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2021 DIGILAW 682 (JK)

Zaitoon Begum v. State of J&K

2021-12-27

SINDHU SHARMA

body2021
JUDGMENT : Sindhu Sharma, J. 1. This civil first appeal arises out of the judgment dated 31.05.2005 passed by the District Judge, Bhaderwah in a suit titled 'Zaitoon Begum & Ors. v. State & Ors'. 2. The material facts arising in this case are that; appellants/plaintiffs had filed a suit for recovery of Rs. Five lac as compensation on account of the death of Akhter Hussain, husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 5, due to electric shock suffered on 15.11.1991 because of negligence, non-maintenance, improper electrification and installation of defective transformer and wires at village Kandoolu, Tehsil Gandoh. On 15.11.1991, transformer installed near the house of the plaintiffs at village Kandoolu caught fire at 10:30 p.m. and in order to save the lives of his family and his property, all the inhabitants of the area disconnected their service line. The deceased-Akhter Hussain rushed to switch off the main switch of the service line and in order to save the family, but suffered electric shock and died. As per the post mortem conducted by the Block Medical Officer, Gandoh, the deceased died due to electric shock. An F.I.R. No. 86/1991 with Police Station Gandoh Bhalessa of the accident was also registered. The plaintiffs thereafter served the notice under section 80 of CPC upon the defendants for payment of Rs. 5 lac as compensation on 15.04.1992. 3. In the written statement filed by the respondents/defendants admitted the accident and death of the Akhtar Hussain but denied their liability to pay compensation according to them the deceased died due to his own negligence even though, the registration of the F.I.R. for the death by negligence under section 304-A RPC though was admitted by the respondents/defendants. 4. On the pleadings of the parties, the following issues were framed:- I. Whether electric transformer installed at village Kandoolu Teh. Gandoh by the PDD Department caught fire on 15.11.1991 at 10:30 p.m. due to the negligence of the defendants and their employees? OPP II. Whether due to the fire to the said transformer, the deceased Akhter Hussain tried to disconnect the service line of his house and while switching off the main switch of his house received electric shock and died on the spot instantaneously? OPP III. OPP II. Whether due to the fire to the said transformer, the deceased Akhter Hussain tried to disconnect the service line of his house and while switching off the main switch of his house received electric shock and died on the spot instantaneously? OPP III. Whether the plaintiffs are entitled to compensation from the defendants for the death of deceased Akhter Hussain due to the negligence of the defendants and their employees, if so how much amount and in what proportion? OPP IV. Whether the plaintiffs served a valid notice under section 80 CPC on the defendants? OPP V. Relief. 5. On the issues framed, the parties lead their evidence and the trial court decided Issue Nos. 1 & 2 together being inter linked and both these issues were decided in favour of the plaintiffs and the trial court on the evidence of Muneer Ahmed, Talib Hussain, returned finding that the transformer had developed defect, two years ago and despite information, the department did not rectify the defect and the deceased died while he was switching off the main switch of his house. The transformer feeding the whole village and the same was not repaired because of want of funds because of which, electric supply to the village was of single phase and there was short-circuit. 6. The transformer being defective was supplying current in single phase and caught fire abruptly. Abdul Rashid-Foreman has admitted in his statement the fact that the transformer was defective and this was brought to the notice of the higher authorities and AE concerned namely Kulbhushan Sharma has also stated that the higher authorities were informed about the defective transformer but due to lack of funds, it could not be repaired. It is also admitted that the deceased died due to electrocution which is also in the enquiry report of the defendants, as such, Issue Nos. 1 & 3 were decided in favour of the plaintiffs and against the defendants. 7. The Issue No. 4 regarding service of valid notice under section 80 CPC on the defendants, was not pressed by the parties and was decided in favour of the plaintiffs. 8. Mr. P.N Bhat, learned counsel for the applicants submit that trial court seriously committed error in dealing with the issue regarding compensation due to the plaintiff from the defendants, due to the death of deceased due to negligence. 