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Judgment
S.C. Das, J.—This second appeal u/s 100 of CPC is directed against the appellate judgment and decree dated 27.06.2008 passed by the learned Additional District Judge, Dharmanagar, North Tripura in Money Appeal No. 01 of 2008, whereunder the learned Additional District Judge reversed the judgment and decree of dismissal dated 12.10.2007 passed by the learned Civil Judge, Senior Division, Dharmanagar, North Tripura in Money Suit No. 01 of 2007 and thereby decreed the suit by allowing the appeal and granted compensation of Rs. 1,25,000/- with 7% interest thereon from the date of filing of the suit i.e. 02.04.2007.
The second appeal has been admitted for hearing on the following substantial question of law :-
"Whether the learned Addl. District Judge, North Tripura, Dharmanagar, committed error by holding that the defendants who provided/allotted the quarters to the plaintiff-respondent with electricity was liable for the damage/loss caused to the plaintiff-respondent?"
Heard learned counsel, Mr. C.S. Sinha, for the appellants and learned counsel Mr. D.K. Biswas for the respondent.
The respondent as plaintiff (hereinafter mentioned as ''plaintiff'') instituted Money Suit No. 01 of 2007 against the appellants arraying them as defendants (hereinafter mentioned as ''defendants'') seeking a decree for granting compensation of an amount of Rs. 3,00,000/- for the death of her son, Sukanta Sengupta(12 years), who was electrocuted on 09.06.2006 at about 12/12-30 pm in her residential quarters in the premises of defendant No. 1.
The plaintiff''s case, in short, is that her husband, Sri Sukumar Sengupta, had been working as a Mechanics under the defendants and he was allotted a quarters in the premises of the tea estate, wherein facility of electricity and water were provided free of cost. The electric connection provided to the quarters was lying loose and the husband of the plaintiff repeatedly requested the defendant No. 3 to repair the loose electric connection, but the defendants did not repair the same and as a result due to rainfall on 09.06.2006 the quarters of the plaintiff''s husband, which was of GCI sheet roof and the door was also made of GCI sheet, got electrified and when their minor son, aged about 12 years, touched the door to open it, to get out of the room, he got electrocuted. He was immediately taken to Dharmanagar hospital where he was declared dead. It is the case of the plaintiff that maintenance and repairing of the electric connection was the responsibility of the defendants, but the defendants did not take care of proper maintenance and repair of the electric connection and as a result of which the accident had occurred and her minor son got electrocuted and died. It is also alleged that the husband of the plaintiff orally intimated the defendant No. 3 to repair loose electric connection, but the defendants negligently did not take up the repair work, which resulted the ultimate accident. The plaintiff further stated that her husband served an Advocate''s notice upon the defendants claiming compensation of Rs. 10,00,000/-, but the defendants vide their reply dated 08.01.2007 denied all allegations and also denied the claim made by her husband and hence, the plaintiff instituted the suit praying for awarding compensation of Rs. 3,00,000/- with 12% interest from the date of the fatal accident.
The defendants contested the case by filing a joint written statement, inter alia, contending that the plaintiff''s husband, Sri Sukumar Sengupta, was a staff of the tea estate and was working as a Mechanics. He was provided residential accommodation in the premises of the tea garden. There was no domestic electric line in the tea garden. Only industrial/commercial electric line was provided to the tea garden, from where as a matter of grace, the garden authority allowed the staff residing in the quarters to use electricity in their residential quarters. The occupants of the quarters would maintain electric wiring etc. in their respective quarters and recurring expenses such as electric bulbs, tubes and repair etc. were done by them. There was no responsibility on the defendants to maintain or repair the electric connection in the residential quarters which was supposed to be looked into by the occupants of the respective quarters. No intimation of any loose connection or maintenance of electric connection was given by the plaintiff or her husband to the defendants. The defendants had no negligence in the alleged accident of the minor son of the plaintiff. It is also stated that there was heavy storm and rain on the date of accident. As a result of which the electric connection might get damaged and it was an act of God or vis major for which the defendants cannot be held responsible for making payment of compensation. It is also alleged that husband of the plaintiff served an Advocate''s notice dated 27.11.2006 and in that notice also the husband of the plaintiff did not conspicuously mention that there was any intimation given to the defendants for repair of any loose electric connection in the quarters of the plaintiff and such allegation was made falsely to make out a case. The defendants, therefore, prayed for dismissal of the suit.
