s

BEFORE THE HON’BLE HIGH COURT OF

KERALA
ORIGINAL WRIT JURISDICTION
W.P. (CIVIL) NO.__________OF2021
UNDER ARTICLE 226 OF CONSTITUTION OF
INDIA

MATHEW-----------------------------PETITIONER
V.
KSEB -----------------------------RESPONDENT

ON SUBMISSION TO THE REGISTRY OF THE

COURT OF HON’BLE HIGH COURT OF KERALA

MEMORIAL FOR PETITIONER –MATHEW

TABLE OF CONTENTS
1
SI.NO CONTENTS PAGE NO.

1 LIST OF ABBREVIATION 3
2 INDEX OF AUTHORITYS 4
3 BOOKS 6
4 LEGAL DATABASES 7
5 LEGISLATIONS 8
6 WEBSITES 9
7 STATEMENT OF JURISDICTION 10
8 STATEMENTS OF FACTS
9 STATEMENT OF ISSUES 10
10 SUMMARY OF ARGUMENTS
11 WHETHER THE FIELD BY THE PETITIONER IS 11
MAINTAINABLE
12
WHETHER THE WRIT PETITION FILED IS MAINTABLE
12 13
BEFORE HIGH COURT
13 14
THE WRIT IS INDEPENDENT OF EXISTING ALTERNATIVE
REMEDIES 16
14 WRIT PETITION IS MAINTAINABLE WHEN THERE IS 17
INFRINGEMENT OF FUNDAMENTAL RIGHTS

WHETHER THERE IS A NEGLIGENCE ON THE PART OF KSEB

15
WHETHER KSEB IS DUTY BOUND
16
WHETHER THERE IS BREACH OF DUTY
17

SI.NO
CONTENTS PAGE.NO

2
18 WHETHER KSEB IS STRICTLY LIABLE
19 WHETHER 226 CAN BE INVOKED IN CASE OF STRICT
LIABILITY

20 WHETHER KSEB IS LIABLE TO PAY COMPENSATION

21 QUANTUM OF COMPENSATION

22 PRAYER

3
 LIST OF ABBREVIATIONS

AIR ALL INDIA REPORTER

Art ARTICLE

Ed. EDITION

KSEB KERALA STATE ELECTRICITY BOARD

UOI UNION OF INDIA

SCC SUPREME COURT CASES

SC SUPREME COURT

MP MADHYAPRADESH

UP UTTARPRADESH

& AND

SEC SECTION

4
OTHR OTHERS

INDEX OF AUTHORITIES

CASES
1. CK.SUBRAMANIA LYER V KUNHIKUTTAN NAIR
2. CK.SUBRAMANIA LYER V KUNHIKUTTAN NAIR
3. H.S.E.B. VS.RAM NATH [(2004)5 SCC 793] AND M.P.ELECTRICITY
BOARD VS.SHAIL KUMAR [(2002) 2 SCC 162]
4. IN NILABATI BEHERA V. STATE OF ORISSA
5. KERALA STATE ELECTRICITY BOARD V.KAMALAKSHY AMMA
6. KHATRI ) V. STATE OF BIHAR
7. LIC OF INDIA V.ESCORTS LTD
8. M.P ELECTRICITY BOARD VS. SHAIL KUMAR [ 2002 (1) KLT 480
(SC)
9. MAHARAJ V. ATTORNEY GENERAL OF TRINIDAD AND TOBAGO
10.MP.STATE ELECTRICITY BOARD V. SHAIL KUMARI & ORS.

11.MRS.S.MANJULA V CHIEF SECRETARY COURT OF T.N.

