JUDGMENT :

Dr. A.K. Rath, J.

This appeal has been preferred against the judgment and order dated 23.02.2012 passed by the learned Single Judge in W.P.(C) No.17413 of 2009, whereby and whereunder the writ application filed by the appellant claiming compensation for the death of her son in electrocution has been dismissed.

02. The unfortunate mother is the appellant. Her son T. Kailash Rao was working as a daily wage earner under the contractors of the Cuttack Municipal Corporation (hereinafter referred to as “the Corporation”). On 15.05.2009 on the instruction of the Junior Engineer of the Corporation, he was cleaning the drain near Sunshine Field, Cuttack. During such cleaning, he suddenly came in contact with the live electric wire and died at the spot due to electrocution. Immediately after the accidental death, the Mayor of the Corporation came to the spot and paid an ex gratia of Rs.10,000/-. Thereafter neither the Municipal authorities, nor the electricity authorities paid any compensation to the appellant. An F.I.R. was also lodged by the Sub-Divisional Officer, whereafter Purighat P.S. Case No.49(5) of 2009 was registered against one Babuli Sahoo under Sections 338/379/304(A), I.P.C. read with Section 135 of the Indian Electricity Act, 2003. When all the persuasion of the appellant to pay compensation ended in a fiasco, she filed the writ application claiming compensation of Rs.11,00,000/-.

03. Pursuant to issuance of notice, a counter affidavit has been filed by the respondent no.1-Corporation. Though the accident was admitted, but a stand was taken that the Corporation had no role to play.

04. Respondent nos.2 and 3 had also filed a counter affidavit. The sum and substance of the case of the respondent nos.2 and 3 is that they had taken all precautionary steps to avoid theft of electricity and to avoid any wrong to any person or animal. The electricity had been supplied to the consumers of that area through insulated cable. In spite of that one Sudhakar Sahoo of Upper Telenga Bazar without their knowledge committed theft by hooking and by concealing the hooking wires through that drain. The said theft was not in their knowledge. Thus they were not negligent in any manner. Further the deceased was guilty of contributory negligence as he had not taken proper care before cleaning the drain.

05. Learned Single Judge relying on two decisions of the apex Court in the case of Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others v. Smt. Sukamani Das and another, (1999) 7 SCC 298 and S.D.O. Grid Corporation of Orissa Ltd. and others v. Timudu Oram, AIR 2005 SC 3971 came to hold that since disputed questions of fact are involved, the writ application is not maintainable. T. Kailash Rao died as a result of act of a third party i.e. Sudhakar Sahoo, who had take illegal connection of the electricity without the knowledge of the electricity authorities and in that view of the matter, it cannot be said that the officer of the CESU were in any manner negligent. Having held so, learned Single Judge dismissed the writ application.

06. Heard Mr. S.S. Rao, learned counsel for the appellant, Mr. P.K. Mohanty, learned Senior Advocate for the respondent no.1 and Mr. B. Dash, learned counsel for the respondent nos.2 and 3.

07. Having regard to the rival pleading of the parties and contentions advanced by the counsel for the parties, two points emerge for our consideration.

1) Whether a writ application under Article 226 of the Constitution of India is maintainable for payment of compensation when death is caused due to electrocution ?

2) Whether respondent nos.2 and 3 can deny the liability on the ground that the death of T. Kailash Rao was due to act of a third party.

08. The specific case of the appellant is that her son died due to electrocution on 15.5.2009 while cleaning the drain near Sunshine Field, Cuttack. Respondent no.1 admits the same. The Assistant Electrical Inspector, Cuttack conducted a preliminary enquiry on 16.5.20