Delhi District Court
Smt. Usha Devi ( Mother Of Deceased) vs B. S. E. S. Yamuna Power Ltd on 7 February, 2014
In the Court of Sh. Gorakh Nath Pandey
Additional District Judge02 ( NE)
Karkardooma Courts, Delhi.
CS No. 72/14
IN THE MATTER OF :
1. Smt. Usha Devi ( mother of deceased)
W/o Sh. Sanjay Kumar
2. Sh. Sanjay Kumar ( father of deceased)
S/o Late Sh. Bhagirath
3. Ms. Kajal, aged about 15 years ( sister of deceased)
4. Ms. Chanda, aged about 13 years ( sister of deceased)
5. Ms. Naina, aged about 8 years ( sister of deceased)
6. Ms. Tina, aged about 5 years ( sister of deceased)
All D/o Sh. Sanjay Kumar.
( Plaintiff No. 3 to 6 being minor through their mother
and natural guardian i.e. plaintiff No. 1)
All R/o H. No. G2/13, Near Railway Track,
Man Sarovar Park, Delhi. ......... Plaintiffs
VERSUS
1. B. S. E. S. Yamuna Power Ltd.
Through its Business Manager
Shakti Kiran Building
Karkardooma, Shahdra, Delhi.
........ Defendant
CS No. 72/14 1 of 23
Usha Devi Vs. B. S. E. S.
Date of Institution of Appeal : 28.05.2009
Date on which Reserved for Judgment : 06.02.2014
Date of Judgment/Order : 07.02.2014
Case I.D. Number : 02402C00161402009
Suit for compensation U/S 1 A of the Indian Fatal
Accident Act 1855 for causing death by the wrongful Act,
Neglect/default of the defendant.
JUDGMENT
1. The plaintiffs have filed this suit for recovery of Rs. 4,00,000/ ( Rupees
four Lakh) along with interest @ Rs. 24% Per Annum as
damages/compensation U/S 1A of the Fatal Accident Act, 1855 on account of
death of master Sonu who died on 29.03.2008 at around 08:00 AM due to
electrocution.
2. The suit has been filed with the averments that deceased Sonu, aged
about 10 years was only son of the plaintiff No. 1 and 2. The defendant have
erected an electricity pole for supplying electricity in the narrow street and
connected lying wires to the pole to give support to the pole. Deceased Sonu
on 29.03.2008 at about 08:00 AM went outside the house for playing and
about 08:15 AM, the people of the locality intimated the plaintiff that his son
Sonu has been electrocuted due to the live current in the supporting wire of the
pole. The support of the wire to the pole was connected in the careless manner
by the defendant due to which the live current was flowing in the support wire
to the pole. After information of the accident, the victim was taken to the S. D.
CS No. 72/14 2 of 23
Usha Devi Vs. B. S. E. S.
N. Hospital and MLC No. 820/08 was recorded whereby the doctor declared
him " brought dead". FIR No. 92/08 U/S 304 A of the IPC was registered
against the defendant at Police Station M. S. Park and post mortem report was
also conducted at GTB Hospital, Delhi. The people of the locality requested
the defendant many times to replace and maintain the electric wire and to fix it
in proper manner but of no avail. As the defendant has omitted in their duty of
providing and maintaining safe and proper electric supply and the death of the
deceased Sonu took place due to the carelessness and negligent of the
defendant, this suit is filed by the plaintiffs against the defendant.
3. The suit has been contested by the defendant written statement has been
filed on behalf of defendant raising preliminary objections that plaintiff have
not come to the court with clean hand and have suppressed the material facts
and this suit is false and frivolous. As contended earth wire through which
deceased Sonu electrocuted was properly installed in earth and there was no
current in the said wire. Even at the time of incident and thereafter as
mentioned the support of the wire as contended by the plaintiff was earth wire
which was connected to the pole to prevent the electrocution and there was no
electrical abnormality found nor any complaint was received on 29.03.2008
regarding any accident as per site report. The FIR registered with the police
was investigated and charge sheeted is untraced. It is further mentioned that all
the wires installed in the locality are properly fixed and there was no
negligence or carelessness on the part of the defendant. While denying the rest
of the material contentions of the plaintiffs in the plaint, the defendant prayed
to dismiss the suit with heavy cost.