12.MS.GREWAL V DEEPCHAND SOOD
13.P.S LOGANATHAN & OTHERS V. DISTRICT INSURANCE OFFICER
& ANOTHER
14.RAMAN VS.UTTAR HARYANA BIJLI VITRAN NIGAM LIMITED
AND OTHERS
15.RAMAN VS.UTTAR HARYANA BIJLI VITRAN NIGAM LIMITED
AND OTHERS

5
 16.RYLAND V.FLECTCHER(1868).
17.SH.KAMAL SINGH V. BSES RAJDHANI POWER LTD,
18.V IN REGD SOCIETY V.UOI,
19.V PARVATI DEVI&ORS. V. COMMISIONER OF POLICE ,DELHI &
ORS.,
20.V YASH PAL (MINOR) & ANR V. STATE OF UP
21.VARGHESE VS.KERALA STATE ELECTRICITY BOARD

BOOKS
1.PANDEY,THELAW OF CONSTITUTION,CENTRAL LAW AGENCY,

2.TAKWANI,CIVIL PROCEDURE CODE,EBC.

3.DR.R.K .BANGIA,LAW OF TORTS,ALLAHABAD LAW AGENCY.

LEGAL DATABASES
1.MANUPATRA

2.SCC ONLINE

3.HEIN ONLINE

LEGISLATIONS
1.THE INDIAN CONSTITUTION ,1950

2.THE INDIAN ELECTRICITY RULES

3.CIVIL PROCEDURE CODE

WEBSITES
1WWW..INDIAN KANOON.IN

2.WWW.LEGAL SERVICES.IN

6
 STATEMENT OF JURISDICTION

The petitioner humbly submits this memorandum for the petition filed before the Honourable
court .The petition invokes its writ jurisdiction under Art.226 of the constitution of India. It sets
forth the facts and the laws on which the claims are based

7
 STATEMENTS OF FACTS

I. Mathew is a poor and illiterate cultivate of 65 years. His family consisted of his wife
three sons and one daughter and he used to earn the livelihood at the family by cultivation
with the help of his sons. His 2 major sons Jacob and Joseph were maintaining the family
by doing cultivation works and some timber business.
II. After a heavy storm on 23.8.2018 at about 10.am when Joseph was proceeding towards
paddy field along with others he was suddenly electrocuted in a domestic power line part
which was crested on the heart of their village and he died in a split of moment. It was
alleged that the electric post from which Joseph was electrocuted was erected in the heart
of the village and prior to this incident some domestic animals were electrocuted from the
same electric post and this fact was brought to the notice of the authorities. But the
authorities turned a deaf ear to the complaints that were made by the village head man.
III. Mathew submitted a complaint to the office in charge of the police station alleging that
the death was caused due to negligence of KSEB. On the basis of this complaint a case
has been registered and the post mortem examination confirm that the death was due to
electrocution. Thereafter Mathew submitted an application to the Executive Engineer of
Electricity Board for payment of ex-gratia compensation to the bereaved family. But he
did not get any favourable response. So he approached the Hon’ble Minister (power) and
also the local MLA. But even though the Executive Engineer assured the petitioners that
he would get some ex-gratia payment as compensation and that his eldest son Jacob
would be given a job, the Engineer neither paid any amount as ex-gratia nor offered any
job to the eldest son. So ultimately he approached the Kerala High Court for the reliefs
through an application under Art. 226 for issuance of a writ of mandamus directing the
KSEB to pay him a sum of Rs. 5,00,000 as compensation for the tragic death of his 20yrs
old son on 23.8.2018.

8
 STATEMENT OF ISSUES

ISSUE1:WHETHER THE WRIT FILED BY PETITIONER IS

MAINTAINABLE?
ISSUE2:WHETHER THERE IS A NEGLIGENCE ON THE PART
OF KSEB?
ISSUE3:WHETHER KSEB IS STRICTLY LIABLE?
ISSUE4:WHETHER KSEB IS LIABLE TO PAY THE
COMPENSATION?

9
 SUMMARY OF ARGUMENTS
ISSUE1
WHETHER THE WRIT FILED BY PETITIONER IS
MAINTAINABLE
The writ petition filed by the petitioner against the KSEB is maintainable, as its independent of
any alternative remedy. Further there is infringement of fundamental rights and therefore the
petitioners writ petition under Art 226 is maintainable.

