Ap Trasco Ltd vs M.Sunkanna
2023 Latest Caselaw 4680 AP

         THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

                   SECOND APPEAL NO.323 OF 2011

JUDGMENT:

1. This second Appeal was filed under Section 100 of the Code of Civil

Procedure, 1908 (for short, 'C.P.C.') against the Judgment and decree,

dated 26.08.2008 passed in A.S.No.149 of 2006 on the file of learned IV

Additional District and Sessions Judge, Kurnool, confirming the

Judgment and decree, dated 03.04.2006 passed in O.S.No.34 of 2004 on

the file of learned Senior Civil Judge, Nandikotkur.

2. The parties to the Appeal are referred to as they are arrayed in

O.S.No.34 of 2004.

3. Plaintiffs filed O.S.No.34 of 2004 seeking compensation of

Rs.2,00,000/- towards damages for the death of their son, Siva Kumar

(hereinafter will be referred to as 'the deceased'), who died due to

electrocution.

4. In the plaint, it is averred that on 20.05.2002 at about 05.00 PM,

the plaintiff's son, i.e., the deceased, went outside to attend calls of

nature, but he did not return to the house, on that the plaintiffs and

others searched for the deceased; when they reached Shadikana situated

back side of the Sreerama Theatre at Nandikotkur, their son fell on the

ground, and they found that one live electric wire found on him; due to

electrocution, their son died; the death of the deceased was due to

T.M.R., J S.A. No.323 of 2011

negligence in action, failure of reasonable care, precaution and

maintenance of the defendants.

5. In the written statement, the defendant refuted the plaint

averments and contended that the defendants took all the care and

precautions in supervising the electric wire in their jurisdiction; on

20.05.2002, due to a heavy gale, 1 No.@11 K.V. conductor of Town-II

feeder at the out-going side of the pole was cut and fell on the ground

near Shadi Khana at Nandikotkur town; it is an act of god; in the

meanwhile, the deceased went there and touched the wire and got

electrical induction due to return supply and died; the V.C.B did not trip

as the conductor cut at the out-going side of the supply; the plaintiffs

are not the dependents of the deceased and the compensation claimed is

excessive and without any basis; as there is no negligence on the part of

the department, the defendants are not liable to pay any compensation.

6. Based on the pleadings in O.S.No.34 of 2004, the trial Court framed the following issues:

(1) Whether there is negligence on the part of the defendants? (2) Whether the defendants are not liable to pay any compensation?

(3) Whether the plaintiffs are entitled to compensation? (4) To what relief?

7. During the trial, on behalf of the plaintiffs, P.Ws.1 to 3 were

examined and marked Exs.A1 and A.2 & Exs.X.1 and X.2. On behalf of

the defendants, D.W.1 was examined, and Ex.B.1 document was marked.

T.M.R., J S.A. No.323 of 2011

8. After the completion of the trial and hearing the arguments of

both sides, the learned trial Court, by its Judgment, dt.03.04.2006,

found that there cannot be any dispute about the death of the plaintiff's

son on 20.05.2002 due to electrocution; the deceased was found by the

side of the electrical wire; on that day, there was a heavy wind, but the

management, who had control over power transmission, failed to put off

the power connection to avoid any incident and the plea taken by the

defendant, i.e., act of god, has no defence and they have to check out

measures to prevent any mishap; there is negligence on the part of the

defendants' department; and partly decreed the suit with costs for

Rs.1,00,000/- with interest @ 6% per annum from the date of filing of

the suit till realization.

9. Aggrieved by the Judgment and decree in O.S.No.34 of 2004, the

defendants in the suit filed A.S.No.149 of 2006. The lower appellate

Court, being the final fact-finding Court, framed the following points for

consideration:

Whether the appellants/defendants established that the death was not occurred due to electrocution? If so, the judgment of trial Court is liable to be set aside?

10. The lower appellate Court, on scrutiny of oral and documentary

evidence adduced on behalf of both sides, had also considered the

contentions raised before the trial Court concerning the death of the

deceased due to electrocution and concurred with the finding of the

learned trial Judge and dismissed the Appeal by its Judgment,

T.M.R., J S.A. No.323 of 2011

dt.26.08.2008. Aggrieved by the 1st appellate Court's Judgment passed

in A.S.No.149 of 2006, the appellants preferred the present second

Appeal.

11. Heard Sri V.R. Reddy Kovvuri, learned Standing Counsel for

APSPDCL representing the appellants/defendants and Sri S. Venkata

Subba Rao, learned counsel for the respondents/plaintiffs.

12. Learned standing counsel for APSPDCL representing the

appellants/defendants, put forth an argument that Courts failed to

appreciate the Ex.B.1 contents and ought to have seen that the plaintiffs

have suppressed the facts; the evidence of PWs.1 to 3 about the manner

of accident is clearly established in their earliest version given by PW.1

as in Ex.B.1; the appreciation of evidence is improper and caused

miscarriage of justice.

