JUDGMENT
B.C. Varma, J.
1. This is defendants’ appeal. The second appellant Shivlal Sahu was in the employment of the appellant No. 1 which is a Electricity Board constituted under the Indian Electricity (Madhya Pradesh) Act, 1951.
2. The appellant, Board, in usual course of its functioning established a Sub-station in village Kuthla, tahsil-Murwara, district-Jabalpur and stretched electric wires in the village with the assistance of poles. The wires even passed over the fields in that village. The wires so stretched were on considerable height from the surface of the land. Through these wires electrical current flowed. On 13-4-76 at between 10 to 10.30 A.M. one Bhulla Kumhar on his way back from a tank after taking bath passed through one of such fields near a flour mill owned by Shankerlal Dubey. In the field lay handing 3 or 4ft. above the ground electric snapped live conductor. Bhulla Kumhar while crossing that field came in contact of those live wires through which electrical current was flowing. He met with instantaneous death.
3. The respondents claiming to be the dependents of the deceased Bhulla Kumhar filed a suit against the Madhya Pradesh Electricity Board and its lineman Shri Shivial Sahu (appellant) attributing Bhulla Kumhar’s death to the negligent act in not keeping the electric wires duly and properly maintained. Alleging that at the relevant time Bhulla Kumhar was employed as Labourer in Ordnance Factory, Katni and earning Rs. 290/- per month, a sum of Rs. 1,44,000/- was claimed as general damages. Apart from this, a sum of Rs. 20,000/- was claimed for loss of society and Rs. 1,000/- spent on visitors who came to their place for condolence. It is their case that the claim was not satisfied despite notice dated 19-5-76.
4. The appellants entered appearance in answer to the summons of the suit. They resisted the claim on the ground that night before the place of incident there had been a very heavy storm causing damage to the electrical installation in that village. The electrical poles bended and the wires driven low towards the ground. The mishap was, therefore, said to be an inevitable accident caused by the act of the God. It has also been the case that there was a defined pleading to the tank and the field was never used for such purpose i.e. for going to the tank. The deceased himself was a trespasser and, therefore, was not entitled to any damages. Plea also seems to have been raised attributing negligence to the deceased. Quantum of damage claimed was also denied. It was specifically pleaded that the deceased was not employed anywhere in the Ordnance Factory at the time of his death as alleged. On this pleading the trial Court framed issues. Parties adduced oral and documentary evidence and after hearing them by judgment dated 30-11-1985 the trial Court passed a decree in favour of the respondents/plaintiffs in a sum of Rs. 50,000/-. Interest at the rate of Rs. 6% per annum on the sum so decreed has also been awarded from the date of institution of the suit until realisation. In this appeal by the defendants all the adverse findings and the entire decree passed by the lower Court has been challenged.
5. Before us, learned Counsel for the appellants did not contest the findings that Bhulla Kumhar died on 15-4-76 as a result of his coming in contact with the nacked snapped life conductor (electric wire). It was also not contested that the respondents were dependent upon him at the time of the death. Counsel for the parties, however, as they did in the trial Court, so also before us strongly contested the issue relating to the appellants’ negligence and consequent liability for Bhulla Kumhar’s death. Reference in this regard must be made to Rules 29 and 50 of the Indian Electricity Act, 1956. Rule 29 appears in Chapter IV ‘General Safety Precautions’. This rule casts a duty upon the Board to maintain the electric supply lines and apparatus in a manner different to prevent any danger. This is how the rule reads as under:
29. Construction, installation, protection, operation and maintenance of electric supply lines and apparatus.
(1) All electric supply lines and apparatus shall be sufficient in power and size and of sufficient mechanical strength for the work they may be required to do, and shall be constructed, installed, protected, worked and maintained in such a manner as to prevent danger.
(2) Save as otherwise provided in these rules, the relevant Code of Practice of the Indian Standards Institution, if any, may be followed to carry out the purposes of this rule and in the event of any inconsistency, the provisions of these rules shall prevail.
(3) The material and apparatus used shall conform to the relevant specifications of the I.S.I. where such specifications have already been laid down.
Further we find in Rule 50 of those rules that the energy shall not be supplied, transformed, converted or used or continued to be supplied, transformed, converted or used unles…”(f) adequate precautions are taken to ensure that no live parts are so exposed as to cause danger.”
6. The combined reading of these two provisions plainly indicates that the supplier of electricity (appellant No. 1, Board, in the present case) should be that all electrical installation should be so maintained and all precautions should be taken to prevent any danger from the live parts. This is the statutory duty cast upon the supplier of the electricity. It may also be noticed that apart from these statutory provisions, handling of electricity calls for special precautions and very strict and cautions vigil. In Halsbury’s Law of England, Fourth Edition, Volume 34 it is stated in para. 36 that persons, who leave dangerous things where they are likely to be used or affected by others, and particularly by young persons, are responsible if the interference should reasonably have been foreseen and results in injury. See Madhinabhai v. Guj Electricity Board 1984 ACJ 173. It will thus be seen that it is for the supplier of electricity to show that the rules in regard to maintenance of the installation have been observed and that adequate precautions were taken to ensure that the live parts were not so exposed as to cause danger.
7. In the instant case, it is at least not disputed at this stage that the long electric wires lay hanging across the field and that the electricity was passing through those wires The positive defence taken by the appellants is that during the preceding night there were heavy rains and storm which caused damage to the electric poles. It was for this reason that the wires which were earlier properly stretched became a bit loose. The plaintiffs/ respondents’ witnesses had unanimously denied this allegation on oath in the witness box. We have examined the evidence of those witnesses and found that on this issue their testimony has stood firm and remain absolutely unchallenged. As against this the evidence adduced by the plaintiffs/ respondents, the appellant/defendants have laid no convincing evidence to conclude in its favour on this issue. T. Samanta (DW. 1) has no personal knowledge of any such hail-storm. According to him, from the spot inspection he reached a conclusion that there might have been storm in the previous night. Yet another witness Vijay Kumar (D.W. 2) only deposed that an enquiry from the local people in presence of Shri T. Samanta and other witness Shivlal (D.W. 3) they were told that there was a storm in the village during the previous night and as a consequence of that storm some branches of trees had fallen and the electric poles had bent. Again this witness has no personal knowledge of any such storm. In cross examination he has been referred to certain correspondence and he had to admit that there was no reference of any such storm in that correspondence He prepared panchnama, Ex. P/7 but thereto he failed to mention of any such storm. Evidence of Shivlal (D W. 3) is no better. His evidence is also hearsay on this issue. One fails to see why the appellants could not examine any villager on this issue. It is worth mentioning that the branch office of the Electricity Board is at a short distance from the spot of incident and if there were some storm really as alleged it would have well experienced by the people in the office. Then again such a storm should have immediately put those in-charge of the maintenance of the line to immediately rush to the spot anticipating damage to the wires and the electric poles and to repair the same before any untowards incident took place. That was not done. This also indicates that the plea that there had been a storm resulting in damage to the poles and the wires only a night before is an after thought. The trial Court rightly rejected this plea and found the issue against the appellants.
8. The appellants have also sought shelter under a plea that the field was not a thoroughfare. No way through the field led to the tank where the deceased is said to have taken bath. There existed a road away from the field leading to the tank. The plaintiffs/respondents have, however, adduced evidence to show that when no crop is sown in the field, people go across the field to the tank. (See deposition of Devi Prasad (P.W. 2) Para. 4, Chikkulal (P.W. A) para. 20 and Uma Datta (P.W. 3) para. 3.). This evidence shows that people did use to pass through that field when it was not sown and even if therefore, there existed another way leading to the tank, it will furnish no defence to the appellants/defendants to say that the deceased committed trespass into that field and, therefore, the appellants cannot be held liable. Instead, from the evidence adduced by the appellant/defendant we are unable to find that the appellants had taken all necessary precautions to maintain installations in proper condition. We are clearly of opinion that the appellants/defendants have been guilty in maintaining the electric supply lines and have failed to take necessary precautions to maintain electric supply line in proper condition to avoid any danger. We uphold the finding of the trial Court in this regard.
8. Learned Counsel for the appellants also next urged that on evidence on record the deceased must be held guilty of contributory negligence. The plea of the appellants in this regard is contained in para 10 of the written statement. The substance of that plea is that the deceased should not have gone through that field when there existed a regular path leading to the tank. It was at about 10.30 A.M. in the broad day light when the deceased walked across the field. This accident took place because of the negligence and carelessness of the deceased. Support to this plea may be found in the evidence adduced by the plaintiffs themselves. PW 1, Smt. Baisakhi Bai deposed that the wire lay hanging in the field 3 or 4 feet above the ground. The wire was seen so hanging 3 or 4 days prior to the death. PW Fuddis deposed that on his return from the tank after bathing the deceased walked through the field and went underneath the hanging wire. He also deposed that the wire was at the distance of about 4 feet above the ground. Such is also the evidence of plaintiffs’ witnesses Umadatta and Chikkulal (PW 3) and (PW 4) respectively. There is also evidence to indicate that there is a regular way leading to the Tank but witnesses added that when the field is not sown, people usually across the field to reach the tank. In our view this evidence clearly discloses that in the broad day light anybody could have well seen the electric wire hanging 3 or 4 feet above the ground. One ordinarily should have avoided to come in contact with such wire. In the present case when there is a different route to the tank, passing through a field where electric wire lay hanging clearly indicates carelessness on the part of the deceased. The deceased could have avoided the accident had he been a little cautious. He had hardly any business to go near the wire and walk beneath it. It is worthy of note that the wires were at a considerable height from the ground and even if it was inevitable to avoid going beneath the wire the deceased should have bent low enough to avoid coming in contact with the wire. The evidence discloses that it is the neck of the deceased which came in contact with the wire. This indicates that the deceased did not even care to bend at all, or at least did not bend low sufficiently. We are, clearly, therefore of the opinion that the deceased was also negligent and was guilty of contributory negligence. The trial Court seems to have framed issue No. 6 touching this plea raised in defence. The issue is not very happily worded, clearly bringing out the controversy. This had led to incorrect finding. We disagree with the lower Court in this regard, and set aside the finding on issue No. 6 where it is held that no accident took place on account of the negligence of the deceased. It was faintly argued by the counsel for the respondents/plaintiffs that the defence of contributory negligence is not open to the appellants in such an action. In our opinion, the learned Counsel is absolutely wrong in making such a submission. As a defence for action for negligence, the defendants can always put forward and establish plaintiff/deceased’s contributory negligence. At the same time it is also true that the burden shall be upon the defendants to prove that there was contributory negligence on the part of the deceased. The Supreme Court in Gobald Motor Service Ltd. and anr. v. R.M.K. Velu-swami and Ors. quoted the following passage from Halsbury’s Laws of England Vol. 23 at page 671, paragraph 956: “An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant’s negligence.”
