JUDGMENT
C.V.N. Sastri, J.
1. The unsuccessful plaintiffs in the suit are the appellants in this appeal. They are the legal representatives of one Saya Goud who tragically died on 17-6-1988 due to electrocution by coming into contact with a snapped live wire which was lying on the ground. The deceased was a toddy tapper aged 25 years at the time of his death. The death occurred while he was riding on his bicycle at about 9 A.M. on 17-6-1988. The plaintiffs are the wife, miner son and mother respectively of the deceased. They laid the suit against the A.P. State Electricity Board through its Chairman and the Divisional Engineer, Electricity, (Operation), Nirmal, for recovery of a sum of Rs. 2,75,000/- by way of damages and compensation for the death of the deceased. Out of it Rs, 2.5 lakhs was claimed by way of compensation for the loss of earnings of the deceased and Rs. 25,000/- was claimed by way of special damages on account of loss of consortium and pain and suffering. The defendants were sought to be made liable on account of negligence and failure to take reasonable precautions like provision of wire mesh to prevent the snapped wire from falling on ground, automatic tripping of power supply in the event of wire snapping, lack of proper maintenance and regular checking to prevent wires from snapping due to poor stringing or ageing and failure to post a Helper in the village, etc.
2. In the written statement it was not disputed that the death occurred due to electrocution by coming into contact with the live wire. It was, however, pleaded that the wire snapped due to heavy rain and gale during the night i.e., due to vis major but not on account of any negligence on the part of the defendants. It was further pleaded that according the Electricity Rules no wire mesh was required to be provided over a cart-track and there was no facility for automatic tripping in the case of low tension lines. It was also pleaded that a Helper was posted at a nearby village Sirgapur, but he did not receive any intimation about the snapping of the electric wire. The defendants also disputed the earnings of the deceased as mentioned by the plaintiffs and disputed their liability to pay any amount by way of compensation to the plaintiffs.
3. On the above pleadings, after framing appropriate issues and after trial the trial Court dismissed the suit holding that the electric wire snapped due to rain and gale for which the defendants were not responsible. It further held that the wire was not lying on the passage along which the deceased was passing but it fell on a fence by the side of the cart-track and the deceased was guilty of contributory negligence as he went near the fence and came into contact with the live wire.
4. Sri Niranjan Reddy, the learned Counsel appearing for the plaintiffs- appellants, in a well prepared argument, has strongly assailed the judgment of the lower Court. He firstly contended that the Court below erred in placing the burden of proof on the plaintiffs ignoring the well known doctrine of Res Ipsa Loquitur. He also argued that the Court below erred in drawing adverse inference against the plaintiffs for not examining any of the tappers who accompanied the deceased on that day. He further contended that the finding of the lower Court with regard to the contributory negligence on the part of the deceased is without any basis either in the pleadings or in evidence. He finally submitted that the principle adopted by the lower Court on the degree of care to be taken by the defendants is wholly incorrect. In support of his submissions, the learned Counsel for the appellants has placed reliance on the following decisions:
K.S.E.B. v. Kamalakshy Amma, Padma Behari Lal v. Orissa Electricity Board, Syed Akbar v. State of Karnataka, S. Vedanta Charya v. Highways Department of South Arcot, M.C. Mehta v. Union of India, Charan Lal Sahu v. Union of lndia, .
5. On the other hand, the learned Counsel for the respondents, tried his best to sustain the Judgment of the lower Court by contending that the burden of proof certainly lay on the plaintiffs to prove negligence on the part of the defendants and the plaintiffs miserably failed to discharge the said burden on account of their failure to examine any of the twelve tappers who accompanied the deceased on that date, that snapping of the wire was solely on account of an act of God for which the respondents cannot be made liable and that as the snapped wire did not fall on the ground on the path way but it fell on the fence nearby, the deceased had no necessity to go near the fence. He was thus guilty of contributory negligence. He further contended that as the accident occurred at 9 A.M. in the day light, the deceased could have avoided the accident by being diligent and cautious. ..
