M.P. Electricity Board v Shail Kumari (2002)

This is the short, decisive Indian authority on strict liability for the escape of electricity, and it is the case that shows how narrow the "act of a stranger" exception really is.

Two things make it valuable for this Unit. First, the judgment states the distinction between negligence and strict liability in a form that can be reproduced almost verbatim: negligence assumes that foreseeable harm could have been avoided by reasonable precautions, so a defendant who took every precaution escapes; strict liability holds the defendant liable whether or not precautions could have avoided the harm. Secondly, the Court refuses to let a public utility hide behind the wrongdoing of a third party. The Board's whole case was that a thief had tapped its line; the Court's answer is that preventing precisely that is what the Board is there to do.

The opening sentence of the judgment tells you where it is going: "The supplier of electricity in a locality is striving to squirm out of the liability to compensate the dependants of the sole victim of a snap electrocution."

Jogendra Singh, a workman in a factory, aged 37, was riding a bicycle on the night of 23 August 1997 while returning from his factory. It had rained and the road was partially inundated with water. "The disaster was lying on the road in the form of a live electric wire."

The cyclist did not notice the live wire. He rode over it; the wire, in the Court's phrase, twitched and snatched him, and he was instantaneously electrocuted. He fell and died within minutes.

His widow and minor son brought an action for compensation. Nobody disputed that he died at the place and time alleged, or that he was electrocuted by the live wire lying on the road.

The Board's defence was that one Hari Gaikwad (the third respondent) had drawn a wire from the main supply line in order to siphon energy for his own use; that this pilferage was done clandestinely and without the Board's notice; and that the line got unfastened from the hook and fell on the road, where the deceased's cycle came upon it. The Board's submission was that the wrongdoer alone should be mulcted with the burden of damages.

The third respondent for his part disclaimed liability, repudiated the allegation of pilferage and disowned having taken the line from the main supply wire.

The claim was for Rs. 6.9 lakhs. The trial court assessed the compensation to which the claimants were entitled at Rs. 4.34 lakhs, but non-suited them altogether, solely on the premise that the claimants "failed to prove who was liable for the above compensation".

A Division Bench of the High Court of Madhya Pradesh allowed the claimants' appeal and directed the Board to pay Rs. 4.34 lakhs. Its reasoning, set out in the judgment, was that the Board had itself stated in a document on record that it kept staff to see that no pilferage of electricity took place and that it had no knowledge of this pilferage by Hari Gaikwad; from which it became clear that the supply line was running in that part of the area, out of which the wire was hanging — and whether or not Hari Gaikwad had put it there, "it was live electricity wire and when the deceased came in contact with it he died of electrocution." The defences of the Board were held to be without any basis.

The Board appealed. So clear did the Court find the matter that it dispensed with service of notice on the respondents and decided the appeal after hearing the Board's counsel alone.

The Court began with the statutory responsibility. It was admitted that the responsibility to supply electric energy in the locality was statutorily conferred on the Board. From that it follows that if the energy transmitted causes injury or death to a human being who gets unknowingly trapped into it, the primary liability to compensate the sufferer is that of the supplier.

Then the duty is stated: "So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril."

And the defence is rejected on its own terms: "It is no defence on the part of the management of the Board that somebody committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is the look out of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps."

The Court then went further, and made the holding independent of any finding of fault: even assuming that all such measures had been adopted, "a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts 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 the liability is the foreseeable risk inherent in the very nature of the activity.

The distinction from negligence is drawn expressly. The concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions; so if the defendant did all that could be done to avoid the harm, he cannot be held liable in an action founded on negligence. That consideration is simply not relevant in cases of strict liability, where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.

The doctrine is traced to Rylands v Fletcher, quoting Blackburn J: "The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does so he is prima facie answerable for all the damage which is the natural consequence of its escape."

The Court noted that seven exceptions to the doctrine have been formulated by case law, and took up only the one relied on: "Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply". It recorded that the rule has been approved and followed in many later English decisions, a recent recognition being Cambridge Water Co. Ltd v Eastern Countries Leather plc (1994) 1 All E.R. (HL) 53; and that the principle has gained approval in India, decisions of the High Courts being a legion to that effect. A Constitution Bench in Charan Lal Sahu v Union of India [1990] 1 SCC 613 and a Division Bench in Gujarat State Road Transport Corpn. v Ramanbhai Prabhatbhai [1987] 3 SCC 234 had followed Rylands v Fletcher with approval, and a two-Judge Bench had reiterated the principle in Kaushnuma Begum v New India Assurance Co. Ltd [2001] 2 SCC 9.

Finally the Court recalled that in M.C. Mehta v Union of India [1987] 1 SCC 395 it had gone even beyond strict liability, holding that "where an enterprise is engaged in a hazardous or inherently dangerous activity" and harm is caused to anyone on account of an accident in the operation of such activity, "the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands v. Fletcher".

The exception was held unavailable because the act attributed to the third respondent should reasonably have been anticipated, or at any rate its consequences should have been prevented by the Board. That is the pivot of the case: the exception protects against the unforeseeable act of a stranger, and the pilferage of electricity by tapping a supply line is not unforeseeable — the Board's own document showed it kept staff precisely to prevent it.

Two authorities are used to make the point. In Northwestern Utilities Ltd v London Guarantee and Accident Co. Ltd (1936) AC 108, a hotel was destroyed by fire caused by the escape and ignition of natural gas which had percolated into the basement from a fractured welded joint in the defendant utility company's main below the street; the fracture had been caused during underground work by a third party. The Privy Council repelled the defence, holding that the risk involved in the operation undertaken was so great that a high degree of care was expected, the defendant having had to appreciate the possibility of such a leakage. In Quebec Railway, Light, Heat and Power Co. Ltd v Vandry (1920) AC 662, the Privy Council held that a company supplying electricity is liable for the damage without proof that it had been negligent, and rejected even the defence that the cables were disrupted by a violent wind and high tension current found its way through the low tension cable into the respondents' premises.

The Court distinguished W.B. State Electricity Board v Sachin Banerjee [1999] 9 SCC 21, where the Board had likewise pleaded illegal hooking for pilferage: there the Court had said the Board could not be held negligent on that fact situation, but the question of strict liability was not taken up in that case. The conclusion follows: "merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding the live wire lying on the road."

"In the light of the above discussion we do not think that the Board has any reasonable prospect of succeeding in this appeal." The appeal was dismissed, without even issuing notice to the respondents. The High Court's direction to the Board to pay the widow and minor son Rs. 4.34 lakhs stood.