plea of vis major/Act of God =As noted by the trial Court DW1 was not an eyewitness to the incident and he was not even a part of inspection team which submitted its report under Ex.B3. Therefore, DW1 was not a correct person to speak on alleged vis major. Then, we are left with Exs.B1 to B3. Exs.B1 and B2 are the news paper items speaking about the incident. No implicit reliance can be placed on Exs.B1 and B2 without examination of the persons who reported. The same is the case with Ex.B3. None of the inspection team members who submitted Ex.B3 was examined in proof of Ex.B3. Thus, the defendants could not prove that the electric wire was snapped because of the heavy gale at the place of incident. Therefore, the trial Court rightly rejected their contention and held that it was only due to lack of supervision that the live wire was snapped. Since the defendants failed to produce any record showing that they have conducted periodical checkups prior to the date of incident, though they claimed to maintain record, the trial Court was right in drawing adverse inference in that regard. Therefore, the finding of the trial court can not be found fault.- Coming to the instant case, the defendants before taking the plea of vis major should satisfy the Court that they have taken all the necessary precautions and safety measures by conducting periodical checkups to the live wires and ensured that they were properly maintained and despite the incident was occurred due to the act of natural elements. However, as observed by the trial Court they have not produced any record to show that they used to conduct periodical checkups to the electric wires and transformers at the place of incident. In that view of the matter, mere defence plea of vis major is of no avail to the defendants.

THE HONBLE SRI JUSTICE U. DURGA PRASAD RAO        

C.C.C.A. No.150 of 1998

09-09-2016

The Chairman, APSEB, Vidyuth Soudha, Hyderabad and two others. . Appellants  

J.Vittal Swamy (died) per LRs and four others.. Respondents

Counsel for Appellants:Sri R.Vinod Reddy,
                        Standing Counsel for APSEB
Counsel for Respondents 3 to 5  : Sri Namavarapu Rajeswara Rao

<Gist:

>Head Note:

? Cases referred:
1)      (1868) LR 3 H.L. 330 (House of Lords)
2)      MANU/SC/0591/2016  


