1. One Mohd. Bashir was electrocuted on 2nd Aug.1996, He came in touch with a broken live electric wire, when he was proceeding towards the main road from his house in village Chokian (Kot Dhara). Negligence was attributed to the officials of the electric department and more particularly to one Siam Shah, Linemen in the Power Development Department. It was pleaded that the deceased was 30 years of age, and was earning Rs.150 per day. The total income of the deceased was said to be Rs.4500/- p.m.

2. The defendant-State filed its written statement. It denied negligence on the part of the Siam Shah. It was pleaded that as a matter of fact, it was defendant no.4, Abdul Khaliq who used to commit the theft of electricity from the L.T. Line by using unsafe material, it was pleaded that the accident had taken place as a result of negligence on the part of defendant No.4 Abdul Khaliq.

3. The issues which came to be framed are as under;-

"1/ Whether the defendant-3 laid down an electric connection from the electric pole to the house of defendant no.4 at a distance of more than one KM. by using ordinary iron wire while instead of using of protecting wire in connivance with defendant -4: OPP

2/ Whether the defendant Mohd. Bashir husband of plaintiff-1 and father of plaintiffs 2 to 4 died of electrocution on account of failing on said ordinary iron wire used for the electric connection from the electric pole of the house of defendant-4 while crossing in between pole and the place where the said wire fell down on the earth: OPP

3/ Whether the death of said Mohd. Bashir can be attributed to the negligence of defendant 3 and 4; OPP

4/ If issues No.2 and 3 are proved in negative, whether death of Mohd. Bashir occurred due to the negligence of defendant-4 who used electric connection illegally by theft by using the said ordinary iron wire connecting the electric pole to his house during night but said wire fell down on the earth without knowledge of defendant; OPP

5/ Whether the plaintiffs are entitled to the damage, if so how and from whom; OPP

6/ Relief."

4. It be seen that so far as defendant No.4 is concerned, he is said to have obtained an illegal connection for obtaining electric energy and he had not used proper transmission wire. It is not in dispute that the death of Mohd Bashir did take place. Even if it be presumed that defendant no.4 had obtained illegal connection, the fact will still remain that the officials of the State defendant No.3 were guilty of not checking the illegal connection and merely because the said illegal connection was taken by defendant no.4 would be of no consequence.

5. The fact that the deceased was electrocuted with a live wire which was used for the supply of electricity to the house of defendant no.4 from a L.T.Line in village Chokian (Kot Dhara) is an established fact. The defendants No.1 to 3 in their written statement have admitted that the live wire had fallen down during the night hours and the deceased was electrocuted. So far as the claimants are concerned, they are not concerned as to on whose part the negligence occured.

7. The above question was considered by a Division Bench of this Court in LPA 32/ 2002 and connected Appeal decided on 1.12.2002 what was observed is being reproduced below:-

In Poonam Verm a Vs. Ashwin Patel,1996 CCJ 721, the Supreme Court of India enumerated following three constituents of negligence:

i/ A legal duty to exercise due care on the part of the party complained of towards the party complaining the former™s conduct within the scope of the duty;

ii/ Breach of the said duty; and

iii/ Consequential damage,

Failure to keep the required caution and safeguards would clearly amount to negligence and such a negligence is actionable under the law of Torts. See Jay Laxmi Salt Works (P) Ltd V. State of Gujarat, 1994 ACJ 902. The Supreme Court of India in the above

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