M J Antony: Loose wires in compensation law

OUT OF COURT

Courts appear to be applying different yardsticks while awarding damages

Fixing liability on public utilities and civic authorities for death or injuries caused by their negligence is a formidable task. Until recently, they routinely raised the defence of "sovereign immunity", a principle which protected the British royalty and was abandoned long ago in the very kingdom where it was propounded.

Then they would argue the very opposite and contend that since they are not "state", writ petitions could not be filed against them in the high courts or the Supreme Court.

If they fail in these legal arguments, they can always deny the allegations on merits of the case. This defence sometimes sticks, as the judiciary has not been very consistent in its approach. Last week, in Grid Corporation of Orissa Ltd vs Timudu Oram, the Supreme Court granted relief to the corporation in a few cases of electrocution.

The facts are simple and familiar. Some villagers had been illegally tapping electric power by the use of hooks and uninsulated wire. One of the wires fell to the ground and a bullock got electrocuted. The owner and his daughter also got electrocuted while saving the animal. There have been similar other cases and they moved writ petitions in the Orissa high court.

In the bullock case, the survivors were awarded Rs 2.70 lakh. On appeal, the Supreme Court set aside the high court judgement and ruled that the high court had no power to do so. According to the Supreme Court, when there are disputed questions of facts, the high court should not go into them but leave them to the civil courts.

However, the high courts and even the Supreme Court have taken a different view in some other cases. In Madhya Pradesh Electricity Board vs Shail Kumari, decided in 2002, the widow of a cyclist who was electrocuted by a snapped wire on the road on a rainy night sought compensation and the high court awarded her Rs 4.34 lakh. The board went up in appeal to the Supreme Court arguing that the wire was used by a pilferer and, therefore, the board was not negligent.

However, the Supreme Court applied the principle of strict liability and emphasised: "A person undertaking an activity involving hazardous or risky exposure to human life is liable 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 vary nature of such activity."

In D Chandrashekhar vs Karnataka Power Corporation (2002), the corporation argued that a writ petition was not maintainable and the claimant should go to a civil court.

Rejecting its defence, the high court said: "No doubt, in a writ petition, it may not be possible to quantify the compensation even assuming that the negligence if any on the part of the corporation is proved. But, at the same time, it cannot be said that this court cannot grant some compensation if it is satisfied prima facie that the injury has been caused on account of negligence." This is apart from the claim which could be put forward in a civil court.

In State vs Altaf Ahmed (2004), the Jammu and Kashmir High Court dealt with the case of injuries suffered by a schoolboy from loose electric wires on the playground. It awarded damages holding the board responsible for leaving live wires near the playground. The same high court, in a similar case (State vs Zarina Begum), rejected the board's argument that the death was caused by someone taking illegal connection.

"There is absolute liability of the state to keep the electric installations in safe bounds so that these are not easily accessible to the general public and are not able to cause any injury to a person passing near by the installations," the high court said while granting the widow of a mason Rs 5.08 lakh as compensation.

Some high courts have invoked Article 21 (right to life) in a few cases when there was prima facie case of negligence, invoking its writ jurisdiction. The Supreme Court, in the latest judgement, attempts to make a distinction between gross cases and those where there are disputed questions of facts.

This would only prompt the undertakings to raise questions of evidence to ward off the writ jurisdiction of the high courts. It would force the claimants to resort to the tedious and costly route to the civil courts. The demarcation is vague and there is contradiction in the judicial views.