Hon''ble Mr. A.K. Shrivastava, J.@mdashFeeling aggrieved by the judgment and decree dated 10-12-2001 passed by learned Second Additional District Judge, Satna in Civil Suit No. 8-B/1997 dismissing the suit for damages, the plaintiffs have taken the shelter of this Court by preferring this appeal u/s 96 of CPC. In brief the suit of the plaintiffs is that Rajendra Prasad (hereinafter shall be referred to as "deceased") was the husband of first plaintiff Smt. Lalita Tripathi while plaintiff Nos. 2 and 3 are two innocent sons aged one and two years respectively of deceased. The deceased died on account of electrocution. According to the plaintiffs, the S.T. line of defendants/M.P. Electricity Board (in short "Board") was passing away in front of house of the deceased. The said S.T. line was placed of different poles. However, on account of the negligent act of defendants, the poles were disorderly placed and were also bent, as a result of which, the wire of S.T. line was also looping towards the ground. The electric wire was also not properly tightened with the equipment installed on the electric poles. On 18-6-1997 on the said S.T. line some birds were resting and because ST. line was bending towards the ground, it touched with the electric wire which was connecting the pump. Resultantly, the entire electric supply was disrupted and electric equipments like fans, Tape-recorder, bulbs, television sets, etc. were fused. On hearing hue and cry of the locality, the deceased rushed out from his house and at that juncture on account of sparking, the live wire of LT line broke and fell on the person of the deceased as a result of which he died. According to plaintiffs the accident had occurred on account of negligent act of the defendants.
2. The matter was also reported to the Police Check Post. At the time of death, the age of deceased was 24 years and he was employed in a private job under the employment of Anil Traders at Satna where he was drawing Rs. 1,500/- per month towards salary. He was also earning Rs. 500/- to 700/- per month from his part-time job. The plaintiffs were fully dependent upon their sole bread earner, the deceased. Hence, the plaintiffs filed a suit for damages for Rs. 3 lacs with 12% interest.
3. The defendants by filing written statement, although admitted the factum of death of deceased, but specifically denied that on account of negligence of first defendant or its employees, the alleged accident had occurred. The factum that the deceased was being employed in the Firm Anil Traders Satna and was drawing salary Rs. 1,500/- per month has been denied. It is also denied that deceased was earning some more money from part time job.
4. In the special plea, it has been pleaded by the defendants that the electric service connection No. 175 was given to plaintiffs'' predecessor Awadh Sharan and the same was checked upon 20-3-1997. On checking it was found that electric fittings are not properly fitted nor any service line has been properly laid down by the consumer. In this regard, the Junior Engineer of the Board directed the consumer to get the electric fittings completed within three days. But the said predecessor of plaintiffs named Awadh Sharan did not do anything. Later on, one more letter was sent by said Junior Engineer on 29-3-1997, but, in spite of receiving such letters, the electric fittings of the plaintiffs'' house were not perfected upto to the mark. Resultantly, deceased died on account of electrocution in his own house on account of his own negligent act and for which the defendants are not liable. The other averments made in the plaint were also denied.
5. Learned Trial Court framed necessary issues. On behalf of plaintiffs, Lalita Tripathi (first plaintiff) was examined and she also examined Bhura (P.W. 2) who is resident of same locality and Ramchandra under whom the deceased was serving. The defendants did not adduce any oral or documentary evidence nor confronted any document which they are relying, to the witnesses of the plaintiffs.
6. The learned Trial Court dismissed the suit of the plaintiffs and in this manner, this first appeal has been preferred by the plaintiffs.
7. The contention of Shri Shukla, learned Counsel for the appellants is that the defendants (Board) were required to show that the accident had occurred in spite of due care taken by them because the Board is a statutory authority. It has also been put forth by him that negligence on the part of the Board is actionable and the onus to prove was on the Board to prove that it had taken all steps to prevent the accident. Learned Counsel submits that having failed to adduce any evidence by the defendants (Board), it is not proved that the Board had taken all the steps to prevent the accident and if that would be the position, the defendants are liable to pay damages. In this context, two Division Bench decisions of this Court Chairman, M.P. Electricity Board, Jabalpur and others Vs. Smt. Gindiabai, 1999 (1) MPLJ 587 and
8. On the other hand, Shri Jaiswal, learned Senior Counsel argued in support of the impugned judgment and submitted that cogent reasons have been assigned by the learned Trial Court in dismissing the suit and no interference is called for.
9. Having heard learned Counsel for the parties, I am of the view that this appeal deserves to be allowed.
10. Indeed, the plaintiffs have filed the present suit for damages on account of the death of the deceased in electrocution. According to plaintiffs, for the negligent act of the defendants he had died. The factum of the death of the deceased due to electrocution is not denied. The learned Trial Court on the basis of the evidence placed on record has rightly arrived at a finding that the deceased had died on account of electrocution. Now it is to be seen whether on account of negligence of the defendants the deceased had died. According to me, negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence, as recognised are three : (a) "duty", (b) "breach" and (c) "resulting damage", that is to say :-
(1) The existence of a duty to take care, which is owed by the defendant to the complainant;
(2) The failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and
(3) Damage, which is both casually connected with such breach and recognised by the law, has been suffered by the complainant.
If the plaintiffs satisfies the Court on the basis of pleadings and evidence that these three ingredients are proved, the defendants should be held liable for the negligence. On this point it would be fruitful to rely upon the decision of Supreme Court in
(a) Existence of a duty to take care;
(b) Failure to attain the standard of care; and
(c) Damage suffered on account of breach of duty are present.
