JUDGMENT

A.K. Samantaray, J.

1. The petitioners in this writ petition under Articles 226 and 227 of the Constitution of India have claimed compensation from the opposite parties for the death of the deceased Rabindra Nayak due to electrocution.

2. Petitioner No. 1 is the wife and the petitioners 2, 3 and 4 are the minor daughters and son of the said deceased Rabindra Nayak who had electrocution death on 30.3.1997 at pre-dawn hour when he had been to the house of one Babaji Nayak with one Prahallad Palei to call him for thatching of a house. The deceased was daily labourer and only bread winner of the family. While on the fateful morning on 30.3.1997 he set out of his house and proceeded on the village road to reach the house of Babaji Nayak without any premonition of the impending danger that awaited him there near the house of Babaji Nayak on the road, his legs came in contact with snapped live electric wire which fell on the ground and he was instantaneously electrocuted. He fell down and died within no time. The village of the deceased coming under Kendrapara police station jurisdiction FIR was lodged in the same morning at 9.00 A.M., U.D.Case was registered, inquiry taken up, dead body was put to post mortem examination and in the post mortem report cause of death and injuries sustained was found to be accidental electrocution and burn injuries.

3. The petitioners in this writ petition attribute the death of the deceased to the utter negligence of the Management of the opposite parties Grid Corporation of Orissa Ltd., (hereinafter referred to as the "Corporation") and prayed for issuing direction to the opposite parties to compensate them to the tune of Rs. 2 lakhs.

4. To squirm out of the situation a counter affidavit has been filed by the opposite parties disclaiming the liabilities and it is pleaded therein that the circumstance under which the deceased Rabindra Nayak faced the accident was not due to latches or negligence on their part. It is pleaded that the electric wires drawn to lift irrigation points run in the south east corner of the house of Babaji Nayak and due to violent storm followed by heavy rain in the night electric wire snapped from the pole and fell on the homestead of said Babaji Nayak and while the deceased was going to call him he came in contact with the live wire and was electrocuted. It is also pleaded that transmission and distribution of electricity is regulated by Electricity Act, 1948 and the Rules framed thereunder and there is no provision in the said Act and Rules to guard the electric power distribution lines drawn in the remote areas and during pre-monsoon checking no defect was detected in the line and as such there was no negligence on the part of the opposite parties and since they have no control over the previous night storm and rain and the same being an act of God (Vis Major) no liability can be fastened to them to compensate the petitioners. Besides, the opposite parties have questioned the maintainability of this petition on the ground that on the face of controversial facts specifically on the age and wage of the deceased proof of which is required to be rendered through evidence adduced on that score to determine the compensation, the same cannot be adjudicated effectively in this writ petition which is heard and decided on affidavits of the parties only.

5. From the above pleadings we gather the following admitted position :

It is admitted fact that the responsibility of the electric energy supply in the locality where the accident occurred was statutorily conferred on the Corporation. It is further admitted position that death of the deceased was due to electrocution on his unknowingly coming in contact with live electric wire that snapped from the pole and was lying on his path to the house of Babaji Nayak. It is also admitted that the voltage of electricity transmitted through the wires is potentially of dangerous dimension and in the event of its snapping and left to remain alive lying on the path or premises of individual/individuals was sufficient to imperil the life and safety of the persons who use the path or premises. The further admitted fact is that in the previous night there was storm and rain as a result of which the live wire snapped and stretched on the road over the path and premises in the area. In the FIR Annexure-2 relied on by the petitioners there is clear mention that in the previous night there was storm and rain which caused the snapping of wire.

6. The learned counsel for the petitioners highlighting the admitted position gathered from the respective pleadings submitted that the deceased died at the place on the path near the homestead of Babaji Nayak when he was coming to call him in the early morning of the fateful day. It is also an undisputed position that he was electrocuted by live wire lying there which snapped sometime in the previous night due to storm and rain. He submitted that the only contention which the opposite parties advanced to wriggle out of the situation is that in the pre-monsoon check no defect in the supply line was detected and the snapping of the live wire was only due to violent storm and rain in the night which was act of God and over that they had absolutely no control and such eventuality is not foreseeable and is very remote, cannot be a defence to relieve the Corporation of its liability. The Corporation is engaged in supply of electricity taking statutory responsibility for the same. If the energy causes death or injury of any individual who unknowingly comes in contact with it, the primary liability to compensate the sufferer is that of the supplier of the energy so long as the voltage of the electricity energy transmitted through the wire is potentially of dangerous dimension. It is the added duty of the Corporation through its officials or managers in charge of the supply to adopt and take all safety measures to prevent escape of such energy and/or to see that wire snapped would not remain alive on the road or premises as the users of the road and such premises would definitely be under peril. It is look out of the Corporation to install device to disrupt supply of energy automatically in case there is snapping or to manually suspend supply of energy if such device was not there to automatically disrupt the supply. It is submitted by learned counsel for the opposite parties that no such automatic device was installed and since there was no knowledge of such snapping of wire in the night by the violent storm and rain the supply of energy was also not disrupted of suspended. When it is admitted that there was storm and heavy rain, that resulted in the snapping of live wire from the pole, not disrupting supply is manifestation of utter and inexcusable negligence of the officials or the managers of the system which ultimately caused loss of life of a poor labourer who was the sole bread winner of his family of five members.

