CHHANGANI, J. - (1.) THIS is plaintiffs' first appeal against the judgment and decree of the Senior Civil Judge, Banswara, dated 19. 12. 62, dismissing their suit for the recovery of Rs. 50. 000 from the defendant-respondents on account of compensation. The suit had been brought under the provisions of the Fatal Accident Act in consequence of the death of Surajmal husband of the plaintiff appellant Smt. Pushpaben and father of the plaintiff-appellants Rajesh Ranjna Kumari and Rakesh, as a result of an electric shock received by Surajmal on account of the negligence of M/s. Banswara Electric Supply Company and its partners.
(2.) IN the plaint filed by the plaintiffs in the court of the Senior Civil Judge on 21-8-60, the plaintiffs set out their case as under - "that the defendants own at Banswara the Electric Power House and they carry on business in the name and style of M/s Banswara Electric Supply Co. " The plaintiffs alleged in general that "the defendants were careless and negligent in carrying out their duties and responsibilities in respect of installing the line, supplying electric power and carrying out the various obligations imposed by law, resulting in irregular supply of current, accidents, stoppage of power and giving rise to many complaints from the Government and the public. " After making such general allegations, the plaintiffs stated their specific case relating to the incident giving rise to the suit, as follows - "that in Banswara the brother of the deceased owns a house at Loharwada Surajpol. At that place the electric wires were kept and continued at such low height by the defendants that the lines were not kept having due regard to the safety of the inhabitants. The brother of the deceased drew the attention of the defendants by sending a petition on 24. 8. 59 for removal of these supply electric wires which were over hanging upon the house. The defendants or their servants did not comply and they also did not take measures of safety which they were bound to take under the Act and they acted carelessly, negligently and in contravention of law which caused the death of the deceased on 27. 8. 1959. " Elaborating the facts in this connection, it was stated, "that the deceased Surajmal s/o Jeychand Mehta had gone to his brother's house on 27 8. 1959 and when he was near the gallery, the defendants' company switched on to supply the electric energy prior to 11 A. M. as a result of which the deceased got the shock of the current from over head supply line and he expired on that account. " It was further stated in this connection that "the timings fixed by the defendant company for the purpose of supplying electric energy and known to the public was 11 A. M. and despite this, the defendants company negligently and carelessly switched on the supply prior to 11 A. M. and caused the death of the deceased. " It was further averred that "the defendants were directly responsible for the death of the deceased, and as such, they are bound to compensate the plaintiffs and liable to pay them the damages. " Claiming Rs. 50,000 as compensation, the plaintiffs stated that "the deceased was a promising young man of 32 years of age and had studied upto matric and was in receipt of a salary of Rs. 400 P. M. and possessed high ranking business ability and in due course his income would have gone to Rs. 1,003 P. M. The plaintiffs were solely dependant on the earnings, care and attention of the deceased and he was spending Rs. 3,500, yearly on their maintenance and that this amount would have gone on increasing every year as a result of his increase in salary. " On 5. 2. 60 the plaintiffs served notice upon the defendants demanding Rs. 50,000 but the defendants refused to pay the amount and gave evasive reply to the notice and hence, the plaintiffs had to file the suit. The defendants, in their joint written statement, controverted all the allegations of negligence and denied their liability they denied the allegations of general negligence on their part They also denied that Surajmal's death was caused on account of any electric shock under the circumstances narrated in the plaint. They asserted that the height of the wire and electric pole near the house of the brother of the deceased was 20 feet and strictly in accordance with the requirements of the Electricity Act and the Rules framed thereunder. They denied having received any petition on 24 8 59 from Hiralal. It was stated that Hiralal brother of the deceased purchased the house on behalf of the firm Kanji Jaychand on 8. 10. 