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2017 DIGILAW 2495 (RAJ)

Ram Karan v. Ajmer Vidhyut Vitran Nigam Ltd.

2017-11-14

VIRENDRA KUMAR MATHUR

body2017
JUDGMENT : Virendra Kumar Mathur, J. This S.B. Civil First Appeal under section 96 of the Code of Civil Procedure has been filed against the judgment and decree dated 27.01.2016 passed by the learned Additional District Judge, Merta in Civil original Suit No. 156/2015 (18/2009) (19/2009). 2. Briefly stated, a suit for compensation under Fatal Accidents Act, 1855 was filed by the appellants-plaintiffs against the respondents-defendants claiming compensation for a sum of Rs. 50 lakhs. It was stated that son of the appellant Ram Karan died due to an electric shock and faulty low-levelled 11 K.V. Electric Lines placed/fixed over the agricultural field where the deceased Harendra (appellant's son) was looking after his corps. It was also stated that if the 11 K.V. Electric Lines were not affixed at such a low-level, i.e. close to the level of the ground, his son would not have died and as a result, the respondent AVVNL was at fault on all counts and it was liable to compensate the appellants plaintiffs for the irreparable loss occurred. 3. The respondents-defendants submitted their written statement and denied the facts. 4. On the basis of the pleadings of the parties, the trial court framed as many as four issues and after recording evidence and concluding trial, passed the judgment and decree dated 27.01.2016 and dismissed the suit. Being aggrieved by the judgment and decree passed by the learned trial court, the appellants prefer this appeal. 5. Heard learned counsel for the parties. 6. It was contended on behalf of the appellants that the trial court has formed a misconceived opinion relying only on the basis that nobody was present at the site of incident when it occurred. The said agricultural field was cultivated by the appellants and it was well within their knowledge about the faulty low-leveled electric cables running over the plot. It was also submitted that the trial court failed to consider the evidence rendered by Ram Karan (PW-2), in which he clearly stated that the complaint was filed orally as well as in writing to the respondents authorities for the correction of the electric lines placed by the respondents-defendants, despite which no action was taken and the same finally resulted in the death of Harendra. It was further submitted that other two witnesses Kailash (PW-3) and Tejaram (PW-4) specifically averted about the 11 K.V. Electric Lines, which were placed just 6-6 feet above the ground level, proving the case put up by the appellants-plaintiffs and liability to be borne by the respondents-defendants. The trial court has concluded its concluded its finding merely on the basis of presumptions, which are liable to be struck off. It was also submitted that the trial court has totally overlooked the interest theory and the multiplier theory propounded under the Law of Torts for the purpose of granting compensation in such cases. 7. In the context of allegations raised by the appellants plaintiffs, perused the pleadings and evidence placed on record. 8. The trial court decided issues Nos. 1 and 3 together. On perusal of evidence, it is manifestly clear that mother of the deceased Champa Devi (PW-1), father of deceased Ram Karan (PW-2) and brother of deceased Kailash (PW-4) have clearly stated that the deceased Harendra died due to electric shock while he was in fields. The electric lines of 11 K.V. was placed on low level. All these three witnesses were not present at the site. There is no eye-witness of the incident. In the present case, the FIR (Ex.P/3) was lodged on 05.08.2008 at the instance of Teja Ram, who was examined as PW-4 and fard surat haal was prepared in connection with Merg No. 12/05.10.2008 and in the report, it has come on record that, ^^e`rd ds nkfgus gkFk dh vaxqfy;ka tyh gqbZ cka;s gkFk dh vaxqfy;ksa ds uk[kwu dkys iM+s gSA cka;k iSj dqYgk ls ysdj iats rd txg txg ikbUVuqek yky fu'kku gSA cka;k da/ks ls ysdj cka;s gkFk dh dksguh rd txg txg yky ikbUVuqek fu'kku gSA e`rd dh yk'k mFky iqFky dj ns[kh xbZ rks ihB esa ykyklh vkbZ gqbZ gSA e`rd dh isaV ij txg txg tyus ls izbUVuqek fu'kku vk;s gqos gSA** In the Panchnama report it is stated that, ^^e`rd gjsUnz dh e`R;q [ksr esa fctyh ds djaV vkus ls gh gqbZ gSA** In view of the facts mentioned in the naksha mauka report, the same supported the statements of PW-1 to PW-4. In the postmortem report (Ex.P/2), the cause of death shown as electric burn leading to electrolyte nablange and brain damage. 9. In the postmortem report (Ex.P/2), the cause of death shown as electric burn leading to electrolyte nablange and brain damage. 