Delhi High Court
Shagufta Ali vs Govt. Of Nct Of Delhi & Ors. on 5 September, 2024
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ W.P. (C) 4291/2020
Between: -
SHAGUFTA ALI
W/o LATE SHRI AFZAL ALI
R/o 607 E, MASJID LANE-1,
BABARPUR, SHAHDARA,
DELHI-110032 .....PETITIONER NO.1
(Through: Mr. Saeed Qadri, Mr. Saahil Gupta, Mr. Mohd. Shakil,
Advocates)
AND
GOVERNMENT OF NCT OF DELHI
THROUGH ITS SECRETARY
SACHIVALYA RD, IG INDOOR STADIUM, ITO,
VIKRAM NAGAR,
NEW DELHI-110002 ......RESPONDENT NO.1
BSES YAMUNA POWER LTD.
THROUGH ITS DIRECTOR
SHAKTI KIRAN BUILDING
KARKARDOOMA DELHI-110092
.....RESPONDENT NO.2
THE DELHI POLICE
THROUGH ITS COMMISSIONER
PHQ, ITO, NEW DELHI .....RESPONDENT NO.3
(Through: Mr. Anuj Aggarwal, ASC, GNCTD with Ms. Arshya Singh,
Mr. Yash Upadhyay & Mr. Siddhant Dutt, Advs for R-1 &Signature
Signature Not Verified R-3. Not Verified
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By:MAANAS JAJORIA
Signing Date:06.09.2024 By:PURUSHAINDRA
19:17:15 KUMAR KAURAV
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Mr. Manish Srivastava, Mr. Moksh Arora, Mr. Santosh Ramdurg and
Mr. Yash Srivastava, Advs. for R-2.)
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% Reserved on: 26.07.2024
Pronounced on: 05.09.2024
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JUDGMENT
In the instant writ petition, the Court is called upon to
adjudicate the dispute pertaining to the claim for compensation on
account of unfortunate death of the petitioner‟s husband due to
electrocution. The petitioner is a widow of late Mr. Afzal Ali, who
died due to electrocution on 21.05.2017. She is, therefore, seeking
compensation amounting to Rs.50 lakhs from the official respondents.
2. The facts of the case would exhibit that the husband of the
petitioner, namely Mr. Afzal Ali (hereinafter “deceased”) was
working as a Sub-Inspector since 1990 in Delhi Police (Traffic). The
marriage of the petitioner with the deceased was solemnized in the
year 1991 and three children were born out of the wedlock.
3. On the fateful day of 21.05.2017, when the deceased had gone
to the cycle market to buy a gift for his youngest child, it started
raining. He ran to find shelter and while endeavouring to protect
himself from rain, he came in contact with a channel gate located near
Shop No.330 in New Lajpat Rai Market and got electrocuted. He was
then taken to Aruna Asaf Ali Hospital, where, he was unfortunately
declared dead on arrival.
4. After the post-mortem was conducted, the dead body of the
deceased was sent to the mortuary. Thereafter, FIR No. 133/2017 was
registered at Police Station (Kotwali), Delhi under Section 304A of
the Indian Penal Code, 1860. The petitioner, however, came to know
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about the incident on the following day i.e., on 22.05.2017 and
thereafter, she conducted the last rites of the deceased.
5. Subsequently, the petitioner appears to have filed an application
under Section 156(3) of the Code of Criminal Procedure, 1973 before
the concerned magistrate. However, it appears that on 09.10.2019,
charge sheet was filed against one Jai Gopal Grover, who happened to
be the shopkeeper from whose shop the current was allegedly flowing
to the channel gate. The petitioner, thereafter, made representation to
respondent no.1-Government of National Capital Territory of Delhi
and respondent no.2-BSES Yamuna Power Limited (hereinafter
“BSES”) seeking compensation of Rs.50 lakhs for the negligence of
statutory duty as prescribed under Section 42 and 53 of the Electricity
Act, 2003 read with Regulations 13, 30 and 34 of the Central
Electricity Authority (Measures Relating to Safety and Electricity
Supply) Regulations, 2010 (hereinafter “CEA Regulations, 2010”).
6. BSES, which is a distribution licensee (DISCOM) defined
under Section 2(17) of the Electricity Act, 2003, replied to the
abovementioned representation and stated that upon inspection, it was
determined that while the BSES network remained intact, an exposed
wire emanating from the shop‟s meter was found to be in contact with
the shutter resulting in the leakage of current and the said leakage was
fixed by BSES. It was also stated that the matter is currently under
investigation and the Electrical Inspector‟s report indicated that no
negligence could be attributed on the part of BSES.
7. Being dissatisfied with the aforementioned response, the
petitioner has subsequently filed the instant writ petition.
8. Mr. Saeed Qadri, learned counsel for the petitioner submits that
the deceased died on account of electrocution, consequential to a
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breach of duty and non-feasance by BSES. He places reliance on
Regulation 13(1) of the CEA Regulations, 2010, which according to
him, obligates the supplier to ensure that all the electric supply lines,
wires, fittings and apparatus belonging to it or under its control, which
are on a consumer‟s premises, are in a safe condition. It is further
contended that DERC (Supply Code and Performance Standards)
Regulations, 2017 (hereinafter “DERC Supply Code, 2017”) may be
referred to understand the meaning of “point of supply” and
“distribution system” indicating that responsibility is qua the whole
system of electricity distribution.
9. It is alleged that Regulations 30 and 34 of CEA Regulations,
2010 have not been adhered to which mandate periodic inspection and
sending of inspection notice to the consumer/shopkeeper, respectively.
He primarily relies on provisions of Section 53 of the Electricity Act,
2003 to state that it is obligatory on the part of DISCOM to adhere to
the mandate of the said provision to eliminate and reduce the risk of
personal injury to any person or damage to property of any person or
interference with use of such property etc.
10. He substantiates his prayer while placing reliance on the
decision of the Supreme Court in the case of M.P. Electricity Board v.
Shail Kumari1 and decisions of this Court in the cases of Om Prakash
v. Govt. of NCT Delhi & Ors2 and Lauv Kumar v. Union of India3.
11. Mr. Manish Srivastava, learned standing counsel appearing for
BSES has opposed the submissions and he submits that in the absence
of there being clear findings of negligence and as to who is at fault for
electrocution, the said respondent cannot be held responsible to
1
(2002) 2 SCC 162
2
(2013) SCC OnLine Del 3983
3
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compensate the petitioner. According to him, the facts are highly
disputed and therefore, the remedy of writ jurisdiction under Article
226 of the Constitution of India (hereinafter “Constitution”) would
not be available to the petitioner herein. According to him, no criminal
case against BSES and its officials alluding to any culpability is
established and therefore, no dereliction of duty can be ascribed to
BSES. As per learned counsel, even in an internal enquiry conducted
by BSES, no negligence on its part has been noticed. He, therefore,
submits that there is no violation of any of the provisions of the
Electricity Act, 2003 or the CEA Regulations, 2010. He instead
contends that the duty to maintain safety of the installation as per
Regulation 13(4) of the CEA Regulations, 2010 is cast upon the
consumer. According to him, the consumer in the instant case was the
shopkeeper who was statutorily required to maintain and certify the
electrical installation within his control.
