Chhattisgarh State Power Distribution ... vs Smt. Hemlata Netam on 27 January, 2022

[Cites 17, Cited by 2]

Chattisgarh High Court

Chhattisgarh State Power Distribution ... vs Smt. Hemlata Netam on 27 January, 2022

1. By this appeal, the appellant/defendant No.1 would call in question the legality and validity of the impugned judgment and decree dated 10-2-2021 passed by the District Judge, Mahasamund, in Civil Suit No.H 02-B/2018 whereby an amount of Rs.14,36,200/- has been passed as compensation in favour of respondents No.1 to 4/plaintiffs.

2. The facts, in brief, are that a suit was filed by the plaintiffs who are the wife, two children and mother of Omkumar Netam (since deceased) against the appellant/defendant No.1 on the ground that on 8-1-2008 at about 11.30 am the deceased went to his agricultural field and while working in the field, due to some fault in the electric pole, which was installed adjacent to the land of the deceased, electric current started flowing into the field whereby the deceased came into contact of the electricity and eventually succumbed. The plaintiffs further pleaded that since the live wires were kept open as such the electricity came into the field and hence, the negligence was on the part of the defendant No.1. The plaintiffs also pleaded that on the date of incident the deceased was aged about 28 years and was working as Shiksha Karmi Grade III; earning Rs.4,773/- per month; and in future prospects he would have earned much more. The plaintiffs next pleaded that the deceased was sole earning member of the family and because of his untimely death they had suffered irreparable injury and on these grounds they claimed compensation to the tune of Rs.14,45,481/-.

3. The defendant No.1/appellant herein denied the entire plaint allegations. It was stated that they used to maintain the electric poles and lines, therefore, there was no question of any negligence of leakage of electricity from the pole, which was installed at the land adjacent to agricultural field of the deceased and hence they are not at all liable to make payment of compensation. The defendant No.1 further stated that earlier the plaintiffs had already filed MJC 3 FA No.63 of 2021 No.5/2012, which was dismissed, therefore, the subsequent suit was barred by time.

4. The defendant No.2/State remained ex parte before the trial Court.

5. The plaintiff No.1 Smt. Hemlata Netam, wife of the deceased, got examined herself, as PW-1 and also examined Parmanand Netam as PW-2 whereas on behalf of the defendant No.1 no evidence was led. Learned trial Court after evaluating the facts and evidence passed a decree of Rs.14,36,200/-. Thus, this appeal.

6. Learned counsel appearing for the appellant/defendant No.1 would submit that the trial Court erred in deciding the monthly income of the deceased to the extent of Rs.7,000/- per month as there was no evidence in this regard. He would further submit that in absence of any evidence, the income cannot be decided only on the basis of presumption. In support of his contention, learned counsel placed reliance on the decision rendered by the Supreme Court in Rani and Others v National Insurance Company Limited and Others 1 and would submit that in the case of like nature when the evidence of income is absent then the Supreme Court held that the notional income to the extent of Rs.5,000/- per month would be sufficient. He would submit that in the case of Rani (supra) the incident occurred in 2009 whereas in the case at hand the incident occurred in 2008, therefore, there is proximity of time. Consequently, the monthly income of Rs.7,000/- as arrived by the Court below is grossly inflated. He would next submit that though earlier MJC filed by the plaintiffs was dismissed, but they failed to refer the same and as such the plaintiffs have not approached the Court with clean hands. Thus, the impugned judgment and decree passed by the learned trial Court requires interference.

7. Despite service of notice, no representation is made on behalf of the respondent No.1 to 4/plaintiffs.

1 (2018) 8 SCC 492 4 FA No.63 of 2021

8. Considering the nature of the case that the death occurred in 2008 and the legal heirs of the deceased are still fighting for justice before the Court, we deem it appropriate to hear the matter at the motion stage itself to arrest any further delay in adjudication.

9. Perusal of the record would show that no evidence was led on behalf of the defendant No.1. Plaintiff No.1 Smt. Hemlata Netam (PW-1), wife of the deceased, has exhibited the documents from Ex.P/1 to P/ 12 about the incident. The documents pertains to merg intimation and respective enquiry thereof. The merg was registered by exhibiting Ex.P/1 to P/3 and cause of death is shown as electrocution. Ex.P/4 is the crime details form showing map of site. It shows the presence of electric pole at the border of the land of the deceased and the place of dead body of the deceased. Ex.P/5 is the postmortem report dated 8-1-2008 wherein cause of death has been shown to be asphyxia owing to respiratory paralysis caused by electrocution. Conclusion in report is shown to be accidental. In the postmortem report, the age of the deceased has been shown as 28 years. Thus, the cause of death due to electrocution is apparently proved.

