C.B. Bhargava, J.
1. This is an appeal against the judgment and decree dated 30th October, 1964, of the Senior Civil Judge No. 2, Jaipur City.
2. Smt. Krishna Kumari the plaintiff in the suit is the wife of Zabar Singh, an Upper Division Clerk of the Accountant General's office, Rajasthan who was allotted quarter No. G.88 in Bajajnagar, Jaipur, for his residence in August, 1960. This quarter belonged to the Union of India and was constructed and completed by the Ministry of Works, Housing and Supply, of the Union of India. Plaintiff was living in this quarter with her husband. The work of electricity fittings in the main line was done by the Electricity Board, Rajasthan whereas the internal fittings in the quarters were done by the employees of the Union of India. There was a loose earth wire, the one end of which was placed in the switch board in the Quarter and the other one was left lying on the ground outside the quarter on the public street. Plaintiff's case is that on 30th January, 1961, while she came out of the quarter to collect some sand in a plate, her palm of the left hand came into contact with the earth wire lying on the public street outside the quarter. The wire clung to her palm and she received a severe electric shock, became unconscious and was unable to speak. On seeing her in that condition, some people collected there and at first their attempt to detach the wire from the palm with the help of a piece of cloth failed but later on it was detached with the help of a bamboo stick. As result of the shock it is alleged her legs and hand had twisted and even after the medical treatment for 15 days she kept on feeling pain in the hand and legs and there was swelling on them, and blisters on the left hand. It is further alleged that on account of this shock she gets recurring pain in her fingers and palm of the left hand and also recurring pain in the body specially on the left side during cold weather and due to cold breeze she gets pain and swelling in the left hand, she cannot lift even a slight weight, she is unable to do any hard work with her left hand, often gets swelling with ' pain on the left part of the body particularly in the palm and hand and her memory and power of concentration have been impaired, and inspite of medical treatment for a long time she has not fully recovered. Her inability to attend to the household work is a constant source of mental pain and suffering in addition to the physical pain and suffering. It is alleged that the Union of India is vicariously liable for the negligence of its employees who did not connect the earth wire with the electrode and left it lying loose on the public street. She has, therefore, claimed Rs. 1000/- as special damages for the expenses which she had to incur in taking rich diet as part of the medical treatment and her salary to a servant for six months when she was unable to look after the household work. She has further claimed Rs. 2000/- as damages due to mental suffering and pain suffered at the time of shock and thereafter, Rs. 4000/- for the disabilities that she had suffered and which in the present state of health appeared to be permanent, Rs. 3100/- for the shortened expectancy of life on account of that suffering. Although the suit was instituted besides the Union of India against Shri R.S. Jain, Executive Engineer, Central Divisional, Ajmer and Shri Rosbanlal, Assistant Engineer, Jaipur, but the Sub-Divisional, C.P.W.D. Jaipur, lower court dismissed the suit against the other defendants and passed a decree against the Union of India only.
3. The Union of India contested suit and denied that quarter No. G.88 was allotted to the husband of the plaintiff. It also denied that the earth wire was kept loose and not connected with the earth electrode and it was denied that there was any negligence on the part of the Union of India or its employees. Plaintiff's claim for damages was also denied. It was further stated that it was the State Electricity Board which with its own material, labour and equipment supplied electricity to all the quarters constructed by the defendant and, therefore, if there is any negligence, it is on the part of the State Electricity Board.
4. On these pleadings, the following amongst others issues were framed:
3. Whether the plaintiff while doing the household work got the electric shock from the loose earthwire near the entrance of the said quarter?
4. Whether the defendants were grossly negligent in keeping the earthwire loose and not connecting it with the electrode?
5. Whether the plaintiff as a result of the electric shock had become unconscious, the colour of her body changed the body was swollen and she suffered all or any of the complaints and troubles mentioned in plaint paras 5 and 6?
6. Whether the plaintiff suffered damages mentioned in plaint para 10 and is entitled to claim the same or any portion thereof from all the defendants or any of them?
