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Smt. Bimla Poddar and ors. Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberC.S. No. 1 of 1976
Judge
Reported inAIR1985HP71
ActsCode of Civil Procedure (CPC) , 1908 - Order 1, Rules 9 and 10
AppellantSmt. Bimla Poddar and ors.
RespondentUnion of India (Uoi) and ors.
Appellant Advocate B.P. Aggarwal and; Chhabil Dass, Advs.
Respondent Advocate P.A. Sharma, Adv.
Cases Referred(Himachal Pradesh Road Transport Corpn. v. Jai Ram
Excerpt:
- orderv.p. gupta, j.1. shri narain prasad poddar(hereinafter (referred as) deceased) was working as assistant commercial manager in giovanola binny ltd. (hereinafter company) carrying on its business at cochin. he was required to visit various places and meet parties in connection with the business dealings of the company. the company in the year 1971, entered into a contract with defendant 1 for carrying out various works at the baira siul hydro-electric project (hereinafter the project) for a total sum of rs. 98,34,430/-. in connection with these works the deceased was to represent the company and have discussions and consultations with the project authorities.2. plaintiff 1 is the wife, plaintiffs 2 to 4 are minor daughters, plaintiff 5 is father andplaintiff 6 is the mother of the.....
Judgment:
ORDER

V.P. Gupta, J.

1. Shri Narain Prasad Poddar(hereinafter (referred as) deceased) was working as Assistant Commercial Manager in Giovanola Binny Ltd. (hereinafter company) carrying on its business at Cochin. He was required to visit various places and meet parties in connection with the business dealings of the company. The company in the year 1971, entered into a contract with defendant 1 for carrying out various works at the Baira Siul Hydro-Electric Project (hereinafter the project) for a total sum of Rs. 98,34,430/-. In connection with these works the deceased was to represent the company and have discussions and consultations with the project authorities.

2. Plaintiff 1 is the wife, plaintiffs 2 to 4 are minor daughters, plaintiff 5 is father andplaintiff 6 is the mother of the deceased.

3. The plaintiffs allege that the deceased arrived at Surangani on or about 4-1-1974where the office of defendant 1 is located. Defendant 1 for carrying out the project owns and maintains a field Guest House (hereinafter the guest house) at Surangani to provide lodging and boarding facilities to the various visitors who visit the project in connection with the works. The deceased after his arrival at Surangani on 4-1-1974 was allotted room No. 6 with an attached bathroom in the guest house. The bath-room was fitted with an electric geyser for supply of hot water and a separate tap for supply of cold water.

4. It is alleged that on 8-1-1974 as the geyser was out of order, therefore, hot water was supplied to the deceased in a bucket by a servant of the defendants. The deceased was. however, found lying dead in the bath-room at about 1 P.M. on 8-1-1974. It transpired that he died due to electrocution as he had also received burn injuries on his left hand dorsal surface, fingers and nails. The plaintiffs allege that the death of the deceased was through the negligence of the defendants and their servants because the geyser and the electric installation in the said bath-room had become defective, and it got into contact with the cold water tap. The cold water tap also became dangerous for user by the occupants. The plaintiffs allege that it was the gross negligence in duties on the part of the defendants who are liable for these acts of negligence. The defendants did not take proper precautions in the checking and maintenance of the geyser and other electric wiring. The plaintiffs claimed an amount of Rs. 7,10,000/- on account of damages etc. under various heads enumerated in para 17 of the plaint. It is also alleged that the deceased was an intelligent, hardworking science graduate aged about 35 years and was possessing a sound health. His monthly pay was Rs. 2000/- and he would have earned more and risen to high positions if he had lived. The plaintiffs allege that registered notices were sent to the defendants but the defendants have not conceded the plaintiffs' claim. With these allegations this suit was filed on 26-12-1975.

5. The defendants in their written statement have raised some preliminary objections such as the suit is bad on account of misjoinder of defendant 3 and also for nonjoinder of the company. It is alleged that a proper notice under Section 80 was not issued.

