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Judgment
A.R. Lakshmanan, J.—The Writ Appeal is directed against the order dated 7-7-1994 passed by A. Abdul Hadi, J., in W. P. No. 1176 of
1994 dismissing the writ petition filed by the appellants for a mandamus directing the respondents to pay a sum of Rs. 15 lakhs by way of
compensation for the death of one T. Suryaprakash, who is the son of the appellants and who lost his life due to electrocution.
The order of the learned Judge reads thus:
The petitioners are claiming a compensation of Rs. 15 lakhs from the respondents. That is the mandamus sought for in this writ petition. The said
relief is prayed for on the ground that on 15-11-1993, the petitioners'' son died due to electrocution and hence, on the ground of negligence on the
part of the respondents, the abovesaid claim is made.
The appropriate remedy in such cases is only a regular suit. The writ jurisdiction is only for the enforcement of a right and not for establishment of
right. The writ petitioners have to prove negligence on the part of the respondents and also to prove the quantum of damages. The occurrence,
even according to the petitioners, had taken place several months ago. Even earlier, they could have filed a suit. It is clear from the averments to
the supporting affidavit that the claim requires investigation of several facts and suit is the most appropriate remedy in such cases. Such claims
cannot be decided properly, in a summary proceeding like the one under Article 226 of the Constitution of India. Learned counsel for the
petitioners sought to rely on the decision in Smt. Kumari Vs. State of Tamil Nadu and others, . But I have already held in my order in W.P. No.
11029 of 1994 which also sought for a similar mandamus claiming a compensation Rs. 5 lakhs for electrocution death, that only a suit would lie
and the abovesaid decision of the Supreme Court as well as another decision reported in M.C. Mehta and another Vs. Union of India and others,
are distinguishable. Further in Sohanlal Vs. The Union of India (UOI), also it has been held that writ jurisdiction is not for the establishment of right
but for enforcement of right and a writ petition cannot be converted into a suit. Accordingly, this writ petition is not admitted and it is dismissed.
The correctness of the order of the learned single Judge is challenged in this Writ Appeal by the parents of deceased T. Suryaprakash.
In the Writ Appeal, it is contended by the learned counsel for the appellants, that the dismissal of the writ petition by the learned single Judge is
wrong, in that, the appellants sought to establish a right when the writ petition was filed only for the enforcement of a right which already existed,
i.e., the right to ensure that proper safeguards being provided to the public from the overhead wires carrying heavy loads of electricity. This right
having been established sufficiently, the appellants are entitled to their right to claim compensation for the subsequent right accrued. It is further
contended that the learned Judge has erred in holding that the quantum of damages had to be gone into only by a Civil Court while deciding a suit
when it is very much within the powers and jurisdiction of this Court under Article 226 of the Constitution to decide the quantum of damages. It is
then urged that the documents filed viz., postmortem certificate, etc., clearly establish that the death of the appellants'' son was only due to
electrocution and the fact the electrocution had occurred as the respondents had failed to provide cradles to the overhead lines and poles. The
learned Judge has failed to look into these aspects of the matter.
During the pendency of the writ Appeal on 19-6-1996, we passed the following order:
The writ petition is pending before this Court since 1994 and the death took place as long back on 15-11-1993. Under these circumstances, we
are of the view that the interests of justice would suffer if the petitioners are directed to go to Civil Court as per the view taken by the learned single
Judge for claiming damages. It would be in the interests of justice to appoint an arbitrator to determine the compensation payable. Both sides have
also agreed. Both sides have also agreed that a retired District Judge may be appointed to determine the compensation and pass appropriate
award and submit the same to this Court. In a similar matter in W.A. No. 1049 of 1994 (reported in S. Dhanaveni and others Vs. State of Tamil
Nadu and others, we have today appointed a retired District Judge as Arbitrator. In this case also, both sides agree that the very same retired
District Judge Shri K.R. Gururajan may be appointed as Arbitrator. In view of this submission made by both sides, we appoint Mr, K. R.
