Dismissed

C.E.O.,Cesu v. Satyabhama Nayak

Orissa HC2 Mar 2016RFA/76/2014

Case brief

AI extract

What is this about?

The High Court of Orissa dismissed an appeal filed by an electricity utility company against a trial court decree awarding compensation to the widow of an employee who died due to electrocution. The Court upheld the strict liability of the utility, rejecting the defense of lack of negligence.

What did the court decide?

The appeal and cross-objection were dismissed with no order as to costs; interim deposit along with decreetal dues to be released to the plaintiff.

C.E.O.,Cesu Vs Satyabhama Nayak — Orissa HC (2016) — LawSathi Research

¶1

HIGH COURT OF ORISSA: CUTTACK

¶2

RFA NO.76 OF 2014

¶3

From the judgment and decree dated 26.06.2014 and 05.07.2014 respectively passed by the learned 2^nd Additional Senior Civil Judge, Bhubaneswar in M.S. No.40/685 of 2012/2011.

¶4

¶5

Chief Executive Officer, Central Electricity Supply Utility of Odisha, Bhubaneswar and others …… Appellants -VersusSatyabhama Nayak …… Respondent

¶6

For Appellants : M/s. B.K.Nayak-1 & D.K.Mohanty

¶7

For Respondent : M/s. Biswajit Mohanty & R.N.Das,

¶8

-----------------------------Heard and disposed of on 02.03.2016 ------------------------------

¶9

P R E S E N T:

¶10

THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA

¶11

¶12

J U D G M E N T

¶13

K.R. Mohapatra, J. The unsuccessful defendants have come up in this

¶14

appeal assailing the judgment and decree dated 26.06.2014 and 05.07.2014 respectively passed by the learned 2^nd Additional Senior Civil Judge, Bhubaneswar in M.S. No.40/685 of 2012/2011

¶15

The suit was filed for a compensation of Rs.10,00,000/-

¶16

with pendente lite and future interest at the rate of 12% per annum

¶17

¶18

along with cost of the suit by the widow of one Basanta Kumar Nayak, who died due to electrocution.

¶19

Plaint case in brief is that the husband of the plaintiff, namely, Basanta Kumar Nayak (for short, ‘the deceased’) while proceeding towards his agricultural field on 06.02.2011 at 4 PM at Bayree Upper Sahi under Badchana Police Station in the district of Cuttack came in contact with a sagging 11 KV live electricity conductor and was burnt to death instantaneously. It is pleaded that due to lack of maintenance of the 11 KV conductor by the defendants, the live conductor was sagging at a height of 3-4 feet from the ground. Thus, the deceased came in contact with the said live electric conductor and was burnt to death instantaneously. On being informed, Badchana Police registered a case bearing U.D. Case No.3 of 2011. Inquest on the dead body was conducted. Subsequently, postmortem of the deceased was done at District Headquarters Hospital, Jajpur. The deceased was a strong and energetic person of 48 years old and was serving as a Chainman in the office of the Consolidation, Niali under Additional Sub-Collector, Cuttack and was getting salary of Rs.9,193/- per month. The entire family, i.e., the mother of the deceased, the plaintiff and three children were completely depending on the income of the deceased. After his death, the entire family is under starvation as they have no other source of income. The plaintiff spent Rs.50,000/-towards

¶20

¶21

obsequies of the deceased. Thus, the plaintiff claimed the aforesaid amount on different heads.

¶22

The defendants filed joint written statement refuting the contentions raised in the plaint. The defendants contended that the suit is bad for non-joinder of necessary parties and the Court has no territorial jurisdiction to entertain the suit. It was further contended that the defendants had no contribution for the death of the deceased. They were never negligent in maintaining the live 11 KV conductor. The overhead electricity conductor was being maintained properly at regular intervals as per the guidelines. Apart from that, necessary repairing and maintenance were being done as and when required. The overhead conductor had got sufficient ground clearance at the spot of accident, in conformity with the requirements of the Indian Electricity Rules, 1956. The defendants further pleaded that the deceased was electrocuted due to a sudden spark of the insulator and the defendants have no contribution to it. They also denied the age, salary and dependency of the deceased as contended in the plaint and prayed for dismissal of the suit being devoid of any merit.

¶23

Taking into consideration the rival contentions of the parties following issues have been framed.

¶24

Whether suit is maintainable?

¶25

Whether there is any cause of action to file the present suit?

¶26

¶27

Whether the suit is bad for non-joinder of necessary parties?

¶28

Whether the deceased died due to negligence of the defendants?

¶29

Whether the plaintiff is entitled to get of Rs.10,00,000/(Rupees ten lakhs) as compensation from the defendants?

¶30

To what other relief, the plaintiff is entitled?”

¶31

In order to substantiate her case, the plaintiff examined as many as three witnesses, including herself as PW-1. PW-2 is the occurrence witness and PW-3 is the Head Clerk of the office of Joint Director, Consolidation, Cuttack and in charge of Additional SubCollector, Cuttack, Consolidation Office, Niali Circle, Niali. She also relied upon certain documents, such as certified copy of the FIR (Ext.2), certified copy of the final report (Ext.3), inquest report (Ext.4), dead body challan (Ext.5), postmortem report (Ext.6), salary certificate (Ext.7) along with other documents. On the other hand, the defendants neither examined any witness nor produced any documents in their support.

