/1/ S.B.C.M.A.No.627/97 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T CIVIL MISC. APPEAL No. 627 of 1997 GIGHULAL MAHAJAN V/S SMT.JETI & ORS Date of Judgment : 5.9.2008 PRESENT HON'BLE SHRI N.P.GUPTA,J. Mr. PK BHANSALI, for the appellant. Mr. KR CHOUDHARY & Mr. NARENDRA RAJPUROHIT for Mr.RAVI BHANSALI, for the respondent. This appeal has been filed by the owner of the tractor Gighulal, against the award of the Motor Accident Claims Tribunal, Jaisalmer, dated 20.5.1997, decreeing the claim for a sum of Rs.3,44,200/- against the appellant and the driver Nizam Khan, alongwith interest @ 12% per annum. The facts of the case are, that on 19.1.1993, claimant Jeti, the widow of deceased Padma Ram, and Rawata Ram, the father of the deceased Padma Ram, lodged a claim petition, alleging inter alia, that on 24.7.1992 when the deceased along with Bhikh Singh was sitting on the cultivator, attached behind the tractor for the purpose of sowing, at that place, in the field /2/ S.B.C.M.A.No.627/97 of Bhikh Singh, there is an electric pole, which has a supporting wire, and the driver carried the tractor from nearby, as a result of which, the wire got entangled in the plough of the cultivator, thereupon Bhikh Singh raised a cry to stop the tractor, but defendant No.3, driver, did not stop it, as a result of which, the wire got broke down, and touched the live electric line, and thus, the electric energy passed in the wire, as a result of which, the deceased was thrown away, and died on the spot, at that time, he was carrying seeds in his fists. It was alleged that the dead body was lying at a distance of half feet from the tractor, for which a first report was lodged by Taza Ram son of Mala Ram, whereupon the police people got conducted the post mortem examination. It is also alleged, that on 7.5.1992 Bhikh Singh had lodged a report, about the broken electric wire of the pillar before the SDO, Pokaran, and Electricity Department, Pokaran, to get it repaired, but no action has been taken, with the result that, in the rainy season, when sowing operations were undertaken, that wire got entangled in the cultivator, on account of tractor being not stopped, it broke, and came in contact with live electric line. It was also alleged that a few moments earlier, Bhikh Singh had jumped down, but on account of tractor being in motion, deceased Padma Ram could not escape, and thus, he died. Separate replies had been filed, one on behalf of the owner of the tractor, and other on /3/ S.B.C.M.A.No.627/97 behalf of the electricity authorities, being defendants No.4 and 5. In the reply of defendants No.4 and 5, the averments of the claimants have been denied. It is pleaded, that the pillar, in the field of Bhikh Singh was not having any supporting wire, thus the story propounded is wrong, and if on account of any fault of the driver, or by the own fault of the deceased, if he fell down, then the defendants No.4 and 5 cannot be held responsible. Likewise, it was denied that on 7.5.1992, any alleged application was filed in the electricity office at Pokaran. The owner, in his reply to the relevant pleadings has adopted a stand of denial, by pleading, that it is wrong to contend, that the wire got entangled in the plough of cultivator, and that all these facts are false and manipulated. Likewise it is also pleaded, that it is wrong to contend, that the wire got entangled in the plough of cultivator, or that the wire broke down, while the tractor was in motion, and came in contact with live electric line, or that Bhikh Singh jumped down. In additional pleas, it is pleaded, that from the documents produced along with the claim petition, it is clear, that the deceased had removed the wire by hand, and it was at that time that he received electric current, and died, thus, it is clear, that no accident occurred out of the use of any motor vehicle, being tractor. Thus, the claim cannot be entertained by this Tribunal. Learned Tribunal framed 5 issues. Issue No.1 was, as to whether at the time of sowing by tractor /4/ S.B.C.M.A.No.627/97 No. RRN-3764 belonging to the defendant No.1, on 24.7.1972, the wire got entangled in the plough of cultivator of the tractor, and by negligent driving of the tractor, deceased Padma Ram died on the spot, and the claimant is entitled to compensation of Rs. 9,36,000/-. Then issue No.2 is, as to whether Padma Ram died on account of receiving electric current, as such, the claim is not entertainable by the Motor Accident Claims Tribunal. Then issue No.3 is, about non-maintainability of the claim against defendants No.4 and 5, while issue No.4 is, about Rajasthan State Electricity Board, being necessary party. Issue No.5 is, about relief. The claimants examined Jeti, the widow as A.W.1, Rawata Ram other claimant as A.W.2, Jeta Ram A.W.3, and Prahalad Ram A.W.4. These A.W.2, 3 and 4 have been produced to support the factum of happening of the accident, as to in what manner it occurred. On the side of the defendants, the owner has appeared as N.A.W.No.1, driver has been examined as N.A.W.2, then Assistant Engineer of RSEB has appeared as N.A.W.4/1, and then Dr. B.D. Jetha has been examined as N.A.W.5. In documentary evidence, the claimant produced copy of FIR lodged by Taza Ram as Ex.1, the memo about initiation of proceedings under Section 174 Cr.P.C. being Ex.2. Then site plan Ex.3, Fard Panchnama Lash Ex.4, Fard Surat Haal Ex.5, site inspection note, being Ex.6, post mortem report as Ex.7 have been produced. /5/ S.B.C.M.A.No.627/97 At this place, it may be observed, that the papers in the file of the document part are indexed, but then, they are not properly placed, with the result, that they have caused a lot of confusion, inasmuch as, the paper at page C-9/10 is a part of Ex.5, available at page C-9/8, while the paper available at page C-9/6, purporting to be part of Ex.3, is in continuation of paper available at page c- 9/9, purporting to be Ex.6. During course of hearing also, a lot of confusion arose on this count, but then, the papers have been read by presuming them at a proper place. Arguing the appeal, it is contended by learned counsel for the appellant, that the claimants have come with an utterly false story, simply to obtain a decree of compensation, inasmuch as, the story propounded in the claim petition is at complete variance with the story, originally propounded in the FIR, which has been lodged by none-else than the real uncle’s son of deceased Padma Ram, being Taza Ram. This Taza Ram is also a witness of the site inspection note. If the story propounded in the FIR is considered, the story propounded in claim petition is completely belied, inasmuch as, according to FIR, it was the deceased, who removed the wire by hand once, and when he tried to remove it again second time, it happened to be carrying electric current, as a result of which he died, while an entire different, and false story has been propounded in the claim petition, about the support wire (technically known as stay wire) of /6/ S.B.C.M.A.No.627/97 the pillar, getting entangled in the plough of the cultivator attached to the tractor, and then on account of tractor not being brought to a halt, that wire getting broken, and coming in contact with the live electric line, and resulting into the deceased being thrown away from the tractor, and having died by electrocution, which cannot be believed. Learned counsel pointed out, that even from the documents produced by the claimants, even apart from the FIR, Site inspection note, site plan, Fard Surat Haal Lash, and Fard Nirikshan Lash etc. also, it is clear, that there is no mention, about any of the circumstances, which may lend even assurance to the story, about the accident having occurred in the manner, as alleged in the claim petition. This, coupled with the fact, that the owner, and the driver, have both appeared in the witness box, and have clearly deposed, that no accident occurred with the tractor in question, as such, the claim could not be decreed. Learned counsel read to me the statements of Rawata Ram, and submitted, that even from his evidence, the story is not substantiated. Then the most important witness could have been Bhikh Singh, who, according to claimants, was there on the cultivator alongwith the deceased, and who is said to have jumped down just few moments before, and is the person, on whose field the tractor was being operated, has not been examined, which could have been the best witness to substantiate the claimants' case. Likewise, it is contended that the first informant Taza Ram has also not been produced by the claimants. It was next submitted, that /7/ S.B.C.M.A.No.627/97 as alleged in the claim petition, that the wire was already lying broken since long, and therefore, on 7.5.1992 a report in this regard was lodged with the Electricity authorities, as well as before the SDO, but nothing was done. In such circumstances, it is writ large, that the accident must have occurred in the manner, as alleged in the FIR, and in that event, the absolute liability lay on the shoulders of the electricity authorities, and the appellant could