12. In addition, BSES also submits that the petition also suffers
from non-joinder of necessary parties as the responsibility to maintain
the electrical system was also lying on M/s Manjeet Electric Works,
who was awarded contract of maintenance of the electrical apparatus
in the locality. He then submits that the DERC Supply Code, 2017,
relied upon by the petitioner, were not in force and rather DERC
(Supply Code and Performance Standards) Regulations, 2007
(hereinafter “DERC Supply Code, 2007”) were in force, which rules
out any violation of DERC Supply Code, 2017.
13. Learned counsel for BSES placed reliance on the decisions of
the Supreme Court in the cases of Grid Corporation of Orissa Ltd.
(GRIDCO) & Ors v. Sukamani Das (Smt) & Anr4, Tamil Nadu
4
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Electricity Board v. Sumathi and Ors5, SDO, Grid Corporation of
Orissa Ltd. & Ors. v. Timudu Oram6 and a decision of this Court in
the case of Ram Wati v. Government of NCT7.
14. Respondent No.3-Delhi Police has also placed the Status Report
on record, which states that “a sum of Rs.27,97,496/- has already
been paid to the petitioner by the Transport Department GNCTD
(employer)”. In addition to the amount so paid, a family pension to the
tune of Rs.17,150/- is also being paid on a monthly basis as per the
said status report.
15. I have considered the submissions made by learned counsel for
the parties and perused the record.
Compensation for Violation of Article 21
16. In view of the rival submissions advanced by learned counsel
for the parties, the principal issue which falls for consideration is
whether the extraordinary jurisdiction of this Court under Article 226
of the Constitution could be invoked by a dependent of the deceased
for seeking compensation on account of death due to electrocution?
17. One of the most remarkable features of the Constitution is that
it provides an enforceable guarantee of the protection of fundamental
rights incorporated in Part-III of the Constitution. The jurisprudence
on fundamental rights has evolved tremendously during the life of the
Constitution and the Constitutional Courts have not looked away
when the peculiar needs of a case necessitated a deviation from the
traditional understanding of the principles. It would be apposite to
take note of the pertinent observations of the Supreme Court, made
5
(2000) 4 SCC 543.
6
(2005) 6 SCC 156.
7
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way back in 1952 in the case of State of Madras v. V.G. Row8, where
the Court recognised itself as the sentinel on the qui vive i.e., a
watchful guardian of fundamental rights.
18. The Supreme Court, in the case of Nilabati Behara v. State of
Orissa9, evolved the concept of invoking public law remedy in cases
of violation of human rights and fundamental rights. The Supreme
Court held that the State could not plead the defence of sovereign
immunity available to it in private tort. It has been held that the
Constitutional Courts, while exercising powers under Article 32 and
Article 226 of the Constitution, are justified and are obligated to pass
an order directing compensation in case of proven violation of
fundamental rights, which amounts to a constitutional tort. In the said
case, the Court was dealing with a prayer for compensation, wherein,
the petitioner had alleged the death of her son in the custody of Orissa
Police. It was held therein that a claim for compensation for the
contravention of human rights and fundamental freedoms, the
protection of which is guaranteed in the Constitution, is an
acknowledged remedy for the enforcement and protection of such
rights in public law. Moreover, such a claim based on strict liability
made by resorting to a constitutional remedy envisaged for the
enforcement of a fundamental right has been held to be distinct from,
and in addition to, the remedy in private law for damages for the tort
resulting from the contravention of the fundamental right. Since the
defence of sovereign immunity is inapplicable and alien to the concept
of guarantee of fundamental rights, there could be no question of such
a defence being available in the enforcement of a constitutional
remedy.
8
(1952) 1 SCC 410.
9 Signature Not Verified (1993) 2 SCC 746. Signature Not Verified Digitally Signed Digitally Signed By:MAANAS JAJORIA Signing Date:06.09.2024 By:PURUSHAINDRA 19:17:15 KUMAR KAURAV -8-
19. The Supreme Court in another decision in the case of MCD v.
Uphaar Tragedy Victims Assn.10, after surveying a long line of
decisions including the case of D.K. Basu v. Union of India11, has
held that “the claim made for compensation in public law is for
compensating the claimants for deprivation of life and per se liberty
which has nothing to do with a claim in private law claim in tort in an
ordinary civil court.”
20. The observations of the Supreme Court in the abovementioned
cases discuss the concept of public law wrong, emanating from the
violation of fundamental rights. However, in the case of Hindustan
Paper Corpn. Ltd. v. Ananta Bhattacharjee12, the Supreme Court has
held that public law remedy for the purpose of grant of compensation
can be resorted to only when the fundamental right of the citizens
under Article 21 of the Constitution is violated and not otherwise. The
Court further held that “it is not every violation of the provisions of the
Constitution or a Statute which would enable the Court to direct for
grant of compensation”.
21. Undeniably, human life is considered to be an edifice on which
all the societal structures stand and therefore, preservation of the same
is both, a fundamental duty of the State as well as the moral
imperative of the society. The said inviolable duty is even more
onerous on the part of the State by virtue of an implicit Social
Contract between the State and its subjects. This duty not only
exhibits moral values but also brings about stability, certitude and
tranquillity in the society. However, if the State fails to adhere to the
practical necessity of preserving human life, it leads to a tragic loss of
10
(2011) 14 SCC 481.
11
(1997) 1 SCC 416.
12 Signature Not Verified (2004) 6 SCC 213. Signature Not Verified Digitally Signed Digitally Signed By:MAANAS JAJORIA Signing Date:06.09.2024 By:PURUSHAINDRA 19:17:15 KUMAR KAURAV -9-
human dignity. Afterall, sanctity of life is a binding thread of a vibrant
democratic civilizational setup and a due recognition of the same is
evinced from Article 21 of the Constitution, which guarantees to its
citizens the fundamental right to life.
