Dismissed

Exe.Engnr.,East Electrical Divn.Wesco. v. Sesha Bag

Orissa HC3 Nov 2016RSA/26/2016

Case brief

AI extract

What is this about?

This appeal challenged the lower appellate court's decision holding the Electricity Board negligent in a death by electrocution while stealing power. The High Court dismissed the appeal, upholding the Board's liability under the doctrine of strict liability and res ipsa loquitur.

What did the court decide?

The second appeal was dismissed as it did not involve any substantial question of law.

Exe.Engnr.,East Electrical Divn.Wesco. Vs Sesha Bag — Writ and Judicial Review | Orissa HC (2016)

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HIGH COURT OF ORISSA: CUTTACK

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R.S.A. No. 26 of 2016

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From the judgment and decree dated 13.10.2015 and 29.10.2015 respectively passed by Sri G. Satpathy, learned District Judge, Kalahandi, Bhawanipatna in R.F.A. No.10 of 2011 reversing the judgment and decree dated 04.11.2010 and 19.11.2010 respectively passed by Sri H.H. Biswal, learned Civil Judge (Senior Division), Bhawanipatna in C.S. No.32 of 2004.

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Executive Engineer East Electrical Division (WESCO) …. Appellant
Versus
Sesha Bag and another …. Respondents
For Appellant … Ms. Suman Pattnayak, Advocate
For Respondents … Mr. Dhananjaya Mund, Advocate

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J U D G M E N T

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PRESENT:

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THE HONOURABLE DR. JUSTICE A.K.RATH

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Date of hearing: 03.11.2016 : Date of judgment: 03.11.2016 Dr.A.K.Rath, J. This is an appeal against the judgment and decree dated 13.10.2015 and 29.10.2015 passed by the learned District Judge, Kalahandi, Bhawanipatna in R.S.A. No. 10 of 2011 setting aside the judgment and decree dated 04.11.2010 and 19.11.2010 respectively

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passed by the learned Civil Judge (Senior Division), Bhawanipatna in C.S. No. 32 of 2004.

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The respondents are unfortunate parents of one Jeeta Bag. On 15.07.2003, while their son was organizing a video show in their Village-Motoganda along with co-villagers Dusmanta Hati & Lochan Bakul by taking electric connection from the house of a private person, namely, Santosh Bisi for the entertainment of the villagers, a high tension electric wire was snapped and fell over the deceased Jeeta Bag and two others who were standing near the electric pole, as a result of which, Jeeta Bag and two others died on the spot. Thereafter, they filed a suit claiming compensation of Rs.2,00,000/- from the defendant. It is stated further stated that Jeeta Bag was aged about 19 years and was earning Rs.2,000/per month.

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Pursuant to issuance of summons, the defendant entered appearance and filed a written statement denying the allegations made in the plaint. The case of the defendant is that the death of deceased Jeeta Bag was not due to electrocution. The main electric line as well as the L.T. line passed over the area of village Motoganda and was at sufficient height from the ground level based on well supported and fixed strongly erected poles. There was no question of snapping of H.T. or L.T. live electric line on the deceased and two others. It was further stated that the Jeeta Bag and his associates died when they were taking line for video show by

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hooking process through extension G.I. wire. The G.I. wire got charged and fell over the deceased and two others.

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On the inter se pleadings of the parties, the learned trial court struck four issues. The same are as follows:-

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“(i) Have the Plaintiffs any cause of action to file this suit ?

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(ii) Is the suit maintainable in the present form ?”

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(iii) If the deceased Jeeta Bag died on 15.07.2003 by electrocution due to negligence and fault of defendant or due to his own fault?

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(iv) To what relief, if any the Plaintiffs are entitled to ?”

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To substantiate the case, the plaintiffs examined two witnesses and on their behalf three documents had been exhibited. The defendant examined one witness and on his behalf no document had been exhibited. The learned trial court came to hold that Jeeta Bag died due to electrocution while taking electric current from the main electric line and answered issue no.3 against the plaintiffs. The suit was dismissed. Assailing the judgment and decree of the learned trial court, the plaintiffs filed R.F.A. No. 10 of 2011 before the learned District Judge, Kalahandi, Bhawanipatna, which was allowed.

