Delhi High Court

Dhani [email protected] Khamari And Others vs Chief Executive Officer, Cesco ... on 7 January, 2014

Author: B.R.Sarangi

           ORISSA HIGH COURT: CUTTACK

            W.P.(C) Nos. 14077 & 14078 of 2007

In the matter of an application under Articles 226 & 227 of the
Constitution of India.
                           ----------

In W.P.(C) No. 14077 of 2007

Nalini Pradhan and others ......... Petitioners

-versus-

Chief Executive Officer, CESCO and ......... Opp.Parties Others.

For Petitioners : M/s. J. Katikia, S.P. Sovani, S. Patra.

       For Opp.Parties    :       M/s. Bibhudhendra Dash
                                  Mr. P.K. Mohanty (O.P.2)

In W.P.(C) No. 14078 of 2007

Dhani [email protected] and others                  .........        Petitioners


                                  -versus-

Chief Executive Officer, CESCO and           .........        Opp.Parties
Others.

        For Petitioners       :    M/s. J. Katikia, S.P. Sovani,
                                   S. Patra.

       For Opp.Parties    :       M/s. Bibhudhendra Dash
                                  Mr. P.K. Mohanty (O.P.2)


PRESENT:

      THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing: 03.12.2013| Date of judgment : 07.01.2014

Dr. B.R.Sarangi, J. In both the writ petitions, since common questions

of fact and law are involved, they were heard together and are

disposed of by this common judgment.

In both the writ petitions the legal heirs of the

deceased Surendra Pradhan and Nityananda Khamari have

approached this Court assailing the non-grant of compensation for

their death due to electrocution.

2. The fact of the case in hand is that on 17.5.2003

when the deceased Surendra Pradhan had been to his paddy field

to spread manure along with his brother-in-law, namely,

Nityananda Khamari, suddenly he came in contact with a live

electric wire which was lying on the ground. Immediately after

getting in touch with the said electric wire, Surendra Pradhan fell

on the ground with a loud cry and sometime thereafter his body

became still. Nityananda Khamari, who was driving the bullock cart,

jumped off the cart and ran towards deceased Surendra Pradhan

with a purpose to save him. But when Nityananda touched the body

of Surendra, he fell down on the ground and died due to

electrocution. Thereafter, the younger daughter of Surendra, who

was accompanying both the deceased, ran home and reported her

family members about the incident. On getting information, the co-

villagers of the deceased rushed to the spot and found that both

the deceased persons have died due to coming in contact with a

live electric wire, which had fallen on the ground. Thereafter the

villagers brought the dead bodies to the Govt. Hospital and after

examining the bodies, doctor referred them to the upgraded

Primary Health Centre, Tangi where both were declared dead. Upon

getting information, the Officer-in-Charge, Tangi Police Station

arrived and registered Tangi P.S. U.D. Case No. 7 of 2003. The

Officer-in-Charge, Tangi Police Station sent the bodies of the

deceased Surendra Pradhan and Nityananda Khamari to Khurda

Govt. Hospital for post mortem. After port mortem, the dead bodies

were handed over to the family members for cremation. Due to the

lackadaisical attitude of opposite party nos. 1 and 2, co-villagers

resorted to strike and delayed the cremation of the dead bodies

and also held „Rasta-rok‟ on the main road leading to Bhusandapur.

The Tahasildar, Tangi and Officer-in-Charge, Tangi Police Station

requested the villagers to remove the road block and allow

cremation of dead bodies with the assurance of the CESCO

authorities to pay Rs.2000/- each towards funeral expenses of the

victim, but the protesters did not pay any heed to any assurance.

