Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 2682 (HP)

HPSEB v. Rakesh Kumar alias Rockey

2016-12-19

CHANDER BHUSAN BAROWALIA

body2016
JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The present regular second appeal is maintained by the appellants/defendants (hereinafter called as 'the defendants’) against the respondent/plaintiff (hereinafter called as 'the plaintiff’) assailing the judgment and decree dated 03.07.2007, passed by learned District Judge, Mandi, District Mandi, H.P. in Pauper Appeal No. 1/2006, Civil Appeal No. 54/2007/06, whereby the judgment and decree passed by learned Civil Judge (Senior Division), Sarkaghat, District Mandi, H.P. in Civil Suit No. 134 of 2005, dated 12.07.2007, was set-aside and suit was decreed. 2. Briefly stating the facts giving rise to the present appeal are that as per the plaintiff, on 22.05.1998, after School hours, the plaintiff was grazing goats near his native place. All of a sudden, two goats of the plaintiff were climbed on the roof of the house of one Shri Suresh Kumar, the plaintiff in order to retrieve his goats, climbed on the roof, but suddenly L.T. Line, just adjacent to the house of Suresh Kumar, touched the right arm of the plaintiff, consequently he suffered electric burns on his right arm. After the said accident the plaintiff was taken to the hospital at Sarkaghat, wherefrom he was referred to the Zonal Hospital, Mandi and remained admitted there upto 26.05.1998. On 27.07.1998 he was further referred to IGMC, Shimla for advance treatment, where he was remained admitted upto 24.09.1998 and his right arm from the shoulder was amputated. As per the plaintiff, Electric line was at very low height and there was negligence on the part of the defendants. Due to the said accident, the plaintiff had to abandon his School for two years and his entire future has been spoiled. Thus, the plaintiff claimed Rs. 5,00,000/- alongwith future interest at the rate of 18% per annum. 3. The defendants, by way of filing written statement, raised preliminary objections qua maintainability, locus-standi, limitation and cause of action. On merits, the defendants have submitted that despite notices served to Suresh Kumar, he has constructed a house illegally and defendants are not liable to pay any damages for loss, as caused to the plaintiff. It is also averred that 11 K.V HT line was installed much earlier than Suresh Kumar constructed his house. Thus, they prayed that the suit may be dismissed. 4. The plaintiff, by filing replication, refuted the allegations of the defendants, as made in the written statement. 5. It is also averred that 11 K.V HT line was installed much earlier than Suresh Kumar constructed his house. Thus, they prayed that the suit may be dismissed. 4. The plaintiff, by filing replication, refuted the allegations of the defendants, as made in the written statement. 5. From the pleadings of the parties, the learned Trial Court framed the following issues: “1. Whether the electric burns to the extent of 100% suffered by the plaintiff is the result of negligence on the part of defendants as alleged? OPP 2. Whether the defendants are liable for damages, if so to what extent? OPP 3. Whether the suit is bad for non-joinder of the necessity party? OPD 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether the suit of the plaintiff is time barred and hit by the limitation? OPD 6. Relief.” After deciding issues No. 1, 2 and 5 against the plaintiff and issues No. 3 and 4 in favour of the defendants, the suit was dismissed by the learned trial Court. 6. In the first appeal, the learned lower Appellate Court allowed the appeal of plaintiff and granted Rs. 3,55,000/- with interest at the rate of 6% from the date of filing the appeal till its payment, against the defendants with costs. Hence the present appeal. 7. The present regular second appeal was admitted on the following substantial questions of law: 1. Whether the negligence can be attributed to the Board without making the person who had constructed the illegal structure as party? 2. Whether negligence can be attributed to the Board when it was the plaintiff itself who has trespassed into the property of a third person? 3. Whether the Board can be termed as negligent even if it was vigilant and it served notices on the person who had illegally constructed the house below HT Line? 4. Whether the learned first Appellate Court can totally overlook the admissions made by the PWs. in which they say that no negligence can be attributed to the defendants? 5. Whether the findings of the learned first Appellate Court are perverse? 8. Learned counsel appearing on behalf of the defendants/appellants (before this Court) has argued that the findings of the learned lower Appellate Court are perverse and liable to be set aside. in which they say that no negligence can be attributed to the defendants? 5. Whether the findings of the learned first Appellate Court are perverse? 8. Learned counsel appearing on behalf of the defendants/appellants (before this Court) has argued that the findings of the learned lower Appellate Court are perverse and liable to be set aside. On the other hand, learned counsel appearing on behalf of the plaintiff/ respondent (before this court) has argued that the findings of the learned lower Appellate Court are in accordance with law and the appeal deserves to be dismissed. 