IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA Nos. 138 of 2005 & RFA No. 436 of 2006. Judgement reserved on: 18.3.2009 Date of decision: March 26, 2009. 1. RFA No. 138 of 2005. Uttar Haryana Bijli Vitran Nigam (UHBVN) (earlier part of Haryana State Electricity Board) ….. Appellant. Versus Miss Rajni (minor) d/o Durga Dutt through her father and natural guardian Sh. Durga Dutt. …. Respondent. 2. RFA No. 436 of 2006. Miss Rajni (minor) d/o Durga Dutt through her father and natural guardian Sh. Dugra Dutt. ….. Appellant. Versus Haryana State State Electricity Board. …. Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Shrawan Dogra, Advocate for appellant in RFA No. 138/05 and for respondent in RFA No. 436 of 2006. For the Respondent : Mr. Virender Thakur, Advocate for respondent in RFA No. 138/05 and for appellant in RFA No. 436 of 2006. Kuldip Singh, Judge. This judgement shall dispose of RFA Nos. 138 of 2005 and 436 of 2006 both having arisen from judgement and decree dated 11.3.2005 passed by learned Additional District Judge, Solan in Whether the reporters of the local papers may be allowed to see the Judgment? …2… case No. 87 FT/1 of 2004/ 2002, decreeing the suit. In this judgement, the parties are referred from RFA No. 138 of 2005. 2. The brief facts of the case are that respondent had filed a suit for recovery of Rs. 5,00,000/- against Haryana State Electricity Board predecessor of Uttar Haryana Bijli Vitran Nagam, appellant in RFA No. 138 of 2005. The respondent was aged about 12 years at the time of filing of the suit which was filed as an indigent and permission was granted to sue as indigent person on 2.5.2002. The pleaded case of respondent is that appellant had been supplying electricity to water supply scheme of Indian Railways. The storage tanks and lifts etc. of one of the water supply scheme is situated at Mauza Tipra, Post Office, Parwanoo, Tehsil Kasauli. The appellant had made some alteration in the electricity supply line laid for the purpose of supply of electricity to pumping station at village Tipra. The changes made by the appellant in the supply line brought the electric wires at low level on the roofs of some of the houses at village Tipra. The residents of village Tipra brought the matter to the notice of appellant and a letter in this connection was received in the office of appellant on 16.11.1999. The residents of village Tipra even thereafter had been requesting the authorities of appellant to raise the height of electricity supply line, but to no avail. 3. The respondent had been living with her father. On 12.4.2000, the respondent had gone on the roof top of her house at about 6.15 p.m. and she came in contact with live electricity wire of appellant and received injuries on her person, as a result of the injuries both hands and mental faculty of the respondent were …3… severally affected and her entire life became miserable, her chances to lead normal happy life were diminished. The respondent had been undergoing treatment at P.G.I., Chandigarh, but there were no chances of recovery. The respondent due to injuries could not pursue her education and has no hope to lead married life. The respondent is under great pain and mental shock. 4. The respondent got the injury on account of negligence of appellant. The appellant while laying transmission line and making changes in the line from time to time had not kept clear distance from the house top of the respondent. The appellant has violated the rules and acted negligently in maintaining the line. Due to electric current the respondent has become permanent disabled. The father of the respondent had spent huge amount on her treatment and she assessed damages at Rs.10,00,000/- under various heads, but confined her claim to Rs.5,00,000/- only. 5. The suit was contested by appellant by taking preliminary objections of lack of enforceable cause of action, concealment of material facts, suit is vexatious, respondent has no locus-standi to file the suit, estoppel and acquiescence, maintainability and there was no negligence on the part of appellant in maintaining the electricity lines. On merits, it has been pleaded that plaint is vague, no changes were made in the electricity supply line by the appellant. The line was laid in the year 1960 and since then it is existing in the same condition and no alterations were made in the line. The pleaded case of the appellant is that house where respondent was residing was constructed much after laying the …4… electricity line in question. The colony where the respondent is residing was approved in March 1991. The owners of the houses in the colony violated various provisions of Indian Electricity Act 1910 (for short, Act) and the rules framed thereunder and they failed to obtain no objection certificates from the appellant before constructing their houses. They failed to keep proper distances and clearances from electricity line when they raised the construction. It has been denied that residents of village Tipra