Udaya Gagarai vs Executive Engineer, Electrical ...
2014 Latest Caselaw 118 Del

                      ORISSA HIGH COURT: CUTTACK


          ORIGINAL JURISDICTION CASE NO. 16973 of 1997

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

      Udaya Gagarai                             .........        Petitioner


                                     -versus-

      Executive Engineer, Electrical Division
      and another                                .........       Opposite Parties


               For petitioner    :   M/s.Tahali Charan Mohanty,
                                     S.C.Swain & S.Patnaik.

               For opp. parties :    M/s. Banoj Ku.Pattnaik,
                                     S.Sinha,S.K.Pradhan, P.S.Nayak


      PRESENT:

               THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing: 10.12.2013 | Date of judgment : 07 .01.2014

Dr. B.R.Sarangi, J. The petitioner being the father of the deceased

Sanatan Gagarai, who died due to electrocution on 25.4.1997 at

about 12.30 P.M. near Nischinta under Baruan Out-post under the

jurisdiction of Jajpur Police, has filed this writ petition seeking for a

direction to the opposite parties for award of compensation of Rs.5

lakhs.

2. The petitioner‟s case, in short, is that the deceased

while discharging his duties as labourer came in contact with one

live electric wire, which was in hanging condition and met with a

fatal accident, pursuant to which he died. An U.D.G.R.Case No. 55

of 1997 arising out U.D.P.S.Case No. 2 of 1997 was registered on

25.4.1997 at about 121.30 P.M. under Annexue-2. The deceased

left behind his old parents, who were fully depending on his

earnings. Case of the petitioner is that the death has been caused

due to the negligence on the part of the opposite parties.

Therefore, the petitioner has filed this writ application claiming

compensation.

3. While entertaining the writ application, this Court

issued notice to the opposite parties pursuant to which counter

affidavit has been filed, wherein a specific stand has been taken

with regard to the identification of the deceased, which is disputed

and it is stated that no person namely, "Sanatan Gagarai" died due

to electrocution on 25.4.1997 at about 12.30 P.M. near Nischinta

under Baruan Out-post under Jajpur Police Station, rather one

Sanatan Bagudia on 25.4.1997 at about 11.30 P.M. while cutting

tree branches, which was above the electric line, came in contact

with the electric wire and suffered injuries. It is further stated that

cutting the tree branches over the electric line by the said Sanatan

Bagudia was without the knowledge of the opposite parties and the

circumstance under which Sanatan Bagudia faced the accident was

beyond the control of the opposite parties. It is stated that it is an

unauthorized act of the said person. The opposite parties have

further stated that Late Sanatan Bagudia was the victim for his

own laches for which the Department is no way responsible nor

negligent so as to award compensation in his favour and more so,

since the identification of the person concerned is disputed, this

writ application is not maintainable and the same is otherwise

liable to be dismissed. It is further averred that relying upon the

news paper cutting annexed as Annexure-1 and basing upon

contradictory statement, no compensation can be claimed and

further since disputed questions of fact are involved, the writ

application also cannot be sustained. The further plea of the

opposite parties is that since the petitioner has not come to this

Court with clean hands establishing his relationship with Sanatan

Gagarai or Sanatan Bagudia, the petitioner should be put to strict

proof of the same. It is further stated that since disputed

questions of facts are involved, the petitioner should approach the

appropriate forum. Apart from the same, it is stated that law is well

settled that the petitioner is required to establish negligence, but

the petitioner has failed to produce any substantial evidence before

this Court to establish such fact.

4. Mr.T.C.Mohanty, learned Sr. Counsel appearing for

the petitioner states that if the factum of death due to electrocution

is true, whether Sanatan Gagarai or Sanatan Bagudia has died, is

immaterial, and therefore, the authorities relying upon the title of

the person concerned, should not reject the claim of the petitioner

for grant of compensation, who is the person entitled to under law.

He has also relied upon the judgments dated 29.6.2012 passed by

this Court in Writ Appeal No. 420 of 2011 (Sambari Nayak v.

