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Madhya Pradesh High Court · body

2009 DIGILAW 1358 (MP)

Mangilal v. Divisional Engineer, MPSEB

2009-12-08

N.K.MODY

body2009
JUDGMENT 1. Being aggrieved by the judgment dated 7.10.2004 passed by 1 ADJ, Dhar in civil suit No. 2-B12004 whereby the suit filed by the appellants for compensation on account of death of their daughter was dismissed, the present appeal has been filed. 2. Short facts of the case are that appellants filed a suit for compensation on 20.10.2004 alleging that the appellants are husband and wife and Lalita aged 8 years was their only daughter. It was alleged that there is a garden situated at Dhareshwar Mandir, Dhar which is owned and maintained by the respondent No.3. It was alleged that the said garden is fenced by respondent No.3 and is being used as a play-ground for the children. It was alleged that in the centre of said garden there are high tension wires of respondents No.1 and 2. It was alleged that the said wires are not being properly maintained by the respondents No.1 and 2. Further case of the appellants was that on 12.5.2000 at about 7.00 a.m. when Lalita went to collect the water alongwith her friend Mamta, daughter of Munna and Hirabai from the tanker which was kept by respondent No.3 near to the garden, at that time, Lalita started playing into the garden. It was alleged that at that time Lalita came in contact with the fencing of garden. It was alleged that since there was current flowing in the fencing, therefore, Lalita was shocked by the electrocation and died. It was alleged that Hirabai who was with Lalita informed about the incident and when appellants went on spot, they found that one of the wires was broken and Lalita came in contact with the fencing of garden in which current was flowing. It was alleged that upon information given the supply was disconnected by the respondent No.1 and 2. 3. It was alleged that because of negligence on the part of respondents No. 1 and 2 the accident took place with the result appellants lost their only daughter. It was alleged that the matter was reported to the Police and case was registered at merge No. 21-22/2000 on 12.5.2000 itself. It was alleged that respondents No.1 and 2 were failed to take-care of the live wires. It was alleged that the matter was reported to the Police and case was registered at merge No. 21-22/2000 on 12.5.2000 itself. It was alleged that respondents No.1 and 2 were failed to take-care of the live wires. It was alleged that since the live wires going from the middle of the garden which was made for public use, therefore, it was the duty of respondents No.1 to 2 to take utmost care of the live wires. It was alleged that it was also the duty of respondents No. 1 and 2 to maintain the same properly. It was alleged that if respondents No. 1 and 2 would have discharged their duties with utmost care, then, the said incident would not have taken place. It was alleged that notices were issued by the appellants on 30.6.2000 but no reply was given by the respondents. It was alleged that appellants are entitled for compensation of Rs. 85,000/- for which a decree be passed against the respondents Nos. 1 and 2. 4. The suit was contested by the respondent No. 1 and 2 by filing written statement wherein it was not disputed that the accident took place in which appellants lost their only daughter. It was alleged that there was no negligence on the part of respondent No.1 and 2. It was alleged that in the intervening night of 11.5.2000 and 12.5.2000 there was storm and heavy rain with the result number of trees and their branches fallen down. It was alleged that the live wires which are going from the garden are relating to street light which are being maintained by the respondent No.3. It was alleged that there was no deficiency in the services on the part of respondents No.1 and 2. It was alleged that because of falling down of live wires the supply of electricity automatically stops. It was further alleged that since it was vis major, therefore, respondents No.1 and 2 are not liable for payment of any compensation. It was prayed that the suit be dismissed. Respondent No.3 also filed a separate written statement wherein the plaint allegations were denied. It was prayed that suit be dismissed. After completion of pleadings, learned trial Court framed the issues, recorded the evidence and dismissed the suit against which the present appeal has been filed. 5. Mr. It was prayed that the suit be dismissed. Respondent No.3 also filed a separate written statement wherein the plaint allegations were denied. It was prayed that suit be dismissed. After completion of pleadings, learned trial Court framed the issues, recorded the evidence and dismissed the suit against which the present appeal has been filed. 5. Mr. Mukesh Sanjonia, learned counsel for the appellants argued at length and submits that the impugned judgment and decree passed by learned trial Court is illegal, incorrect and deserves to be set-aside. It is submitted that learned trial Court committed error in holding that there was no negligence on the part of respondents No.1 and 2. It is submitted that learned trial Court also committed error in holding that there was vis major for which respondents No.1 and 2 cannot be held liable for payment of compensation. It is submitted that no evidence has been adduced by the respondents No.1 and 2 on the basis of which it can be said that respondents 1 and 2 fulfill their responsibilities. Learned counsel placed reliance on a decision in the matter of Ramesh Singh Pawar v. M.P. Electricity Board 2004 (3) MPHT 237 wherein this Court has held that Board is required to conduct periodical inspection of the lines maintained by them, Board is required to take all such safety measures to prevent such accident and maintain the lines in such a manner that life and property of the general public is protected. The Board is duty bound to carry out activities in such a manner that safety and security provisions are enforced in accordance with the statutory rules. Further reliance was placed on a decision in the matter of MPSEB Rampur; Jabalpur v. Jasbeer Singh 2004 (l) MPU 512 wherein truck belonging to respondents caught fire due to sparks from electric wires resulting in burning of truck with 148 bags of Tendu leaves, Division Bench of this Court held that negligence on part of appellants/MPSEB established by respondent and awarded Rs. 1,05,715/-. Further reliance was placed on a decision in the matter of The Chairman M.P. Electricity Board v. Ram Narayan Gautam, 2006 (1) MPHT 495 . wherein this Court has held it was the duty of Board to properly maintain electric wires. It was further held that principle of res ipsa loquitur applies to the case. 1,05,715/-. Further reliance was placed on a decision in the matter of The Chairman M.P. Electricity Board v. Ram Narayan Gautam, 2006 (1) MPHT 495 . wherein this Court has held it was the duty of Board to properly maintain electric wires. It was further held that principle of res ipsa loquitur applies to the case. It was held that since the Board could not establish that the deceased was at fault, therefore, Board is liable for payment of compensation. 