57 and started construction. The house before it was purchased was only a 'katcha' house of 7 feet height. The pole and the line were also 8 feet away from the south side of the house and it was about 11 feet above the height of the said house. It was alleged that in making additions in the house Hiralal and the plaintiffs had not complied with R. 82 of the Indian Electricity Rules, 1956 (hereinafter referred to as the Rules ). The defendants had complied with the rules and there was no negligence or carelessness either on their part or on the part of the employees. The defendants also contended that on the case suggested in the plaint itself Surajmal was himself guilty of negligence because - (a) the construction of the gallery was undertaken without allowing sufficient time from the supplies to remove the pole and overhead lines to the prescribed safe distance from the proposed constructions; (b) that actual existence of the overhead wires was itself a sufficient warning to keep away at safe distance; (c) the deceased Surajmal acted overhead negligently in handling the wires without first ascertaining that power current did not pass that time. (d) the fatal accident occurred due to causes wholly and exclusively contributed by the deceased Surajmal. On the pleadings of the parties, the trial court framed as many as 32 issues - (1) Whether the defendants own a power house in the town of Banswara and are running the concern in the name and style of "the Banswara Electric Supply Company"? (2) Did the defendants not observe the provisions of the Indian Electricity Act and Rules, and if so, what is its effect? (3) Did the defendants not carry out the various obligations in respect of business of installing the line, supplying electric power as detailed in para No. 2 of the plaint? (4) If issue No 3 is decided in favour of the plaintiffs, whether the above acts of defendants result in irregular supply of current, accident, stoppage of power and if so, what is its effect on the suit? (5) Whether at many places the line wires are within reach horizontally and vertically? (6) Did the defendants not observe Rules77, 79, and 90 of the Indian Electricity Rules and if so, what is its effect on the suit? (7) Did the defendants not keep the earthing and protective measures according to law and if so, what is its effect? (8) Did the defendants not keep the safety measure as they were bound to keep. (9) Did the non-compliance of the statutory provisions and negligence of the defendants caused the death of the husband of defendant No. 1. (10) Did Surajmal die on 27. 3. 1959 due to electric shock? (11) Whether plaintiff No. 1 is the widow and plaintiffs No. 2 to 4 are the children of the deceased? (12) Whether the plaintiffs are dependants legal representatives and heirs of the deceased? (13) Whether the electric wires near the dwelling of Hiralal brother of the deceased were kept at low height without due regard of the safety of the inhabitants? (14) Did Hiralal send a petition on 24-8-59 for removal of the overhead wires but the defendants negligently did not comply. (15) Did the defendants not take safety measures after 24-8-59 which they were bound to take? (16) Did the defendants' company switch on to supply the electric energy prior to 11 A. M. on 25-6-59 which caused the death of the deceased? (17) Whether the death of the deceased was the direct result of the carelessness and negligence of the defendants, and as such they are liable to compensate the defendants? (18) Whether the deceased was educated and was in perfect health? (19) Whether there was any prospect that the monthly income of the deceased had gone to Rs. 1,000 in a year or two had he survived? (20) Whether the deceased was spending Rs. 3,500 yearly over the plaintiffs and this amount would have gone on increasing in future? (21) Whether the plaintiffs have sustained a total pecuniary loss which is assessed at Rs. 50,000? (22) Whether the plaintiffs had served notice to the defendants on 5 2. 60? (23) Whether the cause of action had accrued to the plaintiffs on 27- 8-59 against the defendants? (24) Whether the suit is within limitation? (25) Whether the suit is filed on proper Court Fees? (26) Whether this court has jurisdiction to hear this suit? (27) Whether Fakruddin, Hakimuddin, Saifuddin and Moiza are necessary parties to the suit and without impleading them the suit is not maintainable? (28) Whether Ghissoolal Engineer, Korulal Gotam drivers and Khemnand Joshi, who are running the power house are necessary parties to the suit? (29) Whether the suit is not maintainable under the Fatal Accident Act? (30) Is the suit not maintainable as the plaintiffs have not shown apportionment of damages? (31) Whether the period of limitation will be reckoned against defendant No. 1 from the date on which he is brought on the record of the suit? (32) To what relief, if any are the plaintiffs entitled? The plaintiffs examined 17 witnesses and relied upon 83 documents. The defendants examined 14 witnesses and relied upon 25 documents. As regards allegations of "general negligence" and contravention of statutory provisions contained in paras 3 to 6 of the plaint and the subject matter of issues Nos. 2 to 9, the trial court held that "there was neither sufficient material to adjudge if the defendants were negligent in other instances nor it was necessary for the Courts to determine it or not the defendants acted negligently in those other instances. " Issues Nos. 2 to 9 were decided against the plaintiffs. Dealing with issue No. 10, the trial court held that Surajmal died on 27. 