Delhi District Court
Smt. Daya Rani vs Chairman on 14 January, 2009
IN THE COURT OF Dr. KAMINI LAU: ADDL.
DISTRICT JUDGE : DELHI
Suit No. 01/2008
1. Smt. Daya Rani
W/o Late Sh. Laxmi Narain
2. Ms Reshma
D/o Late Sh. Laxmi Narain
3. Mst. Vinay
S/o Late Sh. Laxmi Narain
4. Ms. Jyoti
D/o Late Sh. Laxmi Narain
5. Mst. Parveen
s/o Late Sh. Laxmi Narain
(plaintiffs No. 25 are minor, through plaintiffs no.1
being their natural mother)
All are residents of
R/o B8, Amba Bagh,
Kishan Ganj, Delhi - 7
......... Plaintiffs
VERSUS
1. Chairman, NDPL, Hadson Lane, Delhi7
2. The S.H.O., Sarai Rohilla, PS, New Delhi
3. The Commissioner, MCD, Town Hall, Delhi
4. The Registered Consumer/User
At A62, Shastri Nagar, Jalebi Chowk,
Delhi.
...... Defendants
: 1 :
Date of Institution: 8.1.2008
Arguments Heard on: 13.1.2009
Date of Decision: 14.1.2009
: J U D G M E N T :
This is a suit for compensation and damages has
been filed by the plaintiffs against the defendants. Briefly
the facts relevant for disposal of the same are as under:
BRIEF FACTS:
Plaintiff's Case:
The plaintiffs no.1 is the widow and plaintiffs no. 2 to 5 are the minor children of late Sh. Laxmi Narain, who was a driver. The case of the plaintiffs is that on 28.06.2007 the deceased namely Laxmi Narain was died due to electric shock at A62, Shastri Nagar, Delhi7 pursuant to which an FIR No. 275/07 dated 28.06.2007 was registered by plaintiffs no.2 in PS Sarai Rohilla under Section 304A IPC. It is alleged by the plaintiffs that the deceased Laxmi Narain had expired due to gross negligence of the defendant no.1, 3 and 4 as they did not perform their : 2 : duties accordingly and were acting negligently and without caring for the rules and directions provided to them. It is stated that the deceased become the victim of the same and hence the life of the plaintiffs came to an end in the absence of deceased as he was the sole bread earner of the family.
According to the plaintiffs, the deceased was having a valid driving licence and was having his own Vikram three wheeler from which he was earning about Rs.500/ to Rs.1000/ per day and all the five plaintiffs were totally dependent upon the deceased. It is further stated that the daughters of the deceased are of marriageable age, but their life tarnished in the middle due to untimely death of deceased due to the negligence of defendants no. 1, 3 and 4. The plaintiffs have further alleged that they were suffering from mental pain and agony and from economic loss due to the sudden demise of their father/husband.
According to the plaintiffs, all the defendants are jointly and severely liable to pay compensation to them as the defendant no.1 without due care disconnected the : 3 : electricity of the defendant no.4 and neither defendant no.1 nor defendant no.4 bothered for the electric current which was still passing through the disconnected wires. It is also stated that even defendants no.2 and 3 were responsible for providing essential amenities to the citizen and were also accountable and responsible for their maintenance, and the defendant no.3 had failed in respect of the same as the water was overflowing on the roads since last many days and the defendant no.2 had failed to perform his part of duties to point out the negligent act of the defendant no.1 and 4. It is further stated that if the deceased had not been died in the accident, he would live upto the age of 90 years and hence they are claiming for damages/ compensation for a sum of Rs. 20.00 lacs with interest @ 18% per annum from the date of filing the petition till realization. Defendant's Case:
Defendant no.1 has filed its written statement wherein a preliminary objection has been raised that the plaintiffs have deliberately filed the present suit with : 4 : malafide intentions and ulterior motives to extract money from the defendant and hence the suit is liable to be dismissed. It is further stated that the plaint is liable to be rejected under order 7 Rule 11 CPC as no cause of action has arisen in favour of the plaintiffs and the plaintiffs have failed to invoke the pecuniary jurisdiction of this court and have not valued the suit properly for the purposes of court fees and jurisdiction.
