Bombay High Court
Kalpana Gajanan Lakhe vs Maharashtra State Electricity ... on 14 November, 2022
Bench: V. V. Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.113 OF 2019
Kalpana wd/o Gajanan Lakhe
Age: 42 years, Occu.: Household,
R/o. Jalwa Murar,
Tq. Mudkhed, Dist. Nanded ... Petitioner
Versus
1. Maharashtra State Electricity
Distribution Co. Ltd.
Estrella Batteries Expansion Building,
Ground Floor, Plot No.1, Dharavi Road,
Matunga, Mumbai - 400019.
Through it's Administrative Head.
2. The Superintending Engineer,
M.S.E.D.C. Ltd.,
Anna Bhau Sathe Chauk,
V.I.P. Road, Nanded,
Tq. and Dist. Nanded. ... Respondents
...
Mr. V. B. Dhage, Advocate for the petitioner.
Mr. P. B. Paithankar, Advocate for respondent Nos.1 and 2.
...
CORAM : DIPANKAR DATTA, C.J. AND
SMT. VIBHA KANKANWADI, J.
DATE : NOVEMBER 14, 2022.
JUDGMENT :- [Per Smt. Vibha Kankanwadi, J.]
. Rule. Rule made returnable forthwith. Heard learned advocates
for the parties finally, by consent.
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2. Present petition has been filed, invoking the constitutional powers
of this Court under Article 226 of Constitution of India, for issuing writ
of mandamus to direct the respondents to pay compensation of
Rs.5,00,000/- with interest @ 18% as per the circular dated 20.11.2008
and 22.03.2011 to the petitioner.
3. The facts giving rise to the petition are that the petitioner's
husband - Gajanan Laxman Lakhe was an agriculturist. He along with
the petitioner and the family was resident of village Jawla, Murar, Tq.
Mudkhed, Dist. Nanded. He had built a new house and around 18.30
hours on 03.11.2014, he was on the roof of the house and was giving
water to the constructed walls of the gallery. Thereafter, he took an iron
rod to clear the stagnant water from the balcony and in that process, the
iron rod touched the main electricity line, which was passing in front of
the house. Due to the high voltage electric wire came in contact with
deceased Gajanan through the said iron rod, he got electrocuted. The
petitioner has specifically contended that the respondents authorities
had not made proper arrangements to cover the main electricity line
despite several oral requests by the villagers. Deceased was shifted to
Civil Hospital at Barad, where he was declared dead. The brother of the
deceased informed the death to the police and on the basis of his
narration, accidental death was reported vide A. D. No.12 of 2014 to the
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Barad Police Station. The police authorities have carried out the spot as
well as inquest panchanama on 04.11.2014. The postmortem of the
dead body was conducted. The probable cause of death is stated as
"death due to cardio respiratory failure due to deep burn at five fingers
of right hand due to electric shock". It has been clearly averred that
deceased Gajanan got electrocuted due to the negligence of the
respondents authorities and, therefore, they are liable to pay
compensation to the petitioner, who is his legal representative.
4. Petitioner has further contended that there are circulars dated
20.11.2008 and 22.03.2011 issued by respondent no.1 for the financial
assistance to the legal representative of those persons, who die in an
accident due to electric shock. Petitioner had given a written
representation for grant of compensation to her, however, no such
financial assistance has been given in view of those circulars and,
therefore, she is required to approach this Court in its writ jurisdiction.
5. Respondents appeared after the notice was issued and by specific
order dated 24.03.2022, learned Advocate for respondent nos.1 and 2
sought time to file affidavit-in-reply and accordingly, the time was
granted. Thus, it is to be noted that in spite of opportunity granted to
respondent nos.1 and 2, they failed to file their reply.
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6. Heard learned Advocate Mr. V. B. Dhage for the petitioner and
learned Advocate Mr. P. B. Paithankar for respondent nos.1 and 2.