In support of these issues, plaintiff examined herself and produced Smt. Susahma, P.W. 2, Zabarsingh, her husband P.W. 3, Dr. D.L. Kanwar P.W. 4 who had examined her immediately after the incident, B.N. Bhargava P.W. 5 and N.K' Gupta P.W. 6 who had dis-enganged the plaintiff from the electric wire, Shri Kailashlal P.W. 7 and Dr. J P. Sethi P.W 8. In rebuttal, the defendant produced Mohansingh D W. 1, Kewal Krishna D.W. 2, Roshanlal D.W. 3 and Jagdish Mittal D.W. 4. Besides the above oral evidence, some documentary evidence was also produced on behalf of the plaintiff.
5. The learned Senior Civil Judge on a consideration of the evidence on record came to the finding: (1) that the earthwire were not properly fixed to the earth and it had got energised and caused shock to the plaintiff; (2) that there was gross negligence on the part of the defendant which resulted in getting the loose earthwire energised which caused the shock to the plaintiff. (3) The Union of India was vicariously liable to pay damages to the plaintiff because of the gross negligence of its servants. In regard to payment of damages because she was unable to produce accounts for the monies spent for providing rich diet and for engaging a servant. However, the plaintiff's claim for general damages to the extent of Rs. 7500/- was allowed because in the opinion of the court the plaintiff did suffer physical and mental pain at the time she got the electric shock and thereafter because of disabilities which had been more or less continuous. The court held that due to these disabilities the plaintiff had been deprived of normal enjoyment of sound health and consequently a normal life, and in such circumstances she cannot be expected to have full-span of life which she otherwise could have expected to enjoy. As a result of these findings, the suit was decreed against the Union of India for Rs. 7500/- with costs.
6. In this appeal, the learned Additional Advocate General appearing on behalf of the Union of India has challenged the findings of the court below and it is contended that there was no negligence on the part of the employees of the Union of India even if it could be held that one end of the earthwire was kept in the switch board and the other one was kept lying loose on the ground on the public path because the earthwire which was not connected with any live wire was not likely to be dangerous to human life. It is also contended that the plaintiff did not receive any electric shock and symptoms appearing in her evidence could not be the result of an electric shock. The amount of damages awarded to the plaintiff is fantastic and it is argued that even if the plaintiff suffered any disability, it was of a temporary nature and in the circumstances the damages awarded are excessive.
7. The first question therefore which requires determination is whether the plaintiff received electric shock on 30th January, 1961 while she was trying to pick some sand from outside her quarter. In this connection the relevant statements are of the plaintiff herself and the two neighbours Smt. Sushma P.W. 2 and N.K. Gupta. P.W. 6.
8. The plaintiffs statement are quite clear on the point and she has explained the circumstances in which she happened to touch the earthwire which was lying on the ground outside the quarter. She has stated that as soon as she tried to pick up the sand in the plate, it fell down from her hand and the earthwire got clung to her palm. She tried to disergage herself from the wire but could not do so and fell down. Then she cried on which some ladies collected there but thereafter she was not able to speak. Then some wireman came there and they also tried to remove the wire from her hand with the help of a piece of cloth but failed. She stated that her tongue was affected and her hands and legs had twisted. P.W. 2 who Was living in a quarter just opposite to quarter No. 688 has fully corroborated the plaintiff's statement. She stated that she saw the plaintiff coming down from her quarter carrying a plate in her hand. As soon as she (the witness) came out of her quarter, she heard the cries of the plaintiff and saw her lying on the ground with the electric wire in her hand. She was a little unconscious at that time. On seeing her condition, she started crying on which some people collected there At that time a wireman also came there and he tried to disengage her from the wire but he was also repelled with the shock At that time her nephew Narendra Kumar on hearing the cries came there and with help of a bamboo, he succeeded in dis-engaging her from the wire. The plaintiff was still unconscious and the colour of her skin had slightly turned blue. Thereafter she was taken inside the quarter and a doctor was called who gave her an injection.
9. NK. Gupta P.W. 6 has also corroborated the plaintiff's statement. He stated that while he was preparing to go to the office, he heard the cries of a woman and reached the place of incident where he saw the plaintiff lying unconscious with the electric wire in her palm. He stated that he and one more person with the help of a bamboo removed that wire from her palm and earthed it at some distance with the help of a bamboo He stated that the plaintiff was unconscious at that time and her face had turned blue. The doctor was sent for from Gandhinagar dispensary who immediately coma there. The plaintiff was taken inside the quarter, made to lie on a bed and the doctor gave her a dose of medicine and an injection. He then left the place and when he returned from his office again to see the plaintiff he found that she had not recovered full consciousness.
