Karnataka High Court
The Managing Director And Ors vs Smt.Kalavathi W/O Late Pullayya And Anr on 8 December, 2020
Author: P.N.Desai
Bench: P.N.Desai
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 8TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE P.N.DESAI
REGULAR SECOND APPEAL NO.200159/2015
C/W
REGULAR SECOND APPEAL NO.200158/2015
In RSA No.200159/2015:
Between:
1. The Managing Director
Gulbarga Electricity Supply
Company, Kalaburagi
2. The Executive Engineer
O & M Division, GESCOM
Raichur
3. The Assistant Executive
Engineer, O & M Sub-Division
GESCOM, Raichur
.... Appellants
(By Sri Ravindra Reddy, Advocate)
And:
1. Smt. Kalavathi
W/o Late Pullayya
Age: 42 years
Occ: Household Work
R/o Yermarus, Tq. Raichur
2. The Deputy Commissioner
Raichur
... Respondents
(By Sri Basavaraj R. Math, Advocate for R1;
R2 served)
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This Regular Second Appeal is filed under Section 100
of the Code of Civil Procedure praying to set aside the
judgment and decree dated 23.04.2014 in O.S.No.229/2012
passed by the Senior Civil Court and JMFC-1 Raichur and
dated 15.11.2014 passed in R.A.No.53/2014 by the Court of
Prl. District & Sessions Judge at Raichur and etc.
In RSA No.200158/2015:
Between:
1. The Managing Director
Gulbarga Electricity Supply
Company, Kalaburagi
2. The Executive Engineer
O & M Division, GESCOM
Raichur
3. The Assistant Executive
Engineer, O & M Sub-Division
GESCOM, Raichur
.... Appellants
(By Sri Ravindra Reddy, Advocate)
And:
1. Smt. Kalavathi W/o Late Pullayya
Age: 42 years Occ: Household Work
R/o Yermarus, Tq. Raichur
2. The Deputy Commissioner
Raichur
... Respondents
(By Sri Basavaraj R. Math, Advocate for R1;
Smt. Archana P. Tiwari, AGA for R2)
This Regular Second Appeal is filed under Section 100
of the Code of Civil Procedure praying to set aside the
judgment and decree dated 15.11.2014 passed in
R.A.No.25/2014 by the Prl. District & Sessions Judge at
Raichur and set aside the judgment and decree dated
22.04.2014 passed in O.S.No.229/2012 by the Addl. Senior
Civil Judge and JMFC-1, Raichur and etc.
}}}
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These appeals coming on for admission this day, the
Court delivered the following:
JUDGMENT
Though the matters are listed for admission, with the consent of both the counsel, they are taken up for final disposal.
These two appeals lay challenge to the common judgment and decree passed in R.A.No.25/2014 and R.A.No.53/2014 passed by the Prl. Dist. & Sessions Judge, Raichur, dated 15.11.2014 wherein the First Appellate Court allowed the appeal filed by the plaintiff by modifying the judgment passed in O.S.No.229/2012 by the Addl. Senior Civil Judge & JMFC-1, Raichur, enhancing the damage at Rs.8,00,000/-. Further the First Appellate Court dismissed R.A.No.53/2014 filed by the defendants.
2. For the sake of convenience, the parties will be referred to as per their respective ranks before the trial Court.
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3. The brief case of the plaintiff before the trial Court was that on 13.05.2012 in the morning her son Mallikarjun along with another son Ramesh went to bring water from the compound of the house belonging to one Siddappagouda, situated at Yaramaras Camp. At that time, one electric pole LT live wires of GESCOM attached to the compound wall of the said Siddappagouda, wire fell on the wet ground, on account of which it became earthed and due to earthing live electricity flown and plaintiff's son Mallikarjun came in contact with said live electric wire, there was short circuit and Mallikarjun died due to electrocution. The plaintiff and one Narasanagouda who was present in the spot screamed for help, then said Narasanagouda switched off the main switch. Immediately the said Mallikarjun was taken to the OPEK Hospital but doctors declared him as dead.
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4. It is further contended that if GESCOM authorities had maintained electric wires properly according to the rules and regulations under the Indian Electricity Act, incident could have been avoided. But GESCOM authorities failed to take necessary precautionary measures in maintaining live electricity wires. The unfortunate death of the said deceased- Mallikarjun was complained to the concerned police. Raichur rural police have registered the case in Crime No.94/2012 for the offence punishable under Section 304-B of IPC. It is further contended that the deceased was working as a Computer Operator in Government Hospital and drawing a salary of more than Rs.10,000/- per month. Due to his sudden death, plaintiff is deprived of her livelihood and claimed compensation to the tune of Rs.8,00,000/-.