CGM, Telecom and others), dated 16.3.2011 passed in Writ

Appeal No. 353 of 2010 (Executive Engineer, CESU v. Hema

Sethi), Nirmala Nayak v. CMD Grid Corporation, reported in

2005(II) OLR 389 and Uttam Sahu v. Chairman, OSEB, 1996(II)

OLR 99 and stated that in view of the law laid down by the apex

Court, this Court is not precluded to grant compensation, rather

considering the situation this Court can grant compensation in view

of the judgments reported in Jacob Mathew v. State of Punjab,

AIR 2005 SC 3180 as negligence has been caused by the

authorities as a result which the deceased died. He has also placed

reliance on the judgment of Gujurat High Court in Shriram

Education Trust v. Mita Ben Ani Bhai Patel, 2011 (3) TAC 153

wherein it is held that be it natural calamity or act of God,

construction of building was not in accordance with the sanctioned

plan-proper building materials were not used, will not debar the

person concerned from getting compensation.

5. Mr.Banoj Kumar Pattnaik, learned counsel appearing

for the opposite parties, strenuously urged that since there is

dispute with regard to the identification of the person concerned,

unless the same is established by approaching the appropriate

forum, no compensation can be granted by invoking the writ

jurisdiction of this Court and as such, the claim of the petitioner is

not maintainable. He has also relied upon the documents filed as

Annexures-A and B, the intimation given by the authorities to the

OIC, Baruan Out-post with regard to the fatal accident of one

Sanatan Bagudia, who is an outsider and consequently the report

of the Electrical Inspector, who caused enquiry under Rule 44-A of

the Indian Electricity Rules where definite finding has been

recorded that while cutting tree branches, the deceased came in

contact with 11 KV live wire without the knowledge of the

Department. In view of such position, since there is no negligence

on the part of the authorities, they are not liable to pay

compensation for the death of the deceased. In support of his

contention, Mr.Patnaik relied upon the judgment of the apex Court

in Chairman, Grid Co. and others v. Smt.Sukamani Das and

another, JT 1999(7) Supreme Court 109.

6. In view of the rival contentions of the parties, on

perusing the records, it is found that in the F.I.R. lodged in the

Police Station on 25.4.1997 at about 2.30 P.M. in Annexure-2, the

deceased‟s name has been recorded as Sanatan Gagarai, aged 25

years and the cause of death has been reported as "due to electric

shock on today, i.e. 25.4.97 at about 12.30 P.M." and such F.I.R.

has been registered as U.D.Case No. 2 of 1997 and thereafter the

same was registered as U.D.G.R.Case No.55 of 1997. The Medical

Officer on requisition being made by the police has caused post

mortem and furnished the report on 25.4.1997 wherein it is stated

that "one Sri Sanatan Gagurai aged about 25 years received dead

caused to be shocked by the Electric current, which is lying in the

verandah of this Haripuchat Addl.P.H.C." But the document in

Annexure-A, which is a communication from the electricity

authorities to the O.I.C., Baruan Out-post with regard to the fatal

accident, it is stated that one Sanatana Bagudia, an outsider has

been electrocuted to death coming in contact with 11 KV line at

Benipur on 25.4.1997 at about 11.30 A.M. while he was cutting

tree branches without the knowledge of Hariput Fuse Call staff.

Annexure-B also indicates the name of Sanatan Bagudia, who is an

outsider and the cause of accident has been indicated as "while

cutting tree branches came in contact with 11 KV line without the

knowledge of the Deptt." In the said document as against the

information under clause 12, it is stated that F.I.R. has been

lodged to O.I.C., Baruan Out-post vide letter no.192 dated

26.4.1997 of J.E. (Elect.), Kuakhia. The only difference between

the two names is the „surname‟. As revealed from the materials

available on record, at the relevant point of time within the

jurisdiction of the same police station, this was the only fatal

accident that took place leading to the death of the deceased due

to electrocution. If the death due to electrocution is established

and there is no other person succumbed to death on the particular

date and particular time due to electrocution, the irresistible

conclusion that can be drawn is that Sanatan Gagarai and Sanatan

Bagudia is the same person, who died due to electrocution as per

the records available in the police station, which is the F.I.R. as

well as the intimation requisition report and the post mortem

report furnished by the concerned Medical Officer. In view of such

position, no dispute can be raised with regard to the person who

died due to electrocution, rather a conclusion can be drawn that it

is Sanatan Gagarai, who succumbed to death due to electrocution

on the date of occurrence and the contention raised by the

opposite parties with regard to the identification of the person

concerned has to be rejected.

