Telangana High Court
The Chairman And Managing Director, vs Marru Sudhakar Rao on 18 October, 2024
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE Dr. JUSTICE G. RADHA RANI
SECOND APPEAL No.1228 of 2008
JUDGMENT:
This Second Appeal is filed by the appellants - appellants - defendants aggrieved by the judgment and decree dated 13.04.2006 passed in A.S.No.72 of 2005 by the learned V Additional District & Sessions Judge (III Fast Track Court), Nalgonda at Miryalaguda in reversing the judgment and decree dated 16.09.2005 passed in O.S.No.88 of 2000 by the learned Senior Civil Judge, Miryalaguda.
2. The respondents are the plaintiffs. The parties are here in after referred to as arrayed before the trial court.
3. The plaintiffs 1 to 7 filed the suit against the defendants claiming damages of Rs.1,80,000/- along with interest and costs on account of death of nine (09) she buffaloes due to electrocution due to the negligence of the defendants.
4. The case of the plaintiffs was that they all belonged to Laxmidevigudem Village, Hamlet of Amangal of Vemulapalli Mandal, Nalgonda District. They owned small extents of lands and their livelihood was on agriculture. They acquired the cattle wealth to improve their living conditions. They usually 2 Dr.GRR, J sa_1228_2008 graze their cattle in the agricultural fields under their personal supervision except in the months of April to June, as there would be no harvest of crops in the fields at that time. All the villagers used to let out their cattle in the fields without supervision during the said months. As usual, while they had let out their cattle on 31.05.2000 at about 08:00 AM and when the cattle were grazing in the agricultural field belonging to one Perapaka Bixam, the cattle came into contact with live electric wire and died on the spot due to electric shock. On knowing the said fact, the plaintiffs lodged the complaint with Police Vemulapalli. The Police Vemulapalli registered Crime No.33 of 2000 under Section 429 of IPC. They took up investigation, conducted panchanama and the dead bodies of the cattle were subjected to post mortem examination by a veterinary surgeon. The veterinary surgeon who conducted the PME opined that the cause of death was due to electric shock.
4.1. The plaintiffs further submitted that prior to the incident i.e. on 29.05.2000, there was heavy rain in the village. Due to heavy rain, the electric poles were damaged and some of the poles were collapsed. The villagers who noticed the said fact, informed the defendant authorities at Sub-Station, AP TRANSCO, Thadakamalla and requested to restore the electric poles. The defendant authorities inspected the village and restored some of the lines and disconnected the power supply to the collapsed poles in the neighboring village habitation, but failed to disconnect the power lines to the transformer situated 3 Dr.GRR, J sa_1228_2008 nearby the fields of Perapaka Bixam on the eastern side of the village. The plaintiffs, who were not aware of the said fact that the power supply was not disconnected, left their cattle (she buffaloes) for grazing purpose. The plaint schedule buffaloes while grazing came into contact with live electric wire fallen on the ground in the field of Perapaka Bixam and died on the spot. The plaintiffs contended that as the defendant authorities failed to discharge their legitimate duties and left open the live electric wires in the field open to access to all the living creatures, the said incident occurred. If the defendant authorities acted with due diligence, the accident would have been averted and the lives of schedule cattle would have been saved, avoiding financial loss to the plaintiffs, as such claimed compensation from the defendant authorities. 4.2. The plaintiffs further contended that some of the she buffaloes were in pregnancy stage and some of them were in milking stage and they were giving about 10 liters of milk per day and sustained loss of income of Rs.150/- per day on each milking she buffalo. They further contended that usually each she buffalo would give milk for 10 to 15 years and would live up to the age of 18 to 20 years and a she buffalo at the age of 7 years would fetch more than Rs.20,000/-. Therefore, the plaintiffs claimed damages of Rs.20,000/- each on account of the death of nine she buffaloes. They further submitted that they got issued a legal notice through their counsel on 23.08.2000 and the same was served on the defendants and the defendants issued a reply on 02.11.2000. But, 4 Dr.GRR, J sa_1228_2008 as they failed to compensate the plaintiffs, the plaintiffs filed the suit claiming damages @ Rs.1,80,000/- from the defendants.