HONBLE SRI JUSTICE U. DURGA PRASAD RAO        
C.C.C.A.No.150 of 1998

JUDGMENT:
     The defendantsAPSEB authorities who have been aggrieved by
the common judgment in O.S.Nos.696 and 1381 of 1993 on the file of V
Senior Civil Judge, City Civil Court, Hyderabad whereby and
whereunder compensation of Rs.80,000/- in O.S.No.696 of 1993 and
Rs.1,24,000/- in O.S.No.1381 of 1993 was granted for the death of one
J.Ramesh due to electrocution by a live electric wire, filed the instant
appeal.
2)      The deceased was aged 27 years and working as a Class IV
employee in Postal Department at Narayanaguda. On 11.05.1992 at
about 5 PM while the deceased and some others were waiting  at bus
stand Nampally near Telugu University, suddenly one electrical wire
was snapped from electric pole and fell on the iron railing of Telugu
University. The deceased and four other persons came in contact with
the iron railing and were thus electrocuted and died instantaneously.
a)      The plaintiffs in O.S.No.696 of 1993 who are parents and plaintiff
in O.S.No.1381 of 1993 who is the wife of deceased filed separate suits
claiming damages of Rs.1 lakh and 3 lakhs respectively attributing
negligence to electricity authorities which resulted in death of deceased.
The fact of death of deceased due to electrocution was not denied by
defendants but their prime line of defence was that the death was due to
vis major (act of God). They contended that on 11.05.1992 due to
sudden and heavy gale the LT conductor of the line snapped and fell on
the iron grill of the compound of Telugu University at Nampally bus
stand and the iron grill got energized and at that time the deceased came
in contact with iron grill compound and met with instantaneous death
and in the entire process there was no negligence on the part of
defendantBoard. They pleaded that since the place at which the fatal
accident took place was a VIP area where Telugu University and Lalitha
Kala Toranam were located, the officials of the defendantBoard were
inspecting the transformer and line frequently in order to maintain
uninterrupted power supply and thus the question of their negligence did
not arise. The defendants thus attributed the death to vis major and
claimed it as beyond their control. They further pleaded that
defendantBoard passed a resolution to pay ex gratia of Rs.5,000/- to
the legal heirs of the deceased persons involved in the accident.
b)      Having regard to the admitted fact that the deceased met with
untimely death due to the snapping of live electric wire, the trial Court
relying on the principle res ipso loquitur, observed that prima facie the
negligence was on the part of the department and hence the onus was on
the defendants to establish that they were vigilant and diligent and the
act was purely vis major and out of their control.
c)      Then, the trial Court embarked upon to find out whether the
defendants could successfully discharge their burden. It may be noted,
the defendants examined DW1Additional Divisional Engineer,
APSEB and produced Exs.B1 to B3. Ex.B1 and B2 are newspaper  
information about the accident and Ex.B3 is the inspection report
submitted by the departmental personnel regarding the accident. Having
observed that DW1 was not an eye-witness to the incident and not a part
of the inspection team, the trial Court found fault with the defendants for
not examining one of the staff members who allegedly inspected the
spot and held that the contents of Ex.B3 were not proved. DW1 is
concerned, he claimed that it being a VIP locality, they would conduct
checkups to the wires every month and during such periodical checkups,
they had never come across any defect in the wires. He however
admitted in the cross examination that they have no record showing that
they have conducted periodical checkups. In view of his admission, the
trial Court observed that the defendants for the reasons best known to
them did not produce any record to establish their contention that they
used to conduct periodical checkups and hence an adverse inference
could be drawn against them to the effect that there were no periodical
checkups or proper maintenance of electricity supply at the place of
incident. The trial Court ultimately held that defendants failed to
establish that accident was occurred due to some cause other than their
negligence. It further held that if it were the case of the defendants that
due to heavy gale the live electrical wire got snapped and fell down, it
was its primary duty to stop power supply immediately but as per
Exs.A1 and A2 it was the police who got stopped the power supply
immediately after the accident. The trial Court thus fixed liability on the
defendants and decreed the suits as stated supra.
     Hence the appeal by the defendants.
3)      The parties in the appeal are referred as they arrayed in the trial
Court.
4)      Heard arguments of Sri R.Vinod Reddy, learned Standing
Counsel for APSEB and Sri Namavarapu Rajeswara Rao, learned  
counsel for R3 to R5.
5)      Learned standing counsel would argue that the fatal accident was
occurred due to sudden snapping of live electrical wire from the poll
because of heavy gale at the place of accident and in view of the said
fact, the trial Court ought to have accepted the defence of the defendants
that it was purely an act of God but nothing else and exempted it from
liability. He would argue that the trial Court ought to have believed the
version of defendants that the locality being a VIP area, the defendant
officials were regularly conducting line checkups for ensuring
uninterrupted power supply as deposed by DW1. He thus prayed to
allow the appeal.
6)      Per contra, learned counsel for respondents 3 to 5 in support of
the judgment would argue that the appeal is not maintainable for the
reason that defendants have preferred appeal against only one out of two