8 59 due to electric shock and decided the issue in favour of the plaintiffs. The trial court also held that plaintiff No. 1 Pushpabai is the widow of Surajmal and the other plaintiffs are the children of deceased Surajmal. Under issue No. 13, the trial court held that "it were not the defendants who laid the overhead supply line so low as to be against all consideration of safety but it was Shri Heeralal who so projected this construction as to bring it nearer and nearer the overhead supply line. " It accordingly held that the defendants have without regard to the safety of the occupants of Heeralal's house and against the electricity Rules, laid a low overhead supply line. " Issue No. 13 was thus decided against the plaintiffs. Dealing with issues No. 14 and 15, the trial court took the view that Heeralal ought to have taken necessary steps as required by R. 82 of the Rules before starting additional construction and that the contravention of the mandatory provisions by him cannot be lightly treated. It held that "there was no case of emergency even if Heeralal was constructing a gallary which had come within the danger one. He could have stayed the construction and closed the approaches to the roof where the gallary was being constructed till in the norma! course the wires were removed. " The trial court observed, "it is too much to say that Heeralal should have been left free to continue in his contravention of R. 82 and at the same time expect the defendants to smooth the things out for himself by removing the wires of their own authority and without the approval of Electric Inspector or concurrence of Municipality nor could the defendants have switched off the line for that would have plunged the portion of the town in darkness. The convenient and immediate remedy was for Heeralal to discontinue the construction " Eventually, the finding of the trial court was that "ex. 56 was received by Shri Khemchand, but it did not amount to a proper application nor there was sufficient time within which the defendants could have acted and they were not guilty of negligence in not acting " Under issue No 16, the trial court held that the plaintiffs' case was inherently weak and relying upon the log book of the defendants Ex. A-27, held that the plaintiffs miserably failed to prove this issue. This issue was decided against the plaintiffs. Dealing with issue No. 17, the trial court held - (1) that the circumstances under which the deceased met his death are not known, (2) that it is not the power house that has brought the dangerous electricity to the gallary of Heeralal. Rather it is Heeralal, who has wrongfully brought his construction of gallary within the danger zone. (3) that the person hurt was an adult The wires were manifestly dangerous and visible and were all the time there. By no reasonable foresight, it could be anticipated that an adult of the age and intelligence of Surajmal wanted to walk through all the length of the roof and catch hold of live wires which were as prominently visible and so manifestly dangerous. " According to it, the test of absolute liability laid down in the case of Rylands vs. Fletcher (1) could not govern the present case and that the proper test to be applied was test of "forseability" the general concept and reasonable foresight as the criteria of negligence. Applying this test, the Court held that "it could not be foreseen that Heeralal would be so reckless as to bring construction within the reach of naked wire and his brother and servant would go on the open roof and with no apparent reason come in contact with the wire. "the Trial court also held that" the obligation as to the maintenance was not contravened. " In this connection, it was observed that 'law had imposed a duty on Heeralal to stay his hands and wait for the removal of wires and not on the defendants to remove the wires as soon as they came to know of some construction being raised there-about. " The trial court summarised its findings as follows - " (a) When the overhead line was laid, it was perfectly in accordance with the Rules say upto middle of August, 1959 when the construction by Heeralal began. (b) There was no defect in the manner of laying the lines or in its maintenance (c) The duty to periodically watch the lines does not extend to watch it constantly on all points on all dates. It only extends to watch periodically. The power house was not guilty of not periodically watching if within the brief-space of a week the construction was brought within the clearance allowed by rules. (d) More particularly when rules prohibit any citizen constructing within the clearance and the contravention of the rule amounts to an offence. In other words, power house has been assured by law that no one will contravene the provisions as to clearance. (e) Heeralal was guilty inasmuch as be without previous approval of the Inspector of Electricity so constructed the gallary Electricity as to come within the danger zone. (f) Heeralal was also guilty in continuing to construct the gallary after atleast he had known on 24. 