10. Besides the direct evidence of the above witnesses, there is the evidence of the plaintiff's husband Zabar Singh P.W. 3 He has stated that he received a phone in his office of his wife having received an electric shock. Thereupon he came to his quarter and found the plaintiff in an unconscious state. The colour of skin had slightly turned blue and she was feeling much pain. There was swelling on the left hand He has stated that the doctor had been called before he reached his quater.
11. Dr D.L. Kanwar who had examined the plaintiff immediately after the incident has stated that when he saw the plaintiff on 30th January, 1961, she was in a shocked condition, was unable to speak, her pulse could not be felt and she was unconscious. An injection was given to her and after 15 to 20 minutes she regained consciousness but complained of pain in her hand. He stated that although he did not remember as to what was the condition of the body at that time but when she came to him afterwards, he saw that there was swelling on her hand at the place where she had received the shock. She was very much emotional and used to weep while talking. He stated that the condition in which he had seen the plaintiff could be due to the result of an electric shock. He has stated that he had not seen any burns on the plaintiff's body nor did he see any swelling on her body at that time. He has stated that the plaintiff had suffered from electric shock but he could not say about its intensity. He had treated the plaintiff upto 8th February, 1961 and she was generally well excepting her complaint about pain.
12. The fact that the plaintiff had received electric shock with the earthwire also finds support from the defendant's evidence in as much D.W. 1 D.W. 2 and D.W. 4 have also stated that they reached the place of the incident on receiving the report about the electric shock. The plaintiff's husband had made representations to the Accountant General who seems to have written to the Superintending Engineer, Third Circle, who investigated the matter and his finding was conveyed to the plaintiff vide Ex. 21. It is stated in Ex. 21 that 'There was a thunder and storm about two days previously and due to dampness a possible slight leakage gathered on the auxiliary earth and unfortunately your wife happened to touch the wires and might have got a slight shock.' Thus the fact that the plaintiff received an electric shock from the earth-wire which was lying outside her quarter and had not been properly grounded cannot be seriously disputed. The lower court has rightly come to the conclusion that the plaintiff received an electric shock on 30th January, 1961, from the earth wire.
13. As a consequence of the above finding, it follows that there was current in the earthwire which caused the shock to the plaintiff. It was vehemently contended in this Court that the earthwire could not have been energised because its one end was simply lying loose inside the switch and was not connected with any wire carrying electric current. However, the existence of current in the earthwire can only be explained on the hypothesis that its end had come into contact with the conductor wire carrying electric current.
14. Shri Tarachand Dube, Superintending Engineer who was examined in this Court has admitted that the earthwire whose one end is kept in the switch board can only get energised if that end comes into contact with the conductor wire carrying electric current. He has also stated that if the second earthwire which is to be provided by the consumer is properly earthed and its other end comes into contact with the conductor wire carrying current, then the fuse should blow off, but if the other wire is not properly earthed, either directly or through connection to the earth wire of the electric supply concerned, the fuse may not blow off. Here it is not in dispute that the earth wire was not properly earthed, and, therefore, the fuse did not blow off when it came into contact with the wire carrying current. The question is whether it was due to the negligence of the employees of the defendant that the plaintiff received the electric shock.
15. Mere negligence in itself does not give rise to a cause of action, To give a cause of action, there must be negligence which amounts to breach of duty towards the person claiming it. It is established that a public authority whether doing an act which it is its duty to do or doing an act which it is empowered to do must in doing the act do it without negligence, or must not do it carelessly or improperly. Here the ungrounded earthwire was lying on the public thoroughfare. The inmates of the adjoining houses are as much exposed to the danger as any other person passing along the thoroughfare. It was the duty of the defendant to take care to avoid doing anything likely to injure persons on the thoroughfare. In Holliday v. National Telephone Co. (1899) 2 Q.B. 392 where a telephone company were laying telephone wires in the street and employed a contractor to help them, it was held that they were liable when a Ian p, used by one of the contactor's servants, exploded owing to the safety valve being out of order. Lord Halsbury said:
The telephone company, by whose authority alone these works were done, were whether the works were done by the company's servants or by a contractor under an obligation to the public to take care that persons passing along the highway were not injured by the negligent performance of the work.
