Delhi High Court
Renu Kumari & Anr. vs Bses Rajdhani Power Ltd. & Ors on 7 March, 2011
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 7th March, 2011.
+ W.P.(C) 2045/2001
% RENU KUMARI & ANR. ..... Petitioners
Through: Mr. P. Bashista, Adv.
Versus
BSES RAJDHANI POWER LTD. & ORS. ..... Respondents
Through: Mr. Samrat Nigam, Adv. for R-1.
Ms. Sana Ansari, Adv. for Ms.
Zubeda Begum, Adv. for R-3
GNCTD.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? No
2. To be referred to the reporter or not? No
3. Whether the judgment should be reported No
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The writ petition was filed by the widow and the brother of the
deceased claiming compensation of `5 lacs from Delhi Jal Board (DVB)
and the Govt. of NCT of Delhi on account of death due to electrocution on
8th November, 1999. Notice of the writ petition was issued. Counter
affidavits have been filed by the respondents. Rule was issued on 19 th
February, 2004. Vide order dated 30 th January, 2008 the status report was
called from the police and in response whereto report dated 6 th March, 2009
has been filed by SHO, P.S.-Uttam Nagar, New Delhi. As per the First
Information Report (FIR), the deceased was carrying on activity as a barber
on an open plot of land; that there was an electric pole nearby; the deceased
caught the wire holding/supporting the said pole and which wire was
energized and the deceased fell down and was declared dead. The incident
happened in the evening of 8th November, 1999 and the FIR was lodged on
9th November, 1999.
2. Upon the unbundling of the DVB, M/s BSES Rajdhani Power Ltd.
was impleaded as respondent no.1 and has filed a counter affidavit in which
it is stated that the deceased died while attempting to illegally tap electricity
from the electricity pole and the respondent no.1 is thus not liable.
3. The respondent no.1 in its counter affidavit has relied on Chairman,
Grid Corporation of Orissa Ltd. (GRIDCO) Vs. Smt. Sukamani Das
(1999) 7 SCC 298, judgment of this Court in W.P.(C) No.5016/2002 titled
Smt. Ram Wati Vs. BSES Yamuna Power Ltd., judgment of this Court in
W.P.(C) No.1108/2001 titled Sh. Dharampal Vs. DTC and judgment of
this Court in W.P.(C) No.3548/2007 titled Gunman Singh Rawat Vs.
BSES Rajdhani Power Ltd. to contend that without finding any neglect on
the part of the respondent, no order granting compensation can be made and
where disputed questions of fact arise, the granting of such a relief in writ
jurisdiction is not appropriate.
4. The counsel for the petitioner has based his arguments only on the
status report filed by the SHO, P.S.-Uttam Nagar to the effect that during
the investigation one Mr. Inderjeet Khandelwal an employee of DVB was
found liable for lapse and was arrested and challan was filed in the Court on
21st October, 2010. At the time of filing of the status report, the said
prosecution was stated to be still pending. Neither counsel, today has any
knowledge as to the fate of the said prosecution. The counsel for the
petitioners has however argued that when the investigation by the State
itself which was then controlling DVB revealed that an employee of DVB
was liable for the lapse and the said employee was arrested and was being
prosecuted, it prima facie shows the negligence of the respondent no.1
BSES Rajdhani Power Ltd. as the successor of DVB and the petitioners are
entitled to compensation on this ground. Reliance is placed on para 6 of
H.S.E.B. Vs. Ram Nath (2004) 5 SCC 793 laying down that an electricity
company carrying on a business which is inherently dangerous ought to
know that if a person were to come into contact with a high-tension wire, he
is bound to receive serious injury and/or die and would thus be liable.
5. Per contra, the counsel for the respondent no.1 has contended that in
view of the dispute raised in the counter affidavit, the petitioners ought to
be relegated to a suit. He has fairly stated that since the writ petition has
remained pending in this Court for long and the limitation for filing the suit
may have lapsed, the petitioners can be given benefit of Section 14 of the
Limitation Act as has been given in the judgments listed in the counter
affidavit.
6. The judgment in the case of Ram Nath (supra) related to death of a
five year child coming into contract with high-tension wire passing over the
roof of her house. The facts in that case spoke for themselves and there
were no disputed questions. However herein the deceased was a grown up
person carrying on activity of barber shop. The petitioners have not filed
any rejoinder to the counter affidavit of the respondent no.1. In the writ
petition also no facts are given as to how the deceased came into contact
with a live wire. Ordinarily, the wires transmitting electricity are above
human height and there is no occasion for anyone to come into contract
with the said wires and the wires supporting the pole are not energized. In
this regard, the time of death of the deceased becomes important. The
deceased died in the evening in the month of November when it gets dark
early. In the circumstances, the plea of the respondent no.1 that the
deceased was attempting to illegally tap electricity and thus came into
contact with the live wire, cannot be out rightly rejected. If the deceased
had died in stark daylight when there would have been no occasion for him
to so tap electricity to carry on of his hair cutting activity, it could have
been presumed that the negligence was of the respondent no.1/its
predecessor.
7. As far as the arguments of the counsel for the petitioners of the
investigation by the State is concerned, the counsel for the petitioners has
himself stated that the same leads to only a prima facie conclusion. No
relief on the basis of such prima facie conclusion can be granted.
8. The petitioners are as such not found to have brought any such
material or facts before this Court to lead to an inescapable conclusion of
the negligence being of the respondent no.1/its predecessor for the relief of
compensation to be granted in writ jurisdiction.
9. The writ petition is therefore dismissed as not maintainable.
However, subject to the petitioners filing a suit for compensation on or
before 30th April, 2011, the same shall be entertained without any objection
as to limitation and shall be decided on merits.
No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
MARCH 07, 2011
bs