On merits, the defendant no1. denied all the allegations levelled against him and it is submitted that some residents of the area, directly and illegally put a wire through the pole outside the premises No. A62, Shastri Nagar in order to abstract the energy and the same wire was left as it is after its use. It is further stated that the auto rickshaw of the deceased came in contact with the said illegal wire resulting into death of Late Laxmi Narain. According to the defendant no. 1 the defendant did not allow anyone to use electricity by putting the wires illegally and directly, hence it cannot be penalized for any act which : 5 : had not been done by it. It is stated that the factum of hanging of illegal wire was never brought to the knowledge of defendant no. 1 prior to the incident.
Defendant no.2 and defendant no. 3 have also filed their written statement thereby denying the various allegations made against them. A preliminary objection has been raised by the defendant no. 2 that the suit is liable to be dismissed for want of legal notice under Section 140 Delhi Police Act and no cause of action arose in favour of the plaintiffs to file the present suit against them. It is further stated that the plaintiffs have not come to the court with clean hands and failed to prove the negligence of the defendant. It is submitted that on receipt of PCR call the defendant no. 2 registered a case under Section 304A IPC vide FIR No. 275/07 and after investigation, the challan was complete to be filed against Mr. Manas Rajan Sahu JE/ Officer, NDPL, Zone no. 425, Delhi.
In their written statement the defendant no.3 raised a preliminary objection that the suit of the plaintiff is : 6 : barred by the provisions of Section 477 & 478 of DMC Act for want of service of statutory notice upon the defendant and hence, the suit is not maintainable and is liable to be dismissed. It is stated that there is no cause of action against the defendant no. 3 and he has no role to play in it and hence, the suit is liable to be dismissed under order 7 Rule 11 CPC.
ISSUES:
On the basis of the pleadings of the parties this court has framed the following issues:
1. Whether the suit is barred by the provisions of Section 477 & 478 of DMC Act and for want of Notice under Section 140 of DP Act as against the defendants no. 2 and 3? (OPD)
2. Whether the plaintiff is entitled to the compensation and damages as asked for in the plaint? (OPP)
3. Relief.
: 7 : EVIDENCE:
The plaintiff no. 1 Daya Rani has examined herself as PW1 as her sole witness. She has in her examination in chief by way of affidavit corroborated what has been earlier stated in the main plaint in toto. He has placed on record the copy of FIR and death certificate which are Ex.PW1/A and Ex.PW1/B. In rebuttal the defendant no. 1 NDPL has examined one Manas Ranjan Sahu as their sole witness who has corroborated what has been earlier stated in the written statement.
FINDINGS:
I have heard the arguments advanced before me by the counsels for both the parties and have gone through the records of the case. My findings on the various issues are as under:
Issue no. 1 Whether the suit is barred by the provisions of Section 477 & 478 of the DMC Act and for want of notice under Section 140 of D.P. Act as against the : 8 : defendant no. 2 and 3?
Onus of proving this issue was upon the defendants. The case of the defendant no. 3 MCD is that no prior notice has been given to them under Section 477 and 478 of the DMC Act and to the defendant no. 2 u/s. 140 of D.P. Act. I have gone through the pleadings and the allegations made. The main relief sought for is as against the defendant no. 1 NDPL and the defendants no. 2, 3 and 4 are only proforma defendants and no specific relief has been sought for against them which fact is also evident from the testimony of PW1. Therefore, no notice u/s. 477/478 of DMC Act and under Section 140 DP Act is required. Issue is decided in favour of the plaintiff and against the defendant.
Issue no. 2 Whether the plaintiff is entitled to the compensation and damages as asked for in the plaint?
Onus of proving this issue was upon the plaintiff. It is evident from the record that the plaintiff : 9 : Daya Rani has examined herself as her sole witness and in her examination in chief she has corroborated what has been earlier stated in the main suit in toto. She has in her crossexamination admitted that she was not present at the site on 28.6.2007 when the incident took place or that she has not placed on record any photographs of the alleged incident even after the incident nor she had taken any photographs. She has stated that did not see any wire hanging at the site and states that the police had removed the said wire. She admits that she has not summoned the witness from the police to bring the alleged wires nor did she check with the department whether any complaint regarding removal of the hanging wire is lying with the department. She has also admitted that she has not placed on record any proof regarding earning of his husband and has denied that her husband did not earn Rs.500/ to Rs.1000/ per day. She further admits that her husband never used to file any income tax return and has denied that there was no negligence on the part of NDPL in maintaining : 10 : the area. She is unable to give any explanation with regard to the alleged figure of Rs.20 lacs compensation demanded by her. She is also not aware whether the NDPL has already disconnected the supply of the premises where the alleged incident took place. Further, in her cross examination on behalf of the SHO and the MCD the witness has admitted that she does not know whether the MCD is liable to pay any compensation. She also does not know whether there was any water logging problem on the spot or not. She has, however, admitted that the police had registered a case under Section 304A IPC vide FIR no. 275/05 against Manas Ranjan Sahoo, JE, NDPL, Zone no.
