RSA No.1408 1991 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1408 1991 Date of Decision: 21.03.2009 Mrs.Usha Kumar ..Appellant Vs. The Union Territory of Chandigarh ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Vikas Behl, Advocate, for the appellant. Mr.H.S.Giani, Advocate, for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. This order shall dispose of RSA No.1408 of 1991 and RSA No.570 of 1993, titled as Mrs. Usha Kumar Vs. The Union Territory of RSA No.1408 1991 2 Chandigarh and The Union Territory of Chandigarh Vs. Mrs. Usha Kumar, as both the appeals raise common questions of law and facts. For the sake of brevity facts are being taken from RSA No.1408 of 1991. The plaintiff/appellant brought a suit for recovery of Rs.1,17,000/- against the Union Territory Chandigarh as compensation for the damages to her poultry farm comprising of sheds poultry birds, equipment and feed on the plea that the farm caught fire on 10.6.1081 at 13.55 hours because of extensive sparking as a result of which there was dropping of burning particles caused by short circuiting from the over- head line wire which has snapped and fallen on the farm involving negligence on the part of the Electricity Department of Chandigarh Administration. The claim was contested by the Union Territory Chandigarh by denying that there was no negligence on the part of the employees in the maintenance in the over-head electric wire and connection to the farm of plaintiff and it was pleaded that loss claimed was not caused by the fire. Objection was also taken that notice served under section 80 of the Code of Civil Procedure was not valid and that the suit was not properly valued for the purposes of court fee and jurisdiction and that it is also bad for non-joinder of necessary parties. On the pleadings of the parties learned trial court was pleased to frame the following issues:- 1. Whether the defendant is guilty of negligence and breach RSA No.1408 1991 3 of statutory duty resulting in damage, as alleged, by the plaintiff? OPP 2. Whether the plaintiff is entitled to any damages and if so, to how much amount? OPP 3. Whether a legal and valid notice was served on the defendant? OPP 4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD 5. Whether the suit is bad for non-joinder of necessary parties? OPD 6. Relief. Learned trial court on appreciation of evidence on record held that defendant/respondent is guilty of negligence and breach of statutory duty resulting in the damage. On issue No.2 learned trial court was pleased to assess the damages payable Rs.33,000/- only. It was also held that valid notice was served on the defendant before instituting the suit,whereas issues No.4 and 5 were not pressed. Consequently, the suit was decreed for damages for sum of Rs.33,000/- (Rupees thirty three thousand only). Defendant/respondent preferred an appeal where the finding on issue No.1 was challenged. Learned lower appellate court affirmed the findings recorded by the learned trial court on issue No.1 in view of the admission of the defendant/respondent in fixing electric polls and maintenance of the wires RSA No.1408 1991 4 and connection to the sheds was 300 feet against the prescribed norms of 150 feet. Learned lower appellate court also took notice of the photographs Ex.P.6 to Ex.P.14 to corroborate the claim of the plaintiff/appellant about extensive damage caused to the poultry farm. The learned court also took notice of other evidence brought on record to hold that the negligence on the part of the defendant/respondent was proved. Learned lower appellate court noticed the statement of Shri B.K.Malhotra SDO, Electricity, wherein he admitted that at the relevant time the poultry sheds of the plaintiff/appellant fell in his jurisdiction though he claimed that wiring in that area were as per electricity rules. However, he admitted that the line was constructed quite a long back and one of the poles was of wood and at a distance of about 11 feet from the shed of the plaintiff and there were 5 wires in that line. He also admitted having received telephonic message about the accident He had also admitted that earth wire which was on the top head direction from the pole which was on the other end of shed and wire was lying on the ground and it is also stated that one of the fuses had blown up from the transformer. All the sheds which were close to the wooden pole were almost burnt and other shed was burnt 3/4th from which the household goods were collected. However, in his statement he showed ignorance about the distance of the wooden pole to the pole from which earth wire had broken. However, he had to admit that the distance between the poles is not regulated in the rural area. He also admitted of not inspecting the wire RSA No.1408 1991 5 system of the shed at the time of his visit on the night of accident. Shri KIP Singh who was then the SI police appeared as a witness for defendant and deposed that cause of fire was due to electricity fault and also that the defect referred to by him was snapping of fire from the poles over the shed. Thus, the Learned lower appellate court held that there was no room for doubt that short circuit and snapping were cause of fire to the poultry shed and poultry farm of the plaintiff and negligence for maintenance of the wires passing over poultry farm of the plaintiff was the sole cause. Principle of res pisa loquitur was also invoked. Learned lower appellate court also held that the learned trial court rightly had placed reliance on the decision of Hon'ble High Court of Madras in the case of Nirmala Thirunavakkarasu and others Vs. Tamil Nadu Electricity Board and another AIR 1984 Madras 201 to hold the defendant/respondent's negligence. Thus, the finding on issue No.1 was affirmed. The appeal was, accordingly, ordered to be dismissed. The