Smt. Ayyamma W/O Late Shivappa And ... vs Gescom Gulbarga And Ors
2022 Latest Caselaw 3970 Kant

             IN THE HIGH COURT OF KARNATAKA
                    KALABURAGI BENCH

         DATED THIS THE 09TH DAY OF MARCH 2022

                          BEFORE

         THE HON'BLE MR. JUSTICE ASHOK S. KINAGI

                 R. S. A. NO.200269/2016

BETWEEN:

1.     SMT. AYYAMMA W/O LATE SHIVAPPA
       AGE: 62 YEARS, OCC: AGRICULTURE,

2.     SRI. RAMANNA S/O LATE SHIVAPPA,
       AGE: 38 YEARS, OCC: NIL,

3.     HEMAREDDY D/O LATE SHIVAPPA,
       AGE: 21 YEARS, OCC: NIL,

       ALL ARE R/O DUGANUR VILLAGE,
       TQ & DIST: RAICHUR 584 101.
                                           ...APPELLANTS
(BY SRI. BASAVARAJ R MATH,ADVOCATE)


AND:

1.     GESCOM GULBARGA ,
       REPRESENTED BY ITS
       MANAGING DIRECTOR,
       GULBARGA-585 102.

2.     THE EXECUTIVE ENGINEER (ELEC)
       O & M DIVISION, GESCOM,
       RAICHUR 584 101.
                               2



3.   THE JUNIOR ENGINEER / SECTION OFFICER,
     ELECTRICITY, O & M SUB-DIVISION,
     GESCOM, GILLESUGUR,
     TQ: DIST: RAICHUR 584 101.
                                               ...RESPONDENT'S
(BY SRI.RAVINDRA REDDY, ADVOCATE)

      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CIVIL PROCEDURE CODE, PRAYING TO
ALLOW THE ABOVE SECOND APPEAL AND BY SET ASIDE THE
IMPUGNED JUDGMENT AND DECREE DATED 28.07.2015
PASSED BY THE PRL. SENIOR CIVIL JUDGE & CJM AT RAICHUR
IN O.S.NO.201/2013 AND ALSO SET ASIDE THE JUDGMENT AND
DECREE DATED 14.12.2015 PASSED BY THE PRL. DISTRICT &
SESSIONS JUDGE, RAICHUR IN R.A.NO.28/2015 AND PLEASED
TO ALLOW THE R.S.A. AND ETC,

     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:-

                         JUDGMENT

This appeal is filed challenging the judgment and

decree dated 14.12.2015 passed in R.A.No.28/2015 by the

Prl. District and Sessions Judge, Raichur and the judgment

and decree dated 28.07.2015 passed in O.S.No.201/2013 by

the Principal Senior Civil Judge and CJM Raichur.

2. For the sake of convenience, parties are referred to

as per their ranking before the Trial Court. Appellants are

plaintiffs and respondents are the defendants before the

Trial Court.

3. Plaintiff filed a suit for compensation/damages of

Rs.5,35,000/- with interest from the date of incident till the

date of realization and costs.

4. Facts giving rise to the filing of the appeal briefly

stated are as under:

That one Shivappa S/o: Bhimayya, aged about 65

years, died on 01.07.2012 at about 4.00 p.m., at cattle shed

belonging to him Village Dugnoor, Tq: Raichur, due to

electocution. An electrical pole is there near the cattle shed.

On 01.07.2012, there was rainfall in the said village and

electricity leakage was there, it was resulted in electricity

earthing and electricity was passed to a iron pole of the

cattle shed. One of the bullock was electrocuted, noticing the

same deceased tried to rescue the bullock and he comes in

contact with the electricity pole and resulted in death of

bullock and Shivappa. The defendant Nos.1 to 3 were

responsible to maintain electricity supply properly. Due to

negligence on the part of defendants, electricity was flown to

the iron pole of the cattle shed. Plaintiffs are the legal

representatives of deceased Shivappa filed a suit for

compensation/damages.

4.1. Defendant No.3 filed written statement and the

same was adopted by defendant Nos.1 and 2. Defendant

No.3 denies rainfall on 01.07.2012 and leakage from the

electricity flow to the iron pole of the cattle shed of plaintiff

due to electricity leakage and earthing, Shivappa and Bullock

died. It is contended that no electricity connection was

obtained either to the house of cattle shed of deceased or to

his house. Shivappa used to take the electricity connection

illegally by hanging damaged wire to the main line without

consent and permission of defendants and thereby he took

electricity supply to the cattle shed through the damaged

wire. A damaged wire used by the deceased came in contact

with an iron pole of cattle shed, the incident was taken

place. The incident was self invited by the deceased and

there is no negligence on the part of the defendants. Hence,

prayed to dismiss the suit.

4.2. The Trial Court, on the basis of pleadings of

parties, framed the following issues:

1. Whether the plaintiffs prove that the husband of the first plaintiff by name Shivappa died due to electrocution on 1.7.2012 at about 4.00 p.m. near the cattle shed of the plaintiff at Duganoor village of Raichur Tq. on account of negligence on the part of the defendants in maintaining the electric pole?

2. Whether the plaintiffs are entitle for compensation as prayed for?

3. Whether the defendants prove that deceased Shivappa was illegally getting the electricity to his house by hanging damaged wire to the main electricity line without permission of the defendants and therefore the accident was occurred due to negligence on the part of the deceased Shivappa?