However, the Sub-Collector, Khurda-opposite party no.4 came to

the spot and announced ex-gratia payment of Rs.5000/- for each of

the bereaved families and promised to take urgent steps for

disbursement of the regular compensation. Basing on such

assurance, the „Rasta-rok‟ was withdrawn and the dead bodies

were carried to the respective villages for cremation. Since no steps

were taken either by opposite party nos. 3 and 4 or by opposite

party nos. 1 and 2 for payment of compensation, the petitioner

no.1 filed representation before the authorities praying therein for

early payment of necessary compensation. Not only she made

representation but also she met personally opposite party nos. 1

and 2 on several occasion, but no action has been taken for

disbursing the compensation amount to the petitioners, who are

spending their days in agony after the sad demise of Surendra

Pradhan, who was the only earning member of the family. Copies of

the said representations are attached to the writ petition as

Annexure-2 series.

3. Pursuant to the notice, opposite party nos. 1 and 2

have filed their counter affidavit stating, inter alia, that the factum

of the death of Surendra Pradhan and Nityananda Khamari have

been admitted on the date of occurrence due to electrocution. They

have also admitted the cause of death as declared by the doctor

and also admitted the registration of U.D. Case No. 7 of 2003

before Tangi Police Station. It is further admitted that there was

„Rasta-rok‟ by the local people and due to announcement of

extratia payment of Rs.5000/- to each of the victims by the Sub-

Collector, Khurda, the „Rasta-rok‟ was withdrawn. But at the same

time, it is stated in the counter affidavit filed by the opposite party

no.2 that there is no cause of action to file a case against him as

the place of death is not coming under the Electrical Division of

opposite party no.2 and he has no knowledge about the incident

and nobody approached him for the compensation as stated.

Further it is stated that he is no way connected with the death,

therefore due to non-joinder of proper parties, the writ petition has

to be dismissed. Apart from the same, an objection was raised with

regard to the limitation because, the incident was of the year 2003

and the writ petition has been filed in the year 2007. Therefore, in

view of Section 82 of the Limitation Act and Section 1 A Note 15.2

of the Fatal Accident Act, the writ petition having been filed after

more than three years, is barred by limitation.

4. The petitioners have filed rejoinder affidavit stating

that once the opposite party nos. 1 and 2 have admitted the death

of the deceased, they are obliged to pay the compensation. It is

further stated that instead of mentioning Executive Engineer,

Balugaon, it has been wrongly reflected as Executive Engineer,

Khurda but the same has been corrected by filing a Misc. Case and

the Executive Engineer, Balugoan has been impleaded as opposite

party no.2 to the writ petition. It is stated that after death of her

husband (the present petitioner no.1) petitioner no.1 was mentally

upset for which she could not approach the authorities on 7.7.2003

to register the representation and on 02.04.2004 but when no

action was taken by the authorities, the present writ petition

(W.P.(C) No.14077 of 2007) was filed. Therefore, the stand taken

by the authorities that the writ petition has been filed at a belated

stage and the petitioners are not entitled to get the compensation

is absolutely misconceived.

5. Mr. J. Katikia, learned counsel for the petitioners

raises a specific contention that if the death has been caused due

to electrocution and for that U.D. Case No. 7 of 2003 has been

registered and such occurrence has happened due to the

negligence of the authorities as they had not taken care of the live

electric wire which had snapped and touched the ground and they

had not taken any precautionary measure, thereby the legal heirs

of the deceased are entitled to get compensation. More so, the

death due to electrocution, is not disputed in view of the fact

mentioned in Annexure-3 and the F.I.R. submitted in U.D./G.R.

Case No.42 of 2003 pending in the court of the learned Sub-

Divisional Magistrate, Khurda and the subsequent post mortem

report, where it is opined by the Sub-Assistant Surgeon that the

cause of death of the deceased was due to ventricular fibrillation as

a result of electrocution and the time of death is within 6 to 12

hours and such report has been furnished on 17.5.2003. So far as

the contention raised that the claim is barred by limitation, Mr.

Katikia, learned counsel states that the same is not barred by

limitation.

