1 APPEAL FROM ORIGINAL DECREE NO.245 OF 1975 ********* =================================================== Against the Judgement and Decree dated 12th of March, 1975 passed by the 5th Additional Subordinate Judge, Muzaffarpur, in Money Suit No.30 of 71/ 10 of 74. ==================================================== ********** 1. CHAIRMAN ELECTRICITY BOARD, BIHAR, PATNA. 2. SUPERINTENDING ENGINEER, ELECTRICITY BOARD, MUZAFFARPUR, DEFENDANTS 2 AND 3 IN THE COURT BELOW. ………………………………………………………APPELLANTS. VERSUS BINAY KUMAR JHA, SON OF LATE SRI SURENDRA JHA, RESIDENT OF VILLAGE-SHERPUR, P.S. SADAR- MUZAFFARPUR, DISTRICT-MUZAFFARPUR. ………………………………………PLAINTIFF-RESPONDENT. ********* For the Appellants : Mr. Prakash Kumar, Advocate For the Respondent : Mr. Pramod Rajpati, Advocate PRESENT THE HON'BLE MR. JUSTICE DR. RAVI RANJAN Dr. Ravi Ranjan, J: The defendants-appellants, being aggrieved by and dissatisfied with the judgment and decree dated 12th of March, 1975 passed by the 5th Additional Subordinate Judge, Muzaffarpur in Money Suit No.30 of 71/ 10 of 2 74, have preferred this appeal. 2. It appears that I.A. No. 2938 of 2010 was filed by original respondent no. 2, who had been shown as a minor under the guardianship of his mother, i.e, the original Respondent No.1, with a prayer to allow him to defend the appeal as major and he be also substituted in place of respondent no.1. However, since respondent no.1 had died, another I.A. No.908 of 2008 was filed for that purpose and was allowed with a direction to expunge her name, it was confined only to the extent that respondent no.2 be directed to defend his appeal as major and the interlocutory application was disposed of vide order no. 21 dated 06.09.2010. However, it appears that necessary correction was not made by the office with respect to the concerned respondent in the memorandum of appeal which still shows that the concerned respondent, is under the guardianship of his mother, Malti Devi, i.e., the Original Respondent No.1, who had died earlier. A vakalatnama was also filed on behalf of the concerned respondent as far back as on 15.1.2008 showing him to be major. Thus, in view of the order dated 6.9.2010, I have heard the respondent 3 treating him to be major. Let the office also make necessary correction in the memorandum of appeal in this regard. 3. The original plaintiff-respondent (respondent no.1 since deceased) had filed the suit in forma pauperis for declaration that husband of the plaintiff Late Sri Surendra Jha died on duty due to negligence of defendant nos. 1 and 2, who were defendant nos. 2 and 3 prior to the amendment. Plaintiff had prayed for grant of a decree for compensation amounting to Rs.60,000/- with interest and had also prayed for guaranteed education and employment of plaintiff no.2. 4. Plaintiff‟s case in brief is that the Electricity Board Muzaffarpur, being branch of Electricity Board Patna, is responsible for laying out electric wire, fixing poles and granting connection to the public and transmission of energy. The husband of the original plaintiff no.1 Late Surendra Jha was working as a Mail Peon Postman in the Postal and Telegraph Department at Shilaut Sub-post office in the District of Muzaffarpur. In due course of his duty on 23.1.1990 her husband was travelling on the side of Harishanker Maniari road on 4 bicycle while returning to the headquarter at Shilaut. The wooden pole fixed by Electric Department for holding the electric wires which was in tattered condition fell upon him and as such he was electrocuted and died instantly. He was examined by one doctor Shri C.P. Verma, M.D.D. Hospital Mahanth, Maniari Silaut, who found him dead due to electric shock. Police also instituted a case of unnatural death. It has been claimed by the plaintiff that death of Late Surendra Jha was caused by wrongful act and negligence of Electricity Department concerned and the same could have been averted, had the concerned officers and employees been vigilant in their duty. It is claimed that Late Surendra Jha was the only bread-earner in the family and at the time of his death he was in the pay scale of Rs.196/- to Rs.232/- and could have been promoted up to the post of Post Master in the Scale of Rs.500/-. Hence, upon calculation, Rs.60,000 with interest was the demand as compensation and further that education and employment of plaintiff no.2 be guaranteed by the defendants. 