decrees and therefore, technically speaking judgment and decree in
O.S.No.1381 of 1993 remained unchallenged and findings therein,
which are similar to the present one, attained finality and hence the
present appeal is barred. Regarding merits of the appeal, he would argue
that the defendants cannot repudiate their liability on the ground of
vis major for the reason they failed to convince the Court that they have
taken all the precautionary measures and hence the trial Court rightly
negatived their plea and decreed the suit. He thus prayed to dismiss the
appeal.
7)      In the light of above rival submissions, the point for determination
in this appeal is:
Whether there are merits in the appeal to allow?
8) POINT: The uncontroverted facts in this case are to the effect that the
deceasedJ.Ramesh and four others got electrocuted on 11.05.1992 at
about 5 PM at the bus stand Nampally, near Telugu University when one
electric live wire got snapped from a nearby electric pole and fell down
on iron railing of Telugu University and when the said Ramesh and four
others came in touch with the iron railing. The defence plea is that of vis
major.
a)      The above facts would inevitably remind us the principle of strict
liability or absolute liability propounded in the case of Rylands vs.
Fletcher . The facts in that case were that a mill owner employed
contractors to construct a reservoir on his land to provide water to his
mill. In the course of the work the contractors noticed some old shafts
and passages on the land which communicated with the mines of a
neighbouring owner. The contractors without blocking the shafts and
passages constructed reservoir and filled it with water. In due course the
water burst through the old shafts and flooded in As mines and resulted
in loss to him and his bringing the action for damages against the mill
owner.  In that context, fixing liability on the defendant Blackburn J.,
observed thus:
We think that the true rule of law is, that the person who
for his own purposes brings on his lands and collects and
keeps there anything likely to do mischief if it escapes, must
keep it in at his peril, and, if he does not do so, is prima
facie answerable for all the damage which is the natural
consequence of its escape.
He further observed:
He can excuse himself by showing that the escape was
owing to the plaintiffs default or perhaps that the escape
was the consequence of vis major, or the act of God but as
nothing of this sort exists here, it is unnecessary to inquire
what excuse would be sufficient.  The general rule, as above
stated, seems on principle just. The person whose grass or
corn is eaten down by the escaping cattle of his neighbour,
or whose mine is flooded by the water from his neighbours
reservoir, or whose cellar is invaded by the filth of
neighbours privy, or whose habitation is made unhealthy
by the fumes and noisome vapours of his neighbours alkali
works, is damnified without any fault of his own and it
seems but reasonable and just that the neighbour, who has
brought something on his own property which was not
naturally there, harmless to others so long as it is confined
to his own property, but which he knows to be mischievous
if it gets on his neighbours, should be obliged to make
good the damage which ensues if he does not succeed in
confining it to his own property. But for his act in bringing
it there no mischief could have accrued, and it seems but
just that he should at his peril keep it there so that no
mischief may accrue, or answer for the natural and
anticipated consequences. And upon authority, this we think
is established to be the law whether the things so brought
be beasts, or water, or filth, or stenches.
b)      It is needless to emphasize that the rule of strict liability or
absolute liability expounded in the above decision was widely
acclaimed. The pith and substance of the above decision is that if a
person, for his own purpose brings on and keeps in his property,
anything, which is likely to result in causing mischief if it escapes, then
such person shall bear in mind he keeps it in his property at his peril and
he will be prima facie liable for the damages which is the natural
consequence of its escape. Of course, the defence available to him in an
action for damages is two fold: firstly, that the escape which resulted in
mischief was due to the default of the plaintiff himself and secondly,
that the escape was the consequence of vis major i.e. act of God.
c)      In the instant case, the electrical wires, electric pole and other
relative devices such as transformers etc. are admittedly the properties of
the defendants. The defendants have been allowing passage of electric
current through those cables for their purpose i.e. to distribute
electricity. It is needless to expatiate that the defendants have full
knowledge that if the electricity escapes due to snapping of electric
wires or runs down through electric poles for lack of proper insulation,
the electric current is likely to cause any amount of mischief and result
in damage to lives and limbs of general public who, while passing on the
public roads, might accidentally come in contact with the snapped
electric wires. Yet, obviously for the public purpose, the defendants
allowed the electric current to pass through its property i.e. electric
wires. Hence, if the mischief is caused due to escape of the electricity as
is done in the instant case, the defendant department will be liable for
damages under the strict liability principle enunciated in Rylands vs.
Fletcher (1 supra). As already stated supra, the defendants can repudiate
its liability on two main defences and in the instant case the defendants
chose the defence of vis major.  The defence was that due to heavy gale