Learned trial Judge considering the pleadings of the parties framed seven issues, namely :
"(i) Has the plaintiff any cause of action to file this suit?
(ii) Whether the suit is maintainable in its present form?
(iii) Is the suit bad for non-joinder of parties?
(iv) Whether plaintiff''s son namely Sukanta Sengupta died on 9-6-06 due to electrocution?
(v) Whether the defendants are responsible for the death of said Sukanta Sengupta?
(vi) Is the plaintiff entitled to get the decree as prayed for?
(vii) To what other relief/reliefs the parties are entitled?"
In course of trial, the plaintiff examined herself as P.W.1 and also examined her husband, Sri Sukumar Sengupta as P.W.2. In support of her case, the plaintiff proved three documents, namely:
"1. Exbt. 1(series) - certified copy of order of UD Case no. 28/06 of Dharmanagar P.S. u/s. 174, Cr.P.C. (9 sheets),
Exbt. 2 - copy of Advocate''s notice dated 27.11.06 & AD. (6 sheets), &
Exbt. 3- Reply of notice dated 8-1-07(2 sheets)."
On behalf of the defendants, one witness, namely, Sri Goutam Kumar Dey, the Manager of defendant No. 1, has been examined as D.W.1 and in support of their case, the defendants also exhibited 7 items of documents, marked as Exbt.-A to G, namely :
"Exbt. A - Pay register copy (2 sheets), Exbt. B - Electric bills cons. No. C/17/BS/1313, Exbt. C - Electric consumer pass book, Exbt. D - Advocate''s notice dated 27.11.06, Exbt. E - Reply of Advocate''s notice. Exbt. F(series) - certified copy of UD case No. 28/06 U/s. 174 Cr.P.C., & Exbt. G - power of attorney dated 02.06.07."
Considering the pleadings and evidence on record, the learned trial Judge decided Issue Nos. 1, 2, 3 and 4 in affirmative, but Issue No. 5 in negative and consequently Issue Nos. 6 and 7 in negative and dismissed the suit.
Aggrieved, the plaintiff preferred Money Appeal No. 01 of 2008 and by the impugned judgment dated 27.06.2008, the learned Additional District Judge allowed the appeal and decreed the suit awarding compensation of Rs. 1,25,000/- with 7% interest w.e.f. 02.04.2007.
Aggrieved, the defendants preferred the present second appeal.
Learned counsel, Mr. C.S. Sinha for the defendants-appellants has submitted that the plaintiff has utterly failed to prove any negligence on the part of the defendants and no actionable wrong was imputable to the defendants which was rightly decided by the trial Court. The appellate Court without discussing the pleadings and evidence on record suddenly jumped to a conclusion of negligence on the part of the defendants and awarded compensation to the plaintiff. It is also submitted by Mr. Sinha that the son of the plaintiff died due to the accident and for such accidental death an action by instituting a money suit for recovery of a certain definite amount is not maintainable and the entire suit of the plaintiff is misconceived and the appellate Court arrived at a wrong finding. It is also contended by Mr. Sinha, learned counsel that facility of electric connection was provided to the quarters of the plaintiff''s husband. But there is nothing to show that the responsibility of maintenance, repair etc. were with the defendants and that the defendants were intimated by the plaintiff or her husband about any loose connection. Under such circumstances, the appellate decree cannot stand and is liable to be interfered and set aside.
