Court No. - 40
Case :- WRIT - C No. - 20628 of 2021 Petitioner :- Lachiya Devi And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ranjeet Kumar Pandey Counsel for Respondent :- C.S.C.,Suyash Agarwal
Hon'ble Manoj Misra,J. Hon'ble Jayant Banerji,J.
Heard learned counsel for the petitioners; the learned Standing Counsel for the respondent no.1; and Shri Ankur Agarwal, holding brief of Shri Suyash Agarwal, for the respondent nos.2, 3 and 4.
The son of petitioner no.2 died on account of electrocution. In connection with which, a first information report was lodged naming one Mithilesh Singh (the fifth-respondent) for being reckless in using a naked wire to illegally abstract electricity. By alleging that the Electricity Supply Department had been negligent in not checking illegal abstraction of electricity and by letting supply of electricity through a naked wire, this petition has been filed for a direction upon the respondents to adequately compensate the petitioners for the death of petitioner no.2's son.
On 13.09.2021, the Court required the learned counsel representing the Electricity Supply Department to seek his instructions. Pursuant to which, instructions have been obtained from the Executive Engineer of Purvanchal Vidyut Vitran Nigam. As per which, a direction has been issued to register first information report against Mithilesh Singh for electricity theft.
The learned counsel representing the Electricity Supply Department submits that since the accident was not on account of negligence of the Department but on account of illegal abstraction of electricity by the fifth-respondent, the Department cannot be fastened with liability by applying principle of vicarious liability as Mithilesh Singh was neither an employee nor agent of the Supply Department.
In response to the above submission, the learned counsel for the petitioners has placed reliance on a Division Bench judgment of this Court in Yash Pal Singh (Minor) & Anr. vs. State of U.P. & 5 Ors. reported in 2017 (3) AWC 2326 so as to contend that the Electricity Department is duty bound to observe precautions/safeguards under the provisions of the Indian Electricity Act and the Rules framed thereunder. A failure of such statutory duties tantamounting to negligence cannot be overcome by alleged statutory obligation on the part of the consumer of the electricity and, therefore, electrocution by naked wires necessitates strict liability. It has thus been urged that if it is found that there has been negligence on part of the Electricity Department of the State and on account of such negligence a person dies, compensation can be awarded in writ jurisdiction.
We have considered the rival submissions and have perused the record.
There can be no dispute in respect of the proposition of law laid down in the Yash Pal Singh's case (supra). But, in the facts of the present case, without recording evidence, it cannot be said with conviction that there has been negligence on the part of Electricity Department. Here, it is a case where the fifth- respondent was illegally abstracting the electricity and the Electricity Department has also taken a decision to prosecute him for theft of electricity. Even from the first information report that was lodged by the petitioner no.1, it appears to be a case of illegal abstraction of electricity by the fifth-respondent to run his tube-well. In that factual scenario to what extent the Electricity Supply Department could be fastened with liability to pay compensation on principles of vicarious liability becomes a mixed question of fact and law and would necessarily require leading of evidence and, therefore, examination of such a claim in writ jurisdiction would not be appropriate.
Under the circumstances, in our view, the proper course for the petitioners would be to institute a suit or take recourse to such other proceedings in respect of their claim, as may be advised.
Subject to above, the writ petition is disposed off.
Any opinion/observation made in this order shall not be treated as an opinion expressed on the merits of the claim of the petitioners, if they choose to take recourse to other alternative remedies as per advise.
Order Date :- 24.9.2021 SK