22. The horizon of this constitutional guarantee, with the passage of
time and dynamism of law, has expanded to not only mean protection
against arbitrary deprivation of life but also to ensure a minimum
threshold standard of living, which predominantly includes safe
shelter. The negative and protective connotation attached with the
right envisaged under Article 21 has undergone a substantial shift and
has been evolved to cast a positive obligation upon the State to ensure
a life of dignity. It is not only a protection against life depraving
actions of the State, rather, it is a promise of dignified life which
necessitates positive State intervention for ensuring basic needs. It is,
therefore, significant that the State must be vigilant and committed in
adapting myriad strategies to safeguard the most precious of all
resources i.e., human life. Put otherwise, if the State is unable to
adequately address the requisite safety of its citizens, the same would
amount to dereliction of a paramount duty and consequential
infraction of one‟s fundamental right to life. The lapses on the part of
the State i.e., negligence, certainly represent a failure to abide by the
constitutional and statutory duty. In order to uphold the constitutional
duties and values imposed upon the State, redressal through legal
channels is essential. The loss of lives on account of State‟s
haphazardness is not an individual loss, rather the same involves an
element of larger public interest as it strikes at the root of the promise
of safe and dignified living conditions to the citizens.
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23. Therefore, in view of the foregoing series of decisions by the
Supreme Court, it is held that public law remedy can be resorted to
and monetary compensation can also be awarded in cases of violation
of Article 21 of the Constitution of India.
Standard of Proof for invoking Writ Jurisdiction
24. The ancillary question which stands posited before this Court at
this juncture relates to the standard of proof essential for seeking
compensation under public law remedy.
25. The Supreme Court in the case of Sukamani Das (supra),
which was relied upon by BSES, was considering whether the High
Court was correct to award compensation in a case of death on
account of electrocution. It was held that where disputed questions of
fact are involved, a petition under Article 226 of the Constitution is
not an appropriate remedy. In cases where an action in tort and
negligence is connoted, the same has to be established primarily by
the claimants. The mere fact that the wire of the electric transmission
line belonging to the electricity company had snapped and the
deceased had come in contact with it, which resulted in death, was not
by itself sufficient for awarding compensation. The standard of proof
would require whether the wire had snapped as a result of any
negligence of the electricity company as also the circumstances under
which the deceased had come in contact with the wire. It was further
held that the electricity company deserved an opportunity to prove that
despite proper care and precautions were taken in maintaining the
transmission lines, yet the wire had snapped because of circumstances
beyond its control or due to unauthorised intervention of third parties
or that the deceased had not died in the manner stated by the claimant.
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26. In Sukamani Das (supra), the following stand of the appellant
therein i.e., Grid Corporation of Orissa, needs to be taken note of and
is recited in paragraph no.3 as under:-
“In their counter-affidavit the appellants stated that because of
the thunderbolt and lightning one of the conductors of the 12 W
LT line had snapped even though proper guarding was
provided. As soon as the information regarding the snapping of
line was received from the line-helper residing at Village Amara
the power was disconnected. The officers of the appellant had
thereafter rushed to that spot and had noticed that one shackle
insulator had broken due to lightning and the conductor had
also snapped from that shackle insulator along with the
guarding and the sub-station fuse had also blown out. It was
further stated in their counter-affidavit that on enquiry the
officers had learnt that Pratap Chandra Das had died due to
lightning and not because he had come in contact with the
snapped live wire. It was stated by way of defence that the 12 W
LT line had snapped because of an act of God and not because
of any negligence on the part of the appellant and its officers.
Thus, the appellants had denied the fact that Pratap Chandra
Das had died as a result of coming in contact with the live
electric wire and also raised a defence that even if Pratap
Chandra Das had died as a result of coming into contact with
the live electric wire it was a pure case of accident arising out
of an act of God and his death was not because of any
negligence on the part of the appellant and its officers in
maintaining the transmission line. It was also contended before
the High Court on behalf of the appellants that the writ petition
was not a proper remedy as the facts stated by the writ
petitioner were disputed by them and the dispute between the
parties could not be decided without evidence being led by both
the sides.”
(emphasis supplied)
It is clear from a perusal of the above paragraph that the very factum
of death, being electrocution, was in dispute in the case before the
High Court.
27. The Supreme Court in the case of Timudu Oram (supra) has
also taken a similar view. The Court in the said case has held that the
decision in the case of M.P. Electricity Board (supra) had fastened
the liability on the electricity board finding therein that live wire
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snapped and fell on the public road which was partially inundated
with rainwater. The case of M.P. Electricity Board (supra) has been
held to be inapplicable in the case of Timudu Oram (supra) and the
Supreme Court set aside the decision of the High Court granting
monetary compensation relying upon the principle laid down in
Sukamani Das (supra). The Supreme Court not only distinguished
M.P. Electricity (supra) but also considered another decision in the
case of H.S.E.B. v. Ram Nath13 and held as under:
“8. As against this counsel for the respondent cited a later
judgment of this Court in M.P. Electricity Board v. Shail Kumari
[(2002) 2 SCC 162 : 2002 SCC (Cri) 315] 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 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 be 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 lakhs
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. v. Ram Nath
[(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
13
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facts were not involved and as a result of which the finding
recorded by the High Court was upheld.”
“9. In the present case, the appellants had disputed the
negligence attributed to it and no finding has been recorded by
the High Court that 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 Corpn. of Orissa
Ltd. (GRIDCO) [(1999) 7 SCC 298] . The High Court has also
erred in awarding compensation in Civil Appeal No. 4552 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 of the Constitution cannot be
justified.
10. 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”
28. The relief of compensation was also denied by this Court in the
case of Abdul Haque and Ors. v. BSES Yamuna Power Ltd and
Ors.14 holding therein that in cases involving claim for compensation
on account of death due to electrocution where the facts are disputed,
a writ petition for payment of compensation is not maintainable. The
remedy in such cases will only be before the Civil Court, where
evidence could be led and appreciated in accordance with the
principles of the law of evidence.
29. In the case of Dharampal v. Delhi Transport Corporation15, a
Coordinate Bench of this Court took note of the earlier decisions in a
case seeking compensation on account of death due to electrocution
and held that if the facts are disputed, the High Court will not be
justified in awarding the compensation. Essentially, the Court
14
2007 SCC OnLine Del 1001.
15
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distinguished the decision in the case of Ram Nath (supra) on the
ground that in that case, the plea raised therein was not denied in the
counter affidavit and in the absence of the facts being disputed per se,
the Supreme Court granted compensation.
30. In the case of K.K Mehta & Anr v. Delhi Vidyut Board16,
another Coordinate Bench of this Court was considering the relief for
grant of compensation on account of burn injuries sustained by the
claimant due to a huge blast in the respondent‟s sub-station adjoining
the park of the colony. The Court took note of the decision in the case
of Sukamani Das (supra) and Abdul Haque (supra) and relegated the
claimant to avail civil law remedy.
31. In most of these cases, the Supreme Court and this Court have
mainly relied on the decisions in the cases of Sukamani Das (supra),
Timudu Oram (supra) and Abdul Haque (supra) to hold that in view
of the disputed facts involved in these cases, award of compensation
under Article 226 is not the appropriate remedy and thus, relegated the
claimants to the Civil Court.