6. Mr. Dash, learned counsel for the opposite party

no.2 specifically referring to Section 3 of the Fatal Accident Act

urges that since the limitation provided in this Act is one year but

two years thereafter the petitioners have approached this Court

ventilating their grievance in the year 2007, the claim is barred by

limitation. Hence, the claim is not entertainable.

7. It is the admitted case of the parties that Surendra

Pradhan and Nityananda Khamari have died in coming in contact

with a live electric wire, which had touched the ground. In view of

the materials available on record, more particularly, the F.I.R.

lodged before the Tangi Police Station and registered as U.D. Case

No. 7 of 2003, which has been corroborated by the post mortem

report submitted by the doctor under Annexure-3, it is conclusively

proved that the death is due to electrocution and it is due to the

negligence on the part of the authorities. It is tell-tale in view of

the fact that once a live electric wire has snapped and touched the

ground, a duty is cast on the opposite party nos. 1 and 2 to either

disconnect the power supply or to take necessary steps so as to

prevent the fatal accident. As it reveals, no precaution has been

taken by the opposite party nos. 1 and 2 to disconnect power

supply but on the other hand, they became callous in their own

attitude, causing death of two valuable lives at an early age putting

the entire family in distress doll-dom and now their families are

struggling for their existence having lost their only earning member

of the family and their economic condition has been deteriorating

day by day and callousness of the opposite parties is perpetuating

because of non payment of compensation, which is admissible to

the petitioners in accordance with law.

8. So far as the contention of the opposite parties that

the claim is barred by limitation and the petitioners are not entitled

to get compensation is concerned, the same is absolutely based on

a misconceived notion. Mr. Katikia, learned counsel for the

petitioners relies upon the judgments in Collector Land

Acquisition, Anantnag and another v. Mst. Katiji and others,

AIR 1987 SC 1353 and in The Madras Port Trust v. Hymanshu

International, AIR 1979 SC 1144 and states that in view of the

judgments cited above, refusal to grant compensation on the

ground of limitation is absolutely not sustainable.

9. In Collector Land Acquisition, Anantnag and

another v. Mst. Katiji and others, AIR 1987 SC 1353, it is

specifically held that if sufficient cause has been shown, the court

should adopt a liberal approach in the matter of condonation of

delay. It is further stated that when substantial justice and

technical considerations are pitted against each other, cause of

substantial justice deserves to be preferred for the other side

cannot claim to have vested right in injustice being done because

of a non-deliberate delay.

10. In The Madras Port Trust v. Hymanshu

International, AIR 1979 SC 1144, it is held by the apex Court that

the plea of limitation based on Section 110 of Madras Port Trust

Act, is one which the court always looks upon with disfavour and it

is unfortunate that a public authority like the Port Trust should in

all morality and justice take up such a plea to defeat a just claim of

the citizen. It is high time that governments and public authorities

adopt the practice of not relying upon technical pleas for the

purpose of defeating legitmate claims of citizens and do what is fair

and just to the citizens.

11. In view of the judgments referred to supra the plea

taken by the opposite party nos. 1 and 2 that the claim of the

petitioners is barred by limitation and that they are not entitled to

get compensation is hereby rejected. Apart from the same, the

petitioners have shown sufficient cause for the delay in approaching

this Court to indicate that they made representation to the

authorities in the year 2003 and moved the very same authority till

2004 and subsequently they approached the authorities personally

several times, but when they failed in their attempt to get their

legitimate claim, finding no other way out, they have approached

this Court by filing the present writ petitions. In view of such

position, the contention raised by the opposite party nos. 1 and 2

that the claims are barred by limitation, therefore, fails.

12. Mr. J. Katikia, learned counsel for the petitioners in

support of the claim of compensation has relied upon the

judgments of this Court reported in Nirmala Nayak and others v.

Chairman-cum-Managing Director, Grid Corporation of

Orissa Ltd. and another, 2005 (II) OLR 389 and Dhananjaya

Behera and two others v. CESU represented through its Chief

Executive Officer and three others, 2011 (I) OLR 198.