7. The argument that the officials had no knowledge of such snapping of wire anywhere and for that they did not disrupt or disconnect supply does not and cannot convince us for the reason that any prudent man would normally foresee or apprehend that there might be snapping of wire by fall of trees uprooted or branches wrenched falling on the supply line and that if such an idea did not strike to the person or persons managing such highly dangerous business of supply of high velocity electric energy, they have to pay for that by compensating the person who was electrocuted due to their utterly negligent attitude and lamentable lack of concern.

8. The learned counsel for the petitioner cited before us a decision of the Apex Court (M.P. Electricity Board v.

Shail Kumar and Ors.) wherein in paragraph-8 the Apex Court observed that :

"8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability, which arises on account of the negligence, or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm would be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions."

In paragraph-9 of the said judgment the Apex Court observed:

"The doctrine of strict liability has its origin in English Common Law when it was propounded in the celebrated case of Rylands v. Fletcher (1868 Law Reports (3) HL 330), Blackburn J., the author of the said Rule had observed thus in the said decision :

"The Rule of Law is that the person who, for his own purpose, 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 so he is prima facie answerable for all damage which is the natural consequence of its escapes."

In paragraph-10 the Apex Court while dealing with the exception to the law of "strict liability" has observed that :

"10. There are seven exceptions formulated by means of case law to the doctrine of strict liability. It is unnecessary to enumerate those exceptions barring one, which is this.

"Act of stranger i.e. if the escape was caused by the unforeseeable Act of a stranger, the rule does not apply."

9. It is needless to say that the rule of "strict liability" has been applied and followed in many subsequent decisions in England and the said principle gained approval in India and there is catena of decisions of the High Courts. The Constitution Bench of the Apex Court in the case of Charan Lal Sahu v. Union of India; and a Division Bench of Gujarat High Court in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai had followed with approval the principle in Rylandes v. Fletcher (supra). By referring to the above decisions a two Judge Bench of the Apex Court in Kaushnuma Begum v. New India Assurance Co. Ltd., has reiterated the same principle. In paragraph-12 the Apex Court observed :

"12. In M.C. Mehta v. Union of India this Court

has gone even beyond the rule of strict liability by holding that "where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident, such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands v. Flectcher."

10. The Apex Court in the judgment of M.P. Electricity Board v. Shail Kumar (supra) relied on a decision of Privy Council where it is observed in Quebec Railway Light Heat and Power Co. Ltd. v. Vandry (1920 Law Reports Appeal Cases 662) that the Company supplying electricity is liable for the damage without proof that they had been negligent. Even the defence that the cables were disrupted on account of a violent wind and high tension current found its way through the low tension cable in to the premises of the Respondents was held to be not a justifiable defence. Thus, merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding the live wire lying on the road."

In M.C. Mehta v. Union of India (supra) the Apex Court has gone beyond the rule of "strict liability" by holding in paragraph-31 that :

"Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the operation of such activity the enterprise is strictly and absolutely liable to compensate those who are affected by the accident, such liability is not subject to any of the exception to the principle of strict liability under the rule in Rylands v. Flectcher."

11. The learned counsel for the opposite parties strenuously urged that in view of the judgment of the Apex Court reported in AIR 1999 SC 3412 (Chairman, Grid Corporation of Orissa Ltd. v. Sukamani Das and AIR SC 3629 (West Bengal State Electricity Board v. Sachin Banerjee, the petitioner on the face of the disputed facts should have approached the Civil Court instead of filing of a petition under Article 226 of the Constitution. No doubt, disputed questions of the facts cannot be determined in a writ petition filed under Article 226 of the Constitution and hence there can be no other remedy available except to file a civil suit as there only the facts can be determined on the basis of evidence. But the decisions of the apex Court which we have extensively quoted in the preceding paragraphs of the judgment the rule of strict liability has been considered and applied. The rule of strict liability was neither agitated nor considered in the matter of award of compensation to the victims in the case of Chairman, Grid Corporation of Orissa Ltd. and West Bengal State Electricity Board (supra).

12. Learned counsel for the petitioners, on the other hand, cited before us a decision (Executive Engineer,

Electricity (M & RE) Division, Awantipura, Anantanagar v. Mohammad Ashraf Bhat wherein the High Court in a case of death due to electric shock, came to hold that claim for compensation and employment to the son of the deceased. High Court has jurisdiction to entertain the petition and deal with it appropriately. The apex Court also in the case of M.S. Grewal v. Deep Chand Sood, observed as under :