6. On the strength of aforesaid position of law, learned counsel for the appellant submit that appeal filed by the appellants be allowed and the impugned judgment and decree passed by learned trial Court be set-aside and suit be decreed. 7. Learned counsel for the respondents No.1 and 2 and also respondents No.3 submit that after due appreciation of evidence learned trial Court found that there was no error on the part of respondents, therefore, no illegality has been committed by learned trial Court in dismissing the suit filed by appellants. It is submitted that since there was a vis major beyond control of respondents, therefore, no amount of compensation can be awarded. Learned counsel placed reliance on a decision in the matter of Rylands v. Fletcher LR 3 HL 330 wherein judgment of Blackburn, J. approved by the House of Lords in Rylands and it was held that the liability is not absolute being subject to certain exceptions. It was further held that Blackburn, J. made it a part of the rule that defendant can excuse himself by showing that the escape was owing to the plaintiff's default or perhaps that the escape was the consequence of vis major, or the act of God. Learned counsel submits that respondent No.1 and 2 have proved by evidence that there was no fault on their part. Learned counsel submit that appeal filed by the appellants be dismissed. 8. From perusal of record, it appears that to prove the case appellant have filed the documentary evidence which is EX.P/l to P/11. ExP/9 is the letter issued by the Superintendent of Police, Dewas which shows that the case was registered. Ex. P/10 is the postmortem report of Lalita in which the Doctor has opined that the cause of death was electrocution. Ex Pill is the FIR Apart from this, appellants have examined Mangilal PW/1/father of deceased/Lalita, Dr. ExP/9 is the letter issued by the Superintendent of Police, Dewas which shows that the case was registered. Ex. P/10 is the postmortem report of Lalita in which the Doctor has opined that the cause of death was electrocution. Ex Pill is the FIR Apart from this, appellants have examined Mangilal PW/1/father of deceased/Lalita, Dr. S.K. Modi PW/2, Kesharsingh PW/3 and Chunnilal PW/4 while respondents No. 1 and 2 has examined Naresh Kumar Jain, Assistant Engineer DW/1. In the statement of Naresh Kumar Jain, DW/1 it is stated that respondents No. 1 and 2 were having no information about the breaking of live wires. He has further stated that after the incident when the information was received the electricity supply was disconnected. 9. From perusal of evidence adduced by the respondents No.1 and 2 it is evident that no efforts were made by the respondents No.1 and 2, to show that the live wires were properly maintained by the respondent No. 1 and 2. No evidence was adduced by the respondents No. 1 and 2 to show that what maintenance work was done on the said line. In the matter of Chairman, Grid Corporation of Orissa Ltd. v. Sukamani Das (Smt.) (1997) 7 SCC 298 wherein Hon'ble apex Court has observed as under: 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 person is known, in laws as "strict liability". It differs from the liability which arises on account of the negligene 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. 10. 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. 10. In the matter of M.C. Mehta v. Union of India 1987 (1) SCC 395 wherein it has been observed that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on anyone 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. 11. Keeping in view the aforesaid position of law, undoubtedly it can be said that the respondent No. I and 2 are engaged in a hazardous or inherently dangerous activity and the accident took place in operation of such activity. Deceased Lalita was aged 8 years and from perusal of record, it is evident that Lalita was a girl of a family of below poverty line. She was there for collection of water for the family and was playing in the garden which was for the use of public. By no stretch of imagintion it can be said that deceased was at fault. In the facts and circumstances of the case, this Court is-of the view that learned trial Court committed error in dismissing the claim on the ground that death was on account of act of God. So far as amount is concerned, in a death case on account of no fault liability also an amount of Rs. 50,000/- is being awarded as compensation. 12. In view of this, the appeal filed by the appellants is allowed and the impugned judgment passed by learned trial Court is set-aside and the suit filed· by the appellants is decreed by awarding a sum of Rs. 85,000/- along with interest @ 8% per annum. Appellants are also entitled for the cost of litigation of both the Courts. The amount shall be payable by the respondents No.1 and 2. 85,000/- along with interest @ 8% per annum. Appellants are also entitled for the cost of litigation of both the Courts. The amount shall be payable by the respondents No.1 and 2. Upon depositing the amount with the learned trial Court by the respondents No. 1 and 2, learned trial Court shall deposit 80% of the amount in the name of appellant No.2 on long term fixed deposit in the nearest Nationalised Bank, in the area where the appellant No.2 is residing, with the condition that the bank will not permit any loan or advance and interest on the sai9 amount will be credited, directly to the savings bank account of appellant No.2 on monthly basis, so that appellant No.2 can use the same as per her needs. However, on an application by the appellant No.2 this condition could be modified by the learned trial Court in exceptional circumstances and shall permit the appellant No.2 to withdraw the balance amount so deposited. 13. With the aforesaid observations, appeal stands disposed of. C.C. as per rules.