CS No. 72/14 3 of 23
Usha Devi Vs. B. S. E. S.
4. In view of the pleadings of the parties following issues were settled vide
order dated 30.11.2009.
(a) Whether Sh. Sonu expired on account of negligence on the part
of defendant ? OPP
(b) Whether the plaintiffs are entitled to any compensation ? If so
to what amount ? OPP
(c) Relief.
Thereafter, case was fixed for plaintiff's evidence.
5. In support of their respective case, the plaintiffs and the defendant have
adduced oral as well as documentary evidence.
Plaintiff No. 1 filed his affidavit by way of evidence Ex. P1. In support
of her claim and contentions PW1 in one way or the other reiterated the
averments as mentioned in the plaint. The testimony of the plaintiff No. 2 was
also to the same fact like PW1 who depose by way of affidavit Ex. P2.
Technical Assistant Cum Record Keeper GTB Hospital appeared with
the summoned record i.e. post mortem report of master Sonu and was
examined himself as PW3. He has proved the post mortem report vide Ex.
PW3/1.
SI Baldev Singh is as police official from PS Seema Puri who has
appeared along with the entire record of deceased Sonu and attested copy of
FIR No. 92/08 PS Man Sarovar Park which is Ex. PW4/1 and examined
himself as PW4. He has also proved the photographs Ex. PW4/2 to Ex.
PW4/6. As no other witness remains to be examined by the plaintiff, PE was
CS No. 72/14 4 of 23
Usha Devi Vs. B. S. E. S.
closed and the case was fixed for defendant's evidence.
6. HC Sanjiv Kumar posted at PS GTB Enclave was examined as
DW1and proved the record of FIR No. 92/08 dated 29.03.2008 consisting
FIR, Tehrir of Sh. Sanjay and index of untraced report stating that FIR is
untraceable and proved the documents vide Ex. DW1/1.
Sh. V. P. Sharma, Senior Manager Division Karawal Nagar, BSES -
YPL filed his affidavit by way of evidence Ex. DW2/1 and examined himself
as DW2. The witness has deposed regarding the complaint register, reply dated
16.04.2008 by the BSES against the letter dated 11.04.2008 PS Man Sarovar
Park, etc. The DE was thereafter closed.
7. It is argued by Ld. Counsel for plaintiff that the suit of the plaintiff is
liable to be decreed as the defence of the defendant is sham, baseless and have
no merits. It is further argued that the plaintiff has proved the relevant
documents along with the liability of the defendant. The Ld. Counsel for the
plaintiffs has relied upon the following judgments in support contentions:
FA No. 265/09 title M. P. State Electricity Board Vs. Kanhiya Lal
decided on 21.03.2013 by Hon'ble Madhya Pradesh High Court.
−AIR (2002) SC 551
−RFA No. 586/2004 titled as Rani & Ors. Vs. N.D. P. L. & Anr.
decided on 19.07.2012 by Hon'ble High Court of Delhi.
−2003 V AD Delhi53; Smt. Abha Yadav & Ors. Vs. MCD
−CA No. 711415 of 2003 titled as MCD Vs. Association of Victims
Upahar Tragedy & Ors decided on 13.10.11 by Hon'ble Supreme
Court.
CS No. 72/14 5 of 23
Usha Devi Vs. B. S. E. S.
8. Ld. Counsel for the defendant on the other hand denied any liability
contending that the plaintiffs have failed to prove the case and are not entitled
for any damages/compensation as prayed in the suit. It is further argued this a
false case and suit may be dismissed with cost.
9. I have heard the Ld. Counsel for the both the parties and considered the
entire material available on record and given my thoughtful consideration to
their respective submissions. I have also gone through the written arguments
filed on behalf of the plaintiffs and authorities relied upon in support of
contention along with relevant provisions of law. My findings on the above
said issues are as under:
Issues No. 1 and 2
(a) Whether Sh. Sonu expired on account of negligence on the part
of defendant ? OPP
(b) Whether the plaintiffs are entitled to any compensation ? If so to
what amount ? OPP
10. The onus to prove these issues was on the plaintiffs. These issues are
taken up together, as they are interconnected with each other.