13. Before going through the judgments cited by Mr.

Katikia, learned counsel for the petitioners, on the factual matrix, it

is clear on the basis of the post mortem report and the F.I.R.

lodged before the Tangi Police Station registered as U.D. Case No.

7 of 2003 that the death has been caused due to electrocution and

such death has been caused because of the negligence on the part

of the opposite party nos. 1 and 2. If the live wire from the over-

head live had snapped and touched the ground, the opposite

parties owed a duty as per the provisions contained under the

Indian Electricity Act to take precautionary measure to disconnect

the power supply. Instead of doing so, they allowed the live electric

wire to remain touched to the ground and unfortunately having

come in contact with the said live wire, two valuable lives have

been lost. Therefore, the opposite parties are liable to pay

compensation.

14. The meaning of compensation had came up for

consideration before this Court in Moumita Roychoudhury v.

Abhijit Chattarjee, reported in 2013 (II) ILR-CUT-820. In

paragraph-12 of the said judgment, the dictionary meaning of

compensation has been analyzed in the following manner:-

"(1) The word "compensation" should be taken to mean the sum remaining after setting-off the gains from the amount of loss through the non-fulfilment of the contract. [Muralidhar Chatterjee v. International Film Co. Ltd., AIR 1943 P.C. 34:206 IC 1].

(2) The expression "compensation" ordinarily used as an equivalent to damages, although compensation may often have to be measured by the same rule as damage in an action for the breach. The term "compensation" as pointed out in Oxford Dictionary, signifies that which is given recompense, an equivalent rendered damages, on the other hand, constiture the sum of money claimed or adjudged to be paid in compensation for loss or injury sustained, the value estimated in money, of something lost or withheld. The term "Compensation" etymologically suggests the image of balancing one thing against another. Its primary signification is equivalent, and the secondary and more common meaning is something given or obtained as an equivalent. [Mohamed Mozahara Ahad v. Mohamad Azimadin Bhauinya, AIR 1923 Cal.507 at 511].

(3) According to dictionary it means, "compensating or being compensated; thing given as recompense". In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. [Lucknow Development Authority v. M.K. Gupta, AIR 1994 SC 787].

(4) Though the word "compensation" is not defined in the Act or in the rules it is the giving of an equivalent or substitute of equivalent value. It means when you pay the compensation in terms of money it must represent, on the date of ordering such payment, the equivalent value, (Para 24) Rathi Memon v. Union of India, (2001) 3 SCC 714:2001 SCC (Cri) 1311:AIR 2001 SC 1333.

(5) The  dictionary     meaning       of    the    word
"compensation" is as under "

   Black‟s Law Dictionary

   "money given to compensate loss or
   injury."

Webster‟s Third New International Dictionary

"the act or action of making up, making good or counterbalancing rendering equal:"

P.Ramanatha Aiyar: Law Lexicon

"something given or obtained as an equivalent; ... an equivalent given for property taken or for any injury done to another;"

15. In view of the aforesaid dictionary meaning of the

word „compensation‟ now the question comes for consideration as

to the applicability of the judgments cited by the learned counsel

for the petitioners. In Nirmala Nayak and others (supra),

wherein a Division Bench of this Court in a similar circumstances in

exercise of power under articles 226 and 227 of Constitution of

India had considered a similar situation where death had occurred

due to electrocution and compensation was granted. While doing so

this Court has taken note of the judgment of the Hon‟ble apex

Court in M.P. Electricity Board v. Shail Kumar and others, AIR

2002 SC 551, Charan Lal Sahu v. Union of India, AIR 1990 SC

1480, Gujurat State Road Transport Corporation v.

Ramanbhai Prabhatbhai, AIR 1987 SC 1690, Kaushnuma

Begum v. New India Assurance Co. Ltd., AIR 2001 SC 485.