6. On merits, the defendants admit that the deceased died on 8-1-1974 in the guest house, where he was staying since 4-1-1974. It is admitted that the company had entered into a contract with the defendants and the representatives of the company used to visit the defendants in connection with this contract and the deceased had come to Surangani in connection with the contract work. It is also admitted that room No. 6 has an attached bath-room in which an electric geyser was fixed but it is alleged that the geyser was not in working condition. This geyser along with some other geysers was checked on 1-1-1974 and the heating element of the geyser was found burnt and was, therefore, removed on 1-1-1974. It is alleged that the electric wires were disconnected and tied securely to the pipe behind the geyser. The plug of the geyser wire was also removed from the socket. Hot water was supplied to the occupants through buckets for their facility. The deceased was also being supplied hot water in the buckets. They deny that the deceased died when he was drawing water from the cold water tap. On the other hand they allege that after inspection report it was revealed that the deceased had put electric wires into the power plug in spite of the warning and full knowledge that the geyser was not in working order. The defendants allege that the death of the deceased was not due to any carelessness or negligence on the part of the defendants but was only due to the deliberate acts of negligence of the deceased. The defendants had kept the electric wiring and installations and water supply pipes fully safe for normal use. If the deceased had not put the wires in the socket then no such mishap could have occurred. The defendants also allege that the deceased was taking lot of medicines on account of some illness which were found at the time of the preparation of the inventory after the death. They do not admit the quantum of damages and allege that the amount claimed by the plaintiffs is highly exaggerated. The other allegations of the plaint are denied and it is alleged that the plaintiffs' suit should be dismissed.

7. On the pleadings of the parties, the following issues were framed on 12-11-1976:-

1. Is the suit bad on account of impleading of defendant 3 as a party?

2. Whether M/s, Giovanola Binny Ltd. is a necessary party to the suit?

3. Whether notice under Section 80 C.P.C. was not proper?

4. Whether the plaintiffs are the legal heirs of deceased Shri Narain Prasad and as such are entitled to file the present suit?

5. Whether deceased had put the electric wire into the power plug in spite of the warning and full knowledge of geysers being out of order?

6. Whether the defendants had taken proper precaution to prevent the electric current from leaking through the water pipes, if so, itseffect?

7. In case issues 5 and 6 are proved whether the deceased died on account of negligence of defendants or their employees or servants, if so, its effect?

8. To what damages, if any, are the plaintiffs entitled and what proportion?

9. Relief.

8. I have heard the learned counsel for the parties and have also gone through the records of the case. My findings on the various issues are as follows.

Issue No. 1.

The learned counsel for the plaintiffs concedes that the State of Himachal Pradesh had no concern with the present dispute. Previously till 20-1-1978 the project was owned and managed by the Government of India through the Ministry of Energy and Power. With effect from 20-1-1978 the assets and liabilities of this project were transferred to the National Hydro Electric Power Corporation (a company incorporated under the Companies Act). Defendant 2 (Project) is run by the National Hydro Electric Power Corporaton Ltd. In these circumstances defendant 3, as admitted by the plaintiffs' counsel, should not have been impleaded as a party in the present suit. The suit, however, cannot be dismissed on this ground but no relief can be allowed against defendant 3. Issue No. 1 is decided accordingly.

Issue No. 2.

9. The learned counsel for the defendants contends that the company is a necessary party to the suit because the deceased was anemployee of the company and for finding out as to whether he received any amount from the company, necessary information could only be given by the company. The learned counsel for the plaintiffs-contends that in this case the company is not a necessary party because the deceased died in the bath-room of the guest house which was maintained, managed and was under the control of the defendants. The company has nothing to do with the present assessment of damages. If any information was to be obtained from the company, this evidence could be produced.

10. I have considered the contentions. I am of the view that as per allegations, the company is not a necessary party in this suit. Simply for the fact that the plaintiffs may have received some amount from the company for the accident, cannot be a factor which can be considered for making the company a party to this suit. The plaintiffs are not claiming any amount against the company. The defendants, if found liable for payment, will have to pay the same to the plaintiffs or to the company. As the company has not alleged anything against the defendants, therefore, the company is not a necessary party in the present suit. This issue is decided against the defendants.

Issue No. 3.

10A. Notice under Section 80 C.P.C. was sent to the defendants on 21-9-1974 (Ex. P-6). The learned counsel for the defendants has admitted the contents of the notice but has denied the liability. The question of liability will be decided separately under issue Nos. 5 to 8. The contents of the notice (Ex. P-6) are practically the same as are the allegations in the plaint. The receipt of the notice is admitted by the defendants and is also proved by the postal acknowledgment receipts Exs. P-8 to P-11. In these circumstances, the notice served upon the defendants was a proper notice. This issue is decided against the defendants.

Issue No. 4.

11. The statement of Smt. Simla Poddar (plaintiff 1) was recorded by Shri Ashok Mehta, Local Commissioner, on 21-2-1982. Smt. Bimla Poddar states that she is the widow, plaintiffs 2 to 4 are daughters, plaintiff 5 is the father and plaintiff 6 is the mother of the deceased. There is no cross-examination of the witness. There is also no rebuttal evidence. Theplaintiffs being the widow, daughters and the parents of the deceased, are the natural and legal heirs of the deceased. It is, however, a different matter as to which of the plaintiffs is entitled to compensation and in what proportion. This issue is accordingly decided in favour of the plaintiffs.

