Allahabad High Court
U.P. Rajya Vidyut Parishad And Others vs Chandra Pal And Others on 28 August, 2000
Equivalent citations: 2000(4)AWC2844, (2000)3UPLBEC2320
Author: V.M. Sahai
Bench: V.M. Sahai
JUDGMENT V.M. Sahai, J.
1. The main question that arises in this defendants appeal is whether the lower appellate court committed any error of law in decreeing the suit by applying the principle of res ipsa loquitur.
2. Shri S. P. Mehrotra the learned counsel for the appellant assailed the approach of the appellate court and urged that the principle of res ipsa loquitur was erroneously applied without setting aside the finding recorded by the trial court that the deceased was negligent in collecting 'kanda' (fuel) from beneath a place where high voltage wire was running and tn any case the amount of compensation awarded was excessive. Shri Ashok Gupta the learned counsel who had filed caveat defended the order and urged that the appellate court was not only correct in law but it acted leniently in awarding meagre amount as compensation.
3. Before discussing the principle of res ipsa loquitur and whether it was correctly applied by the appellate court, to the facts of this case. 1 am constrained to say that the Court below having awarded only Rs. 60,000 for the death of plaintiff No. 1's wife and mother of plaintiff Nos. 2 to 6, due to coming into contact with high voltage live wire of 11,000 volts maintained by U, P. State Electricity Board, Lucknow (in brief Board), the Board would have been well advised to let the matter rest.
4. The finding of fact recorded by the trial court was that Smt. Sakhia died on 5.6.1993 at a distance of one kilometre from her house by coming in contact with high voltage live wire maintained by the appellant and its servants. But the suit was dismissed as the plaintiffs could not prove the occasion and reason for the deceased, and her husband, going away from their village to collect 'konda'. The Court further found that P.W. 1 Chandra Pal having admitted that he or any other resident of the village having not intimated the employees of the Board that the wire was loose for nearly 20 days and there being board on the pillar in red notifying danger, the deceased was neither justified nor she had any right to go and collect 'kanda' from beneath the wire, therefore, there was no negligence of the appellants and the respondents were not entitled for any compensation. The trial court further assumed that in absence of any direct evidence about the manner in which Smt. Sakhia died, the claim of the appellants that she might have gone to pluck the wire or she of her own accord touched the wire could not be denied. Therefore, the suit was dismissed.
5. In appeal, the lower appellate court on the finding recorded by the trial court that the death had taken place due to coming in contact of electric wire maintained by the appellants did not examine any other question except whether the principle of res ipsa loquitur applied and if so, whether the trial court was justified in dismissing the suit. The Court relied on various decisions given by the Apex Court, including AIR 1979 SC 1848 and other High Courts and held that once the incident was proved, the principle of res ipsa loquitur applied and the appellants having failed to prove that the accident did not occur due to any negligence on their part, the suit was liable to be decreed.
6. The principle of re ipsa loquitur is an exception to the rule that it is for the plaintiff to prove negligence. It was evolved to relieve the plaintiff from discharging the burden where the true cause of accident was in the knowledge of the defendant due to whose negligence the accident took place. It is based on principle that the plaintiff can prove accident but he may not be able to prove that it could have been avoided but for the negligence of the defendant. In the leading English case Scott v. London and St. Katherine Docks Co., (1865) 3 H, & C. 596, the law was succinctly stated thus, "There must be reasonable evidence of negligence but where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care".
7. The two principles which are necessary for the application of the principle res ipsa loquitur are one that the thing or object by which the accident took place must have been in the management or control of the defendants or his servants and second that the accident in ordinary course would not have happened if those who were in management and control had taken proper care. In Syed Akbar v. State of Karnataka. AIR 1979 SC 1848, the Apex Court after reviewing Indian and English authorities on the subject held that there were two lines of approach, one taken by English Courts that the maxim of res ipsa loquitur operates as an exception to the general rule that the burden to prove negligence is on the plaintiff. The Hon'ble Court observed, "that if the nature of an accident is such that the mere happening of it is evidence of negligence .... or where there is a duly on the defendant to exercise care, and the circumstances in which the injury complained of happened are such that with the exercise of requisite care, no risk would in the ordinary course ensue, the burden shifts or on the defendant to disprove it". And the other that when it applies appropriately, it allows drawing of a permissive Inference of fact as distinguished from mandatory presumption. Our Courts have followed the line of approach adopted by English Courts. In this case, since the electric wire which ran up to tubewell was of high voltage and it was under the management and control of the appellants or its servants, its proper maintenance in ordinary course was their duty to avoid any accident. The putting up of sign board in red indicating danger did not absolve the appellants from ensuring that the wire was at proper height and there was no risk of it coming in contact to anyone. I may refer to Rule 77 (3) of the Indian Electricity Rules. 1956 which clearly provides that high voltage wire shall be maintained at height of not less than 12 feet (4.0 metres). It was, therefore, the duty of the Board to ensure that the wire did not come down as it was hazardous and any contact with it could cause death. If the wire became loose, it was the duly of appellants to set it right. It was not necessary at all that somebody from the village should have gone to intimate the appellants servants. The fact that it came in contact of Smt. Sakhia is proof that it was loose and was not at prescribed height. The appellate court after appreciation of evidence of P.W. 1 and P.W. 4 found it as a fact that the wire was loose and it was due to this reason that Smt. Sakhia came in contact with it and was severely burnt. The failure to maintain proper height by the Board was negligence per se. No further evidence was necessary to prove negligence. It was for the Board to prove that the wire did not come down and its maintenance by it in ordinary course was such that no accident could have taken place. The putting up of the signboard was of no consequence as the appellants were bound both under the general law and the rules framed to place it at safe height. If by putting sign board the appellant is absolved of its responsibility then the movement on the roads would come to standstill.
8. Once the accident was found by the trial court to have taken place, it was for the appellants to prove that it took ordinary care under law. In absence of any evidence, the trial court indulged in conjecturing that Smt. Sakhia might have attempted to pluck the wire or touched it. A party like Board should not have raised such plea without being in possession of any material. In any case, it was a question of fact but the appellant did not lead any evidence. The trial court, in the circumstances, in assuming that the claim of the Board could not be denied acted not only illegally and in complete disregard of principle of res ipsa loquitur but it indulged in presuming facts without any basis. The appellate court on the other hand held that even if the maximum height of Smt. Sakhia was assumed to be 6 feet and the height of basket is added to it she could not have come in contact of the wire unless it was much below the prescribed height of 12 feet under rule. The inference is reasonable. The argument of the learned counsel for the appellant that the appellate court in drawing the inference acted illegally as there was no material on record to support the finding cannot be accepted. I have referred earlier that the appellate court believed the statement of plaintiffs witnesses that the wire was loose. Further a Court of fact is entitled to draw inference from circumstances. It is neither Illegal nor contrary to law. In absence of any evidence from the appellant, the appellate court was justified in concluding that the wire was loose as claimed by the plaintiffs and Smt. Sakhla died due to negligence of the Board.
9. For these reasons. I am not inclined to admit this appeal as burden of proof is no doubt a question of law but once I have held that the appellate court correctly applied the principle of res ipsa loquitur it ceased to be a question of law much less a substantial question of law.
10. The appeal is dismissed under Order XLI. Rule 11, C.P.C.