Calcutta High Court (Appellete Side)
Kabita Mondal (Gayen) vs West Bengal State Electricity ... on 22 March, 2022
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P.A. No. 23672 of 2015
Kabita Mondal (Gayen)
Vs.
West Bengal State Electricity Distribution Co. Ltd. and others
With
W.P.A. No. 5382 of 2016
Kabita Mondal (Gayen)
Vs.
The West Bengal State Distribution Company Limited Service
and others
For the petitioner : Mr. Partha Sarathi Dev Barman,
Mr. Sourav Mallick,
Ms. Avipsa Sarkar
For the WBSEDCL
in both the matters : Mr. Sujit Sankar Koley
For the State
in W.P.A. No.23672 of 2015 : Mr. Wasim Ahmed,
Sk. Md. Masud
For the State
in W.P.A. No.5382 of 2016 : Mr. Pinaki Dhole,
Ms. Kakali Samajpati
Hearing concluded on : 15.03.2022
Judgment on : 22.03.2022
Sabyasachi Bhattacharyya, J:-
1.
The petitioner's husband Ananda Mondal died of electrocution on
May 1, 2015 when energized electricity wire drawn over a brick-built
government road fell over the said deceased. The petitioner made
representations before the West Bengal State Electricity Distribution
Company Limited (for short, "the WBSEDCL") for compensation on
the ground of such demise. However, the said distribution licensee
sat tight over the matter, necessitating the present writ petition.
2. The short point involved in the matter is, what is the yardstick to be
followed in granting compensation to the victim's next of kin in cases
of demise by electrocution?
3. Learned counsel for the petitioner submits that there is no specific
provision in the Electricity Act, 2003 (for short, "the 2003 Act") or any
other statute on the question of compensation for electrocution.
Hence, the standards applied in the Motor Vehicles Act, 1988 (for
short, "the MV Act"), that is, the multiplier applied for calculating
such compensation under Section 166 of the MV Act, as settled by
the Supreme Court in various cases, ought to be applied in cases of
electrocution death as well, since such provision is pari materia with
the 2003 Act in the context.
4. Learned counsel argues that a co-ordinate Bench of this court, in an
unreported judgment dated November 25, 2016 passed in W.P. 34143
(W) of 2014[Joyrita Maity (Biswas) vs. WBSEDCL &Ors.], had granted
Rs. 5 lakh as compensation in a similar case. However, the quantum
was decided on the particular facts of the case and not on the basis of
any fixed standard or principle. In the present case, it is contended,
the petitioner passed her Bachelor of Arts, Part - III Examinations in
the year 2011 from the University of Calcutta. Hence she has
sufficient educational qualification for being considered for
appointment in a job with the WBSEDCL, commensurate with her
qualifications, on sympathetic grounds. Moreover, the petitioner
claims compensation at a much higher amount than Rs. 5 lakh, as
granted in the cited case, since more than five years have elapsed
after passing of the order therein and keeping in view the
comparatively young age of the petitioner and her husband, at the
time of his demise.
5. The petitioner, it is submitted, is facing tremendous financial
hardship since her husband was the only earning member of the
family.
6. Learned counsel for the WBSEDCL, by citing an interim order dated
November 16, 2016 passed by the same Bench in the same case, that
is,W.P. 34143 (W) of 2014, learned counsel points out that it was
recorded by the learned Single Judge that, despite the sympathy of
the Bench being with the petitioner, the writ jurisdiction is not
exercised on sentiments. The Chairman and Managing Director of the
WBSEDCL, in his report filed earlier in the said matter, had
expressed his predicament in not being able to offer to the petitioner
employment in the absence of any law on that behalf. On November
25, 2016, the Bench clearly recorded that the writ court had
absolutely no jurisdiction to make any direction on the company to
offer employment.
7. By placing extracts of the minutes of the 69th meeting of Board of
Directors of the WBSEDCL held on February 20, 2017, learned
counsel for the WBSEDCL argues that the amount of solatium, in the
event of death caused by an accident involving the company's
installations, was specifically enhanced from Rs. 2.5 lakh to Rs. 5
lakh, although previously in Joyrita Maity (supra), by treating the case
as 'exceptional', Rs. 5 lakh was awarded as compensation. It is
submitted that the WBSEDCL is bound by its own decision dated
February 20, 2017.
8. Learned counsel submits that the only provision in the 2003 Act
regarding accidents is Section 161 of the said Act, read with the
Intimation of Accidents (Form and Time of Service of Notice) Rules,
2005.