had requested to raise the height of the electricity line. The appellant has denied that respondent received electric current from the electricity wires of appellant. The injuries sustained by respondent and treatment of respondent were also denied. The appellant denied the negligence attributed to it for maintaining the electricity line. It has been submitted that in any case the claim made is excessive. The appellant prayed for dismissal of the suit. 6. The respondent filed replication in which she has reiterated her stand and denied the defence put forward by the appellant. The learned court below framed the following issues:- 1. Whether the plaintiff suffered permanent disability and multiple injuries due to negligence of the defendant Board? OPP. 2. Whether the plaintiff is entitled to recover Rs.5,00,000/- as damages alongwith interest? OPP. 3. Whether the plaintiff has no legal and valid cause of action? OPD. 4. Whether the plaintiff is estopped by her act and conduct to file the suit? OPD. 5. Whether the plaintiff has no locus-standi to file the suit? OPD. 6. Relief. …5… Issue No. 1 was answered in affirmative, issues No. 3 to 5 in negative and under issues No. 2 and 6, the learned court below awarded a sum of Rs.50,000/- to the respondent, vide judgement, decree dated 11.3.2005. Both the parties have come in appeal. RFA No. 138 of 2005 has been filed by the appellant for setting aside of the impugned judgement, decree and RFA No. 436 of 206 has been filed by the respondent for enhancement of compensation. 7. I have heard Mr. Sharwan Dogra, learned counsel for the appellant and Mr. Virender Thakur, learned counsel for the respondent in both the appeals and have gone through the record. Mr. Dogra, has submitted that the electricity line in question was laid in the year 1960, the house where the respondent had been living with her father at the time of alleged occurrence was constructed much later. In fact, the colony itself was approved in the year 1991. The residents of colony without taking no-objection certificates from the appellant had constructed their houses and did not leave proper clearances from the electricity line. The learned counsel for the appellant has submitted that no changes were made in the electricity line ever since it was laid in the year 1956 or 1960. The respondent cannot take benefit of her own wrong and claim compensation from the appellant. Per contra, learned counsel for the respondent has submitted that appellant had been negligent in maintaining the electricity line. The appellant had made some alteration in the electricity line and the residents of village Tipra submitted written objections to this effect to the appellant but to no avail. The respondent got serious injuries due to electric current when live wires …6… of appellant came in contact with the respondent. The appellant was negligent in maintaining the line. The father of the respondent had spent huge amount on her treatment. The respondent has suffered 40% permanent disability. The respondent is living in mental pain and shock. The respondent has no scope for marriage. In the facts and circumstances of the case and keeping in view the fact that respondent is a girl, the court below has awarded meager amount of Rs.50,000/- as compensation. He has prayed for enhancement of compensation. 8. PW 1 Rajni has tendered her affidavit in evidence and has also produced Ex. AW 1/A, Ex. AW 1/B and Ex. AW 1/C, which have been wrongly referred as Ex. PW 1/A to Ex. PW 1/C in her statement. In her cross-examination, she has stated that she had gone to the school five-six months after the accident. She does her daily routine work but she can’t comb her hair herself. The electricity wires were changed in the year 1999. The houses were below the wires even prior to that. She remained admitted in the hospital for about 2-3 months and thereafter she was operated upon. 9. PW 2 Durga Dutt has tendered his affidavit in evidence. He denied that electricity wires in the area were laid in the year 1960. He had been earlier living in the house as tenant. He purchased the house in the year 1994-95. he did not obtain no-objection certificate from electricity department, when he laid the slab of his house, as the electricity lines were at high level at that time. He denied that respondent got electric shock in the house due to her own negligence. The respondent was treated in P.G.I., Chandigarh for …7… about one and half years. The respondent got failed in 10th class but now she is studying in ten plus one. 10. PW 3 Purshotam Lal has tendered his affidavit in evidence. In cross-examination, he has stated that he had purchased his house in the year 1991. The electricity line was on high level when the house of the respondent was constructed. The electricity department in the year 1999 did something with the wires, as a result of which electric wires became loose. They had made a joint complaint in writing. PW 4 Roop Chand after tendering his affidavit in evidence has stated in cross-examination that Dugra Dutt had purchased the house in the year 1994. The electricity department had changed electricity wires in the year 1999. 