not be held liable. Commenting on the evidence of N.A.W.5/1, who has deposed, that any such complaint was never received, it was contended, that this witness admitted in his cross-examination, that in the year 1992 he was not posted here. Then the signatory of the written statement has also not been examined, nor the person, posted at the relevant place, at the relevant time, has been examined. Learned counsel relied upon the following judgments, to contend, that in such circumstances the Electricity authority, is liable for the compensation:- 1. Executive Engineer, Gujarat Electricity Board Vs. Zubedabai Ibrahim & Ors. reported in 2004(3) ACJ 1816; 2. Prem Chand & Anr. Vs. Uttari Haryana Bijli Vitran Nigam Ltd. reported in 2003 (3) ACJ 1794; 3. Karnataka Electricity Board Vs. Basavva & Anr. reported in 2002(2) ACJ 1043; 4. Nirmala Nayak & Ors. Vs. Grid Corporation of Orissa & Ors. reported in 2007(1) ACJ 283; 5. Madhya Pradesh Electricity Board Vs. Shail Kumari & Ors. reported in 2002(2) ACJ 526; and /8/ S.B.C.M.A.No.627/97 6. M.P.Electricity Board Vs. Bhona reported in 1994(1) ACJ 58. On the other hand, learned counsel for the claimants supported the impugned judgment, by contending, that from the evidence of Rawata Ram, Jeta Ram and Prahalad Ram, the averments of the claim petition are substantiated. It was contended, that even from the statement of Gighulal and Nizam, the defendants, it is clear, that on the fateful day and at that time, sowing operations were being undertaken in the field of Bhikh Singh, admittedly tractor was there in the field, and at the time of undertaking sowing operation, the tractor was being driven by the defendant Nizam Khan. With this it is contended, that even Nizam has not deposed as to how Padma Ram had died, inasmuch as, he has only deposed, that Padma Ram was not working on his tractor, but was in the field of Bhikhji, and that deceased was lying at a distance of 10-15 paces away from the tractor, but then, he has not disclosed as to how the deceased died, as undisputedly, the dead body was lying in the field of Bhikhji, the electricity wires were touching him, and he died of electrocution. Thus it is clear, that the driver is not telling the whole truth. This, coupled with the evidence of Rawata Ram, Jeta Ram and Prahalad, makes it clear, that the deceased was working on the cultivator attached to the tractor, and was busy in sowing, at which time, the electric wire touched the cultivator, thereby the deceased got electrocuted and died. /9/ S.B.C.M.A.No.627/97 The learned counsel for the claimants relied upon the judgment of Madhya Pradesh High Court, in Dhanwanti & Ors. Vs. Kulwant Singh & Ors., reported in 1994 ACJ 708, and that of Hon'ble the Supreme Court, in Pushpabai Purshottam Udeshi & Ors. Vs. M/s. Ranjit Ginning and Pressing Co. & Anr., reported in 1977 ACJ 343, to contend, that in the circumstances like the one of the case in hand, the principle of res ipsa loquitur is attracted, and on invoking this principle, it is more than clear, that the accident occurred in the manner as alleged by the claimants, and the claim has rightly been decreed. I have considered the rival submissions, and have gone through the entire record, even afresh, and have also gone through the various case laws cited on either side. At the outset it may be observed, that the learned Tribunal, in the impugned award, has dismissed the claim against the defendants No.4 and 5, being the Electricity authorities, and no appeal has been filed by the claimants, against them. It is a different story, as to whether any cross-objection would have been maintainable or not, but then, the fact also does remain, that even no cross-objections have been filed by the claimants, seeking decree of the compensation against the defendants No.4 and 5. In that view of the matter, the precise /10/ S.B.C.M.A.No.627/97 thing, required to be seen by me, is, as to whether the appellant could be held liable for the compensation or not? As is clear from the narration of the facts above, that the appellant is sought to be held liable, on account of negligent driving of the tractor by the driver Nizam, the appellant being the owner of the tractor, and the negligence alleged is, that in the field of Bhikh Singh there was electric pole, which was having stay wire. In this background, the driver carried the tractor through near that wire, with the result, that the wire got entangled in the plough of the cultivator, Bhikh Singh called to stop, but the tractor was not stopped, with the result, that the wore broken