32. In another case titled as T.N Electricity Board (supra), the
Supreme Court was considering the prayer for compensation on
account of electrocution at the instance of the legal heirs of the
deceased therein. The deceased had allegedly died due to improper
maintenance of electric wires or equipment by the Tamil Nadu
Electricity Board. While relying on Sukamani Das (supra), it was
held that the writ petition would not be maintainable if the facts were
disputed. The Court further clarified that where there is negligence on
the face of the matter and the body or authority concerned fails to
discharge public duty resulting in violation of Article 21 of the
16
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Constitution, there is no bar to exercise the power under Article 226 of
the Constitution for grant of compensation.
33. This Court also takes note of the cases where the Supreme
Court and this Court have exercised power under Articles 32 or 226 of
the Constitution, as the case may be, and awarded compensation
34. In the case of Ram Nath (supra), the Supreme Court was
considering a case wherein a five year old child died as a result of
coming into contact with a high-tension wire which passed over the
roof of the claimant‟s house. In that case, the High Court applied the
maxim of res ipsa loquitur and granted compensation. On a challenge
being laid to the High Court order, the Supreme Court held that there
was no denial in the written statement to the allegations of the
petitioner therein that the wires were loose and dropping and that the
respondent-claimant had asked the appellant therein to tighten the
wires and therefore, in the facts of that case, no disputed questions of
facts were found. The Court also held that carrying on the business of
electricity supply is inherently dangerous and therefore, the supplier
ought to ensure that no injury results from such activities.
35. A similar view has also been taken by this Court in Om
Prakash (supra), wherein, a case of death on account of electrocution
and on account of breach of statutory duty was set up. The Court
found that it was obligatory on the part of the respondent therein to
ensure proper safety and the maxim of res ipsa loquitur was applied to
grant compensation. It was held that the judgement in Sukamani Das
(supra) will have no applicability as BSES had not come out with its
own version of the incident and had also not made any attempt to
explain in what manner the deceased got electrocuted. The relevant
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facts and dicta as upheld in this case are reproduced herein for
reference:-
“On 12.07.2010, there was heavy downpour, coupled with storm
in Delhi resulting in water logging on various roads, including a
narrow lane (patli gali) at Nickolson Road, Kashmiri Gate. Late
Lokesh Kumar, son of the petitioner, who at that time, was aged
about 18 years and was pursuing his graduation with Delhi
University, had on the fateful day gone out for some work. The
case of the petitioner is that when Lokesh was passing through
the above-referred narrow lane (patli gali), he came into contact
with the iron grill gate installed there and got electrocuted since
electricity current at that time was flowing in the said iron gate.
Lokesh Kumar, at the time he came into contact with the iron
grill gate, was in knee-deep water, which had collected near the
gate and was fully drenched. He was taken to St. Stephen’s
Hospital, where he was declared brought dead and cause of
death was reported to be electrocution, comatose (state of
coma), etc. A post mortem of his dead body was also conducted
at Aruna Asaf Ali Hospital and it was confirmed. The petitioner
vide a criminal complaint before CMM, Delhi, which resulted in
FIR being FIR No. 129/2011 being registered by the police.
..7. It is an undisputed position that Lokesh died on account
electrocution in the narrow lane at Nickolson Road, Kashmiri
Gate, Delhi on 10.07.2010. It is also not in dispute that it was
respondent-BSES Yamuna Power Limited which at that time was
entrusted with the responsibility of supplying electricity in the
said locality. It is also not in dispute that it was the duty of BSES
Yamuma Power Limited to install and maintain wires in the said
locality. Thus, the management, control and maintenance of
electricity wires, in the lane in which Lokesh died due to
electrocution, was sole responsibility of respondent-BSES
Yamuna Power Limited. Therefore, the doctrine of res ipsa
loquitur applies to the case, as the cause of electrocution which
resulted in death of Lokesh is primarily in the knowledge of
respondent No. 3 alone.”
36. The decisions in the case of Sukamani Das (supra) and
Timudu Oram (supra) have also been considered in detail by a
Coordinate Bench of this Court in the case of Munni Devi v. State of
NCT of Delhi & Anr17. The Court, in the said case, was seized of a
matter concerning an incident, wherein, the petitioner‟s son, while
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riding his bicycle, was fatally struck by an exposed live electric wire
that fell onto the bicycle. In paragraph no.34 of the decision in Munni
Devi (supra), it has been held that in the said two decisions, the relief
was denied to the family of the victims as there was no finding
recorded in the impugned orders therein, holding the electricity
company as negligent. Both the decisions were held to have no
application on the facts of the case in Munni Devi (supra), and the
Court found that the facts in the case of M.P. Electricity Board
(supra) were closer to the facts of the cases therein and accordingly,
the company supplying the electricity was held liable for damages,
without the proof of negligence, based on the principle of strict
liability. The Court, while discussing the extent of culpability and
negligence, held as under:-
“16. Clearly, the cause of death of deceased son of the petitioner
is shock due to electrocution. All injuries are ante-mortem in
nature. The death took place due to an electric wire that fell due
to storm and rain, which took place before the incident. It
clearly follows that on account of the falling of electric wire the
deceased got electrocuted and has expired. Admittedly,
Respondent 2 BSES RPL is the distribution company of the area
in question.
17. I may now see the relevant pleadings of the petition. In para
2 of the writ petition, it is clearly stated that the deceased Mintu
Kumar Jha while passing through a particular flat in Kalkaji on
his cycle lost his life due to electrocution when an exposed live
electric wire fell down upon him which action is totally
attributable to the negligence of the respondents.
18. In the counter-affidavit filed by Respondent 2 BSES RPL, the
response to Para 2 of the writ petition reads as follows:
“11. That the contents of Paras 2 to 6 need no reply since the same
are either matter of facts or of record. It is respectfully submitted that
the answering respondent company is a sympathetic to the petitioner,
however, the answering respondent company is not in any manner
responsible or liable for the loss suffered by the petitioner.”
19. Clearly, the specific averments of the petitioner about the
negligence of the respondents have evoked a vague response.
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20. In my opinion, facts speak for themselves and the principle
of res ipsa loquitur will clearly apply in these facts…”
37. The Division Bench of this Court in another case of Rajeev
Singhal and Anr v. MCD (East Delhi Municipal Corporation) &
Anr18 was considering a claim for compensation on account of death
due to electrocution where a 14 year old boy got in contact with an
electric cable which was lying on the ground. The Court considered
various decisions including the decision in the case of Sukamani Das
(supra) and held that once it is established that the incident actually
resulted into the death of the child and the incident was a consequence
of negligence, the writ court would be well within its jurisdiction to
award necessary compensation irrespective of the dispute, if any,
between the respondents therein. The factual particulars of the case are
reproduced herein:-
“2. Appellants herein are the parents of Master Akshat Singhal,
a 14 year old boy, who was victim of an unfortunate incident
that occurred in the evening of 05.07.2014 when Akshat with his
father (appellant No. 1 herein) had gone to Sanjay Park, New
Govind Puri to play with his friends. While Akshat was playing
with his friends, his father went off for a walk around the park.