7. It is the admitted case that the deceased died due

to electrocution. If it is so, whether the said death has been caused

due to the negligence on the part of the authorities entitling the

petitioner to get compensation, is to be considered. It is the case

of the opposite parties that Sanatan Gagarai while cutting the tree

branches, came in contact with 11 KV line and died without the

knowledge of the Department and therefore, the petitioner is not

entitled to get compensation. Fact remains, it is admitted by the

opposite parties that the deceased died due to electrocution, but

nothing has been placed before this Court to establish the fact

whether the death has been caused due to the negligence on the

part of the opposite parties or not nor the petitioner could produce

any material with regard to the negligence on the part of the

authorities. In Malay Kumar Ganguly v. Dr.Sukumar

Mukherjee, (2009) 9 SCC 221= AIR 2010 SC 1162, the apex

Court considering the meaning of „negligence‟, held as follows:

"Negligence is breach of duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Negligence means either subjectively a careless state of mind, or objectively careless conduct. It is not an absolute term but is a relative one; it is rather a comparative term. In determining whether negligence exists in a particular case, all the attending and surrounding facts and circumstances have to be taken into account. Negligence is strictly nonfeasance and not malfeasance. It is omission to do what the law requires, or failure to do anything in a manner prescribed by law. It is the act which can be treated as negligence without any proof as to the surrounding circumstances, because it is in violation of statute or ordinance or is contrary to dictates of ordinary prudence."

8. In Jacob Mathew (supra) the apex Court considering

the meaning of "negligence", held as follows:

"The jurisprudential concept of negligence defies any precise definition. In current forensic speech, negligence has three meanings. They are : (i) a state of mind, in which it is opposed to intention; (ii)careless conduct; and (iii) the breach of a duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings."

9. In M.S.Grewal v. Deep Chand Sood, (2001) 8

SCC 151 = 2001 SCC (Cri) 1426, the apex Court in para 14 stated

as follows :

"Negligence in common parlance means and implies "failure to exercise due care, expected of a reasonable prudent person". It is a breach of duty and negligence in law ranging from inadvertence to shameful disregard of the safety of others. In most instances, it is caused by heedlessness or inadvertence, by which the negligent party is unaware of the results which may follow from his act. Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do. Though sometimes the word "inadvertence" stands and is used as a synonym to negligence, but in effect negligence represents a state of the mind which, is much more serious in nature than mere inadvertence. There is thus existing a differentiation between the two expressions- whereas inadvertence is a milder form of negligence, "negligence" by itself means and implies a state of mind where there is no regard for duty or the supposed care and attention which one ought to bestow."

10. In Poonam Verma v. Ashwin Patel, (1996) 4 SCC

332, „negligence‟ has been dealt with by the apex Court which has

stated thus:

"Negligence as a tort is the breach of a duty caused by omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do. The definition involves the following constituents:

              (1)     a legal duty to exercise due care;

              (2)     breach of the duty; and

              (3)     consequential damages."


11.           In Jay Laxmi Salt Works (P) Ltd. v. State of

Gujurat, (1994) 4 SCC 1, the apex Court held that negligence in

performance of duty is only a step to determine if action of

Government resulting in loss or injury to common man should not

go uncompensated.

12. „Negligence‟ has also been considered in various

judgments of this Court as well as the apex Court. In Consumer

Unity and Trust Society v. Chairman and Managing Director,

(1995) 2 SCC 150, the apex Court has held that „negligence‟ is

absence of reasonable or prudent care which a reasonable person

is expected to observe in a given set of circumstances. But the

negligence for which a consumer can claim to be compensated

under this sub-section must cause some loss or injury to him. In

Prafulla Kumar Rout v. State of Orissa, 1995 Cri LJ 1277, the

apex Court has held that negligence is an omission to do

something which a reasonable man guided upon these

considerations which ordinarily regulates conduct of human affairs

would do or the doing of something which a prudent and

reasonable man would not do. In Ramesh Kumar Nayak v.

