IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 25/1998 Decided on:21.4.2009 Meena Kumar and others. …Appellants. Versus Himachal Pradesh State Electricity Board. …Respondent. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1.no. For the Appellants : Mr. Shrawan Dogra, Advocate. For the Respondent : Mr. Baldev Singh, Advocate. Rajiv Sharma, J. This Regular Second Appeal has been directed against the judgment and decree dated 31.5.1997 passed by the learned District Judge, Mandi, Kullu and Lahaul-Spiti Districts at Mandi in civil appeal No. 25/1995. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) filed a suit in the court of learned Sub Judge, 1st Class, Sundernagar for damages of Rs. one lakh. It was stated in the plaint that Smt. Bhagi Rathi died due to electrocution on 19.3.1983 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. 2 due to negligent act of respondent-defendant (hereinafter referred to as ‘the defendant’ for convenience sake). The Board had failed to provide kit-kat on the supply pole and the stay wire was not insulated and no ‘T’ was provided at the joint of the houses of the plaintiffs and proforma defendant from where the supply was given to other houses and no cut out was provided. Proforma defendant No.2, husband of Bhagi Rathi was physically handicapped. The defendant-Board contested the suit. The allegation that no kit-kat was installed on the supply pole, stay wire was not insulated and ‘T’ was not provided at the joint of the house of plaintiffs and proforma defendant was denied. The trial court decreed the suit on 28.3.1994. The defendant preferred an appeal before the learned District Judge, Mandi, Kullu and Lahaul Spiti Districts at Mandi. The same was accepted by him on 31.5.1997. This Regular Second Appeal has been directed against the judgment and decree dated 31.5.1997. The Regular Second Appeal was admitted on the following substantial questions of law: 1. "Whether the principle of Res-Ipsa-Loquitor can be applied in the case of death by Electrocution? 2. Whether the learned District Judge has erred in law in not applying the principle of Res-Ipsa-Loquitor in the instant case? 3. Whether the impugned judgment is perverse based on conjectures and surmises?” Mr. Shrawan Dogra, Advocate has supported the judgment and decree passed by the trial court. According to him, the judgment and decree passed by the first appellate court is not sustainable. Mr. Baldev Singh, Advocate has supported the judgment and decree dated 31.5.1997 passed by the first appellate court. I have heard the learned counsel for the parties and perused the record carefully. 3 Since all the substantial questions of law are inter-linked and inter connected, therefore, the same are being taken up together for determination to avoid repetition of discussion of the evidence. PW-1 is Dr. Sher Singh. He conducted the autopsy on deceased Bhagi Rathi. He proved on record Ex.PW-1/A. It has come in his opinion that death of Smt. Bhagi Rathi could be caused due to electric shock. PW-3 Shiv Ram is the husband of Bhagi Rathi. He has deposed that his wife was electrocuted when she after washing the clothes was spreading them on the slab of her house at Sundernagar. He then testified that with the electric pole, fuse was not insulated and direct joint was provided. He had apprised the authorities to take corrective measures. According to him his wife was earning Rs. 40/- per day. PW-4 Meena Kumari and PW- 5 Ashok Kumar have supported the version of PW-3. DWs visited the spot immediately after receiving the information of electrocution of Bhagi Rathi on 19.3.1983. Smt. Bhagi Rathi was electrocuted when she was spreading clothes on the slab of her house. It is borne out from the record that current has travelled from the stay wire PW-3 has categorically deposed that no kit-kat was installed on the supply pole and the stay wire was not insulated and ‘T’ was also not provided on the joint of house of the plaintiffs from where the supply was given to other houses. It has also come in the evidence that no cut out was provided. It is in these circumstances that Bhagi Rathi died due to electric shock. DW-3 Gata Ram has deposed that no current was flowing in the house of husband of the deceased. He has admitted in the cross-examination that the wire meant for hanging the clothes for being dried up was not tied up with the house of Sardara. In these circumstances the trial court has invoked the principles of res-ipsa-loquitor. It was for the defendant to prove that all the 4 precautions had been taken. It was the duty cast upon the Board to ensure that kit-kats were installed, the stay wire was properly insulated and the ‘T” was provided at the joint. It has not come in the evidence of the defendant that these measures were taken by the Board. The defendants have failed to prove that they had placed these equipments at the place of accident. The learned District Judge in these circumstances has recorded a wrong finding that the principle of res-ipsa-loquitor was not applicable. In the present case it is not in dispute that Bhagi Rathi died due to electric shock. She was spreading the clothes on her slab. The Board has not taken proper measures as discussed hereinabove to avoid mishap. PW-3 has deposed that he had requested the authorities to take preventive measures to avoid mishap by visiting the office of the Board. The Board has failed to discharge its statutory duties by ensuring proper up-keep of the electric equipment. The learned District Judge has also wrongly applied the principle of Rylands v. Fletcher. The accident has occurred on the slab and not within the house of the plaintiff. It is the duty of the Board to ensure that electric equipments are affixed/installed for proper supply of the current to the house of the consumers. In case any mishap has taken place out side the house as is in the present case on the slab, it was for the Board to establish by leading cogent evidence that they were not at fault and had taken all the precautions. This burden has not been discharged by the Board in the present case. The evidence brought on record clearly establishes that the accident has taken place due to improper up-keep of the insulation by the Board. The accident has taken place and this fact has also not been denied by the defendant. It is a fit case where the principle of res-ipsa-loquitor was applicable. It is the paramount duty of the Board to ensure that while transmitting, supplying 5 or use of energy does not result in accident causing loss of human or animal life or causing any injury to human being or animal. Human life is precious and must be preserved and protected. There should not be any remissness in discharge of statutory duties prescribed under law by the functionaries of the Board at the time of generation, transmission, supply or use of energy. Accordingly, the Regular Second Appeal is allowed. The judgment and decree passed by the learned first appellate court is set aside and that of the learned trial court is restored. There will, however, be no order as to costs. 21.4.2009 (Rajiv Sharma ), J. *awasthi*