Gururajan, retired District Judge as Arbitrator to decide the case of the petitioners pleaded in W.P. No. 11576 of 1994.....
The next question is as to whether we should award interim compensation as prayed for in C.M.P. No. 15035 of 1994. As the claim is disputed
by the respondents, we do not intend to go inlo the merits of the case. The son of the petitioners died, according to ihe records, due to
electrocution he suffered in the public road due to falling of the live wire. The post-mortem certificate, first information report and the investigation
report of the police authorities speak for it.....
We, therefore, keeping open the claim to be decided in accordance with law and following the ruling of t,he Supreme Court reported in Smt.
Kumari Vs. State of Tamil Nadu and others, , and taking into consideration of all the records and the fact that the appellants require money for
their sustenance and also to pursue the proceedings and the circumstances under which their son died, directed the Chairman, Tamil Nadu
Electricity Board, to pay a sum of Rs. 50,000/- to the appellants by way of interim compensation. We made it clear that in the event the award of
the Arbitrator is accepted by this Court and if the Electricity Board is found liable, the amount that was ordered to be paid as interim compensation
will be deducted from the amount payable.
Though the appellants claimed a sum of Rs. 15 lakhs in the writ petition by way of compensation, they restricted their claim to Rs. 7.50 lakhs.
The appellants claimed compensation before the Arbitrator as follows:
____________________________________________________________________________________________
a) Compensation for mental pain and suffering Rs. 1,00,000-00
b) Compensation for the loss of love and affection
and the comfort of expectation of their eldest
son''s support Rs. 1,50000-00
c) Compensation for the loss of monetary support
that would have been contributed by their eldest
son Rs. 5,00,000-00
____________________________
Total Rs. 7,50,000-00
____________________________________________________________________________________________
The deceased Suryaprakash and his brother Chandraprakash left their home in Srinivasa Nagar Extension, Koyambedu, at about 1.45 p.m., on
15-11-1993 on a bycle to their father''s office-cum-shop to relieve him to go home for lunch. It was raining heavily. Chandraprakash was riding
the bycle while Suryaprakash was sitting in the rear carrier holding an open umbrella as a protection against rain. Electric overhead lines are running
across the road in the scene of occurrence. When Suraprakash and Chandraprakash reached the scene of occurrence, the live overhead electric
wire running across the road in that place snapped and fell on Suryaprakash, who was sitting in the rear carrier of the cycle. He fell down on the
road from the bycle. The electric line was found lying across the chest of Suryaprakash, who was lying on the road. He was taken by
Chandraprakash in an auto-rickshaw to the office-cum-shop of the 2nd appellant from where he was taken to Devi Hospital, Anna Nagar,
Madras soon thereafter, where he was declared dead. The 2nd appellant made a complaint at 5.30 p.m., on the same day to Madhuravoyal Police
Station. Ex. P-1 is the copy of the First Information Report. Autopsy was conducted on the dead body of Suryaprakash on 16-11-1993. Ex. P-2
is the post-mortem certificate which reveals that the death was due to electrocution.
According to the appellants, Suryaprakash who was 21 years on the date of death had good health and a bright business potential at that time
and was assisting his father/2nd appellant, who was running a flourishing business, and that he was in a position to earn a minimum of Rs. 3,000/-
per month for the work he was doing. The appellants also alleged that the deceased had a bright furture. According to them, the Electricity Board
was negligent inasmuch as it had not put up cradles and had placed the electric poles farther from each other and further, the Electricity
Department had not provided appropriate safety and security measures and had not taken necessary precautions which they are in law bound to
take. Alleging negligence on the pan of the Electricity Board, the appellants filed the writ petition, which was dismissed by the learned single Judge
at the admission stage itself. Thereupon, they filed the present Writ Appeal.
