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2016 Supreme(HP) 2372
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CHANDER BHUSAN BAROWALIA, J.
HPSEB and Others – Appellants
Versus
Rakesh Kumar alias Rockey – Respondent
R.S.A. No. 477 of 2007
Decided On : 19-12-2016
Important Points
Subject
Tort Law - Negligence
Act Referred
Headnote
Negligence - Electric Burn Injury - Electricity Act, 2003 - Section 161, Section 162, Section 163 - The court discussed the negligence on the part of the defendants in maintaining the H.T. Line and the duty of care owed by the public authority under the common law. It held that the defendants were negligent and liable for the injuries suffered by the plaintiff. The court also addressed the issue of serving notices to the person who had illegally constructed the house below the H.T. Line and concluded that it did not absolve the defendants from liability. The findings of the lower Appellate Court were deemed just and reasoned, leading to the dismissal of the appeal.
Fact of the Case:
The plaintiff suffered electric burns on his right arm due to negligence on the part of the defendants in maintaining the H.T. Line. The lower Appellate Court granted compensation to the plaintiff, which was challenged in the present appeal.
Finding of the Court:
The court found that the defendants were negligent and liable for the injuries suffered by the plaintiff. It upheld the lower Appellate Court's decision to grant compensation to the plaintiff.
Issues: The issues included the negligence of the defendants, liability for damages, non-joinder of necessary party, locus standi of the plaintiff, and the limitation of the suit.
Ratio Decidendi: The court held that the defendants were negligent in maintaining the H.T. Line, and serving notices to the person who had illegally constructed the house did not absolve them from liability. The findings of the lower Appellate Court were deemed just and reasoned.
Final Decision: The appeal was dismissed, and the parties were left to bear their own costs throughout.
Advocate Appeared:
For the Appellant : Mr. Vivek Sharma.
For the Respondent: Mr. Lakshay Thakur.
JUDGMENT :
CHANDER BHUSAN BAROWALIA, J.
1. The present regular second appeal is maintained by the appellants/defendants (hereinafter called as 'the defendants’) against the respondent/plaintiff (hereinafter called as 'the plaintiff’) assailing the judgment and decree dated 03.07.2007, passed by learned District Judge, Mandi, District Mandi, H.P. in Pauper Appeal No. 1/2006, Civil Appeal No. 54/2007/06, whereby the judgment and decree passed by learned Civil Judge (Senior Division), Sarkaghat, District Mandi, H.P. in Civil Suit No. 134 of 2005, dated 12.07.2007, was set-aside and suit was decreed.
2. Briefly stating the facts giving rise to the present appeal are that as per the plaintiff, on 22.05.1998, after School hours, the plaintiff was grazing goats near his native place. All of a sudden, two goats of the plaintiff were climbed on the roof of the house of one Shri Suresh Kumar, the plaintiff in order to retrieve his goats, climbed on the roof, but suddenly L.T. Line, just adjacent to the house of Suresh Kumar, touched the right arm of the plaintiff, consequently he suffered electric burns on his right arm. After the said accident the plaintiff was taken to the hospital at Sarkaghat, wherefrom he was referred to the Zonal Hospital, Mandi and remained admitted there upto 26.05.1998. On 27.07.1998 he was further referred to IGMC, Shimla for advance treatment, where he was remained admitted upto 24.09.1998 and his right arm from the shoulder was amputated. As per the plaintiff, Electric line was at very low height and there was negligence on the part of the defendants. Due to the said accident, the plaintiff had to abandon his School for two years and his entire future has been spoiled. Thus, the plaintiff claimed Rs. 5,00,000/- alongwith future interest at the rate of 18% per annum.
3. The defendants, by way of filing written statement, raised preliminary objections qua maintainability, locus-standi, limitation and cause of action. On merits, the defendants have submitted that despite notices served to Suresh Kumar, he has constructed a house illegally and defendants are not liable to pay any damages for loss, as caused to the plaintiff. It is also averred that 11 K.V HT line was installed much earlier than Suresh Kumar constructed his house. Thus, they prayed that the suit may be dismissed.
4. The plaintiff, by filing replication, refuted the allegations of the defendants, as made in the written statement.
5. From the pleadings of the parties, the learned Trial Court framed the following issues:
“1. Whether the electric burns to the extent of 100% suffered by the plaintiff is the result of negligence on the part of defendants as alleged? OPP
2. Whether the defendants are liable for damages, if so to what extent? OPP
3. Whether the suit is bad for non-joinder of the necessity party? OPD
4. Whether the plaintiff has no locus standi to file the present suit? OPD
5. Whether the suit of the plaintiff is time barred and hit by the limitation? OPD
6. Relief.”
After deciding issues No. 1, 2 and 5 against the plaintiff and issues No. 3 and 4 in favour of the defendants, the suit was dismissed by the learned trial Court.
6. In the first appeal, the learned lower Appellate Court allowed the appeal of plaintiff and granted Rs. 3,55,000/- with interest at the rate of 6% from the date of filing the appeal till its payment, against the defendants with costs. Hence the present appeal.
7. The present regular second appeal was admitted on the following substantial questions of law:
1. Whether the negligence can be attributed to the Board without making the person who had constructed the illegal structure as party?
2. Whether negligence can be attributed to the Board when it was the plaintiff itself who has trespassed into the property of a third person?
3. Whether the Board can be termed as negligent even if it was vigilant and it served notices on the person who had illegally constructed the house below HT Line?
4. Whether the learned first Appellate Court ca
