(1) HIGH COURT OF MADHYA PRADESH : JABALPUR F.A. No. 411/2006 Chairman, Gramin Vidyut Sahakari Samiti Marydit Nigam & another Vs. Mst. Dharmipal As Per : G.S.Solanki, J. Shri Atulanand Awasthi, Advocate for appellants. Shri Deependra Mishra, Advocate for respondent. Judgment reserved on : 8.3.2011 Judgment delivered on : 25.4.2011 J U D G M E N T 1. The appellants have preferred this appeal under section 96 of C.P.C. being aggrieved by judgment and decree dated 8.2.2006 passed by District Judge, Chhatarpur in C.S. No. 6-B/2004 whereby the suit of respondent was decreed against the appellants. 2. The case of respondent/plaintiff, in short, is that on 7.9.1998 Permapal/husband of plaintiff, had gone in village Shyamra Har for grazing the cattle where high tension electric wires were lying on the road, he came into the contact of said electric wires and died due to electrocution. It has been alleged that said electric wires were lying on the earth for 2 days and this information was sent by the villagers to defendants but they did not (2) take care of the same. Permapal died due to negligence of defendants. It has been further pleaded that a report in this regard was lodged at P.S. Garhi Malhara on 8.9.98, a marg intimation was registered and dead body of Permapal was sent for post mortem examination where it was found that he died due to electrocution. 3. It has been further pleaded that Permapal was earning a sum of Rs. 15000/- per month. Respondent/Plaintiff were dependent on him, therefore, lumpsum compensation of Rs. 3 Lakhs was prayed. 4. Appellants/defendants denied the negligence attributed to them and pleaded that on 28.5.1998, they performed pre monsoon maintenance of electric lines but electric pole of village Shyamra Har was tilted and neutral wire was broken due to storm in the mid night of 6th and 7th September, 1998. It has been further pleaded that on receiving the information of broken neutral wires, they were checked that there was no electric current in the wires and since other electric lines were also disturbed and broken, employees were engaged in repairing that lines. It has been further pleaded that deceased Permapal must have been tampered with the neutral wires and same must have attached with phase line, due to which the accident occurred. It has been further pleaded that the accident occurred due to act of God as well as due to gross negligence of deceased himself. It has been further (3) pleaded that son and daughter of the of deceased have not been made party, hence there is default of non joinder of parties. 5. Learned trial Court after framing as many as 8 issued and appreciating the evidence on record, decreed the suit of respondent, hence this appeal. 6. Learned counsel for the appellants has submitted that the trial Court committed illegality in not appreciating the evidence on record in this proper perspective. Suit was not maintainable due to non joinder of essential party M.P. State Electricity Board. He has further submitted that accident took place due to act of God, which was not within the control of human being. He has prayed for setting aside the judgment and decree passed by the trial Court and further prayed for dismissal of suit with costs. 7. On the other hand, learned counsel for the respondent has submitted that accident took place due to negligence of appellants/defendants in not repairing the broken electric line. Counsel has further submitted that initially he made the party to M.P. State Electricity Board but on the objection of Board that appellants/defendants are responsible for maintaining the electric line of area in question, name of Board has been deleted from the array of defendants, in these circumstances, appellants are stopped to raise this plea firstly before this Court. On the basis of aforesaid contention, counsel has supported the (4) impugned judgment and decree passed by the trial Court and prayed for dismissal of this appeal. 8. I have perused the impugned judgment, evidence and other material on record. First of all, I consider the contention raised regarding non joinder of essential party. On perusal of record, it reveals that initially the M.P. State Electricity Board (for short Board) was made the party but an objection was raised by the Board that maintenance of electric line in question has been allotted to appellants/defendants Village Electric Cooperative Society Limited, Nowgaon and trial Court after considering the objection of Board allowed respondent/Plaintiff to delete the Board from the array and incorporate the name of President and Managing Director of Village Electric Cooperative Society Limited, Nowgaon, there was no pleading in regard to non joinder of Board in written submission of appellants/defendants, hence they are stopped to raise this point before this Court. 9. Coming to the main question for consideration whether the accident in question occurred due to act of god or due to negligence of appellants/defendants. It is not in dispute that Permapal died due to electrocution, same is proved on record by post mortem report (Ex.P-4) filed by Brijkishore (PW-1) Dr. Satish Choubey (PW-4) deposed that Permapal died due to asphyxia due to electric current. Marg intimation was sent to additional S.P. (5) Chhattarpur. Plaintiff Dharmipal (PW-2) deposed that her husband had gone for grazing the cattle, where he came into the contact of high tension electric wires, which were lying on the earth, due to which accident occurred and he died. She further deposed that said wires were lying on the earth before 2 days and this information was sent to the defendants by the villagers but they did not take care of the same. She admitted in her cross-examination that there was storm in the mid night of 6th and 7th September, 1998 due to which electric wires were broken but she specifically denied that there was no electric current in the said broken electric wires. Bhagwandas (PW-3) S/o plaintiff supported the version of the plaintiff. 10. Vijay Kumar Omre (DW-1) Junior Engineer, Village Electric Cooperative Society, Nowgaon, deposed that there was storm in the mid night of 6th and 7th September, 1998, due to which electric lines were broken. He further deposed that Nathuram (DW-2) informed regarding the broken lines, on the basis of the same he inspected the line and discharged the current from the same. He further deposed that at the place of incident near village Sthiagola, neutral wire was broken but there was no current in that wire. He admitted in his cross examination that after checking, he left the broken wire near the pole. He further admitted that pole was tilted due to fall of tree and there was electric current in the other wires of pole. (6) Nathuram (DW-2) deposed that he informed to the employees of respondent regarding broken wires. He admitted in his cross examination that despite information given by him regarding broken wires for 2 days, no one turned up to repair the same. He further admitted that he saw that two wires were lying broken on the spot and current was flowing in them. He has also admitted that employees of electric department came on the spot after death of Permapal. 11. Considering the aforesaid evidence on record, the trial Court rightly held that despite the information given by Nathuram Chowkidar, employees of cooperative society did not turn up, they came after death of Permapal, in these circumstances, plea and evidence regarding fact that Permapal could have tampered the neutral wires and came to the contact of phase wire due to which he was electrocuted, cannot be said to be believable and the trial Court rightly discarded the same. No doubt there was a storm, due to which electric wire was broken and pole was tilted but it was the duty of appellants/defendants to repair the same immediately but they failed to perform their duties, hence they are liable to pay the compensation on the basis of doctrine of strict liability as held by the Apex Court in AIR 2002 SC 551 – M.P. Electricity Board Vs. Shail Kumar and others after following (7) celebrated case of Rylands Vs. Flectcer – (1868) LR (3) HL 330. 12. Coming to the question of compensation; respondent/plaintiff deposed that her husband used to earn a sum of Rs. 15,000/- per month. It is also proved on record that deceased Permapal was 70 years of age. The trial Court after considering the age and other facts on record awarded lumpsum compensation of Rs. One Lakh, which in my opinion, cannot be said to be exorbitant. The trial Court did not commit any illegality in awarding the compensation against the appellants. 13. In the result, the appeal is liable to be dismissed, same is hereby dismissed. Appellants to bear their own costs and cost of respondent. Advocates' fee as per schedule or certificate, whichever is less. 14. Decree be drawn accordingly. (G.S.Solanki) Judge PB