Punjab-Haryana High Court
State Of Punjab And Anr. vs Champa Mangat Ram on 26 August, 1970
Equivalent citations: AIR 1971 PUNJAB AND HARYANA 373
JUDGMENT R.S. Narula, J.
1. The solitary question presented for determination by Mr. Jagan Nath Kaushal, the learned Advocate-General for the State of Haryana (who has appeared for the State as well as for the State Electricity Board). In this Regular First Appeal against the judgment and decree, dated October 10, 1960, of the Court of Shri Sugan Chand Jain, Senior Subordinate Judge, Gurgaon, for Rs. 8,640/- and costs, in favour of Mst. Champa respondent on account of damages for the death of her 20 years old son Hukam Chand on May 30, 1958, by being electrocuted by the stay wire of a terminus pole near the Civil Courts at Gurgaon, is whether the appellant and / or their servants and employees were or were not negligent in looking after the electric pole and its stay wire so as to avoid or repair the leakage of electric energy in the stay wire which admittedly caused the electrocution of Hukam Chand. The finding of the trial Court on issue No. 1 alone out of the following issues which had been framed by the trial Court from the pleadings of the parties in the respondent's claim for Rs. 11,000/- on account of damages has been questioned :-
"1. whether the death of Hukam Chand was the result of any negligence or lack of supervision on the part of the servants of the Electricity Department?
2. Whether the death of Shri Hukam Chand was a case of vis major as pleaded by the defendants? If so what is its effect ?
3. If issue No. 1 is proved in favour of the plaintiff, whether defendants are not liable for the payment of damages for the death of Shri Hukam Chand ?
4. To what amount, if any, is the plaintiff entitled by way of damages.
5. Relief."
None of the other findings of the trial Courts was assailed by Mr. Kaushal.
2. By now it is the common case of both sides that on the early morning of May 30, 1958, late Shri Hukam Chand who used to run a confectioner's shop in the back of Civil Courts at Gurgaon was electrocuted on his coming into contact with the stay wire of the terminal pole No. 62 which was fixed very near his shop as the stay wire had got energised. The only question for determination is whether the stay wire in question got energised due to the gross negligence or lack of supervision on the part o the appellants and their employees, ad whether the appellants or their employees were negligent in not de-energising the stay wire immediately so as to prevent the fatal accident.
The first question that calls for decision is regarding the burden of proof of negligence in a case of this type. There is no doubt that the general rule in an action in tort is that the burden of proof initially lies on the plaintiff. There is, however, an equally well-established exception to the above mentioned rule that wherever the admitted or established facts are such that the ordinary natural inference immediately arising therefrom is that the injury in question was caused by the negligence of the defendant to such an extent that the admitted or proved facts tell their own clear and unambiguous sort of negligence on the part of the defendant, the maxim res ipsa loquitur applies to such a case. It is beyond question that where the above mentioned doctrine properly applies, a presumption is immediately raised against the defendant which must be repealed by the defendant, if he want to succeed in his defence, by leading concrete evidence as to how the accident in question could reasonably happen, without any negligence on the defendant's part.
3. The electric pole and its stay had been installed and maintained by the appellants on the public street near the shop of the deceased. If due to want of proper case, caution and continuous of proper case, caution and continuous inspection, the pole or stay wire got energised so as to become a potential danger to the persons going close to the same, the owner of the pole and the stay wire clearly became liable to anyone suffering by coming into contact there with. In such a case, it is no defence whatever for the appellants to allege or prove that they neither knew nor could have known of the danger. The appellants would in such circumstances be legally responsible irrespective of whether the damage is caused by the stay wire getting energised to the knowledge of the appellants, or their employees or without their having any knowledge, at all about the same. the pole and its stay and the running of electric energy in the wires above the pole were at all material times exclusively under the control and management of the appellants or their employees, and the happening of the kind which caused the fatal accident in the instant case is such as does not occur in the ordinary course of things without some negligence on the part of the appellants. On the facts of this case, were are, therefore, definitely of the opinion that the learned Senior Subordinate Judge was correct in invoking and applying the doctrine of res ipsa loquitur to this case. Once that doctrine is applied, the defendant- appellants have miserably failed to rebut or overcome by contrary evidence the presumption of negligence raised in law against them on account of the accident telling its own story.
4. Even independently of the doctrine of res ipsa loquitur, we are definitely of the view that the evidence on the record of this case proves that the death of Hukam Chand ceased was caused by the negligence and default of the appellants, and their employees in allowing the pole-stay being energised and in not attending to the same immediately so as to de-energise it. (After narrating the evidence in the case, their Lordships proceeded).
5-6. From a resume of the evidence given above ad perusal of the documents produced at the trial of the case it appears to us to be manifest that the employees of the appellants who were charged with the duty of maintaining, checking (and rectifying defects in) the electric lines, policies and their stay wires in Gurgaon were guilty of neglect of their duty in not fully repairing the damage that had been caused to the stay and the wiring system as a result of the dust storm on May 27, 1958. They confined themselves to removing the short circuit and did not care to realise that the damage caused by the fail of the tree cold result in energising the stay wire as it did infact happen. On the principles laid down in the well-known case of Rylands v. Fletcher, (1868), LR 3 HL 330, and in accordance with the authoritative pronouncement of their Lordships of the Supreme Court in The Municipal Corporation of Delhi v. Subhagwanti, Civil Appeal No. 1102 of 1963, d/- 24-2-1966 (reported in AIR 1966 SC 1750), upholding the Division Bench judgment of this Court (Circuit Bench at Delhi) in Municipal Committee, Delhi v. Sobhagwanti etc., 63 Pun LR 362 = (AIR 1960 Punj 300), the appellants cannot possibly escape their liability for damages to the respondent.
7. For the foregoing reasons, we do not have the slightest hesitation in upholding the decision of the trial Court on issue No. 1. As already stated, no other point having been raised by Mr. Kaushal, this appeal fails and is dismissed with costs.
C.G. Suri, J.
8. I agree.
9. Appeal dismissed.