It is in evidence that even children used to play with this wire. Even the plaintiff had touched it on several occasions prior to 30th January, 1961. So no one had noticed the fact that it was dangerous to touch the wire. At the same time, the possibility of its getting energised because its other end had been lying within the switch board could not be ruled out. The defendant and its employees ought to have taken care that either it was properly earthed or that it did not get energised. The work should not have been left incomplete and even D.W. 1 Mohansingh has stated that he had brought it to the notice of Mr. Kapoor that the wire should be properly earthed and the work be completed but still it was not dene. I have, therefore no doubt that there was negligence on the part of the employees of the defendant in not taking care to properly ground the earth wire en the public thoroughfare, and to have kept the other end of the wire loose inside the switch board.
16. Learned Additional Advocate General relied upon a bench decision of this Court in Mst. Pushpaben and Ors. v. The Banswara Electric Supply Co. Banswara and Ors. D.B. Civil First Appeal No. 43 of 1963 decided on 9th February, 1971 to show that negligence cannot be attributed to the defendant. However that case is distinguishable. In that case the learned Judges found that the person constructing a building near the electric lines had deliberately disobeyed Sub-rule (3) of Rule 82 and the defendant company could not be imputed reasonable duty to change the lines before the incident. Since the court found that there was no reasonable duty of the defendant, the question of the breach of duty did not arise in that case. The court further found that the deceased must be aware of danger in coming into touch with the electric line and he having volunteered to touch the line and invited danger, must be treated as having volunteered and the defendants company cannot be held liable.
17. In the present case there was a clear breach of duty towards the public and the inhabitants of that locality and neither the plaintiff nor any one else could have prior notice that the wire was dangerous. I, therefore, agree with the finding of the lower court that it was due to the negligence of the defendant's employees that the plaintiff received the electric shock.
18. The next question is about the quantum of damages. As already stated the lower court had only allowed general damages to the plaintiff for pain and suffering, deprivation of normal sound health and loss of expectation of life. Charlesworth on Negligence 1962 edition at paragraph 1237 has said thus:
It is impossible to frame any formula by which damages for pain and suffering loss of the amenities of life injury to health and loss of life can be measured. Some injuries are so severe that no money can be an adequate compensation, yet money must be awarded because it is the only remedy which it is in the power of the law to give. The only general principles which can be applied are that the damages must be fair A and reasonable that a just proportion must be observed between the damages awarded for the less serious injunes and those awarded for the more serious injuries, and that although it is impossible to standardise damages an attempt should be made to award a sum which accords 'with the general run of assessments made over the years in comparable cases'. The judge may consider awards in comparable cases if he decides in his discretion to do so, but he is under no obligation to do so and this discretion should be exercised sparingly.
19. Though the quantum of damages to which a plaintiff is entitled, depends upon the facts and circumstances of each case, the matters which should be taken into account are pain and suffering endured past, present and furture (2) inconvenience and loss of enjoyment of life sustained, past, present and future and injury to health (3) and a shortened expectation of life. In this connection learned Counsel for the appellant has drawn my attention to Ganpathi v. State of Madras : AIR1960Kant222 , Bombay S.R.T. Corporation v. Narayan AIR 1963 Mys. 161 while on behalf of the respondent, reference is made to G & N.I.T. Co. v. Dinkar Joshi AIR 1955 M.B. 214, State of Madras v. James : AIR1959Mad369 and Kota Transport Ltd. v. Jhalawar T. Service .
20. In the Madhya Bharat Case AIR 1955 M.B. 214 the plaintiff was the legal practitioner & he has sustained the fracture of his clevical & first lumber vertebra in a motor accident due to which he had to remain in bed for three months & was disabled from following his profession for six months. On account of the injuries he had suffered considerable pain, discomfort and mental anguish and the injuries had brought about general deterioration of his health and shortened expectation of life and reduce capacity for work. He was awarded Rs. 10.000/- as damages for suffering and pain and the loss of enjoyment of life, loss of prospect of income and shortened expectation of life.
