JUDGMENT
Dipak Misra, J.
1. In this appeal preferred under Clause 10 of the Letters Patent the justifiability of the judgment and decree passed in First Appeal No. 74/85 by the learned Single Judge of this Court is called in question.
2. The facts giving rise to this appeal are that the respondent, a depressed and desolate mother instituted civil suit No. 5B/84 in the Court of Additional Judge to the Court of District Judge, Seoni for grant of compensation and damages amounting to Rs. 80,475/- on the ground that her young son, aged about 18 years, had received a fatal current which extinguished his life-spark instantaneously at a place called Zero Tank Chain where the stay-wire of the transformer belonging to the M.P. Electricity Board (hereinafter referred to as the ‘Board’ ) was installed. The incident occurred on 30-6-1983 when the deceased, while grazing cattle passed 10 Ft. away from the stay-wire of the transformer but he received the fatal current. The matter was reported at the Police Station at Chhabra. The plaintiff after serving a notice vide ‘Exhibit P-l dated 18-1-1984 filed the suit on the ground that the Board and its authorities had not maintained the transformer with due care and caution and lack of care on their part had caused the death of the deceased. In the plaint it was averred by her that after the death of her son, her life had become miserable and she was in an agonised state. It was also pleaded that her son was a daily wage earner and was supporting her. Asseverating these facts the plaintiff put forth the claim as mentioned above.
3. The defendants while denying their liability to pay compensation, came forward with a plea that on account of non-payment of electric charges by the consumer i.e. the Irrigation Department of the State Government which is operating the Upper Banganga Project, supply of electricity was disconnected by removing three grips of the main switch from the said transformer on 25-6-1983. It was further pleaded that the Assistant Engineer had inspected the spot on 1-7-1983 and submitted a report to the Superintending Engineer which reflected that three grips of the main switch were removed and uninsulated copper wire was fitted on the line called L.T. Line which was going towards Banganga river. These uninsulated copper wires were wrapped in PVC. From these unauthorised arrangements, the employees of the Upper Banganga Project had taken illegal connection upto their search tower. This wire was touching the stay-wire of the transformer pole thereby discharging electricity through the stay-wire and in this way, the incident had occurred.
4. The learned Trial Judge framed five issues and on consideration of the materials on record came to hold that the respondents were negligent in maintaining the transformer and the accident had occurred due to such negligence. He took into consideration the earning of the deceased and the age of the plaintiff and awarded compensation to the tune of Rs. 5,475/-
5. Being dissatisfied with the aforesaid judgment, the crest fallen mother preferred the first appeal before this Court. The Board and its authorities, with the intention to carry their point to its logical conclusion, also filed a cross-objection. The learned Single Judge scrutinising the materials afresh and considering the responsibility of the Board and its authorities affirmed the findings of the learned trial Judge that the accident had occurred due to negligence of the respondents-defendants. The learned Single Judge analysed the actual earning of the deceased and his future prospects and considering various other factors arrived at the conclusion that the plaintiff was entitled to get the total compensation of Rs. 80,475/- with the interest at the rate of 6% per annum from the date of presentation of the plaint till realisation of the amount. Thus, this appeal by the Board and its authorities.
6. Mr. M. M. Jaiswal, learned senior counsel for the appellant, assailing the aforesaid judgment, has contended that the learned Single Judge has erred in concurring with the conclusion of the learned trial Judge with regard to negligence on the part of the Board and its authorities. He has also seriously criticised the quantum fixed by the learned Single Judge as the same is not in consonance with the established or accepted norms for the said purpose.
Mr. S. C. Chaturvedi, learned counsel for the sole respondent has proponed that the finding of the learned Single Judge in affirming the negligence on the part of the Board and its authorities cannot be found fault with as the said finding is based on cogent evidence which is germane to the issue. The learned counsel has further submitted that the quantum fixed by the appellate Judge is not excessive and in fact, has been granted keeping in view the principles enunciated and guidelines enumerated by the Apex Court in various decisions.
7. We shall advert to deal with the first contention first. Mr. Jaiswal, learned senior counsel appearing for the appellant has strenuously urged that the conclusion of the learned trial Judge as well as the appellate Judge pertaining to factum of negligence of the Board is sensitively vulnerable. On a perusal of the judgment passed by the learned Single Judge we notice that he has opined that the burden of proof that there has been no negligence or carelessness is on the Board. Submission of Mr. Jaiswal is that in all circumstances the onus is not on the Board and even assuming the onus was on the Board to prove that there was no negligence on its part, the same has been duly discharged by taking a definite plea and proving the same by adducing acceptable and cogent evidence.