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Heard Ms. Suman Pattnayak, learned counsel for the appellant and Mr. D. Mund, learned counsel for the respondents.

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Ms. Pattnayak, learned counsel for the appellant, argues with vehemence that while Jeeta Bag stealing electricity from the main line came in contact with the live electric wire and succumbed to the injuries.

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But then, the learned appellate court applied the principle of doctrine of res ipsa loquitur and allowed the appeal. She submits that there is no evidence on record that the live electric wire was snapped and fell on the deceased. She further submits that the F.I.R. was lodged by one Bhagaban Hati, a ward member of Matonganda village and the same was exhibited as Ext.1. Ext.1 shows that Jeeta Bag came in contact with the live wire while taking electric line from the main electric pole. There was no latches on the part of the defendant in maintaining electric wire. Thus the defendant is not liable to pay any compensation.

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Per contra, Mr. Mund, learned counsel for the respondents, submits 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.

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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 Law Reports (3) HL 330 , Justice Blackburn had observed thus:

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“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.”

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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).

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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, AIR 1990 SC 1480 and a Division Bench in Gujarat State Road Transport Corpn. V. Ramanbhai Prabhatbhai, AIR 1987 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., AIR 2001 SC 485 .

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In M.P. Electricity Board v. Shail Kumar and others, AIR 2002 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. 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 6 the line got

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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:

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“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)

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The principle of res ipsa loquitur has been 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

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negligence. The classic statement of the circumstances in which he is able to do so is by Erle, C.J.:

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‘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.’

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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 7 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.”

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On the anvil of the decisions cited supra, the case of the appellant may be examined. The learned trial court came to hold that there is no dispute about the electrocution death of the son of the plaintiffs, namely Jeeta Bag. But the dispute between the parties is as to whether the defendant is liable to pay damages to the plaintiffs in an action for breach of Civil Law. Much reliance has been placed by the learned counsel for the appellant on Ext.1, certified copy of the F.I.R. Learned appellate court held that F.I.R. is not a substantive piece of evidence. The defendant has not taken steps to examine the author. The same has not duly proved. The contents of F.I.R. cannot override the testimony of witnesses tendered

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on oath. Bimalendu Prasad Padhi, Executive Engineer, WESCO was examined as D.W.1. The learned appellate court held that D.W.1 in his cross examination admitted that no criminal case has been initiated by the department for theft of electricity by hooking process. He also admitted that there is less possibility of theft of electricity by hooking process, whereas the main electric line comprises of insulated L.T. cable and the main electric wire at the spot of incident was a bare conductor. It further held that it cannot be disputed that the defendant being engaged in supply of electric energy in the area is duty bound to provide safe energy to the people through insulated electric wire by taking it at sufficient height through electric poles being strongly erected to avoid untoward incident. Since the plaintiffs have successfully established that Jeeta Bag died due to electrocution and it was corroborated by the Post Mortem report, it cannot be said that the defendant was not negligent in maintaining the electric supply in the area, when it was admitted by D.W.1 that the electric line at the spot was a bare conductor. It further held that the claim of the plaintiffs was that their son and two others were organizing video show by taking electric connection from the house of one Santosh Bisi and while the show was going on, the overhead electric line following a storm and rain was sparking and fell down on the deceased after being snapped. Though P.W.1 and P.W.2 were subjected to cross-examination, nothing was elicited from their mouth. 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,

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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 defendant cannot shirk its responsibility on trivial grounds. For the lackadaisical attitude exhibited by the defendant, a valuable life was lost.

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In the result, the second appeal is dismissed as the same does not involve any substantial question of law.

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……………………….. DR. A.K.RATH, J.

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Orissa High Court, Cuttack. The 3^rd November, 2016/ Puspanjali

Exe.Engnr.,East Electrical Divn.Wesco. v. Sesha Bag

Case brief

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Exe.Engnr.,East Electrical Divn.Wesco. v. Sesha Bag

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