5. The defendants appeared and took a defence denying the contentions of the plaintiff. They have 6 denied that the incident took place due to negligent act of the defendants in erection and maintenance of electricity; defendants have stated that it is due to negligent act of the one Jagannath who had undertaken the work of changing old service wires belonging to the house of one Bhupal. At that time, the said Jagannath negligently cut off the wire from the cutting player and the live wire fell on the ground wherein electricity was flowing; the deceased was knowing about said live wire and negligently came in contact with the wire and died; so defendants were not liable for the said incident. With these contentions they have prayed to dismiss the suit.
6. On the basis of the pleadings, the trial Court framed the issues and additional issues. There afterwards the plaintiff, mother of the deceased got examined herself as PW.1 and got examined two witnesses as PW.2 and PW.3 and got marked 26 documents at Ex.P1 to Ex.P26. Thereafter, the 7 defendants have got examined two witnesses as DW.1 and DW.2 and got marked 16 documents at Ex.D1 to Ex.D16. The trial Court after hearing the arguments answered the issues in favour of the plaintiff and additional issue in negative and awarded damages/compensation of Rs.2,00,000/-(Rupees Two Lakhs only).
7. Aggrieved by the same, the plaintiff filed R.A.No.25/2014 seeking enhancement of quantum of damages. The plaintiff calculated the amount as per the method of compensation awarded under the Motor Vehicles Act and quantified of compensation at Rs.18,34,851/-.
8. The defendants also aggrieved by the finding of the trial Court regarding the defence set up by the defendant regarding negligence, filed appeal contending that finding of the Trial Court is not correct and decreeing the suit on that basis is not tenable. 8
9. The First Appellate Court after hearing both sides dismissed the regular appeal filed by the defendants and allowed the appeal filed by the plaintiff by modifying the judgment and decree of trial Court holding that plaintiff is entitled for damages to the tune of Rs.8,00,000/-.
10. Aggrieved by the same, these two appeals are filed by the appellants-Board on the following grounds:
(a) That the judgment and decree of the Courts are contrary to the pleadings and evidence.
(b) The Courts have committed error in fixing the liability on the defendants. On the other hand, one LT wire had fallen on ground only because, it was cut by cutting player deliberately.
(c) The Courts have failed to taken into consideration the evidence that accident occurred due to negligence on the part of the deceased-Mallikarjun.
There was no negligence on the part of the defendants. 9 Defendants relied upon the decision of Hon'ble Supreme Court reported in AIR 2005 SC 3971 in case of SDO Grid Corporation of Orissa Ltd., and others V/s Timudu Oram. The compensation awarded is on the higher side.
11. With these contentions prayed to frame the substantial question of law as pleaded in its appeal memo.
12. In RSA No.200158/2015 also the appellant has taken similar contention as taken in RSA No.200159/2015 and also relied upon decision reported in AIR 2005 SC 3971 in case of SDO Grid Corporation of Orissa Ltd., and others V/s Timudu Oram and prays to set aside the Judgment of the first appellate court.
13. Heard Sri.Ravindra Reddy, learned counsel for appellants-GESCOM and Sri.Basavaraj Math, learned counsel for respondent No.1 in both the appeals.
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14. Learned counsel for appellants/defendants argued that, the said incident has not occurred due to negligence on the part of defendants, but there is third party intervention. There is no evidence to show that, the wire was not maintained properly. The electrician evidence is not considered. Some third person has cut the said wire and deceased came in contact with the said wire. No proper reasons are given by the first appellate court for allowing the appeal of the plaintiff and dismissing the appeal filed by the defendant. The defendant's negligence is not proved. The defendant cannot be held liable. In support of his argument the learned counsel has relied upon decision of Hon'ble Supreme Court reported in AIR 2005 SC 3971 in case of SDO Grid Corporation of Orissa Limited and others Vs Timudu Oram and relied at para No.6 of the Judgment and contended that as the courts have failed to give proper finding regarding negligence of the plaintiff and as a result of said negligence the deceased died. The 11 liability cannot be fixed on the defendants. With these main contentions the learned counsel for appellants in both the appeals prayed to allow the appeals and remand the matter to the court.
