Karnataka High Court
The Managing Director Hubli ... vs Fakirappa S/O Dyamappa Malagali on 22 September, 2022
Bench: H.P.Sandesh
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RFA No. 1904 of 2006
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR FIRST APPEAL NO. 1904 OF 2006 (RES)
BETWEEN:
1. THE MANAGING DIRECTOR
HUBLI ELECTRIC SUPPLY
CO. LTD., (HESCOM)
NAVANAGAR, HUBLI
DHARWAD DISTRICT.
2. THE EXECUTIVE ENGINEER
HUBLI ELECTRIC SUPPLY
CO. LTD. (HESCOM)
DIVISIONAL OFFICE
BAILHONGAL
BELGAUM DISTRICT.
3. THE EXECUTIVE ENGINEER
HUBLI ELECTRIC SUPPLY
CO LTD.,(HESCOM)
DHARWAD ROAD
SAUNDATTI, BELGAUM DISTRICT
...APPELLANTS
(BY SRI. B.S. KAMATE, ADVOCATE)
AND:
1. FAKIRAPPA
S/O. DYAMAPPA MALAGALI
SINCE DECEASED BY HIS LRS
1(a) SMT. MAHADEVI
W/O. BASAPPA CHIGARI
AGE:40 YEARS, OCC:HOUSEHOLD
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RFA No. 1904 of 2006
R/O.GORBAL, TAL:SAUNDATTI,
DISTRICT-BELAGAVI-583 131.
1(b) NINGAPPA
S/O. FAKIRAPPA MALAGALI
AGE:24 YEARS, OCC:HOUSEHOLD
R/O.GORBAL, TAL:SAUNDATTI,
DISTRICT-BELAGAVI-583 131.
2. SMT. DURGAWWA
W/O. FAKIRAPPA MALAGALI
AGE: 55 YEARS
R/AT GORBAL VILLAGE
TQ: SAUNDATTI
DIST: BELGAUM.
3. THE DEPUTY COMMISSIONER
BELGAUM
BELGAUM DISTRICT.
4. MAHADEVAPPA CHINNAPPA SOTAPPANAVAR
AGE: 75 YEARS
R/O. GORBAL VILLAGE
TQ: SAUNDATTI TALUK
DIST: BELGAUM.
5. PUNDALIK
S/O. FAKIRAPPA PUJARI
AGE: 35 YEARS
R/O. GORABAL VILLAGE
TQ: SAUNDATTI
DIST: BELGAUM.
...RESPONDENTS
(BY SRI. SANTOSH B MALAGOUDAR &
SRI. B.V. MALAGOUDAR, ADVOCATES FOR R2;
SRI. RAMESH CHIGARI, HCGP FOR R3;
SRI B.V. SOMAPUR, ADVOCATE FOR R4 & R5;
R1-DECEASED, R1(a) AND R1(b) ARE SERVED)
THIS RFA IS FILED U/S. 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT. 18.04.2006 PASSED IN
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RFA No. 1904 of 2006
O.S.NO.66/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)
SAUNDATTI, DECREEING THE SUIT FOR DAMAGES.
THIS APPEAL COMING ON FOR FINAL HEARING THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellants and
learned counsel for the respondents. The counsel
appearing for the respondent No.3 is also present and
submits that, respondent No.3 has been made as formal
party to the proceedings.
2. The parties are referred to as per their rankings
before the Trial Court for the purpose of brevity and
convenience of the Court.
3. It is the case of the plaintiff Nos.1 and 2 that
they are the permanent residents of Gorabal Village in
Saundatti and they have got a son by name Maruthi and
he was electrocuted in the land belonging to the defendant
No.5 in the fencing of land of defendant No.5. Hence,
RFA No. 1904 of 2006
made the claim against the defendants before the Trial
Court .
4. It is also their contention that the deceased
Maruthi was hale and healthy and was earning a sum of
Rs.2,00,000/- per annum by doing agriculture and he was
aged about 20 years. It is contended that the defendant
Nos.2 to 4 are directly liable to pay damages to the
plaintiffs due to the death of their son Maruthi on account
of negligence and irresponsible act of defendant No.2 in
causing the incident.
