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CASE NO.: Appeal (civil)  1726 of 1999

PETITIONER: S.D.O. Grid Corporation of Orissa Ltd. & Ors.

RESPONDENT: Timudu Oram                                              

DATE OF JUDGMENT: 28/07/2005

BENCH: ASHOK BHAN & S.B. SINHA

JUDGMENT: J U D G M E N T With

Civil Appeal No.4560/2005 (@ Special Leave Petition ) NO. 5591 of 1999)    And Civil Appeal No.4552/2005  (@ Special Leave Petition (c) No.9788 of 1998).

BHAN, J.                          Leave granted in Special Leave Petition (c) No.  5591 of 1999   &   9788 of 1998.         In this batch of three appeals the question  which arises for determination is as to whether the  High Court was justified in exercising its power  under Article 226 of the Constitution of India and  award compensation to the respondent writ  petitioners even though the appellants \026 who was the  respondent in the writ petition \026 had denied the  liability on the ground that the deaths had not  occurred as a result of their negligence but because  of the negligence of the respondent themselves or of  an act of God or because of an act of some other  persons.  These appeals were ordered to be listed  along with the case  - Chairman, Grid Corporation of  Orissa Ltd. (GRIDCO) and others Vs. Sukamani Das  (Smt.) and another, [(1999) 7 SCC 298], but were  delinked as the service had not been completed on  the respondents.  The Bench disposed of the batch of  10 appeals and these appeals were ordered to be  heard after service is complete.          The facts of Civil Appeal No.1726 of 1999  arising against the order passed by the High Court  of Orissa in Writ Petition bearing OJC No.13281 of  1997 are:-

One Themba Bhim, a co-villager of the deceased  had taken power supply to his L.I. point.  Some  other villagers of the village Khuntagaon viz,  Ralbindra Oram, Fatha Oram, Gobardhan Kisan and Etwa  Oram had illegally taken power supply without the  knowledge of GRIDCO Authorities by use of hook from  the L.I. point to their houses by means of an un- insulated  G.I. wire.  On 22.8.97 the unauthorised  G.I. wire through which the line was illegally taken  got disconnected and fell on the ground.  At that  time the father of the respondent Japana Oram was

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coming with his bullock, the bullock came in contact  with the live G.I. wire and as a result thereof got  electrocuted.  On finding this Japana Oram tried to  rescue the bullock and got electrocuted.  His wife  came to his rescue and hearing her cries her  daughter Sabi Oram while trying to detach her  parents also was electrocuted.   The incident was  reported to the local police by the villagers of the  Khuntagaon on 23.8.97 wherein the fact of illegal  hooking and death due to electrocution was admitted.    The local police enquired into the matter and  reported the cause and manner of death as stated  above.  On 23.8.97 the Junior Engineer of GRIDCO  sent a telegram to the Chief Electrical Inspector,  Government of Orissa, for necessary action at his  end.  The S.D.O. Electrical Sub-Division Ujalapur on  24.8.97 also submitted report in which the cause of  death was mentioned to be due to illegal electric  connection taken through hook.  On 16.9.97  respondent herein filed a writ petition in the High  Court of Orissa at Cuttack being OJC No.13281 of  1997 claiming compensation for the death of the  deceased.  Counter affidavit was filed by the  appellants herein.  In the Counter affidavit it was  contended that death occurred were due to the  negligence of the deceased themselves and the  electric live wire were belonging to and maintained  by the GRIDCO had not snapped and, therefore, the  appellants were not liable to pay any compensation.   By the impugned judgment the High Court disposed of  the writ petition with a direction to the appellants  to pay a sum of Rs.2,70,000/- by way of compensation  to the respondent herein.           In Civil Appeal No. ____________of 2005 (@  SLP(C) No.9788 of 1998) arising from OJC No. 6290 of  1994, on the night of 10.5.84 due to heavy storm and  rain, one L.T. conductor snapped.  This happened  despite the fact that the appellant had taken  adequate steps to maintain the supply line properly.   Before the storm and rain on the night of 10.5.84  the supply line was checked by the Junior Engineer  and the lineman in the regular course of checking.   However, before information about the snapping of  the line was received by the appellants, the  deceased while moving in the morning came in contact  with the snapped electric line and became  unconscious. He was taken to the hospital where he  was declared dead.  The respondent had filed a suit  in the Court of Subordinate Judge, Jajpur against  the appellants claiming compensation for the death  of deceased being Money Suit No.199 of 1987.  The  said suit was dismissed by the Subordinate Judge,  Jajpur vide order dated 16.5.92.  Thereafter, after  a delay of 10 years, in the year 1994 the present  writ petition was filed in the High Court.  The High  Court ignoring the fact that the suit filed on the  same cause of action had already been dismissed and  awarded compensation of Rs.40,000/- to the  respondent.  According to the appellant, the death  occurred not because of their fault but due to act  of God.   

