KAMALINI BISWAL Vs. STATE OF ORISSA

JUDGEMENT

(1.) Ajit Kumar Biswal, a boy who appeared at the High School Certificate Examination, 1998 suffered serious injury in an accidental cracker explosion in the morning of 7.6.1998. He was initially treated at the local Primary Health Centre at Madhuban and ultimately forwarded to S.C.B. Medical College and Hospital at Cuttack in the evening for further treatment. Immediately after his admission an emergency life saving operation in the trachea was done. Unfortunately the boy succumbed to his injury, at about 11.55 p.m. in the night. The said boy was the only son of the present writ petitioner, a widow. A post-mortem examination was held. Post-mortem report revealed that a triangular shaped foreign body (broken clay) of size 1.5 cm. x 1 cm. was found in the lumen of trachea just below the trache-ostomy wound and that the death was due to asphyxia caused by the presence of foreign body in the respiratory passage.

(2.) The writ petitioner, mother of the deceased boy has filed this writ petition claiming compensation from the State Government alleging that her son's death was caused by the negligence and/or carelessness of the surgeon, who had operated upon him. According to the petitioner, the surgeon did not take proper care to clean the lumen of the trachea below the trache-ostomy wound and remove all foreign particles.

(3.) In view of the decision of the Apex Court in Chairman, Grid Corporation of Orissa Ltd. v. Sukamani Das, (1997) 7 SCC 298, the entertainability of the writ petition claiming compensation from the State Government is to be examined. It will be of no use entertaining a writ application and ultimately dismissing it after a considerable period of time on the ground of involvement of disputed questions of facts which cannot be decided on affidavits. In Sukamani Das's case (supra) this High Court granted compensation to Sukamani Das because of the death of her husband due to electrocution. The Grid Corporation of Orissa moved the Supreme Court. The Supreme Court disapproved entertainment of writ petition claiming compensation and expressed the following opinion: "In our opinion, the High Court committed an error in entertaining the writ petitions even though they were not fit cases for exercising power under Article 226 of the Constitution. The High Court went wrong in proceeding on the basis that as the deaths had taken place because of electrocution as a result of the deceased coming into contact with snapped live wires of electric transmission lines of the appellants, that admittedly, prima facie amounted to negligence on the part of the appellants. The High Court failed to appreciate that all these cases were actions in tort and negligence was required to be established, firstly, by the claimants. The mere fact that the wire of the electric transmission line belonging to appellant No. 1 had snapped and the deceased had come in contact with it and had died was not by itself sufficient for awarding compensation. It also required to be examined whether the wire had snapped as a result of any negligence of the appellants and under which circumstances the deceased had come in contact with the wire. In view of the specific defences raised by the appellants in each of these cases they deserved an opportunity to prove that proper care and precaution were taken in maintaining the transmission lines and yet the wires had snapped because of circumstances beyond their control or unauthorised intervention of third parties or that the deceased had not died in the manner stated by the petitioners. These questions could not have been decided properly on the basis of affidavits only. It is the settled legal position that where disputed questions of facts are involved a petition under Article 226 of the Constitution is not a proper remedy. The High Court has not and could not have held that the disputes in these cases were raised for the sake of raising them and that there was no substance therein. The High Court should have directed the writ petitioners to approach the civil court as it was done in O.J.C. No. 5229 of 1995."