6. There are no eye-witnesses to the accident in this case. The plaintiffs examined on their side three witnesses. P.W.1 is the first plaintiff who is the wife of the deceased. She spoke about the age of the deceased and his earnings as a Tapper. It appears that the deceased was a Member and President of Toddy Tappers Co-operative Society. P.W.2 who was the Secretary of the said Society and who succeeded the deceased as its President and P.W.3, who was one of the members of the Society, deposed about the salaries paid by the society to the Tappers and also about the profits which were distributed to the Members and the honorarium paid to the President. Their evidence is to the effect that the deceased was being paid Rs. 30/- by the Society as daily wages for tapping trees and that he was also receiving Rs. 4,000/- per annum towards his share of the profits besides a sum of Rs. 2,000/- per annum towards honorarium as President. Thus his total earnings amounted to Rs. 16,800/- per annum. In proof of the same, they filed Cash-Books and Ledgers of the Society for the years 1985 to 1987 which are marked as Exs.A-3 to A.6. Ex.A-1 is the F.I.R in Crime No. 36 of 1988 registered in Nirmal Rural Police Station relating to the death of the deceased and Ex.A-2 is the autopsy report showing that the death was due to electrocution.
7. As against this evidence adduced by the plaintiffs, the defendants examined only one witness i.e., the Line Inspector as D.W.1. He deposed that the electric wire snapped due to rain and gale and there was no negligence on the part of the defendants. Exs.B-1 to B-7 were marked on the side of the defendants. Ex.B-1 is the inquest report. Exs.B-2 to B-7 are the negatives and photographs of the accident site and the deceased.
8. There is no dispute in the instant case that the death of Saya Goud occurred as a result of his coming into contact with a live electric wire which snapped and was lying on the ground or on the fence near the passage. The question for consideration is whether the defendants can be made liable for the same on the ground of negligence. In K.S.E.B. v. Kamalakshy Amma (supra) a Division Bench of Kerala High Court held that where it is proved that a pedestrain was electrocuted from a live wire hanging down from an electric post, there is a presumption of fact that there was lack of proper care on the part of those in the management or control of the power supply system at the particular place. It was held that the maxim Res Ipsa Loquitur applies to such a case and the onus of proof shifts from the plaintiffs to the defendants. It was further held that Section 114 of the Evidence Act gives a wide discretion to the Court to draw presumptions of fact. In that case the Division Bench of the Kerala High Court referred to the following observations made in the leading case of Scott v. London and St. Katherine Docks Co. ((1865) 3 H & C 596)):
“Where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”
9. In Syed Akbarvs. State of Karnataka (3 supra), the Supreme Court discussed the applicability of the maxim Res Ipsa Loquitur in civil as also criminal cases in the light of the provisions of the Evidence Act. In the case the Supreme Court observed as follows:
“The rule of Res Ipsa Loquitur, in reality, belongs to the law of torts where negligence is in issue. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim Res Ipsa Loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. To emphasise the point, it may be reiterated that in such cases, the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. Further the event which caused the accident must be within the defendant’s control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to examine how the accident occurred”.
10. In Monohar Lal Sobha Ram v. Madhya Pradesh Electricity Board, 1975 ACJ 494 (M.P) a Division Bench of the Madhya Pradesh High Court held that when a live wire carrying high tension energy snapped and was lying on the street and the deceased came in contact with live electric wire and got electrocuted, the burden is on the Electricity Board to prove that there was no negligence on its part and there was no obligation on the plaintiffs to prove negligence. In Padma Behari Lal v. Orissa Electricity Board (2 supra), a Division Bench of the Orissa High Court also held that where the of night in the stormy weather occurred by coming into contact with a live hanging wire detached from the electric pole, the rule of evidence commonly known as Res Ipsa Loquitur applies and that in such a case the claimant is not required to allege or prove and specific act or omission on the part of the respondent. It is for the respondent to establish that the accident happened due to some cause other that his/its negligence.