7. Learned Advocate for the petitioner after reiterating the facts of
the case submitted that though it can be seen that the petitioner was
seeking compensation time and again, it has not been granted. Even the
Electricity Inspector of Electricity Inspection Department, Nanded had
made inquiry as contemplated under Section 161 of the Indian
Electricity Act, 2003 and had given report which is in consonance with
the pleadings of the petitioner, yet no action has been taken for grant of
compensation. He has further submitted that as per the earlier circulars
dated 20.11.2008, the amount of compensation was fixed, in case of
death, irrespective of age and earning capacity of the deceased person,
at Rs.2,00,000/-, but thereafter the said amount now has been increased
to Rs.4,00,000/- by circular dated 09.03.2016 and, therefore, the
petitioner is entitled to get the benefit of the subsequent circular also.
8. Learned Advocate for the petitioner relied on the decision in Balaji
s/o Sheshrao Lamdade Vs. Maharashtra State Electricity Distribution Co.
Ltd. and others, Writ Petition No.1890 of 2017 decided on 02.12.2019 to
support the claim of the petitioner, wherein the same circulars were
relied and the petitioner was granted benefit of the subsequent circular
also. He further relied on the decision by this Court in Parigabai w/o
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Ashok Kakde and others Vs. State of Maharashtra through the Collector
Aurangabad and others, (MANU/MH/0188/2021). He submitted that
in this case also, the death was due to electrocution and then this Court
had even granted consortium, funeral expenses to the petitioner therein
and it was held that it can be granted under Section 357A of the Code of
Criminal Procedure. In the nutshell, he submitted that this further
amount can also be granted in addition to the amount which can be
given under the Administrative Circular No.533 dated 09.03.2016.
9. Learned Advocate appearing for the respondents strongly objected
the petition and submitted that there is no dispute about the circulars
issued by respondent no.1, however, from the facts of the case it cannot
be said that it was the negligence of any employee of the respondents
and, therefore, the petitioner is not entitled to get compensation.
10. It is to be noted from the papers those have been produced by the
petitioner that the incident had taken place on 03.11.2014 around 6.30
p.m. and it is stated that Gajanan was taken to Hospital and then he was
declared dead. Immediately, the matter was reported to police and A.D.
has been registered. The inquest panchanama as well as spot
panchanama have been carried out and the postmortem report in clear
terms gives the probable cause of death. Further, even the inquiry
appears to have been made on behalf of the respondents in view of
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Section 161 of the Indian Electricity Act, 2003, which reads thus :-
"Section 161. (Notice of accidents and injuries): --- (1) If
any accident occurs in connection with the generation,
transmission, distribution, supply or use of electricity in
or in connection with, any part of the electric lines or
electrical plant of any person and the accident results or
is likely to have resulted in loss of human or animal life
or in any injury to a human being or an animal, such
person shall give notice of the occurrence and of any
such loss or injury actually caused by the accident, in
such form and within such time as may be prescribed, to
the Electrical Inspector or such other person as aforesaid
and to such other authorities as the Appropriate
Government may by general or special order, direct.
(2) The Appropriate Government may, if it thinks fit,
require any Electrical Inspector, or any other person
appointed by it in this behalf, to inquire and report-
(a) as to the cause of any accident affecting the
safety of the public, which may have been
occasioned by or in connection with, the
generation, transmission, distribution, supply
or use of electricity, or
(b) as to the manner in, and extent to, which
the provisions of this Act or rules and
regulations made thereunder or of any licence,
so far as those provisions affect the safety of
any person, have been complied with.
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(3) Every Electrical Inspector or other person holding an
inquiry under sub- section (2) shall have all the powers
of a Civil Court under the Code of Civil Procedure, 1908
for the purpose of enforcing the attendance of witnesses
and compelling the production of documents and
material objects, and every person required by an
Electrical Inspector be legally bound to do so within the
meaning of section 176 of the Indian Penal Code."
Therefore, in view of Section 161(3) of the Indian Electricity Act,
2003, it can be said that such Electrical Inspector has all the powers of a
Civil Court for the purpose of enforcing the attendance of the witnesses
and compelling the production of documents and material objects.
Therefore, when the Electrical Inspector in this case has given a report
on 07.09.2015, it can be presumed that he has used all the powers
granted to him for conducting the inquiry. He has not come to a
conclusion that Gajanan got electrocuted on account of any human
intervention. Under such circumstance, we need not go into the aspect
of whether there was negligence of any employee of the respondents or
not.
11. Another aspect that is required to be considered is that in spite of
granting opportunity to the respondents, they have not filed affidavit-in-
reply. The 'doctrine of non-traverse' i.e. acceptance by non denial
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therefore can very well be pressed into service in this case; as the
pleadings of the petitioner as well as the documents supporting it inspire
confidence.
