tigGH coum {3F cHHM‘nswRH M BzLaeggm First Aggem No.15§l_2i§@£ Comm: Hun’bia Shri “H3. Shgmgig Hcn’bie $hr€ RL. Jhanwm, JJ First Aggeai under $ecti0n $5 of C.P.C., 1M3 Pmgenty Shri SK. Tiwari, ceunse} for tha appeimnt. Shri Brajesh Singh appears on behaif of $hri A3. Gaharwar, counsel for respondent Na.1. Shri HE. Agrawai, Sr. Advocate wiih Ms. Pragya Singh, counse! far the reepandent No.2. QRAL JUDGMENT (PaEsKe an waimma) By this appeai. the appenant chanenged the iegamy and propriety oi the judgment and deeree dated 30.D4.2098 passed by the District Judge, Raigarh in Civil Suit No.1-B/O6, whereby the learned District Judge has diemiesed the Suit filed by the appelianb’plaintiff for damages caused by the reepondente. 2. The judgment and decree is impugned on the ground that while dismieeing the suit, the Court below has not considered the liability of respondent No.1 and has committed illegality/i AQQeaiant {)eepak Mishra; $10 Chandra Waintiff Prakaem Mishra, aged about 19 years, Occupation—unemp‘oyed, R/o Ja}! Une, Raigarh, Tahsil & Dismot Raigarh (CG) Vemug Resgondenm 1‘ Chhaftisgarh State Eiectriciiy Eefemkants Board, Throughéxecutive Engineer, Chhattisgarh $tate E!ectricity Board, Raigarh, Tahsil & District-Raigarh (CG) 2. Municipai Corpcration, Raigarh Through—Comm¥s3ioner, Municipal Corporaticn, Raigarh, Tahsi} & District-Raigarh (CG) 3. Briefiy stated, that on 02/06/2004, at about 430-500 pm, the appenant herein was, piaying cricket with his friends near the house of Jail Superintendent, Raigarh. At that time, on account of a big btow ef stOrm, a dry branch of neem tree broken and feH on the electric wire due to which, the electric poie hae felien down on both the legs of the appeiiant herein and hie iegs have got permanently disabled, even after undergoing operation. He is etiti under treatment. 4‘ lt is aileged that the respondent No.1 is liabte for the said tortuous act. Respondent No.1 has denied the allegation made against him in the plaint and alleged that they are not responsible for the said mishap and are not liable for payment of any damages caused to the appellant. 5. The respondent No.2 herein} is not a necessary party in the present case. Hence, no relief is claimed against them. 6. After affording opportunity of hearing to the parties, learned District Judge held that the injuries caused to the appellant are proved but the respondents cannot be held responsible for compensation and thereby dismissed the suit. 7. We have heard learned counsel for the parties and perused the Judgment and record of the Court below. 8. Learned counsel for the appellant vehemently argued that in the present case, aforesaid accident and injury of the appellant has not been substantially disputed by the respondent No.1. The appellant has shown proof of the aforesaid accident by adducing cogent evidence. E £3. As regards the iiabmty of re$pondent No.1, they are using hazardous item Le. electric pole. The respondent No.1 was under obiigation to take all precautions 0n the ground of ‘strict Iiabttity’. 1D. Learned counset for the appeuant ptaced retiance in the matter of MP. Eiectricity Board vs. Shai! Kumari and orhers reperted in (2392) 2 Supreme Court cases 162. 11. Learned ccunset for the appetlant has atso ptaced retiance tn the matter of Union of india vs. Prabhakaran Viraxa Kumar & 01's reported in (2008) 9 $upreme Court Cases 527, in which Apex Court has heid that a person undertaking an activity invoiving hazardous or risky exposure to human iife, is iiabie under law of torts to compensate for the injury suffered by an other person, irrespective of any negiigence or careiessness on the part of the managers of such undertaking. The basis of such iiabiiity is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as ‘strict liabiiity’. it differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeabie harm could be avoided by taking reasonabie precautions. in case of use of hazardous item, a person using such item comes under ‘striot liability’ for damages caused to the injured person without any exception. 