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2021 DIGILAW 170 (ORI)

Cesco, Puri Division v. Indumani Mohanty

2021-04-06

D.DASH

body2021
JUDGMENT D.Dash, J. - The Appellants, by filing this appeal under section 100 of the Code of Civil Procedure (for short, 'the Code'), have assailed the judgment and decree dated 16.08.2019 and 27.08.2019 respectively passed by the learned District Judge, Puri in R.F.A. No.61 of 2016. By the said judgment and decree, the lower Appellate Court has confirmed the judgment and decree dated 05.02.2016 and 24.02.2016 respectively passed by the learned Civil Judge (Senior Division), Puri, in C.S. No.2 of 2005. 2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the trial court. 3. The Plaintiff Nos.1 and 2 are the widow and daughter of late Braja Kishore Mohanty whereas Defendant Nos.4 and 5 are his sons. It is stated that on 28.04.2004 around 10.40 pm when Braja Kishore was returning home, on the road near Ram Mandir, a live overhead electric wiere suddenly got detached from the poles and touched Braja Kishroe. For that he was electrocuted and died. This incident of sudden death of Braja Kishore due to electrocution is said to be on account of gross negligence on the part of the Defendants who are in-charge of supply of electricity and maintenance of the supply lines, accessories etc. It is stated that although on earlier occasions, complaints for improper maintenance of overhead electric wire and other fittings in the area had been made before the Defendants, those had never been attended to. For the unfortunate incident in which Braja Kishore died, information being lodged before the Inspector-in-Charge of Sea Beach Police Station, U.D. Case No.9 of 2004 has been registered and post mortem examination over the dead body of Braja Kishore was conducted. The doctor, who had conducted the post mortem examination, has given the report that the death was due to electrocution. It is the further case of the Plaintiffs that the deceased was earning a sum of Rs.15,000/- per month from his business and maintaining his family which after his death is under great stress and strain. In view of the above, the Plaintiffs have filed the suit claiming the compensation from the Defendants. 4. The Defendant Nos.1 and 2 contested the suit by filing written statement. In view of the above, the Plaintiffs have filed the suit claiming the compensation from the Defendants. 4. The Defendant Nos.1 and 2 contested the suit by filing written statement. It is their case that on 28.04.2004 around 8.00 pm there was drizzling in the area followed by mini storm. It is stated that at the spot, one two Phase wire line was existing and the terminating point was at a distance of 15 meters from the said spot. The victim when was passing on the road, on account of sudden strom, the overhead live electric wire at the spot got snapped as one green tree branch full over it. Under the circumstance, the Defendants deny their negligence in the said incident and submit to have no liability in the matter of payment of compensation. 5. On above rival pleadings, the Trial Court has framed as many six issues. Coming to examine issue no.5, as to negligence on the part of the Defendants, in the backdrop of the pleadings upon analysis of evidence and further keeping in view the settled position of law in such factual settings, as established, answer has been rendered against the Defendants in attributing negligence to them for the said incident and consequently, they are held liable to pay the compensation. Taking up the other issue relating to determination of compensation, going through the evidence, the Defendant Nos.1 to 3 have been directed to pay compensation of Rs.5,00,000/- to the Plaintiffs with interest @ 10% per annum from the date of death till payment. 6. The Defendant Nos.1 and 2, being aggrieved by the judgment and decree passed by the Trial Court, carried an appeal under section 96 of the Code. The lower Appellate Court having taken up the point for determination as to whether the death of Braja Kishore was due to electrocution for the negligence of the Defendant Nos.1 to 3, on going through the evidence and upon their appreciation at its level, in the backdrop of the rival case of the parties by applying the settled law on the subject, has in clear terms held the finding of the Trial Court to be in Order. In that exercise, the lower Appellate Court has answered those findings in favour of the Plaintiffs holding the death of Braja Kishore to have taken place on account of the negligence of the Defendant Nos.1 to 3, attaching their liability in paying the compensation to the Plaintiffs. Accordingly, the other issue relating to the assessment of compensation being taken up, the lower appellate court has confirmed the judgment and decree passed by the Trial Court. 7. Learned counsel for the Appellant (Defendants no. 1 to 3) submitted that the courts below having rendered the finding on issue nos. 5 and 6 have committed grave error both on facts and law. He submitted that the said findings suffer from the vice of perversity as because in arriving at the same, the Courts below have ignored certain material evidence on record and rather leaned more upon mere conjunctures and surmises. He thus submitted that said findings are clearly the outcome of perverse appreciation of evidence and that is the substantial question of law standing to be answered in this appeal. 8. Keeping in view the submission as above, I have carefully gone through the judgments of the courts below. In the case at hand, issue no.5 seems to be vital. That being so, the Courts below have rightly taken the same for decision. As it appears that the death of Braja Kishroe due to electrocution as to have taken place on 28.04.2004 stands admitted. 9. Principle of law has been settled that 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". 