9. The trial court has not considered the aforesaid documents placed on record and has concluded that the doctor, who has performed postmortem, was not produced as witness and, therefore, the postmortem report was not proved and it cannot be inferred that the cause of death was electric burn. 10. On behalf of the respondents-defendants, Ex.D/1 and Ex.D/2 were placed on record but Assistant Engineer and Junior Engineer, who prepared the said documents, were not produced in evidence and the trial court placed reliance on these documents only on the ground that the respondents-defendants have proved the signatures of Assistant Engineer and Junior Engineer. 11. It is settled position of law that in civil cases, the cases are decided on the basis of preponderance of probability of evidence. There is no requirement that the case must be proved beyond all reasonable doubts. The trial court has miserably failed to consider the documents Fard Surat Haal, Panchnama, Postmortem report. The trial court has given finding that although there is no clear evidence about the height of electric lines but why the statement of Teja Ram (PW-4) was not considered in this respect when he specifically stated that he went to the place of incident after one hour and at the place of incident, height of electric lines is 6-6 feet and it was wrong to say that the electric electric lines were 17-18 ft. high and he has specifically denied to the suggestion that at the time when the Assistant Engineer came to the spot, at that time, the height of the electric line was 17-19 feet. 12. In view of this, the trial court has failed to appreciate the evidence placed on record properly and decided the issues wrongly in favour of the respondents-defendants and against the appellants-plaintiffs. 13. It is expected from the department to take all such measures in order to save the loss of human life. 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. 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 law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable recautions. If the defendants 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. 14. Section 1A of the Fatal Accidents Act, 1855 provides for suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong. Section 1A of the Act reads as under:- "1A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.- Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be iable to an action or suit for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony or other crime. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action, the court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the court by its judgment or decree shall direct." 15. Under Section 1A of the Act, compensation awarded for loss of dependency, worked out by applying the principle of multiplier is a part of damages proportioned to the loss resulting from the death, as was held in the case of Fizabai v. Nemichand [ AIR 1993 M.P. 79 ]. Further, Section 1A of the Act, read with section 110B of the Motor Vehicles Act, 1939 (now Motor Vehicles Act, 1988), makes it obligatory on the tribunal to award "just compensation" which differs from case to case, as held in the case of Sardar Ishwar Singh v. Himachal Puri [ AIR 1990 MP 282 ]. 16. In the present case, deceased Harendra was aged about 15 years and was minor. It cannot be said that he was having any independent source of income. As per the Schedule-II, appended to the Motor Vehicles Act, 1988, under Section 163A, up to the age of 15 years, multiplier of 15 is applicable and notional income for compensation to those who had no income prior to the accident, is Rs. 15,000/- per annum. 17. Resultantly, the appeal succeeds and is allowed and the impugned judgment and decree dated 29.04.2003 is quashed and set aside and the suit of the appellants-plaintiffs is decreed. The compensation is calculated in terms of Schedule-II appended to the Motor Vehicles Act, 1988 and while taking the notional income of Rs. 15,000/- and applying multiplier of 15, the compensation comes is Rs. 2,25,000/- (15,000/- X 15). The compensation be awarded to the appellants-plaintiffs along with interest @ 6% per annum from the date of filing the suit. 18. The compensation is calculated in terms of Schedule-II appended to the Motor Vehicles Act, 1988 and while taking the notional income of Rs. 15,000/- and applying multiplier of 15, the compensation comes is Rs. 2,25,000/- (15,000/- X 15). The compensation be awarded to the appellants-plaintiffs along with interest @ 6% per annum from the date of filing the suit. 18. Decree sheet be prepared accordingly.