Civil Suit No. 1 of 2005 · Orissa High Court
Case Details
ORISSA HIGH COURT: CUTTACK R.F.A. NO.35 OF 2006 From the judgment dated 4.1.2006 and Decree dated 10.1.2006 passed by Sri Rajendra Panigrahi, Civil Judge (Senior Division), Bonai in Civil Suit No.1 of 2005. __________ Managing Director, WESCO and others …… Appellants V e r s u s Miss Manini Majhi & others … … Respondents For Appellants : M/s. B.K. Nayak & D.K. Mohanty M/s. R. Roy, S.K. Singh, N. Hota & A. Pradhan For Respondents : M/s. Sanatan Das, M.K. Sahu, A.K. Sahoo & A.K. Panda (for Respondent No.1.) M/s. S.C. Panda, N. Pihan, A.K. Swain & U.N. Singh (for Respondent No.2 and 3) P R E S E N T : THE HONOURABLE MR. JUSTICE RAGHUBIR DASH Date of hearing : 17.7.2013 Date of judgment : 01.08.2013 R. DASH, J. The appellants who are defendant Nos.3 to 5 before the learned trial court have preferred this appeal challenging the judgment and decree dated 4.1.2006 and 10.1.2006, respectively, passed by the learned Civil Judge (Senior Division), Bonai in Civil Suit No.1 of 2005. Respondent No.1 is the plaintiff and Respondent Nos.2 and 3 are D.1 2 and D.2 before the court below. Learned court below decreed the suit
Facts
on contest against all the defendants but held the present appellants liable to pay damages to the tune of Rs.5,02,223/- to the plaintiff- respondent No.1. 2. Case of the plaintiff-Respondent No.1, in short, is that at the relevant time she was a student of +2 1st Year Science reading in Jadupati College, Kalia Bihar, village Sihidiha in Bonai Sub-Division. There is one 11 K.V. electric connection to the said College which is maintained, repaired and look after by the defendant-appellants. Due to bending of the support pole, the live conductor got sagged and it was hanging at a very low height in semicircular way. On 2.2.2004 the plaintiff’s hand came in contact with the live electric wire resulting in severe burn injuries. Immediately, she was shifted to Rourkela and was admitted in the I.G. Hospital, Rourkela where she was admitted and got treatment from 2.2.2004 to 2.4.2004. In the process of her treatment, her right hand had to be amputed to save her life. Several other parts of her body were also affected due to the said accident and despite of such prolonged treatment those parts developed deformity for which she has become incapable of discharging her normal function and her future has become doomed. Claiming that the incident occurred as a result of callous negligence of the defendants, she filed the suit claiming Rs.4 lakhs as damages towards pain, anxiety and mental agony; attendant cost; loss of marital prospect; and deprivation of educational career. In 3 addition to that she also claimed compensation of Rs.41,087/- towards hospital charges, Rs.5,000/- towards cost of an attendant during the period of her treatment, Rs.1,000/- towards conveyance expenses and Rs.55,136.52 towards cost of medicines. D.1 and D.2 who are respondent Nos.2 and 3 in this appeal filed their written statement contending that in view of the provisions of Orissa Electricity Reform Act, 1995 and the Transfer Scheme Rules 1998 framed thereunder, the suit is not maintainable against them. According to them it is M/s WESCO which is the Distribution and Retail Supply Licensee for the Western Zone within which the incident has allegedly occurred. 3. The present appellants as D.3 to D.5 have filed joint written statement admitting that there is a transformer of 11 KV capacity installed for supply of power to the College area. However, claiming that the same is being regularly maintained by their employees, it is denied that due to bending of the electric pole, the live conductor sagged and hanged at a very low level reducing the ground clearance level below the safety zone. It is also their contention that no information was given to the defendants with regard to either the sagging of the wire or the accident. Neither the plaintiff nor her guardian nor the College authority or any other person, lodged any report with the local Police about the happening of such accident. They have also pleaded that the plaintiff might have committed some overt act so that she came in contact with the live wire. 4 4. Before the court below each side examined two witnesses. P.W.1 is the victim, P.W.2 is her father, D.Ws.1 and 2 are two officials of the D.3 to 5. Learned trial court framed the following issues: I s s u e s (i) Whether the plaintiff has got any cause of action to file the suit ? (ii) Whether the plaintiff sustained any injuries due to electrocution by coming in contact with live wire supplied from 11 KV transformer to Jadupati College, Sihidiha on 2.2.04 ? (iii) Whether the right hand of plaintiff was amputed during course of treatment on account of electrocution and was disfigured ? (iv) Whether the alleged electrocution to the plaintiff was caused by any negligence on account of defendants No.1 & 2 or by defendants No.3 to 5 ? (v) Whether the suit is maintainable ? (vi) To what other relief the plaintiff is entitled for ? Answering all the issues in favour of the plaintiff, the learned trial court decreed the suit and awarded the amount claimed in the plaint. 