¶32

Learned Trial Court, adjudicating the issues 3, 4 and 5 answered the same in affirmative in favour of the plaintiff. In answering issues 1, 2 and 6, learned Trial Court held that plaintiff is entitled to the compensation to the tune of Rs.9,79,500/- as on the date of institution of the suit and also awarded pendente lite and

¶33

¶34

future interest @ 6% per annum with effect from the date of institution of the suit till the date of payment.

¶35

Mr. Nayak, learned counsel for the appellants challenging the impugned judgment contended that the finding with regard to negligence of the defendants is without any basis and the same is contrary to the materials available on record. Further, the compensation awarded is excessive in comparison to the income and dependency of the plaintiff. Further, the finding of issue No.3 is also equally sustainable in the eye of law. Mr.Nayak placed reliance upon a decision of the Hon’ble Supreme Court in the case of S.D.O., Grid Corporation of Orissa Ltd. and others, Vs. Timudu Oram , reported in AIR 2005 SC 3971, wherein at paragraph-6 approving the view taken in the case of Chairman, Grid Corporation of Orissa Ltd. Vs. Sukamani Das (Smt.) , reported in AIR 1999 SC 3412, held as under:-

¶36

“6. ….It was held that actions in tort and negligence were required to be established initially by the claimants. The mere fact that the wire of electric transmission line belonging to the appellant had snapped and the deceased had come into contact with it and died by itself was not sufficient for awarding compensation. The Court was required to examine as to whether the wire had snapped as a result of any negligence on the part of the appellants, as a result of which the deceased had come in contact with the wire…..”

¶37

Thus, he contended that the onus probandi is on the plaintiff to prove

¶38

that the death of the deceased was caused due to negligence of the

¶39

¶40

defendants. Merely because the conductor for the electricity transmission belonging to the defendants was sagging/snapped and the deceased coming in contact with it died instantaneously, by itself was not sufficient for awarding compensation. The Court is required to examine as to whether the wire was sagging or snapped as a result of any negligence on the part of the defendants/appellants. Thus, mere allegation that the defendants were negligent is not sufficient to award compensation. Apparently, there is no material on record to come to a conclusion that the defendants were negligent and/or not maintaining 11KV conductor properly. As such, the finding with regard to issue No.4 is not sustainable both in fact and law.

¶41

Mr.Mohanty, learned counsel for the plaintiff/ respondent refuting the same submits that the plaintiff was examined as PW-1, who categorically stated that the deceased died while proceeding to his agricultural land came in contact with 11 KV live conductor, which was sagging at a height of only 3 to 4 feet from the ground at the spot of accident. PW-2, the occurrence witness also corroborated the same. Their evidence remained undisturbed in the cross-examination. Thus, learned Trial Court has rightly answered the issue No.4 in favour of the plaintiff.

¶42

PW-1 (the plaintiff), in her deposition stated that on 06.02.2011 at about 4 PM when the deceased was going to his agricultural land, suddenly electrocuted by overhead 11 KV live electric wire and sustained grievous burn injuries on his forehead,

¶43

¶44

neck, right hand, elbow, right foot along with multiple burnt injuries all over the body. Due to such injuries, he died at the spot. She also deposed that the live electricity wire was hanging at a height of 3 to 4 feet from the ground. Due to the accident, there was a heavy spark and the wire was disconnected from the insulator. In her crossexamination, she has stated that she had not seen the occurrence. She also denied the suggestion that the Department had no negligence in maintaining the 11KV live conductor. The PW-2, who is an independent witness to the occurrence, also corroborated the statement of PW-1. He during his cross-examination, categorically deposed that the live electricity wire was not in a hanging condition at a height of 3 to 4 feet in between two poles. The deceased was not blind. He also denied to the suggestion that the Department was not negligent in maintaining the live conductor. Thus, it is apparent that the statement of the material witnesses remained unshaken during cross-examination so far as negligence of the defendants in maintaining the 11 KV conductor is concerned. Thus, the plaintiff has discharged the onus probandi cast upon her in proving the negligence of the defendants. Thus, the onus shifts on to the defendants to prove otherwise. The defendants, on the other hand, have not examined any witness in support of their contention that the 11KV live conductor was being maintained properly and regularly. In that view of the matter, it is very difficult to accept the plea of Mr.Nayak to the effect that the finding of the learned Trial

¶45

¶46

Court on issue No.4 is contrary to the evidence available on record. Law is well-settled in this regard in the case of Bidyadhar Vs. Manikrao and another , reported in AIR 1999 SC 1441, wherein, the Hon’ble Supreme Court held as under:-

¶47

“15. It was defendant No. 1 who contended that the sale deed, executed by defendant No. 2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction as only Rs. 500 were paid as sale consideration to defendant No. 2. He further claimed that payment of Rs. 4,500 to defendant No. 2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by defendant No. 1 as he did not enter into the witness box. He did not state the facts pleaded in the written statement on oath in the Trial Court and avoided the witness box so that he may not be cross examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No. 2 and the plaintiff was a bogus transaction.

