Smti Maya Rani Banik and anr. Vs. State of Tripura and ors. - Court Judgment

Excerpt:
- - bhowmik, the learned counsel for the appellants has submitted that the learned district judge committed a grave error of law and facts in dismissing the just claim of the appellants inasmuch as the incident and the factum of death of the deceased as well as electrocution of the barbed wire fencing surrounding the transmitter has been fully established by the witnesses and materials on record. after having held so the learned trial court observed that he failed to understand how a person be removed from the electrocuted side unless the power connection carrying electric power is not disconnected if the barbed wire fencing was charged with electric power. 12. on the basis of the evidence adduced by the parties and on close scrutiny thereof as well as the positive finding of the learned district judge it is abundantly clear and fully established that the deceased dilip banik expired on 8-10-1992 due to electrocution. 16. in the instant case, it is established that the respondents-authority failed to discharge their duties and obligation to take safety devices or for that matter be vigilant enough so that there cannot be any such incident due to leakage of the electricity what has in fact been occurred in the instant case and for this reason they are liable to pay adequate compensation to the heirs of the deceased. h.n. sharma, j.1. this first appeal has been filed challenging the judgment and order passed in title suit (fatal accident) no. 2 of 1995 by the learned district judge. south tripura, udaipur dated 31-1-1996 dismissing the suit and thereby rejecting the claim of the appellants for compensation on account of death of one dilip banik, husband and father of the appellant nos. 1 and 2 respectively.2. the necessary facts for deciding the appeal are as follows :-the appellant no. 1 viz. smti maya rani banik filed the claim petition in the court of the learned district judge, south tripura which was registered as t.s. (fatal accident) no. 2 of 1995 alleging, inter alia, that the claimant is the widow of deceased dilip banik who died due to electrocution on 8-10-1992 while he was by chance came in contact with the barbed wire fencing of the electrical transmitter located near jagannath bari, udaipur as the said barbed wire fencing was charged by electric current due to negligence of the respondents. it is also alleged that there is no provision under the law that the fencing be charged with the electric power and the said fencing is put for safety of the people. it is further stated that the victim dilip banik was removed to hospital immediately after the incident and the doctor opined that the cause of the death was due to electric shock. a case for unnatural death was registered at r. k. pur police station on the same day and it was reported finally indicating that it was a case of accidental death and hence, no criminal liability arises. in the premises aforesaid, the said suit was filed claiming a compensation for a sum of rs. 10,64,000/- on the basis of the allegation that the cause of the death of the deceased was due to flagrant violation of the safety measurement to be adopted by the defendants-respondents.3. the defendant-respondents submitted their joint written statement denying the claim of the appellants alleging, inter alia, that the claim petition is not maintainable, that there is no cause of action, that on 8-10-1992 or before or after the day of the accident no call in respect of the electrical charging of the barbed wire fencing the sub-station was recorded in the office call book and the claimant-appellants did not inform about the alleged incident to the respondents before filing the case; that the sub-station in question was not in the main road but approximately 20' ft. away from the main road, that all safety devices were considered at the time of the said installation. further, the defendant-respondents denied the case of the claimant-appellants in toto and also denied that the deceased was 34 years old or his monthly income was rs. 2000/- as claimed by the claimant-appellants.4. on the basis of the pleadings of the parties following issues were framed :-(a) is the suit is maintainable in its present form and nature ?(b) is the suit is barred by limitation ?(c) whether the deceased died due to his negligence and actionable wrong of the power department of the government of tripura or its employees ?(d) whether the petitioner is entitled to get any compensation as prayed for ?(e) who is responsible for making the payment of compensation ?5. during the course of trial the plaintiff in order to substantiate her claim examined herself and one sunil das, another independent witness in support of the claim. the defendant-respondents, however, examined the executive engineer, electrical division no. iv, udaipur and one u.d. clerk of their office in support of their case. the learned district judge after hearing the parties vide judgment and order dated 31-1-1996 dismissed the claim of the appellants. against the aforesaid judgment the present appeal has been filed.6. we have heard mr. a. c. bhowmik the learned counsel appearing on behalf of the claimant-appellants and mr. t. d. majumder, the learned government advocate appearing on behalf of the respondents.7. assailing the impugned judgment mr. bhowmik, the learned counsel for the appellants has submitted that the learned district judge committed a grave error of law and facts in dismissing the just claim of the appellants inasmuch as the incident and the factum of death of the deceased as well as electrocution of the barbed wire fencing surrounding the transmitter has been fully established by the witnesses and materials on record. it is also submitted that in fact, those facts are admitted by the respondents and in spite of such positive evidence and materials on records the learned trial court committed grave error of law and facts in rejecting the claim of the appellants. it is further submitted by mr. bhowmik that the learned trial court totally misappropriated and misapplied the evidence and materials on records.8. on the other hand, mr. t. d. majumder, the learned government advocate appearing on behalf of the respondents has supported the impugned judgment passed by the learned trial court and prayed for dismissal of the appeal as no error of law and fact has been committed by the learned trial court in passing the impugned judgment.9. we have gone through the impugned judgment passed by the learned trial court. we have also perused the evidence adduced by the parties and other materials on records. the claimant smt. maya rani banik was examined as p.w. 1, who in her deposition stated that her husband died due to electrocution while he was carrying vegetable for marketing and he used to earn rs. 2,000/- per month. in her statement it is also stated that she has got a son of six years old and she claimed compensation for the death of her husband. she also stated that after coming to know about the incident she went to the hospital and also to the spot of incident. there was a necked loose wire and it was lying at a distance of 2 cubits from the road p.w. 2 who is an eyewitness of the occurrence, in his statement stated that he has seen the incident from a distance of about 150 cubits while he was waiting in the rickshaw stand with his rickshaw. he categorically stated that about 3 years before at about 11 a.m. one person (indicating the