5. The defendant No.4 filed written statement, which was adopted by defendants 1 to 3. They admitted that prior to the incident i.e. on 29.05.2000, there was heavy rain and wind gales in the village and due to the heavy rain, electric poles were collapsed. They contended that the collapsing of poles and snapping of electric wires was an act of God (vis-major). When the falling of electrical poles and the snapping of live wires was in the notice of villagers, the shepherd / watchman who was marshalling the cattle for grazing purpose ought to have taken care and diverted animals away from the wires. The shepherd / watchman was supposed to know the existence of the poles and wires. The time of incident was shown as 08:00 AM; as such the wires were visible in the day light. The allegation that the mishap was brought to the notice of the defendant authorities was incorrect. No one informed the defendant authorities about snapping of wire or falling of pole. Had it been informed, the defendant authorities would have immediately cut off the supply and repair the snapped wires. The watchman of the cattle was negligent in marshalling the cattle away from the snapped live wire, which resulted in causing the death of she buffaloes. Therefore, there was negligence on the part of the plaintiffs. When the plaintiffs chose to let out the cattle to the fields for grazing without deputing the shepherd, it would show their willful negligence towards their cattle. The value 5 Dr.GRR, J sa_1228_2008 of the animals was shown in exorbitant figures. The cost of each cattle would be below Rs.5,000/- only. No country buffalo would yield more than 3 liters of milk per day. In the legal notice issued by the counsel for the plaintiffs, the plaintiffs sought damages @ Rs.12,000/- per each she-buffalo. In the letter addressed to Deputy Electrical Inspector, Nalgonda also, they sought for damages @ Rs.12,000/- per each she-buffalo. But demanded Rs.20,000/- per each she-buffalo in the suit. There was a distance of 15 kilometers from the place of incident to Tadakamalla Sub-Station and 30 kilometers from Vemulappalli Village to the place of incident and prayed to dismiss the suit.
6. Basing on the said pleadings, the trial court framed the issues as follows:
(i) Whether the cattle died on account of the defendants' failure to discharge their legitimate duty to restore the fallen electrical pole to the normal condition?
(ii) Whether the plaintiffs were entitled to recover damages, and if so, how much?
(iii) To what relief?
7. The plaintiff No.2 was examined as PW.1. The Sarpanch of the Amangal Village, who allegedly reported the falling of the electric wire to the defendant authorities, was examined as PW.2. The veterinary doctor who conducted the post mortem examination on the deceased cattle was examined as PW.3. Exs.A1 to A5 i.e. the certified copy of the FIR, attested copy of the PME, the 6 Dr.GRR, J sa_1228_2008 certified copy of the Final Report, the attested copy of the panchanama, the office copy of the legal notice with postal receipt were marked on behalf of the plaintiffs. The Assistant Divisional Engineer of AP TRANSCO, Miryalaguda was examined as DW.1. The Assistant Executive Engineer of Vemulapalli Mandal was examined as DW.2 and the Assistant Lineman was examined as DW.3. Exs.B1 and B2 were marked on behalf of the defendants.
8. On considering the oral and documentary evidence on record, the trial court i.e. the learned Senior Civil Judge, Miryalaguda dismissed the suit.
9. Aggrieved by the said dismissal of the suit, the plaintiffs preferred an appeal. The appeal was heard by the learned V Additional District & Sessions Judge (III Fast Track Court), Nalgonda at Miryalaguda. Vide judgment and decree in A.S.No.72 of 2005 dated 13.04.2006, the learned District Judge allowed the appeal reversing the judgment and decree of the trial court and decreed the suit in favor of the plaintiffs for a sum of Rs.84,800/- with interest @ 12 % per annum from the date of suit till the date of appeal on the principal amount and at @ 6 % per annum thereafter till realization.
10. Aggrieved by the said judgment and decree passed by the Lower Appellate Court, the defendants preferred this Second Appeal.
11. This Court admitted the Second Appeal on 28.11.2008 on the following substantial questions of law:
7
Dr.GRR, J sa_1228_2008 (1) Whether the suit is liable to be dismissed on the ground of joining of different and distinct causes of action or not?
