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Judgment
R. Gururajan, J.—The petitioners are the Legal Representatives of late Sri A.G. Ravindra and they are before this Court seeking for various directions with regard to the unfortunate death of Sri A.G. Ravindra on 2.7.1997.
The petitioner''s residence is provided with a Telephone connection bearing No. 41703 which is attached to the Telephone Exchange of Nalkeri, Virajpet Taluk, Kodagu District. The power supply is drawn from the K.E.B. Power Line. On 2.7.1997, at about 8.40 p.m. the residential Telephone No. 41703 rang and late Sri A.G. Ravindra lifted the receiver to answer the telephone call. The said telephone created electric shock resulting in the death of the petitioner due to electrocution through the telephone. On hearing the screaming sound of late Sri Ravindra, the first petitioner rushed to the spot. The telephone line caught fire and was burnt down. Telephone instrument incidentally also got burnt down. Thereafter, a case was registered in terms of Annexure ''A''. A report was submitted in terms of Annexure ''B''. Investigation was conducted in terms of Annexure ''C''.
The petitioners issued a legal notice claiming damages towards the negligence on the part of the respondents. The petitioner in these circumstances is before this Court.
Notice was issued pursuant to which the respondents have entered appearance. The contesting respondent filed a statement of objection. They say in the statement of objection that the respondents were issued with an Official Memorandum dated 25.10.2000. It is stated therein that a sum of Rs. 50,000/- is sanctioned towards the accident. It is further stated therein that the K.P.T.C.L. is responsible for the accident. They further say that these matters cannot be agitated in a writ petition. They also say that there is already a case pending in Miscellaneous Case No. 5 of 1999 on the file of the Civil Judge, Virajpet, in respect of this very issue.
Heard the Counsel on either side.
The Counsel for the petitioners argues at length to contend that there is a demand with regard to the negligence on the part of the K.P.T.C.L. The Counsel says that no doubt they have received a sum of Rs. 50,000/- and that receipt is without prejudice to the rights. The Counsel for the petitioner states that though they have filed a miscellaneous case, still this writ is maintainable. The Counsel relies on several judgments in Rudul Sah Vs. State of Bihar and Another, , Smt. Charanjit Kaur Vs. Union of India and others, , Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, and T. C. Pathak v. State of U.P., (1995) 6 SCC 357 The petitioners'' contention is that the suit filed is with regard to the negligence and the present claim is towards violation of fundamental rights.
Per contra, the Counsel for the respondents contends that the petitioners in the light of the pending suit cannot maintain the petition.
I have heard the Counsel for the petitioners. The Counsel in this case is seeking for compensation from the respondents. It is an admitted fact that a case is filed by these very petitioners against these respondents and in the said suit, they have claimed a sum of Rs. 42 lakhs. They further say in the plaint that it is an accidental claim and, therefore, they are entitled for damages. A reading of the petition averments also shows that what is being claimed by the petitioner is towards negligence on the part of the respondents. The suit filed by the petitioner is almost same/similar and for similar reliefs. In these circumstances, it is not possible for this Court to grant any relief notwithstanding a pending suit rightly filed by the petitioners before the Court below. However, the Counsel for the petitioners insisted that the said suit is not a bar for the claim. In the normal circumstances, I would have considered the request of the petitioners. But in this case, the petitioners have already been paid a payment of Rs. 50,000/- by the respondents as ex gratia. The petitioners are already before Civil Court claiming damages towards the accident. That being the position, it is not open to the petitioners, now to split the claim and seek a direction of compensation in this Court. The various cases cited by the petitioners are all distinguishable on facts. Most of the cases deal with violation of Article 21 and with regard to Police excesses or custodial death. In those circumstances, Article 21 certainly steps in and, therefore, the Courts have exercised their discretion under Article 226 of the Constitution of India. That is not the case here. This case stands on entirely different footing. The present case involves not only disputed questions of fact but also with regard to a claim of damages.
Rudul Sah Vs. State of Bihar and Another, is a case of illegal detention.
Smt. Charanjit Kaur Vs. Union of India and others, is a case of death of Military Officer, while in service in mysterious circumstances.
Smt. Nilabati Behera alieas Lalita Behera Vs. State of Orissa and others, is again a case of custodial death.
T. C. Pathak v. State of U.P., (1995) 6 SCC 357 is again a case of an illegal confinement of the petitioner in the said case.
The Chairman, Railway Board and Others Vs. Mrs. Chandrima Das and Others, is again a case of a rape by a Railway employee belonging to the Railways. All these cases stand on different footing than the present case. The present case is purely a case of tortuous claim against the Board. In these circumstances, all the cases cited by the petitioners are factually distinguishable or even otherwise not applicable to the facts and the law involved in the case on hand.
On the other hand the Supreme Court recently in somewhat identical circumstances in AIR 2000 SC 1603 has ruled as under:
In cases of death due to tortuous acts when disputed question of fact arises and there is clear denial of any tortuous liability remedy under Article 226 of the Constitution may not be proper. However, it cannot be understood as laying a law that in every case a tortuous liability recourse must be had to a suit. When there is negligence on the face of it and infringement of Article 21 is there it cannot be said that there will be any bar to proceed under Article 226 of the Constitution.
The said case clearly applies to the case on hand. The said case is followed in a judgment in Writ Petition No. 33223 of 2001, which is confirmed by a Division Bench in Writ Appeal No. 5886 of 2001.
In the light of the clear pronouncement of law by the Apex Court, I have no option than to dismiss this writ petition on the peculiar facts of this case. All contentions that are not considered by this Court are left open.
Writ petition is dismissed. Parties to bear their respective costs.