15. As against this learned counsel for respondent No.1/plaintiff argued that, both the courts have properly discussed the evidence. In fact the first appellate court has given reasons for arriving at its conclusion. The defense that the Electrocution was due to negligence on the part of defendant No.1 is not proved. The defence that act of the stranger has resulted in such incident was not available to the Electricity Board. In support of his arguments learned counsel has relied upon decision of Hon'ble Supreme Court reported in AIR 2002 SC 551 in case of M.P Electricity Board Vs Shail Kumar and others at paragraphs Nos.7 to 14. The learned counsel has further argued that, this case is covered by the decision 12 of Hon'ble Supreme Court. The Judgment of the first appellate court needs no interference and prays to dismiss the appeals as no substantial question of law arises for consideration.
16. The undisputed contentions are that, the deceased died due to electrocution. It is also undisputed that, the deceased was the son of the plaintiff. His age and occupation is also not disputed. It is also not disputed that, the plaintiff has claimed damages of Rs.8,00,000/-.
17. The main defense of the defendants is that, the defendants are not liable as the incident occurred, not due to negligence on the part of defendants, but it is on the part of negligence of the deceased himself.
18. In order to prove their case both the plaintiff and defendants have adduced the evidence. The trial court found that, the death of the deceased occurred 13 due to coming in contact with the electric pole's live wire which fell on the ground and it became earthed and electricity flown on said Mallikarjun who came in contact with said live electric wire, it short circuited Mallikarjuna died due to electrocution. The plaintiff has produced as many as 26 documents as Ex.P.1 to Ex.P.26, i.e. FIR, Post Mortem Report, Documents regarding training taken by the deceased and his marks card, his salary certificate as per Ex.P.26. The plaintiff has examined two witnesses in support of her case. It is also evident from the evidence of PW.3/Pavadapa S/o Basappa who is working in the health Department that the deceased was working in the said health department and deceased was also getting salary of Rs.8,284/- per month. The documents produced by the plaintiff in this regard are Ex.P.10 to Ex.P.26.
19. The trial court has specifically framed an issue and additional issue No.1 as to whether the said 14 incident occurred due to the act of one Jaganath when he was changing his service wire in the house of one Bhupal and he has cut live LT wire with a cutting player and that has resulted in death of Mallikarjun. The said finding is answered against the defendants and in favour of the plaintiff. The contentions of written statement of the defendants are not proved by the defendants. On the other hand, as far as, the contention due to negligence of defendants/appellants authorities death of deceased occurred and their liability is concerned, both the trial court and first appellate court have discussed in detail the evidence of both sides and given finding. In fact the first appellate court discussed the evidence of defendants/appellants Assistant Engineer Anand as DW.1 wherein DW.1 has admitted that, whenever the service wire is laid on the street or public it is necessary to lay wire with insulation and bed has to be fixed. The defendants have not adduced 15 evidence of said Jagannath, nor they have taken any action against him, if at all he has cut live electric wire.
20. The first appellate court has also discussed the evidence of electrical inspector one Babasaheb Desai, DW.2 and his report at Ex.D.16. DWd.2 has admitted that, whenever a live wire fell on the ground, the running of electricity should stop. DW.2 has stated that, fuse automatically puts off. But no such safety measures are taken by defendants. Ex.P.3 post mortem report clearly reveals that, the deceased died as a result of electric injury which is discussed by trial court and first appellate court in detail. The documents placed by the plaintiff and her oral evidence clearly indicates that the death was due to electrocution as deceased coming in contact with the said live wire which admittedly belongs to the defendants. Defendants have failed to prove that it is only because of the negligent act of one Jaganath, the said incident happened. The first 16 appellate court has relied upon Judgment in case of M.P Electricity Board Vs Shail Kumari and others reported in AIR 2002 SC 551 wherein at paras Nos.7 to 14 it is held by the Hon'ble Supreme Court as under:
7. It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the Board. If the energy so transmitted causes 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 electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the Board that somebody committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is the look out of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted.
Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps.
8. 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 risk inherent in the very nature of such activity. The liability cast on such 17 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.
9. The doctrine of strict liability has its origin in English Common Law when it was propounded in the celebrated case of Rylands v. Fletcher (1868 Law Reports (3) HL
330). Blackburn J.,the author of the said rule had observed thus in the said decision:
"The rule of law is that the person who, for his own purpose, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does so he is prima facie answerable for all the damage which is the natural consequence of its escape."