       In Civil Appeal No._____________of 2005  (@  SLP(C) No.5591 of 1999) arising from OJC No.4247/97

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the respondent filed a writ petition in the High  Court of Orissa at Cuttack  inter alia on the  allegations that on 28.5.92 at about 12.00 noon  while her husband was returning from the polling  station, a live electric wire suddenly snapped and  fell on him as a result of which he received severe  electrical burn injuries and lost his senses.  Some  local people took him to the S.D. Hospital, Jajpur  but on the way he breathed his last. The respondent  alleged that the accident had occurred due to the  negligence of the appellants and claimed  compensation for the death of the deceased.  In the  counter affidavit filed by the appellants, it was  inter alia submitted that generation and  distribution of the energy are regulated through  statutory provisions namely the Electricity (Supply)  Act, 1948 and the rules framed thereunder.  The  family of the deceased did not lodge a complaint/FIR  in the police station.  According to the appellants  the husband of the respondent may have died due to  electric shock but it was not due to fall of  electric wire.  The allegations made in the writ  petition that, death occurred due to negligence of  the appellants was denied.  It was stated that there  was no negligence on the part of the appellants.  It  was also submitted that the writ petition involved  disputed questions of fact which could not be  decided in exercise of writ jurisdiction under  Article 226 of the Constitution.  The High Court  allowed the writ petition and commanded the  appellants to pay a sum of Rs.1,50,000/- towards  compensation to the respondent.  

       In Chairman, Grid Corporation of Orissa Ltd.  (Gridco) and others (supra) with which case these  appeals were listed for hearing but could not be  heard for want of service this Court took the view  that the High Court committed an error in  entertaining the writ petitions under Article 226 of  the Constitution of India and were not fit cases for  exercising the jurisdiction under Article 226 of the  Constitution of India.  It was held that actions in  tort and negligence were required to be established  initially by the claimants.  The mere fact that the  wire of electric transmission line belonging to the  appellant had snapped and the deceased had come into  contact with it and died by itself was not  sufficient for awarding compensation.  The Court was  required to examine as to whether the wire had  snapped as a result of any negligence on the part of  the appellants, as a result of which the deceased  had come in contact with the w\ire.  In view of the  defence raised and the denial by the appellants in  each of the cases, the appellants deserved an  opportunity to prove that proper care and  precautions were taken in maintaining the  transmission line and yet the wires had snapped  because of the circumstances beyond their control or  unauthorised intervention of third parties.  Such  disputed questions of fact could not be decided in  exercise of jurisdiction under Article 226 of the  Constitution of India.  That the High Court could  not come to the conclusion that the defence raised  by the appellants had been raised only for the sake  of it and there was no substance in it.  In para 6

