Manipur High Court
The State Of Manipur vs Baby Tinchonghoi Mate @ Boinu Mate on 20 October, 2022
KABORA Digitally signed
by
MBAM KABORAMBAM
SANDEE
IN THE HIGH COURT OF MANIPUR
SANDEEP SINGH
Date: 2022.10.20
P SINGH 14:50:29 +05'30'
AT IMPHAL
W.A. No. 28 of 2021
1. The State of Manipur, represented by the Chief Secretary,
Government of Manipur, Secretariat, Babupara, P.O. & P.S.
Imphal, Imphal West District, Manipur. Pin No. 795001.
2. The Commissioner (Power), Government of Manipur, Secretariat,
Babupara, P.O. & P.S. Imphal, Imphal West District, Manipur.
Pin No. 795001.
3. The Manipur State Power Distribution Company Limited
(MSPDCL), represented by Managing Director, Near 2nd MR,
North A.O.C., Imphal, P.O. Lamlong & P.S. Imphal, Imphal East
District, Manipur. Pin No. 795001.
Appellants
-Versus-
1. Baby Tinchonghoi Mate @ Boinu Mate, aged about 3 years,
resident of Chehlep Village, P.O. & P.S. Tengnoupal, Tengnoupal
District, Manipur - 795131.
2. Shri Khaikholen Mate, aged about 40 years, S/o L. Jamkhosei
Mate, resident of Chehlep Village, P.O. & P.S. Tengnoupal,
Tengnoupal District, Manipur - 795131.
Respondent No. 1, being a minor, represented by the natural
father (respondent No. 2).
...Respondents
With
MC (W.A.) No. 38 of 2021
1. The State of Manipur, represented by the Chief Secretary,
Government of Manipur, Secretariat, Babupara, P.O. & P.S.
Imphal, Imphal West District, Manipur. Pin No. 795001.
W.A. No. 28 of 2021 with MC (W.A.) No. 38 of 2021 Page 1
2. The Commissioner (Power), Government of Manipur, Secretariat,
Babupara, P.O. & P.S. Imphal, Imphal West District, Manipur.
Pin No. 795001.
3. The Manipur State Power Distribution Company Limited
(MSPDCL), represented by Managing Director, Near 2nd MR,
North A.O.C., Imphal, P.O. Lamlong & P.S. Imphal, Imphal East
District, Manipur. Pin No. 795001.
Applicants
-Versus-
1. Baby Tinchonghoi Mate @ Boinu Mate, aged about 3 years,
resident of Chehlep Village, P.O. & P.S. Tengnoupal, Tengnoupal
District, Manipur - 795131.
2. Shri Khaikholen Mate, aged about 40 years, S/o L. Jamkhosei
Mate, resident of Chehlep Village, P.O. & P.S. Tengnoupal,
Tengnoupal District, Manipur - 795131.
Respondent No. 1, being a minor, represented by the natural
father (respondent No. 2).
...Respondents
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SANJAY KUMAR
HON'BLE MR. JUSTICE MV MURALIDARAN
For the appellants : Mr. S. Nepolean, Government Advocate
For the respondents : Mr. Tungrei Ngakang, Advocate
Judgment reserved on : 14.10.2022
Judgment pronounced on : 20.10.2022
W.A. No. 28 of 2021 with MC (W.A.) No. 38 of 2021 Page 2
JUDGMENT & ORDER (CAV)
Sanjay Kumar (C.J.):
[1] The State of Manipur; the Commissioner (Power), Government of
Manipur; and the Manipur State Power Distribution Company Limited (MSPDCL)
are in appeal against the order dated 19.03.2020 passed by a learned Judge of
this Court in W.P. (C) No. 359 of 2019. By the said order, the learned Judge
allowed the writ petition and directed the appellants herein to pay a sum of
₹.10,00,000/- to the writ petitioners within 60 days, after deducting the amount,
if any, already paid by them. In the event they failed to do so within that time
frame, interest was to accrue @ 6% per annum. The principal amount and the
interest thereon were directed to be paid within 60 days from the date of expiry
of the earlier period of 60 days. The writ petitioners were also granted liberty to
approach the competent Civil Court for more compensation, if they were not
satisfied with the amount granted. The appellants also filed MC (W.A.) No. 38 of
2021, seeking stay of operation of the order pending disposal of this appeal.