down, and touched the live electric line, and threw away Padma Ram, who died. As against this, the Electricity authorities have clearly contended, that in the field of Bhikh Singh there was no stay wire. Then from a look at the evidence led on behalf of the claimants, it is clear, that none of the witnesses have deposed about existence of any stay were, or to say a support wire. Rawata Ram and Jeta Ram claim to have been attracted on the spot on hearing the cries and seeing the flames on the pole. Obviously, they are attracted only after the episode was over, inasmuch as, even if I were to believe, that any flames emerged on the pole, it could possible be after the accident occurred, and the deceased was electrocuted, as such, they could possibly not have seen, that there was any wire, much less stay wire, /11/ S.B.C.M.A.No.627/97 which did, or could, get entangled in the plough of the cultivator attached to the tractor. Then in order to get out of this difficult situation, Rawata Ram had only deposed, that his son died on account of the wire getting entangled in the cultivator, but he has not disclosed, as to how the wire happened to be there, because it is not deposed, that any wire traveling upside the pole had fallen down, and it has also not been deposed, that there was any stay wire, which could get entangled. Likewise so far Jeta Ram is concerned, all that he has deposed is, that when he went on the spot, deceased was lying on the wire, and that, he went on the spot on seeing the flames on the pole, and reached thereafter, after Rawata Ram had reached. In cross-examination he has deposed to be not aware, as to whether the deceased fell down from the tractor or not, rather he had only seen him lying on the wire, obviously thus, he is not a witness of the fact, or to prove, as to how the accident actually occurred. Then so far Prahalad Ram is concerned, he has deposed, that when Padma Ram was carrying on sowing operations, sitting on the cultivator, an electric wire came in front of the tractor, which got broken by being stretched, with the result that it electrocuted Padma Ram, who died. Then in cross- examination he has deposed, that he did not see Padma Ram falling, but had seen him already fallen, and that, he was told, that when Padma Ram was sowing, the tractor gave a jerk, and did not stop, with the result that the wire came out, and electrocuted Padma Ram. Here again, it is significant to note, that he has /12/ S.B.C.M.A.No.627/97 also not deposed, that there was any stay wire, which got entangled in the tractor, as pleaded in the claim, or that, on account of it coming with the contact of live electric line after breaking down, that it got electrocuted. The things have been kept very vague deliberately, so as to modulate the story, as may suit the convenience, from time to time. It may be noticed here, that it is nobody's case, whether in the claim, or during trial, that any overhanging wire fell down, and obviously it could not be, for the simple reason, that the cultivator attached to the tractor could possibly not get entangled in the overhanging wire, fixed on the top of the pole. In this sequence, true it is that the owner and the driver N.A.W.1 and 2 have not clarified, as to how the accident occurred, but then the owner N.A.W.1 has deposed, that the tractor was not near the wire, rather it was at a far distance. Likewise, the driver Nizam has also deposed, that the deceased was lying at a distance of 10-15 paces away from the tractor. Obviously, if the accident had occurred in the manner as alleged, the deceased would not have been thrown away at such a far distance from the tractor. Probably it is only to cover up this situation, that in the claim petition, a story has been propounded, about the deceased lying at a distance of half feet from the tractor. Significantly this has not been even suggested to the driver, viz. that the driver is /13/ S.B.C.M.A.No.627/97 wrongly deposing about the deceased lying at a distance of 10-15 paces, rather he was lying at a distance of half feet only, from the tractor. In this very sequence, a look at the site plan shows, that the electric poles carrying electric line are at a long distance away, from where the deceased was lying, and looking to the distance shown in the site plan, it does not appear to be even likely, that there may be any stay wire available at a place where the deceased was lying, so as to get entangled in the cultivator of the tractor, and causing the accident, in the manner alleged, rather from the site plan it