Partly allowed

Parameswar Sahu v. Rupeswari Sahu

Orissa HC22 Apr 2021RFA/60/2006

Case brief

AI extract

What is this about?

The Orissa High Court disposed of two appeals challenging a lower court's decree. The court applied the doctrine of strict liability regarding electrocution caused by live electric wires. It held that electricity supplying authorities are liable for such deaths regardless of negligence or unauthorized connections by consumers. The liability for compensation was shifted solely to the supply compani

What did the court decide?

The judgment against Defendant Nos. 3 and 4 was set aside. Defendant Nos. 1 and 2 are held liable to pay the assessed compensation with interest.

Parameswar Sahu Vs Rupeswari Sahu — Property and Title | Orissa HC (2021)

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IN THE HIGH COURT OF ORISSA, CUTTACK

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R.F.A. No.60 of 2006 I.

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R.F.A. No.124 of 2006 II.

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In the matter of an appeal under section 96 of the Code of Civil Procedure assailing the judgment and decree dated 11.11.2005 and 25.11.20005 respectively passed by the learned Additional District Judge, (FTC), Bolangir in Money Suit No.2/21 of 2002-03.

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R.F.A. No.60 of 2006

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Parameswar Sahu. & Another :::: Appellants.

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-:: VERSUS ::-

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Rupeswari Sahu & Others :::: Respondents.

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Advocate(s) who appeared in this case by Video Conferencing Mode

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------------------------- For Appellants	--------------- ::::	------------------------------------------------- M/s. G. Mukherji, P.Mukherji, A.C. Panda, S.D.Ray, S. Sahu and S. Priyadarsani (Advocates for Appellant No.1)
For Respondents	::::	M/s. Trilochan Nanda
		B.K. Panda (Advocates
		for Respondetns.1 to 4)
		M/s. Rajeet Ray, S.K. Singh, N. Hota, A. Pradhan & S. Sourav
		(Advocates for Respondents 6 & 7).

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R.F.A. No.124 of 2006

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The WESCO Ltd. & Another :::: Appellants. -:: VERSUS ::Rupeswari Sahu & Others :::: Respondents.

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Advocate(s) who appeared in this case by Video Conferencing Mode:----------------------------------------------------------------------------------------For Appellants :::: M/s. Rajeet Ray, S.K.Singh, N. Hota,

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(( 2 ))

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A. Pradhan & S. Saurav (Advocates for Appellant No.1). For Respondents :::: M/s. Trilochan Nanda & B.K. Panda (Advocates for Respondetns.1 to 4) M/s. G. Mukherji, P.Mukherji, A.C. Panda, N. Barai & S. Patra (Advocates for Respondent Nos. 6 & 7)

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P R E S E N T:

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THE HONOURABLE SHRI JUSTICE D.DASH

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--------------------------------------------------------------------------------------------------- Date of Hearing: 16.04.2021 Date of Judgment : 22.04.2021

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D. Dash, J. Since both these Appeals as at Item No.I and II arise out of the judgment and decree passed by the learned Additional District Judge (F.T.C.), Bolangir in Money Suit No.2/21 of 2002-03, those had been heard together for their disposal by this common judgment to be followed by the decree.

¶21

The Appellants in the Appeal under Item No.I are the Defendant Nos.3 and 4 in the suit whereas Respondent Nos.1 to 5 are the Plaintiffs and Respondent Nos.6 and 7 had been arraigned as Defendant Nos.1 and 2 before the Trial Court.

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The Appellants in the Appeal Under Item No.II are the Defendant Nos.1 and 2 whereas the Respondents No.1 to 5 are the Plaintiffs and Respondent Nos.6 and 7 had been arraigned as the Defendant Nos.3 and 4 in the suit. The parties hereinafter for the sake of convenience and avoid confusion in brining clarity have been referred to as per their placement in the suit before the Trial Court.

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(( 3 ))

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Plaintiffs have filed the suit claiming compensation of Rs.5,75,000/- from the Defendants for the death of Balgopal Sahu by electrocution alleging that it was on account of negligence on the part of the Defendants in maintaining the electric connections and supply of electricity in the area where the unfortunate incident took place.

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Plaintiff No.1 is the wife and Plaintiff Nos.2 to 4 are the daughters and son whereas Plaintiff No.5 is the mother of deceased Balgopal.

