•'•i?. HIGHCOURTOF CHHATTISGARH. BILASPUR APPELLANT/: (Defendant No.3) RESPONDENTS/: (Plaintiffe) FirstABpealNo.149^of 2007 Chhagan son of Shri Ishwar Singh Madhariya, aged about 34 years, resident of Near RadhaKishan Mandir, Bhilai -3, P.S. and Sub Tahsil Bhilai - 3, Distt. Durg (C.G.) Versus 1. Smt.lndu Patel, widow of late Ravi Patel, aged about25 years, 2. Sanket, aged about 2 years, son of Late Ravi Patel (Minor) 3, Ku. Bhumika, daughter of lafe Ravi Patel, aged about 3 months (Minor) Respondent No.2 and 3 are minors, through their natural guardian mptherSmt. Indu Patel, aged about 25years, widow of late Ravi Patel.. 4. Shamkunwar, wife of Lakhanlal Patel, aged about55years, Resp.No. 1 to 4 are resident of Shikshak Nagar, Nytan Chowk, Bhitai -3, Sub' Tah. Bhilai, P.S. Bhi!ai - 3, Distt. Durg (O.G.) 5. Chhattisgarh State Electricity Board, throughits Chairman, C.S.E.B. Danganiya, Raipur, Tahsil and Distt. Raipur (C.G.) 6. Executive Engineer, C.S.E.B. Bhilai -3, Tah. andDistt. Durg (CG) 7. State of Chhattisgarh, through the Collector, Office situated at Durg, Tahsil and Distt. Durg (C.G.) {Appeal underSection 96 ofthe Code of Civil Procedure, 1908} PB Present: Mr. N.S. Dhurandhar, counselfor theappellant. : Mr. Pushpendra Kumar Patel, counsel for respondents No.1 to 4. Mr. B.P. Gupta and Mr. Brijesh Singh, Advpcates, appear on behalf of Mr. A.S. Gaharwar,counsel for respondents Nb.5& 6. No.7. Mr. Chandresh Shrivastava, Panel Law/yer for the State/respondent 'o (B 3i .s's'T's%^~'- '.'"""''* "% la®8fial ^ %^y:' DivisionBench: - Hon'ble Mr.T.P. Sharmaand Hon'ble Mr. R.L. Jhanwar, JJ ^..; ORAL JUDGMENT (22-7-2010) 1. Challenge in this appeal is to the judgment & decreedated 20-7-2007 passed by the 11 Additional District Judge (F.T.C.), Durg in Civil Syit N0.22-B/2006, wherebytortious claim of respondents No.1 to 4 has been decreed against the appellanton the ground that the appellant was using electric energy by illegat connection which caused the death of Ravi Patel (since deceased) for which the ChhattisgarhState Electricity Board, isnot responsible. 2. Decree is impugned on the ground that even after knowing the facts respQndents No.1 to 4/plaintiffs have not pleaded specific pleadjng against respondentsNo.5 & 6, and therefore, the appellantis not liable for payment of damages to respondents No.1 to 4 on accountof the death caused by illegal use of electric energy. 3. As per pleadings of the parties, the appellant was using etectric energy byinstalling illegal connection withoyt permission from respondents No.5 & 6. Ravi Patel (since deceased) - husband of respondent No.1, father ofrespondents No.2 & 3 and son ofrespondent No.4 died while passing near the fielc(where the naked live electric wire was lying. F.1.R. was lodgedand suitfor damages of Rs.12,58,000/- has been filed on behalf of respondents No.1 to 4. By filingwritten statement, the appellant has denied theclaim of respondents No.1 to 4. Respondents No.5 & 6 have filed written statement and have denied the liability to pay compensation. They have specifically pleaded that they were not negligent and they have not givenany connection to theappellant, even they were not necessary party before the Court. On the basis of pleadings, issues were framed and after affording opportunity of hearing to the parties, learned Additional District Judge decreed the suitfdr eompensation against the appellant while exonerating respondents No.5 & 6. 4. We have heard learnedcounsel forthe parties, perused the judgment & decreeand record ofthe Court below. 5. Learned counsel for the appellant vehemently argued that in the present case, even after pleadings of respondents No.5 & 6, respondents No.1 to 4 have not pleaded anything relating to liability of appellant, and "^^•^^1'" ' '•% j^ therefore,in absence of any pleading and proof, the appellant is not liable for payment of any compensation to respondents No.1 to 4. 6. On.the other hand, learned counsel for respondents No.1 to 4opposed the appeal and submitted that onacctiunt of illegal useofelectric energy and negligence of the appellant and respondents No.5 & 6, Ravi Patel has lost his life, therefore, the appellant and respondents No.S & 6 are liableforcompensation on account of the death ofRavi Patel, 7. Learned counsel appearing on behalf of respondents No.5 & 6 also vehemently ppposed the appeal and submitted that in the presentappeal nothing has been claimed against respondents No.5 & 6. Memo of appeal clearly reveals that the appellant has claimed against respondents No.1 to4 for dismissal of appeal especially on the basis of breaking of pleading, and therefore, no liability can be fastened upon respondents No.5& 6. f 8. In order to appreciate the arguments advanced on behalf of the parties and issues raised, we have examined the evidence and pleadingsof the parties. 9. In the present case, as per evidence and pleadings of the parties, it is not disputed that Ravi Patel died asa result of accident by live electric line lying ih the field. Evidehce ofthe parties, especially the evidence of the appellant is sufficient for drawing inference that the appellant was using such electric energy. The appellant has failed to adduce any evidence to show that he was tegally using such energy by taking valid connection. Electric energy isownedand controlled by respondents i No.5 & 6. In case of accident or damages on accountof the use of electrie energy, the question of liability to pay compensationhas been dealt with by the Apex Courtin the matter of M.P. Electricity Board v. Shall Kumari and others in which the Apex Court has held that in case of unauthorized use ofsiphoning the electric energyfrom the supply line by astranger if damage is caused to third person, even then without exception to the ruleof strict liability, the Electricity Boardwill be liable for payment ofdamages. While dealing with ttie question ofstrict liability in the light of law decided in the matter of Rylands v. Fletcher^ and its exception, the Apex Court in the matter of Union of India v. 1(2002)2SCC162 2(1866)LR1 Ex265 '<&h, 16.For the foregoing reasons, judgment & decree innpugned are not sustamable underthelaw. 17.The appeat is allowed. Judgment & decree dated 20-7-2007 passed by the 11th Additionat District Judge (F.T.C;), Durg in Civil Suit No.22- B/2006 is hereby set aside. The case is remitted back to the Court below for determination of compensation and its apportionment between the appellant and respondents No.5 & 6. The Court belQW shallafter providing opportunity to the parties.decide the case afresh. No orderas tocosts. ——— Sd/- T.P. Sharma Judge Sd/- R-L.Jhanwar Judge ?- d