plaintiff/appellant had also challenged the judgment and decree of the learned trial court on the question of quantum of compensation as awarded by the learned trial court. Learned lower appellate court noticed that the evidence of plaintiff/appellant as PW 1 was supported by the statement of PW 7 Magi Ram wherein he stated that in the shed birds were also burnt. The learned court noticed that PW 6 Ram Singh deposed that there was about 200 birds in the shed at the time when it caught fire and in cross-examination his statement was not shattered. Learned lower RSA No.1408 1991 6 appellate court also noticed that PW 6 stated that there wee about 1800- 2000 birds in the farm and that the net income per bird monthly was Rs.75P per chick vary from person to person. He had also stated that the feeders and waterers were also there in the farm of the plaintiff on which he was not cross-examined. Learned lower appellate court held that the statement of doctor was wrongly not believed. Learned lower appellate court also noticed that there was statement of Sarjon Singh regarding he having sold about 2000 six days old white leg horn chicks to the plaintiff vide receipt Ex.PW8/4 dated 15.10.1980 and sale of feed on 6.6.1981 which could safely be believed. Learned lower appellate court also observed that there was no reason for him to fabricate the receipts Ex.PW 8/A and Ex.PW8/B. Learned lower appellate court, therefore, held that the evidence led by the plaintiff could not be rejected on the solitary statement of Shri B.K.Malhotra as DW 1. However, while drawing the conclusion Learned lower appellate court held that there were about 1000 birds which were burnt in fire. In order to reach to this conclusion learned lower appellate court gave allowance of mortality of the chicks raised after purchase from Sarjan Singh. Loss was assessed at Rs.10/- per bird and accordingly compensation for loss of chicks was assessed at Rs.120,000/-. Learned lower appellate court also observed that equipment and feed could not be less than Rs.7000/- in view of the statement made. Learned lower appellate court held that the loss on account of loss of birds, equipment and feed came to Rs.17000/-. Thus, the appeal filed by the appellant/plaintiff was partly RSA No.1408 1991 7 allowed and compensation was enhanced to Rs.50,000/- whereas appeal filed by the respondent was ordered to be dismissed. Learned counsel for the appellant contends that the substantial questions of law which arise for consideration in this appeal would be:- 1. Whether the judgment and decree passed by the learned courts below is the outcome of misreading of evidence brought on record and thus perverse? 2. Whether the learned courts below wrongly rejected the evidence brought on record without assigning any reason? Learned counsel for the appellant referred to the statement of PW 1 in support of the substantial questions of law to contend that he had made a specific statement that he had suffered loss to the tune of Rs.33000/- for sheds and its feeders and also that 800 birds were destroyed which resulted in loss of Rs.36000/- at the rate of Rs.20/- per bird. He claimed to have suffered a loss of Rs.15000/- for equipment and Rs.6000/- for shed in addition Rs.4000/- for furniture lying there. He also claimed Rs.18,000/- for loss of business along with interest at the rate of 15 per cent per annum. He also referred to the statement of PW 8 to prove that a sum of Rs.6750/- was paid on account of sale of poultry birds on 6.6.1981 and further that 2600 six days old white leg horn chicks were sold to Mrs. Usha Kumar. However, in cross-examination he admitted that he did not have the carbon copy of the receipt issued to the purchaser nor he had any stock register. He claimed to be not income tax payee. He also claimed that he RSA No.1408 1991 8 did not know English and the contents of the receipt produced on record were written at his instance. Learned counsel for the appellant contends that once the learned courts below found as a fact that the evidence of the plaintiff could not be rejected there was no reason, whatsoever, not to accept the statement and grant the compensation as prayed for. Mr. Harpreet Singh Giani learned counsel appearing on behalf of the respondent/appellant in the connected RSA on the other hand challenged the findings of the learned courts below on issue No.1 to contend that no negligence could be attributed to the defendant/respondent on the ground that the snapping of wire was of earth wire which cold not be the cause of fire. It is also the contention of the learned counsel for the respondent/appellant in RSA No.570 of 1993 that the courts below have misread the rules to record a finding of negligence against respondent defendant. He referred to Rule 2 CC of the Indian Electricity Act which defines consumer which reads as under:- “2. (c) “consumer” means any person who is supplied with energy by a licensee or the Government or by any other person engaged in the business of supplying energy to the public under this Act or any other law for the time being in force, and includes any person whose premises are for the time being connected for the purpose of receiving energy with the works of a licensee, the Government or such other person, as the case may be;” RSA No.1408 1991 9 He also referred to Section 2 (h) (ii) which describes over head line as under:- “ “overhead line” means an electric supply-line which isi placed above ground and in the open air but does not include live rails of a traction system;” as also Rule 85 of the Indian Electricity Rules, 1956, which reads as under: “85. Maximum intervals between supports.