Dismissed

Cesu v. Damayanti Samal

Orissa HC15 Mar 2021RSA/210/2019

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal filed by the electricity defendants challenging the enhanced compensation of Rs. 6,30,000 awarded to the family of a deceased victim of electrocution. Upon appeal, the court found the defendants strictly liable for the safety of fallen live wires and held that the lower appellate court correctly enhanced the compensation quantum.

What did the court decide?

The second appeal stands dismissed without cost; the enhanced compensation decree of Rs. 6,30,000 is affirmed.

Cesu Vs Damayanti Samal — Service and Employment | Orissa HC (2021)

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HIGH COURT OF ORISSA : CUTTACK

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RSA No.210 of 2019

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In the matter of appeals under section 100 of the Code of Civil Procedure assailing the judgment and decree dated 02.04.2019 and 04.04.2019 respectively passed by the learned Additional District Judge, Salipur in RFA No. 50 of 2015 .

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………

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Central Electricity Supply Utility of Odisha and others … Appellants.

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-VERSUS-

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Damayanti Samal and another

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… Respondents.

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Advocate(s) who appeared in this case by Hybrid Arrangement (Virtula/Physical) mode:-

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---------------------------- For appellants	-------- …	------------------------------------------------- M/s.B. Dash, P.K. Mohanty, N.C. Jena and A.K. Pandey
For respondent No.1	… …	M/s. B. Mohanty and Smt. R.N. Das (Advocates) ……

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P R E S E N T :

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THE HON’BLE MR. JUSTICE D.DASH

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-------------------------------------------------------------------------------------------- Date of Hearing : 01.03.2021 : Date of judgment:15 .03.2021

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D.Dash,J . The Appellants, by filing this appeal, under section 100 of the Code of Civil Procedure (for short, ‘the Code’) have assailed the judgment and decree passed by the learned Additional District Judge, Salipur in RFA No. 50 of 2015 filed by the present Appellants being faced with a cross appeal from the side of the Respondent no. 1. By the said judgment, the lower appellate court while deciding the appeal as well as cross appeal

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having affirmed the finding of the learned Civil Judge(Senior Division) 2^nd Court, Cuttack in CS (III) No. 27 of 2012 on the core issues such as framing of the suit and the negligence of the defendants incurring the liability to be saddled with the payment of compensation has however taken a view that the assessment of compensation as made by the trial court is on a lower side. Accordingly, the trial court having awarded compensation of Rs.5,50,300/with interest at the rate of 6.5% per annum with effect from 27.09.2021 till payment as payable by the Appellants to the Respondent; lower appellate court has enhanced the compensation to Rs. 6,30,000/- with interest at the rate of 6% per annum with effect from 03.11.2012, the date of filing of the suit till payment as just and proper.

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2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the trial court.

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3. Plaintiffs’ case is that on 27.09.2012 when her husband was going to his agricultural field, he suddenly came in contact with 11 K.V. electric wire, electrocuted and met an instantaneous death by said electrocution. The report to that effect being lodged with the Inspector-incharge, Mahanga Police Station; P.S. Case No. 146 of 2012 was registered and post mortem examination over the dead body was made. The husband of the Plaintiff No.1is said to be aged about 44 years at the time of death and it is stated that he was engaged in cultivation and sale of the agricultural products and in this way earning a sum of Rs.8,000/- per month. For the said death, the Plaintiff No. 1 and Plaintiff No. 2 being the wife and mother of the deceased respectively filed the suit claiming compensation from the

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Defendants i.e. Central Electricity Supply Utility of Orissa and its official In-charge of the supply of electricity and maintenance etc. in the area. It may be stated here that the Plaintiff No.2, the mother of the deceased having died in the meantime, she is no more in the arena of this lis. It is also pertinent to state that the deceased has also left behind two minor sons who are now in care and custody of the Plaintiff No.2. Those two minor although are not added as Plaintiffs, yet the Plaintiff No.1 has clearly pleaded the same and the compensation has also been claimed in their behalf. In view of the above, Plaintiff No.1 hereinafter is referred to as the ‘Plaintiff’

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4. The Defendants contested the suit by denying that the said death of husband of the Plaintiff No. 1 by electrocution to have taken place on account of any negligence on their part and it is stated that for the same the Defendants are in no way responsible. In this connection, it has been specifically pleaded that an electric wire being snapped when touches the ground, automatically supply of electricity gets disrupted through the entire wire and it is only in the event any one touches the over head live electric wire by some way or other, it may be fatal. It is, therefore, said that the case of the Plaintiff that her husband died by electrocution by coming in contact with live electric wire lying on the road being snapped from over head drawn electric line is totally false.

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5. The trial court on the above rival case having framed six issues appears to have rightly proceeded to take up issue nos. 1, 4 and 5 as those are the core issues. In the backdrop of the rival case of the parties and upon appreciation of evidence let in; the trial court has recorded the findings that the death of the husband of the Plaintiff has taken place on account of

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negligence of the Defendants and as such the Plaintiffs are entitled to be compensated by them.

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Having said so, taking into account the evidence as to the age of the deceased and selecting multiplier of 13, in further and holding the monthly income of the deceased at Rs.4,000/-, the Defendants had been held liable to pay compensation of Rs.5,50,300/- with interest as aforesaid.

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6. The Defendants having preferred an appeal challenging the said judgment and decree passed by the trial court; the Plaintiff also filed cross appeal. The lower appellate court after hearing and on reappreciating the evidence in the touchstone of the pleading has recorded the same finding as that rendered by the trial court on the issues as to negligence and entitlement of the Plaintiff to the compensation for the death of the deceased on 27.09.2012 by electrocution. It has however then found the trial court’s finding as regards the monthly income of the deceased to be against the weight of evidence on record and monthly income of the deceased upon appreciation of evidence having been held to be Rs.5,000/-, the lower appellate court has selected multiplier of 14 as the appropriate one for the case in hand. Accordingly, while dismissing the appeal, the lower appellate court has allowed the cross-appeal enhancing the quantum of compensation from Rs.5,50,000/- to Rs.6,30,000/- with interest as stated as above.