5. The original Defendant Nos.1 and 4, the District 5 Magistrate, Muzaffarpur and Union of India through the Ministry of communication were later on deleted after such amendment was allowed. Defendant nos. 1 and 2 (original defendant nos.2 and 3) filed their written statement alleging that the suit was bad on account of non-service of notice under Section 80 CPC and also on account of non-compliance of Section 33 of the Indian Electricity Act. The defendants did not admit the allegations made in the plaint and have denied that electric pole in question was in dangerous and tattered condition and was ant-eaten. Defendants further alleged that the electric pole concerned was thoroughly checked and supervised by the employees of Electric Board prior to the alleged accident. The defendants alleged that the wooden pole had fallen due to heavy storm which was an Act of God and was out of the control of the defendants. 6. Upon pleadings of the parties, following issues were framed by the trial court. (i) Is the suit maintainable as framed? (ii) Have the plaintiffs got cause of action for the suit? (iii) Did Surendar Jha died as a result of electric 6 shock? (iv) Whether deceased was electrocuted on 23.1.70 at village Harishanker Maniari due to negligence of the defendants no.1 to 3? (v) Whether the suit is barred under Section 33 of Indian Electricity Act 1910? (vi) Whether plaintiff is entitled to compensation? If so to what amount? (vii) To what relief or reliefs if any are the plaintiffs entitled to? 7. The trial court upon appreciation of materials on record including pleadings and evidence led on behalf of the parties has held that Section 33 of the Indian Electricity Act, 1910 is not a bar to the filing of the suit and also that Late Surendra Jha died as a result of electric shock and that due to negligence of the defendant-Electricity Board and calculated the total compensation amount for which the plaintiffs are entitled to be Rs.15,578/-. 8. Accordingly, the suit was decreed for a sum of Rs.15,578/-. However, prayer of the plaintiff for guaranteed education and employment of plaintiff no. 2 7 was refused. 9. I have heard the parties and perused the record of the case. 10. Upon hearing the parties, following would be the points for determination in this appeal. (I). Whether the suit is bad and liable to be dismissed on account of non-service of notice under Section 80 of the Code of Civil Procedure? (II) Whether in view of the provision under Section 33 of Indian Electricity Act, 1910, the suit was not maintainable? (III) Whether the death was accidental on account of Act of God or due to negligence on the part of the defendants? 11. Point No.I: Learned counsel appearing for the appellants submitted that in view of the non-service of notice under section 80 CPC, which is mandatory, the suit was bad and was liable to be dismissed. Learned counsel for the appellants drew attention of this Court to Paragraph No.3 of the written statement. This point has been taken by the defendants. However, this submission on behalf of 8 the defendants-appellants is noted to be rejected. It is true that objection in this regard was raised in the written statement. However, from the perusal of the judgment, it appears that neither any issue was framed in this regard nor was such issue pressed at the time of hearing of the case and, as such, it appears that the trial Court did not discuss this issue at all. Learned counsel tried to impress upon that the issue might have been raised at the time of hearing but not considered by the court below. However, in such case it was open for the appellants to immediately file review taking this ground which was not done. In this appeal also affidavit could have been filed appending therewith the certificate of the advocate concerned that the issue was raised but not considered by the court. In the absence of any such step and in the facts and circumstances of the case notice u/s 80 C.P.C. would be deemed to have been waived. Thus, that issue cannot be allowed to be raised in the appeal. That apart, the second question would be whether the parties like the Electricity Board and its officers and employees would be covered under Section 9 2(17) of the Code of Civil Procedure bringing them into the category of the „Government‟ and its „Public Officer‟. Section 80 of CPC clearly stipulates that no suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity can be instituted until the expiration of two months next after notice in writing has been delivered to him or left at the concerned office, stating the cause of action, description etc. To hold that a notice under Section 80 CPC was mandatory in this case, it has to be held that the Bihar State Electricity Board is within the term „Government‟ and its officers are covered under the definition of public officer as contained in Section 2(17) of