11. The relevant provision of law i.e. Section 1 (a) of the Fatal Accident
Act, 1855 provides as under:
'' (1A). Suit for compensation to the family of a
person for loss occasioned to it by his death by actionable
wrong. Whenever the death of a person shall be caused by
wrongful act, neglect, or default, and the act, neglect or
CS No. 72/14 6 of 23
Usha Devi Vs. B. S. E. S.
default is such as would (if death had not ensued) have
entitled the party injured to maintain an action and recover
damages in respect thereof, the party who would have been
liable if death had not ensued, shall be liable to an action
or suit for damages, notwithstanding the death of the
person injured, and although the death shall have been
caused under such circumstances as amount in law to
felony or other crime.
Every such action or suit shall be for the benefit of
the wife, husband, parent and child, if any, of the person
whose death sahll have been so caused, and shall be
brought by and in the name of the executor, administrator
or representative of the person deceased;
and in every such action, the court may give such
damages as it may think proportioned to the loss resulting
from such death to the parties respectively, for whom and
for whose benefit such action shall be brought, and the
amount so recovered, after deducting all costs and
expenses, including the costs not recovered from the
defendant, shall be divided amongst the beforementioned
parties, or any of them, in such shares as the court by its
judgment or decree shall direct."
12. The issue as to whether Sonu expired on account of negligence on the
part of the defendant is the crucial issue because the fate of the case will
CS No. 72/14 7 of 23
Usha Devi Vs. B. S. E. S.
depend on the answer to the question. If this is answered in affirmative, the
plaintiff would automatically entitled to damages. The defendant has denied
any negligence on its part on the defence that there was no live current in the
earth wire attached with the electric pole at all. Except the bald averment and
denial of negligence/liability, nothing is brought on record either to show any
other cause of death of Sonu or there was no abnormality or live current in
earth wire attached with the pole.
13. The brief and relevant facts for the filing of this suit and defence of the
defendant has been mentioned at the outset. It is relevant to note that in this
case the only eye witness of the incident Mr. Sonu Kumar was not produced by
the plaintiff at the relevant stage. An application was filed by the plaintiff to
produce the eye witness after the conclusion of the evidence which was
dismissed. None of the neighborers of the locality are produced by the
plaintiffs. As mentioned the death of Sonu was due to electrocution on
29.03.2008 at about 08:00 AM due to live current in the supporting earth wire
of the pole as the same was connected in the careless manner. The death of
Sonu due to electrocution is proved in view of the relevant materials on record
and the only question remains to be adjudicated as to whether the death was
caused by the alleged live earth wire attached with electric pole or not as the
defendant has raised objections that the death was caused not due to earth wire
attached with the pole. The defence of the defendant remained that the alleged
earth wire was properly installed and there was no live current in the earth
wire even at the time of accident and thereafter. PW1 and PW2 were not
present at the spot of electrocution and were told by the neighbors/eye witness
CS No. 72/14 8 of 23
Usha Devi Vs. B. S. E. S.
Sonu Kumar regarding electrocution. Alarm was raised by the eye witness i.e.
Sonu Kumar who separated the deceased. The PW1 during crossexamination
deposed that I cannot say from which wire Sonu got electrocuted. The
testimony of other witness is also to the said affect like PW1 regarding the
factum of death of Sonu by live current from alleged earth wire attached with
the pole. In fact, the testimony of the PW1 and PW2 regarding cause of death
from the live earth wire attached with the pole is on the basis of information
after electrocution of deceased Sonu at the spot i.e. outside the house of the
plaintiffs.
14. In the written statement, the defendant has simplicitor denied the
contentions in the plaint mentioning that there was no negligence of the
defendant. The defendant is silent regarding the cause of the death of Sonu as
mentioned in the plaint and there is merely evasive reply by the defendant in
the WS. There is no specific denial by the defendant in the written statement.
