MUNNI DEVI  Vs GOVT. OF NCT AND ANR.

W.P.(C) 8432 /2018 Page 1 of 25
$~J-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on : 15.01. 2021
+ W.P. (C) 8432 /2018
MUNNI DEVI ….. Petitioner
Through Ms.Ankita Patnai k, Advocate
(DHCLSC)
versus
GOVT. OF NCT OF DELHI & A NR. …. Respondent s
Through Mr.Jawahar Raja, ASC (Civil),
GNCTD with Mr. Archit Krishna, Adv . for R-
1/Govt. of NCT of Delhi.
Mr.Ravi Gupta, Sr.Adv. with Ms.Anju Thomas,
Adv. for R-2/ BSES-RPL.
Mr.Rajeev M.Roy and Mr.P.Srinivasan, Advs. for R-3/ Relia nce General Insurance Co.Ltd.

CORAM:
HON’BLE MR. JUSTICE JAYANT NATH
1. This writ petition is filed by the petitioner seeking an appropriate writ
of mandamus directing respondents No.1 and 2 to pay a compensation of
Rs.30 lakhs or any othe r reasonable compensation to the petitioner. JAYANT NATH, J.
2. The case of the petitioner is that her son Mintu Kumar Jha who was 23
years old was pursuing a degree in B achelor of Science from Indira Gandi
Open University . While passing through House No. D-62, DDA Flat s,
Kalkaji, New Delhi on his bicycle on 16.05.2007 at around 8. 05 pm he lost
his life due to electrocution when an exposed live electric wire fell down
upon his bicycle. This act was totally attributable to the negligence of the
respondents .
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3. It is stated that the post-mortem report of the deceased son which was
conducted by AIIMS on 16.05.2007 clearly shows that death was caused due
to electr ocution and all injuries of the deceased were ante -mortem in nature.
4. It is stated that the petitioner’s son was only 23 years of old and was at
the prime of his youth. However, due to carelessness and negligence of the
respondents, the petitioner lost h er son at a young age. The petitioner’s son
was pursuing a degree in Bachelor of Science and had a very bright future
ahead of him. It is further stated that subsequently Mr.Sonu Kumar Jha, th e
petiti oner’s other son who was suffering from acute depression due to his
brother ’s death also passed away on 2 7.10.2010.
5. It is stated that the petitioner thereafter regularly visited PS Kalkaji to
enquire about the death of her son but no information regarding the same
was given . Thereafter, the petitioner’s husband approached the court of
Sh.Nishant Garg, MM, Saket Courts, New Delhi calling for a status report of
the incident of 16.05 .2007. The court passed an order directin g Delhi Police
to file a status report. The status report dated 0 8.12.201 7 was filed by the
Delhi Police where it was clearly stated that the death of the deceased
Sh.Mintu Kumar Jha was caused due to electrocution and all injuries were
ante-mortem. Despite this, no FIR was registered by the Police against the
respondents.
6. On coming to know about the status report, the petitioner sent a legal
notice on 22. 12.2017 to respondent No.2/BSES R ajdhani Power Limited
demand ing compensation but no reply has been received.
7. It is stated that the petitioner is a housewife , sufferin g from acute
anemia while her husband is a labour er and earns about Rs. 48000/- per
annum . They have no other source of income and her husband is suff ering
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from asthma and poor eye sight. The petitioner has lost her two sons. The
petitioner is a resident of Darbhanga, Bihar and is running from pillar to post
in Delhi to get justice for their son who died d ue to negligence of the
respondents. As the peti tioner’s husband is unable to earn their livelihood,
the burden of taking care of the family has fallen on the only surviving son
Sh.Amit Kumar Jha who is doing a private job and has to sustain his own
family also. It is pointed out that aggrieved by the non -action of the
respondents of not giving compensation or not giving a reply to the legal
notice; the petitioner along with her husband approached the District C ourt,
Saket by filing a suit seeking compensation to the tune of Rs.30 lakhs.
However, t he suit was withdrawn by the petitioner due to technical defects
and the court was pleased to dismiss the suit as withdrawn with liberty to
approach this court vide order dated 24.04.2018. Hence, the present writ
petition.
8. Respondent No.1/Govt. of NCT of Delhi has filed a counter affidavit.
In the counter affidavit, the statutory structure of the E lectricity Companies
in Delhi has been explained. The power distribution companies were formed
and the distribution business es have been transferred to the said three
distribution companies including respondent No.2/BSES RPL, as per Delhi
Electricity Reforms Act. It is stated that the facts of this case pertain to an
incident which ha s happened in the jurisdiction of the distribution licensee
BSES RPL /respondent No.2 and respondent No.1/Govt. of NCT of Delhi has
no role to pay in the entire incident.
9. Respondent No.2/BSES RPL has also filed its counter affidavit.
Various objections including preliminary objections about maintainability of
this petition have been taken in the counter affidavit including as follows:
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i) The writ petition is not maintainable as a writ seeking relief in the
nature of compe nsation for electr ocution is not maintainable and does not
come within the purview of Article 226 of the Constitution of India.
ii) The present writ is misconceived as a proper remedy was available to
the petiti oner before the civil court. The petitioner after filing a civil suit has
chosen to withdraw the same , and has erroneously invoked the writ
jurisdiction of this court.
iii) The present writ is a bundle of disputed questions of facts which
requires extensive evidence by the parties and cannot be decided within the
ambit of writ jurisdiction.
iv) Reliance is placed on the judgments of the Supreme Court in the case
of Chairman Grid Corporat ion of Orissa Ltd. (GRIDCO) & Ors. v.
Smt.Sukamani Das & Anr. , 1999 (7) SCC 298 and S.D.O., Grid
Corporation of Orissa Ltd. & ORS. v. Tim udu Oram, 2005 (6) SCC 156 to
plead that this court should not exercise its jurisdiction.
v) The allegations of negligence on the part of the said respondent s have
been denied.
10. I have heard learned counsel for the parties.
11. Learned senior counsel appearing for respondent No.2/BSES -RPL has
pointed out that in 2017 the petitioner had filed a suit for recovery of
damages. The su it could not proceed on account of objections raised relating
to the court fees and limitation. It is pointed out that the suit was dismissed
as withdrawn with liberty as prayed for subject to issue of limitation by the
concerned civil court vide its order dated 24.04.2018. It is pleaded that when
the suit has been withdrawn, no writ petition is maintainable. Reliance is
placed on the following judgments:
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i) Crown Wheels Pvt. Ltd. v. BSES RPL , 2007 (145) DLT
577; and
ii) Master Rahul Seth (Minor) v. Mount Carmel S chool &
Anr., 2009( 163) DLT 461 .