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Plaintiff’s case is that on 05.06.2001 around 11 A.M. Balgoapl saw one she calf near the bari of Defendant Nos.2 and 4 in a gasping condition struggling for life. So to save that she-calf, when he pulled it, he came in contact with live snapped electric wire. The brother of the deceased being present there, immediately disconnected the supply of electricity by cutting the line from the pole. Having sustained severe burn injuries in the said incident, the deceased was taken to hospital where he was declared dead. A criminal case had been initiated at the Police Station within whose jurisdiction the place of incident is situated. It is stated that the Defendant Nos.3 and 4 had taken unauthorized electric connection to their lift irrigation point and that was in connivance with the local lineman working under the Defendant No.1 , i.e., The Western Electricity Supply Company in charge of that area for maintenance of the electric lines and other connections and supply of electricity. It is alleged that no such care was taken by those Defendants in properly repairing and marinating the electrical connection for supply of electricity so as to prevent any such untoward incident. So, they stated that the incident had taken place on account of negligence on the part of the Defendants, who are liable to compensate the Plaintiffs for the said death.

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(( 4 ))

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As per the case of the Plaintiffs, the deceased was a cultivator and also running an utensil shop at Loisingha Bus Stand and his monthly income was around Rs.6,000/- It is their case that at the time of the death, he was aged about 40 years. He died leaving these Plaintiffs as his legal heirs, who are all his dependants.

¶29

The Defendant Nos.1 to 2 in their written statement denied the factum of death of Balgopal by coming in contact with snapped live electric wire. It is their case that Defendant Nos.3 and 4 had taken unauthorized electric connection to their Lift Irrigation Point in connivance with the local Lineman working under them and, therefore, the burden as to payment of compensation to the Plaintiffs, if any, is upon those Defendant Nos.3 and 4. They have also challenged the age and income of the deceased as pleaded in the plaint.

¶30

Defendant Nos.3 and 4 while traversing the plaint averments have stated that Balgopal had not died by coming into contact with the snapped live electric wire. They claimed to have never taken any unauthorized electric connection by drawing line to their Lift Irrigation Point. Thus, it is said that they had absolutely no involvement in the said incident.

¶31

On the above rival pleadings, the Trial Court has framed in total five issues. Answering Issue Nos.2 and 3, which are crucial as to the cause of death of Balgopal and the negligence of the Defendants in the matter of resulting the death of Balgopal as alleged, on detail analysis of evidence on record in the backdrop of the pleadings, the Trial Court has recorded the answers on those two issues in favour of the Plaintiffs and against the Defendants.

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(( 5 ))

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Next taking up the exercise as to determination of quantum of compensation payable for the death of Balgopal, holding the age of the deceased to be 40 years and on assessment of evidence having found the income of the deceased to be Rs.1500/- per month by deducing 1/3^rd thereform towards the personal expenses of the deceased, it has assessed the compensation payable at Rs.1,75,000/-.

¶34

The Trial Court has then held that the Defendant Nos.1 and 2 jointly on one hand and the Defendant Nos.3 and 4on the other are to share equally in paying the compensation. With that, in the ordering portion however all the Defendants have been directed as jointly liable to pay the compensation of Rs.1,75,000/- with interest @ 6% from the date of institution of the Suit till realization.

¶35

The above being the result of the Suit, the Defendant Nos.3 and 4 have filed the Appeal under Item No.I before this Court in questioning the saddling of the liability as to payment of compensation being fixed on them to the extent of fifty percent i.e. Rs.87,500/-. Similarly, the Defendant Nos.1 and 2 have filed the Appeal under Item No.II in assailing the judgment and decree passed by the Trial Court in holding their negligence in the incident as also their liability to pay the compensation to that extent of fifty percent i.e. Rs.87,500/-.

¶36

I have heard Mr.Gautam Mukherji, learned Senior Counsel for the Defendant Nos. 3 and 4. Mr. Trilochan Nanda, learned Counsel for the Plaintiffs advanced his submission.

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Mr. S. Saurav, on behalf of Mr. Rajeet Ray, learned Counsel for the Defendant Nos. 1 and 2 was heard at great length.