Issue No. 5.

12. The deceased was occupying room No. 6 of the guest house from 4-1-1974. This room has an attached bath-room and a geyser is fixed on the wall. There are two taps in the bath-room (one from the geyser for supply of hot water and the other for supply of cold water). The cold water tap was fixed in the wall, Mukesh (DW 7) was employed as a cook in the guest house. He states that he entered room No. 6 with the breakfast meant for the deceased, but the deceased told him that he would take the breakfast after a bath. He left the breakfast in the room and came out to fetch hot water for the deceased. He brought a hot water bucket which he kept in the bathroom of room No. 6. After keeping the bucket he again came to the room at about 1 P.M. on 8-1-1974 to take back the utensils, but found that the deceased had not consumed his breakfast. The deceased was also not visible in the room. He did not enter the room and narrated the facts to Shri Paras Ram who advised him to see the bath-room. He entered the bathroom and found that the deceased was lying dead with his left hand catching the tap fixed in the wall. He informed Shri Arora S.D.O. about the occurrence. He also states that the water was sufficiently hot and required mixing of cold water for taking a bath.

13. Gian Chand (DW 1) states that he entered a complaint at 12.40 noon (Ex. D-2) in the complaint register on 8-1-1974 to the effect that 'water taps are giving shocks in Field Hostel', This complaint was received after the death of Shri Narain Prasad. He made an enquiry but 'found no shock', at about 1,45 P.M. after he had tested the water tap of the kitchen of the guest house. He further states that all the taps of the guest house were connected through one water pipe and if there was any electric leaking at any point in the tap then this electric leaking should find place in all the taps of the guest house. After receipt of the complaint (Ex. D-2) he along with the Supervisor T. L, Goel, (DW 2) checked the tap of the guest house but found no shock,that is, no electricity passing through that. The feeder water line to the kitchen taps and the tap of bath-room attached to room No. 6 is the same. He and the supervisor did not enter room No. 6 or its attached bath-room and waited for the arrival of the police personnel.

14. Shri Hoshiar Singh, S.H.O. (DW 5)after receiving the information of the death went to the spot for investigation in the evening of 8-1-1974 and found that the deceased was lying in the bath-room of room No. 6. He prepared an inquest report (Ex. D-5) in the presence of the Executive Engineer and the S.D.O., Baira Siul Project and also recorded the statements of Mukesh Kumar cook (DW 7). K. L. Arora S.D.O., In charge Colony and Mohinder Singh, S.D.O. Electrical Sub Division. He went inside the bath-room with Gian Chand (DW 1) but the statement of Gian Chand was not recorded by him. He does not recollect if T. L. Goel (DW 2) accompanied him when he went inside the bath-room.

15. Gian Chand (DW 1) states that he went inside the bath-room with Hoshiar Singh S.H.O. (DW 5) and T. L. Goel (DW 2). Upon the asking of Hoshiar Singh he touched the tap of the bath-room but found that the same was not giving any shock. He found that the electric wires of the geyser which had been untied by him on 1-1-1974 and tied with the water tap behind the geyser were found untied and put into the socket. The deceased was holding the water tap of the cold water line and a portion of his hand was burnt. As he did not find any electric leakage/shock in the water tap, therefore, to solve this mystery he checked the fuses and found that the fuse had been burnt and was not in working condition. Thereafter to find out the leakage of the electricity he put the fuse and-again checked the water tap. On checking he found that electric current was passing and the same was giving shocks. He noticed that the earth wire of the geyser was inserted in the live portion, that is, the positive side of the socket and in the negative side of the socket the other wire had been inserted.

16. T. L. Goel (DW 2) states that the wires of the geyser which had been disconnected by Gian Chand (DW 1) upon his asking and had been tied with the back water pipe line of thegeyser, were found untied and inserted in the socket. Gian Chand (DW 1) checked the current in the cold water tap but found that there was no current. Thereafter Gian Chand (DW 1) along with him inspected the circuit and found that the fuse wire had been burnt. Gian Chand (DW 1) then replaced the fuse wire. Before replacing the fuse, the electric wires were taken out and the earth wire was separated and the two live wires were inserted into the socket only. Thereafter the fuse was replaced and after replacement of the fuse upon checking it was found that there was no current in the cold water tap. He states that earlier the earth wire had been inserted in the phase terminal of the socket.

17. According to T. L. Goel (DW 2), before replacement of the fuse, the earth wire which is alleged by the defendants to have been inserted by the deceased in the phase terminal, had been removed and at both the times, that is. at a time when the fuse was in a burnt condition and at a time when the fuse was replaced, no leakage of electricity was found in the cold water tap. To this extent he contradicts Gian Chand (DW 1).