the Code of Civil Procedure. As per the definition of State Electricity Board, (hereinafter to be referred as the “Board”) under Section 2(lb) of the Indian Electricity Act, 1910, in relation to any State, the Board means the State Electricity Board constituted for the State under Section 5 of Electricity (Supply) Act, 1948 (54 of 1948). Thus, on the aforesaid reading of the provision, it appears that it would be an instrumentality of State within the 10 meaning of Article 12 of the Constitution of India. However, there is a vital difference between the terms „Government‟ and „State‟. In Kamta Prasad Singh and another Vs. Regional Manager, Food Corporation of India and others, 1974 B.L.J.R. 828, while examining the requirement of notice under Section 80 CPC with respect to Food Corporation of India, a Bench of this Court has held that the Corporation being a body corporate can sue and can be sued in its own name. The fact that the capital of the Corporation may be provided by the Central Government or that the working of corporation can be supervised or directions may be issued by the Government does not, constituted it a „Government‟ within the meaning of Section 80 of the Code. Although the expression „Government‟ has not been defined in the Code, it can not include a „Corporation‟ constituted under an Act of the Parliament. The expression „public officer‟ has been defined in sub- section (17) of Section 2 of the Code. However, it has been held that the officers of the Corporation are not in the service or pay of the Government. In view of this matter, its officers are not „public officers‟ within the 11 meaning of Section 80 of the Code of Civil Procedure. Thus, there would be no requirement to serve a notice under Section 80 CPC on the Food Corporation of India. Similar view has been taken by the Kerala High Court in V. Padmanabhan Nair Vs. Kerala State Electricity Board (A.I.R. 1989 Kerala 86) holding that the statutory body - whether it be Electricity Board or the Food Corporation or the Urban Development Corporation or any of that category - may be an instrumentality of the State within the meaning of Article 12 of the Constitution, it nevertheless would not answer the description of Government as understood in law and as it is understood in the context of Section 80 C.P.C. Similar view has been taken by Orissa High Court in Smt. Minakshi Patra, Vs. Secretary Irrigation and Power, Govt. of Orissa and others A.I.R. 1999 Orissa 137) holding that though the Electricity Board can be construed as „State‟ within meaning of Article 12 of the Constitution, however, for purpose of Section 80 it is not the „State‟ and thus notice was not required to be served upon it under Section 80. Therefore, the suit could not have been dismissed on the 12 ground that Section 80 of CPC notice had not been served upon Electricity Board. This Court also does not find any reason to deviate from the long line of decisions as above. Thus, concurring with the aforesaid decisions, it is held that neither Bihar State Electricity Board would be „Government‟ nor would its officers would be considered as „Public Officers‟ for the purpose of Section 80 CPC. In the aforesaid circumstances, the service of notice upon the defendants was not required. Therefore, even if no notice has been served under Section 80 CPC in this case that would not be a defect for which the suit would be liable to be dismissed. 12. Point No.II: Learned counsel appearing on behalf of the appellants could not point out from Section 33 of the Indian Electricity Act, 1910 that in view of the provision that in case any accident occurs in connection with the generation, transmission, supply or use of energy, only course open would be to serve a notice upon the Electrical Inspector and who can take a decision in this regard and a suit for that purpose is barred under the 13 statute. Thus, the trial court has held that the suit would be maintainable. Learned counsel appearing for the appellants could not point out any error in the finding recorded by the trial court on this issue. In that view of the matter, this point is also decided against the appellants. 13. Point No.III: Learned counsel appearing for the appellants submitted on this point that the electric pole fell down due to heavy storm and further that the transmission of electricity in the area was being regularly inspected on daily basis and as such there was no question of the pole being in a tattered and dangerous condition. Inspection was being done on daily basis. Thus, the pole must have fallen down due to heavy storm and as such defendants/appellants cannot be saddled with the liability to pay compensation as there was no negligence on their part. Lastly, learned counsel submitted that the alleged tattered pole has not been brought on record as evidence or exhibit to establish its condition. 