H.P. State Electricity Board and Another vs Master Sumit

Surinder Singh, J.—The Board felt aggrieved by the judgment passed by learned District Judge, Sirmour at Nahan, in Civil Suit No. 20-CS/1 of 2000/1999, decided on 14.1.2003, whereby the forma-pauperis suit filed by the respondent, through his guardian and father, was decreed. During the pendency of the appeal, the father of Master Sumit had also died. As such, vide order dated 29.4.2013, his grand mother Smt. Savitri Devi, aged about 80 years, was allowed to act as a natural guardian.

In short, the facts giving rise to the filing of the present appeal can be stated thus. Master Sumit, aged about 8 years, was flying a kite on 1.7.1997 on the roof top of PW-4 Shri Ram Lal Bhardwaj. All of a sudden, he came in contact with the high-tension electric wires and his left arm, abdomen and skull portion of the body got electrocuted. He fell unconscious hanging on the electric wires. Thereafter, he was detached and removed to district hospital by Ram Lal Bhardwaj aforesaid with the aid of co-villagers. He was hospitalized. The matter was reported to the police. The injured was referred to the PGI, Chandigarh, where he remained admitted till 30th August, 1997. He was surgically operated qua the injuries sustained by him. His skull bone was fully exposed. His forehead had disfigured and he had loss of memory. His future was totally marred, as he could not get any education and even now he is studying in ''Astha Special School'' at Nahan having no control over his mental faculty. He filed this suit through his father Shri Om Parkash (now deceased) against the defendants for the alleged negligence for the recovery of damages to the tune of Rs. 5.00 lacs and also the expenses of the treatment to the tune of Rs. 25,000/-.

The suit was resisted and contested by the defendant-appellants, hereinafter to be referred as the defendants. They denied their negligence, rather imputed negligence to the plaintiff as he had climbed over L.T. electric pole and fell down and thus sustained injuries. It is also denied that Shri Ram Lal Bhardwaj had ever made any request for removal of the electric pole installed near his house. By preliminary objections, the maintainability of the suit as well as the locus standi of the plaintiff to file this suit have been disputed and the defendants prayed for the dismissal of the suit.

The plaintiff in his replication denied the preliminary objections and reaffirmed even paras, on merit.

On 23.4.2001, the learned trial Court framed the following issues:

Whether the plaintiff suffered injuries on account of negligence on the part of the defendants, if so, to what amount of compensation, the plaintiff is entitled to? OPP

Relief.

The parties were put on trial. The plaintiff led the evidence and the defendants did not lead any evidence despite repeated opportunities. Their evidence was, therefore, closed. Finally, the learned trial Court found the plaintiff entitled for the amount of damages to the tune of Rs. 2.00 lacs. Accordingly, the suit was decreed with interest at the rate of 9% from the date of suit till it is deposited. Out of the amount so awarded, Rs. 50,000/- was ordered to be released to the guardian of the plaintiff to meet the maintenance and treatment expenses of the plaintiff and the remaining amount was ordered to be deposited in the name of the plaintiff against FDR in some nationalized bank, co-terminus his minority. Out of the awarded amount, he was also ordered to make good the required court fee.

The impugned judgment and decree has been challenged in the present appeal on the ground that the learned trial Court did not appreciate the pleadings of the parties in the right perspective and the medical report had shown only minor injuries on his person, apart from the burns, caused by the electrocution. The mental retardation, on the basis of which the disability has been found to be 40%, was already there before electrocution and also that it was the duty of the owner of the house not to allow any stranger on the roof of his house in case the electricity wires were so dangerously hanging. Since Ram Lal Bhardwaj was a necessary party, no decree could have been passed in his absence. It is also contended that at the best, it was a case of contributory negligence.

Shri Tarlok Chauhan, learned counsel for the appellants, developed his argument on the lines contended in the grounds of appeal and has taken me through the evidence on record.

Contra, Ms. Ruma Kaushik, learned counsel for the respondent, supported the impugned judgment and decree.

At the very outset, I would like to say that neither Ram Lal Bhardwaj is a necessary party nor it is proved to be a case of contributory negligence.