9. To appreciate the arguments of the learned counsel for the parties, I have gone through the records in detail. 10. The plaintiff, was examined as PW-1 and he tried to prove certificate Ex.PW-1/A, medical slip/documents, Ex.PW-1/B, Ex.PW-1/C and Ex.PW-1/D. In his cross-examination plaintiff has stated that when the incident took place, Suresh Kumar was not present in the house. The plaintiff feigned ignorance about the length of danda, which he was using in order to retrieve his goats. 11. PW-2, Surender Kumar (who was grazing goats with the plaintiff) stated that the H.T. Line is passing very near to the house of Suresh Kumar. He further stated that the danda, which plaintiff was using to retrieve his goats, was about one metre in length and the electricity line was hardly at a distance of 5-6 feets from the slab of Suresh Kumar. 12. PW-3, Pano Devi (who is the mother of the plaintiff) had filed the present suit on behalf of plaintiff, who was minor at that relevant time. She has stated that the incident took place due to the construction of the house of Suresh Kumar, who was serving as a Teacher. 13. DW-1, Ram Lal Gupta, who was posted as SDO, Electricity Sub-division Sarkaghat, District Mandi, at that time, was informed about the incident by his Officials. He deposed that transmission line is at the height of 8-10 feets from the slab of Suresh Kumar. He further deposed that the incident took place due to coming in contact with the live electricity wire with danda, which plaintiff was carrying in his hand. He deposed that transmission line is at the height of 8-10 feets from the slab of Suresh Kumar. He further deposed that the incident took place due to coming in contact with the live electricity wire with danda, which plaintiff was carrying in his hand. In his cross-examination he has stated that Suresh Kumar has started raising construction of his house in the year 1996 and at that time he was not aware of the fact that construction of the house cannot be done below HT Line. He further stated that notice, in this regard, was also issued to him, but he did not reply to the said notice. 14. DW-2, Dharam Singh, who was the Bill Clerk in the office of the defendants, has stated that H.T. Line is about 7-8 feet from the house of Suresh Kumar and in the said incident, there is no fault of the Department. He has further stated that H.T. Line is very powerful and can attract people from distance. 15. Now, the vital question, which arises in the present case, is that whether the defendants were really negligent in maintaining the H.T. Line or whether the plaintiff has suffered burn injuries, due to sparks, coming down for the H.T. Line. Whenever a public authority is performing the duty under the common law, then there is equivalent duty to take reasonable care, so as to ensure the safety of the citizen. However, there may not be any direct evidence of such carelessness and same can also be derived from the circumstances of the case. Although, there must be some proximity of relationship of danger and duty of care to be performed by the defendants to avoid such accident or to prevent danger. 16. Even otherwise, the defendants, in the learned lower Appellate Court, have failed to prove that they have taken appropriate care and caution and also the height of 12 feet, which is required to be maintained from the roof of the building. 16. Even otherwise, the defendants, in the learned lower Appellate Court, have failed to prove that they have taken appropriate care and caution and also the height of 12 feet, which is required to be maintained from the roof of the building. Thus, the substantial questions of law No. 1, 2 and 3 are answered holding that it was the defendants who should have taken appropriate care and caution, the plaintiff cannot be held liable to be negligent, as he was a small boy and not aware about the fact that he was trespassing some other's property, the learned lower Appellate Court has rightly held the defendants liable for their act of negligence. Similarly, the defendants by taking plea that they have served Suresh Kumar, by issuing notice, cannot absolve them from liability. The substantial questions of law No. 1, 2 and 3 are answered accordingly. It has come in the evidence that it was defendants who were negligent, resulting injuries to the plaintiff, so the learned lower Appellate Court has not committed any illegality, holding the defendants liable. Thus, substantial question of law No. 4 is answered accordingly. As far as substantial question of law No. 5 is concerned, the findings of the learned lower Appellate Court are just, reasoned and cannot be said to be perverse at all. Besides, the learned Court below has rightly calculated the compensation amount at the rate of Rs. 2,000/- per month, as he suffered 100% disability qua his right arm. 17. Resultantly, the findings arrived at by the learned Lower Appellate Court are just, reasoned and after appreciating the evidence on record to their true perspective and calls for no interference. 18. As a result of the above discussion, the appeal is devoid of merits, hence deserves dismissal and is accordingly dismissed. 19. In view of dismissal of the appeal, pending applications, if any, shall also stands disposed of. However, the parties are left to bear their own costs throughout.