National Hydroelectric Power Corporation Limited vs Mamta

Tarlok Singh Chauhan, J.—This regular first appeal has been preferred by the defendants- appellants against the judgement and decree dated 17.1.2008 passed by learned District Judge, Chamba, whereby he decreed the suit of the plaintiffs-respondents.

The facts, in brief, may be noticed. The plaintiffs filed a suit for recovery of damages to the tune of Rs. 10,00,000/- in forma pauperis on the ground that deceased Rakesh Kumar son of Ram Singh was the husband of plaintiff No. 1, father of plaintiffs No. 2 and 3 and son of proforma defendant No. 3 and deceased Rakesh Kumar used to maintain the plaintiffs and the proforma defendant by carrying loads on the mule and she-donkey and the deceased used to earn Rs. 200/- per day and that on 28th February, 2004, Sh. Rakesh Kumar had gone alongwith his mule and she-donkey towards Ravi river bed for bringing sand when the level of the water in the river bed at Katla was very low but at about 3.30 P.M., the level of the water all of a sudden went up, which rose due to the release of the water from Chamera Dam as the officials of the Chamera Dam released the said water without giving any prior information to the inhabitants or the general public of the surrounding area and on account of sudden rise in the water level deceased Rakesh Kumar washed away alongwith the she-donkey and the dead body of the deceased was found on 6.3.2003 and that it is the bounden duty of the defendants to inform the general public and inhabitants of the surrounding areas by giving notice in writing to various panchayats and also by blow of siren to give the information and even the defendants should also announce on loud speakers and the vehicle of the Chamera Project should also patrol in the affected areas so that no untoward incident may take place but on 28th February, 2004, no such information was supplied to the general public as well as to the inhabitants of the area regarding huge release of water and the officials of the defendants released the huge water from the Chamera Dam during day time and due to the negligence of the officials of the respondents, Rakesh Kumar was washed away alongwith his she-donkey and died and that the untimely death of the deceased occurred due to sheer negligence of the defendants which has resulted into the death of the deceased. Deceased Rakesh Kumar was the only bread-earning member of his family and due to the untimely death of deceased, the life of the plaintiffs landed into the sea of financial crises besides it the plaintiffs were deprived from love and affection and that the plaintiffs requested the defendants to pay compensation time and again on account of the death of Rakesh Kumar due to sheer negligence and the wrong committed by the defendants, but they kept the matter lingering on under one pretext or the other and finally the defendants were served with a notice but in vain, hence this suit for recovery of Rs. 10,00,000/-alongwith costs and interest at the rate of 12% per annum from the date of filing of the suit till realization.

The defendants No. 1 and 2 resisted and contested the suit, by filing written statement, inter-alia, raising preliminary objections of maintainability, cause of action, locus standi, the suit is filed on twisted and distorted facts and the suit is not properly valued. On merits, it is contended that deceased Rakesh Kumar was not earning a sum of Rs. 200/- per day by carrying loads on mules and she-donkey and the extraction of the sand from the Ravi river bed is totally banned. It is denied that water level of river Ravi suddenly went up at 3.30 p.m. on 28.2.2004. The water from the Dam is released into river Ravi after giving prior information to the general public by blowing siren through public address system and besides it, the defendants have displayed notice boards on both banks of the river Ravi at appropriate public places from dam site Bagga to Rajnagar and Udaipur to avoid any untoward incident during opening of dam gates at Bagga. The death of deceased Rakesh Kumar and his she-donkey is not caused by the sudden rise of water level in river Ravi. However, if it is proved that the death of deceased Rakesh Kumar is caused due to increase of water level in river Ravi, even then the defendants cannot be held liable for the same, as the defendants always give prior intimation/notice for release of water by blowing siren and through public address system. Besides it, the defendants have also displayed notice boards cautioning the general public not to go near the river and if the deceased Rakesh Kumar went to river bed by ignoring such warnings and notices to extract sand etc. as alleged by the plaintiffs, in that eventuality, he himself was responsible for his death due to his own negligence and illegal act and the defendants have taken all the possible precautions to avoid any untoward incident and on 28.2.2004 also such warnings were given through blowing of siren and through public address system and since the defendants are not responsible for the death of Rakesh Kumar in any manner, hence no question of giving any compensation arises at all.

No replication was filed and on the pleadings of the parties, the following issues were framed by the court below on 19.5.2005:

Whether the plaintiff is entitled to the recovery of damages to the tune of ten lacs alongwith cost and interest as prayed? OPP

Whether the suit of the plaintiff is not maintainable in the present form, as alleged? OPD

Whether no cause of action accrued to the plaintiff to file the present suit and she has no locus standi to file it, as alleged? OPD

Whether the suit is filed on twisted and distorted facts and the plaintiff has not come to the court with clean hands and is not entitled to the relief as claimed? OPD

Whether the suit of the plaintiff is not stamped with proper court fee, as alleged? OPD

Relief.

After recording evidence and evaluating the same, the learned trial court decreed the suit by awarding a sum of Rs. 5,00,000/- in favour of the plaintiffs and proforma respondent No. 3. It is against this judgement that present appeal has been preferred on the ground that judgement so passed is contrary to law, facts and evidence and that the deceased himself was negligent and involved in illegal activities.

I have heard the learned counsel for the parties and have gone through the records of the case.