deceased) electrocuted when he went near the barbed wire fencing.10. d.w. 1 the executive engineer of the electrical division no. iv, udaipur in his deposition stated that their office did not receive any information about the death of dilip banik by electrocution and there is no entry in the call book of any of their local office about the short circuit or electrical earthling on any point of the transmission line or any installation near jagannath bari on or about 8-10-1992. he also stated that it is not a fact that dilip banik died by electrocution by touching the barbed wire fencing of the sub-station. in cross-examination he stated that he has no information about the r. k. pur p.s. case no. 2(10) of 1992. d.w. 2 who was the u.d. clerk under the electrical division no. iv, udaipur in his evidence stated that the sub-station where the transformer is mounted will be about 20' ft from the main road and it is mounted on brick built platform and surrounding by barbed wire fencing on four sides and barbed wire fencing was not required to touch by any passerby.11. the learned trial court during the pendency of the case before him personally visited the spot to ascertain the truth, in presence of the advocates of the parties wherein he observed that the location of the transformer is about 6' ft from the road level and is enclosed by fencing and on the off side of the road beyond the installation there is another 10' ft. high barbed wire fencing and according to him he did not find any reason for any person to go near the installation or touching the barbed wire fencing. it is further held at para 7 of the impugned judgment that the cause of death is not denied and the learned court was sure that the deceased died due to electrocution. after having held so the learned trial court observed that he failed to understand how a person be removed from the electrocuted side unless the power connection carrying electric power is not disconnected if the barbed wire fencing was charged with electric power. it was further observed that the claimant could not prove that the deceased got electrocuted due to the fault of the respondents and he came to a conclusion from the evidence that the deceased died due to electrocution for his own fault for which the respondents are not liable to pay compensation and on these counts the claim petition was dismissed.12. on the basis of the evidence adduced by the parties and on close scrutiny thereof as well as the positive finding of the learned district judge it is abundantly clear and fully established that the deceased dilip banik expired on 8-10-1992 due to electrocution. in fact, the learned district judge at para 7 of his judgment also held as aforesaid and the said fact of death of dilip banik due to electrocution has not been denied by the respondents. the case of the respondents is that there is no entry in their call register about the incident as deposed by the executive engineer. in this connection the certificate, ext. 2 issued by the concerned authority, r. k. pur police station is very relevant. the said certificate is as follows :-this is to certify that one dilip banik aged 34 years s/o lt. sailendra nath banik of r. k. pur p.s. r. k. pur expired on 8-10-1992 due to electric shock which refers u/ d case no. 2(10)92 under section 174, cr. p.c.sd/- illegible.'the senior medical officer, tripura sundari hospital which is a government hospital certified by his certificate dated 20-10-1992 that the post mortem examination of dilip banik aged 34 years was done by him on 8-10-1992.13. in the aforesaid situation we are of the opinion that the deceased dilip banik was expired on 8-10-1992 due to electrocution or when came in contact with the barbed wire fencing enclosing the transmission at udaipur. the observation of the learned district judge was that how the deceased could be removed from the electrocuted side unless the power connection is disconnected and denial of the claim of the appellant on that count, in our opinion, is not only self-contradictory but also not borne out of evidence on record. further non-entry in the call book of the office of the respondents will not disprove a proved fact. it is the responsibility and duty of the respondents-authority t6 enter such incident into such call book and for that matter the claimant cannot be held responsible and denied her just claim made in the claim petition. we accordingly hold as aforesaid that the deceased died due to electrocution on 8-10-1992.14. under the provisions of the indian electricity act, 1910 and the rules framed there under it is the duty and responsibility of the respondents authority to provide safety devices for protection of life and property of a person in case of installation of such transmitter. the evidence and materials on record go to show and establish that the barbed wire was charged with electric power. there is no evidence and materials on record that the deceased was negligent in any manner and it is the burden upon the respondents authority to prove such negligence. but there is no iota of evidence to that effect. accordingly it cannot be said that the deceased was negligent as submitted by the learned counsel.15. in view of the aforesaid discussions, the claimants who are the wife and minor son respectively of the deceased are entitled to get compensation for the death of dilip banik caused due to electrocution.16. in the instant case, it is established that the respondents-authority failed to discharge their duties and obligation to take safety devices or for that matter be vigilant enough so that there cannot be any such incident due to leakage of the electricity what has in fact been occurred in the instant case and for this reason they are liable to pay adequate compensation to the heirs of the deceased.17. the deceased was 34 years old young man. his monthly income was stated to be rs. 2,000/- as deposed by p.w. 1 mr. bhowmik, the learned counsel for the claimant-appellants in support of his case referred to a decision of the apex court reported in (2004) 5 scc 793 (foll.) (h.s.e.b. v. ram nath), mr. bhowmik also referred to another decision of this court reported in (2001) 3 gau lr 55 : (air 2002 gauhati 84) (fakir chand v. state of assam). in the case of ram nath (supra) the apex court confirmed the award of compensation of rs. 1 lakh paid for death of a child of 5 years age when he came in contact with live wire. in the case of fakir chand (supra) a division bench of this court enhanced the compensation for the death of the wife of the claimant who was a housewife from rs. 70,000/- to rs. 1 lakh. in the instant case the deceased was the sole earning member of the family and he ran his livelihood by selling vegetables earning rs. 2,000/- per month and left his wife and minor at the time of his death.18. considering the facts and circumstances of the case and in view of the earnings and age of the deceased we hold that it would be just and fare to award a compensation amounting to a sum of rs. 1,50,000/- payable by the respondents-authority and accordingly direct the respondents to pay this amount to the claimants. we further direct that the said amount shall be paid within a period of four (4) months from today falling which the same will carry interest at the rate of rs. 6% per annum. in the event of any necessity for payment of interest the same would be realized from the concerned officer for whose default the payment is delayed.19. the appeal is accordingly allowed and disposed. no costs..

