Rajasthan High Court - Jaipur
R.S.E.B. And Anr. vs Jai Singh And Ors. on 30 August, 1996
Equivalent citations: 1998ACJ738, AIR1997RAJ141
ORDER A.S. Godara, J.
1. Briefly stated the facts giving rise to the present petition are as follqws: Non-petitioner-plaintiffs are sons and daughters of late Keshar Singh, who brought a suit claiming damages amounting to Rs. 1060,000/- against the petitioner-defendants in the Court of District Judge, Rajsamand alleging that live electric wires of 11 K.V. were passing over their field. On the fateful night of 15-2-1992 at about 9p.m. Keshar Singh, his wife Smt. Mohani and his son Kishan Singh, present, in: their house :situated in their agricultural field, saw that stack, of grass lying in the field, of wheat had caught fire from the the snapped (broken) live electric wires whose broken ends were lying on the field. They immediately rushed to the spot with a view to extinguish fire. Since the snapped and broken ends of the live electric wires were lying on the ground and there was electrid Current passing into the land, they got struck by the electric current, as a result of which they were burnt to death on the spot. As a result, non-petitioner-plaintiffs brought action for damages purporting to be under the provisions of Section 1A of the Fatal Accidents Act, 1855 on account of death of their father and mother. It was claimed that the petitioner-defendants who were licensees and owners of the over-head electric wires, who were passing electricity by way of operating overhead electric wire were grossly negligent in maintaining the same in order. It was also pleaded that such wires passing above their field had snapped (broken) three or four times earlier and a complaint was lodged by the villagers before the local authorities of the respondent-R.S.E.B. but the officers of the Board neglected to take appropriate remedial action. This resulted in the unfortunate tragedy which had engulfed three valuable human lives.
2. This claim of the non-petitioner-plaintiffs was mainly defended by the peti-
tioner-defendants on the ground that there was no negligence, omission or default on the part of the R.S.E.B. authorities and that electric wires were passing above the field of the claimants since 1976 and that Shri Refique Mohd. resident of village Sathiya constructed his house thereafter who had stacked grass and fodder on the terrace of his house and nearer to the over-head electric wires passing, from there and so sparkings resulting from the live electric wires suddenly got fire, as a result of which electric wires became quite hot and on its getting melted the same got snapped and broken and its ends fell on the ground since the standing crop of wheat was irrigated just before the occurrence so the ground was wet and hence no sooner the deceased persons went there in an attempt to extinguish fire, they got electrocuted resulting in their deaths. Thus the defendant have throughout maintained that the unfortunate occurrence did not take place due to their negligence, omission or fault but the deceased themselves were negligent and at fault as a result of which they had died.
3. During the pendency of the suit, the plaintiffs moved an application dated 30-11-1993 purporting to be under Section 151, C.P.C. praying that the plaintiff being sons and daughters of the deceased Keshar Singh and his wife Smt. Mohani so electrocuted along with their son Kishan Singh and the plaintiffs Nos. 2 to 4 were minors and they did not have any source of income to maintain themselves. Mangu Singh and Kumari Laxmi who were also students were not in a position to pursue their studies further because of the financial handicaps as a result, their guardian Jai Singh, who is their brother was working as a daily wage earner and he did not have enough source of income to maintain them. Therefore, it was requested that pending decision of the suit, an interim relief of Rs. 60,000/- be granted to them. This was resisted to by the defendants on the similar grounds as those are advanced in the written statement filed in the suit itself.
4. After hearing both the parties, the learned trial Judge, rejecting the objections from the side of the defendants that there was no provision for awarding of interim relief in such matters, held that the Court did have inherent powers to award interim relief in such cases and, consequently, having regard to the exceptional hardship of the plaintiffs, ordered that a sum of Rs. 50,000/- be paid as an interim relief to the plaintiffs within a period of one month from the order, failing which the defendants would also be liable to pay interest at the rate of 15% p.a. from 30-11-1993, being the date of presentation of the application.
5. Being aggrieved, the defendants have come in this revision, as petitioners as above.
6. I have heard the learned counsel for the petitioner as well as the non-petitioners, perused the legality, propriety and regularity of the same along with the pleadings of the parties as well as the statements of the witnesses examined by the A.En., R.S.E.B., Kelwara during the course of statutory preliminary enquiry conducted at the instance of the petitioner-Board.
7. The learned counsel for the petitioners has challenged the impugned order mainly on the ground that the plaintiffs cannot succeed in the main suit. It has also been vehemently argued that the defendants have denied the allegations of any negligence, omission or default on the part of officials of the petitioner-Board and as such, unless the trial Court concludes negligence, omission or any default on the part of R.S.E.B. or its agents, no finding of any liability on the part of the defendants can be arrived at. That being so, the learned trial Judge wrongly relied on the decisions of Thressia v. Kerala State Electricity Board (1987) 2 ACC 546 : (AIR 1988 Kerala 206); Ishar Mal v. Babu Lal, 1976 Raj LW 142 : (AIR 1977 Raj 160) and Padma Beharilal v. Orissa State Electricity Board (1992) 2 ACC 440 : (AIR 1992 Ori 68) (DB), thereby granting interim relief after about a lapse of 2 1/2 years from the date of the occurrence to which they were never entitled.
