Andhra HC (Pre-Telangana)
Superintending Engineer (Operation), ... vs Adavi Subbarayudu And Ors. on 11 July, 2005
Equivalent citations: AIR2005AP460, 2005(5)ALT632, AIR 2005 ANDHRA PRADESH 460, (2005) 5 ANDH LT 632
JUDGMENT P.S. Narayana, J.
1. This Second Appeal is coming up for admission today.
2. Sri Ramachandra Reddy had lodged a caveat on behalf of R-1 in the appeal-cumplaintiff in the suit.
3. Sri Ajay Kumar, standing counsel for A.P. TRANSCO had raised only one substantial question of law which is as hereunder:
Whether the judgment and decree made in O.S. No. 89 of 1998 on the file of the Senior Civil Judge, Kadapa, as confirmed in A.S.No. 50 of 2004 on the file of Principal District Judge, Kadapa can be said to be valid and binding on the Transmission Corporation of A.P. or the A.P. Southern Power Distribution Company Limited which came into existence subsequent to the accident in question?
4. All other questions which had been canvassed by learned Counsel for the appellant are ancillary or incidental questions.
5. The learned Counsel would maintain that the suit was instituted as indigent person in O.P.No. 51 of 1997 which was numbered as O.S.No. 89 of 1998 for recovery of damages. The counsel would maintain that inasmuch as the present appellant who is prosecuting the second appeal was not in existence at all either on the date of accident or on the date of institution of the suit and the same came into existence long thereafter, the present appellant is not bound by the liabilities under such decrees. An attempt was made to touch the other factual aspects inclusive of quantum of compensation which had been awarded by the courts below.
6. Sri M.N. Narsimha Reddy, representing Sri Ramachandra Reddy, the counsel for the first respondent/plaintiff would submit that such a contention cannot be raised by the appellant especially in the light of the fact that the appeal A.S.No. 50 of 2004 itself was filed by the Superintending Engineer, (Operation), APSEB, Kadapa. Apart from this aspect of the matter, the learned Counsel also had drawn the attention of this Court to the Andhra Pradesh Reform (Transfer Scheme) Rules, 1999 and would maintain that in the light of Rule 2 (j) under definitions, the same is inclusive of the pending suit. The learned Counsel also had drawn attention of this Court to Section 131 (2) of the Electricity Act 2003 and on the strength of these provisions, the learned Counsel would maintain that the present appellant being the successor in interest is also liable for all the liabilities and the appellant cannot escape the liability under the present decree raising such a ground especially in the light of fact that the said APSEB alone had preferred the appeal even before the first appellate court. The learned Counsel also had taken this Court through the other findings which had been recorded by both the courts below and would submit that in the light of the facts and circumstances, the quantum of compensation which had been awarded also is just and reasonable.
7. Heard the counsel.
8. The Superintending Engineer, (Operation), A.P. Southern Power Distribution Company Limited, Kadapa, is the present appellant. There cannot be any serious doubt or controversy that the suit O.S.No. 89 of 1989 as indigent person in O.P.No. 51 of 1997 on the file of the Senior Civil Judge, Kadapa, was instituted at the time when the said company was not in existence. As already referred to supra it is successor in interest. The suit was instituted claiming compensation of Rs. 3,00,000/- on the ground that on 26-3-1997 at about 2.30 p.m. when he was rearing sheep and when he approached the land near Railway gate a service live wire hanging down near the land at the height of 4 or 5 feet touched him as a result of which he had received shock and he was taken to hospital and got treatment. Several other aspects also had been averred and ultimately since the same happened due to gross negligence on the part of the defendants 1 and 2, the APSEB and the Superintending Engineer (Operation) APSEB, Kadapa, compensation amount of Rs. 3,00,000 had been claimed.
9. The second defendant filed written statement denying the allegations. It was pleaded that though the accident occurred no one had informed the accident and no criminal case was filed against any official of APSEB. It was further pleaded that the plaintiff's counsel issued a notice to the second defendant only after lapse of six months relating to the alleged incident and the APSEB cannot be made liable since the blame cannot be thrown on APSEB. On the strength of the pleadings, after settlement of issues, the trial court recorded the evidence of P.W. 1 to P.W. 3 on behalf of the plaintiff and D.W.1 was examined and Exs.A-1 to A-10 and B-1 were marked. The trial court on consideration of the material available on record ultimately decreed the suit by way of compensation amount of Rs. 2,00,000/- with interest at 6% per annum from 19th May, 2004 till the date of realization.
10. Aggrieved by the same, the Superintending Engineer, (Operation), APSEB, Kadapa, carried the matter by way of appeal in A.S.No. 50 of 2004 on the file of the Principal District Judge, Kadapa, and the learned judge at para 7 framed the following points for consideration.
(i) Whether the burns sustained by the plaintiff were sustained by him due to electrical shock and if so, in the manner pleaded by the plaintiff?
(ii) Whether the plaintiff is entitled to compensation and if so, to what amount?
(iii) Whether the judgment and decree under appeal are not sustainable?
(iv) To what relief?
11. The learned Judge on appreciating the evidence available on record ultimately dismissed the appeal with costs. Aggrieved by the same, the present second appeal is preferred.
12. As far as factual controversy is concerned, concurrent findings had been recorded relating to quantum of compensation which can be awarded. It is predominantly a question of fact and no perversity as such had been pointed out relating to this aspect. The other question is whether the present appellant is liable under the decree granted as against the APSEB since the present appellant is only a successor in interest. Section 131 of the Electricity Act, 2003 deals with vesting of property of Board in State Government. Sub-section (2) specifies as hereunder.
"Any property, interest in property, rights and liabilities vested in the State Government under Sub Section (1) shall be re-vested by the State Government in a Government company or in a company or companies in accordance with the transfer scheme so published alongwith such other property, interest in property, rights and liabilities of the State Government as may be stipulated in such scheme, on such terms and conditions as may be agreed between the State Government and such company or companies being State Transmission Utility or generating company or transmission licensee or distribution licensee as the case may be."
13. Rule 2 of the Andhra Pradesh Electricity Reform (Transfer Scheme) Rules, 1999 deals with definitions. The said rules were framed in exercise of powers in Sections 23,24 and 55 of the Andhra Pradesh Reforms Act 1998, Act 30 of 1998. The Governor of Andhra Pradesh made the said rules for the purpose of providing and giving effective transfer of assets, properties, liabilities, obligation, proceedings and personnel of Andhra Pradesh State Electricity Board to other entities. Rule 2 (j) of the said Rules reads as hereunder:
"proceedings" includes all proceedings of whatever nature including suits, appeals, complaints, petitions, application, conciliatory arbitration whether civil or criminal or otherwise.
14. Apart from the provisions of the Act referred to supra and the Rules specified supra, it is needless to say that the present appellant is the successor in interest of APSEB. It is also curious to note that the Superintending Engineer, (Operation), Kadapa, alone had even preferred appeal before the first appellate court. Obviously the present appellant is taking inconsistent stands. Having preferred the present second appeal to contend otherwise, in the considered opinion of this Court is impermissible. Hence, the question raised by the learned Counsel representing the appellant in the considered opinion of this Court is liable to be rejected in the light of the observations made by this Court supra and also in the light of the provisions referred to supra.
15. No other question had been seriously canvassed before this Court. Hence, this Court is of the considered opinion that the second appeal is devoid of merit and same is dismissed at the stage of admission. No costs.