10. The submission of the defendant No.1 that because of such electrocution earlier MJC No.5/2012 was filed, which was dismissed is also proved by document Ex.P/15 to Ex.P/50, which are the order sheets. On reading of the document, which is the certified copy of the order sheet dated 26-10-2017 (Ex.P/50), it would show that the plaintiffs though had made valuation of suit to Rs.7,57,312/-, but since the Court fees was not paid it was dismissed. Subsequently the present suit was filed before the Court on 5-9-2018.

11. The earlier MJC was dismissed for want of payment of Court fees without any trapping on merits. In the matter of Sopan Sukhdeo Sable and Others v Assistant Charity Commissioner and Others2, the Supreme Court laid down the object and purpose when the suit is dismissed under Order 7 Rule 11 of the Code of Civil 2 (2004) 3 SCC 137 5 FA No.63 of 2021 Procedure, 1908 (for short 'the CPC'). It lays down that the purpose of Order 7 Rule 11 CPC is to keep out the vexatious and meritless claim. It also held that Order 7 Rule 11 CPC lays down an independent remedy made available to the defendant to challenge the maintainability of the suit itself, irrespective of his right to contest the same on merits. It further held that rejection of plaint under Rule 11 of Order 7 does not preclude the plaintiffs from presenting a fresh plaint in terms of Rule 13.

12. Reading of the earlier order sheets would show that in the MJC, the Court directed the plaintiffs to pay the Court fees in exercise of power under Section 149 CPC and having not been paid the same was dismissed on 26-10-2017 (Ex.P/50). Thereafter, the present suit was filed after a period of 10 months 9 days.

13. With respect to payment of Court fees, this Court in the matter of Rishikesh Sahu v. Chattisgarh State Electricity Board & another3, has held that the notification F.No.9-2-86-B-XXI dated the 2nd August 1986, which exempts the parties to pay the Court fee in the plaint when the death of any member of the family is caused on account of environmental, vegetationial, ecological water and such other pollutions caused by the operation in an industry through leakage or escape of any dangerous gases, vapours, fumes or dust from any part of the plant would also apply to the cases of victim who dies because of electrocution. In the matter of Rishikesh Sahu (supra), the Division Bench of this Court has exempted the Court fees when the death is caused as a result of injuries sustained by him due to electrocution. In the said decision it was held that ad valorem Court fees would not be paid and the petitioner would be entitled to take benefit of exemption as per the Notification dated 2-8-1986.

14. The said Notification dated 2-8-1986 whereby the Court fees was exempted would be relevant to the issue in hand and is reproduced as under :

3 MCC No.90 of 2003 (decided on 20-9-2012) 6 FA No.63 of 2021

Notification F.No.9-2-86-B-XXI, dated the 2nd August, 1986.--In exercise of the powers conferred by Section 35 of the Court Fees Act, 1870 (No.7 of 1870) and in supersession of the Department Notification No.F. 9-1-84-B-XXI, dated the 29th December, 1984, the State Government hereby remits in whole the Court Fees mentioned in Article 1-A of the First Schedule and Articles 1 , 11 and 11-A of the Second Schedule payable on a plaint, appeal, revision or any other claim, as the case may be, presented by a person for compensation for,-

(i) any damage or injury caused to him or any member of his family; or

(ii) the death of any member of his family; or

(iii) any damage caused to him or member of his family's property; or

(iv) any damage, injury to, or death of a citizen of India; or

(v) any damage and/or loss caused to a Corporation, undertaking, establishment, association, department and any other juristic person;

on account of environmental, vegetational, ecological water and such other pollutions caused by the operation in an industry through leakage or escape of any dangerous gases, vapours, fumes or dust from any part of the plant.

Explanation.-For the purposes of this notification,-

(i) "person" shall include the Government of India; and

(ii) "family" shall include, husband, wife, minor son, unmarried daughter or any relation by blood wholly dependent on the claimant.

[Published in M.P. Rajpatra (Asadharan) dated 2-8-86 page 1178].