The Electricity Board filed a counter-affidavit before the Arbitrator. It is stated in the counter affidavit that the overhead lines, i.e., conductors
are maintained properly but that the line fell down due to cyclonic effect and heavy wind and rain and that this is a natural calamity beyond human
control. It is also contended that the snapping off of the conductor in question was not due to any wear and tear but was on account of heavy rain
and cyclonic wind and it is purely an act of God. They pleaded that the accident was not due to their negligence and that the accident could have
been avoided had the victim been careful. The accident had occurred during cyclone and a heavy rainy day when one is expected not to move
from his place. They also pleaded that the appellants are eligible only for Rs. 10,000/- under orders of the Tamil Nadu Electricity Board dated 14-
6-1989 as compensation for the death of non-departmental persons due to electrocution. Lastly they allege that the compensation claimed by the
appellants is excessive and arbitrary.
The Arbitrator Mr. K. R. Gururajan held 14 sittings commencing from 12-7-1996 to 15-10-1996 to conduct (he arbitration proceedings
pursuant to our order. On the side of the appellants, Exs. P-1 to P-18 were marked and on the side of the Electricity Board Exs. D-1 to D-4 were
marked. The 2nd appellant examined himself as P.W. 1 and his son T. Chandraprakash as P.W. 3 while his auditor was examined as P.W. 2. One
Junior Engineer by name Madhavan was examined as R. W. 1 on the side of the Electricity Board.
On a consideration of the entire materials placed before him. both oral and documentary, the learned Arbitrator held that the death of
Suryaprakash had occurred due to the overhead electric line having snapped and fallen on Suryaprakash in the circumstances narrated by P.W. 3,
and that this was due to the negligence on the part of the Electricity Board as it had not maintained the electric system properly. He further held that
there has been violation of Rule 91(1) of the Indian Electricity Rules by the Tamil Nadu Electricity Board and that therefore, the 2nd respondent
should pay compensation to the appellants for the death of Suryaprakash. The learned Arbitrator has also rejected the contention of the Electricity
Board that it was an unexpected incident due to rain and wind and that snapping off of an electric ling was an act of God. Coming to the question
of compensation, the learned Arbitrator, relying on the evidence of P.W. 2, a Chartered Accountant and that of P.W. 1 and Exs. P-7 to P-18,
held that the deceased Suryaprakash was earning Rs. 3,000/- per month and that his average gross monthly income over his entire future career
can be worked out as an average between Rs. 3,000/- and Rs. 5,000/- per month, which comes to Rs. 4,000/-per month had he not died in this
accident. The learned Arbitrator had also adopted a multiplier of 12 years and deducted 1/3rd of the monthly income for meeting his personal
expenses and his other personal liabilities. For 12 years, the Arbitrator has fixed the compensation as Rs. 4,000-00 x 2/3 x 12 months x 12 years,
which is equal to Rs. 3.84,000/-. A sum of Rs. 15,000/- towards damages for the loss of company of the deceased to the appellants and the loss
of estate was added by the Arbitrator. In all. the Arbitrator has awarded a compensation of Rs. 3,99,000/- with 12% per annum from the date of
the filing of the writ petition till realisation. He has also directed to give credit to the sum of Rs. 50,000/- which was paid as interim compensation
and directed respondents 2 and 3 to pay the balance to the appellants.
The Arbitrator signed the award on 2-11-1996 and filed the same in this Court. He also filed a memo dated 13-2-1997 stating that out of the
sum of Rs. 5,000/- deposited into this Court by the 2nd respondent, he withdrew a sum of Rs. 4,000/- and after spending Rs. 3,672-50 towards
his incidental expenses, he deposited the balance of Rs. 327-50 in this Court on 5-11-1996. He also prayed that his remuneration may be fixed for
the services rendered.
The Electricity Board filed C.M.P. No. 17986 of 1996 to set aside the award of the Arbitrator dated 2-11-1996 while the appellants filed
C.M.P. No. 1548 of 1997 to pass an order in terms of the award passed by the Arbitrator.
According to the appellants, the Arbitrator after taking elaborate evidence and after considering the claim of both sides has passed the award
on 2-11-1996 and therefore this Court should make the award as an order of Court.
