HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APEAL NO. 67 OF 2006 Executive Engineer, Uttaranchal Power Corporation Ltd., Electricity Distribution Division & another ….Defendants -Appellants Vs. Kunwar Singh & another ….Plaintiff -Respondents 24.6.2008 Hon’ble Rajesh Tandon, J. Heard Sri B.D. Upadhyaya, counsel for the appellant and Shri R.P. Nautiyal counsel for the respondents. 2. By the present first appeal filed under Section 96 of the Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 23.6.2006 passed by the District Judge, Rudraprayag in Civil Suit No. 11 of 2005. 3. Briefly stated, a suit was filed by the plaintiff for compensation to the extent of Rs. 1,00,00/- from the defendants on account of death of his daughter Kumari Sangeeta on 1.6.2004. According to the plaint averments, on 1.6.2004, the deceased Kumari Sangeeta was sowing paddy alongwith Smt. Rajeswari and Kumari Rekha in the field at Bandartoli. There was a pole existing in the filed for the purpose of carrying 11 KB H.V. Line. At about 4 p.m. the current passed in the filed due to negligence of the defendants as a result of which Kumari Sangeeta scorched badly as a result of which she died. It has been stated that the deceased was a meritorious girl. 2 The postmortem of the deceased was conducted at District Hospital, Gopeshwar. The plaintiff has sent the notices to the defendants for compensation but of no avail, hence, the present suit has been filed for compensation to the extent of Rs. 1,00,000/- 4. The defendant nos. 1 and 2 have filed their written statement admitting therein that Kumari Sangeeta has died due to electric current. It has been stated that there is no negligence on the part of the defendants. The accident has taken place due to electric breakdown, which occurred due to storm. In paragraph 15 of the written statement, it has been stated as under:- “15- fd izfroknhx.k 1 o 2 dh mDr nq?kZVuk esa dksbZ ykijokgh ugha dh Fkh A ;g nq?kZVuk ek= ,d izkd`frd la;ksx Fkk ftldk [kqyklk mijksDr dj fn;k xk gS A nq?kZVuk ds rqjUr ckn gh mi [k.M vf/kdkjh ,oa voj vfHk;Urk }kjk ekSds ij tkdj foLr`r tkudkjh yh xbZ A ekSds ij lrs flag jkor] izsensbZ o nhik nsoh ds c;ku ntZ fd;s x;s A vius c;kuksa esa mUgksaus Lohdkj fd;k gS fd e`rdk fo|qr iksy ds fudV Fkh ftl dkj.k e`rdk dks vf/kd djaV yxus ds dkj.k csgks’k gks xbZ Fkh A bl nq?kZVuk dh lwpuk ds rqjUr ckn gh vf/k’kklh vfHk;ark fo|qr forj.k [k.M] :nziz;kx }kjk dk;Zokgh dj e`rdk ds eqvkots gsrq fy[kk x;k ftl ij oknhx.k dks e`rdk ds e`R;q dk eqvkotk foHkkxh; fu;ekuqlkj fnukad 27@9@95 dks eq0 20]000@& :Ik;s oknh dks ns fn;k x;k gS ftldh izfrfyfi tokc nkok ds lkFk layXu gS A bl izdkj izfroknhx.k fdlh Hkh izdkj dh {kfriwfrZ nsus ds mRrjnk;h ugha gSa A tks Hkh mRrjnkf;Ro izfroknhx.kksa dk foHkkxh; vuqlkj curk Fkk og iwoZ esa fn;k tk pqdk gS A bl izdkj oknh dk okn lC;; [kkfjt gksus ;ksX; gS A” 5. The defendant no. 3 has filed the written statement admitting the accident in question. It has been stated that the 3 compensation has been claimed from the defendant nos. 1 and 2. The suit is not maintainable against the defendant no. 3. In paragraph 14 of the written statement, it has been stated as under:- “14- fd izfroknh ua0 2 ds uke ls fo|qr foHkkx dks vyx ls ekuoh; nq?kZVuk gksus ij vuqnku ljdkj ls izkIr jgrk gS rFkk fdlh Hkh izdkj dh nq?kZVuk gksus ij izfroknh ua0 3 }kjk mUgsa vyx ls vuqnku izkIr jgrk gS A” 6. On the pleadings of the parties, the trial court has framed the following issues:- “1- D;k oknh dh iq=h dqekjh laxhrk fnukad 1&6&2004 dks xzke lhlksa] i0 o`r rSyk rglhy t[kksyh ftyk :nziz;kx ds cUnjrksyh uked rksd esa /kku dh jksikbZ djus x;h Fkh rFkk mDr /kku ds [ksrksa ls foi{khx.k dh 11 ds0ch0 dh ,p0ch0 fo|qr ykbZu xqtjrh gS ftldk fo|qr iksy mDr /kku ds [ksr esa xM+k gqvk gS \ 2- D;k mDr fnukad dks 4-00 cts lk;a tc oknh dh iq=h dq0 laxhrk cqVksyk vU; yM+fd;ksa ds lkFk [ksr esa /kku dh jksikbZ dj jgh Fkh rks vpkud izfroknhx.k dh ykijokgh ds dkj.k mDr fo|qr iksy esa djaV vkus ds dkj.k djaV ikuh Hkjs [ksr esa Qsy x;k ftlls dqekjh laxhrk cqjh rjg >qyl x;h ,oa ckn esa jktdh; fpfdRlky;] :nziz;kx esa mldh e`R;q gks x;h \ 3- D;k mDr nq?kZVuk