The children were playing cricket and in the course of playing,
Akshat was required to fetch the ball when it went to a place in
one corner of the park under a high mast light pole. While
picking up the ball, hands of Akshat touched an electric cable
which was lying there. Consequently, he was electrocuted and
died on the spot. Even though he was removed to the hospital, he
was declared dead on reaching the hospital. An FIR bearing No.
414/2014 was lodged with the local police station. An autopsy
report was prepared and in the course of investigation it was
revealed that the cause of the death was ventricular fibrillation
as a result of electrocution.”
38. The Court further takes notes of several cases in which the
petitioners alleged that the deaths of the deceased were attributable to
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negligence, although these cases did not involve incidents of
electrocution.
39. In the case of Ram Kishore v. Municipal Corporation of
Delhi19, a batch of writ petitions came to be allowed by this Court,
where the petitioners were parents who tragically lost their young
children. Ram Kishore, a vegetable vendor, had filed Writ Petition (C)
No. 4328 of 2001 claiming compensation from the Municipal
Corporation of Delhi for the death of his 11 year old son Mahesh, who
died when a wall of a municipal lavatory collapsed while he was using
it. The second petition being W.P. (C) No. 6360 of 2002 is by Mohd.
Yasheen, a tailor, claiming compensation from the Delhi Development
Authority (DDA) for the death of his 15 year old son Beeru, who
became entangled in an uncovered outlet drain pipe and was swept
away by a sudden current of water. The third and fourth petitions were
by Bhagwan and his wife Rajwanti, claiming compensation from the
DDA for the death of their son Vineet Pawar aged 7 years who died
on the spot when a heavy iron grill gate at the entrance of a DDA park
fell on him while he and his friends were entering the park to play
there. By a common judgment, this Court held the respective agencies
liable for the deaths of the young children and directed them to pay
compensation to the petitioners. The Court also noted that in all these
cases, the incidents themselves were undisputed. The Court relied on
the principle laid down in the case of Shyam Sunder v. State of
Rajasthan20 and held that there can be no question that under Article
226 of the Constitution, this Court can grant the relief of
compensation based on the strict liability principle in a situation where
there is a breach of a public duty. It was also held that in the facts of
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the given case, liability would lie with the State if the claimant is able
to show that the State acted negligently or that the “State or its
instrumentality failed to discharge the duty of care casted upon it,
resulting in deprivation of life or limb of a person.” In discharging the
burden of proving negligence, it would be open to the claimant, if the
facts and circumstances so permit, to invoke the res ipsa loquitur
maxim.
40. In the case of Varinder Prasad v. BSES Rajdhani Power
limited & Ors21, a Coordinate Bench of this Court has considered the
decision in the case of Sukamani Das (supra) and while applying the
principle laid down in the case of Shyam Sunder (supra), has held as
under:-
“29. Now coming to present case, the incident in question has
not been disputed by the respondents, nor the factum of death of
Master Ajay Kumar due to the falling of the chajja upon him is
in dispute. The occurrence of the said incidence has been
recorded in the FIR and the cause of the death has also been
verified by the post mortem report. Though respondent nos. 1
and 2 are shifting the liability for the maintenance of the said
flat on each other, they do not dispute that one or the other of
them is indeed responsible for acting negligently in not
maintaining the said flat. There can be no dispute or denying the
fact that one of them, if not both the respondents, owed a duty of
care to the general public, so that no action or inaction of theirs
causes harm to the public at large. There can be no quarrel that
the flat should have been maintained, so that no part of it fell
suddenly on its own, only on account of some rain. The falling of
the shed (chajja) is prima facie evidence of negligence. Nothing
has been brought out by the respondents, to suggest that the
shed fell despite the respondents taking proper care of the flat,
or for some other cogent reason. Therefore, in my view, the
principle of strict liability will be squarely applicable in this
case, and the irresistible conclusion is that the respondent nos. 1
and 2 were negligent in the maintenance of the said flat, due to
which the chajja fell on the deceased, and he died.
30. As far as the two cases Grid Corporation of Orissa Ltd. are
concerned, in those cases the negligence on the part of the
corporation had still to be proved – whether the wire snapped21
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due to the negligence of the corporation, or due to some other
reason, such as lightening, was required to be established. Thus,
those cases are distinguishable on facts. Also the cases of
Munna Singh (supra) and Duli Chand (supra) are distinguished
from the present case, as they are not the cases of Res ispa
Loquiter, as is evident from the facts of those cases.
31. Consequently, I have no hesitation in concluding that the
present being a case of glaring and evident negligence, to which
the maxim Res Ipsa Loquitor applies, the present writ petition
under Article 226 of the Constitution of India is maintainable as
the said negligence has led to complete infraction of the
fundamental right to life of the deceased. The inter se dispute
between the two respondents, i.e. respondent Nos. 1 and 2,
would not come in the way of the petitioners for claiming
compensation for breach of the fundamental rights of the
deceased Ajay Kumar. The tendency of the public authorities,
when more than one of them is involved, to shift the burden on
each other is not new. Same was the position
in Darshan (supra), and Ram Kishore (supra) and Swarn
Singh (supra). The said inter se dispute was held, not be
disentitle the petitioner from claiming relief under Article 226 of
the Constitution of India, as negligence, resulting in breach of
fundamental rights was held to have been established in each of
these cases. The Court shall, however, prima facie examine the
aspect of responsibility, only with a view to fix the
responsibility of one of the respondents to pay the awarded
compensation, leaving it open to the respondents to battle out
and settle their inter se liability in appropriate proceedings.”
(emphasis supplied)
41. In the case of Subramanium and Anr v. DMRC and Ors.22, this
Court was considering a case of the death of eight-year-old child who
died playing with his friends on account of asphyxia caused by
drowning in a storm water drain. The Court held that the rigour of
conservatism has been relaxed, not only in the field of civil wrongs,
termed as tort, but also in the area of contracts where the State or its
instrumentalities are parties. The following pertinent observations are
reproduced as under:-
“11….As a matter of fact, the courts have gone to the extent of
saying that it would be incorrect to state that where facts are
disputed, a writ court would not have jurisdiction to entertain a22
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petition under Article 226 of the Constitution. It is one thing to
say that the court in its discretion may not entertain a petition in
which disputed questions of fact arise for consideration, it is
another thing to contend that a court does not have jurisdiction
to entertain a petition which raises disputed questions of fact.
