Orissa High Court

Bhagaban Rout & Anr vs Executive Engineer on 1 November, 2022

   AFR           IN THE HIGH COURT OF ORISSA AT CUTTACK

                               W.P. (C) No.7704 of 2007

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

      Bhagaban Rout & Anr.                           ....       Petitioners

                                        Versus

      Executive Engineer,CESCO, Salipur ....           Opposite Party

           For Petitioners         ... Mr. A.A.Khan, Adv.
                                     Mr.R.Pati, Adv.

           For Opposite Parties ... Mr. D.Ray, Adv.


                                   JUDGMENT

PRESENT:

THE HONOURABLE JUSTICE BISWANATH RATH

Date of Hearing and Judgment: 01.11.2022

Biswanath Rath, J. This Writ Petition involves the following prayer:-

"It is therefore, humbly pray that this Hon'ble Court may graciously be pleased to admit the writ application and after hearing both the sides allow the same and direct the Opp. Party to pay a compensation of Rs.5 lakhs to the petitioners within a stipulated time by issuing appropriate writ;

And any other order/orders as deem fit and proper be passed;

And for this act of kindness, the petitioners shall as in duty bound, ever pray."

// 2 //

2. Short background involving the case is the parents of the

deceased involving herein claims while their son returning to their

house after cultivating their agricultural land on 13.08.2006 at about

5.00 P.M. accidentally came in contact with the electric charge wire in

a hanging stage from the Electric Poll in damaged condition, as a result

of which son of the Petitioners coming in contact with live wire fell

down on the ground. On being shifted to S.C.B, Medical College and

Hospital for treatment. S.C.B, Medical College and Hospital on

examination of body declared that the son of the Petitioners was dead

on the arrival of the body in the hospital itself. It is on the premises of

premature death of deceased caused due to negligence of CESCO

authority and the financial loss as well as loss on mental agony at the

end of the parents coupled with loss of love and affection, requests

were made to the competent authority for making necessary payment

towards compensation. For the department remain silent, this Writ

Petition came to be filed with prayer for direction for appropriate

compensation. Pleading and submission also discloses there has been

lodging of F.I.R. registered as P.S.U.D. Case No.10 of 2006 in Jagatpur

P.S. appearing at Annexure-1.

// 3 //

3. Learned counsel for the Petitioners in the above background of

matter taking this Court to the inquest report as well as post mortem

report under Annexures-2 & 3 for the finding therein deceased dying

due to electrical shock claims a sum of Rs.5,00,000/- as compensation

for loss on account of life, love and affection and other incidental

expenditures. Taking this Court to the observations in Annexures-1 to 3

learned counsel for the Petitioners contended that the Petitioners have

proved the case and for the loss due to negligence by CESCO

department which should be directed to pay the required compensation.

4. Mr. Ray, learned counsel for the sole Opposite Party taking this

Court to the counter plea as well as disclosures through Annexure-(A)

contended there has been communication by the Assistant Manager

(Electrical) to the I.I.C, Jagatpur Police Station intimating therein that

there is reporting by the Camp line man to the establishment informing

that Rabindra Rout, the deceased was stealing energy by means of hook

after cutting the AB cable on 13.08.2006 evening. In the process cutting

of AB cable electrocuted the poll and there involves a fatal accident

resulting death of the deceased. It appears, the department wanted an

inquiry and appropriate action involving the complaint. While not

disputing the observations in the inquest report for intimation of the

department to the police already involved therein, Mr.Ray, learned

// 4 //

counsel for the Department to support his case takes help of a decision

in T.Bimala vrs. Cuttack Municipal Corporation, Cuttack and others

reported in 2012 (Supp.-II) OLR 256.

Mr.Ray, learned counsel appearing for the Department in the

above background contended for the settled position of law no

inference can be done against the department merely because of

existence of a final form or the inputs in the inquest report or the post

mortem report. Mr.Ray, learned counsel also objected the

entertainability of the Writ Petition on the premises that investigation, if

any, by police authority came in form of final report and did not

involve the department. Preparation of such final report cannot bind the

department. Further police also did not show any interest on their

attempt for lodging an F.I.R.