In the instant case, it is pertinent to note that initial onus to prove Issue No. 1 was placed on the plaintiff. To substantiate his case, the plaintiff examined PW-1 Sirmaur Singh. He has proved the treatment record of the minor Sumit from the official record maintained in the hospital. PW-2 Paramjit Singh proved the report of the accident recorded in the official record of the police station. PW-3 Om Parkash, father of the minor plaintiff Sumit, is the main witness. He stated that in year 1992 the mother of Sumit had already sought divorce from him, thereafter, he had brought up his child. In the year 1997, he was admitted in the first standard in Cantonment School at Nahan. With respect to the incident in question, he testified that on 1.7.1997, during the day time, at 12 O''clock, he was in his house and was informed by a boy that his son Sumit (plaintiff) got electrocuted on the roof top of the house of Ram Lal. He rushed to the spot and found that his son was stuck up with the live electric wires going over the house. In the meantime, a boy came alongwith a bamboo stick. With the help of the said stick, his son was released and fell down. He had sustained burn injuries on his arms, head and abdomen. Thereafter, he was removed to a local hospital from where he was referred to the PGI, Chandigarh, where he was treated for his injuries and he placed on record the treatment chart Ext. P-8 and Ext. P-9 in evidence. He also stated that his son remained in the hospital for about 5 days, thereafter he was discharged and for follow-up treatment, he was called up from time to time. He also stated that plastic surgery was also undertaken in PGI, Chandigarh and because of the electrocution, his son lost the mental faculties and thus, suffered permanent disability. His name was struck off from the school. He also produced certificate Ext. P-10 to this effect. He attributed the cause of the accident to the negligence of the defendants as they had not adopted any safety measures. Further, he also stated that his son got disabled after the said incident and was admitted in ''Astha Special School'' meant for disabled persons. His mental faculties had gone weak. The accident, in question, has affected the growth of his son. Further, that he has spent about Rs. 50,000/- on his treatment. His face had disfigured. He also placed on record some of the cash memos qua the treatment of his son. These are Exts. P-11 to P-31. In cross examination, he expressed his ignorance about the inquiry having been conducted by the police. He categorically denied that his son Sumit was releasing his kite which got entangled in the live electric wires. He denied that while doing so, he got epileptic-fit and sustained injuries because of fall.

PW-4 Ram Lal Bhardwaj is the owner of the house in question. He was attracted by the cries coming from his roof top and noticed that Sumit got electrocuted and was stuck up in the live electric wires. He categorically stated that before the alleged accident, he had met S.E., H.P.S.E.B. and had requested him to remove the wires which were going over his house. He also denied that Sumit was suffering from epileptic-fit before the incident.

PW-5 Manoj Kashyap is the Principal of ''Astha Special School''. He stated that Sumit is not a normal child. Though he is aged about 12 years, but, because of the disability on account of the said incident, is unable even to do the syllabus of first standard. In cross examination, he also denied that the disability was attributed to him because of epileptic-fits.

PW-6 Dr. M.L. Gupta, Senior Surgeon, was a member of the Board which was constituted under the Chairmanship of Dr. Mrs. Sneh Gupta. After examining the plaintiff Sumit, they found him suffering from mental retardation and his disability was assessed to the extent of 40% and he also proved the disability certificate Ext. P-34 to this effect.

As already stated above, despite repeated opportunities to the defendants, they failed to produce any evidence. Thus, their evidence was closed by the order of the Court on 7.3.2002.

After having gone through the above evidence, I do not find anything to dislodge the version given by Shri Om Parkash aforesaid with respect to the incident and also the disability as assessed by the doctor, which is attributed to the electrocution of minor Sumit. Sumit has suffered gravely by the negligence of the defendants/Board, who had allowed the live wires near to the house of Shri Ram Lal Bhardwaj and because of the electrocution, which is not disputed, he has also suffered physical and mental disability and even his future is also marred. His mental faculties got materially affected and his body development has also stopped or is very slow. Now, his father has died. Grand mother is aged about 80 years. The learned trial Court, considering various judgments on the point, rightly came to the conclusion that the plaintiff is entitled to the tune of Rs. 2.00 lacs as compensation to be paid by the defendants, with interest, which is otherwise on lower side. On merit, I do not find any force in the appeal, as such, the same is dismissed. Announced in the open Court. Decree sheet be accordingly prepared.