9. Next relying on Chairman, Grid Corporation of Orissa Ltd. (GRIDCO)
and Ors. Vs. Sukamani Das & Anr., reported at (1999) 7 SCC 298,
learned counsel for the licensee argues that the Supreme Court
clearly observed that questions regarding compensation could not be
decided properly on the basis of affidavits only. It is the settled legal
position that where disputed questions of facts are involved a petition
under Article 226 of the Constitution is not a proper remedy and the
petitioners should have been directed to approach the civil court for
the remedy of compensation in tort within the ambit of Section 9 of
the Code of Civil Procedure.
10. Next placing reliance on HSEB &Ors. Vs. Ram Nath & Ors. [(2004) 5
SCC 793], learned counsel contends that the Supreme Court
considered GRIDCO's Case (supra)but refused to interfere with the
compensation of Re. 1 lakh awarded by the High Court to the
petitioner since, in the opinion of the Supreme Court, no disputed
question of fact was involved therein.
11. Thus, it is argued, the decision of the Board of Directors of the
WBSEDCL in their 69th meeting, which fixes the upper limit of
solatium payable in the event of death by electrocution at Rs. 5 lakh,
is the only guiding principle in the field. As such, the WBSEDCL is
willing to consider whether such amount can be handed over to the
petitioner in the present case.
12. Upon hearing learned counsel for the parties, it is evident that, apart
from the decision of the Board of Directors of WBSEDCL in its 69th
meeting dated February 20, 2017, there is no other guideline in the
relevant law for the grant of compensation for death by electrocution.
Although the Board fixed Rs. 5 lakh as solatium payable in such
cases, such quantum was fixed arbitrarily by the Board without
disclosing the methodology applied to arrive at such conclusion. The
learned Single Judge, while deciding W.P. 34143 (W) of 2014, had
arrived at the quantum in the particular facts of the case; however,
no uniform rule governing such compensation was laid down in the
said judgment.
13. Unfortunately, even the 2003 Act does not contain any provision
whatsoever regarding compensation for injury, death or damage of
property due to electrocution. Section 161 of the said Act deals
entirely with notice of accidents and inquiries and modalities in such
respect.
14. The Intimation of Accidents (Form and Time of Service of Notice)
Rules, 2005 merely frames rules regarding the form and time of
service of notices of electrical accidents, but fails to reach further.
15. The option of relegating such matters of compensation to a civil court,
considering the usually sorry plight of the victim's dependants, would
involve much time and resources which the applicants in such
matters mostly cannot afford to spend. Civil suits, by their implicit
nature and statutory structure, require oral and documentary
evidence to be led and considered in detail before final disposal.
16. Hence, it is desirable that the legislature considers the immediate
introduction of specific provisions in the Electricity Act, 2003 itself,
regarding payment of compensation to victims of injury, death of
damage to property caused by electrocution or their next of kin and, if
deemed fit, to also consider providing for a dedicated hierarchy of
forums to decide such cases. Rules in that regard may also be
formulated by the Central and/or State Electricity Regulatory
Commissions for effective implementation of such provisions.
17. However, the generation, transmission and distribution companies (in
this case, the WBSEDCL), as applicable in the particular facts of a
case, cannot shirk their role and liability in such accidents,
particularly since the commodity dealt with by them carries a huge
implicit risk and hazard, roughly comparable to producers,
manufacturers and transporters of highly combustible or explosive
materials. Moreover, the compensation or solatium, by whatever
name called, payable to victims or their kin cannot be assessed
arbitrarily by the companies/licensees.
18. Since no guideline is provided in the extant law and
rules/regulations, as placed before this court, the distribution
licensees, for the time being, shall assess the compensation payable
on a case to case basis, but on a uniform yardstick, by resorting to a
multiplier akin to the provisions under the Motor Vehicles Act, 1988
and the Rules framed thereunder, which stand on a similar footing, in
the absence of a better alternative.
19. As far as the present case is concerned, although there is no scope to
direct consideration of appointment of the petitioner on sympathetic
grounds (since the victim was not an employee of the WBSEDCL), the
liability of the WBSEDCL to pay compensation to the petitioner
cannot be avoided.
20. Hence, WPA 23672 of 2015 and the connected WPA 5382 of 2016 are
disposed of by directing the WBSEDCL to decide the amount of
compensation payable to the petitioner on the demise of her husband
by electrocution, applying the multiplier and yardsticks as provided
for death by accident under the Motor Vehicles Act, 1988 and the
Rules framed thereunder. Such consideration should be completed as
expeditiously as possible, positively within May 31, 2022, if necessary
after giving an opportunity of hearing to the petitioner and/or her
designated agent. The quantum of compensation thus arrived at shall
be disbursed to the petitioner positively by June 15, 2022.
21. However, it will be open to the petitioner, if dissatisfied with or
aggrieved by such decision of the WBSEDCL, to challenge the same
afresh under Article 226 of the Constitution of India.
22. There will be no order as to costs.
23. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite
formalities.
( Sabyasachi Bhattacharyya, J. )