7 FA No.63 of 2021

15. The notification dated 02.08.1986 talks about exemption of Court fees under certain classes of claim. The notification manifest the intent of State to grant free legal access to the victim, who has suffered due to mishandling of industrial activities of hazardous substance.

Section 2 (e) of the Environment (Protection) Act, 1986 defines the "hazardous substance", which reads as under :

(e) "hazardous substance" means any substance or preparation which, by reason of its chemical or physico-chemical properties or handling, is liable to cause harm to human beings, other living creatures, plant, micro-organism, property or the environment;

16. In the case of Uttar Pradesh Power Corporation Ltd. & Anr. v.

Kaleemullah & Ors.4, the High Court of Allahabad has considered as to whether the electricity may be called a hazardous substance and held as under :

"8.....Electricity is the flow of free electrons in a particular direction at the particular moment. The flow can be any wire or even an atmosphere like lightening or in body or in other body. The electron is very small and it has been discovered by the scientist that an electron is a pins about an excess and it has got organic field. The electron is thus a material article and electricity is the flow of all these small material particulars in a particular direction. The flow consequently is the flow of a matter having physico chemical properties like when passed through water, it separates the hydrogen from the Oxygen atoms (electrolysis). Thus, the electricity is a substance having physico chemical process and also hazardous...."

17. Now the question is whether victim of electrocution can be given benefit of said notification dated 2-8-1986. In order to interpret the object and intention of the State while issuing said Notification has 4 AIR 2010 ALL 117 8 FA No.63 of 2021 to be seen in the light of principles of purposive interpretation. The notification on plain reading shows the centrality of notification gives shelter to real victims of certain class. The Hon'ble Supreme Court in the matter of Tirath Singh v. Bachittar Singh and Others5 has observed that where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence.

18. Likewise in the matter of M.C. Mehta and Another v. Union of India and Others6, the Hon'ble Supreme Court while explaining the purposive interpretation of law for changing need has held that it is not necessary for us to consider these decisions laying down the parameters of this rule because in a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry as part of the developmental programme, this rule evolved in the 19th Century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. We need not feel inhibited by this rule which was evolved in this context of a totally different kind of economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms which would adequately deal with the new problems which arise in a highly industrialised economy.

5 AIR 1955 SC 830 6 (1987) 1 SCC 395 9 FA No.63 of 2021

19. Further in the matter of New India Assurance Company Ltd. v.

NUSLI Neville Wadia and Another7, it is further held by the Hon'ble Supreme Court at para 51 :

"51.....With a view to read the provisions of the Act in a proper and effective manner, we are of the opinion that literal interpretation, if given, may give rise to an anomaly or absurdity which must be avoided. So as to enable a superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable legislator/ author. So done, the rules of purposive construction have to be resorted to which would require the construction of the Act in such a manner so as to see that the object of the Act is fulfilled, which in turn would lead the beneficiary under the statutory scheme to fulfill its constitutional obligations as held by the court inter alia in Ashoka Marketing Ltd. (1990) 4 SCC 406."

20. Accordingly, when the damages caused due to electrocution by live wire lying on road the rule of strict liability would be applicable. Accordingly, when the damage to person or property is caused which is otherwise caused a tortuous liability, and is covered under strict liability where the death caused by electrocution, due to live wire or any incident which escapes and caused damage or injury to a person or property to claim damages, we are of the opinion that the purposive interpretation of notification would be required and accordingly instead of putting it out from the reach of vast, we deem it proper to hold that by virtue of notification dated 02.08.1986 payment of court fees would be exempted.

21. The Limitation Act, 1963 provides for exclusion of time in legal proceedings. For ready reference, Sections 12, 13 & 14 of the Limitation Act, 1963 are quoted below :

12. Exclusion of time in legal proceedings.

--(1) In computing the period of limitation for any suit, appeal or application, the day from 7 (2008) 3 SCC 279 10 FA No.63 of 2021 which such period is to be reckoned, shall be excluded.

(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.

(3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment shall also be excluded.

(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.

Explanation.--In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.

13. Exclusion of time in cases where leave to sue or appeal as a pauper is applied for.--In computing the period of limitation prescribed for any suit or appeal in any case where an application for leave to sue or appeal as a pauper has been made and rejected, the time during which the applicant has been prosecuting in good faith his application for such leave shall be excluded, and the court may, on payment of the court fees prescribed for such suit or appeal, treat the suit or appeal as having the same force and effect as if the court fees had been paid in the first instance.

