IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF FEBRUARY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD WRIT PETITION No.60017 OF 2014 (GM-RES) BETWEEN:
SMT. C. SABITHA, W/O. K.N. ADAVEESH, AGED ABOUT 57 YEARS, NO.26, 1ST FLOOR, Z.G.C. COLONY, BASAVESHWARANAGAR, BENGALURU-560 079.
(BY SRI.H. ARAVIND REDDY, ADV.,) AND:
1. THE ADDITIONAL COMMISSIONER (WEST), BBMP, BHASHYAM PARK, OPP: MANTRI MALL, SAMPIGE ROAD, MALLESWARAM, BENGALURU-560 003.
2. THE ASSISTANT EXECUTIVE ENGINEER, BESCOM, N-7 SUB-DIVISION, 60 FEET ROAD, J.C. NAGAR, KURBARAHALLI, BENGALURU 560002 ... PETITIONER (BY SRI.G.C.SHANMUKHA, ADV., FOR R2; SRI.V.SREENIDHI, ADV., FOR R1) ... RESPONDENTS THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENTS TO PAY COMPENSATION OF RS.7.00 LAKHS BY CONSIDERING CASE OF THE PETITIONER AS HAVING FAILED TO PERFORM THEIR STATUTORY OBLIGATIONS.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R This writ petition is filed by the petitioner seeking direction in the nature of mandamus directing the respondents to pay compensation of Rs.7 lakhs by considering the case of petitioner as having failed to perform the statutory obligations.
2. Brief facts of the case:
The petitioner is a graduate and has obtained degree from reputed university. She has been leading family life along with family members and has been hail and healthy without there being any complaints of health. On 08.05.2013 at evening, she had been to Malleshwaram along with her sister Smt. C. Geetha. After finishing the work, she had hired an auto rickshaw bearing Reg. No.KA- 41-A-906 having valid permit and also an Insurance Policy, as passengers, at about 5.30 p.m. near Mantri Mall, Malleshwaram to go to Basaveshwaranagar. When the auto rickshaw reached near Agarwal Eye Hospital on Modi Road, rain started pouring. Due to the force of the rain and wind, the tree situated by the side of the road fell on the moving auto rickshaw and followed by it an electrical pole which was installed by the side of the tree was also fallen on the auto rickshaw. In view of the sudden bounce, the petitioner sustained injuries all over the body including head. But her sister Smt. C. Geetha, succumbed to fatal injuries on the spot. Immediately, both of them were shifted to nearby hospital. Consequently, due to the accident, the driver of the auto rickshaw sustained injuries and he had given a complaint to the concerned police station and the case was registered and lodged FIR as UDR No.0030/2013 under Section 174 of Cr.P.C. The petitioner has issued a legal notice dated 19.08.2013 (Annexure – E) to the respondents seeking compensation of Rs.7 lakhs. Since the petitioner has not received any reply, she is before this Court.
3. Sri. V. Sreenidhi, learned counsel for respondent No.1 and Sri. G.C. Shanmukha, learned counsel for respondent No.2 submitted that the writ petition filed by the petitioner itself is not maintainable in view of law laid down by this Court in the cases of P. MALLAPPA AND OTHERS V. THE BENGALURU ELECTRICITY SUPPLY COMPANY, BESCOM, K.R. CIRCLE, BENGALURU AND OTHERS reported in (2018) 1 Kar. L.J. 497 and MRS. ASHWINI MANOJ PATIL AND OTHERS V. THE BENGALURU ELECTRICITY SUPPLY COMPANY, BESCOM, K.R. CIRCLE, BENGALURU AND OTHERS reported in 2016 (5) Kar. L.J. 511. The only remedy available for this purpose is to invoke the Civil Courts for damages.
4. It is not in dispute that on 08.05.2013, when the petitioner was traveling in auto rickshaw bearing Reg. No.KA-41-A-906, has sustained injuries due to the fall of tree and electric pole. Since the petitioner sought for damages for the injuries sustained by her due to the accident, this court in the case of P. Mallappa and Others (Supra), has held at head note as under:
“CONSTITUTION OF INDIA, Article 226 – Writ jurisdiction – Writ claiming compensation in the cases of death or injury caused by electrocution – Whether maintainable?
Held: In the circumstances narrated above, this Court is of the considered opinion that it is not appropriate for this Court to exercise writ jurisdiction under Article 226 of the Constitution of India, for not only determining the question of facts like the cause of accident, negligence of Electricity Distribution Companies or not, but on the other hand also, which criteria is to be adopted for determining the amount of compensation is also a material question……In the circumstances narrated above, this Court holds that these writ petitions are not maintainable under Article 226 of the Constitution of India and the claimants/petitioners should approach the Civil Courts by way of civil suits, where all these question of facts can be established with relevant evidence proved in accordance with law. The delay in filing such suits, even now, however deserves to be condoned, since the petitioners availed a remedy which this Court at this stage is holding to be misconceived and not maintainable……..The petitions are disposed of with a liberty and direction to the petitioners to file appropriate civil suits in Competent Civil Courts and if such civil suits are filed within a period of 60 days from today, the Courts below, where such suits are filed are directed not to raise an objection of limitation in such cases but proceed to decide the suits on merits in accordance with law. No costs. (paras 11, 16 and 17)”
In view of the above, writ petition filed by the petitioner is not maintainable.
Accordingly, writ petition is dismissed reserving liberty to the petitioner to approach competent legal forum.
Sd/- JUDGE VBS