1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.F.A. No. 141 of 2005 a/w RFA No. 86 of 2005. Reserved on : 3.3.2010. Decided on: 10.3.2010. ___________________________________________________________ RFA No. 141 of 2005: New India Assurance Company ltd. … Appellant. Versus Kumari Ranjana and others. … Respondents. ___________________________________________________________ RFA No. 86 of 2005: Himachal Pradesh State Electricity Board & others. … Appellants. Versus Kumari Ranjana and another. … Respondents. ____________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 RFA No. 141 of 2005: For the appellant. : Mr. K.D. Sood, Advocate. For respondent No.1. : Mr. Jagdish Thakur, Advocate vice Mr. N.K. Thakur, Advocate. For respondents No. 2 to 4 : Mr. Baldev Singh, Advocate. RFA No. 86 of 2005: For the appellants : Mr. Baldev Singh, Advocate. For Respondent No.1 : Mr. Jagdish thakur, Advocate vice Mr.N.K. Thakur, Advocate. For Respondent No.2. : Mr. K.D. Sood, Advocate. ___________________________________________________________ V.K. Sharma, Judge. Both these appeals are being disposed of by this common judgment as the same arise out of a single judgment and decree dated 21.2.2005 of the learned 1 Whether reporters of the local papers may be allowed to see the judgment? 2 Additional District Judge, Fast Track Court, Chamba (H.P.) in Civil Suit No. 9-04/01, titled Kumari Ranjna versus The Himachal Pradesh State Electricity Board (in short HPSEB) and others, whereby the suit for recovery of Rs. 5 lacs on account of damages resulting out of electric burn injury, while coming into contact with a stay wire through which electric current was passing at the relevant time filed by respondent No.1 Kumari Ranjna as plaintiff against the remaining respondents being defendants in the suit, has been decreed in the sum of Rs. 1,50,000/-. It shall be pertinent to notice at the very outset that the plaintiff was permitted by the learned Trial Court to sue as an indigent person and to file the suit in forma paupris by an order dated 21.7.2001 passed on an application under Order 33, Rule 1, Code of Civil Procedure, 1908. Initially, the suit was filed only against defendants No. 1 to 3 and on their raising an objection as to non-joinder of a necessary party, that is, the New India Assurance Company Ltd., the said company was joined as defendant No.4. Shorn of details the facts pleaded by the plaintiff are that she is a permanent resident of village Chudana, Tehsil Bhatiyat, District Chamba and is an 3 indigent person. She was unable to pay the court fee prescribed by law for filing the suit. The defendants have installed an electric pole in the land belonging to the father of the plaintiff. This pole is supported by a stay wire which is also embedded in the land of her father. On 22.6.1999 at about 4.00 p.m. when the plaintiff was passing through the field of her father, her right hand came into contact with the aforesaid stay wire and as a result she suffered severe electric burn. The stay wire was not insulated and no preventive measures were taken by defendants No. 1 to 3 round the same so as to obviate the possibility of some one coming into contact with it. It was alleged that the stay wire has been fixed by defendants No. 1 to 3 in a reckless manner without taking any precaution so that electric current may not pass into it from the main electric line. According to the plaintiff, she became unconscious due to electric shock. She was taken to the hospital at Chowari from where she was referred to District Hospital, Chamba. However, finding the condition of the plaintiff to be critical, she was referred to I.G.M.C., Shimla, but due to financial constraints, her poor parents could not afford to take her there and instead she was taken to Zonal Hospital, Dharamshala, where she remained admitted from 6.7.1999 to 20.7.1999. Prior to 4 this, she was admitted in District Hospital, Chamba with effect from 25.6.1999 to 28.6.1999. After she was discharged from Zonal Hospital, Dharamshala, she again remained admitted in Swami Sri Harigiri Hospital and Research Centre, Kakira, District Chamba from 21.2.2000 to 19.3.2000, where a sum of more than Rs. 15,000/- to Rs. 20,000/- was spent on her treatment. It was further averred that due to electric burn, the little finger of right hand of the plaintiff has been amputated besides which her right fourth finger has suffered severe contracture and right hand has been rendered totally incapacitated, resulting in disability to the extent of 40%. The age of the plaintiff at the time of filing the suit was stated to be nine years. On account of the accident, her right hand has been rendered non-functional which has marred her future prospects including matrimonial prospects and it has become difficult for her to lead normal life. The claim for damages of Rs. 5 lacs has been detailed as per table given below: i) Medical expenses : Rs. 40,000.00 ii) Travelling Expenses : Rs. 10,000.00 iii) Expenditure of attendant: Rs. 15,000.00 iv) Damages caused to : Rs.4,35,000.00 Total : Rs.5,00,000.00 ---------------------------------------------------------------------------- 5 The suit was contested by the defendants by filing a joint reply. Defendants No. 1 to 3 raised as many as six preliminary submissions out of which the one at serial No. 3 is in the nature of defence on merits denying any negligence on their part and instead setting up a defence that the alleged accident was on account of negligence on the part of the plaintiff herself, the remaining being with regard to maintainability, status of the plaintiff as an indigent person, cause of action and non-joinder of necessary party, that is, defendant No.4, the New India Assurance Company Ltd., which as already noticed, was impleaded as such by the plaintiff at the first available opportunity. On