MOHAMMAD RAFIQ,J. - (1.) Defendant-appellants have preferred this first appeal aggrieved by judgment and decree dated 07.09.2001 passed by learned Additional District Judge No.1, Jaipur District, Jaipur, in Civil Suit No.14/1996, whereby the suit of the plaintiff-respondents has been decreed in part.
(2.) Briefly stated the facts of the case are that in the night of 10.02.1995 when one Malu Ram was plowing the field, he received electric shock through pole and died on the spot. His death was due to the negligence on the part of the officials of the then Rajasthan State Electricity Board, who made defective wiring on the electric pole as they did not install insulator. He was the sole bread earner of the family and the plaintiff-respondents were dependent upon him. Plaintiff-respondents filed suit seeking compensation for the death of said Shri Malu Ram. The suit was contested by the defendant-appellants stating that there was no negligence on the part of the RSEB. The wiring was rightly done and the insulator was there and that the cause of death of said Shri Malu Ram was not due to electric shock, but it was for some other reason. Learned trial court framed issues and recorded evidence of the parties. After hearing the arguments of both the parties, learned trial court, vide impugned judgment and decree dated 07.09.2001, partly decreed the suit for Rs.4,18,000/-. Feeling aggrieved thereby, the defendant-appellants have preferred this first appeal.
(3.) Learned counsel for defendant-appellants argued that the deceased did not exercise reasonable care while pulling the live wire, which, according to him, was hanging loose, whereas, as per the plea set up by defendants in their written statement, wiring on the pole was in correct position and insulators were intact. In the accident took place due to negligence on the part of he deceased. No written or oral information was given to the defendant-appellants. Learned counsel for defendant-appellants have argued that there was no eye witness produced on behalf of plaintiff-respondents to prove that death of Malu Ram was due to electrocution, yet learned trial court has relied on hearsay evidence. The witnesses admitted that when the incident of electrocution took place, no one was there at the place of incident. The postmortem report of the deceased was not exhibited. The plea of the plaintiff that the accident took place due to stray wire cannot therefore be accepted. PW-1 Naraini, in her statement, has stated that electricity passed through supporting wire of the police, whereas the pole was of cement. The deceased was allegedly lying closed to the pole and cement is not a conductor of electricity, and therefore it cannot be believed that the electricity was passing through the pole. PW-2 Jagdish has stated that the deceased was affixed to the supporting wire. PW-4 Prahlad Rai has stated that the incident took place on 10.02.1995 and Malu Ram died due to electrocution which he received through the supporting wire of the pole, whereas DW-1 Motilal has admitted that the insulators were affixed at correct place. DW-2 Jagdish also in cross-examination has stated that insulators were fixed. No notice was given as per the provisions of the Electricity Act and thus mandatory provisions have not been followed. The defendant-appellants have wrongly been held guilty of negligence. The defence has not been considered in right perspective. The compensation awarded by learned trial court is towards higher side and it is based on wrong principles. The age and monthly income of the deceased have wrongly been taken into consideration. While awarding compensation, learned trial court did not keep in mind the provisions of the Fatal Accident Act. Before filing a suit, notice was required to be given by the plaintiff-respondents of the incident to the defendant-appellants, which was mandatory under law, but no notice was given and in absence of which the suit was not maintainable.;