Bombay High Court
The Superintending Engineer, ... vs Sukeshini Vijaykumar Dugane on 4 October, 2021
Bench: V. V. Kankanwadi
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
28 SECOND APPEAL NO.389 OF 2021
THE SUPERINTENDING ENGINEER, MAHARASHTRA STATE
ELECTRICITY DISTRIBUTION COMPANY LIMITED & ORS.
VERSUS
SUKESHINI VIJAYKUMAR DUGANE
...
Advocate for Appellants : Mr. Shelke Avishkar S.
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CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 4th October, 2021.
PER COURT :-
1. Heard learned Advocate for appellants.
2. The appellants are original defendant Nos.1 to 3.
Present Respondent Nos.1 to 3 are the original plaintiffs, who had
filed Regular Civil Suit No.45/2014 before learned Civil Judge,
Senior Division, Biloli for compensation. The said suit came to be
decreed. Present appellants have been directed to pay
compensation of Rs.1,50,000/- together with interest @ 6% p.a.
from the date of presentation of the suit till actual realization.
Further, original defendant Nos.4 to 6 have also been directed to
pay compensation of Rs.1,50,000/- with interest.
3. Present appellants filed Regular Civil Appeal No.
39/2017 before learned District Judge-1, Biloli, challenging the
said judgment and decree. So also original deft.Nos. 4 to 6 filed
Regular Civil Appeal No.38/2017. Both the Civil Appeals have
been heard together and the learned District Judge-1, Biloli,
dismissed both the Civil Appeals on 20.12.2019. The present
appellants are challenging the judgment and decree passed in
Regular Civil Appeal No. 39/2017 before this Court.
4. In view of the decision in the case of Ashok Rangnath
Magar Vs. Shrikant Govindrao Sangvikar - (2015) 16 SCC 763, it
is not necessary that the respondent/s should be heard before
admitting the Second Appeal. The ratio laid down in the said
decision runs thus, -
"18. In the light of the provision contained in Section
100 Civil Procedure Code and the ratio decided by
this Court, we come to the following conclusion:-
(i) On the day when the second appeal is
listed for hearing on admission if the High Court
is satisfied that no substantial question of law
is involved, it shall dismiss the second appeal
without even formulating the substantial ques-
tion of law;
(ii) In cases where the High Court after hear-
ing the appeal is satisfied that the substantial
question of law is involved, it shall formulate
that question and then the appeal shall be
heard on those substantial question of law, af-
ter giving notice and opportunity of hearing
to the respondent;
(iii) In no circumstances the High Court can
reverse the judgment of the trial court and the
first appellate court without formulating the
substantial question of law and complying with
the mandatory requirements of Section 100
Civil Procedure Code."
5. The facts of the case would reveal that plaintiff No.1
is widow of one deceased Vijaykumar s/o Maroti Dugane and
plaintiff Nos.2 and 3 are daughters of late Vijaykumar. The
plaintiffs had come with a case that entire family was dependant
on the income of deceased Vijaykumar. They have agricultural
land in Badur, Tq. Biloli, District Nanded. On the day of incident,
plaintiff No.1 had gone to her parent's house at Nanded and she
received information about death of her husband due to
electrocution. She went to Badur and got entire history. She
came to know that deceased Vijaykumar went to pasture in the
agricultural land of deft.Nos.4 to 6 on 27.9.2004. There was a
live electric fencing erected by deft.Nos.4 to 6 to their land and
due to coming in contact with that fencing, Vijaykumar expired.
The fact was reported to the police and an offence, vide CR No.
68 of 2014 was registered. It is averred that during the course
of investigation, it was transpired that deft.Nos.4 to 6 had
unauthorizedly taken wire/electric connection from the main
supply from their house to the fencing, which they had erected to
their field. It is then also stated that when deft.Nos.4 to 6 came
to know about the same, they had removed the dead body of
Vijaykumar and place it far away from the spot. It was alleged
that the incident had occurred due to the negligence on the part
of deft.Nos.1 to 3 in not conducting periodical inspection and
maintaining the electric line properly. The allegations are also
made that death of Vijaykumar has been caused due to the
negligence of deft.Nos. 4 to 6 and then compensation was
claimed at Rs. 3,00,000/- with interest.