8. Mr. P.N Bhat, learned counsel for the applicants submit that trial court seriously committed error in dealing with the issue regarding compensation due to the plaintiff from the defendants, due to the death of deceased due to negligence. Though the Trial Court had decided Issue No. 1 that electric transformer caught fire due to negligence of the defendants and their employees but while deciding Issue No. 3 with regard to compensation, came to a conclusion that the deceased died while switching off the main switch in the lobby of his house, as such, the Electricity Department was not held responsible for his own contributory negligence. Precisely, it was held that if the deceased got shock by the line installed by the electric department on the line of the transformer itself and the outer network of the department, the matter would be absolutely the different. Thus, the Trial Court held that since the deceased had died within his own lobby while switching off the main switch of his house, negligence for such death cannot be attributed to the department and responsibility of maintenance of internal wiring lies with the customer and not with the department, therefore, decided the Issue in favour of the defendants and against the plaintiffs. 9. It is not disputed that the accident occurred due to fault in transformer which was supplying electricity to the village which caught fire and resulted in short circuit which caused the death of Akhtar Hussain who died on spot due to electrocution. The defendants are transmitting electric energy, they are liable of negligence, as it is negligence to omit to use all reasonable known means to keep the electricity harmless. The burden of proving that there was no negligence on the defendants, they have failed to prove it. Further, the standard of care required owing to longer nature of electricity on the guideline of company. 10. The appellants submit that the Court below has failed to appreciate the facts and law and has decided the suit in a mechanical manner. The burden of proving that there was no negligence on the defendants, they have failed to prove it. Further, the standard of care required owing to longer nature of electricity on the guideline of company. 10. The appellants submit that the Court below has failed to appreciate the facts and law and has decided the suit in a mechanical manner. The Trial Court had returned the finding that there was a short circuit in the transformer and had caught fire due to the negligence of the department, however, failed to appreciate the statement of the witnesses and held only on the ground that since the deceased was switching off the main switch of his house and suffered short circuit, as such, the negligence cannot be attributed to the department. The appellants further submit that they have laid positive case on the basis of evidence that if the deceased had not turned the main switch off, there would be loss of lives and property of the appellants, therefore, he rushed to turn the main switch off apprehending that the fire would spread his house, as such, shock was not due to the fault on the wiring in his house but due to the fire in the transformer which was defective. It is in the evidence of Muneer Ahmed that the transformer caught fire at around 10:30 p.m. on 15.11.1991 and electricity was in single phase, therefore, the deceased rushed towards his house to switch off the main switch of his house and got electric shock which resulted in his death. He has also stated that at that time, Rasal Singh and Kheel Chand lineman was present on spot. It is also his categoric statement that the transformer was defective from the last two years and they had consistently requested that the same be repaired. The evidence of Talib Hussain is also that the transformer was defective from two years and all the villagers had requested time and again to the Electricity Department to repair the same and on 15.11.1991 at around 10:30 p.m., the transformer caught fire which resulted in the death of Akhter Hussain, who had got to switch off the main switch of his house. Sheikh Abdul Qayoom, Assistant Engineer in his statement has stated that there was a fire in the transformer station and at that time, the lineman Kheel Chand was present on spot but he has also given statement that the deceased died due to his own negligence and the department was not responsible for the same. The Assistant Executive Engineer-Kulbhushan Sharma, who was posted at that time, has stated that the lineman-Kheel Chand was present on spot on the fateful day which resulted in the death of Akhter Hussain. He has also stated that at that time, Kheel Chand was present on spot and the foreman-Abdul Rashid Lone was also there. It was also on the asking of Abdul Rashid Lone, he has prepared the report which is produced in the Court. He has also admitted that the electricity from the transformer was in single phase which resulted in burning of wires and even the wooden poles had caught fire. He has also stated that there was no repair in the same as the department did not have the funds to do but he has stated that though because of single phase, the wire can burn but there could be no danger to anybody. Abdul Rashid Lone, who was posted in the same place as