JUDGMENT : Pratap Krishna Lohra, J. 1. Matter comes up on an application filed on behalf of appellants seeking stay on execution of the impugned judgment and decree, or in the alternative extending time period for deposition of requisite amount in compliance of order dt. 21st of April, 2014. 2. With the consent of learned counsel for the parties, appeal is heard finally at this stage. 3. By the instant first appeal, appellants have assailed legality and propriety of judgment and decree dt. 6th of January, 2014, passed by District Judge, Banswara (for short, 'learned trial Court'), whereby learned trial Court has partly decreed the suit of respondents under Sec. 1-A of the Fatal Accidents Act, 1855 (for short, 'Act') and awarded damages to them. 4. By the impugned judgment & decree, learned trial Court, while partly decreeing the suit awarded damages to the respondents to the tune of Rs. 2,50,000/- with interest @ 8% per annum from the date of institution of the suit. 5. The facts apposite for the purpose of this appeal are that respondent-plaintiffs filed the aforementioned suit against appellant-defendants claiming compensation to the tune of Rs. 10 lakhs, inter alia, on the ground that their daughter Bodi died due to electrocution on 4th of November, 2012 at about 2:00 PM when she was on the way to agricultural field. It was inter alia averred by the respondents that some naked wires hanging on the electric pole touched her body parts resulting in electric shock of high altitude. The electric shock suffered by the girl was so intense that she fell down on the ground and when was taken to the hospital, doctor declared her dead. As per version of the respondent-plaintiffs, proper maintenance of electric poles and other safety measures was the statutory obligation of, appellants and electrocution has occasioned due to their negligence, therefore, on the principle of strict liability, they are liable to pay compensation to the tune of Rs. 10 lakhs. For quantifying the aforementioned amount, requisite facts are also pleaded in the plaint. The accident was reported to the Police Station Kushalgarh and requisite inquiry was conducted under Sec. 174 Cr.P.C. to ascertain cause of death. A fact, that at the time of death deceased was eleven years old and was a promising student, is also pleaded in the plaint for quantifying the amount of compensation. 6.
The accident was reported to the Police Station Kushalgarh and requisite inquiry was conducted under Sec. 174 Cr.P.C. to ascertain cause of death. A fact, that at the time of death deceased was eleven years old and was a promising student, is also pleaded in the plaint for quantifying the amount of compensation. 6. On behalf of the appellant-defendants, written statement is submitted contesting the suit. In the written statement, appellants pleaded that electric poles and other wires were properly maintained by them but due to rainy season, there was some short-circuit and current flowed in the pole as well as wires which gave shock to the deceased on account of her overt act of touching and pulling the wires as well as pole. It is also averred that supporting wires were swung by the deceased and that resulted in touching of two wires causing flow of currents leading to electrocution. In totality, negligence for the accident was attributed to the deceased. Joining issue with the respondents on compensation, appellants pleaded that the amount of compensation claimed by them is excessive and exorbitant, and therefore, suit merits rejection. 7. On the basis of pleadings of rival parties, learned trial Court framed three issues for determination. On behalf of respondent-plaintiffs appeared themselves in the witness-box and testified on oath besides submitting five documents, which were exhibited. In counter, appellants examined one witness, Assistant Engineer, Sunil Pandaya (D.W. 1). 8. After conclusion of evidence, learned trial Court heard final arguments. The learned trial Court, while examining Issue No. 1, made endeavour to scrutinize evidence and other materials available on record objectively. 9. Learned trial Court, on appreciation of evidence found that indisputably the death of baby "Bodi" occasioned due to electrocution and therefore invoking doctrine of "strict liability", decided Issue No. 1, against the appellants and in favour of respondents. Adverting to Issue No. 2, the learned trial Court has observed that proper maintenance of electric poles and wires was duly of the appellants and from the evidence on record it is clearly discernible that there were some serious lapses on their part in maintenance of electric poles and electric wires.
Adverting to Issue No. 2, the learned trial Court has observed that proper maintenance of electric poles and wires was duly of the appellants and from the evidence on record it is clearly discernible that there were some serious lapses on their part in maintenance of electric poles and electric wires. Besides that, the Court has also recorded finding that on the anvil of doctrine of "strict liability", the appellants were expected to take utmost care to see that electric appliances, 'including poles and wires, are properly maintained meeting requisite safety measures so as not to cause any human casualty. With these findings, learned trial Court, while attributing negligence on the part of appellants, decided Issue No. 2 against them. The third issue, which was about quantum of compensation, the learned trial Court on overall analysis of evidence and other materials, quantified compensation amount to the tune of Rs. 2,50,000/-. The learned trial Court has also concluded that untimely death of the daughter of respondent-plaintiffs has given them profound shock and on account of her death, the family is deprived of prospective income, which she could have earned had she survived. In totality, the learned trial Court assessed moderate compensation to the tune of Rs. 2,50,000/-. 10. I have heard learned counsel for the parties and perused the impugned judgment. 11. Although, in first appeals, normally the Courts summon the record of the trial Court but looking to the peculiar facts of the case and considering the amended provisions under Order 41 Rule 11 CPC, it is not necessary to call for the record of the learned trial Court. Reliance, in this behalf, can be placed on U.P. Avas Evam Vikas Parishad vs. Sheo Narain Kushwaha & Ors., MANU/SC/0530/2011 : (2011) 6 SCC 456 , wherein the Hon'ble Apex Court, while interpreting the amended Rule 11(1) of Order 41 CPC, has held that dismissal of first appeal in limine is permissible, but has put a rider that it is required to be dismissed by a reasoned order. The Apex Court made following observations in Para 7, 9 & 10: "7. It is evident from sub-rule (1) that an appellate Court can dismiss an appeal after a preliminary hearing without calling for the records of the trial Court and without issuing notice to the respondent, if it is satisfied that the appeal has no merit.