ds fnu rwQku pyus ds dkj.k LokHkkfod fo|qr czsdMkmu gks x;k tks fd vDlj ?kfVr gksrk jgrk gS vkSj pkgdj Hkh bldks ugha jksdk tk ldrk gS\ 4- D;k e`rdk dq0 laxhrk Lo;a dh ykijokgh ls fo|qr iksy ds LVs ds laidZ esa vk x;h vkSj D;k mDr nq?kZVuk ,d izkd`frd la;ksxiw.kZ nq?kZVuk Fkh\ 5- D;k fo|qr foHkkx esa bl izdkj dh nq?kZVukvksa ds fy, ek= 20]000@& rd dk eqvkotk nsus dk fu;e gS tks fd e`rdk ds ifjokj okyksa dks vnk fd;k tk pqdk gS\ 6- D;k izkFkhZ foHkkx ls fdlh {kfriwfrZ dks izkIr djus dk vf/kdkjh gS] ;fn gkWa rks fdruh /kujkf’k\” 4 7. While deciding issue no. 1 as to whether the daughter of the plaintiff Kumari Sangeeta was sowing the paddy crop in field at village Sison, tehsil Jakholi, district Rudraprayag where the electric pole of defendants are existing for carrying 11 KB H.V. electric line, the trial court has recorded the finding that the aforesaid facts are admitted by the defendants and, therefore, the issue is decided accordingly. 8. While deciding with regard to cause of accident in question, the trial court has taken into consideration that the accident in question had taken place due to separating of the insulator from the electric wire due to storm. The trial court has come to the conclusion that the accident had taken place due to negligence of the defendants. The trial court has recorded the findings to the following effect:- “izfroknhx.k ds bl LohdkjksfDr ls ifjyf{kr gksrk gS fd iksy ij yxs bUlqysVj ij yxs vUnj dh pwfM+;kWa lgh <ax ls dlh ugha x;h Fkh vkSj Qsl dk rkj Hkh lgh <ax ls iksy ij yxs phuh feV~Vh ds midj.k ij lgh <ax ls ugha dlk gqvk Fkk vkSj blh otg ls Qsl dk rkj >Vds ls vyx gks x;k ftl dkj.k iksy ls fo|qr djaV Qsy x;k vkSj ikuh Hkjs [ksr esa dke dj jgh e`rdk djaV dh pisV esa vk x;h vkSj mldh e`R;q gks x;h A oknh dqWaoj flag us vius 'kiFk Ik= }kjk bl rF; dks lkfcr fd;k gS fd fo|qr djaV ls >qylus ds dkj.k mls bykt gsrq jktdh; fpfdRlky; :nziz;kx esa HkrhZ djus ls iwoZ gh mldh e`R;q gks x;hA” 9. While deciding issue no. 3 as to whether the accident has taken place due to natural breakdown, which cannot be stopped and further issue no. 4 as to whether the accident in question had taken place due to negligence of the deceased Kumari Sangeeta, the trial court has taken into consideration the 5 investigation report i.e. paper no. ga 6/7 which shows that the accident in question has taken place due to violation of Rule 29, 50 (1) (C) and 90 (1) of Indian Electricity Regulation by Uttaranchal Power Corporation Limited. The trial court has come to the conclusion that the accident in question had taken place due to negligence of the defendants. The trial court has recorded the finding to the following effect:- “vr% Li"V gS fd ;g nq?kZVuk LokHkkfod ,oa la;ksxiw.kZ nq?kZVuk ugha Fkh cfYd fo|qr foHkkx ds lEcfU/kr deZpkfj;ksa dh =qfViw.kZ ,oa ykijokghiw.kZ dk;Z’kSyh ds dkj.k ?kfVr gqbZ gS A” 10. On the basis of the aforesaid, the trial court has decreed the suit of plaintiff and has awarded a sum of Rs. 1,00,000/- towards compensation. 11. Since, it is admitted fact that the accident in question had taken place by the electric wire of the defendants and the deceased died due to passing of current through her body. So far as the cause of accident is concerned, the trial court has rightly held that the accident in question had taken place due to negligence of the defendants and, therefore, the findings of the trial court are affirmed with regard to cause of accident. 12. Counsel for the appellant has submitted that a sum of Rs. 20,000/- has already been paid to the plaintiff and, therefore, the same shall be adjusted in the amount of compensation. 13. In view of the aforesaid, judgment and decree passed by the trial court is modified to the extent that the amount of Rs. 20,000/- shall be adjusted in the amount of compensation, if the same has already been paid. 6 14. Subject to the aforesaid modification in the judgment and decree passed by the trial court to the extent that the amount of Rs. 20,000/- shall be adjusted, if the same has already been paid, first appeal lacks merit and is dismissed. No order as to costs. (Rajesh Tandon, J.) 24.6.2008 Avneet