10. There are seven exceptions formulated by means of case law to the doctrine of strict liability. It is unnecessary to enumerate those exceptions barring one which is this. "Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule doe snot apply". (vide Page 535 Winfield on Tort, 15th Edn.)
11. The rule of strict liability has been approved and followed in many subsequent decision in England. A recent decision in recognition of the said doctrine is rendered by the House of Lords in Cambridge Water Co. Ltd. v. Eastern Counties Leather Plc. {1994(1) All England Law Reports (HL) 53}. The said principle gained approval in India, and decisions of the High Courts are a legion to that effect. A Constitution Bench of this Court in Charan Lal Sahu v. Union of India and a Division Bench in Gujarat State Rod Transport Corporation v. Ramanbhai Prabhatbhai had followed with approval the 18 principle in Rylands v. Fletcher. By referring to the above two decisions a two Judge Bench of this Court has reiterated the same principle in Kaushnuma Begum v. New India Assurance Co. Ltd. {2001 (2) SCC 9}.
12. In M.C. Mehta v. Union of India this Court has gone even beyond the rule of strict liability by holding that "where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused 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."
13. In the present case, the Board made an endeavour to rely on the exception to the rule of strict liability (Rylands v. Fletcher) being "an act of stranger". The said 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. In Northwestern Utilities, Limited v. London Guarantee and Accident Company, Limited {1936 Appeal Cases 108}, the Privy Council repelled the contention of the defendant based on the aforesaid exception. In that case a hotel belonging to the plaintiffs was destroyed in a fire caused by the escape and ignition of natural gas. The gas had percolated into the hotel basement from a fractured welded joint in an intermediate pressure main situated below the street level and belonging to the defendants which was a public utility company. The fracture was caused during the construction involving underground work by a third party. The Privy Council held that the risk involved in the operation undertaken by the defendant was so great that a high degree care was expected of him since the defendant ought to have appreciated the possibility of such a leakage.
14. The Privy Council has observed in Quebec Railway, Light Heat and Power Company Limited v. Vandry and Ors. {1920 Law Reports Appeal Cases 662} that the company supplying electricity is liable for the damage without proof 19 that they had been negligent. Even the defence that the cables were disrupted on account of a violent wind and high tension current found it sway through the low tension cable into the premise of the respondents was held to be not a justifiable defence. Thus, merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding the live wire lying on the road.
21. Further the first appellate court has also relied upon the decision of this High Court reported in 2007 (1) KCCR 645 in case of Borawwa and another Vs The Karnataka Power Transmission Corporation Ltd., and others wherein this High Court has clearly held that once the death could be attributed to the functioning of the Electricity Board, the principles of 'strict liability' is attracted and the Board is liable to compensate the representatives of the deceased. The learned single Judge of this court referred to the decision of M.P Electricity Board (supra) and held that, when there was negligence on the part of the officials of Board the respondent company is liable.
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22. The learned counsel for the appellants has relied upon decision of Hon'ble Supreme Court reported in AIR 2005 SC 3971 in case of SDO Grid Corporation of Orissa Limited and others Vs Timudu Oram. I have gone through the said decision, but that decision is of no help to the appellants/defendants. The principles stated in the said decision are not all disputed and it is held that in writ jurisdiction the High Court in exercise of its power under Article 226 of Constitution of India cannot grant compensation and it is held that, the parties should have been directed to approach the Civil Court. The decision of M.P Electricity Board referred (supra) was also referred by the Hon'ble Supreme Court at para No.8 it is clearly held that, the decision of M.P Electricity Board (supra) was based on the finding given in the suit filed in which finding of negligence was recorded by the trial court against the Board. Since there was a finding, the court has come to conclusion that the claimants were entitled for compensation. Even 21 in the decision reported in (2004) 5 SCC 793 in case of H.S.E.B and others Vs Ram Nath and others a similar view was taken. Therefore, this finding is also based on the suit and the first appeal. The decision of M.P Electricity Board (supra) aptly applicable to the said case in view of the observation made by the Hon'ble Supreme Court reported in AIR 2005 SC 3971 in case of SDO Grid Corporation of Orissa Limited and others Vs Timudu Oram.