16. In M.P. Electricity Board (supra) reliance has been

placed on the decision of the Privy Council in Quebec Railway

Light Heat and Power Co. Ltd. v. Vandry (1920 Law Reports

Appeal Cases 662) where it is observed that the company supplying

electricity is liable for the damage without proof that they had been

negligent. Even the defence that the cables were disrupted on

account of a violent wind and high tension current found its way

through the low tension cable into the premises of the Respondents

was held to be not a justifiable defence. Thus, merely because the

illegal act could be attributable to a stranger is not enough to

absolve the liability of the Board regarding the live wire lying on the

road.

Therefore, the contention raised by the opposite party

nos. 1 and 2 that they are not liable to pay compensation is

absolutely a misconceived one.

17. So far as the quantum of compensation is

concerned, reliance has been placed on the judgment in Executive

Engineer, Electricity (M&RE) Division, Awantipura,

Anantanagar v. Mohammad Ashraf Bhat, AIR 1999 J & K, 137,

wherein the High Court in a case of death due to electric shock, it

was held that the claim for compensation and employment to the

son of the deceased, the High Court has jurisdiction to entertain

the petition and deal with it appropriately. The apex Court also in

the case of M.S. Grewal v. Deep Chand Sood, (2001) 8 SCC 151

observed as under:-

"Next is the issue of "maintainability of the writ petition" before the High Court under Article 226 of the Constitution. The appellants though initially very strongly contended that while the negligence aspect has been dealt with under penal laws already, the claim for compensation cannot but be left to be adjudicated by the civil laws and thus the Civil Courts jurisdiction ought to have been invoked rather than by way of a writ petition under Article 226 of the Constitution. This plea of non-maintainability of the writ petition though advanced at the initial stage of the submissions but subsequently the same was not pressed and as such we need not detain ourselves on that

score, expecting however recording that the law Courts exits for the society and they have an obligation to meet the social aspirations of citizens since law courts must also respond to the needs of the people. In this context, reference may be made to two decisions of this Court: the first in line is the decision in Nilabati Behera v. State of Orissa (AIR 1993 SC 1960) wherein this Court relying upon the decision in Rudral Sah (Rudral Sah v. State of Bihar), (AIR 1983 SC 1086) decried the illegality and impropriety in awarding compensation in a proceeding in which the courts power under Articles 32 and 226 of the Constitution stands involved and thus observed that it was a clear case for award of compensation to the petitioner for custodial death of her son. It is undoubtedly true, however, that in the present context, there is no infringement of the State‟s obligation, unless of course the State can also be termed to be joint tortfeasor, but since the case of the parties stands restricted and without imparting any liability on the State, we do not deem it expedient to deal with the issue any further except nothing the two decisions of this Court as above and without expression of any opinion in regard thereto."

Similar view has also been taken by this Court in

Dhananjaya Behera and two others v. CESU represented

through its Chief Executive Officer and three others, 2011 (I)

OLR 198 and in the said case the case of Nirmala Nayak and

others v. Chairman-cum-Managing Director, Grid

Corporation of Orissa Ltd. and another, 2005 (II) OLR 389 has

also been referred along with Ketaki Lenka and another v.

CESCO & others, 2007 (I) CLR 516.

18. In view of the above facts and circumstances of the

case, referring to the ratio decided in Nirmala Nayak and others

(supra) and taking into account the law laid down by the Hon‟ble

apex Court in M.S. Grewal v. Deep Chand Sood (supra) and

following the guidelines mentioned therein, this Court is of the view

that the petitioners in both the writ petitions should be paid a

compensation of rupees two lakhs each. Accordingly, the petitioner

nos. 1 and 2 are directed to pay the compensation of

Rs.2,00,000/- (Rupees two lakhs) each to petitioner no.1 in both

the writ petitions with simple interest @ 6% per annum from the

date of death of the victims till the payment. The amount shall be