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it was observed thus:-

"In our opinion, the High Court  committed an error in entertaining  the writ petitions even though  they were not fit cases for  exercising power under Article 226  of the Constitution.  The High  Court went wrong in proceeding on  the basis that as the deaths had  taken place because of  electrocution as a result of the  deceased coming into contact with  snapped live wires of the electric  transmission lines of the  appellants, that "admittedly/prima  facie amounted to negligence on the  part of the appellants."  The High  Court failed to appreciate that  all these cases were actions in  tort and negligence was required  to be established firstly by the  claimants.  The mere fact that the  wire of the electric transmission  line belonging to Appellant I had  snapped and the deceased had come  in contact with it and had died  was not by itself sufficient for  awarding compensation.  It also  required to be examined whether  the wire had snapped as a result  of any negligence or the  appellants and under which  circumstances the deceased had  come in contact with the wire.  In  view of the specific defences  raised by the appellants in each  of these cases they deserved an  opportunity to prove that proper  care and precautions were taken in  maintaining the transmission lines  and yet the wires had snapped  because of circumstances beyond  their control or unauthorised  intervention of third parties or  that the deceased had not died in  the manner stated by the  petitioners.  These questions  could not have been decided  properly on the basis of  affidavits only.  It is the  settled legal position that where  disputed questions of facts are  involved a petition under Article  226 of the Constitution is not a  proper remedy.  The High Court has  not and could not have held that  the disputes in these cases were  raised for the sake of raising  them and that there was no  substance therein.  The High Court  should have directed the writ  petitioners to approach the civil  court as it was done in OJC  No.5229 of 1995."

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       Similar view was taken by this Court in W.B.  State Electricity Board & Ors. Vs. Sachin Banerjee &   Ors., 1999 (9) SCC 21.  In the said case it was  observed as under:

"..... The only grievance of the  petitioners relates to an  observation in the impugned  judgment that two victims had died  because of the negligence of the  petitioner State Electricity  Board.  Looking to the fact that  the two victims were electrocuted  because of an illegal hooking for  the purpose of theft or  electricity, the petitioners  cannot be held guilty of  negligence although they may have  stated that there is a need for  conducting dehooking raids more  frequently."

       As against this counsel for the respondent  cited a later judgment of this Court in M.P.  Electricity Board Vs. Shail Kumari & Ors., 2002 (2)  SCC 162, wherein this Court has taken the view that  the Electricity Board could be fastened with the  liability in a case in which the live wire got  snapped and fell on the public road which was  partially inundated with rainwater.  The observation  made by this Court in the aforesaid case would not  applicable to the facts of the present case as in  the said case a suit had been filed in which a  finding of negligence was recorded by the trial  Court against the Board.   The trial Court after  coming to the conclusion that the respondents were  entitled to a compensation of Rs.4.34 lacs non- suited the respondents solely on the premise that  the claimants had failed to prove their liability  for such compensation.  The High Court in the said  case had recorded a finding, "therefore, the  defences put up by MPEB are absolutely without any  basis and do not reflect the real position at the  spot, rather attempt has been made to conceal the  real position in order to avoid responsibility and  liability for payment of compensation."   On these  facts, this Court came to the conclusion that the  claimants were entitled to the compensation.   Counsel for the appellants also cited a judgment in  H.S.E.B. and others Vs. Ram Nath and others, (2004)  5 SCC 793 in which a similar view was taken.  In the  said case it was observed by the Bench that where  disputed questions of fact were involved writ  petition would not be the proper remedy but since  there was no denial in the written statement that  wires were loose and drooping and the claimant had  asked the Board to tighten the wires, the Board was  held liable to pay the compensation.  This finding  was recorded because the supplier of electricity did  not controvert the facts alleged by the respondent  writ petitioner.   Disputed questions of facts were  not involved and as a result of which the finding  recorded by the High Court was upheld.  

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In the present case, the appellants had  disputed the negligence attributed to it and no  finding has been recorded by the High Court that the  GRIDCO was in any way negligent in the performance  of its duty.  The present case is squarely covered  by the decision of this Court in  Chairman, Grid  Corporation of Orissa Ltd. (GRIDCO) and others  (supra).  The High Court has also erred in awarding  compensation in Civil Appeal No............. of 2005  [@ SLP(C) No.9788 of 1998].  The subsequent suit or  writ petition would not be maintainable in view of  the dismissal of the suit.  The writ petition was  filed after a lapse of 10 years.  No reasons have  been given for such an inordinate delay.  The High  Court erred in entertaining the writ petition after  a lapse of 10 years.    In such a case, awarding of  compensation in exercise of its jurisdiction under  Article 226 cannot be justified.                   As the High Court had exercised its power under  Article 226 of the Constitution without properly  appreciating the nature of its jurisdiction, the  impugned judgments deserve to be set aside.   However, in view of the long lapse of time the  appellants will not recover the amounts already paid  to the respondents.  The civil appeals are disposed  of accordingly.   No costs.