This revision petition is directed against the judgment dated 17-6-1996 passed by District Judge, Khushab whereby while dismissing the appeal of the petitioner, the judgment of the learned Civil Judge dated 26-4-1994, decreeing the suit for recovery of Rs.24,000 field by the respondent No. l against the petitioner, by way of damages, was affirmed.
2. The unfortunate incident occurred on 19-12-1988 when respondent No.1 who was driving his tonga reached Fawara Chowk in Khushab Town and the mare pulling the tonga struck live electric wire lying on the ground and died due to the electric shock on the spot. The post-mortem report showed the cause of the death of the mare as heart failure due to electric shock. A report was lodged by respondent No.1 at the police station on 22-12-1988 about this incident, whereafter the present suit was filed.
The break-up of the claim of the respondent No. l was as under:---
(1) Value of the mare. Rs.9,000
(2) Mental tension/tortureRs.10,000
(3) Unemployment etc.Rs.5,000
3. In respect to notice, the petitioner filed a written statement wherein as regards the incident plea was taken that " Bawajjan la ilmi durust na hay.", As regards para. 2 of the plaint wherein the price of the mare was shown as Rs.9,000 and assertion that due to death of mare, respondent-plaintiff had been deprived of his only source of livelihood. The reply given was "Yeh kay ilm na hay.", Besides, it was pleaded that Civil Court had no jurisdiction and the suit was bad for non-joinder of necessary party i.e. Municipal Committee, Khushab as the accident took place due to absence of street light on the road, which was the responsibility of Municipal Committee.
4. The learned Civil Judge after recording evidence decreed the suit and the judgment, as mentioned above, was maintained by the learned District Judge.
5. While assailing the judgments of both the learned Courts below, learned counsel for, the petitioner has reiterated the preliminary objection regarding lack of jurisdiction of Civil Court to try the suit. According to him, the only remedy available to respondent No. l under the law was by having recourse to appropriate proceedings before the Electric Inspector under section 33 of the Electricity Act, 1910. In this connection, he has also referred to section 54-C of the Act containing bar of jurisdiction.
6. Both the above provisions of law read as under:--- "33. Notice of accidents and inquiries ---(1) If any accident occurs in connection with the generation, transmission, supply or use of energy in, or in connection with, any part of the electric supply-lines or other works of any person, and the accident results or is likely to have resulted in loss of life or personal injury such person shall give notice of the occurrence, and of any loss of life or personal injury actually occasioned by the accident, in such form and within such time and to such authorities as the Provincial Government may, by general or special order, direct.
(2) The Provincial Government may, if it thinks fit, require any Electric Inspector, or any other competent person appointed by it in this behalf to inquire and report--
(a) as to the cause of any accident affecting the safety of the public, which may have been occasioned by, or in connection with the generation, transmission, supply or use of energy, or
(b) as to the manner in and extent to, which the provisions of this Act or of any licence or rules thereunder, so far as those provisions affect the safety of any person, have been complied with.
54-C, Bar of jurisdiction. (1) Where a licensee gives a notice referred to in subsection (1) of section 24 or discontinues supply of energy, to a premises under the provisions of this Act, no Court shall make an order prohibiting the licensee from discontinuing supply of energy to the premises, or requiring him to restore supply of energy to such premises, and any such order made before the commencement of the Electricity (Amendment) Ordinance, 1979, shall cease to have effect: Provided that nothing contained herein shall apply to a case in which the plaintiff applicant or appellant, within a period of thirty days of the aforesaid date or at the time of filing the suit, application or appeal as the case may be, deposits with the Court the amount assessed against him by the licensee and all further charges of the licensee as and when they become due; and in the event of his failing to do so, any order prohibiting the licensee from discontinuing the supply of energy to the premises or requiring him to restore the supply of energy to the premises, if already made, shall cease to have effect.
(2) Where any amount has been deposited under subsection (1), the Court shall direct it to be deposited in a scheduled bank in the name of the licensee on an undertaking being furnished by the licensee to the effect that in case the suit or appeal is decided against him, he shall repay the said amount to the plaintiff or appellant, as the case may be, with such reasonable return as the Court may determine."
7. A perusal of these provisions shows that the suit for damages, as initiated by respondent No. l had been properly presented before Civil Court. Section 54-C is clearly not attracted in that it pertains to a situation where the licensee i.e. WAPDA gives a notice of disconnection to a consumer.
Section 33 though dealing with an accident is also equally inapplicable to the situation in hand. It provides that in case of an accident in connection with generation transmission, supply or use of energy an accident takes places resulting in the loss of life or personal injury, a notice of the same shall be given by the person so affected to the Provincial Government which may require an Electricity Inspector to inquire and report about the cause of the accident.
This section does not provide for any mechanism for grant of compensation by way of damages to the affected person even in the event of a positive report by the Electric Inspector in his favour.
Respondent No. 1 thus hat: no other alternative available in law but to invoke the plenary jurisdiction of Civil Court.
8. Coming to the merits of the case, I have perused the record with the assistance of learned counsel so as to be satisfied that misreading/non-reading of material evidence had not taken place at both the levels i.e. Civil Judge and the District. Judge, which could justify interference in revisional jurisdiction. No such flaw could be pointed out by the learned counsel.
9. It is not denied that the duty of proper maintenance of the electric wires rests exclusively with the petitioner. It is established on the record that this duty was not performed with the result that the incident took place. Muhammad Yaqoob, Lineman D. W.1 who was deputed for the maintenance of wire was not on duty. The perusal of his statement shows that despite the fact that earlier there was rain and thunder storm, which probably resulted in the rupture of the wire, the same remained lying on the road unattended and it is on receipt of information about "incident" that the electric current was switched off. It was a case of clear negligence on the part of the concerned employee/employees of the petitioner for which it is to be held responsible.
10. It is well-settled that where a mishap is shown to have been caused due to the negligence of the defendant or his employee in an action for damages anti the accident occurred is such that in the ordinary course of things it would not have so occurred if the party charged with a duty in this regard had used proper care, it would afford reasonable evidence that the incident/mishap was due to lack of care. I have so held in Hassan Nawaz Khan v. Municipal Corporation. Multan 1994 M LD 1495.
11. It is not enough in a suit for damages for the plaintiff to establish that the defendant had been careless in breach of duty to take care. Action in negligence must fail where the duty is not established. Where the relevant Act creates a duty, it simultaneously also results in an enforcible right. It is well settled that the right of action for damages may be conferred on any one who can bring himself within the benefit of relevant Act including one, who could not be otherwise specified than as a person using the highway or road.
Respondent No. l while plying tonga justifiably felt satisfied, that while doing so even at night time, he would not be confronted with unforceable situation of getting his mare strike against live electric wire. Respondent No. 1, had fully proved his claim- and the petitioner should not grudge to meet the same. In my opinion, the damages had been rightly awarded to respondent No.1 and the quantum of the damages is also fully justified. The revision petition is dismissed.