11. PW 5 Dharam Singh HHC, Police Station, Parwanoo has proved FIR Ex. PW 5/A. PW 6 Dr. J.P. Sharma, Orthopedics Surgeon, Civil Hospital, Solan has stated that he had examined Rajni, who has suffered 40% permanent disability and a certificate to this effect is Ex. PW 6/A, which bears his signatures. In cross examination, he has denied that Rajni can do her routine work. 12. DW 1 Mukesh Chauhan, SDO of appellant’s department after tendering his affidavit in evidence in cross-examination has stated that he had not visited village Tipra. This line right from the year 1956 is 11 KV line. He denied that alignment of this line was changed. Some villagers had submitted an application for changing the line, but Junior Engineer on 1.1.2000 had reported that it was not possible to change the line. Ex. AW 1/A was received in the office on 16.11.1999. He could not tell that when Durga Dutt had repaired his …8… Kutcha house then the height of his house was not raised. In the year 1996, notices were issued to some persons, namely Gobind Ram, Pappu Sharma, Mahinder Pal Chopra and Banarsi Dass, the residents of village Tipra. In his record, there is no notice which was given to Durga Dutt. He has stated that as per rules, the ground clearances of such wires should be eight metres. 13. DW 1 Mukesh Chauhan has stated that 11 KV line was laid in the year 1956. Rule 80 of Indian Electricity Rules, 1956 (hereinafter referred to as the Rules) provides that for high voltage lines upto and including 33,000 volts, the vertical clearance from a building should be 3.7 metres and the horizontal clearance for high voltage lines upto and including 11,000 volts a building should be 1.2 metres. The case of the appellant is that after 1956 no changes were made in the line rather since 1956 the line is in its existing position. In the pleadings, the appellant has pleaded that line has not been changed since 1960. The pleaded case of the appellant is that father of the respondent Durga Dutt had raised unauthorized construction of his house and raised height of the house under the transmission line and for that reason the negligence cannot be attributed to the appellant. There is no denial of the fact that maintenance of the transmission line was the duty of the appellant. It has come on record that residents of village Tipra vide Ex. AW 1/A on 16.11.1999 reported to the appellant that transmission line is very close to the roofs of the houses and at any time it can cause an accident. The villagers made a request to appellant to shift the transmission line from the roofs. The appellant very casually responded to the request …9… of the villagers and according to the appellant a Junior Engineer visited the spot and reported that it was not possible to shift the transmission line. No senior officer visited the spot, DW 1 has very specifically stated in his statement that he never went to village Tipra. The appellant even after the request of the villagers vide Ex. AW 1/A did not verify the fact whether transmission line is actually passing dangerously over the roofs of many houses in village Tipra. The appellant itself has taken the stand that colony in which the house of respondent is located was approved in the year 1991. The father of the respondent has specifically stated that he repaired his Kutcha house but in doing so he did not raise the height of his house. The accident took place on 12.4.2000. 14. It has come in the statement of DW 1 that appellant had issued some notices to the residents of village Tipra for raising construction under the transmission line but no such notice was issued to the father of the respondent. It has not been denied that at the time of accident, the respondent was about 12 years of age and it is reasonable to infer that at that point of time her height should be less than five feet. As per Rule 80 of the Rules, for high voltage line upto and including 33,000 volts, the vertical clearance from the building should be 3.7 metres. As per Ex. AW 1/B discharge slip and follow up card of the treatment of respondent issued by P.G.I., Chandigarh, the respondent had received burn injuries on her hands and scalp, meaning thereby that live transmission line touched the hands and scalp of the respondent. In other words, the transmission line was at the most around five feet from the roof top of the house of …10… Durga Dutt father of the respondent, which clearance was clearly less than provided in Rule 80. The submission of learned counsel for the appellant regarding the construction raised by Durga Dutt can be considered from another angle. Rule 82 of the Rules provides giving of notice to the supplier and the inspector for erection of or alteration to the buildings etc. The learned counsel for the appellant has submitted that no notice was given to appellant by Durga Dutt, the father of the respondent