-- All conductors shall be attached to supports at intervals not exceeding the safe limits based on the ultimate tensile strength of the conductor and the factor of safety prescribed in Rule 76: Provided that in the case of overhead lines carrying low or medium voltage conductors, when erected in, over, along or across any street the interval shall not without the consent in writing of the Inspector, exceed 220 ft.” to contend that the learned courts below wrongly attributed the negligence on the part of the defendant/respondent on the ground that the distance between poles was admittedly more than 220 ft. The contention of the learned counsel for the appellant was that the only requirement of the Rules was that the support is put at interval not exceeding the safe limits based on the ultimate tensile strength of the conductor. And the over-head lines carrying low or medium voltage conductors to carry the support at intervals of 220 ft only along or across any street and not otherwise. RSA No.1408 1991 10 The contention of the learned counsel for the appellant, therefore, was that as the poultry farm was admittedly not situated along the street the learned courts below erred in law in holding the defendant/respondent negligent so as to award the damages. Thus, the plea raised is that the finding on issue No.1 deserves to be reversed. However, I find no force in the contention raised by the learned counsel for the appellant. Hon'ble High Court of Madya Pradesh in the case of Manoharlal Gupta and others Vs. The M.P. Electricity Board AIR 1976 Madhya Pradesh 38 has been pleased to lay down as under:- “ The Electricity Board is not liable for nuisance caused by the escape of electrical energy on the principle accepted in the case of Rylands V. Fletcher L.R. I Ex.265. It is however, still liable for negligence. It is negligence to omit to use all reasonable known means to keep the electricity harmless. The burden of proving that there was no negligence is on the defendant and there is no obligation on the plaintiff to prove negligence. Further the standard of care required is a high one owing to the dangerous nature of electricity. If the defendant produces no material and offers no evidence to negative negligence, negligence will be presumed this result will also follow on the principle of res ipsa loquitur. Live broken electric wires carrying high tension energy are generally not found in a public place, street or road and,d therefore, is such a thing RSA No.1408 1991 11 happens a prima facie inference an be drawn that there has been some carelessness on the part of the defendant in transmitting electric energy or in properly maintaining the transmission lines.” Thus, the finding on issue No.1 recorded by the learned lower appellate court is affirmed. Learned counsel for the respondent also contends that the learned courts below erred in law in placing reliance on the evidence produced by the plaintiff to award damages against the defendant/appellant. The contention of the learned counsel for the respondent was that the evidence led by the plaintiff did not inspire any confidence as the statement of PW 8 could not be accepted as he had not maintained any record of sale and purchase and certificate issued was also admittedly not written by him and the person who is said to have written the same was not produced. It is also the contention of the learned counsel for the respondent that other evidence produced by the plaintiff also does not inspire confidence. On consideration of the matter, I find no force in the contention raised by the learned counsel for the respondent as the learned courts below have accepted the evidence led. Once the poultry farm was damaged and evidence was led to prove the loss it was always open to the court to have assessed the evidence. Learned lower appellate court rightly appreciated the evidence brought on record and assessed the damages at Rs.50,000/-. RSA No.1408 1991 12 However, there is force in the contention of the learned counsel for the appellant that beside compensation awarded the plaintiff/appellant was also entitled to compensation for the loss of income in view of the law laid down by the Division Bench of this court in the case of Smt.Savitri Devi V. State of Haryana 1984 P.L.R. 47, wherein Hon'ble Division Bench of this court was pleased to assess the compensation for the loss of earning of poultry farm at Re.1 per bird per month for 12 months. Hon'ble Division Bench of this court in the case of Smt.Savitri Devi V. State of Haryana (supra) was pleased to lay down as under:- “B. Land Acquisition Act, Section 23 (1) fourthly- Acquisition of Poultry farm- Claimant closed business – Still entitled to compensation for time it will take to restart business – Held that where there is poultry farm on acquired land – Claimant entitled for the period which it will take to restart poultry business and to receive income from the birds and it will hardly makes any difference whether clamantable to restart business after acquiring suitable land or had closed the business for non0avilability of land – Claimant entitled to compensation for loss or earning equivalent to income for one year -Allowed Re.1/- per bird per month for 122 month.” If the principle is followed loss suffered by the plaintiff comes to Rs.21,600/-. Thus, while affirming the finding of learned lower appellate court on issue No.2, it is held that besides compensation assessed the RSA No.1408 1991 13 plaintiff/appellant shall also be entitled to compensation of loss of earning to the tune of Rs.21,600/- (Rupees twenty one thousand and six hundred only). It was admitted by the plaintiff that there were 1800 birds which perished in fire. Thus, there is apparent loss of income of Rs.21,600/-. The appeal is, thus, partly allowed and the compensation awarded is enhanced to Rs.71,600/-. The plaintiff shall also be entitled to interest at the rate of 6 per cent per annum from the date of filing of the suit till realization. 21.3.2009 (Vinod K.Sharma) rp Judge