ISSUE2
WHETHER THERE IS A NEGLIGENCE ON THE PART OF
KSEB

It is humbly submitted before the Hon’ble court that there is a negligence on the part of the KSEB.
Joseph (The deceased) proceeding towards paddy field along with others he was suddenly electrocuted
in a domestic power line part which was crested on the heart of their village.The village head man
already informed the authority about the power line part ,but the authority turned a deaf ear.

ISSUE3
WHETHER KSEB IS STRICTLY LIABLE
The strict liability principle also called the “NO FAULT liability”principle.This is contradictory
to the general principle of negligence in torts where the person can be held liable for
commission of the torts.Circumstantial evidences prove that KSEB is strictly liable.

ISSUE4

10
 WHETHER KSEB IS LIABLE TO PAY THE COMPENSATION
KSEB is strictly liable for injury sustained by petitioner and family.The authorities have not
taken effective steps to provide safety measures by installing safety devices as contemplated
under Rule 91 of Indian Electricity Rules, 1956.The respondents are liable to pay adequate
compensation to family of victim

1.WHETHER THE WRIT PETITION FILED IS

MAINTABLE BEFORE HIGH COURT
The writ petition filed by the petitioner against the KSEB is maintainable, as its independent of
any alternative remedy. Further there is infringement of fundamental rights and therefore the
petitioners writ petition under Art 226 is maintainable.

A.THE WRIT IS INDEPENDENT OF

EXISTING ALTERNATIVE REMEDIES
The existence of an alternative remedy, whether adequate or not does not alter the
fundamentally. Discrectionary nature of High Court writ jurisdiction and therefore doesnot create
an absolute legalbar on the exercise of writ jurisdiction.

Mandamus is not refused on the ground that there is an adequate alternate remedy where the
petitioner complains that his fundamental right is infringed. The courts are duty bound to protect
the fundamental rights and therefore mandamus is issued. It is only when mandamus is issued
"for any other purpose" that the existence of an alternate remedy bars its issuance.Mandamus
will not, however, be refused when ordinary civil proceedings or administrative appeals or
revision do not provide an equally effective and convenient remedy. if the alternative remedy
imposes a heavy financial burden on the petitioner, it will not be regarded as a ground for
refusing mandamus

Writ of Mandamus is issued on the following grounds:

 The petitioner has a legal right

 The legal right of the petitioner has been infringed
 The infringement of the petitioner has been infringed due to non-performance of duty by
the public authority
 The petitioner has demanded the performance of legal duty by the authority and the
authority refused to act.
 There has been no other effective alternate legal remedy

11
In All India Tea Trading Co. v. S.D.O. (AIR 1962 Ass 20) case, the Land Acquisition Officer
erroneously refused to pay the interest on compensation amount. A writ of mandamus was issued
against the Land Acquisition Officer directing him to reconsider the application for the payment
of interest.

B.WRIT PETITION IS MAINTAINABLE WHEN

THERE IS INFRINGEMENT OF FUNDAMENTAL
RIGHTS
A question regarding the awarding of monetary compensation through writ jurisdiction was first
raised before the Supreme Court in Khatri v. State of Bihar In this case, Bhagwati, J. observed:

"Why should the court not be prepared to forge new tools and devise new remedies for the
purpose of vindicating the most precious of the precious fundamental right to life and personal
liberty." Regarding the liability of the State to pay compensation for infringing Article 21, the
Court answered in the affirmative saying that if it were not so, Article 21 will be denuded of its
significant content. The Court further observed that where there are issues of the gravest
constitutional importance involving as they do the exploration of a new dimension of the right to
life and personal liberty, it has to lay down the correct implications of the constitutional right in
Article 21 in the light of the dynamic constitutional jurisprudence, which the Court is evolving.

In Maharaj v. Attorney General of Trinidad and Tobago the Privy Council while interpreting
Section 6 of the Constitution of Trinidad and Tobago held that though not expressly provided
therein, it permitted an order for monetary compensation, by way of redress for contravention of
the basic human rights and fundamental freedoms.