foreman, has stated that the village Kandoolu was in his jurisdiction and on 15.11.1991, he was informed by lineman that one Akhter Hussain had died due to electrocution in his house. The electricity supply, according to him, was alright but the transformer was damaged and electricity supply was in single phase. He went on the place of occurrence on the next morning and checked the electricity wires. He was informed by the family members, the deceased died as he touched the switch. It is his statement that they are not concerned with the electricity supply inside the house of the deceased. He had also given the report in this regard to Kulbhushan Sharma, AE. It is also stated in his cross-examination that the transformer was defective and since 2 ½ years, there was no repair of the same. He had not seen the occurrence himself but he was informed by the lineman that when the incident occurred, there was fire and flash on the transformer. The transformer is set up in the field. It is also stated in his cross-examination that the transformer was defective and since 2 ½ years, there was no repair of the same. He had not seen the occurrence himself but he was informed by the lineman that when the incident occurred, there was fire and flash on the transformer. The transformer is set up in the field. He has also stated that single phase electricity can result in the death of a person. 11. From the evidence of Kulbhushan Sharma and Abdul Rashid Lone, it appears that Kheel Chand was present on spot and it is the statement of lineman which has not been referred by the Trial Court. According to Kheel Chand, suddenly the transformer in the village caught fire at 10:30 p.m. on 15.11.1991 which was supplying electricity to the village and everybody went to his house to switch of the main switch so that no damage is done to their house because if the switch was not switched off, then service line which provides electricity to the house would result in mishap and as a result of which, there should be fire. Akhter Hussain's house was nearby and when he went to shut the main switch, he got electrocuted. He was also a casual labourer in the department and after that, he came back to village Kandoolu, thus, from the evidence of the parties, it is apparent that the transformer in the village was defective and was giving single phase electricity. It is also admitted that same caught fire on the fateful day and this fact is also stand admitted by the lineman Kheel Chand. It has also been admitted by Kulbhushan Sharma that Kheel Chand was present on spot, therefore, the supply of electricity, after the transformer caught fire, resulted in short circuit to the house of the plaintiffs and deceased died as soon as rushed to switch off the main switch of electricity of his house to prevent any loss to life and property. The Trial court, thus, has ignored vital evidence and after deciding the issue of negligence in favour of the plaintiffs has wrongly refused to grant the compensation to the plaintiffs. 12. The Hon'ble Apex Court in Madhya Pradesh Electricity Board v. Shail Kumari & Anr., AIR 2002 SC 551 has held as under:- "7. The Trial court, thus, has ignored vital evidence and after deciding the issue of negligence in favour of the plaintiffs has wrongly refused to grant the compensation to the plaintiffs. 12. The Hon'ble Apex Court in Madhya Pradesh Electricity Board v. Shail Kumari & Anr., AIR 2002 SC 551 has held as under:- "7. 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 it 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 to 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". 13. In view of the aforesaid, finding with regard to Issue No. 3 cannot be sustained and is accordingly set aside. The deceased was approximately 35 years old at the time of his death and was survived by his wife and four minor children i.e., five dependents, therefore, the deceased was a Stock Assistant in the Sheep Husbandry Department and was drawing monthly salary of Rs. 1,868/- taking note of future prospects adding 50% to the actual salary, the salary of the petitioner would be Rs. 2802/-, deduction 1/5th (one fifth) towards personal expenses would be Rs. 2242/-. The dependency of the plaintiff would be 2242 x 12 x 16 which would come Rs. 4,30,464/-. Adding another funeral expenses and consortium, the plaintiffs are entitled to a sum of Rs. 2802/-, deduction 1/5th (one fifth) towards personal expenses would be Rs. 2242/-. The dependency of the plaintiff would be 2242 x 12 x 16 which would come Rs. 4,30,464/-. Adding another funeral expenses and consortium, the plaintiffs are entitled to a sum of Rs. Five Lakh as compensation for the death of the deceased. 14. In view of the aforesaid, this appeal is allowed and judgment and decree is set aside. The plaintiffs' suit is decreed for a sum of Rs. 5,00,000/- along with 6% interest from the date of filing of this appeal till its realization. The plaintiffs will get equal share. 15. Record of the court below be sent back.