the live wire was snapped accidentally and there was no wanting of any
diligence on their part. This plea, it appears, was not found favour with
the trial Court as in para-19 of its judgment the trial Court having regard
to admission of DW1 has observed thus:
The admission of DW1 that the incident that occurred at
the place now in question is the only incident on that day
falsifies the contention of the defendants that due to heavy
gale and wind live wires were got snapped and fell down
and it is therefore the act of God or vis major.
The trial Court, thus, did not believe the plea of vis major and held that
defendants failed to establish that accident was occurred due to some
cause other than negligence of the Electricity Board. The trial Court held
that it was due to the negligence of the Electricity Board in not properly
maintaining the supply line the incident was occurred.
9)      Though in this appeal it is vehemently argued that the trial Court
did not properly appreciate the defence theory of vis major, I find no
much force in the said argument for the reason that the
appellants/defendants failed to adduce cogent evidence that the escape
i.e. snapping of live electric wire was due to vis major.  As stated supra,
on behalf of defendants DW1 was examined and Exs.B1 to B3 were
marked. As noted by the trial Court DW1 was not an eyewitness to the
incident and he was not even a part of inspection team which submitted
its report under Ex.B3. Therefore, DW1 was not a correct person to
speak on alleged vis major. Then, we are left with Exs.B1 to B3.
Exs.B1 and B2 are the news paper items speaking about the incident. No
implicit reliance can be placed on Exs.B1 and B2 without examination
of the persons who reported.  The same is the case with Ex.B3.  None of
the inspection team members who submitted Ex.B3 was examined in  
proof of Ex.B3. Thus, the defendants could not prove that the electric
wire was snapped because of the heavy gale at the place of incident.
Therefore, the trial Court rightly rejected their contention and held that it
was only due to lack of supervision that the live wire was snapped.
Since the defendants failed to produce any record showing that they
have conducted periodical checkups prior to the date of incident, though
they claimed to maintain record, the trial Court was right in drawing
adverse inference in that regard. Therefore, the finding of the trial court
can not be found fault.
10)     Even assuming for a moment that the electric wire was snapped
because of the heavy gale, still that itself will not automatically
exonerate the defendants from liability unless they establish that they
took all precautions and safety measures and in spite of it, due to the act
of natural forces beyond their control the accident was occurred.
11)     In Vohra Sadikbhai Rajakbhai vs. State of Gujarat  the Supreme
Court held such a responsibility lies on the defendant. The facts in that
case were that the respondent/Sate of Gujarat constructed and
maintained a dam and during one monsoon season the respondent
released the water from the dam which flooded the land of the plaintiffs
and destroyed the plantation therein.  In the resultant suit for damages
the respondent contended that the water had to be released from the dam
as it reached alarming level because of heavy rains and non-release
would have breached the dam. The action was thus taken in public
interest and it was occasioned because of the rains which was an act of
God (vis major). The contention of the appellants on the other hand, was
that it was sheer negligence on the part of respondents in not
maintaining low level of water keeping in mind ensuing monsoon
season and therefore, the damage caused to the appellants had direct
nexus with the act of negligence of the respondents which could not be
attributed to the act of God.  The Apex Court accepted the contention of
the appellant and held thus:
Para-28  xx  xx   Merely by saying that the level of water
in the dam increased because of monsoon rains and that the
water was released in public interest cannot be treated as
discharging the burden on the part of the Respondents in
warding off the allegation of negligence. It is a matter of
common knowledge that with advanced technology
available with the Meteorological Department in the form
of satellite signals etc, there is a possibility of precise
prediction of the extent of rainfall in the monsoon season.
In view of the principle laid down in Rylands v. Fletcher,
onus was on the Respondents to discharge such a burden,
and it has miserably failed to discharge the same. On that
basis, we are constrained to hold that there is a negligence
on the part of the Respondents which caused damage to the
fields of the Appellants.
12)     Coming to the instant case, the defendants before taking the plea
of vis major should satisfy the Court that they have taken all the
necessary precautions and safety measures by conducting periodical
checkups to the live wires and ensured that they were properly
maintained and despite the incident was occurred due to the act of
natural elements. However, as observed by the trial Court they have not
produced any record to show that they used to conduct periodical
checkups to the electric wires and transformers at the place of incident.
In that view of the matter, mere defence plea of vis major is of no avail
to the defendants.
13)     The appeal is not maintainable for another reason also as the
appellants failed to show that they filed a corresponding appeal against
the common judgment in OS.No.1381 of 993.
14)     In the result, this appeal filed by the defendants is dismissed by
confirming the judgment of the trial Court.  No costs.
     As a sequel, miscellaneous applications pending, if any, shall
stand closed.
__________________________  
U. DURGA PRASAD RAO, J    
Date: 09.09.2016