U P STATE ELECTRICITY BOARD Vs. GANGAJALI

JUDGEMENT

(1.) HEARD Sri Pankaj Dubey holding brief of Sri H.P. Dubey learned counsel for the defendant appellant and Sri Anil Kumar Pathak learned counsel who has put in appearance on behalf of the plaintiff respondent. This second appeal has been filed against the judgement and decree dated 26.9.2007 passed in Civil Appeal no. 67 of 2006 by the Additional District Judge, Court no. 3 Kanpur Nagar whereby the appeal filed by the plaintiff respondent has been allowed to the extent that the compensation awarded by the Trial Court has been increased. Learned counsel for the appellant has submitted that the findings of the Trial Court as well as the appellate court was relating to contributory negligence and therefore the compensation for death of Phool Chand could not be awarded to the plaintiff respondent. According to him in the oral evidence it was clearly stated by the plaintiff witnesses that the electric wire was tied with a wooden pole and therefore it cannot be said that there was any negligence on behalf of the appellant. Learned counsel for the plaintiff respondent has submitted that the incident occurred at 2.30-3.00 in the night on 22.6.1996 when the electric wire which was installed over the gate of the plaintiff respondents house fell on Phool Chand who was sleeping in front of his house. According to him the plaintiff respondent had in the past repeatedly asked the officials of the department to secure the electric wire firmly because there is a risk that it might break and fall down on the house of the plaintiff respondent. He submits that in spite of the aforesaid request no action was taken by the appellants to secure the wire tightly and therefore when it has broken and fallen down the negligence is on part of the appellants. The courts below found that there was negligence on behalf of the appellants in securing the wire tightly particularly when it was passing over the house of the plaintiff respondent and it was their own case that no electric connection was given to any person from the pole fixed there. According to the courts below the negligence appears to be on behalf of the appellants although the Trial Court has held that the plaintiff respondents should not have slept under the electric line. The first appellate court has disagreed with the Trial Court on this issue and has recorded that the plaintiff respondents are entitled to sleep in front of their house and it was for the appellants to secure the wire firmly and having not been done the negligence was clearly of the department particularly when an earlier request had already been made by the plaintiff respondent to secure the electric wire. It is not disputed that the death of Phool Chand occurred due to electric shock from the broken wire on 22.6.1996 at 2.30, 3.00 in the night and hence the finding on negligence of the department is in accordance with the evidence. In so far as the compensation is concerned the Trial Court has assessed the compensation at Rs. 20,000 + 12 percent simple yearly interest. The lower appellate court has not agreed with the calculation and has adopted the formula given under the Motor Vehicle Act having found that Phool Chand was a mason by profession and although it was claimed that he was earning Rs. 150 per day but the first appellate court has taken his income as Rs. 70 per day i.e. Rs. 2100 per month. According to the age of the deceased the multiplier of 11 as provided under the Motor Vehicle Act has been adopted and after making the necessary deduction of 1/3 it has come to a conclusion that the compensation to which the claimaints are entitled is Rs. 1,84,800. A further interest of 6% per annum has been awarded by the first appellate court. In so far as the question of calculation of compensation is concerned no error can be found in the same. The first substantial question of law in the memorandum of appeal is as to whether the appeal could be allowed without setting aside the findings recorded by the Trial Court. This question does not arise because the first appellate court has set aside the findings of the Trial Court on two issues, first is regarding negligence of the appellants, the second is on the quantum of compensation. The second substantial question of law is whether the first appellate court could reverse the judgement without coming to grips with the reasoning of the Trial Court. The first appellate court has considered the reasoning given by the Trial Court and has not agreed on the finding on the issue of contributory negligence recorded by the Trial Court and has clearly held that the electric pole installed by the department at the gate of the plaintiffs house was not for the purpose of giving any electric connection to any person and therefore if the electric line is to pass over the house of the claimants it has to be firmly secured by the appellant and although the claimants had warned the appellant regarding the securing of the electric wire on the pole but no action was taken by the appellant. The first appellate court has therefore considered the reasoning given by the Trial Court and has reversed the same. The substantial question of law no. 3 and 4 are as to whether the first appellate court could interfere in the finding of the Trial Court on the basis of oral evidence led by the parties. It will be seen from the judgement of the first appellate court that the findings recorded were on the basis of oral evidence and the said finding regarding cause of death of Phool Chand are concurrent finding of fact. The first appellate court has deferred with the Trial Court on the question of contributory negligence and it has given its reasoning holding the findings of the Trial Court not to be in accordance with the oral evidence. Such a finding was within the competence of first appellate court and no error can be found in the same in any manner whatsoever. The finding of the Trial Court on the compensation awarded to the claimants have also been set aside by the first appellate court where it has adopted the formula provided for grant of compensation under the Motor Vehicle Act. Learned counsel for the appellant has not been able to show any statute or rule governing the appellant to indicate that compensation is to be awarded in some other manner and that the formula under the Motor Vehicle Act would not be applicable. In the absence of any statutory rule or formula pointed out by the appellant it cannot be said that the formula under the Motor Vehicle Act adopted by the first appellate court was in any manner illegal. For the aforesaid reasons the substantial question of law framed in the memorandum of appeal are answered as above. The appeal is accordingly dismissed. No order is passed as to costs.