Postmortem report Ex. PW3/1 produced by PW3 is not disputed by the
defendant and in fact no question was asked during the crossexamination of
the witness in this respect. The PW4 also proved the FIR No. 92/08 PS
Mansarovar Park Ex. PW4/1 to prove the factum of death of Sonu by way of
electrocution. In view of Ex. PW3/1 i.e. postmortem report, it is proved that
the death of Sonu took place due to electrocution.
15. It is argued by learned counsel for the defendant that though Sonu died
due to electrocution, the electrocution was not from the live earth wire
attached with the pole rather death might have been caused due to
electrocution inside the house and therefore defendant is not liable. This Court
CS No. 72/14 9 of 23
Usha Devi Vs. B. S. E. S.
does not find itself inconsonance with this argument of learned counsel for the
defendant as this is not the case of the defendant either in the written statement
or no such question was asked to the witnesses during the crossexamination.
The testimony of Pws in one way or the other remained unimpeached and
uncontroverted and even suggestion was not put to the witnesses during cross
examination that the death was not caused due to electrocution as mentioned in
the plaint. As mentioned, the death of Sonu took place due to electrocution is
duly proved in view of Ex. PW3/1, Ex. PW4/1 and other relevant documents
on record. This case is to be adjudicated and disposed off on the basis of
circumstantial evidence in view of absence of any direct evidence/eye witness.
The defendant has not brought anything contrary on record to rebut the case of
the plaintiffs.
16. DW1 proved the copy of FIR along with untraced report which shows
that matter was reported to the police after incident. The police did not conduct
the proper investigation as to whether death was caused due to live earth wire
attached with the pole or in the house as argued by Ld. Counsel for defendant.
The alleged earth wire was not checked and only inspection was made on
11.04.2008 i.e. after many days of the incident. The testimony of DW2 is
relevant in respect that there was complaint regarding the leakage of electricity
at premises No. G2/6, Mansarovar Park near Railway Line i.e. the place where
the death of Sonu was caused on the day itself though the witness later tried to
improve his version. The incident rather reflects the undiligent and the lazy
attitude of the police in investigation or taking necessary steps even when the
death of a boy caused due to electrocution from the earth wire attached with
CS No. 72/14 10 of 23
Usha Devi Vs. B. S. E. S.
the pole and the police not bothered to take action or inform the defendant
immediately to rectify the defect. The plaintiff cannot be held responsible for
the same. The defendant No. 2 also admitted during crossexamination that
live current can come even in the earth wire but produced nothing scientific to
show that the same is very low and is not sufficient to cause death of a boy.
The postmortem report shows the injury and mark left on the body of the
deceased due to live wire which is normally or usually not used inside in the
wiring inside the house. Moreover, the lineman who went for inspection on
29.03.2008 upon complaint is not produced by the defendant to reasons best
known to show that there was no electricity fault in the earth wire or any such
fault was in any house. The DW2 also admitted during crossexamination that
the alleged place of incident and the place inspected by him on 11.04.2008 was
the same and also identified the photographs Ex. PW4/7 which shows the earth
wire attached with the pole. There is no denial of the factual position that late
Sonu died on 29.03.2008 due to electrocution. Nothing is brought on record by
the defendant while denying that death was not caused due to live earth wire
attached with the pole. This has even otherwise been proved beyond doubt by
means of cogent and reliable evidence brought on record in the shape of FIR
Ex. PW4/1, testimony of Pws and the postmortem report Ex. PW3/1 which
gives out the cause of death of the deceased shock as the result of antemortem
electrocution. So examining the case on the basis of preponderance of
probabilities, it is proved that the death of the boy Sonu took place due to
electrocution from the live earth wire attached with the pole on 29.03.2008.
17. PW1 and PW2 has categorically deposed that Sonu died on account of
CS No. 72/14 11 of 23
Usha Devi Vs. B. S. E. S.
electrocution. From the materials on record and the testimony of the witnesses
it is also proved that from the spot, he was taken to hospital and was declared
brought dead by the doctor. PW3 proved the postmortem report and the
electrocution as cause of death. The FIR is also proved and the version of the
plaintiff in FIR as well as plaint and testimony recorded before the court
remained same. The testimony of the DW2 is not helpful for the defendant for
the simple reason that, inspection if any, of the live earth wire attached with
the electric pole was carried after many days of the incident on. There is no
material on record to prove that earth wire was thoroughly checked and there
was no live current thereof as contended in the plaint. No report in this regard
has been filed and proved by the defendants and the report if any dated
11.04.2008 i.e. after many days of the incident. Further, the DW2 neither
present nor any inspection was made on behalf of defendant of the spot on the
day of the incident. The corroborative evidence on the other hand i.e.