It is further pleaded that there is delay of 12 years in filing of the
present writ petition. The claim filed by the petitioner is barred by delay and
laches and hence the writ petition is liable to dismissed on the face of it.
12. I may note that on 30. 08.2019 this court had directed respondent No.1
to place on record the report of the Electricity I nspector, if any, regarding the
incident of electrocution that took place. The SHO PS Kalkaji was also directed to explain the ste ps taken pursuant to DD No.29A of 16.05.2007
pertaining to the incident that took place.
13. On the next date of hearing i.e. 15.11.2019 , Delhi Police state d that
the records in question have been destroyed in normal course . A submission
was also made that the re is no report of the Electricity I nspector. However,
in my opinion, the petitioner s cannot be made to suffer for the in efficien cy of
the concerned functionaries, namely, the concerned P olice Station and the
Electric ity Inspect or in not fulfilling the necessary requirements.
14. I may now look at the status report dated 08.12.2017 filed by Police
Station Kalkaji in the court of learned MM, Saket Courts, New Delhi, which
gives the factual background of the case. Relevant portion of the status
report reads as fo llows:
“…..
A PCR call at about 9:00 PM was received at Police Station-
Kalkaji vide DD No.29A, dated 16 /05/2007 and the same wa s
marked to S.I.Rajbir Singh for necessary action. After that, I.O.
has reached the spot at D -62, Kalkaji wherein the body of
deceased Mintu Kumar Jha was found. It is also come to notice
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that the electric wire f ell due to storm and rain, which took
place before the incident. After that, statements of brother of
deceased Amit Kumar and Sonu Kumar were also recorded, the other witne sses were also examined regarding the incident
namely Ashok, Tiwari, Narender Singh Negi and BSES officials were also examined in the matter. The post -mortem
was also conducted vide P.M. No.600/2007 at AIIMS Hospital. It has been opined that cause of death is shock due to
electrocution. All injuries are ante -mortem in nature.”