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Mr. Mukherji, learned Senior Counsel for the Defendant Nos.3 and 4 during hearing has confined his submission as to the liability

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(( 6 ))

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of the Defendant Nos.3 and 4 in the matter of payment of compensation. In support of the said contention, he has invited the attention of this Court to Paragraph-4 of the written statement filed by the Defendant Nos.1 an 2 as also the evidence of D.W. 1, who is the Junior Engineer, Electrical, Loisingha, in charge for the area during the relevant period. Placing critical analysis of said evidence in the touchstone of the pleadings, he contended that there can be no finding that Defendant Nos.3 and 4 had taken the electric connection to their Lift Irrigation Point (LI point) unauthorizedly and, therefore, they being bona fide consumers under Defendant Nos.1 and 2 and had been paying the electricity charges; they had nothing to do with the maintenance of the electric wires and other accessories as to the supply of the electricity to their LI Point which is solely within the domain of Defendant Nos.1 and 2. He thus submitted that the Defendant Nos.3 and 4 ought not to have been saddled with any such liability as to payment of compensation to the Plaintiffs on account of death of Balgopal. He submitted that although the Trial Court was cognizant of all these evidence on record has ultimately fallen in error by holding that these Defendant Nos.3 and 4 are liable to pay half of the determined compensation and the reason so assigned on the score is unacceptable being based on mere conjunctures and surmises. He submitted that here is a case where the Trial Court ought to have exonerated the Defendant Nos.3 and 4 in the matter of payment of compensation.

¶41

Mr. S. Saurav, learned counsel on behalf of Defendant Nos. 1 and 2 contended that the evidence on record being wholly insufficient for arriving at a conclusion as to the negligence on the part of the employees of the Defendant Nos.1 and 2 in maintaining the electric lines and supply of electricity and as no nexus between that and the death of

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(( 7 ))

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the deceased has been established, further when the incident has taken place near the LI Point of Defendant Nos.3 and 4, the Trial Court committed grave error in saddling the liability of compensation to the extent as indicated upon these Defendant Nos.1 and 2 and the liability in the matter if any ought to have been saddled entirety upon the shoulder of the Defendant Nos. 3 and 4. He also submitted that the determination of the quantum of compensation is not based on proper appreciation of evidence on record.

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Mr. Trilochan Nanda, learned counsel for the Plaintiffs submitted all in favour of the findings recorded by the Trial Court in holding the Defendants liable to pay the compensation on account of death of Balgopal for their negligence which has resulted the death of Balgoapl. He also submitted that the determination of compensation is just and proper.

¶45

In order to address the above submissions, I have carefully perused the judgment of Trial Court and have read the evidence of four P.Ws. (P.W.1 to 4) examined on behalf of Plaintiffs, one D.W. (D.W.1) examined from the side of Defendant Nos.1 and 2 as well as the two D.Ws. examined on behalf of the Defendant Nos.3 and 4. The documents admitted in evidence and marked Exts.1 to 6 from the side of the Plaintiffs and Exts.A to C on behalf of the Defendants have been also glanced at.

¶46

The death of Balgopal on account of electrocution is found to have been amply proved not only through oral evidence but also through the documents such as Post Mortem Report, the F.I.R. and the charge-sheet of G.R. Case No.71 of 2001 marked Exts.1 to 3. D.W.1 the Junior Engineer, Electrical, Loisingha at the relevant point of time was in

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(( 8 ))

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charge of the area where the incident took place. He has clearly stated that the Defendant Nos.3 and 4 have not taken electric line to their Lift Irrigation Point unauthorisedly and he never received any report/complain to that effect either from their staff in charge of taking care as to the maintenance of the electrical lines and other accessories in the matter of supply of electricity to the consumers in that area and thus was not in know of things about such unauthorized connection. He has assertively stated on oath to have not known if Defendant Nos.3 and 4 were running their Lift Irrigation Point through any unauthorised line being taken for the purpose in connivance with the Lineman. Therefore, the Trial Court is right in holding that the evidence of D.W.1 shows that the Defendant Nos.3 and 4 are bona fide consumers under Defendant No.1. The electric bills marked Exts.A and B indicate the demand of outstanding dues of electricity charges for payment by Defendant Nos.3 and 4 and Ext. A/1 is the receipt dated 08.06.2021 which shows payment of part electricity dues and its receipt which the Defendant No.2 has proved oath in the Trial. As per the evidence of D.W.2 the electrical connection had been taken in the year 1988 to that Lift Irrigation Point. In view of such evidence on record, the Defendant Nos.3 and 4 cannot be said to have been unauthorizedly using the electricity for running their Lift Irrigation Point. The non-payment of electricity charges as per the demand of Defendant Nos.1 and 2 cannot place the Defendant Nos.3 and 4 as to have taken the electric connection unauthorisedly. With such evidence on record for the reason that for a long time the electricity dues has not been paid with the evidence of D.W.1 that he has not received the report relating to the unauthorized user of electricity by Defendant Nos.3 and 4 for running the Lift Irrigation Point the view establish a case that the Defendant Nos.3 and 4 are unauthorized consumer cannot be sustained.