21. In the Madras case AIR 1959 Mad. 369 the left leg below the knee had to be amputated because of the injuries received by the plaintiff during the accident and he was also awarded Rs. 10,000/- as damages.
22. In the Rajasthan case AIR 1960 Raj. 224 due to the accident, the plaintiffs left leg was cut and due to the rash and negligent driving of the driver, he sustained various other injuries, his leg had to be amputated and he hovered between life and death in the hospital for treatment for about a week. He had to remain in hospital for treatment for a very long period and even when discharged he underwent treatment for another long period since the wound had not healed up and he was thus crippled for life and largely incapacitated due to the deprivation of his leg. In these circumstances a sum of Rs. 10,000/- as damages was thought to be correct.
23. In the present case the plaintiff after receiving the shock became unconscious, her leg and hand got twisted and the hand had swollen. She remained under the treatment for about 10 days and till then she was complaining of pain. Her statement is that she had to remain in bed for about six months and she was unable to do her household work. She was not restored to her normal health for a long time is clear from the evidence of Dr. J.P. Sethi P.W. 8 who treated her during April and June, 1962. She continued to have pain in her hand and left side of the body. She suffered from headache and partial loss of memory and concentration. She was unable to lift weight with her left hand and during cold; and rainy season sic felt pain in her hand & body. Dr M.S. Sharma who was examined in this Court stated that the usual symotoms after the electric shock are muscle spasm, loss of consciousness, difficulty in breathing, loss of speech, perspiration and fall of blood pressure rapid pulse and cynosis (temporary). There, can swelling of the arm. The lims may also get stiff if the blood supply is damaged. He has also stated that if the electric shock is of very much less severity, there would not be anything on the area of the contact if the voltage is very low. He has also stated that looking to all the complex symptom of the plaintiff as appearing in her statement, they cannot be caused by any disease.
24. In the Medical Jurisprudence by R.M. Jhala and Raju 1969 Edition it is stated:
As a rule, external injury in the form of burn, contusion or laceration has been known to be a-regular feature at place of entry and exit of the current. Sometimes this is replaced by severe lacerations, or rough fractures. The latter consequence indicates the violent nature of the current. There are cases where no external injuries may be encountered and what is still puzzling is that even the internal examination may turn out negative and fruitless.
In the present case also no burns were noticed on the palm of the plaintiff. In the same book it is stated that as a result of the electric shock there may be unconsciousness of vaiying duration. Usually there is some amount of retro, grade amnesia (loss of memory for the events in past). Beyond a flash which only the patient remembers, the series of events are not remembered by the patient. This is accompanied by headache and diziness and noises in ears and flashes before eyes. It is also stated in same book that hysterical phenomena have been known to persist in many cases for quite a long time after the catastrophe. Occasionally permanent damage to central nervous system may follow.
25. Thus the symptoms and after-effects of the shock found in the case of the plaintiff were not unusual and have been generally noticed in such cases. However, there is no definite evidence how long the plaintiff was likely to suffer from the disability, whether it was to last for her life or was of a more or less temporary nature. It also appears to me that the shock to the plaintiff was not of much severity and that, is why no lesion or burn was found on the area of the contact. Undoubtedly there is exaggeration when it is stated that the contact of the wire remained for about 5 to 7 minutes. It seems that as soon as the wire came into contract with the palm of the plaintiff the other end of the wire lost contact with the wire carrying current inside the switch board and that is why that Mohan Singh D.W. 4 did not find any current in the wire because they had reached on the spot much later.
26. Having regard to the nature of the shock, the pain and suffering felt by the plaintiff at the time of the accident and thereafter and the impairment of the normal enjoyment of life and the loss of full expectation of life, I consider that she is entitled to Rs. 5000/- as damages from the defendant because the shock was of not much severity and there is no definite evidence that the disability was likely to continue for the whole of the plaintiff's life. The nature of the disability and discomfort to the plaintiff is not such as was found in the decision relied on behalf of the respondent.
27. The appeal is, therefore, partly allowed and the decree of the lower court is modified and it shall now be for the sum of Rs. 5000/- instead of Rs. 7500/-. The appellant shall pay costs to the respondent on the amount decreed.