15. 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 th at 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
No.2/BSES RPL is the distribution company of the a rea in question.
16. 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
electrocutio n when an exposed live electric wire f ell down upon him which
action is totally attributable to the negligence of the respondents.
17. In the counter affidavit filed by respondent No.2/BSES RPL , the
response to para 2 of the writ petition reads as follows:
“11. That the contents of para Nos.2 to 6 need no reply since
the same are either matter of facts or o f record. It is respectfully
submitted that the answering respondent company is a
sympathet ic to the petitioner, however , the answering
respondent company is not in any manner responsible o r liable
for the loss suffered by the petitioner.”

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Clearly, the specific averments of the petitioner about the negligence
of the respondents ha ve evoked a vague response.
18. In my opinion, facts speak for themselves and the principle of res ipsa
loquitur will clearly apply in these facts . In this context reference may be
had to the judgment of the Supreme Court in the case of Shyam Sunder &
Ors v. State of Rajasthan, (1974) 1 SCC 690, where the concept of res ipsa
loquitur was explained. Relevant portion of the said judgment reads as
follows:
“10. The maxim is stated in its classic form by Erle, C.J.:
[Scott v. London & St. Katherine Docks, (1865) 3 H&C 596,
601]
“… where the thing is shown to be under the management of
the defendant or his servants, and the accident is such as in
the ordinary course of things does not happen if those who
have the management use proper care, it affords reasonable
evidence, in the absence of explanation by the defendants,
that the accident aros e from want of care.”

The maxim does not embody any rule of substantive law nor a
rule of evidence. It is perhaps not a rule of any kind but simply
the caption to an argument on the evidence. Lord Shaw
remarked that if the phrase had not been in Latin, no body would
have called it a principle [ Ballard v. North British Railway Co. ,
1923 SC (HL) 43]. The maxim is only a convenient label to
apply to a set of circumstances in which the plaintiff proves a
case so as to call for a rebuttal from the defendant, wit hout
having to allege and prove any specific act or omission on the
part of the defendant. The principal function of the maxim is to
prevent injustice which would result if a plaintiff were
invariably compelled to prove the precise cause of the accident
and the defendant responsible for it even when the facts bearing
on these matters are at the outset unknown to him and often
within the knowledge of the defendant. But though the parties’
relative access to evidence is an influential factor, it is not
contro lling. Thus, the fact that the defendant is as much at a loss
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to explain the accident or himself died in it, does not preclude
an adverse inference against him, if the odds otherwise point to
his negligence (see John G. Fleming, The Law of Torts , 4th
Edn., p. 264). The mere happening of the accident may be more
consistent with the negligence on the part of the defendant than
with other causes. The maxim is based as commonsense and its
purpose is to do justice when the facts bearing on causation and
on the c are exercised by defendant are at the outset unknown to
the plaintiff and are or ought to be within the knowledge of the
defendant (see Barkway v. S. Wales Transo [(1950) 1 All ER
392, 399] ).

11. The plaintiff merely proves a result, not any particular a ct or
omission producing the result. If the result, in the circumstances
in which he proves it, makes it more probable than not that it
was caused by the negligence of the defendants, the doctrine
of res ipsa loquitur is said to apply, and the plaintiff will be
entitled to succeed unless the defendant by evidence rebuts that
probability.”

The above doctrine would clearly apply here. A clear averment has
been made in the petition that respondent No.2/BSES -RPL was guilty of
negligence. A young boy has died a fter coming in contact with a live electric
wire that has fallen on the road. In the counter affidavit vague and evasive
denial ha s been made. Clearly based on the above facts and the doctrine of
res ipsa loquitur , it is clear that respondent No.2/BSES -RPL is guilty of
negligence. The death of the deceased took place due to the negligence of
respondent No.2 .
19. The above view is further fortified by some of the other averments in
the counter affidavit of respondent No.2. I may look f urther at the counter
affid avit. In para 9, respondent No.2 states as follows:
“9. That the petitioner has just made a bald assertion that the
alleged incident happened when the petitioner on 16.05.2007
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was passing through DDA Flats Kalkaji, New Delhi on his
bicycle lost his life du e to electrocution when an exposed live
electric wire fell down upon his bicycle. It is foremost
respectfully submitted that the answering respondent had no
information about the said accident till the present writ petition
was filed before this Hon’ble C ourt. Whenever any such
accidents occurs, the respondent company after receiving the information about the accident, either from the Police or
through a complaint is mandated to inform the office of the Electrical Inspe ctor, Department of Labour who then co nducts
an inq uiry and submits a report to the Investigation Officer in
the FIR with details of the lapses and shortcomings and who is responsible for the accident that has occurred. The above process could not be completed in the present case since there was no information regarding the accident to the officials or the
local Division office.
….”

