Point of Law: Death during employment – Negligence – Entitlement of compensation - Doctrine of res ipsa loquitur. The onus of proof, which lies on a party alleging negligence is, as pointed out, that he should establish his case by a pre-ponderance of probabilities.

JUDGMENT :

D.Dash, J.

The Appellant, by filing this appeal, under section 100 of the Code of Civil Procedure (for short, ‘the Code’) has assailed the judgment and decree passed by the learned Additional District Judge, Balasore in RFA No. 53 of 2012. By the said judgment and decree, the lower appellate court has set aside the judgment and decree passed by the learned Additional Civil Judge (Senior Division), Balasore in Money Suit No. 14 of 2007 whereby the Plaintiffs suit had been dismissed.

The lower appellate court has then answered the core issues in favour of the Plaintiffs in holding the Defendants to be negligent and responsible for the death of the husband of Plaintiff No. 1. Accordingly, the Defendants have been held liable to pay compensation of Rs.1,42,000/-with interest @ 6% from the date of institution of the suit till realization.

2. For the sake of convenience, in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to, as they have been arraigned in the trial court.

3. The case of the Plaintiffs is that the age of Bhanu Charan Rout at the time of incident was 50. He was a cultivator and wage earner. He was looking after the cultivation work for some time and during the rest of the time, he was engaging himself in doing the work as a labourer. Said Bhanu was approximately earning a sum of Rs.2000/-per month. On 11.09.2005, Bhanu Charan when was going to approach the road, he suddenly came in contact with the live 11KV electric wire which was lying being snapped from the poles. In the said incident, Bhanu Charan died on account of electrocution. Alleging improper maintenance of the live electric wire in supply of the electricity in the area, the Defendants being duty bound and in-charge of maintenance and supply of electricity in the area, the Plaintiffs have stated that the Defendants are liable to pay the compensation on account of said deathof Bhanu Charan by electrocution in the above incident.

4. The Defendants in the written statement have averred that the electric wire being attended properly by them although and all possible care, safeguard and timely precaution having been taken when the fact remains that at no point of time any such grievance has been received as to their negligence in maintaining the overhead electric wire and supply of electricity, they are in no way responsible for the unfortunate incident. It is the case of the Defendants that on 10.09.2005 and 11.09.2005, there was heavy rain and wind followed by thunder, lightening etc. in the area and on 11.09.2005 when the deceased was going on the road by holding an umbrella over his head, the top portion of the iron handle of the umbrella came in contact with the live electric wire which was then in sagging condition and for that the deceased was electrocuted and met his death.

5. The trial court on the above rival pleadings has framed seven issues. On the most crucial issue as to the negligence of the Defendants i.e. issue no. 5, the finding having been rendered against the Plaintiffs, they have been non-suited. The Plaintiffs being aggrieved by the judgment and decree passed by the trial court in dismissing their suit had carried the appeal under section 96 of the Code.

6. The lower appellate court taking up issue nos. 5 and 6 together for decision, on going through the evidence and upon their appreciation at its level, in the backdrop of the rival claim of the parties by applying the settled law on the subject has in clear term held the finding of the trial court to be erroneous. In that exercise, the lower appellate court has answered those findings in favour of the Plaintiffs holding the death of Bhanu Charan to have taken place on account of the negligence of the Defendants and as to their liability in paying the compensation to the Plaintiff. Accordingly, the other issue relating to the assessment of compensation being taken up, the lower appellate court has held the Defendants liable to pay the compensation