5. In the memo of appeal, the following main grounds have been raised: (1) The learned lower court has not recorded a positive finding that there was negligence on the part of the defendants in maintaining the supply line and that the accident occurred due to such negligence, more so when it is admitted by the plaintiff that the supply line was being maintained by the defendants properly. 5 (2) The court did not take into consideration the fact that no complaint from the College authority or other member of the public, with regard to the sagging of the conductor, was ever lodged. (3) The learned lower court did not take into consideration the facts that- (i) neither any notice under Section 161 of the Electricity Act, 2003 on the alleged incident was served nor any F.I.R. was lodged; (ii) the treating physician was not examined by the plaintiff to prove the injury as well as the treatment and the documents related to the treatment of the injured; (iii) the injured was not admitted in any local hospital at the first instance and was directly taken to I.G. Hospital, Rourkela. (4) The court below did not assign reason for accepting the entire claim made by the plaintiff. 6. As regards negligence on the part of the defendant-appellants, it is argued by the learned counsel for the appellants that the plaintiff having admitted in the plaint that the supply line was being maintained properly, the learned lower court should not have decreed the suit fixing liability on the appellants. In para-3 of the plaint, it is pleaded that there is 11 K.V. electric connection to the College supplied, maintained, repaired and looked after by the defendants. Referring to this pleading, the appellants claim that the plaintiff has admitted that the supply line was maintained properly. Neither P.W.1 nor P.W.2 admits that the supply line was being maintained regularly and properly. The aforestated pleading in the plaint is not an admission on the proper maintenance of the supply line 6 but an assertion that the 11 K.V. electric connection to the College was under the control and maintenance of the appellants in the absence of which liability could not be fastened on them. The entire para-3 of the plaint would reveal that though the electric connection was under the control and management of the appellants, the overhead conductor sagged due to bending of support as a result the ground clearance was reduced to objectionable height. It implies that due to lack of regular maintenance and repair, the support pole bent and the overhead conductor was sagged to such an extent that the ground clearance was reduced. Therefore, it cannot be construed that the plaintiff admits that the supply line was being maintained properly. 7. The victim/injured had deposed that while she was passing along the way the electric wire came in contact with her body. The happening of the accident has not been denied by the appellants. During her cross-examination, so also her father’s, it is suggested that while the victim was going in a Truck her hand automatically came in contact with the electric wire resulting in electrocution. Even if it is admitted that while going in a Truck her hand came in contact with the electric wire, it cannot be presumed that due to her overt act or on account of her negligence the live conductor came in contact with her body. Rather there would be an inference that due to sagging of the overhead conductor, its ground clearance level was reduced to objectionable height for which victim’s body contacted the conductor. It is admitted by the D.Ws. that the height of the 7 overhead conductor is to be maintained and kept at the minimum of 18 feet above the ground level. Had this minimum height been maintained, the conductor would not have come in contact with the injured even while passing under the overhead conductor in a Truck. Therefore, the presumption is that the minimum height of the overhead conductor was not maintained at the relevant time as a result of which the accident occurred. That apart, when there is allegations of breach of precaution on the part of the appellants, the burden was on the appellants to prove that