(2) Whether for an act of God (vis-major), appellants can be burdened with payment of compensation or not?
12. Heard Ms.G.Nikitha, counsel representing Sri R.Vinod Reddy, learned Standing Counsel for AP TRANSCTO for the appellants - defendants on record and Sri S.Srinivasa Rao, counsel representing Sri L.Prabhakar Reddy, learned counsel for the respondents - plaintiffs on record.
13. Learned counsel for the appellants contended that the Lower Appellate Court erred in holding that the defendants were liable for the death of the cattle of the plaintiffs. The Lower Appellate Court ought to have seen that admittedly the deceased cattle were let out for grazing without any attendant or guard, and there was heavy wind and gale before the accident, there was no written complaint lodged by anyone to restore the electric pole before the accident and there was no time in between the heavy wind and gale and at the time of accident. The Lower Appellate Court ought to have seen that the accident occurred due to the act of God (vis-major) and hence negligence could not be attributed to the appellants. She further contended that the cause of action of each plaintiff was separate and distinct and hence a common suit was not maintainable. The Lower Appellate Court failed to see that there was no proper evidence or basis for arriving at the amount of compensation. The 8 Dr.GRR, J sa_1228_2008 compensation granted by the Lower Appellate Court was highly excessive, exorbitant and without any proper basis and prayed to allow the appeal.
14. Learned counsel for the respondents on the other hand contended that there was a heavy storm on 29.05.2000. There was no lineman appointed for the village of Laxmidevigudem. The Assistant Lineman examined as DW.3 belonged to the neighboring village Vemulapalli. PW.2, the Sarpanch gave information to the electricity authorities at Sub-Station, Tadakamalla. On receiving the information, the lineman came to the village on 30.05.2000 in the morning hours and restored some of the lines and also disconnected power supply to the collapsed poles in the neighboring village, but failed to disconnect the power supply to the transformer situated nearby the fields of Perapaka Bixam. The plaintiffs without having knowledge of the said fact left their cattle for grazing. When there was standing crop, there would be supervision. But when there was no crop in the fields, the cattle would be left unattended for grazing. Due to the negligence of the appellant authorities, the cattle belonging to the respondents - plaintiffs died. As such, the appellant authorities were liable to pay compensation to the plaintiffs. The Lower Appellate Court on considering all these aspects allowed the appeal and awarded damages to the respondents - plaintiffs. No substantial question of law would arise in this appeal. The cause of action was one and the same. As such, the plaintiffs could file a common suit. It was not due to the act of God (vis-major), but due to the 9 Dr.GRR, J sa_1228_2008 negligence of the appellant authorities, the death of cattle took place. As such, the appellants were liable to pay compensation / damages to the respondents - plaintiffs and prayed to dismiss the appeal.
Substantial Question No.(1):
Whether the suit is liable to be dismissed on the ground of joining of different and distinct causes of action or not?
15. Order 1 of CPC pertains to parties to suits and it describes as to who may be joined as plaintiffs. It reads as follows:
"1.Who may be joined as plaintiffs - All persons may be joined in one suit as plaintiffs where -
(a) Any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and
(b) If such persons brought separate suits, any common question of law or fact would arise."
16. The object of enacting this provision is to avoid multiplicity of suits to provide speedy trial, to save the time and to avoid unnecessary expenditure to the parties to the suit. The right to relief arises out of the same act or transaction and there is the common question of fact which has to be decided in 10 Dr.GRR, J sa_1228_2008 the suit, whether the death of the cattle was caused due to the negligence of the defendant authorities. The objection on the ground of misjoinder of the plaintiffs also should be taken at the earliest possible opportunity. If the same was not taken at the earliest opportunity, the same is deemed to have been waived. No objection was taken by the defendants about the misjoinder of the plaintiffs in their written statement or before proceeding with the trial of the suit before the trial court. They failed to even take the said ground before the First Appellate Court. As such, the objection taken by the appellants during the Second Appeal for the first time is not maintainable. As the plaintiffs are also jointly interested and the cause of action is one and the same and the death of the cattle is caused due to the electrocution due to the supply of electricity in the wires attached to the pole, which was collapsed, this Court does not find any substantial question of law arising in this matter. The suit is not liable to be dismissed on this ground.