18. Hoshiar Singh (DW 5) who prepared the inquest report (Ex. D-5) found the deceased lying naked in the bath-room. The deceased was holding the cold water tap with his left hand and his palm of the left hand as well as the fingers and the thumb had burn injuries as if he was electrocuted. The tap had come out from the wall. An amount of Rs. 1300/- was found in the pocket of the coat which the deceased had kept in the bath-room and another amount of Rs. 1097.82 was found in his attache case which was lying on the cot of room No. 6.

19. Shri T. L. Goel (DW 2) also sent information to the Assistant Engineer vide memo. Ex D-3/A. In this memo (investigation report) Shri T. L. Goel (DW 2) has mentioned the following facts : --

'..............The bath-room of Set No. 6 wasnot checked till arrival of S.H.O. Kihar. After the arrival of S.H.O. Kihar, we checked the bath-room and it was found that the geyser wire which had been disconnected from plug point at the time of removal of defective element, were inside the plug. Although the wire had been tied around the pipe of geyser by the electrician at the time of removal ofburnt element, these wires have now been taken out of the plug as desired by you. As you are aware this fact has been in the knowledge of all officials in charge of Field Hostel.'

Shri A. L. Jaggi, Executive Engineer (DW 3) inspected the site along with the Superintending Engineer (Electrical) on 11-1-1974 and prepared the following note (Ex. D-4/A) :-

'Inspected the site along with S.E. (E) on 11-1-74 to ascertain the cause of accident. From the attendants of Field Hostel and maintenance staff, it reveals that the geyser of room No. 6 in which late Shri K. P. Poddar was staying, had been out of order since 1-1-74. and he was informed of the same and water was being supplied to the deceased from geyser of room No. 3.

The maintenance staff and the attendant of Field Hostel intimate that at the time of investigations by S.H.O. Kihar on 8-1-1974, the geyser wires of bath-room of room No. 6 were found to be inside the socket although these had been removed by the maintenance staff on 1-1-1974.

The wiring of the hostel was inspected and tested and found to give satisfactory results. The earth connection and other connection were checked and found to be in good shape.

The accident has thus occurred due to insertion of geyser wires into the power socket by the occupant in a wrong manner thereby charging the geyser body and causing his death.

May be filed.

Sd/- (A. L. Jaggi)

E.E. 11-1-74'

20. The defendants version is that the geysers of the guest house were checked on 1-1-1974. The entry about checking is Ex. D-l and it reads as follows : --

'Some power points were out of order in the Field Hostel so repaired the same and checked all the geysers in the Field Hostel and found three numbers heating elements burnt.'

In various entries of the Register the follow up action taken on a report is mentioned, but there is nothing to show as to what follow up action was taken on the report Ex. D-l. Gian Chand (DW 1) and T. L. Goel (DW 2) statethat the element of the geyser installed in the bath-room of room No. 6 of the guest house was also removed on 1-1-1974 because the same was found to be burnt. In Ex. D-l there is no entry to prove that the burnt element of the geyser of bath-room of room No. 6 was removed. In Ex. D-l it is not specifically mentioned that the element of the geyser fixed in the bath-room of room No. 6 was found burnt on 1-1-1974. In Ex. D-l the word 'all' after the word 'checked' and before the words 'the geyser' is also little suspicious and appears to have been added subsequently. Now if the element was removed then there should have been some other entry in the books of the defendants to prove that these burnt elements were kept in some store etc. The defendants did not produce any such entries. There is also no entry in the complaint book that wire of the geyser of bath-room of room No. 6 was disconnected and tied with the water pipe behind the geyser. In the absence of the documentary evidence which could have been made available, it is difficult to believe the oral statement of Gian Chand and T. L. Goel (DWs) regarding the removal of the burnt elements of the geysers from the bath-room of room No. 6. The evidence of the defendants that the earth wire was found inserted in the live portion of the socket also does not appear to be correct. Hoshiar Singh (DW 5) does not state anything of this nature. If it was so, then during investigations he would have found that the earth wire was inserted in the live portion of the socket and for that reason the electrocution of the deceased took place. In the inquest report (Ex. D-5) dated 8-1-1974 this fact is also not mentioned. Ex. D-3 is report by Shri T. L. Goel (Supervisor on the electrical side). If the earth wire had been put in the live portion of the socket and the mishap had occurred due to this wrong insertion of the earth wire then he would have mentioned the same in Ex. D-3, but it is not mentioned in Ex. D-3. The Executive Engineer Shri A. L. Jaggi in his report dt. 11-1-1974 (Ex. D-4) only mentions that the occupant had inserted the geyser wire in a wrong manner. This report was made after a lapse of three days and cannot be relied upon. The S.H.O. during investigations recorded the statements of K. L. Arora and Mohinder Singh, but both these persons were not produced. He also recorded the statement of Paras Ram (attendant waterman) but he is also not produced.