20. I cannot help noticing that the above submission s of respondent No.2
in his counter affidavit appear to be incorrect and totally false.
The Police in the status report have clearly state d that some of the
witnesses were examined including BSES -RPL officials. The plea of
respondent No.2 that it had no knowledge of the incident is contrary to the
stand of Delhi Police as stated in the status report.
Even otherwise , it is a strange submission being made by the
distribution company In-charge of distributi on of electricity in the area . It is
inconceivable that a death has taken place due to electrocution from the
distribution wires within the territory of respondent N o.2 on a public street
and respondent No.2 claim s ignor ance of such a major incident. The plea of
respondent No.2 cannot clearly be believed. This vague plea of respondent
No.2 fortifies my conclusion of the negligence of respondent No.2. The
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negligence of respondent No.2 in maintaining electric wire s is writ large on
the face of the record.
21. I may now look at some of the other pleas raised by respondent No.2.
It has been strongly urged that the writ court would normally not grant
compensation in a matter o f this nature . Further reliance has been placed by
the respondents on the case s of the Supreme Court in the case of Chairman
Grid Corporation of Orissa Ltd. & Ors. v. Smt.Sukamani Das &
Anr.(supra) and S.D.O., Grid Corporation of Orissa Ltd. & ORS. v. Timu du
Oram (supra) to plead that no relief can be granted to the petitioner.
22. Regarding the right of a writ court to award compensation, I have
already dealt with such a plea in an earlier matter in the judgment dated
24.08.2020 in the case of Meera & Anr. v. M CD, W.P.(C) 2303/2016 where
this court had held as follows:
“19. The issue arises as to whether in these facts this court can
grant relief to the petitioners. In this context reference may be
had to the judgment of the Division Bench of this court in the
case of Fatima &Ors. Vs. National Zoological Park &Ors.,
(2016) 232 DLT 31 (DB) relevant paras of which read as
follows: –
“10. The issue which first seeks answer from this court is as to whether in these facts this court could grant compensation to the peti tioners in the present writ petition. The legal
position in this regard may be looked at. The Supreme Court
in the case of Nilabati Behera Alias Lalita Behera v. State of
Orissa, (1993) 2 SCC 746 was dealing with the issue of award of compensation in proce edings under Article 32/226
of the Constitution. The court noted that the remedy is available in public law based on strict liability for contravention of fundamental rights. The court further held
that this right is distinct from and in addition to the re medy
in private law for damages for the tort resulting from
contravention of the fundamental rights. The court also held
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that the Supreme Court and the High Courts have wide
powers under Article 32 and Article 226 respectively to forge new tools that may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in
the Constitution. The relevant portion of the judgment reads
as follows:-
“22. We respectfully concur with the view that the court is not helpless and the wide powers given to this Court by
Article 32, which itself is a fundamental right, imposes a
constitutional obligation on this Court to forge such new
tools, which may be necessary for doing complete justice
and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary
compensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render
the court powerless and the constitutional guarantee a mirage, but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the court is powerless to grant any relief against the State, except by punis hment of the wrongdoer for the resulting offence,
and recovery of damages under private law, by the
ordinary process. It the guarantee that deprivation of life
and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case
of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This
remedy in public law has to be more readily available
when invoked by the have nots, who are not possessed of
the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriate.
xxx
24. The abo ve discussion indicates the principles on
which the Court’s power under Articles 32 and 226 of the
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Constitution is exercised to award monetary
compensation for contravention of a fundamental right.………..”

11. In Air India Statutory Corporation v. United La bour
Union, (1997) 9 SCC 377 the Supreme Court held that there is no limitation or fetters on the powers of the High Court under Article 226 of the Constitution except self -imposed
limitations. The Supreme Court held as follows:-
“59. The founding father s placed no limitation or fetters
on the power of the High Court under Article 226 of the Constitution except self -imposed limitations. The arm of
the Court is long enough to reach injustice wherever it is found. The Court as sentinel in the qui vive is to mete out
justice in given facts. On finding that either the workmen were engaged in violation of the provisions of the Act or were continued as contract labour, despite prohibition of
the contract labour under Section 10(1), the High Court
has, by judicia l review as the basic structure,
constitutional duty to enforce the law by appropriate directions. The right to judicial review is now a basic structure of the Constitution by catena of decisions of this Court starting from Indira Gandhi v. Raj Narayan to
Bommai’s case. It would, therefore, be necessary that
instead of leaving the workmen in the lurch, the Court would properly mould the relief and grant the same in accordance with law.