11. S. Vedantacharya v. Highways Department of South Arcot (4 supra) is a case where a public transport vehicle plunged into the river on the collapse of culvert causing death, The trial Court in that case took the view that the collapse of the culvert raised a presumption of negligence on the part of the department and awarded damages but the High Court, accepting the department’s explanation that the culvert gave way due to heavy rain and flood, dismissed the claim. The Supreme Court, however held that the explanation was not sufficient to absolve the department from its liability to pay damages to the claimants unless there is something further to indicate that necessary preventive measures had been taken anticipating rain and flood.
12. Though the learned Counsel for the appellants has referred to the judgments of the Supreme Court in M.C, Mehta v. Union of India (supra) and Charanlal Sahu v. Union of India (6 supra), wherein the Supreme Court held that the rule of strict liability laid down in the decision of Rylands v. Fletcher ((1868) 3 HL 330) was not applicable in India and the Supreme Court evolved a new principle of liability which is more in tune with the modern society, it may not be necessary to go into that question for the purpose of . the present case. In Halsbury’s Laws of England Vol. 34, on negligence in paras 35 and 36 at pages 31 and 32, it is pointed out that the performance of dangerous work and the possession, use or supply of dangerous things impose a duty to take special precautions. It is further observed in para 36 that operations connected with the handling of petroleum and the distribution of gas and electricity also call for special precautions and are in addition subject to statutory provisions for safety. 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. It is also stated in para. 57 of the same volume that under the doctrine res ipsa loquitur a plaintiff establishes a prima facie case of negligence where (1) it is not possible for him to prove precisely what was and (2) on the evidence as it stands at the relevant time it is more likely than not that the effective cause of the accident was some act or omission of the defendant or of someone for whom the defendant is responsible, which act or omission constitutes a failure to take proper care for the plaintiff’s safety. There must be resonable evidence of negligence. However, where the thing which causes the accident is shown to be under the management of the defendant or his employees, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.
13. Angoori Devi v. Delhi Municipal Corpn, is a case where a temporary electric connection by means of loose and naked wires had been taken in a wooden shack installed on the road side by Delhi Electric Supply Undertaking and as a result of such loose connections, the ram water which was collected around the shack and also the area around the shack got electrified and as a result thereof, a person died by way of electrocution while crossing the area. ) It was held in that case the death was due to gross negligence of Delhi Electric Supply Undertaking and its servants and hence a sum of rupees one lakh was awarded to the heirs of the deceased by way of damages.
14. It is thus clear from the decided cases that the burden of proof in a case of this nature rests on the defendant to prove that there was no negligence on its part but not on the plaintiff to prove negligence. The lower Court, however, proceeded on the footing that the burden of proof lies on the plaintiffs and it also drawn adverse inference against the plaintiffs for not examining any of the other toddy tappers who allegedly accompanied the deceased on that fateful day. I am of the view that this error committed by the lower Court has vititated its judgment. The admission of P.W.1 that on the date of the accident her husband and other toddy tappers numbering about 12 left the village on cycles cannot be taken to mean that all of them proceeded in the same direction or that any other person was in the company of the deceased at the time of the accident and witnessed the same. So no adverse inference can be drawn against the plaintiffs for not examining the other toddy tappers. It is clearly established from the facts of the case that the deceased died due to electrocution by coming into contacts with a live wire which snapped and which was lying either on the ground or on the fence nearby. No other person witnessed the accident. Under these circumstances the burden squarely lies on the defendants to prove that they had taken all care to maintain the electric lines properly and to prevent the occurrence of such accidents. The evidence on record shows that there was some rain during the previous night and the ground at the scene of the accident was slushy. But there is nothing on record to show that there was any violent cyclone or strong gales. In any case, rain and wind is a normal occurrence which can be easily foreseen and it is all the more the duty of the defendants to take every precaution to prevent such occurrences in the rainy season. The defendants miserably failed to discharge the burden of proof which clearly lay on them in this behalf.