12. On the other hand, learned counsel for the respondent No.1 opposed the prayer. vs 13. Learned counsel for the respondent No.1 submits that in the present case, the incident took piace on account natural calamity and the respondent No.1 is not responsible for any compensation. -u— 5532/ 14. Shri H.B. Agrawali iearned Sienior Advocate for the respnndgnt Na.2 submits tmt the respondent No.2 is not necessary party in the present case and no renef has been claimed against, them, Therefore, they may be absoived from the iiabiiity ef compensation to the appeliant. 15. in order to appreciate the arguments advanced by learned counsel for the parties, we have examined the record of the Court below. in the present case, pleadings and evidence of the parties clearly revealed that the appellant herein lost his legs on account of falling of a dry branch of neem tree on‘the electric wire, which fell on the legs of the appellant along with the electric pole, due to a big blow of storm. Electric wire and electric pole are owned by reepondent No.1. As regards, question of liability as held in the case of MC. Meme vs. Union of lndia reported in (1%?) 1 $CC 395, that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on anyone on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Ryfands l/s. Fletcher. 16. While dealing with the same question in the case of Union of e vs. Prabhakaran Vig'jaya Kumar & Ors reported in (2mm) a Supreme Court Cases 52?, it has been held that in case of use of hazardous items, principle of strict liability appiies, “The rule in Rylands Vs. Fietlcher (1868) LR 3 HL 330 was subsequently interpreted to cover a variety of things likely to do mischief on escape, irrespective of whether they were dangerous per se eg. water, electricity, explosions, oil, noxious fumes, colliery indi p ./ spoil, paisonoms vegez‘atiw, a iYagpOIe, etc. (see Wnmeld and Joiowicz on Tort, 13’" Ecin‘, p.425) vide National Telephcne Co. vs. Baker (1893} 2 Ch 185, Eastern and South African Telegraph Co. Lid. v. Cape Town Tramways Colfd (?902} AC 381 Hilier vs. air Ministry (i962) CLY 2084 etc. in America, fhe mles was adapted and expressed in fhe feiiowing words “One who carried on an ultra~hazardous activity is iiabie to another Wnose person’ land or chatteis the actor shculd recognize is iikeiy i0 be harmed by the unpreventable miecam'age of the activity for harm resuiting thereta tram that which makes the activity ultra—hazardous, although the utmost care is exercised to prevent the harm” (vide Restatement of the Law of Torte, Voi, 3, p.41) xxxxxxx xxxxxxx xxxxorxx Apart from the above, some other exceptions carved out to the rule in Rylands V. Fietcher are: (a) consent of the piaintih? (B) common benefit; (e) act of etranger; (d) act of God; (e) statutory authority; (f) defauit of the plaintiff, etc. 17. ln the present case, the respondent No.1 was owner and user of eiectrtc pote, which has caused serious injury to the appehant. Therefore, without any exception, the present respondent No.1 is iiabie for compensation on account of damages caused to the appeliant under the principie of ‘strict itabiiity‘. While dismissing the suit, teamed Court beiow has not considered the ruie of ‘strict iiabiiity' without any exception in case of use of hazardous item. In the present case, the appetiant has not ciaimed any reiief against respondent No.2. Even otherwise, respondent No.2 is not iiabie for w any campensation and is not a necessary party in ihe present suit 0r appeaL 18. Consequent‘y, the appeal is pamy ailowed. Respondent No.2 is absolved from the iiabitity. The impugned judgment and decree is hereby set aside. For determination of the amount of compensation, the case is remitted back to the Court of District Judge, Raigarh. Parties are dtrected to present before the District Judge, Raigarh on 26.08.2010. The Court beiow is directed to provide an opportunity for adducing necessary evidence for determination of the amount of compensation. The appeiiant is directed to deiete the name of respondent No.2 by tiling appropriate appiicaticn before the Court below. No order as to costs. Sd/- T.P. Sharma Judge Sd/- R.L.Jhanwar Judge