Judgment:

H.N. Sharma, J.

1. This First Appeal has been filed challenging the judgment and order passed in Title Suit (Fatal Accident) No. 2 of 1995 by the learned District Judge. South Tripura, Udaipur dated 31-1-1996 dismissing the suit and thereby rejecting the claim of the appellants for compensation on account of death of one Dilip Banik, husband and father of the appellant Nos. 1 and 2 respectively.

2. The necessary facts for deciding the appeal are as follows :-

The appellant No. 1 viz. Smti Maya Rani Banik filed the claim petition in the Court of the learned District Judge, South Tripura which was registered as T.S. (Fatal Accident) No. 2 of 1995 alleging, inter alia, that the claimant is the widow of deceased Dilip Banik who died due to electrocution on 8-10-1992 while he was by chance came in contact with the barbed wire fencing of the electrical transmitter located near Jagannath Bari, Udaipur as the said barbed wire fencing was charged by electric current due to negligence of the respondents. It is also alleged that there is no provision under the law that the fencing be charged with the electric power and the said fencing is put for safety of the people. It is further stated that the victim Dilip Banik was removed to Hospital immediately after the incident and the Doctor opined that the cause of the death was due to electric shock. A case for unnatural death was registered at R. K. Pur Police Station on the same day and it was reported finally indicating that it was a case of accidental death and hence, no criminal liability arises. In the premises aforesaid, the said suit was filed claiming a compensation for a sum of Rs. 10,64,000/- on the basis of the allegation that the cause of the death of the deceased was due to flagrant violation of the safety measurement to be adopted by the defendants-respondents.

3. The defendant-respondents submitted their joint written statement denying the claim of the appellants alleging, inter alia, that the claim petition is not maintainable, that there is no cause of action, that on 8-10-1992 or before or after the day of the accident no call in respect of the electrical charging of the barbed wire fencing the Sub-Station was recorded in the office call book and the claimant-appellants did not inform about the alleged incident to the respondents before filing the case; that the sub-Station in question was not in the main road but approximately 20' ft. away from the main road, that all safety devices were considered at the time of the said installation. Further, the defendant-respondents denied the case of the claimant-appellants in toto and also denied that the deceased was 34 years old or his monthly income was Rs. 2000/- as claimed by the claimant-appellants.

4. On the basis of the pleadings of the parties following issues were framed :-

(a) Is the suit is maintainable in its present form and nature ?

(b) Is the suit is barred by limitation ?

(c) Whether the deceased died due to his negligence and actionable wrong of the Power Department of the Government of Tripura or its employees ?

(d) Whether the petitioner is entitled to get any compensation as prayed for ?

(e) Who is responsible for making the payment of compensation ?

5. During the course of trial the plaintiff in order to substantiate her Claim examined herself and one Sunil Das, another independent witness in support of the claim. The defendant-respondents, however, examined the Executive Engineer, Electrical Division No. IV, Udaipur and one U.D. Clerk of their office in support of their case. The learned District Judge after hearing the parties vide judgment and order dated 31-1-1996 dismissed the claim of the appellants. Against the aforesaid judgment the present appeal has been filed.

6. We have heard Mr. A. C. Bhowmik the learned counsel appearing on behalf of the claimant-appellants and Mr. T. D. Majumder, the learned Government Advocate appearing on behalf of the respondents.

7. Assailing the impugned judgment Mr. Bhowmik, the learned counsel for the appellants has submitted that the learned District Judge committed a grave error of law and facts in dismissing the just claim of the appellants inasmuch as the incident and the factum of death of the deceased as well as electrocution of the barbed wire fencing surrounding the transmitter has been fully established by the witnesses and materials on record. It is also submitted that in fact, those facts are admitted by the respondents and in spite of such positive evidence and materials on records the learned trial Court committed grave error of law and facts in rejecting the claim of the appellants. It is further submitted by Mr. Bhowmik that the learned trial Court totally misappropriated and misapplied the evidence and materials on records.

8. On the other hand, Mr. T. D. Majumder, the learned Government Advocate appearing on behalf of the respondents has supported the impugned judgment passed by the learned trial Court and prayed for dismissal of the appeal as no error of law and fact has been committed by the learned trial Court in passing the impugned judgment.

9. We have gone through the impugned judgment passed by the learned trial Court. We have also perused the evidence adduced by the parties and other materials on records. The claimant Smt. Maya Rani Banik was examined as P.W. 1, who in her deposition stated that her husband died due to electrocution while he was carrying vegetable for marketing and he used to earn Rs. 2,000/- per month. In her statement it is also stated that she has got a son of six years old and she claimed compensation for the death of her husband. She also stated that after coming to know about the incident she went to the Hospital and also to the spot of incident. There was a necked loose wire and it was lying at a distance of 2 cubits from the road P.W. 2 who is an eyewitness of the occurrence, in his statement stated that he has seen the incident from a distance of about 150 cubits while he was waiting in the Rickshaw Stand with his Rickshaw. He categorically stated that about 3 years before at about 11 a.m. one person (indicating the deceased) electrocuted when he went near the barbed wire fencing.

10. D.W. 1 the Executive Engineer of the Electrical Division No. IV, Udaipur in his deposition stated that their office did not receive any information about the death of Dilip Banik by electrocution and there is no entry in the call book of any of their local office about the short circuit or electrical earthling on any point of the transmission line or any installation near Jagannath Bari on or about 8-10-1992. He also stated that it is not a fact that Dilip Banik died by electrocution by touching the barbed wire fencing of the Sub-Station. In cross-examination he stated that he has no information about the R. K. Pur P.S. case No. 2(10) of 1992. D.W. 2 who was the U.D. Clerk under the Electrical Division No. IV, Udaipur in his evidence stated that the Sub-Station where the transformer is mounted will be about 20' ft from the main road and it is mounted on brick built platform and surrounding by barbed wire fencing on four sides and barbed wire fencing was not required to touch by any passerby.

11. The learned trial Court during the pendency of the case before him personally visited the spot to ascertain the truth, in presence of the Advocates of the parties wherein he observed that the location of the transformer is about 6' ft from the road level and is enclosed by fencing and on the off side of the road beyond the installation there is another 10' ft. high barbed wire fencing and according to him he did not find any reason for any person to go near the installation or touching the barbed wire fencing. It is further held at para 7 of the impugned judgment that the cause of death is not denied and the learned Court was sure that the deceased died due to electrocution. After having held so the learned trial Court observed that he failed to understand how a person be removed from the electrocuted side unless the power connection carrying electric power is not disconnected if the barbed wire fencing was charged with electric power. It was further observed that the claimant could not prove that the deceased got electrocuted due to the fault of the respondents and he came to a conclusion from the evidence that the deceased died due to electrocution for his own fault for which the respondents are not liable to pay compensation and on these counts the claim petition was dismissed.