8. 1959 (Ex. 56) when he knew that he had come dangerously within the proximity of the overhead lines. (g) Heeralal was alto guilty in not safe guarding the danger and allowing his labourers and servants to approach the unguarded danger. (h) The danger was clear and manifest. Any body approaching the roof could see it. (i) The danger was not deceptive, latent or hidden. (j) Roof was not a public where any body might casually go. (k) Surajmjal was a free agent. He was under no compulsion and apparently had no business to be at the gallary, and lastly, (l) Surajmal was adult and had a duty to take prosecution himself, there was thus no negligence of the defendants. They were not guilty of any act or omission which directly resulted in the death of Surajmal and, therefore, the defendants are not liable to pay damages. In view of these findings, the issue was decided against the plaintiffs.
(3.) ON issues Nos. 18 to 21, the trial court following the principle laid down in State of Bombay [now Gujarat] vs. Parshottam Kanhaiyalal [2] determined the amount of compensation as Rs. 15,000. The remaining issues were decided either for the plaintiffs or against the defendants. On these findings, the trial court dismissed the plaintiffs' suit. We shall first address ourselves to the principles of law governing a tort of negligence. In the past there used to be controversy whether negligence by itself (as distinguished from negligence as a mode of committing other torts) could be recognised as an independent tort. The controversy was set at rest by the decision of House of Lord in Donoghue vs. Stevenson (3) which treats negligence as "conduct and not a state of miind" involving an unreasonably great risk of causing damage. In commenting upon the tort of negligence, Lord Wright stated : In strict legal analysis, negligence means more than needless or careless conduct, whether in omission or commission : it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing. "it is clear that to constitute a tort of negligence, it must be proved that the defendants owed (i) a duty to care for the person adversely affected who or through whom the claim for compensation is made, (ii) that there was breach of duty and that (iii) damage was suffered by the person to whom duty was owing : The difficulties have always been experienced by Judges in attempting to lay down general principles defining the actual rjelations between the parties which give rise to duty to care. In this connection, reference may be usefully made to the following observations of Lord Macmillion - "the grounds of action may be as various and manifold as human errancy: and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed. " Various principles and varying tests, such as, the principle of absolute liability in cases where an owner or occupier introduces or brings dangerous thing or material to his property, as applied in the case of Rylands vs. Fletche [l], the neighbour principle as applied in Donoghue vs. Stevenson [3], the principle of foreseability have been formulated and applied, having regard to the facts and the circumstances of individual cases. In our view, the question of determining whether a duty to care to a particular person exists or not, should be determining having regard to the facts and the circumstances of the individual case, the relations between the parties, their juxtapositions, the exigencies of the situations and the nature of the conduct or activities and no rule of thumb can be laid down. Another principle, which may also be referred to is that "when one who has full knowledge of the nature and the extent of the risk and is entirely free to avoid it, but nevertheless voluntarily goes on and is injured, cannot recover. " At this stage, we may also usefully refer to the provisions of the Indian Electricity Act and the Rules framed thereunder, providing for the maintenance of vertical and horizontal clearances while installing electrical lines. Rule 79 requires. "where a low or medium voltage overhead line passes above or adjacent to or terminates on any building, the following minimum clearances from any accessible point, on the basis of maximum sag, shall be observed - (a) for any flat roof, open balcony, verandah roof and to roof (1) When the line passes above the building a vertical clearance of 8 feet from the highest point, and (2) When the line passes adjacent to the building a horizontal clearance of 4 feet from the nearest point. A question of maintaining such clearances has also arisen in this case but we shall refer to it at a later stage. ;