Madhya Pradesh High Court
Smt. Shail Kumari vs M.P. Electricity Board And Anr. on 17 July, 2001
Equivalent citations: 2002ACJ424, AIR2002MP86, AIR 2002 MADHYA PRADESH 86, (2002) 1 JAB LJ 9, (2002) 1 ACJ 424, (2002) 1 MPLJ 531, (2002) 2 TAC 269, (2002) 3 CIVLJ 110
Author: Arun Mishra
Bench: Arun Mishra
JUDGMENT
Bhawani Singh, C. J.
1. This appeal arises out of judgment of Addl. District Judge (10th), Bhopal passed in Regular Civil Suit No. 3-B/98 dated 3-5-1999.
2. Before adverting to, the questions which call for consideration and determination in this case, it is desirable that some material facts of the case are narrated.
3. Smt. Shall Kumari (26) is wife of Jogendra Singh (deceased) and Deepak Kumar (7) is son of the deceased. They claimed compensation from the respondents for the death of Jogendra Singh by electrocution. Incident took place on 23-8-1997 when the deceased was going for duty on his bicycle and when he reached Sunder Nagar, naked electricity live wire of Madhya Pradesh Electricity Board (MPEB) was lying on the road and when the deceased got down from his bicycle, he came in contact with it and was electrocuted and died on the spot. Allegation is that Hari Galkwad had been taking illegal electricity connection from the electric pole. It was the duty of the MPEB to maintain the electricity supply, but, it failed to discharge the duty cast on it nor it prevented Hari Gaikwad from taking illegal supply of electricity. It was due to the negligence of the respondent No. 1 that deceased died due to electrocution. At the time of death deceased was earning Rs. 3500/- per month through wages, out of which he used to spend Rs. 200/- per month on himself leaving Rs. 3300/- to the claimants. He was aged 37 years at the relevant time. The life expectancy of family members was 65 years and in case the deceased had not died untimely, he would have saved Rs. 9,10,800/-for the family. Besides, due to his untimely death, the family members have been deprived of love and affection to the extent of Rs. 25,000/- apart from other losses mentioned in the claim seeking total compensation of Rs. 9,60,800/- with interest at the rate of 18% per annum.
4. Respondent No. 1 in its written statement has stated that with a view to discharge the responsibility, wherever the electricity line has been taken, staff has been deployed for its maintenance. The staff watches the electricity line day and night and wherever default is found, the same is corrected. Respondent No. 2 is not the consumer of MPEB. No electricity connection has been given to him. Deceased did not die due to the negligence of respondent No. 1, therefore, the suit deserves to be dismissed being on untrue facts.
5. Respondent No. 2 has denied the fact that illegal electricity connection was being taken by him. It is also denied that he left loose electricity wire. It is also denied that due to his negligence Jogendra Singh had died.
6. On the pleadings of the parties, the trial Court framed issues, on which parties led evidence and finding of the trial Court is that the deceased did not die due to the faulty live electricity wire of respondent No. 1 and did not die due to live electricity wire having been left negligently by respondent No. 1. Consequently, the claim for Rs. 9,60,800/- has been rejected. Although, on fact the trial Court came to the conclusion that the claimants would be entitled to compensation of Rs. 4,34,000/-. The claimants are not satisfied with the conclusion drawn by the trial Court and ultimate rejection of their claim by the impugned judgment, therefore, this appeal has been filed to challenge the same.
7. Shri Manikant Sharma, learned counsel for the appellants vehemently contended that the trial Court has committed serious wrong In dealing with the claim case and In drawing erroneous conclusion in rejecting the claim of the claimants. As a result, wrong findings have been recorded and the claim has been rejected unjustifiably. Although, the claimants have asserted res ipsa loqultor on the part of respondent No. 1 in maintaining the electricity line and non-supervising the supply of electricity in the area resulting in illicit taking of electricity from its wire resulting in the accident, however, it has been promptly concluded by the trial Court that the claimants did not prove the negligence on the part of the respondent. Whatever was possible by the claimants, has been come, rest was for the respondent to establish that no negligence was committed by it in performing its duty. Shri Manikant Sharma, learned counsel for the appellants drew our attention in number of decisions In support of the submission, which are being referred.