11. Since the suit has been filed by the plaintiffs for damages on account of negligent act of the defendants, their pleadings and evidence (oral and documentary) which they have adduced should satisfy the hallmark of the aforesaid tests. Before this Court examines the pleadings of the parties vis-a-vis to each other and the evidence of the plaintiffs, it is to be ascertained that since the defendants (Electricity Board) had totally denied their liability and had pleaded that on account of negligent act of the deceased, the accident had occurred, it is to be ascertained on whom the burden of proof would lie. It be seen that although the pleadings of the plaintiffs have been refuted by defendants in their written statement and further they have pleaded that on account of negligent act of the deceased (plaintiff''s predecessor), the accident had occurred but no oral evidence has been adduced rebutting the evidence of the plaintiffs and their witnesses. Not only this, they did not file any documentary evidence so as to prove that the accident had occurred on account of the fault of the deceased himself. They have not even confronted any document which they are relying to the testimony of plaintiffs'' witnesses. Hence, according to me, adverse inference should be drawn against them and in this regard I may profitably place reliance on the decision of Privy Council
12. However, one important fact which cannot be marginalized and blinked away is that the defendants being a statutory authority is obliged to prove that the accident had occurred in spite of due care being taken by them. In this context, rightly two decisions of Division Bench of this Court Smt. Gindiabai (supra) and Shail Kumari (supra), have been relied upon by Shri Shukla. learned Counsel for appellants. Same principle has also been again reiterated in the judgment of this Court in
13. On behalf of plaintiffs, first plaintiff Smt. Lalita Tripathi examined herself. In her testimony she had stated that on 18-6-1997 at about 2 p.m. two electric wires overlapped with each other, as a result of which, the television set, ceiling fans, etc. of her house were burnt. In order to inquire what has happened the deceased came out from his house and went to the place where the wires were loosely lying on the poles. At that juncture, all of a sudden a live electric wire broke and fell on the deceased resulting into his death by electrocution. She has also stated that electric wires were not insulated. Further, she has stated that beneath the service line which is crossing the village, no protective measures were applied by the defendants. In cross-examination she has stated that she has not brought any lest report of electric fittings of her house. In cross-examination, she has also stated that outside of her house, the electric wires were overlapped with each other, as a result of which they were broken. Further, she has also stated in her cross-examination that the electric poles were also bent for which several times complaints were made to the defendants.
14. The testimony of this witness has been corroborated by the evidence of Bhura who is the resident of same locality. According to him, wires of two electric lines were overlapped with each other, as a result of which there was a hue and cry in the village. On hearing the same, the deceased came out from his house and at that juncture one live electric wire broke and fell on the person of the deceased. In his testimony he has also proved that the electric poles were bent and the wire which was lying on the pole was looping. No evidence in rebuttal has been adduced by the defendants and therefore there is no reason to disbelieve the evidence of first plaintiff and her witnesses. In the aforesaid decisions of Smt. Gindiabai (supra) and Shail Kumari (supra), the Division Bench of this Court has already held that the onus is on the Electricity Board to prove that it had taken all steps to avoid the accidents and the accident had occurred despite due care being taken by the defendants. There is no evidence of defendants in this regard and they have also not proved any document to prove that despite they had taken due care and caution the accident had occurred. Since this fact has been proved that the poles of the defendants which were passing through the Village were bent and the LT line having live wires were also looping and was benting down towards the ground, the principle of res ipsa loquitur would also apply in the present case.
15. According to me, the learned Trial Court has erred in dismissing the suit for two major reasons. Firstly, the plaintiffs have proved that on account of negligent act of the defendants the accident had occurred and the deceased had died on account of electrocution, although the burden of prove was on defendants being the statutory body to prove that they had taken all due steps and care and had taken all preventive measures to stop the accidents Secondly, there is no evidence of the defendants that despite they had taken due care and caution to prevent the accident, the accident had occurred. Thus. I am of the view that the plaintiffs have proved their case on the touchstone and hallmark of the aforesaid tests laid down by the Supreme Court in Jacob Mathew (supra) and Kishore Lal (supra), and thus they are entitled for the damages.
16. First plaintiff has categorically stated in her evidence that the age of her husband (deceased) was 24 years at the time of his death. She had also proved that deceased was earning Rs. 1500/- per month. The certificate of income issued by employer of deceased (Exh. P-4) has also been proved by her as well as by Ram Chandra (P.W. 3) who is owner of the Firm Anil Traders. True, in the certificate it has been mentioned that salary of deceased was Rs. 1850/- but in the pleadings the plaintiffs have pleaded that deceased was earning Rs. 1500/- per month. The factum that the deceased was also having separate income apart from the salary which was paid to him by his employer, no documentary evidence in that regard has been filed nor it has been so stated by plaintiffs that what type of other part time work deceased was discharging and therefore, I am of the view that deceased was earning Rs. 18,000/- per year.
17. Since the age of deceased at the time of death was 24 years only and he was having two innocent male children who are one and two years respectively and therefore, certainly he must have been incurring major portion of his income on his children and wife rather incurring on himself. Therefore, I am of the view that the dependency should be Rs. 15,000/- per year and a multiplier of 18 should be applied which comes to Rs. 2,70.000/-. Let this amount be paid to the plaintiffs alongwith interest @ 9% per annum from the date of accident. It is however, made clear that in case amount of compensation is not deposited in the Trial Court alongwith interest as well as amount of cost on or before 31-3-2012, the respondents/ defendants shall be liable to pay interest @ 12% per annum Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by learned Trial Court dismissing the suit of plaintiffs is hereby set aside and the suit of the plaintiffs is hereby decreed to the extent indicated hereinabove with costs. Counsel fee Rs. 5.000/- if pre-certified.