20. I may note that the above judgment was upheld by the
Supreme Court in the case of Fatima & Anr. Vs. National
Zoological Park &Ors., Civil Appeal No. 9975/2018 dated 25.09.2018.
21. Reference in this context may also be had to a judgment of a Coordinate Bench of this court in the case of Baby Anjum Thr.
her Natural Guardi an &Anr. Vs. The Chief Executive Officer,
BSES Rajdhani Power Ltd., (2012) 189 DLT 1. That was a case
in which an injury (amputation of hand) was suffered by
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petitioner No. 1 aged 14 years allegedly owing to electrocution
attributable to the negligence of the respondent. In the facts, the
court noted that the respondent had installed a transformer on the electric pole just adjoining to the parapet wall of the roof of
the house of the petitioner. In spite of requests, the said
transformer was not removed. On 02.03.2007 the petitioner then
aged 4 years while playing on the roof came in contact with the said transformer and suffered an electric shock which threw her off the roof. In those facts, this court held as follows:-
“5. Once the facts are not in dispute, the negligence of the
respondent is writ large and speaks for itself. Considering
that the petitioner No.1 is a girl child, has to lead her entire life with the handicap aforesaid which has been evaluated by the Safdarjung Hospital also at 85%, I feel compensation
of Rs.7.5 lacs to be appropriate.”

22. What follows from the above judgments is that the High
Court in exercise of its power under Article 226 of the
Constitution of India has no limitations or fetter on the powers except self imposed limitat ions. The court has the power to
award monetary compensation in appropriate cases. Where the negligence of the state/state authorities is clear from the record,
appropriate compensation to the family of the victims can be
awarded. ”

Clearly, this court ha s the powers in an appropriate case to award
compensation.
23. Respondent No.2 has also heavily relied upon the judgments of the
Supreme Court in the case of Chairman, Grid Corporation of Orissa Ltd.
Vs. Sukamani Das & Anr. (supra) and SDO, Grid Corporation o f Orissa
Ltd. Vs. Timudu Oram (supra) to plead that this court should not deal with
this petition.
24. I may now look at the aforenoted judgment of the Supreme Court in
the case of Chairman, Grid Corporation of Orissa Ltd. vs. Sukamani Das
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&Anr. (supra). The f acts of the main case that was adjudicated upon were
that the deceased Sh.Pratap Chandra Das was proceeding to his village when
dark clouds gathered in the sky and there were thunderbolts also. It started
raining. He came into contact with an electric wire which was lying across
the road after getting snapped from the overhead electric line. It was claimed
that the said line snapped because of the negligence of the GRIDCO and its officials. The case of the appellant however was that because of thunderbolt
and lightning, one of the conductors of the 12 W LT line had snapped even
though proper guarding was provided. It was also noticed that one shackle insulator had broken due to lightning and a conductor had also snapped from that shackle insulator. It was al so claimed that Sh. Pratap Chandra Das died
due to lightning and not because he had come in contact with the snapped live wire. Further, it was claimed that the 12 W LT line had snapped because of an act of God and not because of any negligence. The Suprem e Court in
those facts noted as follows: –
“6. 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 belon ging to Appellant 1 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
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result of any negligence of the appellants a nd 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 th at 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.”

25. Hence, in the above case a defence had been taken by the electricity
company that the deceased had died on account of lightning and not on
account of electrocution. Further, the court also noted that in an action for
tort, negligence was required to be established. In tho se facts, the Supreme
Court had taken the view that a writ under Article 226 of the Constitution
was not the proper remedy.
26. Reference may also be had to the other judgment of the Supreme
Court relied upon by the respondents i.e. SDO, Grid Corporation of Or issa
Ltd. vs. Timudu Oram (supra). There were a bunch of appeals in the said
case. As per the facts of the first case, some villagers had illegally taken
power supply without the knowledge of the GRIDCO authorities by use of a
hook from the L -I point to the ir houses by means of an uninsulated GI wire.
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The GI wire got disconnected and fell on the ground. The father of the
respondent and other family members got electrocuted. The fact of illegal
hooking and death due to electrocution was admitted. In the counter –
affidavit, the GRIDCO had taken a plea that the deaths occurred due to the
negligence of the deceased themselves and the electric live wire belonging
and maintained by the GRIDCO had not snapped and therefore, the
GRIDCO was not liable to pay any compensation. The two other matters
were heard along with the above noted matter. The Supreme Court
concluded as follows: –
“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.