5. In response to the suit summons, the
defendants appeared through their counsel and defendant
No.4 filed the written statement by denying the allegations
made in the plaint para Nos.1 to 4 as false, baseless and
imaginary and suit itself is not maintainable. It is also
contended that taking undue advantage of the situation in
collusion with some of the village elders, filed the
complaint and created false evidence and got issued the
legal notice to the defendants. After receiving message on
RFA No. 1904 of 2006
08.06.2004, the lineman M.P. Hosakote visited the spot
and he noticed removal of Dolo's and accordingly informed
the higher officials. The father of the deceased Maruthi by
name Fakirappa given in writing which was signed by two
persons of the locality to the Deputy Electrical Inspector,
Belgaum, who investigated the incident and admitted the
fact that on ill-fated day, due to illegal connection of
electricity to the fence of the land of Mahadevappa, the
incident has taken place. The land owner has not filed any
written statement.
6. Based on the pleadings and written statement
filed by the defendant No.4, the Trial Court framed the
following issues:
1. Do the plaintiffs prove that on 08.06.2004
at about 9.00 a.m., the deceased Maruthi
electrocuted and died in the boundary of
land bearing Sy.No.143/3 of defendant
No.5?
2. Do the plaintiffs further prove that deceased
Maruthi died due to irresponsible act of
defendant Nos.2 to 4?
RFA No. 1904 of 2006
3. Do the plaintiffs further prove that they are
entitled for damages of Rs.2,50,000/- on
account of death of deceased Maruthi?
4. Do the defendant No.4 proves that the
incident took place, on account of illegal
connection taken by defendant No.5-
Mahadevappa to fence in order to protect
crops as alleged in para-9 of the written
statement?
5. What order or decree?
7. The plaintiff No.1, in order to prove the case got
himself examined as P.W.1 and got marked the documents
as Exs.P1 to P10. On the other hand, one Chandrashekar,
AEE of defendant No.4 got himself examined as D.W.1 and
got marked the documents as Exs.D1 to D8. The trial
Court after considering the oral and documentary evidence
answered issue Nos.1 to 3 as affirmative and answered
issue No.4 as negative and granted damages of
Rs.2,50,000/- as prayed in the plaint along with 6%
RFA No. 1904 of 2006
interest. Hence, the present appeal is filed by the
defendant Nos.2 to 4 before this Court.
8. The main contention in this appeal is that, the
trial Court has committed an error in fastening the liability
on the appellants/defendant Nos.2 to 4 and it is the
specific case of the defendants before the trial Court that
the defendant No.5 took the illegal connection to the
fencing and also counsel would vehemently contend that,
it is not in dispute that the victim was electrocuted in
connection with the fencing of the land of the defendant
No.5 and there is no any negligence on the part of the
defendants and it is only on account of the negligence on
the part of the owner of the land and the same has not
been considered by the trial Court and hence, it requires
interference of this Court.
9. Per contra, the learned counsel appearing for
the respondent/plaintiffs that, it is not in dispute that, the
deceased died on account of the electrocution and the
allegation is made against the defendants that there was a
RFA No. 1904 of 2006
electric connection to the fencing and the incident was
taken place on account of the electrocution and hence, it is
categorically stated that on account of negligence on the
part of the defendant Nos.2 to 4, an incident was taken
place and the trial Court also considered the said fact into
consideration and decreed the suit.
10. Having heard the respective counsel and also
on perusal of the material available on record and also the
oral and documentary evidence, the points that would
arise for consideration of this Court are:
(i) Whether the trial Court has committed an error
in fastening the liability on the defendant Nos.2
to 4 instead of defendant No.5 and whether it
requires interference of this Court?
(ii) What order?