425. The only witness examined by the defendant is Manas Ranjan Sahoo, working with the defendant no. 1 as DW1 who has in his examination in chief stated that the supply of premises no. A62, Shastri Nagar, Delhi was never disconnected by putting the service line hanging. He has stated that the deceased was electrocuted through the service cable of defendant no. 4 and states that the supply of : 11 : defendant no. 4 through K. No. 3500139724 was disconnected way back from the date of incident which fact is evident from the report bearing DA No.RRG/MRG/10559 (03/04/2006) dated 2.5.2006. According to him, some resident of the area for the purposes of abstracting the energy directly and illegally, had put a wire through the pole outside the premises no. A 62, Shastri Nagar, Delhi which were lying as it is after even use. According to him, the auto rikshaw of the deceased came in contact with the said illegal wire put by some resident for the purposes of illegal abstraction of energy resulting into death of Late Laxmi Narain. In his cross examination he has admitted that he was not present at the site at the time of incident nor he had visited the site thereafter. The witness has further stated that he never met the victim after the incident an he is not aware whether any FIR was lodged against him pursuant to the incident.
SI Yashpal Singh from PS Sarai Rohilla has been examined as a court witness CW1 who has informed : 12 : the court that he is the investigating officer of the case bearing no. 257/07, under Section 275/07, which was registered against DW1 under Section 304A IPC whose investigations have been completed and the charge sheet was put in the court. He has placed on record the entire charge sheet consisting of photographs album, site plan, sketch of electric cable and its seizure memo, seizure memo of the TSR, electrical inspection report, MLC of the deceased, postmortem report, inquest paper, receipt of handing over of dead body, arrest memo, personal search memo, bail bond documents, statements u/s. 161 Cr.P.C. etc. running in to 82 pages which is collectively Ex.CW1/1.
A negligent wrongdoer is who does not sufficiently desire to avoid doing it. A person is guilty of negligence when he does not desires the consequences and does not act in order to produce them, but is nevertheless indifferent or careless whether they happen or not and therefore does not refrain from the act notwithstanding the risk that they may happen. Carelessness as to possible : 13 : consequences very often results in a failure to bring those consequences to mind. The careless person not only does not intend the consequence but does not even advert to it; its possibility or probability does not occur to his mind. Negligence is a conduct, not a state of mind. A careless conduct which involves an unreasonably great risk of causing damage. There is no necessary element of " fault" in the sense of moral blameworthiness involved in a findings that a person has been negligent.
Alderson B. in the case of Blyth Vs. Birminghan Water works Co. reported in (1856) 11 Exch. 781,784 has observed that:
" ....Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do....."
Also in the case of Lochgelly Iron and Coal Co. vs. M'Mullan reported in (1934) A.C. 1, 25 it has been : 14 : observed by Lord Wright that:
" ......In strict legal analysis, negligence means more that headless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing......"
It is evident from the aforesaid observations that in negligence the three elements of duty, breach and damage may penetrate to one another. Further, it must be established that the defendant has been careless in breach of legal duty to take care. The concept of reasonable foresight is used to ascertain whether the defendant was under any legal duty of care at all and if so, whether he observed the standard required in the circumstances of the case. On the one hand it is required to be shown that there is a breach of legal duty and on the other hand there has to be a breach of requisite standard of care required to be : 15 : maintained by the defendant under the given circumstances. Lord Aktin in the case of Donoghue vs. Stevenson reported in (1932) A.C. 562 had formulated the concept of reasonable foreseeability. The scope or extent of duty of care which the defendant owes to the plaintiff is often formulated simply in terms of reasonable foresee ability.
What the defendant ought reasonably to have foreseen in the circumstances of a particular case is the question which is required to be answered, hence, it is clear that the defendant should have foreseen the likelihood of the harm to the plaintiff in the given circumstances.