Legal Reasoning
1998 (II) OLR 322). It is well settled that in an action for damage in tort if the plaintiff proves that he or she has been electrocuted from a live-wire then the presumption would be that there was lack of proper care on the part of those who are in the management and control of the power supply and in such type of cases, the maxim ‘res ipsa loquitor’ applies. In the case at hand, the appellant-defendants have not adduced any evidence to prove that the supply line to the College premises was being regularly maintained and repaired by their personnel. Though D.W.1 claims that there was no sagging of the conductor, he is not competent to say so, inasmuch as he joined in the post of Sub-Divisional Officer, Bonai much after the happening of the accident. D.W.2 claims that 8 the appellants’ staff regularly perform petrol duty and supervise the transformer wherefrom supply of electricity is given to the College. He has not claimed that the supply line in question was ever inspected or repaired by himself or any of his staff. It is also not stated by him as to whether any of their staff had inspected the supply line some time prior to the accident. He admits that the supply line from the transformer to the College premises and its hostel has been drawn over a private path crossing over a public road. None of the staff who are supposed to inspect, maintain and repair the service line in question has been examined by the appellants. Therefore, the appellants have utterly failed to discharge the onus on them to prove that they had taken all reasonable precautionary measures to avoid any possible accident. 8. Even contributory negligence cannot be attributed to the victim. It is not on record that the victim had prior knowledge about the sagging of the wire. She claims that while she was passing on the road approaching to her hostel the electric wire, which had come down to her chest-level, came in contact with her person. Therefore, it cannot be said that due to negligence or any overt act on the part of the victim the accident occurred. It is not on record that the sagging of the electric wire, due to bending of the supporting pole, had come to the notice of the College authority or the general public any time prior to the happening of the 9 incident. Therefore, the appellants should not expect that any member of the public or any of the College staff ought to have lodged a report with the appellants seeking for immediate action. 9. It is true that neither F.I.R. has been lodged with the Police about the alleged incident nor notice under Section 161 of the Electricity Act, 2003 was served. But, no authority has been cited in support of the contention that in absence of such report or notice, an action for damage cannot be brought against the appellants. Absence of F.I.R. or notice soon after the alleged electrocution may create a cloud of suspicion over the plaintiff’s plea on the manner in which the electrocution is claimed to have occurred. But, the pleadings of the parties and the evidence on record are sufficient to believe the plaintiff’s plea in this regard. In the light of the aforestated discussion, it is held that negligence can be attributed to the appellants. 10. Further contention is that in the absence of the evidence of any of the physicians who were attending to the injured while she was admitted in the hospital, the plaintiff cannot be said to have proved the injuries and the manner of treatment she had undergone, so also the documents exhibited. Let it be mentioned at the outset that all the documents marked as exhibits on behalf of the plaintiff were admitted in evidence 10 without objection. Therefore, a presumption can be raised to the effect that the formal mode of proof of the documents was dispensed with. In Gopal Das v. Sri Takurji, reported in AIR 1943 PC 83, it is observed that where the objection to be taken is not that the document is in itself inadmissible but that the mode of proof put forward is irregular or insufficient, it is essential that the objection should be taken at the trial before the document is marked as an exhibit and admitted to the record. A party cannot lie by until the case comes before a court of appeal and then complain for the first time of the mode of proof. It is well settled that once the documents are properly admitted, the contents of those documents are also admitted into evidence. In the case at hand, the admissibility of the exhibited documents is not under challenge. Therefore, non-examination of the treating physician cannot be taken as a ground to discard the exhibited documents. 