In Nilabati Behera v. State of Orissa the Supreme Court observed:

"It may be mentioned straight away that award of compensation in a proceeding under Article 32
by this Court or by the High Court under Article 226 of the Constitution is a remedy available in
public law, based on strict liability for contravention of fundamental rights to which the principle
of sovereign immunity does not apply, even though it may be available as a defence in private
law in an action based on tort. it is sufficient to say that the decision of this Court in Kasturi Lal
upholding the State's plea of sovereign immunity for tortious acts of its servants is confined to
the sphere of liability in tort, which is distinct from the State's liability for contravention of
fundamental rights to which the doctrine of sovereign immunity has no application in the
constitutional scheme, and is no defence to the constitutional remedy under Articles 32 and 226
of the Constitution which enables award of compensation for contravention of fundamental

12
rights, when the only practicable mode of enforcement of the fundamental rights can be the
award of compensation

In All India Tea Trading Co. v. S.D.O. (AIR 1962 Ass 20) case, the Land Acquisition Officer
erroneously refused to pay the interest on compensation amount. A writ of mandamus was issued
against the Land Acquisition Officer directing him to reconsider the application for the payment
of interest.

2.WHETHER THERE IS A NEGLIGENCE ON

THE PART OF KSEB?
It is humbly submitted before the Hon’ble court that there is a negligence on the part of the
KSEB. Joseph (The deceased) proceeding towards paddy field along with others he was
suddenly electrocuted in a domestic power line part which was crested on the heart of their
village.The village head man already informed the authority about the power line part ,but the
authority turned a deaf ear to the complaints. Prior to death of Joseph ,some domestic animals
died due to this power line.There is no warning notices or any caution signs to take a care over
the danger.

In Raman vs.Uttar Haryana Bijli Vitran Nigam Limited And Others,The learned Single Judge
of the High court adverted to section 68 of the Electricity Act 2003 (for short “the Act”)and the
rule 91 of the Electricity Rules 1956 (for short “the rules”)which lay down the procedures safety
and protective devices to be provided for overhead electric lines erected over any part of the
street or public place or any consumer premises and mandate that those shall be protected with a
divice approved by the inspector for rendering the line electrically harmless incase it breaks.

Sub issues raised from the main issues are

A.WHETHER KSEB IS DUTY BOUND

According to Sec.44(a) of the Indian Electricity Rules 1956

44A. Intimation of Accident.—If any accident occurs in connection with the generation,
transmission, supply or use of energy in or in connection with, any part of the electric supply
lines or other works of any person and the accident results in or is likely to have resulted in loss
of human or animal life or in any injury to a human being or an animal, such person or any
authorised person of the State Electricity Board/Supplier, not below the rank of a Junior
Engineer or equivalent shall send to the Inspector a telegraphic report within 24 hours of the
knowledge of the occurrence of the fatal accident and a written report in the form set out in
Annexure XIII within 48 hours of the knowledge of occurrence of fatal and all other accidents.
Where practicable a telephonic message should also be given to the Inspector immediately the

13
accident comes to the knowledge of the authorised officer of the State Electricity Board/Supplier
or other person concerned.1

In H.S.E.B. vs.Ram Nath [(2004)5 SCC 793] and M.P.Electricity Board vs.Shail Kumar
[(2002) 2 SCC 162]The court held that “even when no negligenceis attributed to the defendant
in this case, the defendant is liable for damages ,based on the principles of strict ;liability.”

B.WHETHER THERE IS BREACH OF

DUTY?

Respondent had not taken adequate measures after getting grivances from the village headman
about the High Tension Wires. 

According to Sec.44(a) of the Indian Electricity Rules 1956 the authority of that area doesn’t
take any action or prepare any report /telegraphic report within 24 hours to inspector to do the
needful.

According to Sec.36 of Indian Electricity Act 1910 deals with the appointment of electrical
inspectors.

In this case there is no appointment is marked or that not proved that any such reports were
prepared or sent to the electrical inspector.