The latter proposition is now discarded by the Supreme Court.
[See. Smt. Gunwant Kaur v. Municipal Committee
Bhatinda (1969) 3 SCC 769 and ABL International
Ltd. v. Export Credit Guarantee Corporation of India
Ltd. (2004) 3 SCC 553
11.1 The approach, with regard to civil wrongs committed by
officers of the State or the instrumentalities of the State are on
no different footing where claims are based on strict liability.
While there is no gainsaying that, an affected person could
vindicate his right qua a civil wrong committed on him, by
instituting a civil suit, a claim in public law for compensation,
for unconstitutional deprivation of the fundamental right to life,
would also be available to him. This claim would be in addition
to the claim available in private law for damages caused on
account of tortious acts of the public servants. Compensation, if
any, would be paid by constitutional courts for „established
infringement of rights granted under Article 21 of the
Constitution‟.
11.3 Most of the aforementioned cases were reviewed by the
Supreme Court in the case of MCD v. Association of Victims of
Uphar Tragedy; AIR 2012 SC 100, where the court sustained the
grant of compensation, with some modification, to the families of
the victims and those who were injured in the fire, which
occurred in the Uphar Cinema Theatre at Delhi. A Division
Bench of the Supreme Court after reviewing its own previous
precedents pushed the envelope a little further by observing
that: – “…what can be awarded as compensation by way of
public law remedy need not only be nominal palliative but
something more. It can be by way of making monetary
amounts for the wrong done or by way of exemplary damages,
exclusive of any amount recoverable in a civil action based on
tortious liability…”
(emphasis supplied)
42. In the case of Varsha Mendiratta and Ors v. Delhi Transport
Corporation23, a Coordinate Bench of this Court was considering a
claim for compensation for the unfortunate death of a person due to
falling of bus queue shelter where he took shelter due to rain and
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heavy storm on the date of the incident. The deceased therein
sustained injuries and he unfortunately died. In this case, the Court
mainly relied upon the principle laid down in Subramanium (supra)
and granted a lump sum compensation of Rs 50,00,000/-.
43. Upon consideration of the aforementioned judicial precedents, it
is evident that the High Court, ordinarily while exercising its
jurisdiction under Article 226 of the Constitution of India, should
refrain from awarding compensation, a remedy primarily available
within the civil law domain, when the case involves disputed
questions of fact. However, if the State‟s liability for a tortuous act,
committed by itself or its servants, is undisputed, the maxim res ipsa
loquitur may be applied to overcome any factual controversy. The
absence of concrete proof does not preclude the claimant from
recovering compensation, provided a reasonable inference can be
drawn from the known facts that the harm was caused by the
negligence of the State or its servants. In such circumstances, the facts
must enable the Court to draw an unequivocal inference and must
speak for themselves.
44. At this stage, to thoroughly understand the applicability of the
maxim res ipsa loquitur, pertinent observations of the Supreme Court
in the case of Shyam Sunder (supra) need to be considered. In the
said case, the controversy was with respect to recovery of damages
under the Fatal Accidents Act, 1855, where the deceased, a
storekeeper for the PWD, died after jumping from a truck that caught
fire due to frequent radiator overheating. The widow of the deceased
filed a Civil Suit against the State of Rajasthan for damages, alleging
that the driver‟s negligence in operating an unroadworthy truck,
caused her husband’s death. The trial court found the act of the driver
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in putting the truck on the road, when it was not roadworthy, as
negligent and the State was held vicariously liable for the act of its
employee. The State appealed in the High Court where it was held that
the plaintiff was not successful in proving negligence and the mere
fact that the truck caught fire was not enough evidence to prove
negligence. The Supreme Court has explicated the principle of res
ipsa loquitur by stating that the maxim is resorted to when an accident
is shown to have occurred and the cause of accident is primarily
within the knowledge of the defendant. The fact that the cause of the
accident is unknown does not prevent the plaintiff from recovering the
damages, if proper inference could be drawn from the known
circumstances that it was caused by the negligence of the defendant.
The fact of the accident may, sometimes, constitute evidence of
negligence and then only the maxim res ipsa loquitur applies.
45. The Supreme Court in paragraph Nos.9, 15, 16 and 20 has held
as under:-
“9. The main point for consideration in this appeal is, whether
the fact that the truck caught fire is evidence of negligence on
the part of the driver in the course of his employment. The
maxim res ipsa loquitur is resorted to when an accident is shown
to have occurred and the cause of the accident is primarily
within the knowledge of the defendant. The mere fact that the
cause of the accident is unknown does not prevent the plaintiff
from recovering the damages, if the proper inference to be
drawn from the circumstances which are known is that it was
caused by the negligence of the defendant. The fact of the
accident may, sometimes, constitute evidence of negligence and
then the maxim res ipsa loquitur applies.
15.Res ipsa loquitur is an immensely important vehicle for
importing strict liability into negligence cases. In practice, there
are many cases where res ipsa loquitur is properly invoked in
which the defendant is unable to show affirmatively either that
he took all reasonable precautions to avoid injury or that the
particular cause of the injury was not associated with
negligence on his part. Industrial and traffic accidents and
injuries caused by defective merchandise are so frequently of
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this type that the theoretical limitations of the maxim are quite
overshadowed by its practical significance [ Millner:
“Negligence in Modern Law”, 92] .
16. Over the years, the general trend in the application of the
maxim has undoubtedly become more sympathetic to plaintiffs.
Concomitant with the rise in safety standards and expanding
knowledge of the mechanical devices of our age, less hesitation
is felt in concluding that the miscarriage of a familiar activity is
so unusual that it is most probably the result of some fault on the
part of whoever is responsible for its safe performance (see John
G. Fleming, The Law of Torts, 4th Edn., p.260).
20. It was, however, argued on behalf of the respondent that the
State was engaged in performing a function appertaining to its
character as sovereign as the driver was acting in the course of
his employment in connection with famine relief work and
therefore, even if the driver was negligent, the State would not
be liable for damages. Reliance was placed on the ruling of this
Court in Kasturilal Ralia Ram Jain v. State of Uttar
Pradesh [(1965) 1 SCR 375 : AIR 1965 SC 1039 : (1965) 2 SCJ
318] where this Court said that the liability of the State for a tort
committed by its servant in the course of his employment would
depend upon the question whether the employment was of the
category which could claim the special characteristic of
sovereign power. We do not pause to consider the question
whether the immunity of the State for injuries on its citizens
committed in the exercise of what are called sovereign functions
has any moral justification today. Its historic and jurisprudential
support lies in the oft-quoted words of Blackstone: [ Blackstone,
Commentaries (10th Edn. 1887)]
“The king can do no wrong … The king, moreover, is not only incapable of
doing wrong, but even of thinking wrong; he can never mean to do an
improper thing; in him is no folly or weakness.”