The learned counsel for the appellants has strenuously argued that the appellants had displayed notices near the river bed from the dam site to Baloo bridge warning the people from entering into the river bed. Not only this, they had also published a notice in Chamba News (Weekly) that on 28.4.2004 47 cubic meters per second water would be discharged from the tunnel. Yet, despite this the deceased entered the river bed for illegally extracting sand and was washed away in the discharge. The appellants in support of their case have examined six witnesses.

DW 1 Satyavan, Deputy Manager, NHPC Chamera-II has stated that prior to release of water, the appellants blow siren near river colony and pump house as many as two to three times in a half hour gap and this fact was brought to the notice of general public through local TV channels and by beat of drum. It is also maintained that notice boards are displayed near river ravi from dam site to Baloo bridge so that no person may go to the river bed. He further states that notice was also published in the Chamba news (weekly) that 47 cubic meters per second of water would be discharged from the tunnel on 28.2.1014.

DW 2 Madan Lal was the Mining Officer, Chamba, who had stated that the site in question was under his jurisdiction and in case anyone desires to extract sand from river bed, the same could only be done with prior permission granted by him. On 28.2.2004, no such permission had been granted to the deceased.

DW 3 M.M. Gupta, was working as Assistant Engineer (Civil) with the appellants and was entrusted with the duty at the power house. He claimed to have got installed notice board at the bank of river ravi under his supervision as shown in photographs A-1 to A-8.

DW 4 Jasbir Singh photographer of M/s Preet Photo Palace, Chamba and stated that he had clicked photographs A-1 to A-8, which were clicked by him near Karian at the bank of river ravi to Baloo bridge and when the notice board was installed only then had he clicked photographs.

DW 5 Smt. Man Kaur was working as Senior Assistant in the office of Deputy Commissioner, Chamba and had produced records of the case regarding approval of notice, applied by the NHPC on 24.11.2003, which had been approved by the Deputy Commissioner.

DW 6 Swaran Deepak Raina was the publisher of Chamba News (Weekly) and had stated that news paper Ex. D6/A had been published by him, which contained the notice Ex. DW 6/B.

The question required to be determined is as to whether the appellants had taken adequate precaution prior to discharging of water or not. A close scrutiny of the evidence led by the defendants particularly the statements of DW 3 and DW 4 would clearly prove that there is no evidence what so ever brought on record as to when exactly the notice boards had been installed at the bank of ravi river. In fact, DW 3 has admitted that no notice board was affixed at Katla as he has no idea about it. Similarly DW 4 Jasbir Singh, photographer could not tell as to when he had clicked the photographs of the notice board.

No doubt, the defendants claim to have published a general notice in the Chamba News (Weekly) from 1.2.2004 to 7.2.2004, but surprisingly the copy of this news weekly has not been produced before the court and only an extract thereof containing the alleged notice has been placed on record as Ex. DW 6/B. Therefore, in absence of the whole news paper, no reliance can be placed upon the same. Moreover, it was incumbent upon the appellants to have led cogent and convincing evidence to the effect that this news paper had wide circulation in and around Chamba town which evidence is wanting in this case.

It is worthwhile to note here that DW 1 has in fact admitted that on 28.2.2004 the project authorities had not given any notice for discharging the water either by way of notice on the cable network or through any other means and therefore there is virtually no reasonable explanation on behalf of the appellants to prove on record that they had taken adequate measures by informing the general public and local inhabitants before releasing the water. The appellants have not come out with any explanation much-less sufficient explanation or evidence to show what care they had taken before releasing the water in the Khad. Indisputedly, the appellant is the project proponent and therefore, a duty casts upon it to look after the interest of the general public and the local inhabitants while discharging the surplus water into the river ravi without causing any injury or harm to the general public and it was to be ensured that there is no carelessness or negligence on its part.

The court can take judicial notice that in a similar incident 24 (6 female and 18 male) 2nd year engineering students from V.N.R. Vignana Jyothi Institute of Engineering and Technology of Hyderabad lost their precious life at river Beas on 8.6.2014 at Thalout area (Shalanala village) of Mandi District due to sudden surge of river water released upstream from Larji Hydro electric project that too without any prior warning. The surge of water occurred when the project proponent opened its flood gates sending many cubic meters of water downstream.

The learned counsel for the appellants would then argue that since the deceased himself had gone to river bed and was involve in illegal mining, therefore, he was not entitled to any compensation or in the alternative there was contributory negligence on his part. I am afraid, I cannot agree to such contention because the appellants have led no evidence whatsoever to prove that the deceased was in any way involved in illegal extraction of sand.

DW 2 Mining Officer, Chamba in his statement has categorically admitted that local residents of Chamba have their rights to collect minerals from river bed and has further admitted that there is no notification of the Industries Department placed on record whereby it could be proved that there was a ban on the extraction of sand in Hardaspura i.e. site of accident.

The learned counsel for the appellants has then made a faint and feeble attempt to challenge the quantum of compensation awarded in favour of the deceased. Admittedly, the deceased was 30 years of age and was stated to be earning Rs. 150/- to 300/- per day. However, the learned court below has assumed the income of the deceased at a modest Rs. 3000/- per month and deducted 1/3rd towards personal expenses and fixed the dependency at Rs. 2,000/-per month and annual dependency of Rs. 24,000/-. After applying multiplier of 18, an amount of Rs. 5,00,000/- has been awarded in favour of the respondents, which in no manner can be said to be excessive.

In view of aforesaid discussion, there is no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs.