L.N. Chhangani, J.
1. This is plaintiffs' first appeal against Judgment and decree of the Senior Civil Judge, Banswara, dated 19-12-62, dismissing their suit for, the recovery of Rs. 50000/- from the defendant respondents on account of compensation. The suit has been brought under the provisions of the Fatal Accident Act in consequence of the death of Surajmal husband of the plaintiff-appellant Smt. Pushpaben and father of the plaintiff-appellants Rajesh, Ranjnakumari and Rakesh, as a result of an electric shock received by Surajmal on account of the negligence of M/s Banswara Electric Supply Company and its partners.
2. In the plaint filed by the plaintiffs in the court of the Senior Civil Judge on 21-8-60, the plaintiffs set out their case as under
That the defendants own at Banswara the Electric Power House and they carry on business in the name and style of M/s Banswara Electric Supply Company.' The plaintiffs alleged in general that 'the defendants were careless and negligent in carrying out their duties and responsibilities in respect of installing the line, supplying electric power and carrying out the various obligations imposed by Law, resulting in irregular supply of current, accidents, stoppage of power and giving rise to many complaints from the Government and the public'. After making such allegations, the plaintiffs stated there specific case relating to the incident giving rise to the suit, as follows:
That in Banswara the brother of the deceased owns a house at Loharwada Surajpol. At that place the electric wires were kept and continued at such low height by the defendants that the lines were not kept having due regard to the safety of the inhabitants. The brother of the deceased drew the attention of the defendants by sending a petition on 24.8.1959 for removal of these supply electric wires which were over hanging upon the house. The defendants or their servants did not comply and they also did not take measures of safety which they were bound to take under the Act and they acted carelessly, negligently and in contravention of law caused the death of the deceased on 27-8-1959.' Elaborating the facts in this connection, it was stated, 'that the deceased Surajmal s/o Jeychand Mehta had gone to his brother's house on 27-8-1959 and when he was near the gallary, the defendant's company switched on to supply the electric energy prior to 11 A.M. as a result of which the deceased got the shock of the current from over-head supply line and the expired on that account'. It was further stated in this connection that 'the timings fixed by the defendants company for the purpose of supplying electric energy and known to the public was 11 A.M. and despite this, the defendants company negligently & carelessly switched on the supply prior to 11.00 A.M. and caused the death of the deceased.' It was further averred that' the defendant were directly responsible for the death of the deceased, and as such, they are bound to compensate the plaintiffs and liable to pay them the damages. Claiming Rs. 50,000/- as compensation, the plaintiffs stated that 'the deceased was a promising young man of 32 years of age and had studied upto matric and was in receipt of a salary of Rs. 400/-P. M. and possessed high ranking business ability and in due course his income would have gone to Rs. 1.000/-P. M. The plaintiffs were solely dependent on the earnings, care and attention of the deceased and he was spending Rs. 3500/- yearly on their maintenance and that this amount would have gone on increasing every year as a result of his increase in salary.' On 5 2-60 ttia plaintiffs served notice upon the defendants demanding Rs. 50,000/- but the defendants refused to pay the amounts and gave evasive reply to the notice and hence, the plaintiffs had to file the suit.
3. The defendants, in their joint written statement, controverted all the allegations of negligence and denied their liability They denied the allegations of generel negligence on their part They also denied that Surajrml's death was caused on account of any electric shock under the circumstances narrated in the plaint. They asserted that the height of the wire and electric pole near the house of the brother of the deceased was 50ft. and strictly in accordance with the requirements of the Electricity Act and the Rules framed thereunder. They denied having received any petition on 24-8-59 from Hiralal. It was stated that Hiralal brother of the deceased purchased the house on behalf of the firm Kanji Jaichand on 18-10-57 and started construction. The house before it was purchased was only a 'Katcha' house of 7' height. The pole and the line were also 8' away from the south side of the house and it was about 11 feet above the height of the said house. It was also alleged that in making additions in the house Hiralal and the plaintiffs had not complied with Rule 82 of the Indian Electricity Rules, 1956 (hereinafter referred to as the Rules). The defendants had complied with the rules and there was no negligence or carelessness either on their part of the employees. The defendants also contended that on the case suggested in the plaint itself Surajmal was himself guilty of negligence because:
(a) the construction of the gallary was undertaken without allowing sufficient time from the supplies to remove the pole and over head lines to the prescribed safe distance from the proposed construction;
(b) that actual existence of the over-head wires was itself a sufficient warning to keep away at safe distance;
(c) the deceased Surajmal acted negligently in handling the overhead wires without first ascertainting that power current did not pass at that time the fatal accident occurred due to causes wholly and exclusively contributed by the deceased Surajmal.
4. On the pleadings of the parties the trial court framed as many as 32 issues:
(1) Whether the defendants own a power house in the town of Banswara and are running the concern in the name and style of 'the Banswara Electric Supply Company'?
(2) Did the defendants not observe the provisions of the Indian Electricity Act and Rules, and if so, what is its effect?
(3) Did the defendants not carry out the various obligations in respect of business of installing the line, supplying electric power as detailed in para No. 2 of the plaint?
(4) If issue No. 3 is decided in favour of the plaintiffs, whether the above acts of defendants result in irregular supply of current, accident, stoppage of power and if so, what is its effect on the suit?
(5) Whether at many places the line wires are within reach horU zontally and vertically?
(6) Did the defendants not observe Rules 77, 79 and 90 of the Indian Electricity Rules and if so, what is its effect on the suit?
(7) Did the defendant not keep the earthing and protective measures according to Law and if so, what is its effect?
(8) Did the defendants not keep the safety measures as they were bound to keep?
(9) Did the non-compliance of the statutory provisions and negligence of the defendants cause the death of the husband of plaintiff No. 1.?
(10) Did Surajmal die on 27-8-1959 due to electric shock?
(11) Whether the plaintiff No 1 is the widow and plaintiffs No. 2 to 4 are the children of the deceased?
(12) Whether the plaintiffs are dependents-legal representatives and heirs of the deceased?
(13) Whether the electric wires near the dwelling of Hiralal brother of the deceased were kept at low height without due regards of the safety of inhabitants?
(14) Did Hiralal send a petition on 24 8,59 for removal of the over head wires but the defendants negligently did not comply?
(15) Did the defendants not take safety measures after 24-8-59 which they were bound to take?
(16) Did the defendants' company switch on to supply the electric energy prior 10 11 A. M. on 27-8-59 which caused the death of the deceased?
(17) Whether the death of deceased was the direct result of the carelessness and negligence of the defendants, and as such they are liable to compensate the plaintiffs.?
(18) Whether the deceased was educated and was in perfect health?
(19) Whether there was any prospect that the monthly income of the deceased would have gone to Rs. 1,000/- in a year or two had he survived?
(20) Whether the deceased was spending Rs. 3,500/- yearly over the plaintiffs and this amount would have gone increasing in future?
(21) Whether the plaintiffs have sustained a total pecuniary loss which is assessed at Rs. 50 000?
(22) Whether the plaintiffs had served notice to the defendants on 5.2.60?
(23) Whether the cause of action had accrued to the plaintiffs on 27-8-59 against the defendants?
(24) Whether the suit is within the limitation?
(25) Whethet the suit is filed on proper Court Fees?
(26) Whether this Court has jurisdiction to hear this suit?
(27) Whether Fakruddin, Hakimuddin, Saifuddin and Mirza are necessary parties to the suit and without impleading them the suit is not maintainable?
(28) Whether Ghisoo Lai-Engineer, Korulal Gotam-drivers and Khemchand Joshi, who were running the power house are necessary parties to the suit?
(29) Whether the suit is not maintainable under the Fatal Accident Act?
(30) Is the suit not maintainable as the plaintiffs have not shown apportionment of damages?
(31) Whether the period of Limitation will be reckoned against defendant No. 1 from the date on which he is brought on the record of the suit?
(32) To what relief, if any are the plaintiffs entitled?
5. The plaintiffs examined 17 witnesses and relied upon 83 documents. The defendants examined 14 witnesses and relied upon 25 documents.
6. As regards allegations of 'general negligence' and contravention of statutory provisions contained in paras 3 to 5 of the plaint and the subject matter of issues Nos. 2 to 9, the trial court held that 'there was neither sufficient material to adjudge if the defendants were negligent in other instance nor it was necessary for the courts to determine it or not that the defendants acted negligently in those other instances.' Issues Nos. 2 to 9 were decided a gains the plaintiffs.
7. Dealing with issue No. 10, the trial court held that Surajmal died on 27-8 59 due to electric shock and decided the issue in favour of the plaintiffs.
8. The trial court also held that plaintiffs No. 1 Pushpabai i.e. the widow of Surajmal ard other plaintiffs are children of the deceased Surajmal.
9. Under issue No. 13, the trial court held that 'it were not the defendants who laid the overhead supply line so low as to be against all consideration of safety but it was Shri Heeralal who so projected this construction as to bring it nearer and nearer the overhead supply line.' It accordingly held that the plaintiffs failed to prove that the defendants have without regard to the safety of the occupants of Heeralal's house & against the Electricity Rules, laid a low overhead supply line.' Issue No. 13 was thus decided against the plaintiffs.
10. Dealing with issues No. 14 and 15 the trial court tock the view that Heeralal ought to have taken necessary steps as required by Rule 82 of the Rules before starting additional construction and that the contravention of the mandatory provisions by him cannot be lightly treated. It held that there was no case of emergency even if Heeralal was constructing a gallary which had come within the danger zone. He could have stayed the construction and closed the approaches to the roof where the gallary was being constructed till in the normal couise the wires were removed.' The trial Court observed, 'it is too much to say that Heeralal should have been left free to continue in his contravention of Rule 82 and at the same time expect the defendants to smooth the things out for himself by removing the wires of their own authority and without the approval of the Electrical Inspector or concurrence of Municipality nor could the defendants have switched off the line for that would have plunged the portion of the town in darkness. The convenient and immediate remedy was for Heeralal to discontinue the construction.' Eventually, the finding of the trial court was that' Ex. 56 was received by Shri Khemchand, but it did not. amount to a proper application nor there was sufficient time within which the defendants could have acted and they were not guilty of negligence in not acting'.
11. Under issue No. 16, the trial court held that the plaintiffs' case was inherently weak and relying upon the log book of the defendants Ex. A-27, held that the plaintiffs miserably failed to prove this issue. This issue was decided against the plaintiffs.
12. Dealing with issue No. 17, the trial court held:
1. that the circumstances under which the deceased met his death ere not known.
2. that it is not the power house that has brought the dangerous electricity to the gallary of Heeralal. Rather it is Heeralal, who has wrongfully brought, his construction of gallary within the danger Zone.
3. that the person hurt was an adult. The wires were manifestly dangerous and visible and were all the time there. By no reasonable foresight, it could be anticipated that an adult of the age and intelligence of Surajmal wanted to walk through all the length of the roof and catch hold of live wires which were as prominently visible and so manifestly dangerous.
According to it, the test of absolute liability laid down in the case Rylands v. Fletcher (1866) LR 1 (Ex). 265 could not govern the present case and that the proper test to be applied was test of 'forseability' the general concept and reasonable foresight as the criteria of negligence. Applying this test, the court held that 'it could not be foreseen that Heeralal would be so reckless as to bring construction within the reach of naked wire and his brother and servant would go on the open roof and for no apparent reason corns in contact with the wire.' The trial court also held that the obligation as to the maintenance was not contravened.' In this connection, it was observed that 'Law imposed a duty on Heeralal to stay his hands and wait for the removal of wires and not on the defendants to remove the wires as soon as they came to know of some construction being raised there-about.' The trial court summarised its findings as follows:
(a) When the overhead line was laid, it was perfectly in accordance with the Rules say upto middle of August, 1959 when the construction by Heeralal began.
(b) There was no defect in the manner of laying the lines or in its maintenance
(c) The duty to periodically watch the lines does not extend to watch it constantly on all points on alt dates. It only extends to watch periodically. The power house was not guilty of not periodically watching if within the brief-space of a week the construction was brought within the clearance allowed by rules.
(d) More particularly when rules prohibit any a citizen constructing within the clearance and the contravention of the rule amounts to an offence. In other words, the power house has been assured by law that no one will contravene the provisions as to clearance.
(h) Heeralal was guilty in as much as he without previous approval of the Inspector of Electricity so constructed the gallary as to come within the danger zone.
(f) Heeralal was guilty in continuing to construct the gallary after atleast he had known on 24-8-1959. (Ex. 56) when he knew that he had come dangerously within the proximity of the overhead lines.
(g) Heeralal was also guilty in not safeguarding the danger and allowing his labourers and servants to approach the unguarded danger.
(h) The danger was clear and manifest. Any body approaching the roof could see it.
(i) The danger was not deceptive, latent or hidden.
(j) Roof was not a public place where any body might casually go.
(k) Surajmal was a free agent. He was under no compulsion and apparently had no business to be at the gallary, and lastly,
(l) Surajmal was adult and had a duty to take precaution himself, there was thus no negligence of the defendants. They were not guilty of any act or omission which directly result ed in death of Surajmal and, therefore, the defendants are not liable to pay damages.
13. In view of these findings, the issue was decided against the plaintiffs.
14. On issues Nos. 18 to 21, the trial court following the principle laid down in State of Bombay (Now Gujarat) v. Parshottam Kanhaiyalal : [1961]1SCR458 determined the amount of compensation as Rs. 15,000/-.
15. The remaining issue were decided either for the plaintiffs or against the defendants.
16. On these findings, the trial court dismissed the plaintiff's suit.
17. We shall first address ourselves to the principles of law governing a tort of negligence. In the past there used to be controversy whether negligence by itself (as distinguished from negligence as a mode of committing other torts) could be recognised as an independent tort. The controversy was set at rest by decision of House of Lords in Donoghue v. Stevenson 1932 A.C. 562 which treats negligence as conduct and not a state of mind.' involving an unreasonably great risk of causing damage In commenting upon the tort of negligence, Lord Wright stated: 'In strict legal analysis, negligence means more than heed less or careless conduct, whether in omission or Commission it properly connotes the complex concept of duty, breach & damage thereby suffered by the person to whom the duty was owing'. It is clear that to constitute a tort of negligence, it must be proved that the defendants owed (1) a duty to care for the person adversely affected who or through whom the claim for compensation is made. (2) that that there was breach of duty and that (3) damage was affected by the person to whom duty was owing The difficulties have always been experienced by Judges in attempting to lay down general principles defining the actual relations between the parties which gives rise to duty to care. In this connection, reference may be usefully made to the following observations of Lord Macmillian:
The grounds of action may be as various and manifold as human errancy; and the conception of legal responsibility may develop in adaptation to altering conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life, The categories of negligence are never closed.
Various principles and varying tests, such as, the principle of absolute liability in cases where an owner or occupier introduces or brings dangerous thing or material to his property, as applied in Donoghue v. Stevenson 1932 A.C. 561, the prince pie of foreseability have been formulated and applied, having regard to the-facts and circumstances of individual cases. In our view, the question of determining whether a duty to care to a particular person exists or not, the circumstances of should be determined having regard to the facts circumstances of the individual cases, the relations between the parties, their juxtaposition, the exigencies of the situations and the nature of the conduct or activities and no rule of thumb can be laid down.
18. Another principle, which may also be referred to is that' when one who has full knowledge of the nature of the extent of the risk and is entirely free to avoid it, but nevertheless voluntarily goes on and is injured, cannot recover.'.