at the time of making alteration in his house and the changes were made in the house by Durga Dutt at his own level. There is no explanation of the appellant why action was not taken against Durga Dutt for making alteration as per Rules 140 to 141 of the Rules read with Section 50 of the Act, in case Durga Dutt, in fact, had made some alteration in his house and raised the height of his house under the transmission line. It has already been noticed above that appellant had given notices to some residents of village Tipra for raising construction, but no such notice was ever given to Durga Dutt. In these circumstances, the appellant has failed to establish that Durga Dutt, in fact, had made alteration and raised the height of his house by construction under the transmission line. 15. The maintenance of transmission line was the exclusive responsibility of the appellant. In case the transmission line due to any reason had come within the danger level over the roof top of Durga Dutt, it was the responsibility of the appellant to have raised the height of transmission line at that point so as to avoid danger from the transmission line to human life and property. In not doing so, the appellant had acted negligently and the learned Additional District …11… Judge in the facts and circumstances of the case and after due appreciation of evidence on record has rightly found the appellant negligent in not maintaining the transmission line properly. The statement of PW 1 Rajni, PW 2 Durga Dutt coupled with Ex. AW 1/B discharge slip and follow up card of P.G.I., Chandigarh clearly establish that respondent had received burn injuries on her person when live transmission line came in contact with PW 1. 16. The respondent has 40% permanent disability of loco motor impairment as per disability certificate Ex. PW 6/A. PW 6 Dr. J.P. Sharma, Orthopedics Surgeon has denied that Rajni can do her routine work. The respondent got burn injuries due to electric current when she was about 12 years of age. It has come in the statement of PW 1 that she remained in hospital for about 2-3 months and she was even operated upon. PW 2 Durga Dutt in his statement has stated that treatment of his daughter PW 1 continued for about one and half years. As per Ex. AW 1/B dated 5.5.2000, the left middle finger of the respondent was amputated, the chances of the marriage of the respondent have diminished, not only this due to disability the quality of life of respondent has been adversely affected. The respondent has not placed on record the expenses of her medical treatment nor other material has been placed on record so as to determine the damages in a proper manner. 17. The trial court has awarded Rs.50,000/- to the respondent, but in my opinion, damages of Rs.50,000/-, in the facts and circumstances of the case, are on the lower side. The damages in a given case can be assessed to some extent on conjectures …12… keeping in view the ground realities of life. The Hon’ble Supreme Court in Lata Wadhwa and others vs. State of Bihar and others 2001 (8) SCC 197, has approved the compensation ranging from Rs.3,00,000/- to Rs.10,00,000/- in case of girls who got burn injuries but from para 13 of the report it is clear that said compensation was not objected by the company. At the end of para-13 of the judgement the Supreme Court has held that person having burn injuries to the extent of 10% and below have not been awarded any compensation, and, therefore, as a matter of passion the Supreme Court has awarded a lump sum of Rs.2,00,000/- in favour of each of those persons. In the present case, the percentage of burn injuries of respondent has not come on record, but it has come on record that respondent has suffered 40% permanent disability due to loco motor impairment. The respondent is a girl, the effect of burn injuries and 40% permanent disability due to loco motor impairment can be imagined. The disability of respondent is likely to have affect on future life of respondent adversely including her married life, if at all respondent is married. In these circumstances, in my opinion, the respondent is entitled to atleast Rs.2,00,000/- compensation alongwith interest at the rate of 9% per annum from the date of filing of the suit till realization. The learned Additional District Judge has not properly assessed the quantum of compensation on account of injuries sustained by respondent and, therefore, the impugned judgement , decree to that extent are liable to be modified in appeal being RFA No. 436 of 2006. There is no merit in RFA No. 138 of 2005. …13… 18. No other point was urged. 19. The result of above discussion, RFA No. 138 of 2005 is dismissed and RFA No. 436 of 2006 is allowed and a decree for a sum of Rs.2,00,000/- on account of damages is passed in favour of the respondent (plaintiff) and against the appellant (defendant) alongwith 9% per annum interest from the date of filing the suit i.e. 3.10.2000 till realization with costs. March 26, 2009 ( Kuldip Singh ) (Hem) Judge.