Earlier, by interim order dated 26.08.2019, the learned Judge had directed
payment of a sum of ₹.1,00,000/- to the petitioners. It is not clear from the
record as to whether this order was duly complied with. That apart, a sum of
₹.50,000/- seems to have been paid to the petitioners as ex gratia compensation.
[2] Heard Mr. S. Nepolean, learned Government Advocate, appearing
for the appellants; and Mr. Tungrei Ngakang, learned counsel, appearing for the
respondents/writ petitioners.
[3] Facts
, relevant to this adjudication, may be summed up thus: At
about 11:30 am on 06.02.2019, petitioner No. 1, an infant of just two years of
W.A. No. 28 of 2021 with MC (W.A.) No. 38 of 2021 Page 3
age, was electrocuted when she came into contact with an electric transformer
near her house. In consequence, she sustained 60% burns all over her body and
her right hand was amputated high above the elbow. Petitioner No. 2, her father,
states that a sum in excess of ₹.1,50,000/- was spent on her hospitalization and
treatment. He asserted that the authorities had failed to take adequate
precautions in respect of the transformer, as required by statutory norms,
resulting in violation of the fundamental rights of petitioner No. 1 under Articles
14, 21 and 300 of the Constitution, apart from constituting an action in tort under
the principles of res ipsa loquitur, strict liability and restitutio in integrum. The
petitioners accordingly filed the writ petition praying for compensation of
₹.1,36,00,000/- with interest thereon @ 12% per annum.
[4] Significantly, the MSPDCL, respondent No. 3 in the writ petition, did
not even choose to file an affidavit-in-opposition. It was only the Under Secretary
(Power), Government of Manipur, who filed an affidavit-in-opposition on behalf of
the Commissioner (Power), Government of Manipur, respondent No. 2 therein.
Her stand was as follows: The incident was accidental in nature and not due to
any negligence on the part of the MSPDCL. The transformer in question was
installed about 3-4 feet high from the ground/road level and the wooden fencing
around it was intact, obviating any possibility of entry without opening of the
fencing gates. One side of the transformer was left unfenced because of
steepness, but the unfenced side was about 7-8 feet high from the ground level.
This transformer was installed in the year 1997 and all safety measures were
ensured at that time. There was no house existing near the transformer then. No
permission was sought for construction of the house near the transformer and no
information was given to the department. There was no possibility of any person
W.A. No. 28 of 2021 with MC (W.A.) No. 38 of 2021 Page 4
or animal entering into the fenced area without opening the gates, as the
transformer had katcha wooden fencing on 3 sides. On this basis, she claimed
that it was the responsibility of the parents to take care of their child and no
liability could be attached to the MSPDCL.
[5] Petitioner No. 2 filed a rejoinder to this affidavit-in-opposition
stating that the transformer was installed ignoring all safety measures and
precautions as required under the statute and the rules framed thereunder. He
asserted that the transformer was mounted on a low-level platform and was not
secured with barbed-wire fencing. He stated that no danger-signboard was fixed
on it to warn the public, as mandated by law. He reiterated that there was
flagrant violation of statutory norms in the installation and maintenance of the
transformer, which resulted in his young daughter being disabled for life. He
stated that the transformer was repaired after the incident by installing barbed-
wire fencing, clearly indicating that it was necessary even prior to the incident.
[6] A reply was filed by the Under Secretary (Power) on behalf of the
Commissioner (Power), Government of Manipur, to this rejoinder. Therein, she
again stated that there was no negligence on the part of the MSPDCL and that it
was the responsibility of the parents to take care of their child. She however
admitted that the fencing of the transformer in question had been upgraded after
the incident to barbed-wire fencing along with twenty-five other transformers in
Tengnoupal District. According to her, there was no rule that a transformer
should be fenced with barbed-wire only or with any other particular material and
that its only purpose was to prevent access to the electric-supply lines and the
apparatus by an unauthorized person.
W.A. No. 28 of 2021 with MC (W.A.) No. 38 of 2021 Page 5
[7] Considering these rival contentions, the learned Judge relied on
case law that held that compensation could be awarded in exercise of writ
jurisdiction under Article 226 of the Constitution for violation of fundamental
rights. The learned Judge then referred to the statutory position and noted, on
facts, that the transformer ought not to have been installed at such a low level
and that no safety measures were taken by the authorities. Further, as the child
was of tender age, the learned Judge held that there was no question of
attributing any contributory negligence to her. The learned Judge took note of the
standard life longevity in India, viz, 70 years, and observed that the disability
suffered by the child would have to be endured by her for the rest of her life.