14 Exclusion of time of proceeding bona fide in court without jurisdiction.--(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant 11 FA No.63 of 2021 shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.

Explanation.--For the purposes of this section,

(a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;

(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;

(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.

22. As has been held by the Court that the electrocution was due to leakage of electricity/escape of dangerous ingredient like electricity and when the MCC was filed even the Court fees was not required to be paid, therefore, in the earlier proceeding of the litigation from 12 FA No.63 of 2021 13-8-2009 to 26-10-2017 the plaintiffs would be entitled to get protection for exclusion of time in legal proceedings.

23. Now coming to the merits of the case it shows that no evidence was adduced by the defendant No.l. Plaintiff No.1 Smt. Hemlata Netam (PW-1) stated that on 8-1-2008 at about 11.30 am while the deceased (husband of PW-1) was doing the work in the agricultural fields he came into contact with the electricity connection, which passed through a pole, which was installed at the land adjacent to their field, and has died. PW-2 Parmanand Netam, who was working with the deceased on 8-1-2008, stated that while the deceased was working in his field, the electricity started flowing through the adjacent electric pole in the field. They started running, but the deceased could not run and fell down. Thereafter, he was taken to hospital where the Doctors declared him dead. The postmortem report also fortifies the fact that death was due to electrocution.

24. In absence of evidence, the question arises for consideration is as to whether the defence raised by defendant No.1 that they were not liable for the death and whether the act of negligence so committed by the deceased himself is available to them or not. Similar nature of issue was considered by the Supreme Court in the case of M.P. Electricity Board v. Shail Kumar and Others8.

25. By referring the decisions rendered by the Supreme Court in the matters of Shail Kumar (supra) and Prabhakaran Vijaya Kumar (supra) this Court in Chhattisgarh State Power Distribution Co. Ltd. & Another v. Smt. Bahgwati Bai9 held thus at paras 9 to 12 :

(9) Now the question arises for consideration as to whether defence raised by the electricity department that they were not liable for the act as no negligence was committed by them whether was available to them or not.

Predominantly department has tried to raise defence to the 'torts' strict liability rule and exception for Act of god or safety measures.

8 2002 AIR SCW 129 9 FA 198 of 2003 (decided on 16-6-2014) 13 FA No.63 of 2021 This issue was considered in the case of M.P. Electricity Board Vs. Shail Kumar and others, 2002 AIR SCW 129 wherein Hon'ble Supreme Court has held that responsibility to supply electric energy in the particular locality is statutorily conferred on the Electricity 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. Therefore applying such principle, the defence so taken on the part of the management of the board that by reason of thunder storm the live wire fell down without there being any negligence was unavailable to the board. Even when safety 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 undertaking. The basis of such liability is the foreseeable risk inherent in the very nature of such activity and as such liability cast on such person is known, in law, as strict liability which is exactly in this case.

(10) Similarly Hon'ble Supreme Court in the case of Union of India Vs. Prabhakaran Vijaya Kumar (2008) 9 SCC 527 has laid down principle that exception to the doctrine of strict liability or no fault liability for hazardous activities cannot be applied to a Welfare State and there has been a corresponding shift from positivism to sociological jurisprudence. The Hon'ble Supreme Court at para 24 of this judgment has held as under:-

"24. The basis of the doctrine of strict liability is twofold; (i) The people who engage in particularly hazardous activities should bear the burden of the 14 FA No.63 of 2021 risk of damage that their activities generate, and (ii) it operates as a loss distribution mechanism, the person who does such hazardous activity (usually a corporation) being in the best position to spread the loss via insurance and higher prices for its products (vide Torts by Michael Jones, 4th Edn. p. 267).

(11) Hon'ble Supreme Court has stated that doctrine of strict liability shall be applicable to the public corporation or local bodies which may be of the social utility, undertaking not working for private profit.