8. In 1975 MPLJ 744 : (AIR 1976 Madh Pra 38) (Manoharlal Sobharam Gupta v. Madhya Pradesh Electricity Board), claim for damage was based on negligence by MPEB when death of wife was caused by live electricity wire lying on street. Learned Judges were called upon to determine the standard of care required from the Electricity Board and the burden to prove negligence. After dealing with question, the Court held that the standard of care required of a body like Electricity Board is a high one owing to the dangerous nature of electricity. It is negligence on its part to omit to use all reasonable known means to keep the electricity harmless. There is no burden on plaintiff to prove negligence. If the defendant produces no material and evidence to negative negligence, negligence will be presumed. Live broken electric wires carrying high tension energy are generally not found in a public place, street or road and therefore if such a thing happens a prima facie inference of carelessness on part of defendant in transmitting energy or in properly maintaining transmission lines can be drawn. Precisely, it is said in para 4 of the Judgment that:
"4. The defendant has a statutory authority under the Electricity Act, 1910,read with the Electricity (Supply) Act, 1948, to transmit electric energy. The defendant, therefore, cannot be made liable for nuisance for the escape of electrical energy on the principle accepted in the case of Rylands v. Fletcher. (1866) LR 1 Ex. 265. The defendant, however, is still liable for negligence. It is negligence to omit to use all reasonable known means to keep the electricity harmless; (see Clerk and Lindsell on Torts, 13th edition, paragraph 1536). The burden of proving that there was no negligence is on the defendant and there is no obligation on the plaintiff to prove negligence. Further, the standard of care required is a high one owing to the dangerous nature of electricity; (see Charlesworth on Negligence. 5th edition, p. 531). If the defendant produces no material and offers no evidence to negative negligence, negligence will be presumed. This result will also follow on the principle of res ipsa loquitur. Live broken electric wires carrying high tension energy are generally not found in a public place, street or road, therefore, if such a thing happens a prima facie inference can be drawn that there has been some carelessness on the part of the defendant in transmitting electric energy or in properly maintaining the transmission lines. This inference is further supported by Rule91 of the Indian Electricity Rules, 1956. This rule provides that every overhead line which is not covered with insulating material and which is erected over any part of a street or other public place or any factory or mine or on any consumer's premises shall be protected with a device approved by the Inspector for rendering the line electrically harmless in case it breaks. If the precaution under this rule is taken the line in case it breaks would become dead and harmless. The fact that the line after it broke did not become harmless shows that necessary precaution was not taken. As the defendant has not produced any evidence whatsoever to place the facts showing that all necessary precautions were taken and there was no negligence on its part, It must be held that the accident happened because of the negligence of the defendant."
This judgment was followed by this Court in (1999) MPLJ 587 (Chairman. M, P. Electricity Board. Jabalpur v. Smt. Gindiabai) wherein in paragraph 8 the Court said that the M. P. Electricity Board is a statutory authority under the Electricity Act, 1910 read with the Electricity (Supply) Act, 1948. It has the duty to transmit electric energy and regulate the supply. It is expected of the board to do whatever is required to be done to avoid an accident. Its negligence cannot be equated with the negligence of an individual or a situational negligence. There is presumption of negligence when an accident of this nature occurs. Heavy onus is cast on the Board. It is required to discharge the onus....."