12. Maharashtra State Electricity Distribution Company Limited had
issued Administrative Circular No.192 on 20.11.2008 for payment of
compensation and immediate financial assistance in case of fatal/non-
fatal accidents to outsiders (human being as well as animals), however,
it appears that there is a clarification later on issued by Administrative
Circular No.332 on 22.03.2011 stating that such compensation has to be
given in respect of non-fatal accidents to outsiders (human being only).
A fixed sum of Rs.2,00,000/- irrespective of age and earning capacity of
the deceased was prescribed in circular dated 20.11.2008, but it was
then increased to Rs.2,50,000/- by the circular dated 22.03.2011. Here,
the incident had taken place on 03.11.2014 when this subsequent
circular dated 22.03.2011 was in force. Taking into consideration the
purpose for which the said circular was issued and the procedure that
was adopted, the respondent authorities ought to have granted
compensation to the petitioner. Now, one more administrative circular
appears to have been issued by respondent no.1 on 09.03.2016 for
enhancement in the compensation that was declared in the earlier two
referred circulars. When the amount of compensation has undergone
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revision periodically, then the amount so revised will become due to
such person who is seeking redressal.
13. Reliance can be placed on the decision by the Hon'ble Supreme
Court in Rathi Menon Vs. Union of India, [AIR 2001 SC 1333], wherein
it has been held that, "The compensation must be fixed as per what on
Rules prescribed at the time of making the order for payment of
compensation and not in terms of money value which prevailed on date
of accident." The observations are, "The relevance of the date of
untoward incident is that the right to claim compensation from the
Railway Administration would be acquired by the injured on that date.
The statute did not fix the amount of compensation, but left it to be
determined by the Central Government from time to time by means of
rules. Hence, the time of ordering payment is more important to
determine as to what is the extent of the compensation which is
prescribed by the rules to be disbursed to the claimant."
Thereafter, in N. Parmeswaran Pillai Vs. Union of India & another
[AIR 2002 Supreme Court 1834], it was held that, "In view of
authoritative pronouncement made in Rathi Menon's case (Supra), the
appellants were entitled to enhancement in the compensation." In that
case, the legal representatives of the deceased had claimed
compensation of Rs.2,00,000/- but then in the meantime, the Central
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Government had enhanced the compensation and, therefore,
compensation at the enhanced rate was granted.
14. Though the above pronouncements are under the Indian Railways
Act, 1989, the ratio is applicable here also. The compensation to be paid
is not fixed by any statute. The Distribution Company has made those
rules under its powers and periodically the amount of compensation is
reviewed or reconsidered. Hence, in this case also the petitioner is
entitled to get compensation at the enhanced rate i.e. Rs.4,00,000/-.
15. The decision in Balaji Sheshrao Lamdade (Supra) has been
considered here. However, as regards Parigabai Ashok Kakde (Supra) is
concerned, it is to be noted that this Court had taken support of
provisions under Section 357A of the Code of Criminal Procedure, but it
appears that the circulars have not been considered for awarding
compensation. Even after giving amount under the head of consortium,
funeral expenses etc, the amount of compensation that was awarded
was Rs.4,00,000/-, which is equivalent to the amount as per circular
dated 09.03.2016 and, therefore, no separate amount can be granted
under the head loss of consortium, funeral expenses etc.
16. It has been accepted by both the parties that there is no other
forum available for the petitioner to seek redressal of her grievance. She
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cannot approach any other forum for getting the said fixed amount of
compensation declared as per the circular. No doubt, she can approach
to Civil Court for getting compensation for any tortuous act of the
Company; however, it will not be relating to implementation of the
circular. Hence, case is made out by the petitioner for the exercise of
powers of this Court under Article 226 of Constitution of India for
issuing writ. We therefore, proceed to pass following order :-
ORDER
i) Writ petition is hereby allowed.
ii) Respondents are directed to pay amount of Rs. 4,00,000/-
(Rupees Four Lakhs only) to the petitioner within a period of two
months.
iii) Rule is made absolute in the above terms
[ SMT. VIBHA KANKANWADI, J. ] [ CHIEF JUSTICE ]
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