(12) In the light of aforesaid principles I have examined the evidence adduced by both the parties closely. After careful examination of the evidence, I am of the opinion that the witnesses has substantially stated the fact that electricity line which was being run by the electricity department had broken and fallen to the ground wherein the deceased came in contact. The incidence is also on record that after the line had broken no warning was issued by the department of any danger to this effect that the live wire had broken down which may endanger the public life. It is not the case here that the deceased tried to enter in to a zone of danger knowing full well of the consequences. The fact that he was walking on the road and while such walk he came in contact with such live wire and eventually died because of the electrocution. Therefore the argument which is raised by the appellant that the deceased died not because of the negligence on part of electricity department cannot be sustained. As the deceased had died due to electrocution by electricity line which had fallen down was admittedly maintained by the electricity department. Therefore, they cannot escape the liability on this ground that no negligence was made by them. Therefore, after careful scrutiny of the evidence and finding of the trial court, I am of the opinion that the trial court while awarding the decree of Rs.1,22,500/- after evaluating the income of the deceased who was aged about 40 years has not committed any wrong and therefore the appeal has no merit and accordingly it fails and is hereby dismissed....

15 FA No.63 of 2021

26. In the light of aforesaid principle, we have examined the evidence adduced by the plaintiff. It is not a case that the deceased tried to enter into a zone of danger by climbing on the electric pole, but was working in the field and while working he came into contact with the electricity, which leaked through the pole situated at the land adjacent to the agricultural field of the death, therefore, the deceased died. The death occurred because of fault on the part of the defendant No.1 and not because on the fault of the deceased. Thus, the defendant No.1 cannot escape from the liability on the ground that no negligence occurred on its part.

27. Now turning to question of compensation, PW-1 Smt. Hemlata Netam has stated that her husband was working as Shiksha Karmi Grade III in the Primary School, Phoolwari, Baghbahara and was getting Rs.4,773/- per month towards salary. She further stated that in future his salary would have increased. The cross-examination of this witness with respect to quantum of salary no question has been put to her to demolish the same. The trial Court has held that monthly income of the deceased to be Rs.7,000/-.

28. We are of the opinion that the said amount of Rs.7,000/- per month cannot be accepted in absence of any evidence, when the wife of the deceased categorically stated that he was getting salary of Rs.4773/- per month.

29. In order to assess the damages, we would rely upon the decision rendered by the Supreme Court in the case of Sarla Verma (Smt.) and Others v Delhi Transport Corporation and Another 10. According to the evidence on record, on the date of incident, the deceased was aged about 28 years and was getting salary of Rs.4,773/- per month. For the purpose of calculation of the same, we rounded it to Rs.4,800/- per month. Further considering the age of the deceased i.e. 28 years, future prospects would be considered at 50% of the salary and since there were four dependents, deduction would be one fourth towards the personal expenses of the deceased. 10 (2009) 6 SCC 121 16 FA No.63 of 2021 Taking into the age of the deceased, the multiplier would be 17. Thus, we calculate the compensation as under :

              S.No.                    Heads                           Calculation

          1           Income of the deceased @ Rs.4800/- per Rs.4800 x 12
                      month                                  Rs.57,600/- p.a.

          2           50% of (1) above to be added as future Rs.28,800/-
                      prospects

                                                 S.No.1 + S.No.2 Rs.86,400/-

          3.          One Fourth deduction          as   personal Rs.21,600/-
                      expenses of the deceased

                                         (Rs.86,400-Rs.21,600) Rs.64,800/-

4. Compensation after multiplier of 17 is (Rs.64800 x 17) applied Rs.11,01,600/-

5. Loss of love & affection Rs.25,000/-

6. Loss of estate Rs.10,000/-

7. Funeral Expenses Rs.25,000/-

Total Compensation (S.No.4+5+6+7) 11,61,600/-

30. In view of the above, the decree is modified to the above extent. The defendant No.1 is directed to pay an amount of Rs.11,61,600/- (Rupees Eleven Lacs Sixty One Thousand Six Hundred Only) to the plaintiffs No.1 to 4. The amount of compensation will carry interest at the rate of 6% per annum with effect from the date of incident i.e. 8-1-2008 till the actual date of realization.

31. In the result, the appeal is partly allowed, leaving the parties to bear their own cost(s).

32. A decree be drawn accordingly.

                         Sd/-                                           Sd/-

                (Goutam Bhaduri)                                (Rajani Dubey)
                      Judge                                          Judge

Gowri
                             17
                                                         FA No.63 of 2021

                        HEAD NOTE

Claim made in death case, which occurred owing to electrocution would be exempted from Court fees pursuant to notification dated 2-8-1986.

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Chattisgarh High Court