Noting that the Supreme Court had rejected use of the multiplier system as the
only basis for determining compensation, the learned Judge concluded that,
taking all the relevant factors into consideration, compensation of ₹.10,00,000/-
can be said to be just and reasonable. Relief was accordingly granted along with
an interest component in the event of delayed payment.
[8] Mr. S. Nepolean, learned Government Advocate, would contend that
the learned Judge was not justified in awarding compensation in exercise of writ
jurisdiction when negligence on the part of the MSPDCL was disputed. He would
vehemently contend that no negligence was made out as the transformer in
question was adequately fenced. He however does not dispute the fact that this
wooden fencing was provided by the villagers themselves, long ago, and not by
the MSPDCL. He would argue that Rule 82 of the Indian Electricity Rules, 1956,
(for brevity, the Rules of 1956) would apply and the failure of petitioner No. 2 to
inform the authorities concerned about the construction of his house near the
W.A. No. 28 of 2021 with MC (W.A.) No. 38 of 2021 Page 6
transformer would negate any liability of the authorities for the incident that had
occurred and its consequences.
[9] Per contra, Mr. Tungrei Ngakang, learned counsel, would refer to
the statutory provisions and argue that the authorities were clearly at fault in the
installation and maintenance of the transformer in question. He would further
contend that the issue of negligence would pale into insignificance as the doctrine
of strict liability would be squarely applicable to the case on hand. He would
justify grant of relief by the learned judge and pray for dismissal of the appeal.
[10] Before considering the issue on merits, it would be appropriate to
take note of the statutory scheme relating to the responsibility of the authorities
under the electricity laws. Section 2(22) of the Electricity Act, 2003 (for brevity,
'the Act of 2003') defines 'electrical plant' to mean any plant, equipment,
apparatus or appliance used for or connected with the generation, transmission,
distribution or supply of electricity. Section 53 of the Act of 2003 makes provision
for the Central Electrical Authority, in consultation with the State Government, to
specify suitable measures for protecting the public from dangers arising from
generation, transmission or distribution of electricity, or use of electricity supplied,
or installation, maintenance or use of any electric plant. Section 162 of the Act of
2003 empowers the appropriate Government to appoint qualified persons to be
Electrical Inspectors who would be required to exercise such powers and perform
such functions as may be prescribed in respect of such class of works and electric
installations and subject to such restrictions as the appropriate Government may
direct. Section 185 of the Act of 2003 deals with 'Repeal and Saving' and provides
that the Indian Electricity Rules, 1956, made under Section 37 of the repealed
Indian Electricity Act, 1910, shall continue to be in force till Regulations are made
W.A. No. 28 of 2021 with MC (W.A.) No. 38 of 2021 Page 7
under Section 53 of the Act of 2003. As no such Regulations have been made till
date, the Rules of 1956 still continue to operate. Significantly, an entire chapter in
the Rule of 1956, viz, Chapter IV, is devoted to 'General Safety Requirements'.
Rule 2(e) of the Rules of 1956 defines 'apparatus' to mean electrical apparatus,
including all machines, fittings accessories and appliances in which conductions
are used. In turn, 'conductor' is defined under Rule 2(k) to mean any wire, cable,
bar, tube, rail or plate used for conducting energy and so arranged as to be
electrically connected to a system. Rule 2(ao) defines 'street box' to mean a
totally enclosed structure, either above or below ground, containing apparatus for
transforming, switching, controlling or otherwise regulating energy. Rule 29(1) in
Chapter IV provides that the apparatus shall be constructed, installed, protected,
worked and maintained in such a manner as to ensure safety of human beings,
animals and property. Rule 29(2) states that the relevant code of practice of the
Bureau of Indian Standards, including National Electrical Code, may be followed
to carry out the purposes of Rule 29 and in the event of any inconsistency, the
provision of the Rules of 1956 shall prevail. Rule 29(3) stipulates that the material
and apparatus used shall conform to the relevant specifications of the Bureau of
Indian Standards, where such specifications have already been laid down. Rule 35
in Chapter IV deals with 'Danger Notices' and stipulates that the owner of every
medium, high and extra-high voltage installation shall affix permanently in a
conspicuous position a danger notice in Hindi or English and the local language of
the district, with a sign of skull and bones on every motor, generator, transformer
and other electrical plant and equipment. The proviso states that, if it is not
possible to affix such a notice on a generator, motor, transformer or other
apparatus, it shall be affixed as near as possible thereto, or the word 'danger' and
W.A. No. 28 of 2021 with MC (W.A.) No. 38 of 2021 Page 8
the voltage of the apparatus concerned shall be permanently painted on it. Rule
46 in Chapter IV deals with 'Periodical inspection and testing of installation' and
provides that where an installation is already connected to the supply system,
every such installation shall be periodically inspected and tested at intervals not
exceeding five years, either by the Inspector or any officer appointed to assist the
Inspector or by the suppliers as may be directed by the Government concerned.