The Apex Court made following observations in Para 7, 9 & 10: "7. It is evident from sub-rule (1) that an appellate Court can dismiss an appeal after a preliminary hearing without calling for the records of the trial Court and without issuing notice to the respondent, if it is satisfied that the appeal has no merit. Sub-rule (1) does not however state that such dismissal can be without assigning any reasons. 9. Sub-rule (4) of Rule 11 does not enable the High Court to dismiss first appeals by one-line orders to the effect that "appeal is dismissed" or by non-speaking orders. The order of the High Court dismissing the first appeal should be sufficiently reasoned to disclose the application of mind to the grounds of appeal and make out that the High Court was resorting to dismissal in limine as it found the appeal either to be vexatious or wholly without merit. Order 41 Rule 11 of the Code, while relieving the High Court from the obligation to write a "judgment", does riot dispense with the obligation to assign reasons in brief, when summarily dismissing the appeal. 10. Unless the order is reasoned, there will be no way of knowing whether the appellate Court has examined the appeal before deciding that it did not deserve admission. As a limited right to appeal to the Supreme Court is available against the appellate judgments of the High Court, unless there are reasons in the order of dismissal, it will not be possible for the Supreme Court to examine whether the High Court has rightly rejected the appeal. The appellant who has filed the first appeal in pursuance of a statutory right to file such appeal, paying necessary Court fee, can legitimately expect re-appreciation of the evidence and redetermination of the questions raised, unless the statute providing for the appeal provides otherwise." On merits, if the matter is examined objectively in overall fact scenario, then, it would ipso facto reveal that the amount of compensation assessed by learned trial Court is just and reasonable by pressing into service the doctrine of "strict liability. The plea of appellants that accident occurred due to negligence of the deceased, in my view, in not invokable in case of "absolute liability", inasmuch as, such liability is not dependent on intention or negligence of the sufferer.
The plea of appellants that accident occurred due to negligence of the deceased, in my view, in not invokable in case of "absolute liability", inasmuch as, such liability is not dependent on intention or negligence of the sufferer. Precisely, the doctrine of no fault liability is imbibed in case of "absolute liability" or "strict liability". 12. In the instant case, the ambitious plea of the appellants that deceased baby "Bodi" herself was responsible for the accident is per se not tenable for the reason that she was only eleven years old and by no stretch of imagination it sounds prudency that a child is expected to take care and caution in handling electric wires or other equipments. Apart from that, the doctrine of "added peril" has no application in case of fatal accident, more particularly, when the sufferer of a fatal accident is a minor child. 13. Supreme Court in M.P. Electricity Board vs. Shail Kumari & Ors., MANU/SC/0020/2002 : (2002) 2 SCC 162 has dilated on the doctrine of strict liability leaving very limited scope of defence of an incumbent, who is obliged to adhere to the requisite safety measures. The Court held: "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 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." 14.
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." 14. That apart in some of the judgments, Supreme Court has also opined that while quantifying compensation under the Fatal Accident Act, the principles applicable in the case of motor accident claim can be pressed into service. 15. Supreme Court in Kishan Gopal & Ors. vs. Lala & Ors., MANU/SC/0864/2013 : (2014) 1 SCC 244 held that if a minor child above five years between age of 10 to 15 years is died in accident then compensation shall be awarded by taking the contribution of the child to the family at Rs. 12,000/- per annum and multiplier of 11. The Court thus awarded compensation to the tune of Rs. 5,00,000/- i.e. Rs. 4,50,000/- + Rs. 50,000/- towards conventional heads. 16. Thus taking into account a significant fact that death of respondents' daughter took place due to electrocution, in my view, the amount of compensation assessed by the learned trial Court is just and reasonable, rather it is a very moderate amount, which by no stretch of imagination can be categorized as excessive or exorbitant. The findings on other issues also cannot be faulted by invoking doctrine of strict liability. 17. In view of foregoing discussion, I see no reason to interfere with the impugned judgment and decree. Consequently, the appeal fails and same is, hereby, dismissed. Stay petition also stands dismissed.