Delhi High Court: In a writ petition filed by the petitioner (‘wife’) for adjudication of the dispute pertaining to a claim for compensation on account of her husband’s unfortunate death due to electrocution, a Single Judge Bench of Purushaindra Kumar Kaurav, J. stated that the present matter did not justify the application of the maxim res ipsa loquitur and deemed it appropriate to grant the wife an ex-gratia lump sum compensation of Rs. 10,00,000/- to be paid by BSES.
Background
In the present matter, the petitioner was a widow whose husband (‘deceased’) had died due to electrocution on 21-05-2017. Therefore, she sought compensation amounting to Rs. 50 lakhs from the Government of NCT of Delhi (‘GNCTD’) (respondent 1), BSES Yamuna Power Ltd. (‘BSES’) (respondent 2), and the Delhi Police (respondent 3).
The deceased had been working as a Sub-Inspector since 1990 in Delhi Police (Traffic). On 21-05-2017, the deceased had gone out to the cycle market to buy a gift for his youngest child when it started raining. He ran to find shelter and while trying to protect himself from rain, he came in contact with a channel gate located in the new Lajpat Rai market and got electrocuted.
The deceased was taken to the Aruna Asaf Ali Hospital where he was declared dead on arrival. After the post-mortem, the body of the deceased was sent to the mortuary after which a First Information Report (‘FIR’) was registered under Section 304-A of the Penal Code, 18601 (‘IPC’).
Subsequently, the wife filed an application under Section 156(3) of the Code of Criminal Procedure, 19732 (‘CrPC’) before the Magistrate concerned. However, on 09-10-2019, a charge sheet was filed against the shopkeeper from whose shop the current was allegedly flowing to the channel gate.
Thereafter, the wife made a representation to the GNCTD and BSES seeking compensation of Rs. 50 lakhs for the negligence of statutory duty as prescribed under Sections 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 (‘CEA Regulations, 2010’).
To this, BSES replied 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 was currently under investigation and the Electrical Inspector’s report indicated that no negligence could be attributed on the part of BSES.
Analysis and Decision
The Court stated that the principal issue which fell for consideration was whether the extraordinary jurisdiction of the 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.
The Court referred to Nilabati Behara v. State of Orissa (1993) 2 SCC 746 wherein the Supreme Court evolved the concept of invoking public law remedy in cases of violation of human and fundamental rights. It was said that a claim for compensation for the contravention of human rights and fundamental freedoms was an acknowledged remedy for the enforcement and protection of such rights in public law. It was also stated that since the defence of sovereign immunity was 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.
The Court said that if the State fails to adhere to the practical necessity of preserving human life, it leads to a tragic loss of human dignity and that the negative and protective connotation linked to the right envisaged under Article 21 has undergone a substantial shift and has evolved to cast a positive obligation upon the State to ensure a life of dignity.
Therefore, after considering various decisions given by the Supreme Court, the Court held that a public law remedy could be resorted to and monetary compensation could also be awarded in cases of violation of Article 21 of the Constitution.
On the question of standard proof essential for seeking compensation under public law remedy, the Court referred to Abdul Haque v. BSES Yamuna Power Ltd. 2007 SCC OnLine Del 1001 wherein it was held that in cases for compensation on account of death due to electrocution where the facts were disputed, a writ petition for payment of compensation is not maintainable. It was said that the remedy in such cases would only be before the Civil Court where evidence could be led and appreciated.
The Court said that after considering various judicial precedents, it was evident that the High Court while exercising its jurisdiction under Article 226 of the Constitution, should refrain from awarding compensation when the case involves disputed questions of fact. However, the Court also said that if the State’s liability for a tortious act, committed by itself or its servants, is undisputed, the maxim res ipsa loquitur may be applied to overcome any factual controversy.
Further, the Court stated that the absence of concrete proof does not preclude the claimant from recovering compensation, provided a reasonable inference could be drawn from the known facts that the harm was caused by the negligence of the State or its servants.
The Court referred to Shyam Sunder v. State of Rajasthan (1974) 1 SCC 690 for giving a thorough understanding of the applicability of the maxim res ipsa loquitur wherein the Supreme Court stated that the maxim 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. It was also said that the fact of the accident may at times, constitute evidence of negligence and then only the maxim applies.
Thus, the Court concluded that where the negligence and breach of duty by the State are manifestly evident, res ipsa loquitur shall apply. It was also stated that the presumption of liability without proof would arise when the State is under a statutory duty of care and fails to fulfil the same.
The Court said that the death of the deceased was caused due to flowing of electricity current as a result of leakage from an outgoing exposed wire of the shop meter which had spread over the channel gate. It was stated that the mere fact that there was a leakage from the said wire of the shopkeeper could not allude culpability or any negligence on the part of BSES.
The Court noted that nothing had 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 shopkeeper. Therefore, the Court held that there was insufficient evidence to prove that the negligence in the present matter was directly and solely attributable to BSES.
However, the Court found it fit to examine the statutory provisions to delineate the obligations upon BSES for managing a hazardous enterprise such as electricity supply and referred to Section 53 of the Electricity Act, 2003, Regulations 13(1), and 30 of the CEA Regulations, 2010.
The Court stated that 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 ensure safe and proper maintenance of the electricity current with due diligence and care. It was also noted that the provisions highlighted that the consumer is also obligated to maintain the safety of the installation under his control.
The Court stated that the regulations and provisions did not conclusively establish that it was only BSES that had the sole and direct responsibility to prevent such leakage. It was said that in the absence of any material evidence on record that effectively demonstrates a lapse on the part of BSES, the Court could not conclusively establish negligence on the part of BSES and therefore, the principle of res ipsa loquitur becomes inapplicable.
The Court said that it did not find it appropriate to adjudicate upon the issues in the present matter since the application of res ipsa loquitur was not justified and there was no conclusive evidence to suggest otherwise.
However, the Court referred to Satish Kumar v. BSES Yamuna Power Ltd. 2018 SCC OnLine Del 7585 and found it appropriate to issue similar directions to ameliorate the wife’s suffering following the tragic loss of her husband.
The Court noted that the deceased’s family had already been given Rs. 27,96,496/- as family pensionary benefits and was also receiving a monthly pension of Rs. 17, 150/- till 21-05-2027 and was to receive Rs. 10, 290/- w.e.f. 22-05-2027. Thus, the Court found it appropriate to grant the wife an ex gratia lump sum compensation of Rs. 10,00,000/- to be paid by BSES.
The Court directed the payment to be made within three months and upon failure to do so, directed BSES to pay a simple interest at the rate of 6 percent per annum to the wife. Lastly, the Court directed the competent Civil Court to adjudicate any suit filed by the wife of the deceased to pursue any other appropriate legal remedies.
[Shagufta Ali v. Government of NCT of Delhi, 2024 SCC OnLine Del 6250, Decided on 05-09-2024]
Advocates who appeared in this case :
For Petitioner — Advocate Saeed Qadri, Advocate Saahil Gupta, Advocate Mohd. Shakil
For Respondent — ASC Anuj Aggarwal, Advocate Arshya Singh, Advocate Yash Upadhyay, Advocate Siddhant Dutt, Advocate Manish Srivastava, Advocate Moksh Arora, Advocate Santosh Ramdurg, Advocate Yash Srivastava
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1. Section 106 of the Bharatiya Nyaya Sanhita, 2023
2. Section 175(3) of the Bharatiya Nagarik Suraksha Sanhita, 2023