Per contra, it is alleged by the Electricity Board in the affidavit filed in support of C. M. P. No. 17986 of 1996 that the accident had occurred
due to cyclone and heavy rain, which is purely an act of God. When this is a natural calamity beyond the control of human power, award of
compensation is unsustainable. It is also contended that there is no eye witness to establish that the overhead wire snapped and fell on the
deceased and that thereafter he fell down on the road. It is further urged that the Arbitrator has failed to give due credence to the evidence of R.W.
1 that the cradle is provided for high tension and not for electric lines which are only low tension. The award of the Arbitrator was also challenged
on various other grounds mentioned in the affidavit apart from questioning the quantum of compensation, which, according to the Electricity Board,
is excessive and arbitrary.
By consent of both parties, the Writ Appeal and C. M. P. Nos. 17986 of 1996 and 1548 of 1997 were heard together. We have heard the
arguments of the learned counsel on either side and perused the impugned order award of the Arbitrator and the evidence produced before the
Arbitrator, both oral and documentary.
In our considered opinion, the learned Arbitrator has passed the award in question on a consideration of the entire materials placed before him
and that the conclusion arrived at by the learned Arbitrator in fixing the responsibility of negligence on the part of the Electricity Board and also
awarding compensation, is unassailable. We have the evidence of P.W. 3, who accompanied the deceased on 15-11-1993 on the bicycle when
the occurrence took place. He has clearly narrated as to how the occurrence took place. P.W. I is the 2nd appellant. P.W. 2is the auditor of the
2nd appellant. He has spoken about the financial status of Prakash Electricals and the earnings of the deceased according to the account books of
that concern. P.W. 3 is an eye witness to the occurrence. His evidence shows that he and his elder brother Suryaprakash left their home at about
1-45 p.m., on a bicycle towards their father''s shop, which is about half a kilometre away from their house. P.W. 3 was riding the bicycle and
Suryaprakash was silting in the rear carrier holding an open umbrella as a protection against the heavy rain. When they reached the scene of
occurrence, P.W. 3 heard Suryaprakash shouting as ""Amma"". P.W. 3 fell down forward from the cycle and rose up and found Suryaprakash lying
flat on his back on the road. He found the overhead electric line snapped and was lying across the body of Suryaprakash across the road. P.W.
3''s evidence shows that when he attempted to remove that wire, people nearby prevented him from doing so saying that something untoward will
happen to him. That wire was removed by using a PVC pipe which was brought by persons standing nearby. Suryaprakash was unconscious.
P.W. 3 took him in an auto-rickshaw to his father''s shop and narrated the event to his father, P.W. 1. They took Suryaprakash immediately to the
hospital where the doctor examined and declared him dead. The evidence of P.W. 3 shows that the place of occurrence is the road, which is
about 175 feet from his house, and that the electric wire which had fallen on the body of Suryaprakash, is the overhead electric line which runs
across the road in the scene of occurrence. This line is also shown in Ex. D-1, the rough sketch of the scene of occurrence produced by the
Electricity Board.
The evidence of R.W. 1, the then Junior Engineer of the Tamil Nadu Electricity Board, shows that the scene of occurrence is the road junction
of Srinivasa Nagar Main Road, which runs north to south, and Mangamma Thope Street, which runs east to west shown in that rough sketch Ex.
D-1. P.W. I made a complaint at the Police Station at Madhuravoyal at 5.30 P.M., on the same day and the police registered a case under Ex, P-
A perusal of Ex. P-1 will go to show that while Suryaprakash and P.W. 3 were on their way to P. W. 1''s office at 2-00 P.M., on a bicycle, a
live overhead line of the Tamil Nadu Electricity Board was cut off on account of heavy wind and rain and fell on Suryaprakash, who was sitting on
the rear carrier of the bicycle, that Suryaprakash was electrocuted on the spot itself and that he was thereafter taken to Devi Hospital, Anna
Nagar, where he was declared dead. The incident, as narrated by P.W. 3 has been substantially set out in the F.I.R. Ex. P-1, which was registered
by the police on the complaint given by P.W. 1 without any delay.