4. Whether the suit barred by limitation?

5. Whether the plaintiffs are entitle for the suit relief's?

6. What order or decree?

4.3. In order to prove the case, plaintiff No.1 is

examined PW.1 and one witness as PW.2 and got marked

Ex.P1 to P11. On the other hand, defendant No.2 is

examined as DW-1 and no documents are marked. The Trial

Court, after recording evidence and considering the material

on record, held that the plaintiffs have failed to prove that

the husband of the first plaintiff by name Shivappa died due

to electrocution on 1.7.2012 at about 4.00 p.m. near the

cattle shed of the plaintiff at Duganoor village of Raichur Tq.

on account of negligence on the part of the defendants in

maintaining the electric pole and further recorded a finding

that plaintiffs are not entitled for compensation as prayed for

and further recorded a finding that the defendants proved

that deceased Shivappa was taken the electricity connection

illegally to his house by hanging damaged wire to the main

electricity line without permission of the defendants and

therefore the accident was occurred due to negligence on

the part of the deceased Shivappa and further recorded a

finding that the defendants have failed to prove that the suit

is barred by limitation and further held that the plaintiffs are

not entitled for the suit relief and consequently dismissed

the suit of the plaintiffs.

4.4. The plaintiffs aggrieved by the judgment and

decree passed by the Trial Court, filed an appeal in

R.A.No.28/2015. The First Appellate Court framed the

following points for consideration:

1. Whether the plaintiffs have proved that deceased Shivappa died due to electrocution on 01.07.2012 at 04.00 p.m. due to negligent act on the part of the defendants in maintaining the electric pole and live electric pole?

2. Whether the defendants have proved that deceased had illegally taken electricity connection to his house by hanging damaged wire to the main electricity line without their permission and therefore, negligence was on the part of the deceased?

3. Whether the judgment and decree under appeal is illegal, perverse and against the material on record and law and as such same is liable to be set aside?

4. What order?

4.5. The First Appellate Court, after re-appreciation of

the evidence on record, dismissed the appeal filed by the

plaintiffs. Hence the plaintiff has filed the instant appeal.

5. Heard learned counsel for the plaintiffs.

6. Learned counsel for the plaintiffs submits that the

plaintiffs have clearly established the case before the trial

Court by leading oral and documentary evidence i.e. Exs.P3

to P6. The Courts below have not properly appreciated the

material placed on record. He further submits that PW.2 who

is an eye-witness has deposed in his evidence that there was

leakage of electricity in the iron poles, which is nearby cattle

shed of plaintiffs. Hence, he submits both the Courts below

have committed an error in passing the impugned judgment

and decree.

7. Perused the records and considered the

submissions made by learned counsel for the parties.

8. It is the case of the plaintiffs that on 01.07.2012

at about 04.00 p.m., there was raining at Dugnoor village of

Raichur taluq and leakage of electricity in the cattle shed of

deceased Shivappa from the electric poles situated near the

cattle shed. Firstly, bullock was electrocuted, noticing the

same the deceased tried to rescue the bullock. At that time,

he was electrocuted which resulted in the death of bullock

and Shivappa. The defendants are the authorities, were

responsible to maintain electricity supply. They were

negligent and due to their negligence the deceased Shivappa

received electric shock and died. The plaintiffs are the legal

representatives of deceased Shivappa sought for damages.

In support the case, the plaintiff No.1 was examined as

PW.1, she has reiterated the averments made in the plaint in

the examination in chief and produced Exs.P1 to P11 to

establish that the death was occurred due to negligence on

the part of the defendants in maintaining the electric poles.

The police have registered UDR case in respect of death of

Shivappa. From perusal of Ex.P2, there is no dispute about

the death of deceased Shivappa is due to electrocution and

the incident had taken place inside the cattle shed of

deceased. It is not the case of plaintiffs that the incident has

taken place in the public place or on the road. Due to fall of

electric wire the incident has taken place inside the cattle

shed of deceased and plaintiffs have failed to establish that

the electric pole is situated by the side of cattle shed.

Further it is the case of defendants that the deceased

Shivappa has not taken the electricity connection to his

house and cattle shed, but he was using the electricity by

using the damaged wire by hanging on the main line. It is

the case of the plaintiffs that there was leakage of electricity

from the electric pole. In order to establish the said fact, the

plaintiffs have not produced any records and further no

complaint was registered against the officials of defendants

for causing the death of deceased due to their negligence.

The plaintiffs filed a suit for damages, it is for the plaintiffs

to establish that the death of deceased Shivappa was due to

negligent act on the part of the defendants in maintaining

electric pole and live electric wire. The plaintiffs except

producing Exs.P1 to P11, have not produced any records and

the records produced by the plaintiffs does not disclose the

negligence on the part of the defendants to maintain the

electricity supply in a proper manner. The Courts below have

concurrently recorded a finding of facts against the plaintiffs.

The scope of interference under Section 100 of CPC is very

limited. The High Court has no jurisdiction to interfere with

the finding of facts arrived by the Courts below. The High

Court can interfere only if it involves a substantial question

of law. The said view is reiterated by the Hon'ble Apex Court

in the case of Commissioner Hindu Religious &

Charitable Endowments Vs. P.Shanmuga, reported in

(2005) 9 SCC 232, has held that High Court has no

jurisdiction as second appeal to interfere with the finding of

facts. Both the Courts have rightly passed the impugned

judgment and decree, I do not find any substantial question

of law involved in the present appeal.

9. Accordingly, the appeal is dismissed.

SD/-

JUDGE

msr