11. Answer to point No.1: The plaintiffs in order
to substantiate their case, examined one witness as P.W.1
and the P.W.1 was also subjected to cross-examination
and in the affidavit reiterated the contents of the plaint
averments. In the cross-examination of the P.W.1, it is
elicited that the Trip Circuit (TC) of the electricity power is
RFA No. 1904 of 2006
located in the field of Jidagannavar and from there
electricity connection is given to the land of Satappanavar
from the T.C. which was located in the field of
Jidagannavar. It is also elicited that the electricity was
installed from the land of Satappanavar and he does not
no, since how long the Linemen were supplying the said
electricity and when the inspection was conducted,
defendant No.5 was also present at the spot and also
defendant No.5 has given the statement before the
concerned authority and he does not know whether the
defendant No.5 has admitted about the unauthorizedly
taking the electricity from the land of Jidagannavar. It is
elicited that, he might have signed on the statement
recorded by the Deputy Electrical Inspector. On the other
hand, the defendants have also examined one witness as
D.W.1 and got marked Ex.D.1 to D.7. In the cross-
examination admitted that, they have sanctioned the
power supply to defendant No.5 by accepting his
application, but it is their case that, the unauthorized
connection was taken to the fencing and also admitted
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RFA No. 1904 of 2006
that, Lineman has not informed about the supply of the
electricity to the fence of land of defendant No.5, but
volunteers that defendant No.5 himself has given illegal
connection to the fence of his landed property without
permission from the Office and the same came to know
about the unauthorized connection only after the incident
and also it is admitted that, while they were not aware of
any action is taken for unauthorized power connection
against the defendant No.5. It is suggested that, the
incident took place at their negligence and their fault and
they are liable to pay damages to the plaintiff and the
same is denied.
12. Having heard the respective counsel and also
the grounds urged in the appeal and also considering both
oral and documentary evidence available on record, it is
not in dispute that, incident was taken place in the land
belongs to the defendant No.5 and also it is not in dispute
that, the electrocution was on account of the connection
taken in respect of the fencing. In order to substantiate
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RFA No. 1904 of 2006
the contention that, even for fencing defendant No.5 has
taken connection he has not produced any material before
the Court and even not filed the written statement before
the trial Court and in the cross-examination of D.W.1, it is
suggested that, they have given the connection to the
fencing also, but the same is denied by D.W.1. When the
incident was taken place in the land of defendant No.5,
and when the defendant No.5 has not placed any material
before the Court having taken the connection and power
sanction for fencing the trial Court ought not to have
fastened the liability on the defendant Nos.2 to 4. It is the
definite case of defendant Nos.2 to 4 that unauthorized
connection was taken and connection was given to the
fencing and when such defence is taken and defendant
No.5 who is the owner of the land who got connected
electricity to the fencing also, not placed any material and
not contested the matter ought to have decreed the suit
against defendant No.5. If the defendant Nos.2 to 4 have
given the connection as per law by giving any power and if
any negligence on the part of defendant Nos.2 to 4, then
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RFA No. 1904 of 2006
the trial Court would have been right in fastening the
liability on the defendant Nos.2 to 4 and that is not the
case and no such material is placed before the Court and
when such being the case, the trial court has committed
an error in fastening the liability on the defendant Nos.2 to
4 instead of defendant No.5 and hence, I answer point
No.1 as affirmative. It is learnt that, when this appeal is
filed the amount has been deposited by the appellants
herein and the counsel appearing fro the respondent also
submits that the amount has already been drawn and paid
in favour of the plaintiff and if such being the case,
appellants/defendant Nos.2 to 4 are given liberty to
recover the same from the defendant No.5.
13. In view of the discussions made above, I pass
the following:
ORDER
The appeal is allowed.
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RFA No. 1904 of 2006
The impugned Judgment and decree is modified by
fastening the liability on the defendant No.5 by
exonerating the liability of defendant Nos.2 to 4.
The defendant Nos.2 to 4/appellants are given liberty
to recover the amount which has already been satisfied,
from the defendant No.5. If the same is not drawn, the
appellants can withdraw the amount on proper
identification and then the plaintiffs have to recover the
same from the defendant No.5.
Sd/-
JUDGE
ST,SVH
