JUDGMENT
P.K. Tripathy, J.
1. Respondents are the plaintiffs in Money Suit No. 120 of 1994-III of the Court of Additional Civil Judge (Senior Division), Balasore. That Court delivered the impugned judgment on 8.5.1997 and granted a decree of Rs. 4,93,000/- (Rupees four lakhs ninety three thousand) towards damage and compensation along with interest at the rate of 12% from the date of filing of the suit/presentation of the plaint till the date of realisation. Such decree was passed against the appellants.
2. According to the plaintiffs’ case, Manonjaya Sethi (hereinafter referred to as ‘the deceased’) late husband of plaintiff No. 1, father of the plaintiff Nos. 2 to 4 and son of plaintiff No. 5 at the age of about 38 years, on 13.9.1993 at about 6.30 A.M. suffered a tragic death because of electrocution of the snapped live wire hanging from the electric Pole and Iying on the public road. Plaintiff’s claim for damage and compensation through the statutory notice having not been adhered to by the defendants, they filed the aforesaid suit claiming for damage and compensation of Rs. 5,00,000/- because the plaintiffs stated they were not capable of paying the Court fees for the due amount of Rs. 15,00,000/-. By the date of aforesaid tragic death the deceased was serving as a Clerk-cum-Cashier in the State Bank of India drawing a handsome salary and he was the sole bread earner for the family. Plaintiffs alleged negligence on the part of the defendants as a result of which the live electric line fallen on the public road touched the deceased while he was driving a motor cycle in that road with his daughter (plaintiff/P.W. No. 2) as a pillion rider. The electric current resulted in an accident, P.W. 2 was thrown to a short distance and the live electric wire tangled on his body and caused the aforesaid tragic consequence. In that context, plaintiffs have alleged that the negligence is totally attributable to the defendants for their lack of proper maintenance of the electric wire and not taking care to remove the same after the electric line was snapped.
3. In the written statement except admitting to the death of deceased due to electrocution, the defendants denied to the rest of the allegations and stated that plaintiffs are not entitled to any damage/compensation.
4. Keeping in view pleadings of the parties, the following issues were settled :
Issues
(i) Have the plaintiffs any cause of action to file this suit ?
(ii) Is the suit maintainable as per law ?
(iii) Whether the suit is barred for non-service of notice under Section 80, CPC ?
(iv) Whether the plaintiffs are entitled to realise compensation by damaging amount to rupees five lakhs from the defendants along with interest till realisation of the same ?
(v) To what other reliefs, the plaintiffs are entitled ?
5. In support of their case, Plaintiffs examined five witnesses including the widow of the deceased and the victim daughter (plaintiff No. 2) as RWs. 1 and 2. Various documents were exhibited from their side which have been marked as Exts. 1 to 17. That includes post-mortem report Ext. 2, salary certificate Exts. 3 and 5 and the Service Book of the deceased Ext. 4. Defendants examined two witnesses. Both are Officers of the Electricity Department. They relied on Ext. A, the pre-monsoon checking, Ext. C, the fuse call register and Ext. B, reply to the notice under Section 80 of Code of Civil Procedure, 1908.
6. On assessment of such evidence on record, trial Court answered all the issues in favour of the plaintiffs and awarded compensation of Rs. 4,93,000/- and directed to deposit a sum of Rs. 4,50,000/- out of that in the manner indicated in the ordering portion of the impugned judgment and decree. Trial Court also awarded interest at the rate of 12% on that decreetal due from the date of filing of the suit till the date of payment.
7. Learned counsel for the appellants argues that trial Court unreasonably put the burden of proof of the factum of no negligence on the defendants though the burden of proving negligence is on the plaintiffs and in that respect plaintiffs have failed to prove negligence on the part of the defendants. Accordingly he argues that plaintiffs are not entitled to any damage or compensation and prays to set aside the impugned decree. Learned counsel for the respondents on the other hand argues that evidence on record sufficiently establishes negligence on the part of the defendants for non-maintenance of the electricity line in proper manner as a result of which the accident occurred. In that context he refers to the photographs of the spot Exts 12 and 13 series. He argues that when the evidence support the stand of the plaintiffs and proves negligence of the defendants to saddle them with tortious liability the impugned judgment and decree which is a moderate and fair one should not be interfered with. On being asked by the Bench, Mr. Sinha, learned counsel for the respondents argues in support of maintaining the rate of interest on the ground of equity.