merits, fixing of the electric pole and the stay wire in the land in question was categorically admitted. However, it was asserted that the electric line was laid by the defendant-Board in accordance with the provisions of Indian Electricity Rules, 1956. The line is having automatic tripping system. All the safety measures under the Safety Code have been provided. Thus, the line was free from all sorts of danger. It was also asserted that the plaintiff met with the alleged accident due to her own wanton and negligent act, as fully detailed and described in paragraph 3 of the preliminary submissions and as such, the respondent-Board cannot 6 be fastened with any liability, whatsoever. It was further averred that percentage of disability suffered by the plaintiff owing to the alleged accident has been assessed to the extent of 6% by the Medical Board of District Hospital, Chamba as is apparent from certificate filed with the written statement as Annexure RA-V. According to the reply filed by the defendants, the plaintiff is trying to derive undue benefit by twisting the facts. Defendant No.4 has raised preliminary objections to the effect that its liability to indemnify defendant No.3 is limited to the extent of Rs. 2 lacs only for any one accident and Rs. 8 lacs only during any one year and cause of action. On merits, it was pleaded that the alleged accident occurred due to the wanton and negligent acts of the plaintiff herself inasmuch as that on 21.6.1999 while playing with the particular stay wire by climbing up and down she had received injuries on her palm due to gravitational force and frictional heat owing to extreme hot weather conditions during the month of June and not due to the alleged passing of current through the stay wire which was duly provided with egg insulators and no leakage from the stay wire was ever noticed before and after the alleged accident despite the fact that one egg insulator provided in the stay wire was found broken, 7 which appeared to be the handiwork of children habitual of playing with the stay wires. Since the plaintiff suffered the injuries due to her own wanton and negligent act, no liability, whatsoever, can be fastened against the answering defendant. It was further averred that the percentage of disability suffered by the plaintiff in the alleged accident has been assessed to the extent of 6% by the Medical Board of District Hospital, Chamba, as may be observed from the certificate placed on record. The plaintiff was trying to derive undue benefit by twisting the facts. By filing replication to the written statement filed on behalf of defendants No. 1 to 3, the plaintiff refuted the allegations contained therein except regarding non-joinder of necessary party which defect, as already noticed, was rectified by impleading defendant No.4 and re-iterated the averments set up in the plaint. It was specifically denied that the plaintiff was playing with the stay wire by climbing up and down and had as such received injury and not due to passing of current in the stay wire. The disability certificate produced by the defendant-Board was stated to be prior in point of time and the disability was later on found to have enhanced to 40%. 8 On the above pleadings, the following issues were settled by the learned trial Court: 1. Whether the plaintiff sustained burn injuries on account of the negligence of the defendants No. 1 to 3 as alleged? OPP. 2. If issue No.1 is proved in affirmative, to what amount of compensation the plaintiff is entitled to and from whom? OPP. 3. Whether the plaintiff has cause of action to file the suit? OPP. 4. Relief. After the parties led evidence and were heard by the learned trial Court, the suit was decreed, though partly, as already observed, by holding all the issues in affirmative. I have heard the learned counsel for the parties and gone through the record. Mr. K.D. Sood, learned counsel appearing on behalf of the appellant-Insurance Company (defendant No.4) in RFA No. 141 of 2005 and respondent No.2 in RFA No. 86 of 2005 being very fair and in all graciousness conceded at the very outset that in the given facts and circumstances, a successful challenge cannot be laid against the findings as to negligence as also quantum of damages returned by the learned trial Court under the impugned judgment and decree dated 21.2.2005. 9 This submission would also bind defendants No. 1 to 3 as admittedly the liability to pay damages on account of the accident under reference vests with defendant No.4, the New India Assurance Company Ltd. vide Miscellaneous Accident Insurance Policy Ext. R-1, which was in force at the material time. The Hon’ble Apex Court while applying the law laid down in its earlier judgment reported as Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others versus Sukamani Das (Smt.) and another (1999) 7 SCC 298 has laid down the following dictum of law in SDO, Grid Corporation of Orissa Ltd. and others versus Timudu Oram (2005) 6 SCC 156, which can be noticed with benefit for disposal of the present appeals: “It was held that actions in tort and negligence were required to be established initially by the claimants. The mere fact that the wire of electric transmission line belonging to the appellant had snapped and the deceased had come into contact with it and died by itself was not sufficient for awarding compensation. The Court was required to examine as to whether the wire had snapped as a result of any negligence on the part of the appellants, as a result of which the deceased had come in contact with the wire. In view of the defence raised and the denial by the appellants in each of the cases, the appellants deserved an opportunity to prove that proper care and precautions were taken in 10 maintaining the transmission line and yet the wires had snapped because of the circumstances