HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No.: 7 of 2005 Reserved on: 15.6.2009 Decided on: 19.6.2009 The Chairman, HPSEB and another ………Appellants. Versus Jasbir Kaur and others ………Respondents. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? Yes. For the appellants: Mr.Baldev Singh, Advocate. For the respondents: Mr.R.K. Gautam, Senior Advocate, with Ms.Archna Dutt, Advocate. V.K. Ahuja, J: This is a regular first appeal filed by the appellants under Section 96 of the Code of Civil Procedure, against the judgment and decree, dated 25.11.2004, passed by the learned Additional District Judge (Fast Track Court), Una, vide which the suit of the respondents/plaintiffs for damages was decreed for a sum of Rs.1,80,000/-, as against the appellant/defendants. Briefly stated the facts of the case are that a suit for recovery of damages amounting to Rs.3.00 lacs was filed by the plaintiffs as indigent persons. It ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - was alleged that the applicants are the legal heirs of deceased Sucha Singh, who died on 3.11.1998, at about 9.30 a.m. It was alleged that the deceased had gone to the roof of his house to spread out wet tarpaulin and all of a sudden, touched the iron angle and was caught in the current of electricity leading to his death. It was also alleged that the defendants had not applied tape over the wire. The deceased died on the spot, was taken to the hospital where he was declared dead. It was alleged that the defendants were duty bound to check the service wire and to tape the leaking portion as well as joints and, therefore, the death had taken place due to the negligent act of the defendants. The age of the deceased was alleged as 35 years and that the deceased was earning Rs.4,000/- per month by working as a Driver and the plaintiffs being dependants upon him, have filed the present suit for damages. The defendants took up various preliminary objections. On merits, they pleaded that they had given domestic electricity connections to the residents of the village including to the father of the deceased who was one of the consumer of the HPSEB. However, they denied that the service wire was naked and was without any insulated tape and pleaded that no complaint had been received by them in regard to these allegations. It was denied that the deceased died due to electric current and negligent act of the defendants. The defendants pleaded that the - 3 - deceased died a natural death and no intimation was sent to the defendants, though they admitted that a report was lodged to the police on 6.11.1998. Thus, the defendants pleaded that they are not liable to pay any damages. On the pleadings of the parties, the learned trial Court framed various issues and the main issue was as to whether the deceased died as a result of electrocution due to the negligent act of the defendants. The findings on this issue were given in affirmative and the suit was decreed for damages to the extent of Rs.1,80,000/-. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned counsel for the appellants were that no FIR was lodged in this case, that no postmortem report is there and no complaint was ever made to the defendants in this regard. It was further submitted that there was no evidence of age or income of the deceased at the time of his death. It was also submitted that there was no evidence that the deceased died due to electrocution and accordingly, the findings of the learned trial Court are not sustainable. The only contradiction pointed out in the evidence was that one of the witnesses has stated that he reached firstly where the deceased was alleged to have been electrocuted, whereas the other witness has stated that he reached firstly. All these pleas shall be considered below while referring to the evidence. - 4 - On the other hand, the learned counsel for the respondents had submitted that Ext.PB clearly proves that the deceased had died due to electric shock. On appraisal of the record of the case, it is clear that the plaintiffs have examined 5 witnesses to substantiate their case. PW-1 LHC Gurbakhash Singh has proved a copy of the report dated 6.11.1998 lodged with the police, which is Ext.PA. A perusal of Ext.PA shows that a report was lodged with the police on 6.11.1998 at 6.30 p.m. by Jagat Singh, father of the deceased, that his son had gone to the roof of the house on 3.11.1998 at 9.30 a.m. for drawing a tarpaulin and accidentally he touched the electric wire which was naked and was just at a distance of 3’-4’ from the iron angle and his son got electrocuted and died. He had also alleged that this accident had taken place due to the negligent act of the defendants in keeping the electric wire naked. However, he alleged that he wanted no action from the police, but wanted to make a complaint against the negligence of the employees of the defendants/Electricity Board. PW-2 Jasbir Kaur is the widow of the deceased who also reiterated that her husband had gone to the roof of the house for drawing tarpaulin and got electrocuted due to current. She further stated that her husband was taken to NFL Hospital where he was declared dead. She stated that her husband was earning Rs.5,000/- per month and the death occurred due to the negligence of the defendants in keeping the electric wire naked. She - 5 - stated that several times report had been lodged in this regard but no such copy has been placed on record or this fact proved from any other evidence. She also stated that she was dependant upon her husband and she had got two children aged 8 years and 4 years. PW-3 Jagat Singh is the father of the deceased, who had supported the statement made by Jasbir Kaur, widow of the deceased. These statements have been further corroborated by PW-4 Tara Singh, a neighbour, who had gone to the spot on hearing the noise. He also stated that the deceased died due to electric current, was taken to NFL Hospital and was declared dead. He also stated that the accident took place due to the negligence of the Electricity Board. PW-5 