8. Indeed, the discussion made by the trial Court did not proceed in a systematic manner to clearly put the burden of proof of negligence on the plaintiffs. As it appears in that respect, learned Additional Civil Judge remained confused till the delivery of the judgment and even made observation that once the accident is proved the burden lies on the defendants to prove that the electric line was properly maintained and there was no negligence on the part of, the defendants. His logic is that death of the plaintiff in the above narrated circumstance ipso facto proves gross-negligence on the part of the defendants to make them liable for payment of compensation. That observation/findings of the Court below is undoubtedly contrary to law as provided in Sections 101 and 102 of Evidence Act, But that does not detain this Court to assess the evidence and to consider whether the initial burden of the plaintiffs in that respect has been discharged by them and how far the shifted onus has been discharged by the defendants. On perusal of the pleadings of the parties and the evidence of D.Ws. 1 and 2 read with evidence of P.W. 2, one of the victims of the accident, it leaves no room for doubt that live wire were snapped and scattered on the road. It appears from Exts. 12 and 13 that at the spot a banian tree was standing by the side of the road, its branches were hanging below and above the electric line. As admitted by the parties, in the storm that occurred in the previous night, branches from the banian tree fell and the live wire from the electric line were snapped. The aforesaid evidence has remained unchallenged. That documentary evidence has been corroborated by witnesses examined by the plaintiffs. Such oral evidence has also remained unchallenged. Therefore, the aforesaid oral and documentary evidence clearly prove that the snapped live wire laying on the road was endangering human life, Ext. A is a self-serving document without any corroborating evidence be it oral or documentary as to what was the standard of work done in respect of pre-monsoon checking. A man may lie but circumstance never belies. That is what appears in this case. The photograph of the spot Exts. 12 and 13, as noted above, speaks volume about the manner in which there was lack of proper maintenance of the electric line in as much as branches of the tree above the electric line were not removed so as to avoid such an apprehended danger of the electric wire getting disconnected due to falling of branches of the tree. In the heart of the town that amount of precaution is required to be taken by the officials of the department, unless they feel that human live have no value for them and the department is sufficiently rich to pay compensation for the negligence.
9. It thus appears from the evidence on record that plaintiffs by adducing the above noted oral and documentary evidence have discharged the initial burden that the accident was an outcome of the negligence on the part of the defendants. The evidence on record could not be appropriately appreciated by the trial Court with due reference to law of evidence on burden of proof. However, as rightly commented by the trial Court, defendants did not at all discharged the burden on them in as much as they did not prove on record that in spite of due diligence, maintenance of the electric line property and all precautionary measures taken after the storm the deceased was victim of his carelessness conduct. Once the defendants have failed to prove that aspect, the evidence adduced by them, as noted above, is of no help to wriggle out from the tortious liability. Therefore, the conclusion arrived at by the trial Court in fixing the liability and awarding compensation against the defendants is found to be-sustainable.
10. No argument is advanced challenging to correctness of the assessment of compensation. Amount that has been awarded as compensation is already indicated. On a scrutiny of the evidence on record and the claim advanced by the plaintiffs this Court does not find any illegality in determination of the compensation by the trial Court.
11. Learned Additional Civil Judge has granted interest at the rate of 12% on the decretal dues from the date of filing of the case (presentation of the plaint) till the date of realization. Section 34 of the Code of Civil Procedure mandates for a post decree interest not exceeding 6%. Therefore, while maintaining the rate of interest at the rate of 12% from the date of presentation of plaint till the date of decree, we reduce the rate of interest to 6% from the date of decree till the date of realization. Interest at such rate is ordered to be paid on the principal sum of compensation. The decree stands modified to that extent only.
12. In the result, the appeal is allowed in part in as much as the rate of interest at the post decree period is reduced to 6% on the principal sum.
A period of ten years have elapsed in the meantime and the damage and compensation is yet to be received by the plaintiffs. We, therefore, direct the appellants to pay the same within a period of two months failing which the plaintiffs may realise the same through Court and in such event plaintiffs shall be entitled to recover the cost of the suit and this appeal. Hearing fee is assessed at contested scale.
Ch. P.K. Misra, J.
13. I agree,