21. The plaintiffs could not have any direct knowledge about the cause of the death and it was not possible for them to have produced any evidence.

22. In view of the above discussion this issue is decided against the defendants.

Issue No. 6.

23. The learned counsel for the defendants contends that the defendants had taken proper precautions to prevent any leakage of the electric current from the water pipes etc. and the guest house was provided with properly designed wiring and other electrical installations in 1971. Regular inspections were being carried out to ensure that the wiring system remained in good condition and any defect in the electric wiring was regularly recorded in the complaint book and attended. He contends that negligence was on the part of the deceased inasmuch as he inserted the earth wire in the live portion of the socket for taking hot water from the geyser. The deceased knew that the geyser was not in working condition and the electric wires of the geyser after removal were tied with the back water pipe of the geyser. He contends that the plaintiffs have to prove the negligence.

24. The learned counsel for the plaintiffs contends that there was no proof regarding regular checking of the electric wiring and installations of room No. 6 and its attached bath-room and the principle of 'res ipsa loquitur' should apply in this case because from the various circumstances it is evident that the deceased was electrocuted due to the negligence on the part of the defendants or their employees or servants.

25. I have discussed the evidence in detail under issue No. 5. There is no evidence to prove that the electric wiring or installations of room No, 6 and its attached bath-room were checked at any time prior to 8-1-1974.

26. Mr. M. S. Iyer (DW 6) stayed in room No. 6 from 1-1-1974 to 3-1-1974. He states that he is not sure as to whether he used the attached bath-room of room No. 6 or not.

27. Shri Santosh Kumar (PW 1) stayed in the guest house in Jan. 1974. He states that on 8-1-1974, he felt mild electric shocks in the bath-room of room No, 1 at about 7-30 A.M. when he took water in the bucket from the tapat the time of the opening and closing of the tap.

28. This evidence is insufficient for the decision of this issue. A legal duty is cast upon the defendants to keep the electric wiring and installations in proper order, under the various provisions of the Electricity Act, 1910 (hereinafter the (Act)) and the Electricity Rules, 1956 (hereinafter the Rules).

29. Under Rule 44-A of the Rules, a duty was cast upon the defendants to send to the Inspector a telegraphic report within 24 hours of the fatal accident and a written report in the form set out in Annexure XIII of the Rules within 48 hours of the knowledge of the occurrence of fatal accident. The details of the causes leading to the accident as well as the steps taken to preserve the evidence in connection with the accident to the extent possible were to be mentioned in columns 10 and 13 of the report required to be sent in the form prescribed in Annexure XIII of the Rules.

30. Under Rule 46(3) of the Rules, the consumer is at all time solely responsible for the maintenance of its installations in such condition as to be free from danger. The defendants fall within the definition of 'consumers' as defined in the Act and, therefore, they were solely responsible for the maintenance of the installation in the guest house so that it was free from danger. There is, however, evidence produced by the defendants to the effect that the elements of three geysers were found burnt on 1-1-1974 and according to the defendants' version, element of the geyser fixed in the bath-room of room No. 6 was found burnt. There is no evidence to prove as to why the elements of the geysers were burnt. It is also not proved that any checking of electric installations wasdone between 1-1-1974 to 8-1-1974. As electric fittings in the guest house are owned and maintained by the defendants, therefore, it was the duty of the defendants to have maintained the electric wiring and the installations properly.

31. Charlesworth & Percy on Negligence (Seventh Edition) in Chapter 13 have dealt with the principles of liability for 'dangerousthings' on the basis of law as laid down in Rylands v. Fletcher (1866) LR 1 Ex 265 affirmed in the House of Lords (1868) LR 3 HL 330. According to the established law, a duty is imposed on those who control and interfere with 'dangerous things' to take care of those things. Things like fire, explosive, gas and electricity are 'dangerous things' and liability for damages caused by 'dangerous' things is absolute. It is not necessary to prove any negligence or lack of care on the part of any one provided that (1) the 'dangerous thing' escapes from a place in the occupation of the defendant or over which he has control to a place outside his occupation or control and, possibly, (2) its presence on the land constituted a non-natural user of the land. Thus the liability being that of an insurer, the defendant can only excuse himself by bringing himself within one of the exceptions. The defendant can, however, excuse himself by showing that the escape was due to the plaintiffs default or that if the sole cause of the damages is the act of the plaintiff himself, his action cannot succeed. Lord Wright in Northwestern Utilities Ltd. v. London Guarantee and Accident Co. 1936 AC 108, 118, explained about the liability for gas at common law in the following words :

'That gas is a dangerous thing within the rules applicable to 'things dangerous' in themselves is beyond question. Thus the appellants who are carrying in their mains the inflammable and explosive gas are prima facie within the principle of Rylands v. Fletcher affirming Fletcher v. Rylands; that is to say, that though they are doing nothing wrongful in carrying dangerous thing so long as they keep it in their pipes, they come prima facie within the rule of strict liability if the gas escapes; the gas constitutes an extraordinary danger created by the appellants for their own purposes, and the rule established by Rylands v. Fletcher requires that they act at their peril and must pay for damages caused by the gas if it escapes, even without any negligence on their part.'

The liability for 'electricity' will be precisely the same as that for gas because electricity is also a 'dangerous thing'. A person who installselectricity on his premises owes a duty to takecare to instai and maintain the installation in a safe condition and if he fails to do so then whether by himself, his servants or agents or his independent contractor, he is liable for the resultant damages.

32. An electric contractor who had installed at the plaintiffs house an electric boiler together with a new circuit, but has failed negligently to provide a fully efficient earthing system for it, was held liable to the plaintiff for the death of his wife who was electrocuted in consequence (Sellars v. Best (1954) 2 All ER 389). Because wires carrying electric current must be kept properly insulated, neglect of this duty, which causes damages, is actionable. When two persons were using public baths but, owing to the neglect of the local authority to earth the metal tubes employed in connection with the electric light system, died as a result of receiving electric shocks, the local authority was held liable. (See Re Fulham Borough Council and National Electric Construction Co. (1905) 70 JP 55 ).

33. The deceased having died of electrocution is an admitted fact. The deceased was a science graduate and in the normal course he would not have inserted the earth wire in the live portion of the socket specially when he had already been supplied sufficiently hot water in a bucket for bath purposes. This hot water required mixing of cold water only as stated by Mukesh (DW7). Thus it is proved that the accident occurred due to some leakage of electricity through the cold water pipes and it could only happen if the defendants had not taken proper care and precautions for the maintenance of electricity. Issue No. 6 is, therefore, decided against the defendants.

Issue No. 7.

34. In view of my findings under issues Nos. 5 and 6, the normal inference is that the death of the deceased occurred due to the negligence of the defendants or their employees or servants. The learned counsel for the defendants, however, contends that the plaintiffs have to prove negligence and has relied upon AIR 1969 Pun & Har 172 (State of Punjab v. V. K. Kalia), AIR 1974 All 90 (BabuSingh v. Smt. Champa Devi), AIR1976 Cal 2 (Calcutta State Transport Corpn. v. Kamal Prakash De) and AIR 1976 Him Pra 36 (Himachal Pradesh Marketing and Development Federation Ltd. v. Smt. Urmila Kumari) in support of his contentions.

35. In State of Punjab v. V. K. Kalia (supra) the compensation was claimed by the claimant (a Superintendent of Police) due to injuries received by him as a result of the accident of official jeep. A learned single Judge held that on the facts and circumstances of the case the rule of res ipsa loquitur was not applicable because the vehicle was not under the management of the State or its servants, the driver. The same was registered in the name of the claimant and was under his control, that is, it was under the management of the claimant himself-and the accident would not have happened if the claimant who had the management and control, used proper care either to get the tyres replaced in time or to avoid using this dangerously unsafe vehicle on that rainy day. The accident occurred for want of care on the part of the claimant himself. The rule of res ipsa loquitur (which for the sake of convenience may be called the rule of presumptive negligence on the part of the defendant) has, therefore, no application to the facts of the present case. This judgment is distinguishable because the learned Judge held that the accident took place due to the negligence of the claimant.

36. In Babu Singh v. Champa Devi (AIR 1974 All 90) (supra), Calcutta State Transport Corporation (AIR 1976 Cal 2) (supra) and Himachal Pradesh Marketing and Development Federation (AIR 1976 Him Pra 36) (supra), it is held that to succeed in an action the claimant has to establish some negligence or a breach of duty by the defendant towards him and his causal connection with the injuries sustained by the claimant.

37. It is not in dispute that the normal rule is that it is for the plaintiff/claimant to prove negligence and not for the defendants to disprove it, There is, however, an exception to this rule and that exception is called the doctrine of 'res ipsa loquitur'.

38. In AIR 1966 SC 1750 (Municipal Corporation of Delhi v. I. Subhagwanti) thedoctrine of 'res ipsa loquitur' was explained by quoting Halsbury's Laws of England, 2nd Edn., Vol. 23 at p. 671 as follows :-

'An exception to the general rule that the burden of proof of the alleged negligence is in first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged as negligence 'tells its own story' of negligence on the part of the defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part.'