19. At this stage, we may also usefully refer to the provisions of the Indian Electricity Act and the Rules framed thereunder, providing for maintenance of vertical and horizontal clearances while installing electrical lines. Rule 79 requires:
Where a low or medium voltage overhead line passes above or adjacent to or terminates on any building, the following minimum clearances from any accessible point, on the basis of maximum sag, shall be observed:
(a) for any flat roof, open balcony, verandah or lean-of-roof
(i) when the line passes above the building a vertical clearance of 8 feet from the highest point, and
(ii) when the line passes adjacent to the building a horizontal clearance of 4 feet from the nearest point....
A question of maintaining such clearances has also arisen in this case but we shall refer to it at a later stage.
20. Now, coming to the facts, the plaintiffs' case set out in para 8 of the plaint and which has been quoted above, appears to be ambiguous. It suggests that the initial installation of the electrical lines near the house of Heeralal was in contravention of Rule 79 of the Rules. Such a case had no basis. The trial court found that the electrical lines were installed by the former State of Banswara and not by the defendants. It also held that the initial installation was not in contravention of the Rules. Such a case was not even pressed before us. The plaintiff-appellants' main submission has been that even though the vertical and horizontal clearances of the electrical lines in relation to Heeralal house were brought about as contravening the provisions of Rule 79 due to additions & alterations made by Heeralal the contravention having been brought to the notice of the defendant by Heeralal's application Ex. 6 dated 24-8-59; it became the duty of the defendants to take immediate steps to change the lines so as to bring them in accordance with the requirements of the Rule 79 of the Rules. The learned Counsel also relied upon Rule, 29 of the Rules which reads as follows:
All electric supply lines and apparatus shall be sufncint in power and size and of sufficient mechanical strength for the work they may be required to do, and so far as is practicable, shall be constructed, installed, protected, worked and maintained in accordance with the standards of the Indian Standards Institution so as to prevent dangers.
The language of the rule, however, does not lend support to the contention. However, on general principles and on considerations of the safety of the consumers of electricity, the duty of the supplier to arrange for periodical inspentionsand to notice any changes in the electric supply lines brought about by accident or otherwise, bringing clearance within the limits provided by Rule 79 and to arrange for restoration in a reasonable time and in a reasonable manner, must not be excluded. The question whether such a duty can be reasonably inferred will of course depend upon the facts and the circumstances of the case. In this connection, reference must be made to Rule 82 of the Rules which imposes duty upon persons proposing to erect new building or structure near the electric supply lines or make alterations of existing building. The rule provides that if the proposed building or structure or addition or alteration would, during or after contraction, result in contravention of the provisions of Rule 79 or 80, the person intending to erect building should give notice in writing of his intention to the supplier, and to an Inspector and shall furnish there with a scale drawing showing the proposed building, structure, addition or alteration and scaffolding required during construction. Under Sub-rule (2) the supplier is required, without undue delay, to alter the overhead line as to ensure it that will not be accessible in such a manner as to Contravene the provision of Rule 79 or 80 either during or after construction. The supplier is entitled to recover from the person from whom the notice was received or from the person from whom he is entitled to receive such notice, the cost of such alterations. Under the proviso to Sub-rule (2) the supplier may, before so altering the overhead line, require the person from whom the notice was received, to deposit the entitled cost of such alternator, which shall in case of dispute be determined by the Inspector ' Sub-rule (3) provides that 'no work upon such building structure, addition or alteration shall be commenced until the Inspector has certified that neither during nor after construction the provisions of Rule 79 or 80 will be contravened.
21. The rule, in the first instance, imposes a duty on the person intending to construct building near the electrical lines or making additions and alterations, so to bring the additions near the electric supply lines and to that extent it must be deemed to limit the liability of the supplier. In the present case, Heeralal deliberately disobeyed Sub-rule (3) of Rule 82.