13. Despite granting adjournments, no representation is made on the

respondents/plaintiffs' behalf, and so, treated as heard.

14. Based on the appellants' contentions, the following substantial

question of law is involved in this second Appeal:

Whether in a suit filed for damages on account of the death due to electrocution, the trial Court can place the burden upon the supplier of electricity?

15. Before delving into the matter, since the Appeal is filed under

Sec.100 CPC, this Court must see the scope of Section 100 of C.P.C.

T.M.R., J S.A. No.323 of 2011

16. In Dagadabai V. Abbas1, the Hon'ble Supreme Court clarified that

the assessment ought to be done from the standpoint of "an average

judicial person". The Court went on to observe the following:

First, when the trial court and the first appellate Court concurrently decreed the plaintiff's suit by recording all the findings of facts against the defendant enumerated above, then, in our opinion, such findings of facts were binding on the High Court. It is also for additional reasons that the findings were neither against the pleadings nor evidence and nor against any provisions of law. They were also not perverse on facts to the extent that no average judicial person could ever record. In this view of the matter, we are of the opinion that the second appeal did not involve any question of law much less substantial question of law within the meaning of Section 100 of the Code to enable the High Court to admit the appeal on any such question much less answer it in favour of the defendant.

17. As the suit is filed for compensation, the plaintiffs must prove that

their son, i.e., the deceased, died due to electrocution. The written

statement shows the defendants have not disputed the deceased's death

due to electrocution. According to the defendants, on 20.05.2002, due to

heavy gale, 1 No.@ 11 K.V. conductor of Town-II feeder at the out-going

side of the pole was cut and fell on the ground near Shadi Khana at

Nandikotkur town; in the meanwhile, the plaintiffs' son went there and

touched the wire, got an electrical shock and died. The death of the

deceased due to electrocution is not in dispute.

18. The trial Court observed that the defendants had not taken

precautionary measures by stopping the power supply when heavy rain

occurred. It is not in dispute that the live wire was snapped from the pole.

The trial Court observed that if there is any sudden gale and wind, the

(2017) 13 SCC 705

T.M.R., J S.A. No.323 of 2011

officials in charge of lines should anticipate the possibility of snapping

wires and could be more vigilant, and they cannot blame the pedestrians.

In Mothukuri Bheemvva & others V. Andhra Pradesh State

Electricity Board and another2, the composite High Court of Andhra

Pradesh held that "rain and wind is a normal occurrence, which can be

easily foreseen and it is of the duty of the defendant to take every

precaution to prevent such occurrence in the rainy season, the defendant

miserably failed to discharge the burden of proof which clearly lay on them

in this behalf".

19. In a decision reported in Shail Kumari vs M.P. Electricity

Board3, the High Court of Madhya Pradesh observed thus:

"8. xxx The standard of care required of a body like the Electricity Board is high due to the dangerous nature of electricity. It is negligence on its part to omit to use all reasonable known means to keep the electricity harmless. There is no burden on the plaintiff to prove negligence. If the defendant produces no material evidence of negative negligence, negligence will be presumed.

....It is expected of the Board to do whatever is required to be done to avoid an accident. Its negligence cannot be equated with the negligence of an individual or situational negligence. There is a presumption of negligence when an accident of this nature occurs. The heavy onus is cast on the Board. It is required to discharge the onus....."

20. The Hon'ble Apex Court in M.P. Electricity Board v. Shail

Kumari4 held that the facts of that case are akin to those of this case.

That was a case where the deceased was riding a bicycle at night and

1999 ACJ 1269

2001 LawSuit (MP) 329

(2002) 2 SCC 162 : A.I.R. 2002 SC 551

T.M.R., J S.A. No.323 of 2011

returning from his factory. There had been rain, and 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. The primary

defence raised by the defendant was that the wire in question had been

used by somebody to siphon energy for his use and said the act was done

clandestinely behind the back of the Electricity Board. The line got

unfastened from the hook, and it fell on the road over which the cycle

driven by the deceased slid, resulting in instantaneous electrocution. In

those facts, the Supreme Court held as follows:

"7. It is admitted that the responsibility to supply electric energy in a 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 in it, the primary liability to compensate the sufferer is that of the electric energy supplier. 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 to his private property and that the electrocution was from such a diverted line. It is the lookout 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 an extra duty to take measures to prevent such mishaps.

8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life is liable under the 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. In

T.M.R., J S.A. No.323 of 2011

law, the liability cast on such a person is known as 'strict liability'. It differs from the liability that arises on account of the negligence or fault in this way, i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that could be done to avoid the harm, he cannot be held liable when the action is based on any negligence attributed. However, such consideration is not relevant in strict liability cases where the defendant is held responsible irrespective of whether he could have avoided the particular harm by taking precautions.

21. The doctrine of strict liability had its origin in English Common

Law when it was propounded in the celebrated case of Rylands v. Fletcher5;

Justice Blackburn had observed thus:

"The rule of law is that the person who, for his 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."