Rule 46(1)(c) provides that the forms of inspection report contained in Annexure
(IX A), subject to the approval of the Inspector, may be used for the purposes of
this sub-rule. Rule 46(2)(c) states that in the event of failure of the owner of an
installation to rectify the defects in the installation, pointed out by the Inspector,
within time, such installation would be liable to be disconnected under the
directions of the Inspector as per due procedure.
[11] This being the statutory regime, the photographs placed on record
by both sides clearly manifest that the transformer in question is installed on a
low-level platform on elevated ground. Significantly, the entire area appears to be
elevated from the ground/road level but the transformer is proximate to the
house of the petitioner and is easily accessible therefrom, as evidenced by the
fact that an infant could reach it with ease. There are wide gaps in the wooden
fencing, clearly visible in the photographs, for an infant of two years to crawl
through and enter into the enclosure without difficulty. As already noted supra, it
was only after this horrific incident that the authorities erected barbed-wire
fencing around this transformer and several others. Further, it is not in dispute
that the wooden fencing around the transformer in question was not even
provided by the authorities concerned but by the villagers themselves. Specific
averments were made to this effect at two places in the writ affidavit and were
W.A. No. 28 of 2021 with MC (W.A.) No. 38 of 2021 Page 9
not denied by the Under Secretary (Power) in her replies filed in response to the
writ affidavit and the rejoinder affidavit. In effect, no protection whatsoever was
provided by the authorities around the transformer at any point of time before
the incident. In this regard, it may be noted that a Division Bench of this Court
had occasion to deal with the incidence of electrocution due to improper
maintenance of electric transformers, installed without fencing, in PIL No. 48 of
2017. By final order dated 11.07.2018 passed therein, the Division Bench noted
that a series of orders had been passed directing the authorities to ensure proper
maintenance of electricity service lines, transformers, etc., so as to protect the
citizens and the Managing Director, MSPDCL, was directed to take serious action
in case of failure on the part of his subordinates. Had proper action been taken
pursuant to this order vis-à-vis the transformer in question, perhaps the shocking
incident involving this unfortunate child could have been averted altogether.
[12] Significantly, Office Memorandum dated 22.12.2017 was issued by
the MSPDCL in relation to transformers. Therein, it was stated that, in view of
increasing instances of fatal and non-fatal electrical accidents related with
non-fencing of distribution transformers, all Sub-Divisional Managers in the
Revenue Divisions should execute/implement a minimum of 10 distribution
transformer security fencing where the conditions were most susceptible/prone to
accident, in order to prevent casualty to humans and animals. This Office
Memorandum was placed on record in the writ petition by the Commissioner
(Power), Government of Manipur, but for reasons best known to them, the
appellants did not choose to file it in the appeal papers. The writ petition record
was accordingly called for to examine this Office Memorandum and its contents
reflect as stated above.