23. Further the learned single Judge of this court in a decision reported in 2014 (3) AKR 526 in case of Gulbarga Electricity Supply Company and another Vs Mariyamma and another) also referred to the decision of earlier Bench wherein at para No.10 it is held as under:
10. This High Court has held in a case reported in Borawwa Guggari and Kumar Vittal Minor, Rep. By his Next Friend and Natural Guardian and Mother Borawwa Guggari Vs. The Karnataka Power Transmission Corporation Ltd. (Formerly K.E.B.) and Others, that once the death due to electrocution is attributed to the functioning of the Electricity Board, the principles of strict liability is attracted and the Board is liable to compensate the representatives of the deceased. In fact, there was no 22 necessity for the trial Court to have taken into consideration the contributory negligence of the victim. In fact in a case like this, the contributory negligence does not arise as the authorities engaged in transmission of electricity are expected to take maximum care in the maintenance of electric wire. Suffice to state that the trial Court has mulcted the maximum responsibility on defendants 1 and 2 who are entrusted with the maintenance of high tension electric wire. The negligence of defendants 1 and 2 has been assessed by the trial Court on the basis of preponderance of probabilities. Keeping in mind the principle of strict liability as held in Rylands Vs. Fletcher, the trial Court has held that non-obtaining of any permission from the competent authorities by the third defendant to put up a construction would not absolve the responsibility of defendants 1 and 2. It is in this regard issue No. 5 has been answered in the negative. After deducting contributory negligence of 25% of the victim, the trial Court has assessed the compensation at Rs. 1.95 lakhs with interest at 6% p.a. thereon from the date of suit.
Taking into consideration the loss or dependency and loss of consortium, amount so awarded by the trial Court cannot be considered either excessive or exorbitant. On the other hand, the compensation so awarded is quite reasonable and well within the limits.
In view of principles of law referred above it is evident that the defendants contention is not tenable. The concurrent finding of both Courts is a finding of fact regarding negligence on the part of defendants.
24. Looking into the above facts and circumstances the Judgment of the trial court and first appellate court which have arrived the finding regarding 23 negligence, based on the evidence available on record and appreciating the same. Both Courts came to the conclusion that, there is negligence on the part of defendants and finding of fact with regard to the negligence and liability of the defendants by both the courts in my considered view it does not call for framing of any substantial question of law. As far as quantum of compensation modified by the first appellate court there is not much dispute. In fact the trial court has simply awarded Rs.2,00,000/- based on the some assessment which is properly modified by the first appellate court. The first appellate court has observed that, plaintiff has claimed in her plaint the compensation of Rs.8,00,000/-. In fact the plaintiff filed Regular Appeal for enhancement of compensation to Rs.18,00,000/-. The plaintiff calculated the compensation as submitted by the learned counsel to the tune of Rs.18,00,000/- by adopting the method of awarding compensation by the Tribunal in Motor Vehicles 24 Accident Cases. May be for that reason the plaintiff was contending that, the deceased was entitled for compensation of Rs.18,00,000/- in the appeal. But the first appellate court considering the facts and circumstances of the case and also material placed before the court, looking into salary certificate and income of the deceased and considering the fact that the plaintiff has claimed only Rs.8,00,000/- in the plaint restricted the said claim for damages to Rs.8,00,000/-.
25. In fact in this case the deceased was working and he was salary drawing person. The plaintiff has produced salary certificate of deceased Mallikarjun as per Ex.P.26 and examined one witness PW.3 Pavadappa who is working in Health Department where the deceased Mallikarjun was working. PW.3 has produced document to show that deceased Mallikarjun was getting salary of Rs.8,284/- per month. The first appellate court has restricted the damages only to the 25 tune of Rs.8,00,000/- as claimed in plaint. The plaintiff has not challenged the award of said amount. Therefore, keeping in mind principles regarding award of damages or compensation, taking salary and age of the deceased, and other factors regarding grant of compensation, the modification of compensation by the first appellate court cannot be said as either excessive or exorbitant. On the other hand, the compensation awarded is quite reasonable and well within its limits. Accordingly I find no grounds to interfere with the concurrent finding of both Courts. No question of law, much less any substantial question of law as stated in Section 100 of Code of Civil Procedure arose for consideration. Viewed from any angle, it is evident that the appeal is devoid of merits and is liable to be dismissed.
Therefore, I pass the following:
ORDER The Regular Second Appeals are dismissed.26
The Judgment and decree passed by Prl. District & Sessions Judge Raichur in Regular Appeal No.25/2014 & Regular Appeal No.53/2014 dated:
15-1-2014 are hereby confirmed.
The parties are directed to bare their own costs.
Send back the secured records to the concerned courts forthwith if any.
Sd/-
JUDGE Sdu/MNS