Ex. P-2 is the post-mortem certificate, which mentions the age of the deceased as 21 years and that the body was well nourished. The post-
mortem records the opinion that the deceased would appear to have died due to the effects of electrocution. Ex. P-3 is the copy of the inquest
report prepared by the police on the dead body of Suryaprakash. It records a case of death by electrocution. Ex. P-4 is the copy of the death
report made by the police about the death of Suryaprakash giving the cause of death as electrocution. Ex. P-6 is the notice issued by the appellants
through their advocate setting out the incident as now alleged by them.
R.W. 1, the then Junior Engineer deposed that on his coming to the scene of occurrence, he heard from the people standing there that the
person who was sitting in the rear carrier of the bicycle touched the electric wire playfully with an umbrella resulting in the accident. This evidence
of R.W. 1, in our opinion, is not only hearsay but also a clear after thought as there is no mention of this in the counter affidavit filed by the
Electricity Board before the Arbitrator. R.W. 1 alsodoes not give the names of the persons who told him so. His version about what he heard
about the manner in which Suryaprakash sustained the shock is also opposed to the post-mortem certificate Ex. P-2, which shows electric burn
injuries over the front side of the chest of the deceased, which only supports the evidence of P. W. 3 about the manner in which the incident took
place. We are, therefore, unable t''o accept the evidence of R.W. 1.
On an appraisal of the evidence of P.Ws. 1 to 3 and R. W. 1, it is manifest that the Electricity Board had not maintained the fuse mechanism
properly and had it been maintained properly, the death of Suryaprakash could have been avoided as the fuse would have been blown off
automatically on the snapped electric overhead conductor falling on him and getting earthed through his body when he was lying on the ground. We
are unable to accept the contention of the learned counsel for the Electricity Board that respondents 2 and 3 had taken the necessary precautions
and that the death of Suryaprakash by electrocution could not have occurred due to the snapping wire falling on him. R.W. 1 had not witnessed the
occurrence nor the respondents examined members of the public to show as to how the occurrence had taken place if it was not as categorically
spoken to by P.W. 3. The snapping of the electric line is not disputed by respondents 2 and 3 in the counter affidavit filled before the Arbitrator.
The fact that the conductor/live wire had snapped shows its negligent maintenance by the Tamil Nadu Electricity Board. We are also unable to
accept the contention of the learned counsel for the Electricity Board that it was an unexpected incident due to rain and wind and that the snapping
of the electric line was an Act of God. We are further unable to appreciate the contention of the learned counsel for the Electricity Board that the
death of Suryaprakash took place only due to the negligence of Suryaprakash in his leaving the home that day in the rain and wind. We are of the
view that the death of Suryaprakash had occurred due to the overhead electric line having snapped and falling on him in the circumstances narrated
by P.W. 3 and it was due to the negligence on the part of the Electricity Board as it has not maintained the electric system properly. Therefore, we
hold that respondents 2 and 3 are responsible for the death of Suryaprakash and that they are liable to pay compensation.
On the question of compensation, we are inclined to agree with the opinion expressed by the learned Arbitrator. The learned Arbitrator, on an
appreciation of the evidence of P.W. 2, a Chartered Accountant, and Exs. P-7 to P-18, came to the conclusion that the deceased was capable of
earning Rs. 3,000/ - per month at the time of the accident. There is ample evidence to show that he was capable of earning that amount during that
time. It is also likely that he would have lived upto 60 years and more but for his untimely death. He would have earned substantially in this
business or in any other avocation. It is also likely that his earnings could have gone up to Rs. 5,000/- per month in due course but for his untimely
death. Therefore, his average monthly income can be worked out easily between Rs.3,000/- and Rs. 5,000/-, which comes to Rs. 4,000/-. Had
he not died, his parents would have had the benefits of his earnings. We are also of the view that the learned Arbitrator has applied the multiplier of
12 years rightly.