5. Considering the rival contentions of the Parties, this Court finds,

undisputedly there is death of the son of the parents appearing as the

Petitioner Nos. 1 & 2 on 13.08.2006. It is clear from the inquest report

as well as the post mortem report, the death of the deceased caused due

to electrocution, final form also supports the case of the Petitioners no

doubt the case could not be further investigated for there is no

ascertainment of involvement of any person however all the documents

such as inquest report, post mortem report as well as the final form are

// 5 //

all in one direction undisputedly suggesting there is death of the

deceased on account of electrocution coming in contact of line wire

undisputedly belonging to the CESCO. There should not be also any

dispute that the wire or the poll came in contact with the body of the

deceased. It is at this stage coming to consider the stand of the

department, the Opposite Parties, this Court finds, the Opposite Parties

contest herein simply on the basis of disclosures vide document at

Annexure-A which reads as follows:-

To

The Officer-In-Charge, Jagatpur Police Station, Jagatpur Sub:- FIR regarding fatal accident at the time of energy theft by cutting AB cable at Dhia Sahi under Bohugram Electrical Section on dt.13.8.06 evening.

Sir, It is reported by the Camp line man that Sri Rabindra Kumar Rout, son of Sri Bhagyadhar Rout of Village-Dhia Sahi (Barabodia) was stealing energy by means of hook after cutting the AB cable on dt.13.08.06 evening at about 7 P.M. and electrocuted to fatal accident.

Hence, you are requested to kindly investigate the matter and report your findings for further action at this end."

Yours Faithfully,

Illegible, Sd/- 14.08.06 Asst. Manager (Elect), Electrical Section, Bahugram.

(SEAL)

Permanent Address Sri Bhagyarathi Samal, S/o. Sri Prana Krushna Samal, Vill.- Hatasisua, P.S.- Tangi, Dist- Cuttack

// 6 //

It appears through Annexure-A department sought for a F.I.R. on

the fatal accident in an attempt of theft of energy by cutting the AB

cable by the deceased. Unfortunately copy of report of complainant line

man is not coming to see the light of the day. For the allegation

involved that there involved a theft by cutting AB cable at Dhia Sahi

under Bohugram Electrical Section on dated 13.08.2006, this Court

here draws the inference, in the event department has already requested

the Jagatpur Police Station drawing an F.I.R. on the allegation involved

therein, there should have been chasing such aspects. The counter or the

additional counter affidavit did not contain any further information as

to the development on the request of the department through Annexure-

A. In the event the police authority on such issues remained silent since

there was availability of further legal processes, such processes ought to

have been followed. Pleading through the counter affidavit as well as

the additional counter affidavit nowhere establishes following of any

further legal recourses by the department. Further in the event the

Assistant Manager (Electrical) Section Bohugram had already come to

notice the incident and reported on 14.08.2006 only hardly a day after

the incident taking place regarding thereto involving an attempt by

cutting of AB cable, there is no material brought on record at least

// 7 //

involving a departmental inquiry to have its findings on such action

and/ or seizure of any wire and/or any material utilized for the purpose

or sketch of the area of operation, if any, at least establishing there was

an attempt of stealing energy by means of hooking and by cutting AB

line. If there was any cutting in the AB cable there would have been

also a report at least suggesting such cutting. For there is no

development after such F.I.R and the materials completely absent

establishing any sort of inquiry by the department, this Court finds,

Annexure-A a simply creation of the department to block the claim of

the parents of the deceased.

6. Coming to the argument of counsel for the department

questioning the maintainability of the Petition for there involvement of

disputed question of fact, this Court first of all finds, the F.I.R, inquest

report, post mortem report and final form all supports the case of the

Petitioner so far their claim on the death of their son on electrocution,

whereas the department even though attempted to lodge an FIR on

allegation of attempt for stealing energy against the deceased there is

neither any following up action for undertaking a legal exercise

involving their allegation involves Annexure-A nor there is even any

internal report produced either in counter or additional affidavit

bringing in some material to at least making out a case involving a theft

// 8 //

attempt. This Court here finds, the case of the Petitioner rather gets

support of a decision of the Hon'ble Apex Court in the case of

Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others

vrs. Sukamani Das and another reported in AIR 1999 SC 3412. This

Court here also finds support of a decision of this Court on the

entertainability of Writ Petition through judgment of this Court in the

case of Executive Engineer, Central Electricity Supply Utility Ltd.,

Cuttack Electrical Division, Jobra, Cuttack vrs. Hema Sethy reported

in 2011 (II) OLR- 708.

