1 fa 1494.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 1494 OF 2010 1. Smt. Vimal W/o Asraji Mule, Age : 40 Years, Occu. : Agril., R/o Laxmi Chowk, Patoda, Tq. Patoda, Dist. Beed. 2. Ku. Shivganga d/o Asraji Mule, Age : 16 Years, Occu. : Education, 3. Dattatraya S/o Asraji Mule, Age : 14 Years, Occu. : Education, Nos. 2 and 3 being Minor, represented through natural guardian-mother-the applicant No. 1 Both R/o as above. .. Appellants Versus 1. The Superintending Engineer, Maharashtra State Electricity Distribution Co. Ltd., N. K. Building, Jalna Road, Beed, Dist. Beed. 2. The Executive Engineer, Maharashtra State Electricity Distribution Co. Ltd., Jalna Road, Beed, Dist. Beed. 2 fa 1494.10 3. The Assistant Engineer, Maharashtra State Electricity Distribution Co. Ltd., Patoda, Tq. Patoda, Dist. Beed. .. Respondents Shri C. K. Shinde, Advocate for Appellants. Shri S. V. Mundhe, Advocate for Respondent Nos. 1 to 3. CORAM : S. V. GANGAPURWALA, J. DATE : 03RD MAY, 2011. ORAL JUDGMENT : . The present appellants had filed a suit seeking compensation on account of death of one Shivaji who is son of appellant No. 1 and brother of appellant Nos. 2 and 3. The said Shivaji died due to electrocution on 11.09.2006. On account of death of Shivaji due to electrocution the present appellants have filed Spl.C.S. No. 73/2009 for compensation to the tune of Rs. 5,00,000/-. The Trial Court partly decreed the suit to the extent of Rs. 1,32,750/- with interest at the rate of Rs. 6% per annum from the date of suit till realization. Aggrieved by the inadequate amount of compensation awarded by the Trial Court, the plaintiffs have filed present appeal. 2. Shri C. K. Shinde, the learned counsel for appellants submits that the Court below has erroneously computed the 3 fa 1494.10 income of the deceased at the rate of Rs. 3,000/- per annum. According to the learned counsel, even as per the judgment of the Apex Court in a case of R. K. Malik and another Vs. Kiran Pal and others reported in AIR 2009 SC 2506, the notional income of a non earning deceased member has to be taken as Rs. 15,000/- per annum. The learned counsel further contended that even non pecuniary damages have not been awarded. According to the learned counsel the defendants have not assailed the finding of the Trial Court regarding the liability of the present defendants and the conclusion drawn that the defendants are negligent. As such, in the present appeal the defendants cannot be permitted to agitate the same. The learned counsel further contended that in case of death of electrocution, the liability of the defendants is without any exception. The liability is a strict liability and the exceptions are not applicable in a case of electrocution. For the said purpose the learned counsel relies on the judgment of the Apex Court in a case of M. P. Electricity Board vs. Shail Kumari reported in 2002 (2) SCC 162. 3. Per contra, Shri Mundhe, the learned counsel for defendants contends that even without filing a cross objection the defendants can assail the finding regarding negligence in view of 4 fa 1494.10 the provisions of Order 41 Rule 22 read with Rule 33 of the Code of Civil procedure. The learned counsel referring to the report of Electricity Inspector submits that the electrocution was the result of the acts of the plaintiffs themselves, as they use to tie cattle to the stay wire because of which it got rolled. The learned counsel also relies on the statement of the Junior Engineer who had conducted the enquiry and it was found that as cattle were being tied to the stay wire because of the same fuse and neutral became one and electrocution took place. The learned counsel relied on Rule 90 Sub Rule 2 of the Electricity Rules and submits that when there is a earthing to the stay wire, then there is no need for insulator. As such, the finding of the Court based on the report of Electricity Inspector that the insulator was not there to the stay wire and which resulted in the electrocution showing negligence of the defendants is improper. The learned counsel further contended that there is nothing on record to show the age of the deceased. The multiplier would be applied considering the age of the deceased. As the appellants have failed to prove the age of the deceased, even the multiplier applied by the Court below is erroneous. According to the learned counsel, the deceased was not earning member and so Rs. 3,000/- per annum income has been properly computed. The learned counsel further 5 fa 1494.10 submitted that, there is no record to substantiate grant of non pecuniary damages in as much as it has not been brought on record that the deceased was a bright student. Shri Mundhe, the learned counsel relied on the judgment of the Apex Court in a case of S.D.O. Grid Corporation of Orissa Ltd. V. Timudu Oram reported in AIR 2005 SC 3971 to contend that unless negligence is proved, the defendants are not liable to pay any amount. 