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(( 9 ))

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Even accepting the evidence that the deceased seeing the she-calf struggling for life had pulled it to save it from death; the same being the natural instinct of every human sensitive at that moment and being, under the circumstances, can neither be taken to be an adventurous or negligent act on the part of the deceased. Thus, the evidence on record show that the deceased died due to electrocution and the electric line was the line which was connecting from the pole to the Lift Irrigation point of Defendant Nos.3 and 4, the maintenance of the said live electric wire and the supply of the electricity was within the domain of the employees of Defendant Nos.1 and 2 who were deployed in the area for the purpose. It being not born out from the evidence that it is the deceased who was responsible in bringing down the overhead electric wire which came in contact with the she-calf which was struggling for life, he cannot be attributed with any negligence in the matter to say that he had contributed to that incident.

¶51

With the above discussion of evidence, the settled principles of law holding the field now need to be touched upon.

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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 of carelessness on that 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”.

¶53

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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(( 10 ))

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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 unforceable act of a stranger, the rule does not apply” (Winfield on Tort, 15^th Edn Page 535)

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The rule of strict liability has been approved and followed in many subsequent decisions in England and decisiosn 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 Gujurat State Road Transport Corporation V. Ramanbhai Prabhatbhaim, 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.

¶57

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 23.08.1997 riding on a bicycle. There was rain and hence the road was partially inundated with water. The cycle did not notice the live were on the road and hence he rode the vehicle over the wire which twitched and snatched him and he was instantaneously electrocuted. He fall 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:

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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

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(( 11 ))

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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 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 mangers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live were 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)

¶61

The principle 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 others 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 Erie, C.J.

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There must be reasonable evidence of negligence.

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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 to 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. The Court hears only the plaintiffs 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

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(( 12 ))

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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.”

¶66

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.”

¶67

The discussion of evidence in the forgoing paragraph 10 being tested in the touchstone of the above principles of law holding the field, this Court finds no hesitation in holding the Defendant Nos.1 and 2 as liable to pay the compensation to the Plaintiffs for the death of Balgopal. The Trial Court’s finding as well as the answer and order to the said extent as to the saddling of liability in the matter of payment of compensation upon Defendant Nos.3 and 4 thus cannot be sustained and is liable to be set aside which is hereby done.

¶68

The evidence on record being examined, it is seen that the Trial Court having made elaborate discussion of evidence has arrived at the finding as regards the monthly income and the age of the deceased at the time of death. No such material is found to be surfacing to conclude that those conclusions are the outcome of improper appreciation of evidence. Those conclusions are accordingly held to be well in order. The determination of compensation payable to the Plaintiffs on account of death of Balgopal is also found to be based on proper evaluation of the facts and circumstances emanating from the evidence on record and thus free from any such infirmity warranting redetermination in this Appeal.

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(( 13 ))

¶70

In the wake of aforesaid, the judgment and decree passed by the Trial Court stand modified only to the extent that the Defendant Nos. 1 and 2 are liable to pay the compensation as has been determined with the stipulation as to the interest to the Plaintiffs.

¶71

The First Appeals under Item Nos.I and II are accordingly disposed of. However, there shall be no order as to costs.

¶72

As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court’s website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed, vide Court’s Notice No.4587, dated 25^th March, 2020 as modified by Court’s Notice No.4798 dated 15^th April, 2021.

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...................... D. Dash, J.

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Orissa High Court: Cuttack

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Dated the 22^nd day of April 2021/Himansu

Parameswar Sahu v. Rupeswari Sahu

Case brief

What is this about?

What did the court decide?

Parameswar Sahu v. Rupeswari Sahu

Case brief

What is this about?

What did the court decide?

What the court decided

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