8. The learned trial Judge erroneously used jurisdiction purporting to be in exercise of its inherent powers which are to be used very sparingly and only in exceptional cases and in the present case, the plaintiffs did not have any prima facie case and, therefore, their claim was likely to be defeated and as such the impugned order being without jurisdiction and devoid of any merit, it deserves to be set aside.
9; On the contrary, Mr. S.S. Rathore, appearing for the non-petitioners has supported the legality and propriety of the impugned order.
10. On careful consideration of the rival contentions of the parties, so far as maintainability of the claim by the plaintiffs, who are the dependants of the deceased-parents, no Valid challenge can be thrown against the same. Besides, the plaintiffs have maintained that the live electric wires passing above their fields also got previously snapped-broken on three or four occasions and the villagers had complained to the local officials of the Board. However, in spite of replacing or substituting such old and damaged wires, they were rejoined by way of knots and, therefore, the same were intervally getting snipped and broken and there was a constant danger of electrocution resulting in deaths and damage to the property. Though, the petitioner-Board denied it but, admittedly, the electric wires' line was laid in the year 1976, i.e. about 20 years back.
11. The learned counsel for the petitioners in all fairness, has produced the statements of witnesses namely, Bheru Singh, Ratan Singh, Khuyman Singh and Rafique Mohd. examined during course of preli-minary enquiry conducted by the A.En., R.S.E.B., Kelwara.
12. Khuman Singh, Helper, who is none but the employee of the Board itself, has clearly stated that on 15-2-1992 itself, after his duty was over he went to Charbhujaji arm he was told by Girija Shankar that the earth wire of 11 K.V. line was snapped at Tadawara and that an insulator pin was also detached and, therefore, after shutting down electricity supply, repairs are required to be carried out. However, he went to his village and learnt at about 11 p.m. in the same night through Phool Singh and Lehri Lal that because of damage to the live electric wires resulting in electrocution of the three deceased persons such an incident had taken place. Besides, the petitioner-defendants heaver pleaded that the sparks resulted from the live electricity passing wires resulted in setting grass lying on the terrace of the house of one Rafique Mohd, on fire as a result of which the wires melted and got snapped and its end fell on the ground which resulted in electrocution of the deceased. Assuming so, the sparks must have resulted due to fluctuation and trimming in the supply of electricity and besides, as per the pleadings of the petitioners themselves the grass was lying on the terrace of the house which was quite nearer to the overhead passing electric wires and, therefore, it was also negligent act by way of an omission from the side of the defendants in not having raised the height of the passing wires or to have removed the same from their present position. Besides, the plaintiffs have consistently maintained that such electric wires got snapped and broken on three or four occasions earlier since the same were old and damaged, it was incumbent on the defendants to have replaced the same and they must have taken every precaution as a result of which they could neither got snapped nor sparks could be released from there due to any disorder in supply of the electric wires. The defendants apparently failed to do so. Therefore, for the present, the defendants cannot dispute that they were, operating and maintaining supply of electricity through the electric poles located on both sides of the place of incident and electricity wires joints with both the poles were passing above the field of the deceased persons. Thus, the field whereon the residential house of the deceased was also situated, were agricultural fields the area was inhabited and, therefore, it was the duty of the officials/ agents of the R.S.E.B. that the electric lines passing over bead were perfectly in order and there was no visible possibility and apprehension of their being snapped and sparks being released from them resulting in electrocution and fire to the property. However, R.S.E.B. positively failed to do so which is an apparent omission on their part.
13. That being so, when the deceased I persons were not at the fault at all and on the contrary, the R.S.E.B. through its officials/ agents were negligent and at its faulting end, as held in the decision of Padam Beharilal case (AIR 1992 Orissa 68) (supra) by the Orissa High Court, since it was the positive duty of the R.S.E.B. to maintain the electric wire lines free from such incident. It is having failed to do so, the maxim res ipsa loquitur, it was not for the plaintiffs but, when admittedly parents of the petitioners along with his son Kishan Singh were electrocuted immediately and they were burnt on the spot, in such event it is not for the plaintiffs to prove any such specific act or omission amounting to negligence of the R.S.E.B. but the burden shifts on the defendants to establish that the unfortunate incident was not a result of negligence on the part of the R.S.E.B.