12. On the basis of the evidence adduced by the parties and on close scrutiny thereof as well as the positive finding of the learned District Judge it is abundantly clear and fully established that the deceased Dilip Banik expired on 8-10-1992 due to electrocution. In fact, the learned District Judge at para 7 of his judgment also held as aforesaid and the said fact of death of Dilip Banik due to electrocution has not been denied by the respondents. The case of the respondents is that there is no entry in their call register about the incident as deposed by the Executive Engineer. In this connection the certificate, Ext. 2 issued by the concerned authority, R. K. Pur Police Station is very relevant. The said certificate is as follows :-

This is to certify that one Dilip Banik aged 34 years s/o Lt. Sailendra Nath Banik of R. K. Pur P.S. R. K. Pur expired on 8-10-1992 due to electric shock which refers U/ D case No. 2(10)92 Under Section 174, Cr. P.C.

Sd/- illegible.'

The Senior Medical Officer, Tripura Sundari Hospital which is a Government Hospital certified by his certificate dated 20-10-1992 that the post mortem examination of Dilip Banik aged 34 years was done by him on 8-10-1992.

13. In the aforesaid situation we are of the opinion that the deceased Dilip Banik was expired on 8-10-1992 due to electrocution or when came in contact with the barbed wire fencing enclosing the transmission at Udaipur. The observation of the learned District Judge was that how the deceased could be removed from the electrocuted side unless the power connection is disconnected and denial of the claim of the appellant on that count, in our opinion, is not only self-contradictory but also not borne out of evidence on record. Further non-entry in the call book of the office of the respondents will not disprove a proved fact. It is the responsibility and duty of the respondents-authority t6 enter such incident into such call book and for that matter the claimant cannot be held responsible and denied her just claim made in the claim petition. We accordingly hold as aforesaid that the deceased died due to electrocution on 8-10-1992.

14. Under the provisions of the Indian Electricity Act, 1910 and the Rules framed there under it is the duty and responsibility of the respondents authority to provide safety devices for protection of life and property of a person in case of installation of such transmitter. The evidence and materials on record go to show and establish that the barbed wire was charged with electric power. There is no evidence and materials on record that the deceased was negligent in any manner and it is the burden upon the respondents authority to prove such negligence. But there is no iota of evidence to that effect. Accordingly it cannot be said that the deceased was negligent as submitted by the learned counsel.

15. In view of the aforesaid discussions, the claimants who are the wife and minor son respectively of the deceased are entitled to get compensation for the death of Dilip Banik caused due to electrocution.

16. In the instant case, it is established that the respondents-authority failed to discharge their duties and obligation to take safety devices or for that matter be vigilant enough so that there cannot be any such incident due to leakage of the electricity what has in fact been occurred in the instant case and for this reason they are liable to pay adequate compensation to the heirs of the deceased.

17. The deceased was 34 years old young man. His monthly income was stated to be Rs. 2,000/- as deposed by P.W. 1 Mr. Bhowmik, the learned counsel for the claimant-appellants in support of his case referred to a decision of the Apex Court reported in (2004) 5 SCC 793 (Foll.) (H.S.E.B. v. Ram Nath), Mr. Bhowmik also referred to another decision of this Court reported in (2001) 3 Gau LR 55 : (AIR 2002 Gauhati 84) (Fakir Chand v. State of Assam). In the case of Ram Nath (supra) the Apex Court confirmed the award of compensation of Rs. 1 lakh paid for death of a child of 5 years age when he came in contact with live wire. In the case of Fakir Chand (supra) a Division Bench of this Court enhanced the compensation for the death of the wife of the claimant who was a housewife from Rs. 70,000/- to Rs. 1 lakh. In the instant case the deceased was the sole earning member of the family and he ran his livelihood by selling vegetables earning Rs. 2,000/- per month and left his wife and minor at the time of his death.

18. Considering the facts and circumstances of the case and in view of the earnings and age of the deceased we hold that it would be just and fare to award a compensation amounting to a sum of Rs. 1,50,000/- payable by the respondents-authority and accordingly direct the respondents to pay this amount to the claimants. We further direct that the said amount shall be paid within a period of four (4) months from today falling which the same will carry interest at the rate of Rs. 6% per annum. In the event of any necessity for payment of interest the same would be realized from the concerned officer for whose default the payment is delayed.

19. The appeal is accordingly allowed and disposed. No costs.

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