Complaint regarding the leakage and visiting the lineman at the house near the
spot on the day of incident after the PCR call is sufficient to show that the
death of Sonu took place due to electrocution outside his house/ live current
earth wire attached with the electric pole. It is true that no eye witness has
been examined by the plaintiff and the application filed in this respect to
produce additional evidence and examine the eye witness by the plaintiffs was
dismissed vide order dated 01.07.2013 but it is proved that the boy Sonu died
outside the house due to electrocution and nothing contrary is brought before
the court by the defendant to deny the claim of the plaintiffs that the death was
caused due to live earth wire attached with the electric pole.
CS No. 72/14 12 of 23
Usha Devi Vs. B. S. E. S.
18. It is argued by learned counsel for the defendant that the plaintiff has
failed to prove the case and even in the criminal proceedings and FIR in
question, the final report was filed as untraced and the defendant was absolved
from the liability and therefore, the defendant cannot be held liable. This
contention of learned counsel for defendant does not appear to be sound and
reasoned. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in
(2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as
under:
'' 8. There cannot be any doubt or dispute that a creditor can
maintain a civil and criminal proceedings at the same time.
Both the proceedings, thus, can run parallel. The fact
required to be proved for obtaining a decree in the civil suit
and a judgment of conviction in the criminal proceedings
may be overlapping but the standard of proof in a criminal
case visavis a civil suit, indisputably is different. Whereas
in a criminal case the prosecution is bound to prove the
commission of the offence on the part of the accused
beyond any reasonable doubt, in a civil suit "
preponderance of probability" would serve the purpose
for obtaining a decree".
19. Being civil suit for damages, this suit is to be decided on the basis of
preponderance of probabilities. In the case of Raj Kumar Singh & Anr. Vs.
Jagjit Chawla, reported in 183 (2011) DLT 418, the Hon'ble High Court of
CS No. 72/14 13 of 23
Usha Devi Vs. B. S. E. S.
Delhi was pleased to observe as under:
" A civil case is decided on balance of probabilities. The
balance of probabilities in the present case shows that the
Power of Attorney Ex. PW3/1 and the Will Ex. P1 were duly
executed by the deceased Sh. Sohan Singh. The Power of
Attorney is after all a registered Power of Attorney, and more
importantly, the original title documents of the subject property
are in the possession of the respondent No. 1 and which would
not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her fatherinlaw Sh. Sewa Singh, if the impugned judgment is set aside."
20. In the facts and the circumstances of the case, the doctrine of res ipsa loquitur would apply with full force. The maxim is stated as under:
" Where nothing is shown to be under the management of the defendant or his servant, and the accident is such as in the ordinary course of things does not happen if those who have the management used proper care, it affords reasonable evidence, in the absence of explanation by the defendants that the CS No. 72/14 14 of 23 Usha Devi Vs. B. S. E. S. accident arose from want of care."
The maxim was examined and discussed by Hon'ble Supreme Court in Shyam Sunder & Ors Vs. State of Rajsthan, AIR 1974 SC 890 and held that the mere fact that the cause of the accident is unknown does not prevent the plaintiffs from recovering damages. Hon'ble Supreme Court observed as under: " The maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariable compelled to prove the precise cause of the accident and the defendant responsible for it, even when the facts bearing on the matter are at the outset unknown to him and often within the knowledge of the defendant.......
The maxim is based on common sense and its purpose is to do justice when the facts bearing on the causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant (see Barkway CS No. 72/14 15 of 23 Usha Devi Vs. B. S. E. S. V. S. Wales Transport ( 1950) AER 392......