Substantial Question No.(2):
Whether for an act of God (vis-major), appellants can be burdened with payment of compensation or not?
17. The act of God (vis-major) is a defence in the case of tort when an event over which the defendant has no control over it occurs and the damage is caused by the forces of nature. An act of God is based on the principle that a person cannot be penalized where the fault is that of a 'vis-major', where even 11 Dr.GRR, J sa_1228_2008 though all precautions were taken, but a casualty still occurred. Vis-major is a loss that results immediately from a natural cause without the intervention of man, and could not have been prevented by the exercise of prudence, diligence, and care. Thus, when an act is occurred due to natural causes directly and exclusively without human intervention and that it could not have been prevented by any amount of foresight and care reasonably to have been expected from the defendant, it is a valid defence. But if the harm or loss was caused by a foreseeable accident that could have been prevented, the party who suffered the injury has a right to compensation.
18. The Lower Appellate Court has given reasons for not accepting the defence of act of God (vis-major) taken by the defendants.
19. The Lower Appellate Court noted that:
"This Court is not inclined to accept the act of God (vis-major) as projected by the learned counsel for the defendants since the death of the schedule cattle does not took place directly on account of falling of the snapped electrical wires due to heavy rain and gales on 29.05.2000, but the cattle of the plaintiffs came into contact with electrical live wire in the land of Perapaka Bixam on 31.05.2000, in the meanwhile, there could be every possibility of the defendant authorities to restore the snapped electrical wires and / or atleast switch off the power supply of 12 Dr.GRR, J sa_1228_2008 the transformer attached to the said wire by exhibiting a little care and by discharging the duties as an ordinary prudent man of inspecting of the electrical poles and transformers within the jurisdiction of concerned lineman including the place of incident."
20. The Lower Appellate Court considering the evidence of PW.2, wherein he categorically stated that the villagers, who noticed about the collapse of the electrical poles and damage of wires informed him and he inturn informed the same to the electricity authorities of Sub-Station, AP TRANSCO, Tadakamalla and requested to take necessary steps and after receiving the information, the lineman of AP TRANSCO came to the village on 30.05.2000 in the morning hours and met him. He and the villagers informed about the fall of electric poles and lines near and around the village and near the fields of Perapaka Bixam and the lineman inspected the village and restored some of the lines and disconnected the power supply to the collapsed poles, but failed to disconnect the supply of power lines at the transformer situated at eastern side of the village, which was far away from the village, observed that the defendant authorities failed to exercise reasonable care as a prudent man would do. Under the given set of circumstances, held that the cattle died on account of the defendants' failure to discharge their legitimate duty to restore the fallen 13 Dr.GRR, J sa_1228_2008 electrical pole to the normal condition and answered the issue in favor of the plaintiffs.
21. This Court completely agrees with the view taken by the Lower Appellate Court and considers that it was a foreseeable incident, which could have been prevented by the appellant authorities, if they had exercised proper care and diligence and could have averted the incident and that the same would not come under the defence of 'act of God' or 'vis-major'. The event of the heavy rain and winds is not an event so exceptional and could have been anticipated by the authorities. As the lineman also visited the village and if he had exercised reasonable care and precaution, the loss of lives of cattle would not have taken place. As such, this Court does not find any substantial question of law arising in this matter. The award of compensation or damages passed by the Lower Appellate Court is reasonable, which does not require any interference by this Court.
22. In the result, the Second Appeal is dismissed confirming the judgment and decree dated 13.04.2006 passed in A.S.No.72 of 2005 by the learned V Additional District & Sessions Judge (III Fast Track Court), Nalgonda at Miryalaguda.
No order as to costs.
14
Dr.GRR, J sa_1228_2008 As a sequel, miscellaneous applications pending in this appeal, if any shall stand closed.
____________________ Dr. G.RADHA RANI, J Date: 18th October, 2024 Nsk.