In modern times, the chief proponent of the sovereign immunity
doctrine has been Mr Justice Holmes who, in 1907, declared for
a unanimous Supreme Court [Kawananakoa v. Polyblank, 205
US 349, 353.] :
“A sovereign is exempt from suit, not because of any formal conception or
obsolete theory, but on the logical and practical ground that there can be no
legal right as against the authority that makes the law on which the right
depends.”
Today, hardly anyone agrees that the stated ground for
exempting the sovereign from suit is either logical or practical.
We do not also think it necessary to consider whether there is
any rational dividing line between the so-called sovereign and
proprietory or commercial functions for determining the liability
of the State.”
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46. In light of the aforesaid, this Court has no hesitation in
concluding that where the negligence and breach of duty by the State
are manifestly evident, the maxim res ipsa loquitur shall apply. When
the State is under a statutory duty of care and fails to fulfil such duty,
the presumption of liability without proof will also arise. In such
cases, it is practically not possible for the aggrieved persons to gather
positive evidence of negligence and therefore, the doctrine of res ipsa
loquitur comes to the rescue and helps in overcoming the formal
evidentiary burden. However, the same is subject to the proof of
foundational facts and manifest negligence.
Factual Analysis
47. If the facts of the instant case are perused in the context of the
aforesaid legal position, the same would explicate that BSES received
a complaint on 21.05.2017 at 06.15 PM, regarding leakage of current
in LTACB from the Substation. Admittedly, the deceased came in
contact with this current leakage flowing to the channel gate and got
electrocuted while entering the gali. The local residents then called the
PCR and the police took the deceased to the hospital. Subsequent
thereto, the leakage was fixed by isolating the service cable of the said
meter from the pole. The aforesaid position is recorded in the brief
description of the accident in accident committee report, placed on
record by BSES itself, which is extracted as under:-
“BRIEF DESCRIPTION OF THE ACCIDENT:
As per the information given by Sh. R. Patchiyappan, Asst Mgr,
Div-CCK (in the attached electrical accident reporting, Form A)
and the statements attached-
On dt 21.05.17, at 06.15 PM, a complaint regarding leakage of
current in shutter of shops and channel of gate at the entrance of
gali in cycle market was received through the system by the
GNIIT, Md. Kausar. Immediately, Sh. Ram Janam, lineman,
was deputed to attend it. He reached the site and put off the LT
ACE from the substation at 06.20 PM. Further he checked the
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entire network and found it intact. There was no current leakage
from our network but an outgoing wire from meter no 11984872
at 386/4, New Lajpat Rai Market was found in naked condition
which was touching the shutter of the shop due to which leakage
current was flowing through shutters to channel gate. The victim
got electrocuted due to coming in contact with this current
leakage while he was trying to enter the said gali. Local
residents called the PCR and then the police took him to Aruna
Asaf Ali hospital where he was declared dead. Subsequently the
leakage was removed by isolating the service cable of the said
meter from the pole.
ROOT CAUSE & FINDINGS
The current leakage in the shutter of the shop and the channel
gate was due to the leakage from the outgoing of the meter and
it was not due to the BSES network.
RESPONSIBILITIES;
BSES is not responsible for the accident. The accident occurred
because of the current leakage from the outgoing cable of the
meter and was not from BSES network.”
48. The first and foremost aspect which emerges from the aforesaid
position by BSES is that the death of the petitioner‟s husband was
caused due to flowing of electricity current as a result of a leakage
from an outgoing exposed wire of the shop meter, spreading over to
the channel gate of the gali. The mere fact that there was a leakage
from the said wire of the private-consumer/shopkeeper cannot allude
culpability or any negligence on the part of BSES. Despite the known
general risks associated with electricity transmission, there still
remains a contingency that the incident could not have been prevented
without a prior complaint made to BSES. Nothing has been placed on
record to satisfy the Court that a prior complaint was made to BSES
by anyone either from the locality or by the private-
consumer/shopkeeper itself. Therefore, there is insufficient evidence
to prove that the negligence in the instant case is directly and solely
attributable to BSES.
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49. However, the Court also deems it fit to examine the pertinent
statutory provisions to delineate the obligations imposed upon BSES
for managing a hazardous enterprise such as electricity supply.
50. Section 53 of the Electricity Act, 2003 mandates Central
Electricity Authority (CEA) to specify suitable measures inter alia for
protecting the public (including the persons engaged in the generation,
transmission or distribution or trading) from dangers arising from the
generation, transmission or distribution or trading of electricity, or use
of electricity supplied or installation, maintenance or use of any
electric line or electrical plant.
51. In accordance with the abovementioned provision, Regulation
13 (1) of CEA Regulations, 2010 requires the supplier to ensure that
all electric supply lines, wires, fittings and apparatus belonging to him
or under his control, installed on a consumer‟s premises, are in a safe
condition and in all aspects, fit for supplying electricity. The supplier
is also enjoined to take precaution to avoid danger arising on such
premises from such supply lines, wires, fittings and apparatus. The
relevant excerpt from the regulations is reproduced herein:-
“13. Service lines and apparatus on consumer‟s premises: -(1)
The supplier shall ensure that all electric supply lines, wires,
Fittings and apparatus belonging to him or under his control,
which are on a consumer’s premises, are ina safe-condition
and in all respects fit for supplying electricity and the supplier
shall take precautions to avoid danger arising on such premise
from such supply `lines, wires, fittings and apparatus.
(2) Service lines placed by the supplier on the premises of a
consumer which are underground or which are accessible shall
be so insulated and protected by the supplier as to be secured
under all ordinary conditions against electrical, mechanical,
chemical or other injury to the insulation.
(3) The consumer shall, as far as circumstances permit, take
precautions for the safe custody of the equipment on his
premises belonging to the supplier.
(4) The consumer shall also ensure that the installation under
his control is, maintained in a safe condition”
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(emphasis supplied)
52. Regulation 30 of the said regulations, lays down the provisions
mandating the supplier/DISCOM to inspect the installations connected
to a supply system and test the same at least every five years, as
directed by the relevant Government authority. Regulation 34 also
enshrines provisions with respect to a leakage on consumer premises
and states that if a consumer’s installation has a suspected leakage, that
poses a danger or affects others, the supplier may disconnect the
electricity supply after providing 48 hours’ notice until the issue is
resolved.