9. in 2000 Ace CJ 1286 : (AIR 1998 Orissa 159) (Klranbala Dandapat v. Secretary, Grid Corporation of Orissa Ltd.), in paragraph 7 application of doctrine of res ipsa loquitur has been discussed in the following term :
"7. It is pleaded by the opposite parties that there was no negligence involved, The doctrine of res ipsa loquitur would seem to apply to the facts.of the case. It is explained in a very illustrative passage in Clerk & Lindsell on Torts, 16th Edn., pp. 568-569, which reads as follows :
"Doctrine of res ipsa loquitur. The onus of proof, which lies on a party alleging negligence is, as pointed out, that he should establish his case by a preponderance of probabilities. This he will normally have to do by proving that the other party acted carelessly. Such evidence is not always forthcoming. It is possible, however, in certain cases for him to rely on the mere fact that, something happened as affording prlma facie evidence of want of due care on the other's part: 'res ipsa loquitur is a principle which helps him to do so'. in effect, therefore, reliance on it is a confession by the plaintiff that he has no affirmative evidence of negligence. The classic statement of the circumstances in which he is able to do so is by Erie, C.J. :
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 the ordinary course of thing does not hap-pen if those who have the management use proper care, if affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care'."
It is no more than a rule of evidence and states no principle of law. 'This convenient and succinct formula", said Morris, L.J., "possesses no magic qualities; nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin". It is only a convenient label to apply to a set of circumstances in which a 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. He merely proves a result, not any particular act or omission producing the result. The Court hears only the plaintiffs side of the story, and if this makes it more probable than not that the occurrence was caused by the negligence of the defendant, the doctrine res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability. It is not necessary for res ipsa loquitur to be specifically pleaded.
Reference may be made to another passage from the same book at page 723 which reads as follows :
"Liability to children. An occupier must be prepared for children to be less careful than adults. Something which would not be a danger to an adult may very well be one to a child, and a warning sufficient for an adult may be insufficient for a child. in Moleney v. Lambeth London Borough Council, an occupier was held liable to a four years old boy who fell through the bars of a balustrade. If a person of the size of the plaintiff lost his balance he was liable to go through the gap. The staircase did not comply with the occupier's duty of care to a child of that age. But in Ward v. Hertfordshire C.C., it was held there was no liability to a child aged eight who fell against a long standing brick and flint wall in a school's playground. The wall was not inherently dangerous and the presence of a supervisor would not have prevented the accident."
Then, in paragraph 8, it is said that :
8. The question of negligence of a company engaged in transmission of electric energy was considered in Sugbec Railway, Light, Heat. Power Co. Ltd. v. Vandry (1920) AC 662. The concerned Railway company in exercise of statutory powers had erected two overhead cables for the distribution of electric current. in the case, on account of a violent wind, a branch from a tree growing about 28 feet away from the cables was broken, which resulted in the breaking down of the cables and the high tension current found its way along with the low tension cable into the respondents' premises and caused a fire. An action for damages was brought by the respondents against the concerned power company. The Court of Appeal held that the company was liable for the damage without proof that it had been negligent, since it had failed to establish that it could not have prevented the escape of the electric current, further that its statutory power afforded no defence, since the escape of the current was not necessarily incidental to the exercise of those powers."
See also 1992 Ace CJ 554 : (AIR 1992 Orissa 68) (Padma Behari Lal v. Orissa State Electricity Board) 1994 Ace CJ 623 : (AIR 1994 Him Pra 139) (Seemu alias Seema v. Himachal Pradesh State Electricity Board and (2000) 2 Ace CJ 1199 : (AIR 1999 JGK 137) (Executive Engineer, Electricity (M&RE) Division, Awantipora. Anantnag v. Mohammad Ashraf Bhat).
10. The legal position, therefore, is that the MPEB is a statutory authority under the Electricity Act, 1910 r/w the Electricity (Supply) Act, 1948. It has the duty to transmit electric energy and regulate the supply. Therefore, it is the responsibility of MPEB to take all possible steps to avoid any accident in the transmission and regulation of electric supply and any negligence on its part is actionable at the instance of person who has suffered any damage to person or property. Claimant has to point out certain instances indicating negligence on the part of MPEB. But, that onus is not that strong which lies on MPEB to prove that it had taken all steps to prevent such occurrences and in performance of this duty it had not committed any kind of negligence. Looking to the nature of function in discharge namely supply of electricity. Duty to take care is high. Assuming that the claimant is not in a position to State exactly what actually happened since he himself is not sufferer, statement that the deceased died due to elec-trie shock from electricity line of the respondent No. 1 is sufficient to apply the principle of res ipsa loquitur helping the Court to come to the conclusion that the death of deceased took place in the accident alleged.