Learned counsel, Mr. D.K. Biswas for the plaintiff-respondent has made a very fair submission contending that the case ought to have been filed under the Fatal Accidents Act claiming compensation for the damage due to death of plaintiff''s son. A money suit or a civil suit simpliciter should not have been filed claiming compensation for an accidental death. It is a Muffasil drafting. Though it is filed as money suit, but actually it should be treated as a suit for damage claiming compensation for the death of son of the plaintiff due to negligence contributed by the defendants. The facts and circumstances of the case clearly make out tortious liability on the part of the defendants and hence, the appellate Court rightly decreed the suit granting compensation which need not be interfered by this Court for fair ends of justice.
It is an admitted position that husband of the plaintiff has been working as a Mechanics under the defendants and he was provided a quarters in the tea garden premises of the defendants. There was a transformer set up by the Electricity Department for supply of electricity to the tea garden and it was a commercial/industrial connection provided to the tea estate/tea garden of the defendants. There was no domestic connection at all within the premises of the tea garden. It is also an admitted position that the defendants as a matter of grace extended the facility of using electricity by the staff residing in the quarters of the tea garden. It is also an admitted position that plaintiff''s husband was not required to pay charges for consumption of electricity in the quarters.
The disputed facts are that the plaintiff claimed that the maintenance, repair etc. of the electric line were the responsibility of the defendants and because of the negligence of the defendants the accident had occurred. It is also contended by the plaintiff that the electric connection extended to their quarters was lying loose and her husband repeatedly informed the defendants for repairing of the loose connection, but the defendants did not pay any heed to the request and that has resulted the accident on 09.06.2006.
The defendants contended that as a matter of grace the occupants of the quarters in the tea garden premises were allowed to consume electricity at their own expenses for maintenance, repair etc. and other recurring expenses such as electric bulbs, tubes for use. There was no trained maintenance staff under the defendants to look after the electric connections extended in the tea estate. One sub-staff used to look after the electric connection in the tea estate and in case of necessity outside experts used to take up the works. It is also contended by the defendants that neither the plaintiff nor her husband gave any information to the defendants regarding any loose connection in their quarters. The accident was because of heavy storm on that day and somehow the room got electrified and accidentally the minor son of the plaintiff got electrocuted which was an act of God and the defendants were not responsible in any manner.
Burden lies on the plaintiff to prove her case. The plaintiff was supposed to prove that the defendants were responsible for maintenance, repair etc. of the electric connection extended to their quarters. No documentary evidence to that effect placed on record by the plaintiff. Except the plaintiff and her husband no other witness was also examined in support of their contention, though it is brought on record that there were other staff living in other quarters of the tea estate. The plaintiff, therefore, failed to prove that the burden of maintenance, repair etc. of the electric connection was on the defendants.
In the plaint, the plaintiff simply stated that her husband orally intimated the defendants for repair of the electric connection, but the defendants did not do so. Nothing is mentioned in the plaint as to what was to be repaired and when the intimation was given to the defendants for any such repair works. Admittedly, the husband of the plaintiff sent a Advocate''s notice to the defendants on 27.11.2006 which the defendants replied on 08.01.2007. In that Advocate''s notice, admittedly, the plaintiff''s husband did not mention any fact that he requested the defendants for repair of electric line because of any loose connection or otherwise. Such an important fact was not stated in the notice. If any such request was made and it was not attended by the defendants, plaintiff''s husband would mention it in the notice itself. More interesting is that the plaintiff in her cross-examination clearly made a statement that they could detect loose electric connection in their quarters 3/4 months prior to the incident and that they have not informed the defendants in writing about the fact of loose connection. Surprisingly, the husband of the plaintiff stated that they detected the loose electric connection in their quarters 10/12 days before the date of incident and that he did not inform the defendant-Manager in writing about the loose electric connection in their quarters. From the pleadings and the evidence an inference may be drawn that neither the plaintiff nor her husband ever informed the defendants about any loose electric connection or for any repair of the electric connection in their quarters before the date of accident.
