INDERMEET KAUR, J. (Oral)
CM No. 416/2002 (exemption)
Allowed subject to just exceptions.
RSA No. 155/2002
1. This appeal is directed against the judgment and decree dated 20.3.2002 which had endorsed the finding of the trial judge dated 12.1.1999 whereby the suit of the plaintiff Ram Kishan had been dismissed.
2. The plaintiff had filed a suit in his capacity as an indigent person which was for recovery of Rs. 95,000/- on account of compensation for the death of his minor son Rajbir which as per the averments in the plaint was due to the negligent act of the defendants. It was contended that a live electric wire was lying on the road near the Bhatta of Boharu in Zaffarpur and in spite of requests the same was not repaired as a result of which the live wire caught the son of the plaintiff resulting in his death on the spot.
3. The written statement had contested the suit. It was not denied that the minor son of the plaintiff had died because of electrocution. It was admitted that the conductor was still alive and needed immediate disconnection from the supply source; the break-down staff had been directed to take immediate action but they had been gone to Bharthal to attend to another complaint; the Zonal staff could not be traced for disconnection of the supply; the feeder from Najafgarh was switched off on telephonic instructions. The defendant had however alleged that the investigation of the conductor had revealed that an attempt had been made for stealing of the conductor by the deceased or by someone else. The earlier complaints made by the public on 31.5.1990, 16.9.1990 and 29.9.1990 regarding breakage of the conductor of the tube-well had been attended to well in time. No specific complaint regarding subject site was available.
4. The trial judge had framed the following four issues:
1. Whether the plaintiff is entitled for a decree of recovery of Rs. 95,000/- as damages on account of death of Rajbir son of Ram Kishan as claimed in the plaint? OPP
2. Whether the suit is barred by the provisions of Section 478 of DMC Act? OPD
3. Whether the suit is barred by limitation? OPD
4. Relief.
5. The plaintiff did not lead evidence in spite of several opportunities having been granted to him. The plaintiff evidence was thereafter closed. The suit of the plaintiff was dismissed.
6. In appeal the judgment of the trial judge was endorsed. The first appellate Court had dismissed the appeal primarily on the ground of limitation as the appeal had been filed on 05.2.2002 i.e after the lapse of more than two years; finding no reasonable ground for condoning the delay in filing the appeal, the appeal stood dismissed. Result was that the judgment and decree of the trial judge stood affirmed.
7. This is a second appeal. It was admitted but the record shows that substantial question of law has not yet been framed. On 26.11.2010 the respondent/department had sought time to take instructions to work out the possibility of a settlement but on a subsequent hearing it had been reported that it was not possible to work out a settlement.
8. Counsel for the appellant has urged that although the plaintiff/appellant had not led any evidence before the trial judge on the issues which have been framed; yet the admission made by the department in their written statement entitles the appellant to relief; the admission being that the department had admitted that the minor son of the plaintiff had in fact died because of electrocution which was clearly because of the negligence of the department. Learned counsel for the appellant has urged no other ground to support his appeal.
9. This is the second appellate Court; it is not a third fact finding court. Record shows that enough opportunities had been granted to the plaintiff to lead evidence before the trial judge but he chose not to do so. His suit was accordingly dismissed. The appeal was also filed belatedly i.e after lapse of more than two years. The appellant was not prosecuting his case diligently. He had to suffer the necessary consequences. The alleged admissions made by the department in the written statement which have been discussed supra do not entitle the plaintiff to a decree of Rs. 95,000/-. It was for the plaintiff to have come into witness box and show that his son had died because of the negligent act of the department; contention of the department was that the conductor was alive and although child had died because of electrocution but this was at the time when an attempt was being made by him to steal electricity; further the timings of the death of the child were also not brought on record; the department had also contended that no complaint had been received by them qua this live wire; the other complaints on the earlier three dates had been met with. In this back ground the plaintiff/appellant is not entitled to any relief.
10. No substantial question of law has arisen. The appeal is without any merit. It is dismissed.
INDERMEET KAUR, J.
JANUARY 03, 2011nandan