Further, the damage resulting on account of the said negligence should be direct and proximate and in case whether the court ultimately finds that the negligence is made out on the proximity basis, the said damages should be granted keeping in view the nature of physical injury to the person or property and the psychiatric/ psychological damage, economic/ financial damages and social damage on the basis of the same unless it is contrary : 16 : to the public policy.
Applying the settled principles of law to the facts of the present case it is evident that firstly all the parties have admitted that the deceased Laxmi Narayan died on account of electrocution due to his TSR came into contact with live electric wire which was hanging on the pole opposite house no. A62, Shakti Nagar, Delhi. Secondly the aspect of electrocution finds a corroboration from the MLC and postmortem report which shows that the deceased had been brought to the hospital with the history of electric shock as there was a contact of the electric wire for about 5 minutes and he was declared brought dead. Thirdly it is evident from the electrical inspection report given by Sh. Arun Kumar Aggarwal, Electrical Overseer; Sh. Mukesh Sharma, Electrical Overseer and Sh. Avinash Kumar Aggarwal, Dy. Electrical Inspector from the Government of NCT of Delhi, Labour Department Office of the Electrical Inspector that at the time of inspection the provisions of Rule 30 (1) of the Indian electricity Rules : 17 : 1956 have not been found complied with by staff of NDPL and it has been observed in the report Ex.CW1/1 (collectively) that:
" ...... The joints in the said service cable feeding the House No. A62, Shastri Nagar, New Delhi provided by the NDPL were found exposed and accessible and as such supplied had not taken due precautions to avoid danger arising on such premises from such supply lines, in contravention of the provisions of Rule 30(1) of the said rules....."
Fourthly the photographs taken by the investigating officer which have been filed alongwith the charge sheet, the seizure memo of the electric cable and sketch of the electric cable prove that a cable had been put through the electric pole in front of house no. A62, Shastri Nagar having two joints duly tapped which had came in to contact with the TSR/ Vikram No. DL1LC5194 resulting : 18 : into electrocution of the deceased Laxmi Narayan who was the driver of the said vehicle. As per the seizure memo the said cable between the electric pole to the house is measuring about 36' 5" . Out of the seized cable 31" of the cable was stated to be the property of DESU being manufactured by Mentor Cables Corporation, New Delhi and between the two joints 5' 5" cable had been joined with words 'P romise Cable' written on the same. Fifthly it is evident from the testimony of the various witnesses whose statements have been recorded by the investigating officer that the officials of NDPL had disconnected the supply to the premises No. A62, Shastrai Nagar, Delhi belonging to Surinder Singh @ Lucky and after the disconnection the wire had been left naked and it is this naked live wire which had came into contact with TSR Vikram driven by the deceased who had come to the spot for making the delivery of goods. Lastly it is also evident from the inspection report of the team of Electrical Inspector from NCT of Delhi that after examining the service cable with which : 19 : accident had occurred, the live phase conductor as well as neutral conductor were found exposed at the joint of pieces A and B showing that the said cable had been installed on the wall of house no. A62, Shastri Nagar, New Delhi and the lane in front of the said house was quite narrow as a result of which the TSR came into contact with the live exposed conductors of the said service cable thereby electrically charging the body of the three wheeler auto rickshaw which was being driven by the deceased Laxmi Narayan who received the electric shock and subsequently died.
It is evident from the record that the plaintiffs who are the widow and the minor children of the deceased Laxmi Narayan have made allegations against the defendant no. 1 of negligence and made available of having failed to exercise due degree of care and caution. It is not disputed that the defendant no. 1 is an agency involved in distribution of supply of electricity and the 31" wire out of 36' 5" seized by the defendant no. 2 during the : 20 : investigations was belonging to defendant no. 2. It is also admitted by the witness of the defendant no. 1 that he had disconnected the supply to the supply of the registered consumer i.e. A62, Shastri Nagar, but according to him the supply through K. No. 35300139724 was disconnected on 2.5.2006 as per report bearing DA No. RRG/MRG/10559 (03/04/2006) dated 2.5.2006. It is also evident from the seizure memo which shows that 5' 5" wire of make 'P romise' which do not belong to the defendant no. 1 had been seized primafacie showing that the same was joined for the purposes of abstraction of energy directly and illegally from the pole outside the premises no. A62, Shastri Nagar, New Delhi. Due degree of care which the Undertaking i.e. the defendant no. 1 is required to exercise is not confined to the period of supply but extends to ensuring that all necessary steps are taken to prevent any kind of mischiefs, pilferage, theft or accident. It is the duty of the officers of the defendant no. 1 who is the incharge of the area to ensure public safety and prevent any kind of : 21 : mischief and a naked hanging wire on a motorable road in front of the premises of the registered consumer could not have gone unnoticed. By leaving the live wire hanging after disconnection of the supply to the premises not only the negligence of the officers of the defendant no.1 is writ large but the same is also violative of the Rule 30 (1) of the Indian Electricity Rules 1956. The tragedy which was waiting to happen, could have been averted by exercise of due diligence and care by the department in maintaining the said supply system who should have ensued the removal of the wires after the disconnection or to to have taken suitable steps to prevent the causality which they have failed to do.