"Next is the issue of "maintainability of the writ petition" before the High Court under Article 226 of the Constitution. The appellants though initially very strongly contended that while the negligence aspect has been dealt with under penal laws already, the claim for compensation cannot but be left to be adjudicated by the civil laws and thus the Civil Court's jurisdiction ought to have been invoked rather than by way of a writ petition under Article 226 of the Constitution. This plea of non-maintainability of the writ petition though advanced at the initial stage of the submissions but subsequently the same was not pressed and as such we need not detain ourselves on that score, excepting however recording that the law Courts exist for the society and they have an obligation to meet the social aspirations of citizens since law Courts must also respond to the needs of the people. In this context, reference may be made to two decisions of this Court : the first in line is the decision in Nilabati Behera v. State of Orissa, wherein this

Court relying upon the decision in Rudal Sah (Rudal Sah v. State of Bihar), decried the illegality and impropriety in awarding compensation in a proceeding in which the Court's power under Articles 32 and 226 of the Constitution stands involved and thus observed that it was a clear case for award of compensation to the petitioner for custodial death of her son. It is undoubtedly true, however, that in the present context, there is no infringement of the State's obligation, unless of course the State can also be termed to be joint tortfeasor, but since the case of the parties stands restricted and without imparting any liability on the State, we do not deem it expedient to deal with the issue any further except noting the two decisions of this Court as above and without expression of any opinion in regard thereto."

13. The Apex Court in the decision in D.K. Basil v. State of West Bengal, considered this question and this decision of the Apex Court has opened up new vista in the jurisprudence of the Country. The old doctrine of only relegating the aggrieved to the remedies available in Civil Law limits stands extended since Anand, J. (as His Lordship then was) in no uncertain terms in paragraph-45 observed that :

"The Courts have the obligation to satisfy the social aspirations of the citizens because the Courts and the law are for the people and expected to respond to their aspirations. A Court of law cannot close its consciousness and aliveness to stark realities. Mere punishment of the offender cannot give much solace to the family of the victim - civil action for damages is a long drawn and cumbersome judicial process. Monetary compensation for redressal by the Court finding the infringement of the indefeasible right to life of the citizen is, therefore, a useful and at times perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the bread winner of the family."

14. In this connection, we would like to profitably quote a paragraph from a decision reported in the case of Ramesh Singh Pawar v. Madhya Pradesh Electricity Board and Ors. :

"Currently judicial attitude has taken a shift from the old doctrine concept and the traditional jurisprudentia system -- affection of the people has been taken note of rather serious and the judicial concern thus stands on a footing to provide expeditious relief to an individual when needed rather than taking recourse to the old conservative doctrine of the Civil Court's obligation to award damages. As a matter of fact the decision in D.K. Basu has not only dealt with the issue in a manner apposite to the social need of the "Country but the learned Judge with his usual felicity of expression firmly established the current trend of justice-oriented approach". Law Courts will lose their efficacy if they cannot possibly respond to the need of the society - technicalities their might be many but the justice-oriented approach ought not to be thwarted on the basis of such technicality since technicality cannot and ought not to outweigh the course of justice."

15. After hearing both the learned counsel and elaborately considering the questions raised by them as discussed above, we have not the slightest hesitation in coming to a clear and cogent conclusion that this writ petition under Article 226 of the Constitution is maintainable and the opposite parties (Corporation) is liable on the principle of strict liability to pay compensation to the petitioners in the present case.

16. The petitioners have claimed compensation to the tune of Rs. 2 lakhs (Rupees Two lakhs). The learned counsel for the petitioners citing a decision of the apex Court in the case of M.S. Grewal (supra) submitted that Rs. 5 lakhs (Rupees Five lakhs) was awarded to a student who died because of drowning. He also placed reliance on the judgment of Karnataka High Court in the case of D. Chandrashekhar v. Chairman-cum-Managing Director, Karnataka Power Transmission Corporation Ltd. and Anr. where compensation of Rs. 2 lakhs was granted to a 5th standard boy who died because of negligence of Karnataka Electricity Board Transmission Station. In the present case, except for claiming of compensation of Rs. 2 lakhs the petitioners have not given any basis for such claim. Here the deceased was a forty-year-old daily labourer and the only bread earner of the family who died of electrocution for the negligence of the opposite parties. The Apex Court has observed that while determining the question of compensation and awarding compensation to children the guiding factor enunciated in the case of Lata Wadhwa v. State of Bihar should be followed and in such cases 2nd Schedule to Motor Vehicles Act can be considered to be proper guide. In the present case, as the claimants have not placed on record the basis for claiming compensation of Rs. 2 lakhs, considering the status of the family and age of the victim it would be appropriate to apply the principle laid down by the apex Court in the case of M.S. Grewal v. Deep Chand Sood and Ors., .

17. Following the guidelines laid down in the case of Lata Wadhwa and M.S. Grewal (supra) and adopting the scientific method contained in the 2nd Schedule to Motor Vehicles Act, 1988, we work out the compensation of Rs. 1.25 lakhs (Rupees one lakh twenty-five thousand) inclusive of all other incidental expenses which, in our considered view, is a reasonable compensation.

18. Resultantly, we hold the opposite parties liable to pay the compensation of Rs. 1,25,000/- (Rupees one lakh twenty-five thousand) to Petitioner No. 1 with simple interest @ 6% per annum, from the date of death of the victim till payment.

The writ petition is accordingly partly allowed.

B.P. Das, J.

19. I agree.