53. The contention of BSES, however, that it was only responsible
qua the meter which was installed by it on the consumer‟s premises
and not the outgoing wires which ultimately led to the unfortunate
incident, is sustainable in view of the Regulation 2(s) of the DERC
Supply Code, 2007, which is the applicable Regulation as on the date
of the incident. The said Regulations which defines „distribution
system‟ as “the system of wires and associated facilities used for
distribution/supply of electricity between the delivery points on the
transmission lines of the generating station connection and the point
of connection to the installation of the consumers”.
54. The provisions of the Electricity Act, 2003 and the extant
regulations establish that the responsibility for electricity transmission,
maintenance, and safety generally rests with the DISCOM, who in the
capacity of power supplier, ensure safe and proper maintenance of the
electricity current with due diligence and care. The provisions also
highlight that the consumer is also obligated to maintain safety of the
installation under his control.
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55. Ordinarily, to prove negligence, it is generally required to
establish that the consequence was foreseeable by the alleged entity.
However, when the activity in question is inherently hazardous,
foreseeability is presumed through the maxim of res ipsa loquitur and
strict liability as has been held in MP electricity Board (supra).
56. The Constitutional Courts have invoked the powers under
Article 226 in various instances, as demonstrated by the judicial
precedents discussed above. In the case of Ram Nath (supra), the
Supreme Court addressed an incident where the deceased came into
contact with a high-tension wire passing over her house. In Om
Prakash (supra), the Court dealt with a situation where the deceased
died after touching an iron grill gate that was electrified. Similarly, in
Rajeev Singhal (supra) and Munni Devi (supra), the Court
adjudicated cases where the deceased came into contact with an
electric cable under a high mast light pole and a live electric wire that
fell on his bicycle, respectively. In all these cases, the Court presumed
negligence because the electrical apparatus causing electrocution was
found to be under the direct and immediate control of the DISCOM
and a result of its manifest negligence.
57. Similarly in cases of Ram Kishore (supra), Subramanium
(supra), Varsha Mendiratta (supra) and Varinder Prasad (supra),
this Court applied the maxim of res ipsa loquitur as the facts in those
cases exhibited that the responsibility and duty to maintain various
public facilities was solely and directly vested upon the State and its
different instrumentalities. Therefore, the Court came to the
conclusion that the negligence of the State was writ large from the
mere occurrence of the incident that resulted in the death of the
deceased.
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58. In the present case, the facts and contentions made by the
parties indicate that the negligence which led to the leakage of current
is attributable to an outgoing wire, leading to its flow to the shutter
gate and subsequently to the channel gate, prima facie, cannot solely
be attributed to BSES, at this stage. The regulations and the provisions
of the Electricity Act, 2003 also do not conclusively establish that it
was only the DISCOM i.e., BSES herein, who had the sole and direct
responsibility to prevent such a leakage. Admittedly, the consumer-
shopkeeper is the main accused in the chargesheet and BSES has not
been named. In the absence of any material evidence on record which
definitively demonstrates a lapse on the part of BSES, the Court
cannot conclusively establish negligence on the part of BSES and
therefore, the principle of res ipsa loquitur becomes inapplicable. The
said position, however, can only be established by the parties while
leading evidence in a competent Civil Court.
59. Consequently, what prevents this Court from exercising the
discretionary writ jurisdiction under Article 226 of the Constitution, in
the instant case, to hold BSES negligent are inter alia the following
disputed facts which require further adjudication:
a. Whether the current, flowing from the shutter of the shop to
channel gate, was attributable to a leakage in the consumer
apparatus under his control or the control of BSES?
b. Whether BSES took due care and diligence so as to
minimize the risk and danger to life?
c. Whether the duty to maintain the said installation was cast
upon the contractor, namely M/s Manjeet Electric works?
60. This Court does not find it appropriate to adjudicate upon the
aforementioned issues, as the present case does not justify the
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application of the maxim res ipsa loquitur and there is no conclusive
evidence on record to suggest otherwise. The said maxim applies in
cases where the facts clearly and unequivocally indicate that
responsibility for the incident can directly be attributed to statutory
authorities, rather than to private parties or a combination of private
and public entities.
61. However, at this juncture, this Court deems it appropriate to
refer to the decision in the case of Satish Kumar v. BSES Yamuna
Power Limited and Anr24, wherein, the Court had acknowledged that
there existed no dispute regarding the severe burn injuries suffered by
the petitioner‟s son therein, which led to the amputation of his leg and
ultimately, his death. Recognizing that no monetary compensation can
truly address such a profound loss, the Court empathised that the
tragedy has caused significant mental anguish and trauma. Holding
that the petitioner may have incurred considerable expenses and that
the trial in the Civil and Criminal Court may be prolonged, the Court,
in light of the unique/special circumstances of that case and without
prejudice to the positions of respondents, directed BSES to pay an ex-
gratia amount of Rs. 2,00,000/- to the petitioner.
62. Therefore, in light of the circumstances of the present case, the
Court deems it appropriate to issue almost similar directions to
ameliorate the petitioner‟s suffering following the tragic loss of her
husband.
63. Following the sympathetic view taken by this Court, the next
question which needs to be considered is the quantum of ex gratia
compensation which may be payable to the petitioner.
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64. The petitioner herein has prayed for Rs 50,00,000/- to be paid as
compensation. It is also pertinent to note here that in accordance with
the status report filed by respondent No.3-Delhi Police, the deceased‟s
family has already been given Rs. 27,96,496/- in family pensionary
benefits and is also receiving monthly pension of Rs.17,150/- till
21.05.2027 and shall receive Rs. 10,290 with effect from 22.05.2027.
65. In light of the benefits already extended to the petitioner, the
Court, in its discretion, deems it appropriate to grant an ex-gratia lump
sum compensation of ₹10,00,000/-, to be paid by BSES to the
petitioner. This payment shall be made to the petitioner within three
months from the date of passing of this judgment. Any failure to
comply with the aforesaid direction shall result in the petitioner being
entitled for payment of simple interest at the rate of 6% per annum,
accruing from the date of this judgment.
66. The petitioner is also at liberty to pursue appropriate legal
remedies in the Civil Court. The competent Civil Court is directed to
adjudicate the matter within a period of one year from the date of
institution of any such suit. BSES is also directed to not cause any
undue delay in the proceedings by seeking unwarranted adjournments.
It is further clarified that the ex-gratia amount awarded by this Court
is independent of, and in addition to, any compensation that may be
awarded by the Civil Court.
67. With the above directions, the present petition is disposed of
along with pending application(s), if any. No order as to costs.
68. Needless to state that nothing stated in this judgment shall be
construed to be an expression on merit and if the petitioner approaches
the Civil Court, the same shall decide the case being uninfluenced by
the observations made in the present case. This Court has only
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examined the case keeping in view the scope of relief which may be
granted under Article 226 of the Constitution.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
SEPTEMBER 05, 2024/MJ/p
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