HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APEAL NO. 45 OF 2003 Uttaranchal Jal Vidyut Nigam Ltd. & Another ….Defendants -Appellants Vs. Jayanti Prasad & Others ….Plaintiffs -Respondents Dated 21.5.2008 Hon’ble Rajesh Tandon, J. Heard Sri Vinay Kumar, counsel for the appellants and Shri I.P. Kohli and Shri N.K. Bhatt, 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 19.7.2003 passed by the Additional District Judge, Uttarkashi in Original Suit No. 27/2001 by which the suit of the plaintiffs has been decreed. 3. Briefly stated, a suit was filed by the plaintiff-respondents being suit no. 27 of 2001 for compensation to the extent of Rs. 2,00,000/- along with interest at the rate of 12 per cent per annum. According to the plaint averments, on 24.6.2000 at about 8 a.m., Smt. Sumitra Devi (since deceased) was going to collect fodders. But, at Tilloth Band she came in contact with the electric wires of 11 K.V. that was hanging there and in consequence she died. The report of the accident was lodged in P.S. Kotwali, Uttarkashi and panchnama of the dead body was carried upon. The plaintiff no. 1 has sent a notice dated 1.8.2000 to the defendant no. 1 but of no avail. Investigation of 2 the accident was made by the Director, Electric Security and after the investigation, the defendant nos. 1 and 3 were directed to indemnify the claim of the plaintiffs. But, the plaintiffs have not been paid the compensation, hence, the suit. 4. The defendant no. 1 i.e. Executive Engineer, Uttaranchal Power Corporation Distribution Division and the defendant no. 2 i.e. Managing Director, Uttaranchal Power Corporation have filed the written statement stating therein that there was no negligence on the part of the defendant no. 1. The electric wires in question does not belong to the defendant no. 1 and the same is in control and management of the defendant no. 3 Electricity Generation Division, Jal Vidyut Nigam Ltd, Kuteti Devi, Uttarkashi. The liability of the defendant no. 1 is limited only to the extent of Rs. 20,000/- on the humanitarian ground. The defendant no. 2 has wrongly been impleaded as party. 5. The defendant no. 3 Electricity Generation Division, Jal Vidyut Nigam Ltd, Kuteti Devi, Uttarkashi has filed the written statement stating therein that there is no concern of the defendant no. 3 with the accident in question. The electric wires in question belongs to defendant no. 1. The work of the defendant no. 3 is limited to the electric production only. The defendant no. 1 is responsible for the distribution of the electricity and, therefore, the defendant no. 1 is liable to indemnify the claim. 6. The defendant no. 4 Executive Engineer, Electricity Plant cum Power Construction has filed the written statement and denied the plaint averments. He has denied any K.V. lines belonging to him ever and, therefore, he has no concern with the accident in question. 3 7. On the pleadings of the parties, the trail court has framed the following issues:- “1.Whether the death of Smt. Sumitra Devi caused due to negligent act by the employees of defendant no. 1 and 2 or by the employees and officers of defendant no. 3 as alleged by defendant no. 1 and 2 in their written statement? 2. To what amount of compensation and from which of the defendants are the plaintiffs entitled?” 8. The plaintiff has produced news paper cutting, copy of notice, letter of the Director, Electric Security, U.P., copy of Panchnama, panchayatnama of the deceased and map of the dead body of the deceased. Towards the oral evidence, the plaintiffs have examined P.W.1 Jayanti Prasad and P.W.2 Vasudev. 9. The defendants have examined Vijay Kuma Srivastava as D.W.1 and Sanjay Mittal as D.W.2 towards oral evidence. 10. While deciding issue no. 1 with regard to cause of accident, the trial court has relied upon the evidence adduced on behalf of the defendant no. 3 Electricity Generation Division, Jal Vidyut Nigam Ltd, Kuteti Devi, Uttarkashi, who has deposed in his affidavit that the electric wires in question do not belong to the defendant no. 3. But in the cross-examination he has pleaded ignorance about the ownership of the electric wires. Thus, the D.W.2 Sanjay Mittal could not remained unshaken in his cross-examination and the trial court refuted the statement of the D.W.3. Further, the trial court has relied upon the evidence adduced by the D.W.1 Vijay Kumar Srivastava, who has stated that 11 K.V. electric wires were belonging to electric generation division, Kuteti Devi. Since, the aforesaid wires were 4 useless, the same were removed by the Electric Generation Division, Kuteti Devi but the earthing wires were lying there. The aforesaid wires become live after coming in contact with the live wires of the defendant no. 1. 11. On the basis of the aforesaid, the trial court has recorded the finding that the accident in question has taken place due to contributory negligence of the defendant no. 1 and defendant no. 3 Electricity Generation Division, Jal Vidyut Nigam Ltd, Kuteti Devi, Uttarkashi. 12. On the basis of the aforesaid, the trial court has decreed the suit of the plaintiffs against the defendant nos. 1 and 3 to indemnify the claim of the plaintiffs jointly and separately. 13. I have perused the records and it has categorically come in evidence that the electric wires of the defendant no. 3 Electricity Generation Division, Jal Vidyut Nigam Ltd, Kuteti Devi, Uttarkashi were useless and this fact has also been proved by the D.W.2 and the accident had taken place after coming into contact of the neutral wire of the defendant no. 3 with the live wire of the defendant no. 1. Since, the wires of the defendant no. 3 were useless, the same should have been removed at the earliest possible and if the same could not have been done, at least, the defendant no. 3 should have checked the status of the wires to avoid any mis-happening. 14. However, it is evident from the record that the electric wires of the defendant no. 3 were useless and this fact has also been proved by D.W.2. But it cannot be denied that the accident had taken place after coming into contact of the neutral wire of the defendant no. 3 with the live wire of the defendant no. 1. Therefore, the defendant no. 1 cannot be exonerated from its 5 liability to indemnify the claim. So far as quantum of compensation is concerned, it appears after perusal of the record that the defendant no. 3 Electricity Generation Division, Jal Vidyut Nigam Ltd, Kuteti Devi, Uttarkashi was responsible for the accident in question on larger side. Therefore, I deem it proper to modify the judgment and decree passed by the trial court to the extent that the defendant-appellants will be responsible to pay 75 % of the amount of compensation and the rest 25 % amount of compensation will be indemnified by the respondent no. 4 i.e. Electricity Distribution Division, Uttarkashi. 15. Subject to the aforesaid modification in the judgment and decree passed by the trial court, appeal is dismissed. No order as to costs. (Rajesh Tandon, J.) 21.5.2008 Avneet