Through AIR 2001 SC 485 vide paragraph-12 therein, the Hon'ble

Apex Court came to hold as follows:-

12. Even if there is no negligence on the part of the driver or owner of the motor vehicle, but accident happens while the vehicle was in use, should not the owner be made liable for damages to the person who suffered on account of such accident? This question depends upon how far the Rule in Rylands v. Fletcher (1861-73 All ER (Reprint)1) (supra) can apply in motor accident cases. The said Rule is summarized by Blackburn J. thus:

The true rule of law is that the person who, for his own purposes, brings on his land, and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, he is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default, or, perhaps, or the act of God; but, as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient." This decision also supports the case of the Petitioner here.

7. At this stage taking into consideration the decision taken support

by the opponent, this Court finds the claim of the Petitioner though

// 9 //

based on a reporting in the inquest report as well as F.I.R. and further

final form observations involving the F.I.R. at the instance of the

parties in loss but however there is no material establishing the case

contrary to the existence in all these records. Further in spite of

involvement of such serious issue, department failed in undertaking the

minimum an enquiry at least coming to a finding by its own people that

there is in fact, an attempt for stealing energy by cutting AB cable.

8. It is in the above background, this Court finds, there is no

disputed fact involved herein. In the circumstance this Court finds, the

Petitioners for the undisputed loss of their son at the age of twenty four

years observes, there is great loss to the parents not only on account of

death of their son but there is also loss of mental agony as well as love

and affection and Petitioners deserved appropriate compensation.

9. Since the matter involves compensation involving death on

account of electrocution, Electricity Act since does not provide such

relief, this Court drawing analogy from the Motor Vehicles Act, 1988

for Schedule II therein prescribing manner of determination of

compensation in case one unable to throw light on income aspect and

such party is in unskilled category, schedule II meant for compensation

for third party in fatal accident/ injury case at Clause-6 prescribes

Rs.15,000/- per annum for non-earning persons and same schedule also

// 10 //

prescribes seventeen multipliers in case deceased above twenty years

but does not exceed 25 years.

This Court here takes into account a decision of the Hon'ble

Apex Court in the case of Kishan Gopal and another vrs. Lala and

others reported in (2014) 1 SCC 244, again in the case of Lata

Wadhwa vrs. State of Bihar reported in (2001) 8 SCC 197 where

Hon'ble Apex Court not finding any material to establish income factor

has relied on Notional Income factor through second Schedule to

Section 163-A of Motor Vehicle Act has come to take the Notional

Income factor in the minimum to be Rs.15,000/- per annum. This

principle is even also taken into account in the case of R.K.Malik and

another vrs. Kiran Pal and others reported in (2009) 14 SCC 1. Scope

on Notional Income also has been further enlarged by the Hon'ble

Apex Court through involving a case under Motor Vehicle Act in the

case of Kirti and another vrs. Oriental Insurance Company Limited

reported in (2021) 2 SCC 166 through para-17 therein observed as

follows:-

17. There are two distinct categories of situations wherein the court usually determines notional income of a victim. The first category of cases relates to those wherein the victim was employed, but the claimants are not able to prove her actual income, before the Court. In such a situation, the court "guesses" the income of the victim on the basis of the evidence on record, like the

// 11 //

quality of life being led by the victim and her family, the general earning of an individual employed in that field, the qualifications of the victim, and other considerations."

10. This court finds, the Petitioners deserve to get appropriate

compensation. Here taking into account the loss of fifteen years in the

meantime and without getting into further loss of time, this Court here

finds the Petitioners claim the income of the deceased @ Rs.3,000/- per

month and the age of the deceased at the time of death hardly twenty

four years however while the parents claim their son is a cultivator,

there is absolutely no material to establish the income of the deceased.

Taking into account the decision of Hon'ble Apex Court to apply

notional income further in the year @ 15,000/- per annum taking into

account 1/3rd for his personal use and keeping in view the age of the

deceased at twenty four years of a age below twenty-five years and

also the age of the parents at the relevant point of time they are entitled