4. Admit. 5. On 18.04.2011 this Court had passed an order for final disposal of appeal. The learned counsel for the appellants has provided the paper book. With the assistance of learned counsel I have gone through the judgment and the paper book. 6. The Apex Court in a case of M. C. Mehta Vs. Union of India reported in AIR 1987 SC 1086 has observed thus : "Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on anyone on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those 6 fa 1494.10 who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands v. Fletcher." 7. The Apex Court in a case of M. P. Electricity Board Vs. Shail Kumari referred supra, has reiterated the said proposition and has observed that if any live wire got snapped and fell on public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person. 8. It is undisputed that the deceased Shivaji died due to electrocution, as he touched the said stay wire. The Electrical Inspector has submitted the report and had also stated that the fuse to the wire was not of adequate capacity i. e. also one of the reason for electrocution. The arguments of the learned counsel for the defendant that some persons unauthorizedly changed the fuse cannot be accepted as it is duty of the defendants to man the said aparatus. 7 fa 1494.10 09. The fact that the fuse was not of the required capacity itself shows negligence on the part of the defendants. Moreover, even in view of the judgment of the Apex Court in a case of M. P. Electricity Board Vs. Shail Kumari, referred supra, the defendants would be liable for the payment of compensation. 10. Once having proved that the deceased died due to electrocution as the stay wire got rolled and the fuse was not of adequate capacity, the negligence of this defendants would be writ large. Even assuming there was no negligence to apply the principle of strict liability as is evolved by the Apex Court in a case of M. C. Mehta Vs. Union of India and M. P. Electricity Board Vs. Sail Kumari referred supra, the defendants would be liable to pay the compensation to the appellants. The relationship of the appellants with the deceased is not disputed. 11. The mother has stepped into witness box and has deposed that the deceased was 17 years of age. There is no contra evidence on record regarding the age of the deceased. In such circumstances, there is no reason to disbelieve the statement of the mother of the deceased. The Trial Court in this regard has rightly come to the conclusion. So next aspect is of quantum of 8 fa 1494.10 the compensation to be awarded. The Apex Court in a case of R. K. Malik Vs. Kiran Pal and others referred supra has held that in case of a death of a person who was not earning at the time of death, notional income of Rs. 15,000/- per annum should be considered. The learned Single Judge of this Court in a case of Malti Venkatrao Kulkarni Vs. G. Yoganand and another reported in 2007(6) Bom. C. R. 272 relying on the aforesaid judgment of Apex Court has taken the same view. In the light of that it was total erroneous on the part of the Trial Court to hold that the income of the deceased should be considered as Rs. 3,000/- per annum. 12. Taking into consideration the notional income of the deceased as Rs. 15,000/- per annum and the age of the deceased as 17 years, the multiplier of 16 would be applicable. As such, the amount which the appellants would be entitled to would be Rs. 2,40,000/-. 13. The contention of Shri C. K. Shinde, the learned counsel for the appellants that the non pecuniary damages to the extent of Rs. 75,000/- should be awarded relying on the judgment of the Apex Court in a case of R. K. Malik Vs. Kiran Pal referred 9 fa 1494.10 supra, cannot be accepted for the reason, there is nothing on record to show that the deceased was a bright student and had a bright future. As such, I reject the contention of the appellants that they would be entitled to Rs. 75,000/- towards non pecuniary loss. However, as a recognition of right to get non pecuniary damages, I award Rs. 25,000/- towards the same. 14. In the result the appeal is partly allowed. The impugned judgment and award passed by the Trial Court is modified. It is held that the appellants are entitled for an amount of Rs. 2,65,000/- with future interest at the rate of Rs. 6% per annum. The defendant Nos. 1 to 3 are directed to pay the amount of Rs. 2,65,000/- jointly or severally to the plaintiffs with interest at the rate of Rs. 6% from the date of suit till realization. The first appeal is accordingly disposed of, however, with no order as to costs. [ S. V. GANGAPURWALA, J. ] bsb/May 11