Judgment:
V.K. Agarwal, J.
1. This is an appeal by the appellants/defendants against whom a decree has been granted to pay damages of Rs. 19,200/- on account of death by electrocution of Tulsibai wife of respondent/plaintiff No. I and mother of respondent/plaintiffs Nos. 2 and 3.
2. Undisputably the respondent/plaintiff No. 1 Bhajan Gond and his wife deceased Tulsibai had gone to village Bauchar, where the incident took place, for earning their livelihood. Respondents/plaintiffs Nos. 2 and 3 are minor children of Bhajan and deceasedTulsibai. On 1-5-92 Tulsibai and Jankibai had gone to the field of Sobran Singh for answering call of nature. Dhanwantibai, another woman who also died of electrocution was lying there. Deceased Tulsibai in order to help her went towards her but herself got electrocuted. The incident occurred due to broken live electric wire which had fallen down in the field. Tulsibai died almost instantaneously.
3. The allegations of the plaintiffs/respondents were that the above accident took place on account of negligence and carelessness on the part of employees of Madhya Pradesh Electricity Board. It was alleged that old wires were used by the defendants/appellants and no guarding was provided in the electricity line to prevent such an accident. Total amount o Rs. 5,16,0007- was claimed towards damages by the plaintiff/respondents, on account of death of Tulsibai, in the above incident.
4. The defendant/appellants resisted the above claim. They denied that old wires were used in line or that there was no guarding on the line. They denied that there was any negligence or carelessness on their part. According to them, due to stormy weather-and wind on the previous night the electrical wires touched each other and melted and as a result one of the wires fell on the dry leaves. The deceased had gone to collect mango fruits below the mango tree where the live wire was lying and she was not cautious enough not to touch the electric wire. Therefore the defendant/appellants alleged that the above accident occurred on account of negligence and carelessness on the part of deceased. They therefore denied their liability to pay any damages or compensation to the plaintiff/respondents.
5. The learned trial Court has found that the wires fell down as there was no guarding and as the wiring was faulty and old. Thus, negligence and carelessness on the part of appellants/defendants were found proved. It was held that there was no negligence on the part of the deceased. Accordingly, compensation amount of Rs. 19,200/- with future interest was awarded.
6. Learned counsel for appellants in this appeal has urged that the finding that the accident occurred due to negligence and carelessness on the part of defendants/appellants is not supported by the evidence on record and therefore cannot be sustained. It has further been urged that in fact the accident took place on account of the wind and storm, which can only be termed as an 'Act of God', for which the appellants/defendants could not have been held responsible. Therefore, the defendants/appellants are not liable to pay damages and the suit of plaintiffs/respondents should have been dismissed.
7. The learned counsel for respondents/plaintiffs has urged that, had appellants/defendants taken sufficient care to provide proper guarding around the wire, the wire would have not fallen down and it would have got earthed. Thus, the accident would have been averted. The learned counsel for the plaintiffs/respondents has supported the findings and aware of damages granted by the impugned judgment.
8. In view of rival contentions, as above, the main question that arises for consideration, is to whether there was negligence or carelessness on the part of the defendants/appellants, in install-ing and maintaining the electrical line?
9. Undisputably the Madhya Pradesh Electricity Board represented by the defendants/appellants, is the statutory authority responsible for transmitting electric energy, under the Electricity Act, 1910 and Electricity Supply Act, 1948. The defendants/appellants were therefore required to take all reasonable care and to observe and implement all known means to keep the supply of electricity harmless. Further, in view of the admitted position that the death of Tulsibai occurred on account of electrocution by a live electric wire, which had broken and had fallen in the field of Sobran Singh; it was the burden of the defendants/appellants to prove that there was no negligence on their part. Further, in view of the principle of 'res ipsa loquitur' also, it was not incumbent on the plaintiffs/respondents to prove omission or negligence on the part of the defendants/appellants.