In the plaint, the plaintiff stated that there was slight rain before the accident. In their evidence the plaintiff and her husband stated that there was no such storm, but there was rain before the accident. It is an admitted position that after the death of Sukanta Sengupta, UD Case No. 28/2006 u/s 174 of Cr.P.C. was registered and after investigation the police submitted a final report. The records of the UD case has been proved by the plaintiff as Exbt.-1 series and the defendants as Exbt.-F series. That report shows that there was heavy storm before the accident and it might happen that due to storm accidentally there was loose electric connection and as a result the accident had occurred. If it was so, the defendants cannot be held responsible for any negligence on their part.
"Negligence" is the breach of a duty caused by the omission to do something which a reasonable man guided by this consideration which ordinarily regulate the contact of human affairs would do or doing something which a prudent and reasonable man would not do.
It is an admitted position that electric line from the industrial/commercial electric connection of the tea garden was extended to the quarters of the plaintiff''s husband. There is nothing placed on record by the plaintiff to show that the electric line so extended was supposed to be maintained or repaired by the defendants in a regular form or at some interval. It is clear from the pleadings and evidence on record that neither the plaintiff nor her husband gave any intimation to the defendants regarding any loose connection or defect in the electric connection before the accident. Under such circumstances, holding the defendants as negligent to haul them up for tortious liability to pay compensation is not at all justified. The appellate Court without discussing the evidence and legal position at all just jumped to a conclusion that the defendants were responsible for making payment of compensation and such finding is not at all tenable in the eye of law.
The plaintiff set up her plaint in the form of a money suit. It ought to have been a suit for compensation for the damage because of a civil wrong. The ''Rule of law'' requires that the wrongs should not remain unredressed. All the individuals or persons committing wrongs should be liable in an action for damages for breach of a civil law. The plaintiff was supposed to bring an action u/s 1A of the Fatal Accidents Act, 1855. Section 1A of the Fatal Accidents Act reads as follows:-
"1A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong. - Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony or other crime.
Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased;
and in every such action, the court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the court by its judgment or decree shall direct."
Ultimately, in the present case, the plaintiff has chosen to approach the civil Court for compensation in the form of a money suit. A money suit is generally entertained on liquidated damage. An action for tortious liability against a tortfeasor is maintained for un-liquidated damages. The dictionary meaning of ''damage'' is harm, injury, loss; the value of what is lost; cost, the financial reparation due for loss or injury sustained by one person through the fault or negligence of another. ''Compensation'' means anything given to make things equivalent, a thing given or to make amends for loss, recompense, remuneration or pay; it need not, therefore, necessarily be in terms of money. Compensation is an act which a Court orders to be done, or money which a Court orders to be paid, by a person whose acts or omissions have caused loss or injury to another in order that thereby the person demnified may receive equal value for his loss.
Damages constitute the sum of money, claimed or adjudged to be paid in compensation for loss or injury sustained.
If any civil wrong or negligence is found to be attributable to the defendants, an action for such civil wrong, no doubt, would be maintainable, but that must be in the form of a suit for tortious liability for any un-liquidated damages and not in the form of a money suit in the ordinary Civil Court for claim of a liquidated amount. I am quite surprised to see the judgment of the appellate Court that it has jumped to a conclusion of granting compensation of Rs. 1,25,000/-, but assigned no reason at all as to how he ascertained the amount in a money suit for compensation without any evidence therefor. The appellate Court, therefore, as it appears, totally misconstrued the suit and arrived at a wrong finding. In ordinary course, a money suit for liquidated damage for an accidental death is simply not entertainable while there is specific provision under the Fatal Accidents Act for claiming compensation for the death due to fatal accident.
The Judgment and decree dated 27.06.2008 passed by the learned Additional District Judge, Dharmanagar, North Tripura is not according to law and hence, it is liable to be interfered and set aside. Accordingly, I do so.
The second appeal is accordingly allowed. The Judgment and decree dated 27.06.2008 passed by the learned Additional District Judge, Dharmanagar, North Tripura in Money Appeal No. 01 of 2008 is set aside. Parties to bear their own costs.
The money deposited by the appellants may be returned to them after expiry of the statutory period.
Send back the lower court records along with a copy of this judgment.