There is absolutely nothing to show that officers of the power station had made any proper
inspection/act to prevent the damages.These are sufficient proof of negligence and how
recklessly such matters were being dealt by the officers.

The rule of striict liability born in Rylands vs Fletcher also applicable in this case. In M.P
Electricity Board vs. Shail Kumar [ 2002 (1) KLT 480 (SC) it was held .

“it is an admitted fact that the responsibility to supply electric energy in the particular locality
was statutorily conferred on the board.If the energy so trasmitted causes injury or death of a
human being who gets unknowingly trapped into it,the primary liability to compensate the
suferer is that of the supplier of the electric energy.so long as the voltage of the electricity
transmitted through the wires is potentially of dangerous dimension,the managers of it’s supply
have the added duty to take all safety measures to prevent escape of such energy.”

In Raman vs.Uttar Haryana Bijli Vitran Nigam Limited And Others learned Single Judge of
the High Court further reffered to rules 29,44 and 46 of the rules which are statutory in nature

14
which require the eletricity authorities to conduct periodical inspection of the line maitained by
them and to take all such safety measures to prevent accident and maintain the lines in such a
manner that life and property of the general public is protected.

Kerala State Electricity Board v.Kamalakshy Amma AIR 1987 Ker 253  

One Krishnan Nair and Appu Nair was a member of the Piravom Panchayat. He left his house
during the early hours on 13-12-1982 to have a dip in a nearby canal, without any premonition
that he would be entrapped by the death warrant so imminently. A live wire, snapped out of the
cup joint on an electric post, was lying on the road and Krishnan Nair accidentally came across
with the live wire and he slumped down and breathed his last. Thus his life was snuffed in a
trice. His aged mother, his widow and children initiated action against the Kerala State
Electricity Board for damages on account of his death, alleging that the KSEB was negligent in
maintaining the electric line under their management on the route concerned. The trial court
accepted the case and gave a decree for Rs. 75,0007-with interest and costs.

1.Varghese vs.Kerala State electricity Board ; Kerala High Court (March 1 ,2013 )

WHETHER KSEB IS STRICTLY LIABLE

The strict liability principle also called the “NO FAULT liability”principle.This is contradictory
to the general principle of negligence in torts where the person can be held liable for
commission of the torts.When the plaintiff can prove negligence on his part and the defendant
himself is unable to disprove it.This principle was first applied in House of Lords in respect of
the case Ryland v.Flectcher(1868).

In Sh.Kamal singh v. Bses Rajdhani Power ltd,court held that SEB is strictly liable for damages
caused without proof of negligence.

A.’NO FAULT’CANNOT BE APPLIED

In this case KSEB cannot claim no fault as a exception.It is evident that electric post from which
Joseph (Deceased) was electrocuted was errected in the heart of village, and prior to this incident

15
some domestic animals were electrocuted from the same electric post and this fact was brought
to notice of the authorities. But the authorities turned deaf ear to the complaint made by village
headman. This itself proves the ‘fault’ on the part of electricity board therefore ‘no fault’ cannot
be claimed and their liablility can be proved from the circumstancial evidences .1

Though the negligence of defendant has been proved in the instant case,however even other wise
now settled ma2tter under law that supplier of electricity is liable for the damage acused without
any proof of negligence on its part and laiblity in this context is strict.In Parvati Devi&Ors. V.
Commisioner of Police ,Delhi & Ors3.,It was held that supplier of electricity is liable for
damage caused without any proof of negligence and liability in this context is strict.

B.KSEB IS STRICTLY LIABLE

KSEB in the case is strictly liable .Allahabad HC in case of Yash Pal (minor) & Anr v. State of
UP4,issued direction to state to ensure that adequate safety measures are taken by electricity
board.

KSEB is duty bound to take necessary precautions but they fail to take appropriate measures.