10. Reference in the above connection may be made to the case of Manohar Lal Sobha Ram Gupta v. Madhya Pradesh Electricity Board, 1975 Ace CJ 494 : (AIR 1976 Madh Pra 38), wherein the Division Bench of this Court has observed (at p. 39 of AIR):
'The defendant, however, is still liable for negligence. It is negligence to omit to use all reasonable known means to keep the electricity harmless; (see Clerk and Lindsel) on Torts, 13th edition, paragraph 1536). The burden of proving that there was no negligence, is on the defendant and there is no obligation on the plaintiff to prove negligence. Further, the standard of care required is a high one owing to the dangerous nature of electricity; (see Charlesworth on Negligence, 5th edition, p. 531). If the defendant produces no material and offers no evidence to negative negligence, will be presumed. This result will also follow on the principle of res ipsa loquitur. Live broken electric wires carrying high tension energy are generally not found in a public place, street or road, therefore, if such a thing happens a prima facie inference can be drawn that there has been some carelessness on the part of the defendant in transmitting electric energy or in properly maintaining the transmission lines.'
11. In similar circumstances a Division Bench of the Orissa High Court has in the ease of Padma Behari Lal v. Orissa State Electricity Board, AIR 1992 Orissa 68 observed that, the maintenance of electrical poles carrying the electric wires is the duty of Electricity Board. Any live wire getting detached from the pole is likely to cause loss of life. The responsibility of the Electricity Board is, therefore, all the moregreater for its maintenance by replacement of wire, checking of the points where the wire has been joined or fixed to the pole and to take all precautions to use materials which would stand a stormy weather. It was held in that case that, as the live wire got detached from the pole and was hanging over the road makes the maxim 'res ipsa loquitur' applicable and in such event, it is not for the petitioner to prove any specific act or omission amounting to negligence of the Electricity Board. Reference in this connection may also be made to the cases of Asa Ram v. M.C.D., AIR 1995 Delhi 164 and Smt. Angoori Devi v. Municipal Corporation of Delhi, AIR 1988 Delhi 305.
12. Now adverting to the evidence in the case it may be noticed that S. R. Sreshta (D.W. I) Junior Engineer in the Madhya Pradesh Electricity Board', has admitted in his cross-examination that the guarding ought to be provided to the wires of the electric line so that, when the wires break down they may touch the guarding and get earthed so that the person touching the wire does not get electrocuted. He has also admitted that, there was no guarding in the electric line from which the electric wire had broken down. Clearly therefore, from the above statement it is obvious, that there was absence of necessary precaution on the part of M.P.E.B. in putting the guarding in the line carrying the electric supply. The plaintiffs in this connection have also examined Dr. Virendra Singh Patel (P.W. 3), who has stated that the line was old and that there was no guarding provided and that there was a frequent sparking therein. This indicates that necessary precaution was not taken to avoid electrocution, in case the wire fell down after breaking.
13. Though S. R. Sreshta (D.W. I) has tried to explain the incident by saying that there was a mango tree near the electric line at a distance of about 3 fccts, and on account of storm the electrical wires struck the tree and broke down. But jt may be noted in the above connection that firstly, it was incumbent for the M.P.E.B. to see that such eventuality docs not occur and they should have taken care to chop the branches of the mango tree and secondly, if the electric line was at a distance of 3 feet from the mango tree and yet the wire scrapped against its branches and broke down, it clearly indicates that the wiring was loose, whieh ought to have been taken care and mended by the defendants/appellants. Obviously, the defend-ants/appellants did not lake proper care and failed to put wiring in good shape and were at fault in not checking it from time to time. Thus, the defendants/appellants failed to observe neces-. sary precautions and failed to take care so as to prevent the occurrence of such an accident. This result will also follow on the principles of 'res ipsa loquitur' as live broken wires carrying electric supply was found broken and lying in the field. Therefore an inference that there has been carelessness on the part of the defendant in transmitting electric energy and not properly maintaining the transmission line will have to be drawn. The above inference is further reinforced by the admission by Sub-Engineer S. R. Sreshta (D.W. I) that the guarding was not put, as has been noticed above.
14. In the circumstances, the finding recorded by the learned trial Court that the accident occurred on account of negligence and carelessness of the defendants/appellants, is based on proper appreciation of evidence. Obviously, the appellant/defendants were liable to pay damages for the death of Tulsibai. The quantum of damages as granted by the learned trial Court by the impugned judgment has not been challenged and moreover, it by no stretch of imagination can be termed excessive and in no case deserves any interference.
15. Accordingly, this appeal has no merit and is hereby dismissed. The defendants/appellants shall pay costs of the appeal to the respondents/ plaintiffs. Counsel's fee; Rs. 1,000/- (Rupees one thousand), if certified.