The plaintiff merely proves a result, not any particular act or omission producing the result. If the result in the circumstances, in which he proves it, makes it more probable than not that it was cause by the negligence of the defendant, the doctrine of res ipsa loquitur is said to apply, an the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability ........
Over the years, the general trend in the application of the maxim has undoubtedly become more sympathetic to.
Plaintiffs. Concomitant with the rise in safety standards and expanding knowledge of the mechanical devices or our age less hesitation is felt in concluding that the miscarriage of a familiar activity is so unusual that it is most probably the result of some fault on the part of whoever is responsible for its safe performance ( see John, G. Fleming, The Law of Torts, 4th ed. , P.
260."
21. Applying the principle of res ipsa loquitor, it was not for the plaintiff to prove that defendant was negligent. Rather it was for the defendant to prove that defendant was not negligent and has taken every precaution for safety of all invites and visitors. The factum of death of Sonu on account of CS No. 72/14 16 of 23 Usha Devi Vs. B. S. E. S. electrocution as well as the negligence of the defendant is proved keeping in view the preponderance of probabilities. The negligence is the breach of the duty caused by omission to do something which a reasonable man, guided by those considerations, which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. This court is of the considered opinion that deceased Sonu had died on account of electrocution due to live current in earth wire attached with electric pole since the defendant was negligent in this regard, the defendant is responsible to pay the compensation to the plaintiffs as prayed in the suit. Issue No. 1 is decided in favour of the plaintiffs and against the defendant.
In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities.
22. It is admitted that the responsibility of the electric supply was upon the defendant. If the energy transmitted caused injury or death of a human being, who gets unknowingly trapped into it, the primary liability to compensate the sufferer is that of the supplier of the electricity. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable CS No. 72/14 17 of 23 Usha Devi Vs. B. S. E. S. risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as " strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.
23. The doctrine of strict liability has its origin in English Common Law when it was propounded in the celebrated case of Rylands Vs. Fletcher ( 1868 Law Reports (3) HL 330). The rule strict liability was approved and followed in India in several decisions and the principle was reiterated in Kaushnuma Begum Vs. New Indian Insurance Company Ltd., 2001 (2) SCC 9.
In M. C. Mehta Vs. Union of India, Hon'ble Supreme Court of India even beyond the rule of strict liability held that, " Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is cause on any one on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands V. Fletcher."
24. Hon'ble Supreme Court in Union of India Vs. Prabhakaran; 2008 (9) SCC 527 extended the principle of strict liability to cover the public utilities CS No. 72/14 18 of 23 Usha Devi Vs. B. S. E. S. which may be social utility undertaking not working for private profit. As held: In such a case highest degree of care is expected from private and public bodies especially when the conduct is causes physically injury or harm to persons.
But, in a case, where life and personal liberty have been violated the absence of any statutory provisions for compensation in the statute is of no consequence. Right to life guaranteed under article 21 of the constitution of India is the most sacred right preserved and protected under the constitution, violation of which is always actionable and there is no necessity of statutory provision as such for preserving the that right.
25. The ratio of judgment reported as III (2003) ACC 25 titled as Smt. Abha Yadav & Ors. Vs. Municipal Corporation of Delhi squarely applies in the facts of this case.
As held in M.P. Electricity Board Vs. Shail Kumar & Ors, 2002 SCC ( CRI ) 315, the Supreme Court considered the question of strict liability of the electricity board in a case of electrocution of a citizen and ruled that in such circumstance, irrespective of any negligence or carelessness, state electricity board was liable to pay the damages and the exception " Act of stranger" to the rule of strict liability was not attracted. The Court held: CS No. 72/14 19 of 23 Usha Devi Vs. B. S. E. S. " Even assuming that all the safety measure had been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertaking. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as " strict liability". It differs from the liability which arises on account of the negligence or fault in hits way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions.
One of the seven exceptions to the doctrine of strict liability is." act of stranger i.e. if the escape was cause by the unforeseeable act of a stranger, the rule does not apply. But that exception is not available to the Board as the act attributed to the third respondent should reasonably have been anticipated or at any rate its consequences should have been prevented by the appellant Board."