22. The question now requiring determination is : whether having regard to the facts of the present case, the defendants owed a duty either to Heeralal and whether they committed breach of such duty. The plaintiffs came forward with a case that Heeralal sent an application to the defendants on 24-1-59, bringing to the notice of the defendants that the vertical and horizontal clearance were not as required by Rule 79 in respect of his house and the dinger involved in using the gallery, was imminent. The defendants stand in this behalf has, not, however, been straight forward. In the first instance, the defendants denied having received such a notice. This denial proved to he wrong when the plaintiffs brought on record a copy of the application Ex. 56 bearing the signatures of Khemchand Joshi, Manger of the defendants' Company. The plaintiffs case was that an application of the nature of Ex.56 which was a copy of the application, the signatures were obtained in token of his having received the application. Khemchand D/W 14 had to admit his signature on Ex. 56. He, how ere, set up a case that no separate application other than Ex. 56 was presented him. before Only Ex. 56 was produced before him by deceased Surajmal. He in mediately put his initials upon the application. Ast he application was not accompanied by a plan, it was returned to him bearing his initials. This case set up by Khemchand is also not correct and is proved to be wrong. The plaintiffs have brought on record Ex. 57-a letter dated 1- 10-59, issued by the witness, requiring Mehta Kanji Jaichandji the firm whom Hseralal represented, to deposit Rs. 75/- on account of cost of changing lines. The letter could have been only in response to some application presented to him. It is not the defendants' case that Ex.45 which was returned to Surajmal, was subsequettly produced with or without plan, at any later stage. The plaintiff's counsel very much emphasised these wrong denials on the part of the defendants. However deplorable these denial may be, they by themselves are not sufficient to establish the defendants' duty to care and the breach of the same. The decision with regard to them must depend upon the facts and circumstances of the case. The plaintiff's relied upon the statement of Shri Kunj Beharilal (PW/17) a former Electric Inspector who stated that the defendants could have affected change and then asked for regularsing it. The defendants on their side, examind Shri Suganchad DW/10 the present Electric Inspector-who stated that a person intending to erect a construction so as to come nearer electric line, must comply with Rule 82 of the Rules. He further stated that it was not possible to bring about the change in the line near Heeralal's house before 27-8-59 on account of the need of obtaining approvals. The trial court emphasising the default of Heeralal which was an offence, reached a conclusion that there was no reasonable duty on the part of the supplier to have changed the line before Surajmal came into contact with the electric supply line. We have considered the evidence and the circumstances of the case and are in agreement with the trial court that the defendants company could not be imputed reasonable duty to change the lines before the incident. We must also point out that there was, at any rate no duty either towards Heeralal or persons who were brought into the house either by express or implied invitation. On the other hand, it was the duty of Heeralal to have taken all necessary steps to prevent people from, going in the gallery and coming into contact with the electric line. There being no reasonable duty of the defendants the question of the breach of duty does not arise. We may also point out that the plaintiffs could not bring on record the precise circumstances under which Surajmal came into contact with the electric line, but it is clear that Surajmal's hand was found touching the electric line. From this, it must be inferred that Surajmal raised his hand to come into contact with the electric line. Surajmal must be aware of danger in coming into touch with the electric line & he having volunteered to touch the line and invited danger, must be treated as having volunteered and the defendants' Company cannot be held liable. The conclusion of the trial court in this behalf is justified and we entirely agree with it.
23. The plaintiffs came forward with a case of negligence also on the ground that the supply company switched on the line at 10/50 A. M although the line was to be switched on at 11 A.M. The trial court has carefully examined the evidence of the plaintiffs and reached a conclusion that there was inherent weakness in the plaintiffs' contentions that the lines were switd. on at 10 50 A.M. The trial court emphasised the enteries in the log book Ex. A/27 & reached a conclusion that the electricity was switched on before time. We have perused the evidence and are satisfied with correctness of the finding arrived at by the trial Court.
24. The plaintiffs have failed to prove a tort of negligence against the defendants. The trial court was justified in dismissing the plaintiffs' suit. There is no force in this appeal and it is hereby dismissed. However, having regard to the conduct of the defendants in relation to Ex. 56, we leave the parties to bear their own costs.