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". "The doctrine of strict liability has its origin in English Common Law when it was propounded in the celebrated case of Rylands v. Fletcher,1868 3 LawReports 330 HL, Justice Blackburn had observed thus: "The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does so he is prima facie answerable for all the damage which is the natural consequence of its escape." There are seven exceptions formulated by means of case law to the said doctrine. One of the exceptions is that "Act of stranger i.e. if the escape was caused by the unforeceable act of a stranger, the rule does not apply". (Winfield on Tort, 15th Edn. Page 535). The rule of strict liability has been approved and followed in many subsequent decisions in England and decisions of the apex Court are a legion to that effect. A Constitution Bench of the apex Court in Charan Lal Sahu v. Union of India, (1990) AIR SC 1480 and a Division Bench in Gujarat State Road Transport Corpn. V. Ramanbhai Prabhatbhai, (1987) AIR SC 1690 had followed with approval the principle in Rylands (supra). The same principle was reiterated in Kaushnuma Begum v. New India Assurance Co. Ltd., (2001) AIR SC 485. In M.P. Electricity Board v. Shail Kumar and others, (2002) AIR SC 551, one Jogendra Singh, a workman in a factory, was returning from his factory on the night of 23.8.1997 riding on a bicycle. There was rain and hence the road was partially inundated with water. The cyclist did not notice the live wire on the road and hence he rode the vehicle over the wire which twitched and snatched him and he was instantaneously electrocuted. He fell down and died within minutes. There was rain and hence the road was partially inundated with water. The cyclist did not notice the live wire on the road and hence he rode the vehicle over the wire which twitched and snatched him and he was instantaneously electrocuted. He fell down and died within minutes. When the action was brought by his widow and minor son, a plea was taken by the Board that one Hari Gaikwad had taken a wire from the main supply line in order to siphon the energy for his own use and the said act of pilferage was done clandestinely without even the notice of the Board and that the line got unfastened from the hook and it fell on the road over which the cycle ridden by the deceased slided resulting in the instantaneous electrocution. In paragraph 7, the apex Court held as follows: "It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human, being, who gets unknowingly trapped into if the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the Board that somebody committed mischief by siphoning such energy of his private property and that the electrocution was from such diverted line. It is the look out of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps." (emphasis laid) The principle of res ipsa loquitur is well known. It is explained in a very illustrative passage in Clerk & Lindsell on Torts, 16th Edn., pp. 568-569, which reads as follows: "Doctrine of res ipsa loquitur. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps." (emphasis laid) The principle of res ipsa loquitur is well known. It is explained in a very illustrative passage in Clerk & Lindsell on Torts, 16th Edn., pp. 568-569, which reads as follows: "Doctrine of res ipsa loquitur. The onus of proof, which lies on a party alleging negligence is, as pointed out, that he should establish his case by a pre-ponderance of probabilities. This he will normally have to do by proving that the other party acted carelessly. Such evidence is not always forthcoming. It is possible, however, in certain cases for him to rely on the mere fact that something happened as affording prima facie evidence of want of due care on the other's part: 'res ipsa loquitur is a principle which helps him to do so'. In effect, therefore, reliance on it is a confession by the plaintiff that he has no affirmative evidence of negligence. The classic statement of the circumstances in which he is able to do so is by Erle, C.J.: 'There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.' It is no more than a rule of evidence and states no principle of law. "This convenient and succinct formula", said Morris, L.J., "possesses no magic qualities; nor has it any added virtue, other than that of brevity, merely because it is expressed in Latin". It is only a convenient label to apply to a set of circumstances in which a plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. He merely proves a result, not any particular act or omission producing the result. He merely proves a result, not any particular act or omission producing the result. The court hears only the plaintiff's side of the story, and if this makes it more probable than not that the occurrence was caused by the negligence of the defendant, the doctrine res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability. It is not necessary for res ipsa loquitur to be specifically pleaded." As held above, 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. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps. The opposite parties cannot shirk their responsibility on trivial grounds. For the lackadaisical attitude exhibited by the opposite parties, a valuable life was lost. 10. Applying the aforesaid principles to the facts and circumstances as obtained in the evidence backed by the pleadings, this Court does not find any such reason or justification to differ with the view taken by the Courts below that the death of Braja Kishore was on account of negligence of the Defendant nos. 1 to 3. In so far as the determination of compensation is concerned, the approach in the matter is found to be sound as also the quantification to be just and proper. 11. In the wake of aforesaid, the submission of the learned counsel for the Appellants (Defendant Nos.1 to 3) that the case involves any the substantial questions of law stands repelled. 12. Accordingly, the Appeal stands dismissed and in the facts and circumstances without cost.