Considering the entire evidence and all the circumstances and also keeping in view the future uncertainties and in the light of the principles laid
down in the rulings of the Supreme Court and of this Court, a deduction of 1/3rd of the monthly income of the deceased will have to be made for
meeting his personal expenses and other personal liabilities. Therefore, for 12 years, the income would have been Rs, 3,84,000/- i. e., Rs. 4,000-
00 x 2/3 x 12 months x 12 years Rs. 3,84,000/-. A sum of Rs. 15,000/- towards damages for the loss of company of the deceased to the
appellants and the loss of estate has to be added to Rs. 3,84,000/-. Therefore, the total compensation amount awardable to the appellants would
come to Rs. 3,99,000/-, which we consider is the just, proper and reasonable compensation to be awarded to the appellants for the untimely
death of their son Suryaprakash in the accident. The learned Arbitrator has rightly awarded so and we confirm his finding in this regard. The
interest at 12% per annum awarded by the Arbitrator, in our opinion, is just and proper considering the interest charged by the banks and other
financial institutions. Therefore, we hold that the appellants would be entitled to a compensation of.Rs. 3,99,000/- together with interest at 12%
per annum from the date of the filing of the writ petition till realisation. Respondents 2 and 3 shall pay the said sum to the appel- lants after
deducting a sum of Rs. 50,000/-paid by way of interim compensation.
The respondents have not alleged any misconduct or irregularity in the proceedings of the Arbitrator. They have only alleged that the Arbitrator
has not appreciated the evidence properly and that the award passed is excessive. It is settled law that a Court while examining the objections
taken to an award filed by an Arbitrator is not required to examine the correctness of the claim on merits. The scope of interference is very limited.
The Court cannot sit in appeal over the views of the Arbitrator by re-examining and re-assessing the materials. The scope of setting aside the
award is limited to the ground available under the Arbitration Act, which has been well defined by a long line of decided cases and none of them
was available in the case on hand. Therefore, it is not open to us to re-appraise the evidence. As already seen, the negligence on the part of the
Electricity Board has been clearly established beyond any doubt and therefore the Electricity Board is liable to pay compensation to the appellants.
It is not the case of respondents 2 and 3 that the Arbitrator has acted beyond the terms of reference and as such, the award is liable to be set
aside. In the instant case, the Arbitrator was appointed by consent of both parties and they are bound by the decision of their own Tribunal. Where
there has been no mistake as to jurisdiction and no mistake apparent on the face of the award, this Court will always refuse to set aside the award.
It has not been shown to us that there was any misconduct on the part of the Arbitrator. On the facts of the case and from the records, there is no
mistake of law apparent on the face of the award resulting in mis-carriage of justice or of nullity. Therefore, we decline to set aside the award as
prayed for by respondents 2 and 3.
For the fore-going reasons, we allow the Writ Appeal and CM.P. No. 1548 of 1997 and set aside the order of the learned single judge under
appeal, and dismiss C.M.P. No. 17986 of 1996 filed by the Electricity Board to set aside the award. Consequently, there will be a decree and/or
order, or award in favour of the appellants for Rs. 3,99,000/-together with interest at 12% per annum from the date of the filing of the writ petition
till the date of realisation. However, the interest has to be calculated on the entire amount upto the date of payment of Rs. 50,000/- and on the
balance of the amount after deducting a sum of Rs. 50,000/- from the date the said sum of Rs. 50,000/- was paid and the Electricity
Board/respondents 2 and 3 has to pay the said sum after deducting Rs. 50,000/- paid by them to the appellants by way of interim compensation.
There will be no order as to costs. Time for deposit in this Court till 24-3-1997.
The Arbitrator has not been paid any fees except providing some money for incidental expenses. The Arbitrator has filed a memo. He held 14
sittings. Taking into consideration of the time consumed, stake of the claim and the work turned out by the Arbitrator, a sum of Rs. 10,000/-
(Rupees ten thousand only) can be fixed by way of remuneration to the Arbitrator. Respondent 2 and 3/ Electricity Board shall pay the said sum of
Rs. 10,000/- to the Arbitrator within four weeks from to-day by means of demand draft drawn in the name of the Arbitrator and payable at
Madras.
Order accordingly.