Union of India, 1995 ACJ 443, the apex Court considering the

meaning of "negligence" held that negligence means failure to

exercise the required degree of care and caution expected of a

prudent driver. In Chatra and another v. Imrat Lal and others,

1998(1) Civ.LJ 670, the apex Court while defining the meaning of

„negligence‟ has stated that negligence means the breach of the

provisions of law as also the breach of the duty caused by omission

to do something which a reasonable man guided by those

considerations which ordinarily regulate the conduct of human

affairs, would do or the doing of something which a prudent and

reasonable man would not do. The negligence or the rashness

would depend upon the facts of each case.

13. In Advanced Law Lexicon of 3rd Edition 2009,

negligence has been defined as follows:

"Negligence" is not an affirmative word, it is a negative word; it is the absence of such care, skill and diligence as it was the duty of the person to bring to the performance of the work, which he is said not to have performed."

Negligence may consist as well in not doing the thing which ought not to be done as in doing that which ought not to be done when in either case it has caused loss and damage to another.

Negligence is "the absence of proper care, caution and diligence; of such care, caution and diligence, as under the circumstances reasonable and ordinary prudence would require to be exercised".

14. In view of the meaning of negligence as elucidated

above, it is to be considered at this stage whether the same can be

attributable to the opposite parties or not. On the basis of the

materials available on record, it is found that the deceased had

succumbed to death due to electrocution, but in the self-same

enquiry being caused by the electricity authorities vide Annexure-

B, it is found that the deceased while cutting the branches of the

tree came in contact with the 11 KV live wire without the

knowledge of the department and there is no material available on

record to indicate whether Sanatan Gagarai was actually cutting

the tree branches which could come in contact with the live wire.

But there is no dispute on the part of the opposite parties that the

death of the deceased has been caused due to electrocution.

Maintenance of electricity live wire is the prime duty of the

electricity authorities. Even cutting the branches of the trees near

the live electric wire is also the duty attached to the electricity

authorities coming under the maintenance of the live electric wire.

The same has not been done. That itself indicates that the

authorities were negligent in their own action in discharging their

statutory duty. If the death of the deceased due to electrocution is

admitted and there is negligence on the part of the authorities in

maintaining the live electric wire, taking into consideration the

analogy of negligence discussed supra and relying upon the

judgments of this Court as well as the apex Court in Nirmala Nayak

(supra), Executive Engineer, CESU v. Hema Sethi (supra),

M.S.Grewal (supra) and Jacob Mathew (supra), it can safely be

held that the death caused to the deceased was due to negligence

on the part of the electricity authorities. Accordingly, the petitioner

is entitled to get compensation.

15. For awarding compensation, the apex Court has laid

down the guidelines in Tata Wadhwa and others v. State of

Bihar and others, (2001) 8 SCC 197 and other cases referred to

supra in which this Court and the apex Court has awarded

compensation considering the income, status as well as age of the

person concerned. The deceased, who died due to electrocution,

was at the young age and was supporting the family working as a

labourer. Considering the length of survival of the deceased, this

Court, in the fitness of things, deem it fit and proper to award a

sum of rupees three lakhs as compensation to the petitioner.

Accordingly, the opposite parties are directed to pay a sum of

rupees three lakhs as compensation along with interest at the rate

of 10% per annum from the date of death of the deceased till

payment within a period of eight weeks from the date of receipt of

a copy of the judgment. Out of the total amount of compensation

along with interest, fifty per cent shall be kept in fixed deposit in

the name of the mother of the deceased in any Nationalized Bank

for a period of five years with a condition that the monthly interest

on such fixed deposit shall be paid to her regularly and out of the

balance 50%, 30% shall be kept in fixed deposit in the name of the

petitioner and monthly interest shall be debited to his SB account

permitting him to withdraw the same every month for his survival.

Balance 20% shall be released in favour of the petitioner.

16. With the aforesaid observation and direction, the

writ petition is disposed of. No cost.

.......................................

Dr.B.R.Sarangi, J.

Orissa High Court, Cuttack The 7th January, 2014/PKSahoo