Hence, the Supreme Court set aside the order of the High Court
holding that no finding has been recorded by the High Court that GRIDCO
was in any way negligent in the performance of its duty.
27. Clearly, in the above two judgments the relief was denied to the
family of the vict im as there was no finding recorded in the impugned orders
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holding the electricity company negligent. The aforesaid two judgments
would have no application to the facts of this case where as noted above the
negligence of respondent No. 1 is clear from the facts on record. As this
court has come to the conclusion that the death of the deceased took place
due to the negligence of respondent No. 1, the said respondent is liable to
pay necessary compensation”
28. In the given facts, I also look at another judgment of the Supreme
Court in the case of Madhya Pradesh Electricity Board v. Sh ail Kumari &
Anr., AIR 2002 SC 551. The facts of that case are akin to the facts of this
case. That was a case where the deceased was riding on a bicycle in the night
and returning f rom his factor y. There ha d been rain and the road was
partially inundated with water. The cyclist did not notice the li ve wire on the
road and hence he rode the vehi cle over the wire which twitched and
snatched him and he was instantaneously electrocuted. The main defence
raised by the defendant was that the wire in question had been used by
somebody to siphon energy for his own use and said act was done
clandestinely behind the back of the Electricity B oard. The line got
unfastened from the hook and it fel l on the road over which the cycle driven
by the deceased slided resul ting in the instantaneous electrocution.
In those facts, the Supreme Court held as follows:
“7. It is an admitted fact that the responsibility to supply electric
energy in the particula r locality was statutorily conferred on the
Board. If the energy so transmitted causes injury or death of a
human being, who gets unknowingly trapped into it the primary liability to compensate the sufferer is that of the supplier of the
electric energy. S o long as the voltage of electricity transmitted
through the wires is potentially of dangerous dimension the
managers of its supply have the added duty to take all safety
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measures to prevent escape of such energy or to see that the
wire snapped would not r emain live on the road as users of such
road would be under peril. It is no defence on the part of the management of the Board that somebody committed mischief
by siphoning such energy to his private property and that the
electrocution was from such diverted line. It is the look out of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been di srupted. Authorities manning
such dangerous commodities have extra duty to chalk out measures to prevent such mishaps.
8. Even assuming that all such measures have been adopted, a
person undertaking an activity involving hazardous or risky
exposure to huma n 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 f oreseeable harm could 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.
9. 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 lands and collects and kee ps there anything likely
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to do mischief if it escapes, must keep it at his peril; and if he
does so he is prima facie answerable for all the damage which is
the natural consequence of its escape.
xxxxx
13. In the present case, the Board made an endeavour t o rely on
the exception to the rule of strict liability (Rylands v. Fletcher)
being “an act of stranger”. The said exception is not available to the Board as the act attributed to the third respondent should
reasonably have been anticipated or at any rate its consequences
should have been prevented by the appellant-Board. In
Northwestern Utilities, Limited v. London Guarantee and
Accident Company, Limited {1936 Appeal Cases 108}, the
Privy Council repelled the contention of the defendant based on the afores aid exception. In that case a hotel belonging to the
plaintiffs was destroyed in a fire caused by the escape and ignition of natural gas. The gas had percolated into the hotel basement from a fractured welded joint in an intermediate pressure main situated below the street level and belonging to
the defendants which was a public utility company. The fracture was caused during the construction involving underground work by a third party. The Privy Council held that the risk involved in
the operation undertak en by the defendant was so great that a
high degree care was expected of him since the defendant ought
to have appreciated the possibility of such a leakage.
14. The Privy Council has observed in Quebec Railway, Light