11. Turning to the evidence in this case, there is first information report (Ex. P/l) recorded at the instance of one C.S. Mlshra pointing out that Hari Gaikwad was taking illegal and unauthorized electricity supply from the line of MPEB which had fallen and the deceased was trapped in is and died as a result thereof.
12. Shri Vivek Awasthy. learned counsel for the MPEB contended that the first Information report in this case has not been forged, is not sustainable. The document has been exhibited in evidence. Therefore, for these proceedings, is is a relevant document indicating how the accident took place. Thereafter, there is reply of the MPEB dated 5-12-1997 (Ex. P/6) admitting in paragraph No. 5 that it came to know that in Sunder Nagar some person had been pilfering electricity from its supply line by directly putting wire. Due to falling of the wire deceased Jogendra Singh may have died by getting in touch with it. Therefore, the contention of Shri Awasthy that the claimants had not specifically stated that the deceased died due to the live electricity wire which had been illegally applied by Hari Gaikwad from its supply line, is not sustainable because in a pleading also the claimants have stated that the supply line was of the MPEB from which illegal supply had been taken by Hari Gaikwad. The MPEB has not stated that it was not from its supply line that electricity connection had been taken by Hari Gaikwad. is is not difficult to conclude from the available evidence nor there is dispute that the MPEB had its supply through Sunder Nagar. The respondent No. 2 had taken supply directly from the supply line of the MPEB illegally. This wire had fallen down and when the deceased passed through, he got in touch with it and died due to electrocution. The MPEB has stated in paragraph No. 5 of the document Ex. P/6 that is has kept staff to see that no pilferage of electricity takes place and it had no knowledge about this pilferage of electricity line by Hari Gaikwad. Therefore, it becomes clear that the electricity supply line was moving in that part of the area out of which the wire was hanging, may be or may not be put by Hari Gaikwad. but, is was live electricity wire and when the deceased came in contact with it he died of electrocution. Therefore, the defences put up by the MPEB are absolutely without any basis and do not reflect the real position at the spot rather, attempt has been made to conceal the real position in order to avoid responsibility and liability for payment of compensation. Afterall, a person had died due to electrocution. This incident had been reported to the police vide Ex. P/l. is was the duty of the MPEB to have Inquired into the matter in terms of Section 33 of the Indian Electricity Act, 1910, particularly when the notice dated 5-12-1997 (Ex. P/6) had been issued and it had knowledge about the accident from the other sources as well. Therefore, it is crystally clear that the MPEB has failed to discharge its function carefully by not taking care of its electricity line maintained by it. Had it been careful, the hanging live electricity wire could have been easily detected and loss of human life avoided. Therefore, we are absolutely clear that negligence on the part of the MPEB is clearly established and the findings drawn by the trial Court on this aspect are set aside.
13. Having come to the aforesaid conclusion the question is about the compensation. Compensation has been determined by the trial Court. There is no appeal by the MPEB against it nor it has been assailed by learned counsel for the appellant. Therefore. the compensation assessed by the trial Court is appropriate compensation payable in this case. Since the evidence does not suggest that at the relevant time the hanging live electricity wire was not coming from the house of Hari Gaikwad and was hanging from the pole of the MPEB, therefore, is cannot be said that Hari Gaikwad is liable to pay the compensation. After having held that the MPEB is negligent and the live electricity wire hanging from its pole, the compensation is to be paid by the MPEB. The amount of compensation of Rs. 4,34,OOO/-assessed by the trial Court be paid by the MPEB within a period of three months.
14. Appeal is accordingly allowed. Costs on parties.