Their Lordships held that the doctrine of 'res ipsa loquitur' applies in the circumstances of the case. The facts were that a Clock Tower was exclusively under the ownership and control of the appellant (Municipal Corporation) or its servants. The Clock Tower collapsed causing loss of life. The accident had happened due to unforeseen circumstances inasmuch as there was fall of the Clock Tower. It was held that the Corporation was guilty of negligence because of the potential danger of the Clock Tower maintained by it having not been subjected to a careful and systematic inspection which it was the duty of the Corporation to carry out. There is an obligation on the owner of adjoining premises for the safety of the structures which he keeps besides the highway.

39. In (1971) 73 Pun LR 99 : (AIR 1971 Punj & Har 373) (State of Punjab v. Champa) the doctrine of 'res ipsa loquitur' was made applicable where the admitted or established 'facts were such that the ordinary natural inference immediately arising therefrom is that the injury in question was caused by the negligence of the defendant to such an extent that the admitted or proved facts tell theirown clear and unambiguous story of negligenceon the part of the defendant. In this case therewas an electric pole and its stay wire had been installed and maintained by the State Government on the public street near the shop of the deceased. If due to want of proper care, caution and continuous inspection, the pole or stay wire got energised so as to become a potential danger to the person going close to the same, the owner of the pole and the slay wire clearly became liable to any one suffering by coming into contact therewith. In such a case, it is no defence whatever for the appellants to allege or prove that they neither knew nor could have known of the danger. The appellants would in such circumstances be legally responsible irrespective of whether the damage is caused by the stay wire getting energised to the knowledge of the appellants, or their employees or without their having any knowledge at all about the same. The pole and its stay and the running of electric energy in the wires above the pole were at all material times exclusively under the control and management of the appellants or their employees, and the happening of the kind which caused the fatal accident in the instant case is such as does not occur in the ordinary course of things without some negligence on the part of the appellants.

40. The doctrine of 'res ipsa loquitur' enunciated above, will apply to the facts of the present case. It is proved that the deceased died due to electrocution, that is, leakage of electricity in the cold water tap. The cold water was required by the deceased for mixing purposes as according to the statement of Mukesh (DW 7) sufficiently hot water bucket was supplied to the deceased which required mixing of cold water. The deceased was found lying naked in the bath-room with his left hand clutching the cold water tap and the water tap had come out of the wall. The plaintiffs who are the legal heirs of the deceased were not on the spot and as such cannot produce any evidence regarding the negligence of the defendants. The admitted and proved facts as have been elaborately discussed under issues Nos. 5 and 6, however, tell their clear and unambiguous story of negligence on the part of the defendant . The duty to keep the electric wiring and installations in good condition, so that there was no leakage of anytype in the tap, was of the defendants. The leakage of electric current into the tap could only happen if the defendants had been negligent in their duty.

41. In view of what has been stated above and the discussion under issues Nos. 5 and 6, it is proved that the deceased died on account of the negligence of the defendants or their employees or servants. The defendants are, therefore, liable for the payment of compensation damages. This issue is accordingly decided against the defendants.

Issue No. 8.

42. The learned counsel for the defendants contends that the plaintiffs 5 and 6 being the father and mother of the deceased are not the dependants and cannot be allowed any compensation. The learned counsel for the plaintifis admits that these two plaintiffs may not be allowed any compensation,

43. Plaintiffs 2 to 4 are the minor daughters of the deceased and plaintiff 1 is the widow of the deceased. These plaintiffs are, however, entitled to get compensation being the dependents of the deceased.

44. A Division Bench of this High Court in ILR (1979) HP 267 : (AIR 1980 Him Pra 16) (Himachal Pradesh Road Transport Corpn. v. Jai Ram) has enunciated a formula for assessing just compensation which should be awarded to the dependents and heirs of the deceased. It was held that for applying the multiple system the annual dependency which is the basic or dictum figure representing the multiplicand and the number of years' purchase representing the multiplier should be arrived at in the manner that the net income derived by the deceased at the time of his death should be ascertained and the amount expended by the deceased for his personal expenditure should be deducted from his amount of his net income so that the remainder amount was to represent the amount spent by him for his dependants plus the amount saved for future. It was further held that if no satisfactory evidence regarding the expenses or the saving was available then in that case the reasonable method would be to fix the units of family expenditure and deduct the units consumed by the deceased for his personal expenditure. An adult memberof the family would normally consume double the units consumed by the minors except those minors who are taking education in college for whom in an appropriate case two units of expenditure may legitimately be taken into account.

