IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 30.11.2011 Coram The Honourable Mr.Justice P.JYOTHIMANI W.P.No.12712 of 2003 C.Dhanalakshmi .... Petitioner vs. 1.The Chairman, Tamil Nadu Electricity Board, 800, Anna Salai, Chennai 2. 2.The Assistant Engineer, Tamil Nadu Electricity Board, Ilayankudi, Sivagangai District. .. Respondents The above writ petition is filed under Article 226 of the Constitution of India, praying for the issuance of writ of certiorarified mandamus to call for the records relating to the impugned order of the second respondent in A.No.490/2002 and quash the same and direct the respondents to pay adequate compensation to the petitioner for the death of her husband on 03.05.2002 by electrocution on account of the negligence of the Tamil Nadu Electricity Board. For Petitioner : Mr.P.Rajendran For Respondents : Mr.G.Vasudevan ORDER
The writ petition is filed challenging the impugned order of the second respondent dated 4.9.2002, by which, the second respondent has rejected the petitioner's representation claiming compensation for the death of her husband due to electrocution, which occurred due to the negligent conduct of the Electricity Department in not maintaining the electricity system properly. The petitioner's representation was rejected on the ground that it is the voluntary conduct of the husband of the petitioner in touching the live wire, which resulted in the electrocution, and further, it is the case of the second respondent, as it is seen from the impugned order that it is the 'act of God'.
2. The brief facts leading to the filing of the writ petition is that the petitioner's husband late Chandran, who was 30 years old at the time of his death, was a cultivating tenant in respect of the lands belonging to Pallivasal in Meyyanendal Village, Sivagangai District. On a heavy rainy day, namey, on 3.5.2002, after the rain was stopped, the said Chandran is stated to have proceeded to the land for irrigating the same with rain water. It was at that time the live electricity wire, which was not properly maintained, has caused the instant death of the husband of the petitioner. After the death, it is stated that the petitioner has lodged a complaint on the same day in Ilayankudi Police Station and the case was registered. The petitioner, at that time was aged 24 years and the said Chandran has left three children, all are males aged about 5, 3 and 1 years respectively. It was in those circumstances, the petitioner has issued a legal notice on 24.6.2002 claiming compensation, for the negligence of the Electricity Department, to the extent of 5 lakhs, and that came to be rejected under the impugned order.
3. In the counter affidavit filed by the respondents, the respondents have specifically admitted the incident and also the death of the petitioner's husband in the electrocution. However, it is the case of the respondents that it was only galvanised iron wire, which was hanging and that was normally used for tying the service wire and the petitioner's husband has touched the same, resulting in electrocution.
4. According to the respondents, even though it is stated that normally in galvanised iron wire, no electricity will pass, on that day, there was leakage of electricity in service wire and it was due to that reason the petitioner's husband died of electrocution. The relevant portion in this regard in the counter affidavit is as follows:
"4. . . .It is only the G.I.Wire (Galvanised Iron Wire), which is hanging and it is used only for tying the service wire. Unfortunately, the electricity was passed through the G.I.Wire due to the leakage of electricity in the service wire and due to negligence of the petitioner's husband, who touched the wire and died on the spot. It is the bounden duty of the petitioner to brought to the notice of the respondent Board if such wire was hanging but they have failed to intimate to the Board which have caused the death of her husband. When the petitioner's husband tried to lift the hanging G.I.Wire without knowing the consequences, he was electrocuted. Hence, it is very clear that the respondent board is not responsible for the death of her husband."
5. Therefore on fact, the respondents in the counter affidavit have admitted the incident. In such circumstances, prima facie, there is an admission on the part of the respondent-Electricity Board in respect of the incident. The Honourable Apex Court in the case in Tamil Nadu Electricity Board v. Sumathi and others 2000(4) SCC 543 even though held that if there are disputable question of facts, Article 226 of the Constitution of India cannot be pressed into service, nevertheless, the Supreme Court has held that the same cannot be understood as laying a law in every case of tortious liability. When there is negligence on the face of it, and due to such negligence on the part of the public undertaking there is a loss of life, it is relatable to violation of fundamental rights as guaranteed under Article 21 of the Constitution of India and in such circumstances, it will be improper to drive the parties to approach the civil Court and to wait for the agony of repeated adjournments and delay, especially when due to the death of the only bread winner of the family, there arose a pathetic situation. In this regard it is relevant to extract the relevant portion of the said judgement of the Honourable Apex Court, which I had occasion to follow under similar circumstances in LILLY STANISLAUS V. 1.THE CHAIRMAN, TNEB AND OTHERS-(2008 Writ L.R.278), as under:
"10. In view of the clear proposition of law laid by this Court in Sukamani Das case (1997(7)SCC298) when a disputed question of fact arises and there is clear denial of any tortious liability remedy under Article 226 of the Constitution may not be proper. However, it cannot be understood as laying a law that in every case of tortious liability recourse must be had to a suit. When there is negligence on the face of it and infringement of Article 21 is there it cannot be said that there will be any bar to proceed under Article 226 of the Constitution. Right of light is one of the basic human rights guaranteed under Article 21 of the Constitution. In U.P.State Coop.Land Development Bank Ltd.v.Chandra Bhan Dubey (1999(1) SCC 741: 1999 SCC (L&S) 389) where one of us (Wadhwa J.) was a party, this Court after examining various decisions of the courts on the power of the High Court under Article 226 if the Constitution observed that the language of Article 226 of the Constitution does not admit of any limitation on the powers of the High Court for the exercise of jurisdiction thereunder though by various decisions of this Court with varying and divergent views, it has been held that jurisdiction under Article 226 can be exercised only when a body or authority, the decision of which is complained, was exercising its power in the discharge of public duty and that writ is a public law remedy. This then observed: (SCC pp.758-59, para 27).