Dr.R. Ram Tak from NFL Hospital has stated that the deceased was brought to the hospital with the history of accidental electric shock. He was brought dead since there was no pulse, BP etc. He stated that the dead body was handed over to the relatives on the same day. He proved the chit Ext.PB, which shows that it was a discharge slip issued in which it was mentioned that the deceased had been brought having history of electric shock and he was declared dead. He admitted in cross examination that no postmortem of the dead body was conducted in the hospital. To rebut this evidence, the defendants examined two witnesses. DW-1 Ravinder Nath has stated that no complaint was received by their Department in regard to - 6 - the death of the deceased and in case any information had been received, they would have verified the same. DW-2 Arun Kumar, also from the Electricity Board, has stated that they never received any complaint regarding this accident and the wire going to the house of the father of the deceased was properly insulated. On appraisal of the above evidence, it is clear that the father of the deceased had lodged a report at the earliest, i.e, after two days of the occurrence in which it was clearly mentioned as to how the death has taken place. It may be that the father of the deceased had mentioned in the said report that he did not want any investigation done by the police but wanted to lodge the report to claim compensation. In my considered view, the police should have sent a copy of the report to the Electricity Board so that they could verify the facts as alleged therein since the father of the deceased had clearly mentioned in the complaint that he was lodging the report with the police to file a claim. Thus, in these circumstances, if the police officer had acted with sincerity, he should have sent the copy of the complaint to the Electricity Board informing them about the complaint lodged against them. However, this was not done. In the alternative, it was also required of police to have conducted a preliminary investigation in regard to the assertions and in case no offence was made out, a cancellation report or untraced report should have been - 7 - filed, but this would have resulted in verification of the assertions made in the rapat lodged with the police. An illiterate man is not expected to know that he must have lodged an FIR in this regard or could have insisted upon a postmortem examination of the dead body by a Medical Officer. A villager could do whatever was in his power and he reported the matter to the police, but they failed to take action or send a copy to the concerned Department. In regard to the postmortem, it cannot be insisted upon that the postmortem must have been conducted, but since the case was brought to the NFL Hospital as a case of electrocution, which fact stands corroborated by the statement of the medical officer and the slip issued by him, therefore, it was required of the NFL Hospital to have informed either the police or advised the relatives of the deceased to take the dead body for postmortem to the General Hospital. In case, no such advice was given or no reference was made, it cannot be said that the assertions made by the plaintiffs are incorrect. The lodging of the FIR is not sine qua non for claiming compensation or damages. Even in a case under the Motor Vehicles Act, it has been held by this Court in Brestu Ram versus Anant Ram and others, 1989(2) Sim.L.C. 298, that it is not the requirement of law that the report must be lodged with the police. This equally applies to the case of damages filed by the plaintiffs. Therefore, the claim cannot be rejected only on the ground of non- - 8 - lodging of the report or non-production of the postmortem report, if any. The fact that the deceased died as a result of electrocution stands proved from the statement of his wife, father, a neighbour and the medical officer who saw the dead body and declared the deceased dead, as has been discussed above. Therefore, the conclusion drawn by the learned trial Court is correct that the deceased had died due to electrocution. The fact that damages are payable in such a case finds corroboration from the findings of this Court in Rajesh Kumar versus Himachal Pradesh Electricity Board and others, 1995 ACJ 1146, wherein the injury had been caused due to electrocution and the compensation was awarded by the court in a writ petition. This decision applies to the present facts. Coming to the evidence, PW-4 Tara Singh had stated that he reached firstly at the place where the deceased was electrocuted, while PW-3 Jagat Singh has stated that he reached firstly. But this contradiction is minor to be ignored. Coming to the question that there was no specific evidence in regard to the age or income, there is statement of the wife of the deceased Jasbir Kaur as PW-2 as well as that of the father of the deceased that the deceased was working as a driver. Since there was no specific evidence in regard to the income which the deceased was getting as a driver, the learned trial Court had to adopt some criteria and rightly so it adopted the criteria which is followed in petitions filed under Section - 9 - 166 of the Motor Vehicles Act and had taken the lowest income that of a labourer at that time and keeping in view the age 29/30, it had adopted a multiplier of 12 and granted the compensation. The amount of compensation accordingly was rightly calculated as is calculated under Section 166 of the Motor Vehicles Act and no infirmity can be found in those findings recorded by the learned trial Court. In the present set up, grant of compensation to the extent of Rs.1,80,000/- for the death of the sole bread earner in a family at the age of 29/30 years cannot be termed as excessive by any stretch of imagination and therefore, the findings recorded by the learned trial Court do not call for an interference by this Court. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant which is dismissed with costs. June 19, 2009. (V.K. Ahuja), (TILAK) Judge.