(Appeal under Section 100 of CPC against the decree dated 30-7-1996 in AS No.18 of 1994 on the file of the Court of the District Judge, Adilabad preferred against the decree dated 5-11-1993 in OS.No.25 of 1991 on the file of the court of the Subordinate Judge, Nirmal.)

1. Dandarapu Yerru Bai, the unsuccessful plaintiff in both the Courts below had preferred the present Second Appeal. The substantial questions of law which arise in the present Second Appeal are as hereunder:

a) Whether the Courts below erred in putting the onus on the plaintiff to prove the circumstances of the death in lieu of the legal principle Res ipsa Loqiutur-the thing speaks for itself, which clearly applies in this case.

b) Whether the Courts below erred in legally in not taking note of the doctrine of absolute liability propounded by the Hon’ble Supreme Court of India in M.C. Mehta Vs. The Union of India reported in (1987) 1 S.C.C. 395 which was once again reiterated in Charanlal Sahu Vs. Union of India (1990) 1 S.C.C. 613=AIR 1990 S.C. 1480 (at para 91 and 92)

c) Whether the Lower Appellate Court erred legally in dismissing the appeal on grounds which were not set up in defence by the respondents Corporation.

2. Sri Venkat Reddy, the learned counsel representing the appellant would contend that this is a matter where a boy had lost the life due to electrocution and approach of the Courts below in denying the compensation to the appellant on the ground of contributory negligence and also on the ground that burden had not been discharged by the appellant-plaintiff definitely cannot be sustained. The learned counsel also had taken this Court through the evidence available on record and also placed reliance on M.P. Electricity Board and Sail Kumar 2002 (2) SCC 162 [LQ/SC/2002/32] .

3. Per contra, the learned counsel representing respondents would contend that in as much as concurrent finding has been recorded and the finding relating to negligence being a question of fact, such concurrent finding recorded by both Courts need not be disturbed in Second Appeal and hence, the Second Appeal deserves to be dismissed.

4. Heard both the counsel.

5. The parties would be referred to as arrayed in the suit O.S.No.25 of 1991 on the file of the Court of Subordinate Judge, Nirmal.

6. Appellant-plaintiff filed the suit O.S.No.25 of 1991 on the file of Subordinate Judge, Nirmal as against the APSEB and another claiming compensation of Rs.90,000/- in view of the death of Lachanna, aged about 12 years on 12-1-1990 who is no other than the son of the plaintiff. The Court of the first instance, on appreciation of evidence of PW.1 and PW-2 and DW.1 and also documents Exs.A.1 to A.4, after answering the issues ultimately came to the conclusion that the plaintiff is not entitled to the relief prayed for and dismissed the suit. Aggrieved by the same, the appellant as plaintiff carried the mater by way of appeal in A.S.No.18 of 1994 on the file of District Judge, Adilabad, which also ended in dismissal confirming the judgment of Court of first instance. Hence, the present Second Appeal.

7. The main ground on which the relief was negatived by both the Courts below is that the deceased died due to his own contributory negligence and as much as the plaintiff was not able to establish the plea of negligence on the part of the respondents-Corporation and had not discharged the burden cast upon her.

8. The suit was filed as an indigent person.

9. It was pleaded in the plaint as hereunder:

“Lachanna who was aged about 12 years was the son of the plaintiff, that he died on 12-1-1990 at about 8.20 p.m. at Puspoor (v) that on 12.1.90 the deceased Lachanna was coming to his house along with his goats and while proceeding, Lachanna came into contact with a live electrical pole, that the high voltage electrical wire fell on the iron hood fixed on the top of the electrical pole and high electric voltage was passing through the electric pole to the earth that Lachanna died on the spot due to electrocution, that the electric line is laid by D-1 and it is under the supervision and control of D-2 that the incident took place due to poor maintenance by the defendants and they are grossly negligent in maintaining the regulation of high and low voltage of electric lines due to which the deceased died and therefore the defendants are liable to pay compensation to the plaintiff. It is further averred that the deceased used to earn Rs.500/- per month by grazing the goats and sheep and was earning Rs.100/- per month by selling milk, that the total income of the deceased Lachanna was Rs.6,000/- per year. That the deceased would have survived for another 45 years, that the plaintiff is entitled to compensation of Rs.75,000/- and also special damage of Rs.15,000/- against the defendants for causing mental agony, suffering and for the love and affection of her son, that the defendants are liable to pay this amount, that the non-provision of wire mesh itself is a negligent act and similarly there is no inbuilt mechanism so as to trip the power automatically whenever the line is snapped, that on that day, the weather was peaceful and that no helper of department was at Puspoor (V) and all these factors show the negligence of the defendants and therefore, the defendants are liable to pay compensation to the plaintiff.”