Heat and Power Company Limited v. Vandry and Ors. {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 curren t found its
way through the low tension cable into the premise 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. ”
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29. What follows from the above judgment is that the Supreme Court has
in somewhat identical facts taken the view that the company supplying
electricity is liable for damages without proof that they ha ve been negligent
based on the principle of absolute liability. I t is clear that respondent No.2 in
any case would be liable for compensating the petitioner on account of the
death of her son due to electrocution. That apart, as noted above , this court
has also come to a conclusi on on the facts of this case that respondent No.2
was negligent in performing its duty. The death of deceased Mintu Kumar
Jha took place on acco unt of the negligen ce on the part of respondent No.2
and its officials. Hence, even otherwise , apart from the pr inciple of absolute
liability , on account of its negligence , respondent No.2 is liable to
compensate the petitioner.
30. The next plea that has been strongly raised by respondent No.2 in
defence is the plea of delay and laches. It has been pleaded that the present
writ petition has been filed almost 12 years after the incident has occurred
and the relief is barred by delay and laches.
31. In my opinion , the plea is misconceived.
32. Firstly, I cannot help noticing that the petitioner comes from an
economically weak er section of the society . The parents of the deceased live
in the interior of the Bihar . The husband of the petitioner is working as a
labourer . They have painstakingly been following up with the Police for
appropriate steps but no results have followed. It is only in 2017 that from
the court of learned MM through status report that was filed that some
details were provided as to how their son had got electrocuted. Thereafter,
they have perused and filed the suit which was dismissed as withdrawn and
now th ey have filed the present writ petition.
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33. On the issue of delay and laches, it is settled position of law that it is
not a mandatory requirement that every delayed petition must be dismissed
on the ground of delay. In this context reference may be had to t he judgment
of the Supreme Court in the case of Vetindia Pharmaceutical Limited v. State of U.P. & Anr, (2020) SCC OnLine 912 , where the court held as
follows:
15. That brings us to the question of delay. There is no doubt
that the High Court in its discre tionary jurisdiction may decline
to exercise the discretionary writ jurisdiction on ground of delay
in approaching the court. But it is only a rule of discretion by
exercise of self -restraint evolved by the court in exercise of the
discretionary equitable jurisdiction and not a mandatory
requirement that every delayed petition must be dismissed on
the ground of delay. The Limitation Act stricto sensu does not
apply to the writ jurisdiction. The discretion vested in the court
under Article 226 of the Constit ution therefore has to be a
judicious exercise of the discretion after considering all pros
and cons of the matter, including the nature of the dispute, the
explanation for the delay, whether any third -party rights have
intervened etc. The jurisdiction under Article 226 being
equitable in nature, questions of proportionality in considering
whether the impugned order merits interference or not in
exercise of the discretionary jurisdiction will also arise. This
Court in Basanti Prasad v. Bihar School Examinat ion
Board , (2009) 6 SCC 791, after referring to Moon Mills
Ltd. v. Industrial Court , AIR 1967 SC 1450, Maharashtra
SRTC v. Balwant Regular Motor Service , AIR 1969 SC
329 and State of M.P. v. Nandlal Jaiswal , (1986) 4 SCC 566,
held that if the delay is properly explained and no third party
rights are being affected, the writ court under Article 226 of the
Constitution may condone the delay, holding as follows:
“18. In the normal course, we would not have taken
exception to the order passed by the High Court. They are
justified in saying that a delinquent employee should not be
permitted to revive the stale claim and the High Court in
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exercise of its discretion would not ordinarily assist the
tardy and indolent person. This is the traditional view and is
well supported by a plethora of decisions of this Court. This
Court also has taken the view that there is no inviolable rule,
that, whenever there is delay the Court must refuse to
entertain a petition. This Court has stated that the writ court
in exercise of its extraordinary jurisdiction under Article
226 of the Constitution may condone the delay in filing the
petition, if the delay is satisfactorily explained.”