appears, that the wire is emanating from first eastern pole, and after traveling a distance upto second pole, is going towards further north, upto the deceased, which wire could possibly not be stay wire, but obviously appears to be the overhanging wire, whether it be phase wire, or negative wire, or earth wire. It is unfortunate that in the site plan, the location of the tractor is not shown. Then Ex.4, which is the Fard Panchnama Lash also shows, that it was prepared in the presence of first informant Taja Singh and other persons, and all were unanimous to the effect, that the deceased died of electrocution, but it was not even whispered, that he died on account of wire getting entangled in the cultivator, and as a consequence thereof wire receiving electric energy and electrocuting the deceased. /14/ S.B.C.M.A.No.627/97 Thus after appreciating this evidence, if I were to look into the FIR, even though a FIR can be used only for the purpose of contradicting the maker thereof, and cannot be taken to be a piece of evidence in the trial of the present case, still for the purpose of appreciating the preponderance of probabilities, if the oral evidence, led on the side of the claimants, is appreciated, in the light of this FIR, and the site plan, it clearly appears, that the story propounded in FIR is more probable, i.e. the deceased may have tried to remove the lose wire lying in the field, by hand, which might have happed to be a live electric wire, and the deceased got electrocuted, and he might have tried to remove the wire, as the wire might be obstructing the passage of the tractor. May be, that this factual situation, in view of the various judgments cited by learned counsel for the appellant could have given sufficient right to the claimants, to claim compensation from the defendants No.4 and 5, on the basis of their strict liability, but then, that does not attract any liability of the appellant, unless and until the claimants are able to establish, that the accident occurred in the manner alleged, which may tantamount to negligent driving of the tractor, by not stopping it on getting entangled in the stay were, which stay were broke down, and came in contact with live electric current, and electrocuted the deceased. So far as the judgments cited by learned counsel for the claimants are concerned, in /15/ S.B.C.M.A.No.627/97 Dhanwanti's case, the principle of res ipsa loquitur was applied as the driver failed to discharge the burden, by pleading and proving that he was not negligent. As in that case, the accident occurred in the manner, that the driver lost the control over the vehicle, and dashed against the pedestrian, and then overturned, while the driver had deposed, that in order to save the pedestrian he tried to stop the vehicle, and took it on one side, but as there was slope, balance was lost, and it resulted in the accident. In the present case, the principle of res ipsa loquitur is not attracted, for the simple reason, that it was necessary for the claimants to at least prove the existence of stay wire being available on the spot, likely to get entangled in the plough of the cultivator, so as to break down, and get in contact with the live electric current. Even at the cost of repetition, it may be observed, that none of the witnesses have deposed the existence of any stay wire, and the wire available at the site, as appearing from the site plan, could possibly not break down, and/or come in contact with live electric current, on account of it getting entangled in the cultivator, and thereafter driver not stopping the vehicle. Likewise, so far Pushpabai's case is concerned, therein the principle was propounded, that there are cases in which accident speaks for itself, so that it is sufficient for the plaintiff to prove /16/ S.B.C.M.A.No.627/97 the accident, and nothing more, and that, it will then be for the defendant to establish, that the accident happened due to some other cause, than his own negligence. In the present case, it would suffice to say, that here in view of the discussion made above, the accident does not speak for itself, as intended to be spoken by the claimants. If the claimants had proved the existence of stay wire, capable of, or being available, for being getting entangled in the plough of the cultivator, probably the principle of res ipsa loquitur might have invoked, but in absence of fundamental fact being proved by the claimants, the principle of res ipsa loquitur cannot be attracted. Thus, the net result of the aforesaid discussion is, that in my view, the