10. In Boy Andrew v. St. Rognvald 1948 A.C. 140 it was held that in all such cases that the question as in all questions of liability for a tortious act, is, not who had the last opportunity of avoiding the mischief, but whose act caused the wrong. In Caswell v. Powell Duffy Associated Collieries Ltd. (1940 A.C. 152) it was held that “if the defendants’ negligence or breach of duty is established as causing the death, the onus is on the defendants to establish that the plaintiff’s contributory negligence was a substantial or material co-operating cause.” Thus, it is clear that it is open for a defendant to plead contributory negligence of the deceased in an action for damages for death resulting from negligence, onus being the defendants to prove such contributory negligence. We have shown above that the defendants/appellants did raise a specific plea in this regard and have success fully established this plea. We are further of the opinion that this negligence must be shared by the parties equally i.e. in the ratio of 1:1. This now leads us to question of assessment of damages.
11. Pointing the duty of the appellate Court in this regard the Supreme Court in Gobald Motor Service Ltd. v. Veluswami (Supra) observed that the appellate Court should not interfere with the assessment of damages made by the Court of first instance but where a wrong principle of law has been applied or where it has left out, some relevant factors in making the estimate, the appellate Court must interfere.
12. In case of damages for loss of life under Fatal Accidents Act, the actual extent of pecuniary loss to the dependent must necessarily be an estimate or even partly a conjecture. What is required is that the plaintiff had a reasonable expectation of pecuniary benefit from the continuance of life. The pecuniary loss can be ascertained only by balancing on one hand the loss to the claimants of the future benefits and on other hand any pecuniary advantage which from whatever source comes to them by reason of the death In case of estimating pecuniary benefits to the minor children it might be accepted that the deceased would have maintained them till they attain majority. In Ramesh Chandra v. M.P. State Road Transport Corporation 1982 MPLJ 426 Shri G.P. Singh, Chief Justice speaking for the Bench observed that the damages recoverable for loss to the estate in the case of death must include damages for loss earning of the period during which the deceased would have continued to work but for his death. Damages in respect of the loss of earnings of the lost years should be assessed after deduction of an estimated sum to represent the victim’s probable expenses during those years. We may now proceed to examine the assessment of damages by the lower Court in the light of the rules laid down in the aforesaid decisions. It has been rightly found on the basis of evidence that the deceased at the time of the death was aged about 25 years. We have no hesitation in accepting that he would have lived upto the age of 65 years. It is true that Smt. Baisakhi Bai has deposed that her husband/deceased was working in Ordnance Factory and was drawing salary of Rs. 290/- per month. Fuddi (PW 2) stated that the deceased was earning Rs. 300/- to 350/- per month. It is also true that the defendants have produced evidence to show that at the relevant time the deceased was not so employed, but them certificate (Bx. D/1) shows that at least for some period the deceased was in the employment of the Factory. Be that as it may, the unrebutted evidence of the plaintiffs is that it was the deceased who alone was maintaining the family and according to Baisakhi Bai he was making available a sum of Rs. 200/- per month for maintenance of the family. The actual yearly dependency thus work out to Rs. 2,400/- per year. The multiplier of 15 may be applied which will bring the total dependency of Rs. 36,000/-. To this may be added a sum of Rs. 2,000/- as damages of pain and suffering and loss and expectation of life of the deceased. Total amount will come to Rs. 38,000/-. As we have pointed out the deceased is equally guilty of contributory negligence and that his negligence is 50%, this amount shall have to be reduced by 50%. Thus the total damages to be awarded to the respondents/plaintiffs will be Rs. 19,000/-. The lower Court has not adhered to the corrected principles of award of damages as we have indicated above and, therefore, committed an error in awarding Rs. 50,000/- as compensation. The award, therefore, shall have to be modified to this extent. We uphold the direction of the lower Court to pay interest at the rate of Rs. 6% per annum from the date of institution of the suit until realisation.
13. Thus, the appeal succeeds in part and is allowed to the extent indicated above. The decree of the lower Court shall be modified accordingly. It is directed that the appellants shall pay the respondents/plaintiffs a sum of Rs. 19,000/- with the interest at the rate of Rs. 6% per annum from the date of the institution of the suit until realisation as compensation for the death of the deceased. In view of the partial success in appeal the parties are directed to bear their own costs. Costs in the lower Court shall foe born by the appellants/defendants.