The general rule is that it is for the plaintiff to prove negligence but in certain cases the plaintiff can only prove the accident but not how it happened so as to show its origin in the negligence of the defendant. However by application of res ipsa loquitur Sir William Erle in the case of Scott vs. London & St. Katherine Docks Co. reported in (1865) 3 HC 596 had held that :
: 22 : " Where the thing is shown is under the management of the defendant or his servants and the accident is such, as in the ordinary course of things does not happened, if those who have the management use proper care. Then in the absence of any explanation by the defendant, it can be presumed that the accident arose for want of care. In such cases mere happening of the accident affords a reasonable evidence in the absence of any explanation by the defendant that it was due to the negligence of the defendant.
Applying the settled principles to the facts of the present case. It is evident that the plaintiff has discharged the initial onus and therefore, now the onus of proving that there was no negligence in maintaining the supply system in the area shifted upon the defendant no. 1 who has failed to discharge the same. No answer is forthcoming as to why live wires were left hanging in front of the premises after the disconnection of the supply. The : 23 : defendant no. 1 has failed to bring on record any material to show that any illegal abstraction of energy had been noticed or booked by them. The accident/ tragedy could have been possibly averted had the defendant no. 1 being little more vigilant and exercised due degree of care and caution as expected out of them under the given circumstances and I hereby hold the defendant no. 1 guilty of breach of requisite standard of care and caution required to be maintained and no public body can be allowed to shut its eyes to the foreseeable consequences of such neglect for which they are liable for negligence and the plaintiff would be entitled to be compensated for the same.
In so far as the extent of compensation is concerned the case of the plaintiff is that the deceased was earning Rs.500/ to Rs.1000/ per month at the time of his death. She has in her crossexamination stated that he was not assessed to income tax and she has also not placed on record any documentary proof with regard to the earnings of the deceased. She has in her examination in chief stated : 24 : that the deceased was about 40 years of age at the time of his death which aspect has gone unrebutted. Therefore, the defendant no. 1 to 5 who are the widow and minor children of the deceased would be entitled to the damages not only for the financial loss but also for the mental pain and agony suffered by them and also for the sufferings and psychological deprivation caused to him on account of demise of the deceased who was the sole earning member of their family. Since the deceased was not assessed to income tax, therefore under these circumstances, it is presumed that the earnings of the deceased who had expired on 28.6.2007, were not more than Rs.1,50,000/ per annum. Therefore, keeping in view the average life span of an Indian Male and the fact that the estimated income of the deceased would not have been more than Rs.1,50,000/, I hereby hold that in the ends of justice would be served if the plaintiffs are awarded the compensation to the tune of Rs.2 lacs each (total Rs. 10 lacs) on account of financial loss caused to them and also on account of mental trauma : 25 : and the social and psychological deprivation caused to them on account of the death of the deceased alongwith the interest @ 10% per annum from the date of decree till the realization of the decreetal amount.
Issues are disposed off accordingly. Relief:
In view of my findings with regard to the various issues, I hereby hold that the plaintiffs are entitled to the recovery of Rs.10 lacs as compensation from the defendant no. 1 alongwith the interest @ 10% per annum from the date of decree till the realization of the decreetal amount.
Suit of the plaintiff is accordingly decreed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room. Announced in the open court (Dr. KAMINI LAU) Dated: 14.1.2009 Addl. District Judge: Delhi : 26 : 14.1.2009 Present: Sh. Sunddep Vyas, advocate for the plaintiff.
Sh. Hemant Gupta, counsel for the defendant no. 1.
None for other defendants.
Vide my separate detailed order dictated and announced in the open court but not yet typed, the suit of the plaintiff is decreed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
ADJ: DELHI 14.1.2009 : 27 :