6. Defendant Nos.1 to 3, by filing their written
statement, denied all the allegations. So also, it was stated that
when the offence was registered against deft.Nos.4 to 6 for
taking unauthorized electricity connection, the officers of the
Electricity Board were not responsible for the same. Deft.Nos. 4
to 6 also filed their written statement of their denial.
7. As aforesaid, the Trial Court has granted
compensation to the plaintiffs and deft.Nos.1 to 3 on one part
and deft.Nos. 4 to 6 on other part have been directed to pay the
amount of Rs.3,00,000/- collectively with interest.
8. It is to be noted that the finding to Issue No.1 by the
Trial Court is that the plaintiffs have proved that the deft.Nos. 4
to 6 had illegally supplied electricity to the barbed wire fencing on
the field in their possession. It is also to be noted that the
finding to Issue No.2 has been given that the plaintiffs have
proved that the deft.Nos.1 to 3 had illegally supplied electricity to
deft.Nos.4 to 6 though having knowledge that deft.Nos.4 to 6
had illegally electrified the barbed wire fencing to their field. Then
Issue No.3 has been answered thus, - The plaintiffs have proved
that because of the action or inaction on the part of deft.Nos. 1
to 3, deceased Vijaykumar got electrocuted. The learned first
Appellate Court also gave almost similar findings.
9. When it is admitted that deft.Nos.4 to 6 had taken
unauthorized electricity connection and joined it with the fencing
which the deft.Nos. 4 to 6 had erected, then question is, whether
deft.Nos.1 to 3 can be held liable ? If we consider the cross-
examination of PW 1- Sukeshini Vijaykumar Dugane, it appears
that she has admitted that her husband was having knowledge
that defendant - Pundlik has taken unauthorized connection and
live wire lying on the ground of which supply was given to the
fencing. It also appears that she has improved the story. She
has admitted that in the police report, she has not made
allegations against deft.Nos.1 to 3. Further, it appears that
deft.No.2 had examined the Investigating Officer, who had
carried out the investigation and it has come on record that after
his entire investigation, charge sheet has been filed against
accused - Govind Pundlik Rakhe, his brother - Sambhaji Pundlik
Rakhe and relative Laxman Sambhaji Ibitwar. On behalf of
deft.Nos.1 to 3, it appears that Executive Engineer was
examined, who has stated that deft.Nos. 4 to 6 have committed
theft of electricity and it was unauthorized connection and,
therefore, deft.Nos.1 to 3 are not liable to pay any
compensation.
10. It appears that plaintiffs' main contention was about
the negligence in discharging the duties by the employees of
appellant Nos.1 to 3, as they had not detected the said
unauthorized connection and have not taken any action. Taking
into consideration the evidence that is led and when it is
admitted that the connection to the fence of deft.Nos. 4 to 6 was
unauthorized, then whether the present appellants could be held
liable, is a question and, therefore, substantial questions of law
are arising in this case, as contemplated under Section 100 of
CPC.
11. The Second Appeal stands admitted. Following are
the substantial questions of law, -
i) Whether both the Courts below were justified in
holding deft.Nos.1 to 3 liable to pay compensation to
the plaintiffs when the plaintiffs themselves were
contending that death of Vijaykumar was due to
illegal electric connection and live wire supplied to the
fencing of the field of deft.Nos.4 to 6 ?
ii) Whether the plaintiffs had brought sufficient
evidence on record to show that there was dereliction
of duty on the part of the employees of deft.Nos. 1
and 2 in maintaining, inspecting the connection and
taking prompt action in respect of the illegal
connection ?
iii) Whether interference is required ?
12. Issue notice to respondents, returnable on 6 th
December, 2021.
13. Call R and P.
(SMT. VIBHA KANKANWADI)
JUDGE
BDV