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7. The second appeal has been admitted on the following substantial questions of law:-

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“1. Whether the courts below have accepted some of such evidence let in by the plaintiff which had not been hinted in the pleading and thereby can be said to have rendered the finding on the count of negligence of the Defendants by travelling beyond the pleading for which finding if invites

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the stigma of being the outcome of perverse appreciation of evidence?

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Whether the determination of the quantum of compensation by the lower appellate court payable to the Plaintiff for the said death by electrocution is not in consonance with the said principles of law holding the field?”

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8. Learned counsel for the Appellants (defendants) submitted that the finding of the courts below with regard to negligence of the Defendants for not properly maintaining overhead live electric wire stretched between the poles is not only perverse but also against to the reality as established in defence. According to him, on the basis of the evidence that the overhead live electric wire being snapped when touches the ground, the supply of electricity through that wire is totally disrupted from end to end which has gone unchallenged; the courts below ought not to have said that the death of the husband of Plaintiff was due to the electrocution for the reason that the deceased came in contact with snapped overhead electric wire when he was on his way to the agricultural field. He further submitted that the finding on the above factual aspect as recorded by the courts below are beyond the pleadings and based on the evidence let in by the Plaintiffs as such, ought not to have been looked into or eschewed from consideration.

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He next submitted that the quantum of compensation awarded for the said death of the husband of the Plaintiff is not in consonance with the settled principles of law. According to him, the lower appellate court has erred on facts and law in enhancing the quantum of compensation by holding the monthly income of the deceased to be more than what had been held by the trial court as also by selecting the higher multiplier which in the facts and circumstances, is inappropriate.

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9. Mr. B. Mohanty, learned counsel for the Respondent (Plaintiff) submitted all in favour of the finding rendered by the lower appellate court. According to him, the court below did commit no mistake in recording the said findings under attack and those are based on just and proper appreciation of evidence on record. It was submitted that the assessment of compensation as made by the lower appellate court is also in consonance with the settled principles as have been holding the field.

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The Plaintiffs case is that on 27.09.2012, the deceased was going to his agricultural field for attending the cultivation work and on the way, he came in contact with a snapped live electric wire, as a consequence thereof, the deceased got electrocuted and met an instantaneous death. It is stated that the Defendants having the duty being in charge of supply of electricity in the area as also maintenance of overhead electric lines etc. are liable for the said death as in the admitted facts and circumstance, negligence on their part being presumed, has not been rebutted by clear and cogent evidence. The death of the deceased by electrocution stands proved through oral and documentary evidence mainly, the post mortem report Ext.3 and the incident as to the electrocution of the husband of the Plaintiff to have happened on the relevant date and time has also been proved through evidence, oral as well as documentary such as Ext. 1, the information to the police by the brother of the Plaintiff, Ext.2 the report of the police officer who had held inquest over the dead body and the dead body challan issued for Post Mortem examination, i.e, Ext.4.

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The Defendants claim that the case projected by the Plaintiff that the deceased was electrocuted by coming in contact with a snapped electric wire is false as in that event of snapping of the overhead electric

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wire, the supply of electricity through the same stood disconnected from end to end. Although it has been so pleaded, yet the Defendants in the case have not established through clear, cogent and acceptable evidence that at that point of time in that wire, there was no flow of electric current so as to cause any fatality to anyone unknowingly and accidentally coming in contact with it. It is also not stated that at the spot where the incident took place, the overhead electric wires were intact remaining duly stretched from pole to pole so as to show that the case projected by Plaintiff is based on falsehood.

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11. Principle of law is settled 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. The liability cast on such person is known, in law, as "strict liability".

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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 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, 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

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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’ is well known. It is explained in a very illustrative passage in Clerk & Lindsell on Torts, 16th Edn., pp. 568-569, which reads as follows:

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"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 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.

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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 of 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

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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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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 can not shirk their responsibility on trivial grounds. For the lackadaisical attitude exhibited by the opposite parties, a valuable life was lost.

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12. The evidence piloted by the parties being gone through and as already discussed when tested in the touchstone of the above principles of law holding the field; this Court is led to record the answer on the substantial question of law No.1 as at part-5 against the Defendants.

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In so far as the substantial question of law No. 2 is concerned, the finding of the lower appellate court on the factual aspects as to the monthly income of the deceased and his age appears to be well in order and no such material is shown to conclude that the some are the outcome of perverse appreciation of evidence. Rather it is seen that the mistake committed by the trial court on those factual aspects by ignoring certain evidence on record and in not taking judicial notice of certain facts has been well rectified in appeal and in that way, it is found that the lower appellate court has so exercised its jurisdiction and power within the four corners of law.

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The multiplier as selected by the lower appellate court in assessing the compensation in the facts and circumstances of the case as those emanate from the evidence on record does not appear to be inappropriate.

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13. In that view of the matter, the lower appellate court having bestowed with the power under order 41 rule 33 of the Code in my considered view has rightly enhanced the compensation in modifying the decree as passed by the trial court.

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Aforesaid discussion and reason provide the answer to the substantial question of law No. 2 in the negative.

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14. Accordingly, the appeal stands dismissed and in the peculiar facts and circumstances, without cost.

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……………………..

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D. Dash, J.

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Orissa High Court, Cuttack Dated the 15^th day of March, 2021/ Aks

Cesu v. Damayanti Samal

Case brief

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Cesu v. Damayanti Samal

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