14. Learned counsel appearing for the respondents, on the other hand, submitted that the story 14 propounded by the defendants that the falling of pole was due to Act of God is baseless for the reason that no plausible evidence has been brought on record to corroborate it. Whereas, PW-1, Radha Krishna Rai and PW-2, Tribhuwan Thakur have stated in their evidence that the wooden pole was in a rotten condition and they have given information to the authorities concerned. They have further stated during cross-examination that they had personally seen the pole in question which was in tattered condition. 15. The trial court while dealing with the issue has stated that it is admitted that wire of electricity fell down on the road and the wires touched Surendra Jha killing him instantly. The case of unnatural death was also lodged by the police with regard to such accidental death due to electric shock and one doctor had also examined and found that Surendra Jha died due to electric shock, thus, prima facie, therefore, case of negligence of the defendants appear as they have to maintain the transmission of electricity. 16. In view of the evidence and deposition of PWs-1 and 2, the trial court has come to the conclusion 15 that they have withstood the taste of cross-examination and have stated that they have personally seen the pole in scattered condition, whereas, the case of the department that it fell down due to heavy storm is neither supported by any whether report nor has any document been produced to corroborate their stand. So far as question of regular inspection of the transmission system is concerned, the trial court has noted down the discrepancy in the deposition of DW-1 and DW-3 and has held that they are not reliable also for the reason that had DW-1 received any information from DW-3 regarding falling of pole, he would have noted the same and reported the matter to the higher authorities, but the same was not done. So far as the issue of pole having been broken down due to heavy storm, no evidence has been brought on record to show that there was any other breakage or disruption in Muzaffarpur due to heavy storm on that occasion. Regarding submission in Para 7 by DW-3 that he repaired the fallen pole at 2.p.m. but got no information about the death of any body occurring due to fallen pole and wire is also not tenable and it appears that this witness either did not visit the spot for repair or he 16 has deliberately given false evidence in this case. The evidence of DW-2 Harideo Prasad to the extent that the poles were being regularly maintained by the Board and monthly inspection reports were used to be sent was also not found tenable by the court below as no such report was produced before it. Learned counsel appearing on behalf of the appellants could not point out any illegality in the aforesaid findings recorded by the court below. It was also urged on behalf of the appellants that damaged or tattered pole has not been produced on record as evidence/exhibit by the plaintiffs. This submission is also noted only to be rejected for the reason that admittedly maintenance of transmission of electricity energy is in the hands of defendants and if such was not the case then they could have brought the broken pole on record to show that it was not in a damaged condition. Lastly, learned counsel for the appellants submitted that in view of the absence of any postmortem report, it cannot be held that the petitioner died due to electric shock. However, in view of the fact that the petitioner was examined by a doctor and there is also a police case in this regard being reported as unnatural death of 17 Surendra Jha due to electric shock and no evidence has been brought on record on behalf of the defendants to show that there was any possibility of death of Surendra Jha due to any other reason, in the opinion of this Court, the trial court has correctly held that the husband of original plaintiff died due to electric shock. So far as the question of quantum of compensation is concerned, that being so meager, no serious objection was raised on behalf of the appellants. 17. In view of the above, this Court is of the opinion that there is no merit in this appeal, thus, the same is, accordingly, dismissed. However, there will be no order as to cost. ( Dr. Ravi Ranjan, J.) Patna High Court, Patna. Dated: The 13th of July, 2011. Sanjay Kumar/N.A.F.R.