8. The M.P. Electricity Board is a statutory authority under the Electricity Act, 1910 read with the Electricity Supply Act, 1948. It has the duty to transmit electric energy and regulate the supply. It is expected of the Board to do whatever is required to be done to avoid an accident. Its negligence cannot be equated with the negligence of an individual or a situational negligence. There is presumption of negligence when an accident of this nature occurs. Heavy onus is cast on the Board. It is required to discharge the onus. In this context we may profitably refer to the decision rendered in the case of Manoharlal Sobharam and Ors. v. Madhya Pradesh Electricity Board; 1975 MPLJ 744, wherein G. P. Singh, J (as his Lordship then was) speaking for the Court, expressed thus :-
“The defendant has a statutory authority under the Electricity Act, 1910, read with the Electricity Supply Act, 1948, to transmit electric energy. The defendant, therefore, cannot be made liable for nuisance for the escape of electrical energy on the principle accepted in the case of Rylands v. Fletcher. The defendant, however, is still liable for negligence. It is negligence to omit to use all reasonable known means to keep the electricity harmless; (see Clerk & Lindsell on Torts, 13th edition, paragraph 1536). The burden of proving that there was no negligence on the defendant and there is no obligation on the plaintiff to prove negligence. Further, the standard of care required is a high one owing to the dangerous nature of electricity; (see Charlseworth on negligence, 5th edition, page 531). If the defendant produces no material and offers no evidence to negative negligence, negligence will be presumed. This result will also follow on the principle of res ipsa loquitor. Live broken electric wires carrying high tension energy are generally not found in a public place, street or road, therefore, if such a thing happens a prima facie inference can be drawn that there has been some carelessness on the part of the defendant in transmitting electric energy or in properly maintaining the transmission lines. This inference is further supported by Rule 91 of the Indian Electricity Rules, 1956. This rule provides that every overhead line which is not covered with insulating material and which is erected over any part of a street or other public place or any factory or mine or any consumer’s premises shall be protected with a device approved by the Inspector for rendering the line electrically harmless in case it breaks. If the precaution under this rule is taken the line in case it breaks would become dead and harmless. The fact that the line after it broke did not become harmless shows that necessary precaution was not taken. As the defendant has not produced any evidence whatsoever to place the facts showing that all necessary precautions were taken and there was no negligence on its part, it must be held that the accident happened because of the negligence of the defendant.”
The High Court of Orissa in the case of Padma Behari Lal v. Orissa State Electricity Board and Ors.; 1992 ACJ 554, while dealing with the concept of burden in a case of electrocution by a live electric wire which had got detached from the electric pole, observed as under :-
“It is well established in law that in an action for damages in tort, the general rule is that onus to prove negligence on the part of the respondent rests on the claimant. But there are cases in which the claimant is not in a position to produce evidence as to the negligence of the respondent which caused the accident. In those cases it may be that the claimant would not be in a position to know the true cause of the unfortunate accident. In some of such cases the cause of accident, though not known to the claimant, might be within the special knowledge of the respondent. The rule of evidence accepted by all Courts of law put the onus on the respondent to prove that the accident was not on account of negligence on its part where the circumstance leading to an accident is such that it is improbable that it would have occurred without the negligence of the respondent. The aforesaid rule of evidence is commonly known as res ipsa loquitor. The said maxim applies in action for negligence in which the accident speaks for itself. In such cases the claimant is not required to allege and prove any specific act or omission on the part of the respondent. If he proves the accident and the attending circumstances so as to make the aforesaid maxim applicable, it would be then for the respondent to establish that the accident happened due to some cause other than his/its negligence.”
At this juncture we may refer to the decision rendered in the case of Chani Bewa and Ors. v. State of Orissa and Ors.; 1995 ACJ 901, wherein the petitioner had claimed compensation for the death of the deceased who had died because of a branch of a nearby tree fell down and hit him on the head. The compensation was claimed from the State contending, inter alia, it was the responsibility of the State to take reasonable care while maintaining the trees on the road. The Court held thus :
“Opposite parties Nos. 1 and 2 being the owners of the road as well as the trees standing on the road are the duty-bound to take such reasonable care as a reasonable man ought to take, so that any person either while going on the road or waiting underneath any tree standing on the road does not sustain any injury on account of falling of the branch from the tree in question.”
We have referred to the aforesaid judgments to indicate that the Courts have held that the burden is cast on the statutory authority to show that the accident had occurred in spite of due care being taken. It is to be borne in mind that the concept of tortious liability has undergone a change because the same has been interlinked with failure of performance of common-law duty. In a. changing and developing society the parameters of duty keep on changing and with a change of concept of duty to concept of tortious liability has undergone a change. In this context, we may refer to the decision rendered in the case of Jaylaxmi Salt Works (P) Ltd. v. State of Gujarat; (1994) 4 SCC 1, wherein, their Lordship held as follows :-
“Entire law of torts is founded and structured on morality that no one has a right to injure or harm others intentionally or even innocently. Therefore, it would be primitive to class strictly or close finally the ever expanding and growing horizon of tortious liability. Even for social development, orderly growth of the society and cultural refmeness, the liberal approach to tortious liability by Courts is more conducive,”
Their Lordships further proceeded to state;
” ‘Negligence’ ordinarily means failure to do statutory duty or otherwise giving rise to damage. The axis around which the law of negligence revolves is duty, duty to care, duty to care reasonable care. But the concept of duty, its reasonableness, the standard of care required cannot be put in a strait-jacket. It cannot be rigidly fixed. Even improper exercise of power by the authorities giving rise to damages has been judicially developed and distinction has been drawn between power coupled with duty. Where there is duty the exercise may not be proper if what is done was not authorised or not done in the bona fide interest of the public. Negligence is only descriptive of those sum total of activities which may result in injury or damage to the other side for failure of duty both legal or due to lack of foresight and may comprise of more than one concepts known or recognised in law, intended or unintended.”