14. In view of this matter, so far as the merit of the application is concerned, it need not detain any longer.
15. As regards powers of the trial Court to award interim relief in such cases, though there is no direct provision to have awarded such interim relief but, the learned trial Judge appears to have exercised its inherent power under Section 151, C.P.C. which says that nothing in the Code (C.P.C.) shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent the abuse of process of the Court.
16. Admittedly, when there is no positive or contrary provision to grant interim relief in such cases, the Court has got inherent power to make such order as may be necessary for the ends of justice.
17. As discussed, the plaintiffs are dependants of Keshar Singh and Smt. Mohni who were their parents, besides Kishan Singh, their brother was also similarly killed but keeping in view the provisions of Section 1A of the Fatal Accidents Act, brothers and sister cannot be deemed to be dependants to claim any benefit on account of the death. However, the plaintiffs having lost their parents in antaneously having been electrocuted and the claim being so legally maintain-able against the defendants, there is prima facie evidence to support claim for damages by the plaintiffs. That being so, the trial Court got pecuniary as well as territorial jurisdiction to decide such disputes of compensation and damages and, therefore, when there is no specific provision for awarding of interim relief or maintenance to the helpless dependants of the deceased persons, the trial Court was well within its jurisdiction while exercising inherent power to award interim relief being necessary for the ends of justice.
18. Though, there is no provision for award of interim maintenance pending final disposal of an application under Section 125, Cr.P.C. but, in the case of Smt. Savitri v. Govind Singh Rawat, AIR 1986 SC 984, the Hon'ble Supreme Court has held that having regard to the nature of the jurisdiction exercised by the Magistrate under Section 125, Cr.P.C. though the said provision did not contain any provision for awarding interim maintenance but the provision should be interpreted as conferring power by necessary implication on the Magistrate to pass an order directing a person against whom an application is made under it to pay a reasonable sum by way of interim maintenance subject to the other conditions referred to pending final disposal of the application.
19. In the case of Isharmal (AIR 1977 Raj 160) (supra) Hon'ble Mr. Kudal, J., while dealing with the intent, purport and scope of Section 151, C. P. C. in a case under the Hindu Adoptions and Maintenance Act, 1956, held that the Court has inherent powers to grant interim maintenance in suitable cases. The grant of such interim relief does not in any way prejudice the substantial rights of the parties. To hold otherwise would mean that the very purpose of the suit might be frustrated as the plaintiff-petitioner might not be able to sustain the proceedings due to want of means. That being so, the lower Court cannot be held to have acted illegally or with material irregularity in exercise of its jurisdiction in granting interim relief.
20. In the case of Thressia (AIR 1988 Ker 206) (supra), the Kerala High Court in its writ jurisdiction under Article 226 of the Constitution of India, exercising its extraordinary writ jurisdiction under Article 21 of the Constitution of India, while relying on the Division Bench case of the same High Court in K.S.E.B. v. Kamalakshy Amma, 1986 Ker LT 1124 : (AIR 1987 Ker 253), observed that the plaintiffs having succeeded in proving that a pedestrian was electrocuted from a live wire hanging down from an electric post, there arose a presumption of fact that there was lack of proper care on the part of those in the management or control of the power supply system at the particular place and consequently the principle res ipsa loquitur was attracted in holding the defendants careless or negligent on their part.
21. In the case of Padam Beharilal (AIR 1992 Orissa 68) (supra), also, being a writ petition filed under Art. 226 of the Constitution of India, in a similar matter, it was held that in such matters of compensation, the same must be maintained in the regular Court of competent jurisdiction but, however, in similar exigencies an interim compensation of Rs. 30,000/- was ordered to be paid to the petitioner (claimant).
22. As a result, when there is no prohibition, bar or limit against the exercise of inherent powers by the trial Court which was in seizing of the subject-matter of the claim and the plaintiffs maintained that they were not in a position to maintain themselves, apparently, when there is every likelihood to further delay the decision of the suit, after a passage of 2 1/2 years from the date of accident, the plaintiffs cannot be left as destitute without any interim relief. If it were so, no just and equitable relief can be obtained by the plaintiffs in near future and it will automatically result in frustration of their cause which will amount to abuse of process of the Court. Therefore, with a, view to prevent abuse of process of the Court as is usual looking to the defence of the defendants and also to further meet the ends of justice, it was found necessary by the learned trial Court to award interim relief in a suit which cannot be, on any ground whatsoever, termed to be false of vexatious, the learned trial Court cannot be held to have exercised its inherent powers without jurisdiction as well as also to have acted either illegally or with a material irregularity in passing the impugned order. The same being just and necessary for the ends of justice, the same cannot be interfered with in this revision petition.
23. That being so, this revision petition is wholly devoid of merit and deserves to be dismissed.
24. As a result, this revision petition is dismissed and the impugned order is affirmed. In case the petitioners have not complied with the order, the same must be complied with within a month from the date of this order, failing which the trial Court should ensure expeditious realization proceeding therefor. No order as to costs.