beyond their control or unauthorised intervention of third parties.” The positive case set up on behalf of the plaintiff as to negligence on the part of defendants No. 1 to 3 in fixing the stay wire and maintenance thereof has been specifically stated by the plaintiff, Kumari Ranjna as PW-2. In cross-examination, she has emphatically denied the defence version which is slightly at variance with the pleadings set up in the written statement that by holding the stay wire she was trying to climb on the electric pole and that while doing so, she had slipped and had suffered burn injury on her hand due to the resultant heat generated besides sustaining injury on the forehead. It is also categorically denied that she was responsible for the accident and the defendants were not at fault. The version stated by the plaintiff as PW-2 also finds corroboration from the testimony of PW-3 Shri Sarno Ram, who is her father and PW-4 Shri Ramesh Kumar an independent witness from the locality. Though, neither of them was an eye witness to the accident, yet their statements are relevant being in the nature of res-gestae as they were amongst the first persons to reach the spot scene immediately after the accident. They were also 11 instrumental in taking the plaintiff to the hospital for treatment after the accident. The rival negative version about the accident set up by the defendants and as deposed by DW-2 Shri R.S. Jaryal, Assistant Electrical Inspector and DW-3 Shri Goverdhan Singh is not at all worth credence as on the one hand DW-2 Shri R.S. Jaryal had visited the spot for the first time on 11.5.2000, that is, after more than ten months from the accident and moreover none of the officials of the defendant-Board on whose statements report Ext. DW-2/A was prepared by him, has been examined by the defendants and on the other DW-3 Shri Goverdhan Singh has admitted that there had been litigation between him and father of the plaintiff albeit the fact that he has volunteered to state that trifle quarrels do take place. The ocular version about the accident further finds corroboration from the medical evidence comprised of the statements of PW-1 Dr. Sanjay Gupta, PW-5 Dr. Payal Gupta and PW-6 Dr. Rakesh Verma. The deposition of DW-1 Dr. Nagesh Verma is not of much relevance as the permanent disability to the extent of 6% said to be suffered by the plaintiff in the accident vide certificate Ext. DW-1/A is prior in point of time in relation to the disability ultimately ascertained by 12 the Medical Board of which PW-6 Dr. Rakesh Verma was a member being the orthopedic doctor, which as per certificate Ext. PW-6/A is to the extent of 20% and is permanent in nature. The claim for damages was quantified by the plaintiff at Rs. 5 lacs, as per head-wise break up given in the above table. However, no conclusive evidence except some medical bills (Mark X1 to Mark X12) showing expenditure to the tune of Rs.2901.59 paise which also remain unproved, has been led by the plaintiff to justify the amount of damages claimed. The learned trial Court by adopting the following reasoning vide paragraph 24 of its judgment has awarded global damages to the tune of Rs. 1,50,000/- to the plaintiff for the injury suffered by her in the accident under reference and the resultant consequences: “In this case, as per latest certificate Ext. PW-6/A, the plaintiff has sustained permanent disability to the extent of 20% due to the negligence of the officials of electricity department and her right hand has been rendered useless who is a girl of tender age of 12 years and she was nine years old at the time of this accident. Undoubtedly, no documentary proof has been adduced on record by the plaintiff in support of allegations that she also got treatment at private hospital at Kakira and huge expenses have been incurred by her parents on her treatment. The plaintiff has, however, placed on record some cash memos etc. mark 1 to mark 13 pertaining to the treatment received 13 by her at private hospital Kakira. These documents show that the plaintiff got treatment at this private hospital Kakira for her hand burn injury. As such, keeping in view the tender age of the plaintiff whose marriage is yet to take place who has become handicapped due to this permanent disability and chances of her getting good spouse in marriage are bleak as no good spouse would come forward to solemnise marriage with her. Besides the plaintiff has to spend her entire life carrying permanent disability with her which she sustained due to the negligence of the officials of the HPSEB. Therefore, in these circumstances, I am of the opinion that the plaintiff is certainly entitled to reasonable amount of compensation against all the defendants. I, therefore, award her compensation to the tune of Rs. 1,50,000/-. As such, both these issues are decided in favour of the plaintiff and against all the defendants.” As already noticed, there being no opposition to the quantum of damages on behalf of defendant No.4, the New India Assurance Company (the Insurer) and by necessary implication as also on behalf of the remaining defendants who are covered by the aforesaid Miscellaneous Accident Insurance Policy Ext. R-1 taken out by the Chief Engineer, H.P. State Electricity Board, North Zone, Dharamshala (H.P.) being the insured, the findings handed out by the learned trial Court with regard to quantum of damages do not call for any interference at the hands of this Court. More so, when the plaintiff has not laid any challenge against the impugned judgment 14 and decree dated 21.2.2005 by filing any cross-appeal or cross-objections. In view of the above discussion, the appeals fail and are accordingly dismissed with no order as to costs. Let a duly signed copy of this judgment be placed on the records of RFA No. 86 of 2005. (V.K. Sharma) Judge. March 10, 2010. (cr)