And finally their Lordships expressed as follows :
“Negligence in performance of duty is only a step to determine if action of Government resulting in loss or injury to common man should not go uncompensated. If construction of bundh is a common law or public duty then any loss or damage arising out of it gives rise to tortious liability not in the conservative sense but certainly in the modern and developing sense. A common man, man in the street cannot be left high and dry because wrongdoer is State. The basic element of tort is duty. And that comes into play fully when there is a common law duty. Since construction of bundh was a common law duty any injury suffered by a common man was public tort liable to be compensated.”
The present factual matrix has to be tested on the touchstone of the aforesaid parameters. On a perusal of the judgment of the learned Single Judge, we find that he has considered the evidence of the DW-1 Assistant Engineer, who has stated that the Irrigation Department had not paid the electricity bills and, therefore, on 28-6-1983, three grips from the transformer were removed and electric supply was disconnected. It was noticed that the said witness has admitted that the pilferage of electricity was noticed after 3 to 4 days of the incident. He has also admitted that the stay-wire might receive current because of uninsulation. There is also reference to the evidence of Lineman, DW-3 who had deposed that he had inspected the transformer but did not inspect the line after 9-6-1983. It is in his evidence that he had gone to the spot after the incident had taken place. It is also perceptible from his evidence that energy was passing through the stay-wire. Mr. Jaiswal, learned senior counsel analysing the aforesaid evidence has submitted that due to certain acts of the employees of the Irrigation Department, an unauthorised connection was taken which had caused the accident and, therefore, the Board cannot be put to blame. The question that arises for consideration is whether in the obtaining factual matrix it can be held that there has been no failure on the part of the Board to attract the concept of negligence in the modern connotation of the term. The Board has a duty to see that its equipments and wires are properly maintained. The Board has also the statutory duty to see that electricity is not pilfered. A close watch is expected from the linemen who are employed by the Board if the Board had disconnected the electric supply to the Upper Banganga Project. It was the duty of the Board to see that such disconnection had its full effect. It was the duty of the Board to see that the employees of a Project belonging to the State Government could not have taken the law into their own hands to make such arrangements so that, the electricity supply continued. As it appears no steps were taken from the date of disconnection till the date of accident to see that there was no pilferage of electricity. No Field Officer had gone to the site to see that the disconnection had remained in effect in every sense of the term. The officers visited only after the unfortunate incident had occurred. It is not a case where an unauthorised user or the pilferer had become a victim of his own act. Here was an innocent young man who was taking his normal path but without apprehending that his life-spark would be extinguished because of a electric spark. The duty, which is expected from the Board and its authorities to be performed in a responsible manner and with reasonable care, has not been done in the instant case. Considering the whole gamut of facts we concur with the view taken by the learned Single Judge that the Board has failed to discharge its burden that the transformer and the electric line were being looked after properly and all necessary precautions were taken by them.
9. The next contention of Mr. Jaiswal is that the compensation granted by the learned Single Judge is quite excessive and against the accepted principles which are normally taken recourse to for quantifying the damages.
On a perusal of the evidence we find that the deceased was about 17 years of age and was earning certain amount per day at the time of accident. His mother was 55 years of age when she suffered the enormous personal tragedy. Loss of life cannot be evaluated by terms of money but the Courts of law have evolved methods for the purpose of granting just compensation. True it is, a calamity cannot be converted to a wind-fall but simultaneously, there has to be grant of just compensation to alleviate the condition of the dependant. In the instant case, the victim of the accident was hardly 17 years of age and at that time he had undertaken to work to meet the obligation of his life so that he could sustain his mother. There is evidence that he was contributing to the family. With the passage of time, he would have earned more and definitely the future prospects cannot be totally brushed aside. On a conservative estimate he would have contributed Rs. 7,500/- yearly to the family. Taking into consideration, the age of the widowed mother, we are of the considered view that multiplier of 9 would be the correct multiplier for determining the just compensation. Thus the plaintiff would have been entitled to 7,500 x 9 = 67,500/- on this head. To this sum of Rs. 10,000/- an usual sum granted towards loss of estate has to be added. A sum of Rs. 2,000/- towards funeral expenses is also to be granted to the plaintiff. In this manner, the total sum comes to Rs. 79,500/-. We notice that the learned Single Judge has allowed the total claim of the plaintiff amounting to Rs. 80,475/-. On taking into consideration various factors as well as the agony of the unfortunate mother we find, computed in any manner, the damage granted by the learned Single Judge is not excessive nor does it exhibit any kind of capriciousness. Thus, the conclusion arrived at by the learned Single Judge in this regard, does not warrant interference.
10. Consequently, the appeal, being devoid of merit is dismissed and the judgment and decree of the learned Single Judge is affirmed. However, the parties shall bear their respective costs in this appeal.