¶48

Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a

¶49

¶50

Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors., drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.”

¶51

In that view of the matter, the finding on issue No.4 needs no interference. The defendants are also otherwise liable to pay compensation in view of the doctrine of strict liability. The Hon’ble Supreme Court in the case of Madhya Pradesh Electricity Board Vs. Shail Kumari , reported in (2002) 2 SCC 162 held as

¶52

under:-

¶53

“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. ….

¶54

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

¶55

¶56

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.”

¶57

In another decision in the case of M.C. Mehta and Anr. Vs. Union Of India & Ors , reported in (1987) 1 SCC 395, the Hon’ble Supreme Court following the observations on the principles of ‘Strict Liability’, enunciated in the famous English case of Rylands v. Fletcher , (1866 Law Report 1 Exchequer 265) held as under:-

¶58

“…where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident in the operation of such hazardous or inherently dangerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher (supra)….”

¶59

Learned Trial Court taking into consideration the aforesaid two case laws has come to a conclusion that the

¶60

¶61

defendants are liable to compensate the loss of life of the deceased. On a bare perusal of the aforesaid principles laid down in the aforesaid case laws, it is clear that even if all measures have been adopted for maintenance of the live conductor, a person/Company undertaking any activity involving hazardous or inherently dangerous to human life is liable under law of tort to compensate the injury suffered by any other person notwithstanding the fact that there is no negligence or callousness on the part of the Manager of such undertaking. Thus, applying the aforesaid principles/doctrine of strict liability the defendants are liable to pay the compensation.

¶62

Coming to the issue of non-joinder of necessary party, learned Trial Court held that the suit is not bad for non-joinder of necessary parties. The legal heir certificate (Ext.9) discloses that the son of the deceased was 21 years old. So he cannot be treated to be a dependant of the deceased. The unmarried daughters of the deceased, namely, Sipramayee Nayak and Madhusmita Nayak are 23 and 19 years respectively are dependents of the deceased. After his death, they are being looked after by the plaintiff, their mother. Thus, non-impleadment of unmarried daughters of the deceased to the suit cannot be said to be fatal as the plaintiff has claimed compensation for herself and for other dependants. Thus, the suit has been rightly held to be maintainable and the same is not bad for non-joinder of necessary parties. Hence, the finding on issue No.3 needs no interference.

¶63

¶64

The plaintiff/respondent has also filed a cross-objection under Order 41 Rule-22, CPC for enhancement of the compensation on the ground that the learned Trial Court has not taken into consideration the future prospects of the deceased. Admittedly, the deceased was a job contract employee and working as a Chainman in the office of the Joint Director, Consolidation. His service was not confirmed by the time of his death. Further, his net salary was 9,399/- as apparent from Ext.7, the salary certificate. The same has been duly proved by PW-3 and there is no material to doubt the genuineness of the same. The mode of calculation adopted by the learned Trial Court does not also appear to be incorrect. Neither of the parties could produce any material to take a different view in the matter of calculation of compensation. The defendants have not produced any material to dispute the income of the deceased. At the same time, the plaintiff/respondent raises feeble contention with regard to future prospects of the deceased without adducing any evidence to that effect. Thus, I am not inclined to take a different view than that of the learned Trial Court while answering issue No.5. 13. In that view of the matter, the impugned judgment and decree needs no interference. Accordingly, the appeal as well as the cross-objection are dismissed being devoid of any merit, but in the circumstances, there is no order as to costs.

¶65

This Court by order dated 25.02.2015 passed in Misc.

¶66

case No.61 of 2015 directed stay of further proceeding in Execution

¶67

¶68

Case No.2209 of 2014 subject to deposit of Rs.5,00,000/- before the Executing Court. Pursuant to such direction, the said amount of Rs.5,00,000/- has been deposited before the 2^nd Additional Civil Judge (Senior Division), Bhubaneswar in Execution Case No.2209 of 2014. Thus, while parting with the judgment, this Court directs that the amount deposited along with rest of the decreetal dues along with the interest shall be released in favour of the plaintiff as directed by the learned Court below as expeditiously as possible. Accordingly, the interim order dated 25.02.2015 gets merged with this order.

¶69

Issue urgent certified copy of the order on proper

¶70

application.

¶71

………………………….

¶72

K.R. Mohapatra, J.

¶73

Orissa High Court, Cuttack Dated the 2^nd March, 2016/bks/ss

C.E.O.,Cesu v. Satyabhama Nayak

Case brief

What is this about?

What did the court decide?

C.E.O.,Cesu v. Satyabhama Nayak

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mir Sayad Alli Vs Sk.Abdul Waheb

All Utkal Pry.Scl. Vs Chaitanya Swain

Indramani Behera Vs Secy,Urban Co.Operat

Nesco Ltd. Vs Dilip Kumar Bardhen

Kalyani Vs Secy,G.a.Dept

Satya N.Mohapatra Vs State