C.WHETHER 226 CAN BE INVOKED IN CASE OF

STRICT LIABILITY
Whether compensation araising out of tortious act of the employees or functionaries of the state
or its instrumentality can be made available to victim invoking HCjurisdiction under art.226 of
constitution of India,which is essentially a public law remedy.SC in Regd Society v.UOI,5laid
down that ‘public law ‘ it is essentially the dispute between a citizen or group of citizens and on
the other the state or the public bodies and aimed at maintaining rule of law and preventing state
or public bodies from acting in arbitrary manner in violation of rule.Expanding the horizon of
art.14 read with other articles dealing with fundamental rights ,every action of govt or other
public bodies are legally treated as authority within meaning of art.12.If arbitrary ,unreasonable
or contrary to law is now amenable to writ jurisdiction of HC under art.226 and SC under art.32
and can be validly scrutinized on the touchstone of the constitutional mandate.

SC in LIC OF INDIA V.Escorts Ltd,6held that ordinarily in exercise of power under art226 or
art32 it is very difficult to demarcate the’Public law’ and ‘Private law’.
1
Strict and absolute liability.www.legal services india.com,accessed at 8june2021.
2
MP.STATE ELECTRICITY BOARD V. SHAIL KUMARI & ORS.
3
2000(3)SCC754.
4
http://indiakanoon.org/doc/121920906.s
5
(1999)6SCC667.
6
(1986)1SCC264.

16
WHETHER KSEB LIABLE TO PAY
COMPENSATION
A.WHETHER KSEB IS LIABLE TO COMPENSATE?
In this case Joseph died due to mere negligence on the part of KSEB.If any accident occurs in
connection with generation, transmission, suppy or use of electricity and the accident results or is
likely to have resulted in loss of human life the State Electricity Board shall send a
telegrapraphic report of occurrence to electrical inspector within 24 hours of knowledge but here
KSEB acted deaf on the incident and was negligent.7

KSEB is strictly liable for injury sustained by petitioner and family.The authorities have not
taken effective steps to provide safety measures by installing safety devices as contemplated
under Rule 91 of Indian Electricity Rules, 1956.The respondents are liable to pay adequate
compensation to family of victim 8.

B.QUANTUM OF COMPENSATION.
There is no codified law for arriving at quantum of compensation in this type

In CK.Subramania lyer V Kunhikuttan Nair,9 SC held that there is no exact uniform rule for
measuring the value of human life and measure of damages can not be arrived at precisely

In MS.Grewal V Deepchand Sood,10 SC held that multiplier method may be adopted to arrive at
the just compensate.The age of deceased can also be taken for arriving at a correct multiplier 11
In calculating the quantum of compensation. It is pertinent to to note that deceased Joseph was
the only bread winner of family consisting of petitioner. The perusal of postmortem certificate
results that deceased was aged 20 years at the time of his death due to electrocution.At this
juncture it is relevant to refer the decision of Hon’ble Apex court in Grewal MS & Another
V.Deepchand Sood and others12.Hon’ble Apex court hold that act 226 can very well be invoked
for granting the relief of compensation depending on circumstances of each case, particularly in
case of negligence by considering above circumstance it is pleased that Hon’ble court may grant
compensation of RS 5,00,000. Which is reasonable.

7
Rule44(a)of Indian Electricity Rules,1956.
8
Mrs.S.manjula V Chief secretary court of T.N.
9
(1969)3SCC64.
10
(2001)8 SCC 151.
11
P.S Loganathan & others V. District insurance officer & another 2011(S) LW 408. )
12
(2002-1.L.W.491).S

17
 PRAYER

In the light of issues raised ,arguments advances and authorities cited,

That the counsel for the petitioner humbly prays that the Hon’ble court be pleased to adjudge
,hold and declare:-

1. That, the unit filed is maintainable on court of law.

2. That the KSEB is absolutely negligent in maintaining the electric lines.

3. That, the KSEB is strictly liable for injury. Sustained by petitioner

4. Award compensatory damage to be paid by KSEB.

AND/OR

Pass any other that it deems fit in the intrest of Justice, Equity and good conscience and for this,
the petitioner as in duty bound, Shall humbly pray.

COUNSELS FOR THE

PETITIONER

18