11. That the victim sustained burn injuries due to electrocution by coming in contact with one live conductor is not in dispute. It is also not disputed that one of her hands had to be amputed. Ext.87 is the discharge certificate which reflects that the injured was admitted in I.G. Hospital, Rourkela on 2.2.2004 and was discharged on 2.4.2004 and was undergoing treatment for electric burnt injury. All the exhibited documents, related to her treatment in the Hospital, are in original. Learned trial court has relied on these documents. Under such facts and circumstances, non- 11 examination of the treating physician is not an infirmity so far the plaintiff’s suit for damage is concerned. 12. The objection that the injured was not admitted in any local Hospital at the first instance before she was taken to I.G. Hospital, Rourkela which is at a far distance place from the place of accident is without any substance. Non-admission in any local Hospital cannot be a ground to disbelieve the plaintiff’s case. 13. On the acceptance of the entire claim of the plaintiff by the learned court below, it is argued that before going to quantify the compensation, the learned lower court ought to have applied his mind as to the reasonableness and propriety of the amount of compensation claimed in the plaint. It is also argued that even though the plaintiff has claimed compensation under different heads she has failed to adduce evidence to justify her claim under each of the heads. Therefore, it is submitted, the learned lower court ought not to have decreed the suit in whole accepting the entire claim made in the plaint. It is found from the plaint that the plaintiff has claimed damages under the following heads: (1) Rs.1,00,000/- towards anxiety, pain and mental agony that she had suffered; (2) Rs.1,00,000/- towards cost of an attendant which she would require in her day to day life; (3) Rs.1,00,000/- towards loss of prospect of leading a marital life; 12 (4) Rs.1,00,000/- towards deprivation of her prosperous educational career; Besides all these, she has claimed Rs.41,087/- towards the Hospital charges, Rs.55,136.52 towards cost of medicine, Rs.5,000/- towards the expenses she had incurred on an attendant during her treatment in the Hospital and Rs.1,000/- towards cost of her transportation from her village to the Hospital on 2.2.2004. 14. The fact that the victim was a student reading in +2 Science at the relevant time is not in dispute. She has exhibited one mark sheet (Ext.9) issued by the Board of Secondary Education, Orissa to show that she had secured First Class in High School Certificate Examination. In her evidence she has claimed that she was a bright student and was hopeful of getting admitted in a Medical or an Engineering College, but due to the accident her hope for a bright future was shattered. However, there is no assertion that due to the accident she has suffered invalidity or infirmity to such an extent that she always needs one attendant for her day to day life. So far the prospect of her marriage is concerned, she was about 17 years old by the time she deposed in the court. It is true that she has lost her right hand and also she might have sustained burn injuries on other parts of her body leaving marks which are likely to remain permanently.So, it can be understood that the bright prospect of her marriage has got diminished to a great extent. It is also imaginable that she has suffered and will 13 continue to suffer anxiety, pain and mental agony because of the accident resulting in loss of one of her upper limbs. Under such circumstances, the learned trial court has rightly accepted the entire claim of the plaintiff under the headings mentioned above except the heading which relates to the expenditure on engagement of an attendant for her day to day life. Since there is complete absence of evidence on the requirement of an attendant, her claim for attendant’s cost for the post-treatment period cannot be entertained. 15.
Arguments
they had taken all precautionary measures to prevent such accident (Smt. Puni Singh v. Chairman, GRID Corporation of Orissa and others,
Decision
In the result, the appeal is allowed in part. The amount decreed by the learned lower court and payable by the appellants is reduced from Rs.5,02,223/- to Rs.4,02,223/- with interest @ 5% from the date of the decree till realisation. Subject to such modification, the judgment and decree of the learned lower court are confirmed. 16. The R.F.A. is, accordingly, disposed of. ………………………… R. Dash, J. Orissa High Court, Cuttack The 1st August, 2013/A.K.Kar, Secretary