15. The evidence of D.W.1, the Line Inspector, who was the sole witness examined on behalf of the defendants, shows that there was only one helper for 12 villages. The evidence does not throw much light on the degree of care taken by the defendants regarding proper maintenance of the electric lines or the precautions taken by them for prevention of such accidents. Even if the defendants are not required by the rules to provide a wire mesh or any mechanism for automatic tripping, the defendants are not absolved from their duty to see that no injury is caused to the pedestrains on account of snapped live wires hanging loosely from the electric poles or lying on the ground. It must, threfore, be held that the death of the deceased occurred due to the negligence on the part of the defendants. I am also satisfied that the Court below erred in holding that the deceased was guilty of contributory negligence. The said finding, in my view, is without any legal basis either in the pleadings or in the evidence on record and it is merely based on surmises and conjectures. The question of contributory negligence would arise only if the deceased know about the presence of the live wire at that place and he did not take reasonable care to avoid coming into contact with it. The facts of the case clearly indicate that the deceased must have involuntarily come into contact with the live wire while passing that way. Even assuming that the deceased went close to the fence and he slipped and had fallen on. the fence on which the live wire was hanging, it does not prove contributory negligence on his part. The lower Court itself found that the ground was slushy and there was a puddle of water on the passage. Under those circumstances, the deceased might have gone near the fence to avoid passing through the puddle of water. If the deceased in the process slipped and fell down on the fence, no contributory negligence can be attributed to him. I am, therefore, satisfied that the findings of the lower Court on the question of negligence on the part of the defendants and contributory negligence on the part of the deceased are erroneous and unsustainable. The question which now remains for consideration is about the quantum of damages to be awarded to the plaintiffs.
16. In assessing the quantum of damages, the principles adopted by the Courts for determination of compemnsation to be awarded in fatal accident cases under the Motor Vehicles Act, 1988, can be adopted in the instant case. The deceased was aged 25 years at the time of his death and it is clearly established from the evidence of P. Ws. 2 and 3 and the accounts of the Toddy Tappers Co-operative Society which are marked as Exs. A-3 to A-6 that the total earnings of the deceased were to the tune of Rs. 16,800/- per annum. The lower Court also accepted the same and found that the total income of the deceased was to the tune of Rs. 16,800/- per annum. His family consisted of himself, his wife, his mother and one minor son i.e., three adults and one child. As per the decision of the Supreme Court in U.P. State Road Corpn. v. Trilok Chandra, (D.N.) the family of the deceased consists of 7 units at the rate of two units for adult and one unit for child. Deducting two units for the decease, the rest of the family members, who arc dependent on him comprise five units. The pecuniary loss suffered by the plaintiffs on account of the death of the deceased can be arrived at by deducting the amount which must have been normally spent by the deceased for his personal expenses from his total earnings. Since the total number of units is 7,2/7th of the total income can be deducted towards the personal expenses of the deceased and the remaining 5/7th of the total earnings can be taken as his contribution to his family members which is also known as “the annual dependency”. It comes to Rs. 12,000/- per annum i.e., 5/7X16,800. This can be taken as the annual loss to the dependents. This has to be multiplied by the appropriate multiplier to assess the compensation under the head of ‘loss of dependency’. Though the appropriate multiplier is 18 in the case of a person who died at the age of 25, since the plaintiffs have claimed loss of earnings for 15 years only, the multiplier can be adopted as 15 in the instant case. On this basis the compensation payable to the plaintiffs under the head of ‘loss of dependency’ comes to 15 X Rs. 12,000/- = Rs. 1,80,000/-. Adding the sum of Rs. 25,000/- which was claimed as special damages towards pain and suffering, loss of consortium etc., the total compensation payble to the plaintiffs will come to Rs. 2,05,000/-.
17. For the foregoing reasons, the plaintiffs are entitled for payment of Rs. 2,05,000/- by way of damages or compensation for the death of the deceased. Accordingly the appeal is allowed in part. The judgment and decree of the lower Court are set aside and the suit is decreed for Rs. 2,05,000/- together with interest thereon at 6% per annum from the date of the suit till realisation.
18. Having regard to the facts and circumstances of the case, there will be no order as to costs. The Court fee payable on the plaint as well as on the memorandum of appeal shall, however, be borne by defendants.