26. Keeping in view the above legal position, the question which remained to be adjudicated is as to whether the defendant is liable for the actionable negligence. From the materials on record and on the basis of preponderance of probabilities, it is established that deceased Sonu died due to electrocution CS No. 72/14 20 of 23 Usha Devi Vs. B. S. E. S. outside his house from the earth wire attached with the electric pole. The onus to show that the earth wire and the pole was installed and maintained by the defendant properly and has no live current to cause the death of deceased Sonu. The defendant was further under obligation to show that the death of deceased Sonu was not caused due to any negligence on the part of the defendant. As mentioned there is nothing on record except bald averments of the defendant that there was no live current in the earth wire attached with the pole. The DW2 rather deposed that there is possibility of live current in the earth wire. There is no cogent or sufficient evidence to show that the said earth wire did not contain the live current causing death of deceased Sonu. In cross examination the DW2 identified the alleged pole Ex. PW4/7 and also regarding the complaint regarding leakage of current at the place of accident where the said lineman of the defendant has gone for inspection on the day of the incident on PCR call. So looking from any angle whatsoever, there is no escape from the conclusion that the earth wire attached with the electric pole was electrified and became live with the current due to the negligence of the defendant in the proper maintenance of their lines and equipment. In the opinion of this Court the defendant is squarely liable for actionable negligence in regard to the death of Sonu and therefore liable for damages/compensation.
27. The next question to be examined relates to the assessment of the damages/compensation. It is well settled that the accepted measure of damages awarded is the pecuniary loss suffered by the defendants as a result of death. It is also well recognized that except where there is express statutory direction to the contrary, damages to be awarded to a dependent of a deceased person must CS No. 72/14 21 of 23 Usha Devi Vs. B. S. E. S. take into account any pecuniary benefit accruing to the defendant in consequences of death of the deceased. The actual pecuniary loss of its individual can only be ascertained by balancing, on the one hand, the loss to him of the future pecuniary benefit, on the other, any pecuniary advantage which from whatsoever source comes to him by the reason of the death. Hon'ble Supreme Court in Re Gobald Motor Services Ltd. Vs. R. N. K. Valu Swami & Others stated the general principles regarding the actual pecuniary loss. The assessment of the damages to compensate the dependent is beset with difficulties.
28. In the case at hand deceased Sonu was 10 years old entitled to complete his whole life with all prospects in future it is contended by learned counsel for the plaintiffs that the plaintiffs are poor persons and could not have compensation as they could not arrange the court fees to be paid for the suit to be file for more than Rs. 4 Lakh. It is also established that the deceased was unemployed and not earning but the prospects of his future cannot be ruled out. The plaintiff No. 1 and 2 claimed that they are unemployed and have no earnings. The claim of compensation is not controverted nor even a suggestion was put to the Pws that the compensation claimed was excessive. Keeping in view the facts and circumstances of the case, there is no doubt that the deceased at least would have earned Rs. 4,00,000/ (Four lakh) through out his life or even more keeping in view the minimum wages prevalent at this time. Therefore, examining the facts of this case, the assessment of claim for damages of Rs. 4 lakh as prayed seems to be just and reasonable and cannot be CS No. 72/14 22 of 23 Usha Devi Vs. B. S. E. S. considered to be excessive by any standard. This court is of the considered opinion that it is a fit case where the plaintiffs are entitled to be awarded the amount of compensation of Rs. 4,00,000/ ( Rupees four lakh) as claimed in the suit. There is no question of apportionment of the amount of the compensation awarded to the plaintiff as all the plaintiffs except 1 and 2 are minor and looked after by plaintiff No. 1 and 2. Further, this suit is filed through natural guardian i.e. plaintiff No. 1. Issue No. 2 is accordingly decided in favour of the plaintiffs and against the defendant.
29. Relief In view of the above said discussions and findings, the suit of the plaintiffs is decreed in favour of the plaintiffs and against the defendant for an amount of Rs. 4,00,000/ ( Rupees four lakhs) along with pendente lite and future interest @ 9% per annum with cost of the suit. Decree Sheet be prepared accordingly.
File be consigned to record room.
Announced in open Court on this 7th day of February, 2014 Gorakh Nath Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
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Usha Devi Vs. B. S. E. S.