W.A. No. 28 of 2021 with MC (W.A.) No. 38 of 2021 Page 10
[13] Though Mr. S. Nepolean, learned Government Advocate, would
assert that there was no negligence on the part of the MSPDCL, the eloquent
silence of the MSPDCL evidenced by its failure to file a separate affidavit-in-
opposition speaks for itself. No material has been produced in relation to how the
transformer was installed in the year 1997 and how safety measures were
ensured at that time, as claimed by the Under Secretary (Power). As already
noted supra, the Rules of 1956 specifically stipulate that adequate safety
measures be taken at the time of installation, but it is clear that the transformer
was not even provided with fencing at that time and it was the villagers
themselves who undertook this exercise at a later point of time. Further, no
material is produced before this Court in proof of inspections having been carried
out in terms of Rule 46 of the Rules of 1956 at any point of time. Had any such
inspection been made by the authorities concerned, it may have resulted in
proper fencing being provided around the transformer sooner and saved this child
of tender years from a lifetime of suffering.
As regards Rule 82 of the Rules of 1956, it may be noted that this
Rule only speaks of 'overhead lines' and not other equipment or installations.
Therefore, it would have no application to a transformer. Further, as already
noted supra, had the authorities concerned undertaken periodical inspections as
required under law, irrespective of the construction of the petitioners' house at a
later point of time, sufficient protection could have been provided in the usual
course around the transformer in question. As no action was ever taken by the
MSPDCL at any point of time before this incident and it was the villagers
themselves who undertook the exercise inadequately, the authorities cannot seek
absolution by claiming that wooden fencing was provided around the transformer.
W.A. No. 28 of 2021 with MC (W.A.) No. 38 of 2021 Page 11
In this regard, it may also be noted that the prescriptions with regard to the
material to be used, as per the Bureau of Indian Standards, have not been
produced before this Court to examine whether the wooden fencing provided by
the villagers qualified as sufficient protection under the norms. The negligence of
the MSPDCL is therefore patent and it resulted in tragedy for this young child.
[14] That apart, the petitioners maintain their claim for compensation
not only by way of an action in tort but also based on the violation of the
fundamental rights of the child. As rightly noted by the learned Judge, redressal
of such violations, in terms of being compensated monetarily, is amenable to the
writ jurisdiction of this Court under Article 226 of the Constitution (See Rudul
Sah Vs. State of Bihar and others [(1983) 4 SCC 141], Nilabati Behera
(Smt) alias Lalita Behera Vs. State of Orissa and others [(1993) 2 SCC
746], D.K. Basu Vs. State of West Bengal [(1997) 1 SCC 416] and M.C.
Mehta and another Vs. Union of India and others [(1987) 1 SCC 395].
[15] Even if it is to be taken that the petitioners are only maintaining a
claim in tort, the negligence on the part of the MSPDCL is demonstrable. When
the authorities concerned, and more particularity the MSPDCL, were dealing with
distribution of a potentially dangerous and hazardous commodity, viz., electricity,
it was incumbent upon them to abide by all the prescribed statutory norms in the
context of safety. There is no evidence whatsoever of the MSPDCL having
undertaken any measures to abide by such norms prior to the incident in
question. The very fact that they resorted to barbed-wire fencing around the
transformer after the event clearly shows that they woke up to their responsibility
a little too late.
W.A. No. 28 of 2021 with MC (W.A.) No. 38 of 2021 Page 12
[16] Reliance placed by Mr. S. Nepolean, learned Government Advocate,
on Chairman, Grid Corporation of Orissa Ltd. and others Vs. Smt.
Sukamani [(1999) 7 SCC 298] and SDO, Grid Corporation of Orissa Ltd.
Vs. Timudu Oram [(2005) 6 SCC 156] is of no avail as those were cases
where the Supreme Court held that the exercise of jurisdiction under Article 226
was unsustainable on the ground that negligence was not established on the part
of the electricity authorities. However, as the finding of this Court in the case on
hand is to the contrary and the negligence of the MSPDCL is spelt out in clear
terms, the ratio laid down in these judgments has no application.
[17] On the above analysis, this Court holds that the learned Judge was
justified in exercising writ jurisdiction and awarding compensation to the
petitioners to the tune of ₹.10,00,000/- with interest thereon. No grounds are
made out for interference with the order under appeal.
[18] The writ appeal is devoid of merit and is accordingly dismissed.
In consequence, MC (W.A.) No. 38 of 20221, filed for stay of the
order under appeal, is also dismissed.
The balance of the compensation amount of ₹.10,00,000/-, after
deducting the amount already paid, shall be released to the petitioners along with
interest thereon, as directed by the learned Judge, within one month from today.
Though deserving, we refrain from making any order as to costs.
JUDGE CHIEF JUSTICE
FR
Sandeep
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