34. In this context reference may also be had to the judgment of the
Supreme Court in the case of Tuka ram Kana Joshi & Ors. v. M .I.D.C. &
Ors., (2013 ) 1 SCC 353 , where the court held as follows:
“14. The High Court committed an error in holding the
appellants non – suited on the ground of delay and non-
availability of records, as the court failed to appre ciate that the
appellants had been pursuing their case persistently. Accepting
their claim, the statutory authorities had even initiated the
acquisition proceedings in 1981, which subsequently lapsed for
want of further action on the part of those authorit ies. The
claimants are illiterate and inarticulate persons, who have been
deprived of their fundamental rights by the State, without it
resorting to any procedure prescribed by law, without the court
realising that the enrichment of a welfare State, or of its
instrumentalities, at the cost of poor farmers is not permissible,
particularly when done at the behest of the State itself. The
appellants belonged to a class which did not have any other
vocation or any business/calling to fall back upon, for the
purpose of earning their livelihood. ”

35. In the present facts also the petitioners herein are illiterate and
inarticulate person s and cannot be deprived of their rights in this manner .
36. Considering the overall situation and also keeping in mind that the
jurisdic tion under Article 226 of the Constitution of India is equitable in
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nature and keeping in view the background of the petitioner, in my opinion,
it would not be appropriate to decline relief to the petitioner on the ground of delay and laches in the facts a nd circumstances of this case. The plea raised
by respondent No.2 that the petition is liable to be dismissed on the ground of delay and laches, is rejected.
37. Another plea raised by respondent No.2 is reliance on the two
judgments of this c ourt in this case of Master Rahul Seth (Minor) v. Mount
Carmel School & Anr. (supra) and Crown Wheels Pvt. Ltd. v. BSES
RPL(supra) to submit that the present writ petition is not maintainable as the
petitioner had filed a suit earlier.
38. I may now look at the said judgment s.
39. In the case of Master Rahul Seth (Minor) v. Mount Carmel School &
Anr. (supra) the petitioner was suspended from the school. T he father of the
petitioner filed a suit for perpetual/permanent injunction seeking direction to
take back the letter of suspe nsion . As the petitioner in that suit failed to get
any interim relief, the father of the petitioner withdrew the suit with liberty
to file it before appropriate forum. Instead of filing another suit, the
petitioner filed the writ petition in question. I t was those facts that this court
held that the petitioner is unable to explain as to how a writ petition is
maintainable after the suit was filed involving disputed questions of facts
which was dismissed as withdrawn. In my opinion, I have already come to
a conclusion based on the facts above that respondent No.2 is guilty of
negligence. The said judgment would have no application to the facts of th is
case.
40. I may now look at the other judgment relied upon by respondent No.2,
namely, the case of Crown Wheels Pvt. Ltd. v. BSES RPL(supra). That was
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a case in which a civil suit was filed for perpetual injunction against Delhi
Vidyut Board (DVB) for levying LIP tariff on the basis of the inspection
report . The petitioner allowed the civil suit to be dismissed in default . In the
meantime, the writ petition was filed seeking the same relief. This court took
the view that the inspection report cannot be examined in these proceedings
for the simple r eason that its validity was put in issue in the civil suit but the
petitioner got the civil suit dismissed in default. The petitioner ha d taken no
steps to revive the suit or file an appeal. Having invoked such a remedy
against the inspection report this court felt that t he petitioner should have
exhausted the other avenu es available in law instead of seeking to agitate the
issue by way of a fresh petition. In my opinion, in the facts of the present
case, the aforesaid judgment s of the Co -ordinate Bench of this court would
not apply. The trial court in this case by its order dated 24.04.2018 had
permitted the petitioner to withdraw the suit with liberty to pursue the matter
in this court subject to limitation.
41. Coming to the compensation payable to the petitioner . No calculations
are mentioned in the writ petition. A bald cl aim of Rs.30 lakhs is claimed .
No details are given.
42. The deceased was doing his graduation from Indira Gandhi Open
University . His earning should have been at least around the minimum
wages . He would have earned after compl eting graduation at least
Rs.10,0 00/- to Rs.15,000/ – a month. I, accordingly, award a sum of
Rs.10,00,000/ – (Ten Lakhs only) as compensation to the petitioner.
43. I may note that on 30.08.2019, this court on the request of respondent
No.2 /BSES RPL had impleaded Reliance General Insurance C ompany Ltd.
as respondent No.3.
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44. It is the case of respondent No.2 /BSES RPL that the said respondent is
covered by the insurance policy of the said Reliance General Insurance
Company Ltd. Respondent No.3 denies this.
45. In this circumstance, I direct that the compensation amount will be the
liability of respondents No.2 and 3 jointly and severally. It is for them to
decide inter se as to in terms of the insurance policy taken by respondent
No.2 , whether the liability to pay compensation is of respondent No. 2 or is
of respondent No.3. The payment shall be made to the petitioner within three
months from today failing which the petitioner shall be entitled to simple interest @ 10% per ann um with effect from today.
46. With the above directions, the present petition is disposed of. All
pending applications, if any, are also disposed of.

(JAYANT NATH)
JUDGE
JANUARY 15, 2021/v
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