6. In fact, this has been the consistent view, as it is seen in the judgement of the Honourable Apex Court in SMT.KUMARI V. STATE OF TAMIL NADU AND OTHERS (AIR 1992 SC 2069), wherein a six years old boy died falling in a 10 feet deep uncovered sewerage tank in the city of Madras and ultimately, the matter was considered by the Honourable Apex Court as a prima facie negligence on the part of the Government and directed the compensation to be paid instead of directing the parties to approach the ciil Court. That was also the view of the Division Bench of this Court in PAREZADE MAMA V. STATE OF TAMIL NADU REP.BY SECRETARY TO GOVERNMENT, ELECTRICITY DEPARTMENT AND OTHERS (unreported judgment dated 5.1.2007 in W.P.No.5217 of 1999).
7. In fact, in NATH BROS.EXIM INTERNATIONAL LTD., V. BEST ROADWAYS LIMITED (2000(4) SCC 553), it was held by the Honourable Apex Court that on the face of the conduct of the public authority, if there is infringement of Article 21 of the Constitution of India, there is no bar for the High Court in invoking Article 226 of the Constitution of India by granting necessary damages, the relevant portion of which would run thus:
"17. It is true that writ petitions for claiming damages cannot be resorted when there is a clear denial of tortious liability. At the same time when the negligence is per se visible and it infringes Article 21, relief claiming damages could be granted under Article 226 of the Constitution of India.
18. In 2000(4) SCC 553 (Nath Bros.Exim International Ltd. vs. Best Roadways Ltd.), the Hon'ble Supreme Court no doubt held that the writ petition filed under Article 226 of the Constitution of India, High Court cannot grant compensation to the family of victim who died by electrocution. However, in the very same judgement the Hon'ble Supreme Court held that when there is negligence on the face of it and infringement of Article 21 is there, it cannot be said there will be any bar to proceed under Article 226 of the Constitution of India."
8. In yet another judgement in D.MATSA GANDHI.D. V. TAMIL NADU SLUM CLEARANCE BOARD (2000(III) CTC page 24), the Honourable Supreme Court has held that in cases where there is denial of tortious liability the writ petitions cannot be maintained. However, when negligence per se is visible the same has to be construed as violation of right to life and liberty guaranteed under Article 21 of the Constitution of India and the High Court has jurisdiction to grant compensation under Article 226 of the Constitution of India. In that case this Court has awarded an amount of Rs.75,000/- with interest at 12% per annum from the date of order.
9. In view of the long line of judgements on this issue and also taking note of the admission in the counter affidavit by the respondent electricity Board, I am of the view that it is too late to drive the parties to the civil Court, since there is no disputable facts, which are to be ascertained. In such view of the matter, the impugned order stands set aside. The respondents are directed to consider the representation of the petitioner and pass orders granting compensation of Rs.5,00,000/- (Rupees five lakhs) with interest at the rate of 9% per annum from the date of petition till the date of payment, as claimed by the petitioner, taking note of the fact that at the time of the death of the petitioner's husband, the petitioner was of 24 years old and that the deceased left three children of tender age, namely, 5, 3 and 1 respectively. The respondents are directed to pay the said amount within a period of four weeks from the date of receipt of a copy of this order.
10. In the result, the writ petition is allowed. However, there is no order as to costs.
1.The Chairman, Tamil Nadu Electricity Board, 800, Anna Salai, Chennai 2.
2.The Assistant Engineer, Tamil Nadu Electricity Board, Ilayankudi, Sivagangai District