension current found its way along with the low tension cable into the respondents' premises and caused a fire. An action for damages was brought by the respondents against the concerned power company. The Court of Appeal held that the company was liable for the damage without proof that it had been negligent, since it had failed to establish that it could not have prevented the escape of the electric current, further that its statutory power afforded no defence, since the escape of the current was not necessarily incident to the exercise of those powers.
8. In Erusian Equipment and Chemical Ltd. v. State of West Bengal, AIR 1975 SC 266, the Court while dealing with the question of Invalidity of action of the Government in black listing a contract or without giving him an opportunity of hearing, also dealt with the larger question of the manner in which contracts by the State need to be awarded. In this regard It held as follows :
'It is true that neither the petitioner nor the respondent has any entitled to equal treatment with others who offer tender or quotations the purchase of the goods. This privilege arises because it is the Government which is trading with the public and the democratic form of Government demands equality and absence of arbitrariness and discrimination in such transactions. Nonfled treats privileges as a form of liberty as opposed to a duty. The activities of the Government have a public clement and therefore, there should be fairness and equality. The State need not enter into any contract with any one but if it does so, It must do so fairly without discrimination and without unfair procedure.'
9. The expression 'act of God' signifies the operation of natural force free from human intervention, such as lightning. It may be thought to include such unexpected occurrences of nature as severe gale, snowstorms, hurricanes, cyclones and tidalbures and the like. But every unexpected wind and storm does not operate as an excuse from liability, if there is a reasonable possibility of anticipating their happening. An act of God provides no excuse, unless it is so unexpected that no reasonable human foresight could be presumed to anticipate the occurrence having regard to the conditions of time and place shown to be prevailing at. For instance, where by experience of a number of years, the railway administration knows that in a particular area during a particular season there have been heavy downpours of rain and consequent extraordinary floods causing damage to their track, they cannot take the pica, that they were due to act of God because it is within their competence to take such steps as would prevent damage. Lord Westbury defined act of God (damnum fatals in Scotch Law) as an occurrence which no human foresight can provide against and of which human prudence as not bound to recognise the possibility. This appears to be the nearest approach to the true meaning of act of God. Lord Westbury's definition was approved by Lord Demdia and Shaw in the House of Lords in Dre nock Corporation v. Cladesian Rv. Similarly, Lord Blaridaourgh spoke of it as 'an irresistible and unsearchable providence nullifying all human effort'. That principle has no application to the case at hand.
The term' act of God' (vis major) is used in English law to mean some act or convulsion of nature, so extraordinary that it could not be foreseen, or if foreseen could not be guarded against, for example, an extraordinary high tide, a tempest of rare violence, and the like. In the biblical sense of term, every thing almost is said to be the act of God; but in a mercantile sense, it means an extraordinary circumstance which could not. be foreseen and which could not be guarded against. (Per Eshar M.R. in 55 L. S., D. E. 549)
10. The stand that the electric pole could not have uprooted but for the rain and storm cannot do away the duty of concerned authorities from taking proper care and caution in properly fixing the electric poles. It is not disputed that there is potentiality of the pole getting uprooted with live wire if it is placed on a ridge near a tank without strong foundation. That appears to have been overlooked by the authorities. Electric poles should be posted at places with strong foundation and base to avoid such type of contingency. Pains accompanied by lightning and storm are natural in rainy season. The au-thorities therefore are expected to ensure that due to rains, storms etc. during rainy season there is no chance of electric poles with live wire gelling uprooted. That does not appear to have been done. In the circumstances, we do not accept the plea taken by opposite party No. 1 about the accident being an act of God.
11. The deceased as per the medical report was about 32 years at the time of electrocution. Considering his financial position as highlighted by the petitioners, we fix the amount of compensation at Rs. 45.000/- (forty-five thousand) to be deposited in this Court within two months from today. A sum of Rs. 30.000/- (thirty thousand) shall be kepi, in a fixed deposit in any nationalised bank initially for five years in the name of petitioner No. 1. The balance amount of Rs. 15,000/-(fifteen thousand) shall be released in her favour on being identified by any of the learned counsel appearing for her in this Court.
12. The writ application is allowed to the extent indicated above. No costs.
Ch. P.K. Misra, J.
13. I agree.