45. In the present case it is not proved that any special extra expenditure was incurred for the education of plaintiffs 2 to 4 (minors). The units can be split up in the following manner :--

Deceased

- 2 units

Plaintiff No.1

- 2 units

Plaintiffs Nos. 2 to 4

- 3 units

(1 unit each)

Total

- 7 units

The amount expended by the deceased for his personal expenses would be 2/7 of his net income and the remaining 5/7 share of the net income would represent the amount spent by the deceased for his dependents plus the amount saved for future.

46. The deceased at the time of his death was aged 35/36 years. He was a science graduate and was in private employment from 1960. Initially he was receiving a salary of Rs. 300/- per month but after a period of about 7 years he started getting a salary of Rs. 1100/- p.m. From unrebutted evidence it is proved that the deceased at the time of his death was getting a salary of Rs.2000/- per month besides many other perks and that he was maintaining good health. The defendants have alleged that the deceased had some medicines with him at the time of his death, but there is no evidence to prove that the deceased was having any medicines in his possession or that he was not keeping good health. In those circumstances, it is to be presumed that the deceased was hale and hearty and was possessing a normal health. He was also having share in the partnership business. Bimla Poddar (Plaintiff 1) and Mohan Lal Poddar (Plaintiff 5) state that the deceased could live up to an age of about 75 years. The father of the deceased (Mohan Lal Poddar) was aged 67 years on 21-2-1982. He slates that his grandfather, father and two uncles expired between the ages of 75 to 80 years and that hismother expired at the age of 72 years. In these circumstances, it can safely be presumed that it the accident had not taken place then the deceased also might have lived up to the age of about 70 years.

47. Being in private employment the deceased was not expected to retire before the age of 60 years.

48. Taking into consideration all these circumstances, 1 am of the view that in the present case a multiplier of 18 years should be applied.

49. The deceased was getting a salary of Rs. 2000/- per month. This evidence is unrebutted and is also not challenged in cross-examination. Following the formula/method as mentioned in Himachal Road Transport Corporation (AIR 1980 Him Pra 16) (supra), the figure of monthly dependency will come to Rs. 1425/- and the annual dependency will come to Rs. 17,100/- (Rs. 17,000/-approximately). Using the multiplier of 18 years (which appears to be just and reasonable), the net amount of compensation payable to the plaintiffs 1 to 4 will come to Rs. 3,06,000 (rupees three lakhs and six thousand).

50. The learned counsel for the defendants contends that plaintiffs will be getting the amount in lump sum, therefore, proper deduction should be made. As the amount to be awarded to the plaintiffs is in lump sum, therefore, in my view a reasonable deduction should be made taking into consideration the various circumstances. The deceased had three daughters (paintiffs 2 to 4) and for their marriages, plaintiff 1 (widow of the deceased) is likely to spend a substantial amount keeping in view the status of the family. Hence 1 am of the opinion that a lump sum amount of Rs. 2,50,000/- should meet the ends of justice on this ground. The plaintiffs are also entitled to receive a conventional amount for loss of expectation of life. In the present case an amount of Rs. 3000/- should be added as a conventional figure which is quite moderate according to the Indian standards. The amount is to be apportioned between the plaintiffs 1 to 4 in the following manner : --

Compensation

Conventional amount

Total

Plaintiff No.1

1,00,000/-

1,200/-

1,01,200/-

PlaintiffNo. 2

50,000/-

600/-

50,600/-

Plaintiff No.3

50,000/-

600/-

50,600/ -

PlaintiffNo. 4

50,000/-

600/-

50,600/-

51. The accident took place on 8-1-1974 and the present suit was filed on 26-12-1975. In the facts and circumstances of the case, 1 am of the opinion that the plaintiffs -should also he allowed future interest. As such i allow the plaintiffs future interest at the rate of 6% per annum from 26-12-1975 (the date of the institution of the suit) till the date of the payment of the amount.

52. As a result of the above discussion, the plaintiffs' suit is decreed against defendants 1 and 2 for Rs. 2,53,000/- (i.e. plaintiff Rs, 1 = 1,01,200/-, plaintiff 2 = 50,600/-, plaintiff No. 3 Rs. 50,600/- and plaintiff No. 4 Rs. 50,600/- with proportionate costs to each plaintiff. The plaintiffs are also allowed future interest on the decretal amount at the rate of 6% per annum from 26-12-1975 till the date of payment of the amount. The amount payable to minor plaintiffs 2 to 4 shall be kept in deposit in a scheduled bank in the name of these minor plaintiffs till the time they attain majority, but the same can be paid to plaintiff No. 1 or any other guardian of these minor plaintiffs after getting permission from the Court. If any of the plaintiffs 2 to 4 have attained majority, then such of the plaintiffs can realise the amount. The suit against defendant 3 is dismissed.


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