The rule of strict liability has been approved and followed in many subsequent decisions in England, and decisions of the apex Court are legion to that effect. A Constitution Bench of the Apex Court in Charan Lal Sahu v. Union of India, A.I.R. 1990 SC 1480 and a Division Bench in Gujarat State Road Transport Corpn. V. Ramanbhai Prabhatbhai, A.I.R. 1987 SC 1690, had followed the principle in Rylands (supra) with approval. The same principle was reiterated in Kaushnuma Begum v. New India Assurance Co. Ltd., A.I.R. 2001 SC 485."

22. The cause of the deceased's death is due to electrocution. All

injuries are ante-mortem. The death occurred due to an electric wire that

came into contact with the deceased. The A.P.Transco officials must

maintain the electricity lines without causing any injuries or harm to the

general public and protect the life of the general public passing under

them. Considering the material on record, negligence on the part of the

Electricity Board is presumed. Live broken or hanging electric wires

1868 Law Reports (3) HL 330

T.M.R., J S.A. No.323 of 2011

carrying high-tension energy are generally not found. If such a thing

happens, a prima facie inference can be drawn that there has been some

carelessness on the part of the appellants in transmitting electric energy

or adequately maintaining the transmission lines.

23. In Saleema Begum and others vs. State of J.K. and others6, the

High Court of J & K followed the Apex Court's Judgment in M. C. Mehta v.

Union of India7, has gone even beyond the principle laid down in "Rylands

v. Fletcher" by holding as follows:

"We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related element that caused the harm must be held strictly liable for causing such harm as a part of the social cost for carrying on the hazardous or inherently dangerous activity." (Emphasis supplied)

2022 LawSuit (J&K) 888

1987 AIR(SC) 1086

T.M.R., J S.A. No.323 of 2011

24. In Superintending Engineer (Elec.) Operation Circle, Medak vs

Jangiti Bhommamma8, wherein the Composite High Court of Andhra

Pradesh held as under:

"14.4 Dealing with the principle enshrined in the doctrine of res ipsa loquitur and the contention that the initial onus of proof is on the defendants and that the defence is untenable given the principle of strict liability, it is necessary to refer to the decision of this Court in Motukuri Bheemavvas case (supra).

25. The Privy Council has observed in Quebec Railway, Light Heat and

Power Company Ltd. v. Vandry and others9 the electricity company is liable

for the damage without proof that they had been negligent. Even the

defence that the cables were disrupted on account of a violent wind and

high tension current found its way through the low tension cable into the

premises of the respondents was held to be not a justifiable defence. Thus,

merely because the illegal act could be attributed to a stranger is not

enough to absolve the liability of the Board regarding the live wire lying on

the road.

26. Undoubtedly, the authorities bear a public duty to inspect and

ensure the proper maintenance of electricity lines. This verification or

inspection is anticipated to occur in areas accessible to the general public.

This Court holds the perspective that during conditions of heavy gale and

sudden wind, it was the responsibility of the defendants' department to

halt the power supply promptly. Unfortunately, they failed to take this

action. If they had been vigilant in stopping the power supply, the death of

2019(0) ACJ 2160

1920 Law Reports Appeal Cases 662

T.M.R., J S.A. No.323 of 2011

the deceased could have been prevented. While the deceased was

hastening to attend calls of nature, he could not have anticipated the

falling of a live wire. In practical terms, during a heavy gale and sudden

wind, he cannot be criticized for attending calls of nature. Under such

circumstances, noticing a live wire falling on the land would have been

difficult.

27. The reading of the documents placed before the trial Court clearly

shows that the incident occurred due to the negligence of the A.P.Transco

officials. When it contends that the incident happened due to the

deceased's negligence, the defendants have to place necessary evidence

before the trial Court, based on which it is expected to give its conclusion.

As contended, the defendants placed no material to show the incident

occurred due to the deceased's negligence.

28. After appreciation of the evidence on record, the 1st appellate Court

also observed that the defendants No.3 to 5 officials, who are power

suppliers in that area, ought to have put off the power connection when

there was a heavy gale and sudden winds; the defendants' officials did not

act immediately by putting off the current supply in that area; the amount

of compensation of Rs.1,00,000/- awarded by the trial court is just and

reasonable.

29. The findings of facts recorded by the Courts below are based on

appreciation of both oral and documentary evidence. Since they are not

perverse or misconstruction of documents or misreading evidence, this

Court is of the view that the findings recorded by the Courts below do not

T.M.R., J S.A. No.323 of 2011

brook inference of this Court under section 100 of C.P.C. No question of

law much less substantial question of law is involved in the second Appeal

and the same is liable to be dismissed.

30. Accordingly, the second Appeal is dismissed. However, no costs.

Miscellaneous petitions pending, if any, in this Appeal, shall stand

closed.

____________________________________ JUSTICE T. MALLIKARJUNA RAO

Date: 05.10.2023 SAK

T.M.R., J S.A. No.323 of 2011

THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

SECOND APPEAL NO.323 OF 2011

Date: 05.10.2023

SAK