10. Respondents herein defendants had pleaded in the written statement as hereunder:

“That the deceased Lachanna who was a boy aged about 12 years was himself depending on his parents, that the parents of the deceased are hale and healthy and they are earning their livelihood, that the deceased was not an earning member of the family, that on the date of the incident one goat came into contact with the electric pole and electrocuted and died on the spot and that due to heavy wind, the pin binding of 11 K.V. line broke and the conductor cell fallen on the top fitting that the top of the pole burnt and supply came to the pole, that the O.C.B. at 33/11 K.V. at Bhainsa did not trip, that thereafter the deceased while coming touched the goat negligently and childishy and got electrocuted and died on the spot, that the incident is not due to any negligence or improper maintenance by the defendants, that the deceased himself could have taken care and had he not touched the goat, he could have avoided his death, that the allegations with regard to the income of the deceased are false, that the defendants are not liable to pay any compensation since the death is not due to any negligence, that the tripping mechanism did not work since it was a cement pole, that on the date of the incident there was heavy wind and gale, that the claim of the plaintiff with regard to the compensation and special damage is excessive, that the plaintiff is not entitled to claim any compensation and that therefore, the suit is liable to be dismissed.”

11. On the basis of the above pleadings, the following issues were framed.

i. Whether the plaintiff is entitled to compensation If so, what is the quantum

ii. To what relief

12. In support of the respective contentions, the plaintiff examined herself as PW.1 ad also examined PW.2 and produced Exs.A.1 to A.4. On behalf of the defendants, DW.1 was examined and no documents were produced.

13. The plaintiff contended that one of her sons aged about 14 years who was named Lachanna was providing financial assistance to her family by grazing goats and also selling milk. It is her case that on the same job the deceased left her house on 12-1-1990 and in the evening hours, he died due to electrocution having come into contact with a live pole. It is also the case that one of the goats being grazed by the deceased also died. The plaintiff claims compensation of Rs.75,000/- and also special damages of Rs.15,000/-.

14. It is no doubt true that P.W.1 and P.W.2 are not eye witnesses. No doubt there is an admission of PW.1 that one sheep died due to electrocution. The evidence of PW.2 also is on similar lines. DW.1 is the Line Inspector of APSEB at the relevant point of time. Ex.A.1 is the office copy of the legal notice dated 27-2-1990. Ex.A-2 is the Postal acknowledgement. Exs.A.3 and A.4 are true copies, of FIR and Inquest Panchanama. Though there is no direct evidence relating to the incident, the fact that the boy of the plaintiff died due to electrocution is not in serious controversy. The only finding which had been recorded is that this boy had gone into the field of another where the live wire was falling and there was a dead sheep lying and by touching the same, the boy lost his life, which would contribute to the negligence.

15. In the light of the admitted fact that due to the live wire falling and due to electrocution, the son of the plaintiff had lost the life is not in serious dispute. No doubt, serious question in controversy is, relating to the fact of negligence. On the ground of contributory negligence the relief had been negatived. In the light of substantial questions of law which had been referred to supra, now this Court may have to consider whether the concurrent findings recorded by both the Courts below be sustained or liable to be interfered with in the present Second Appeal.

16. It is no doubt true that in view of the limitations imposed by Section 100 CPC normally such concurrent findings which are factual findings need no disturbance at the hands of this Court. But, however, this is a case where the facts are not in serious controversy and it is a claim of compensation by the unfortunate mother who had lost the young boy. The relief had been negatived on the ground of contributory negligence. Whether this finding recorded by both the courts below can be sustained is the question to be considered in the present second appeal.

17. Reliance was placed on Madhya Pradesh Electricity Board Vs. Shail Kumari and others (2002) 2 SCC 162 [LQ/SC/2002/32] ) wherein the Apex Court at paras 8 and 13 observed as hereunder:

“8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as “strict liability”. It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.

13. In the present case, the Board made an endeavour to rely on the exception to the rule of strict liability (Relands V. Fletcher) being “an act of stranger”. The said exception is not available to the Board as the act attributed to the third respondent should reasonably have been anticipated or at any rate its consequences should have been prevented by the appellant-Bard. In Northwestern Utilities Ltd. V. London Guarantee and Accident Co. Ltd., the Privy Council repelled the contention of the defendant based on the aforecited exception. In that case a hotel belonging to the plaintiffs was destroyed in a fire caused by the escape and ignition of natural gas. The gas had percolated into the hotel basement from a fractured welded joint in an intermediate pressure main situated below the street level and belonging to the defendants, which was a public utility company. The fracture was caused during the construction involving underground work by a third party. The Privy Council held that the risk involved in the operation undertaken by the defendant was so great that a high-degree care was expected of him since the defendant ought to have appreciated the possibility of such a leakage.”

18. In Kerala State Electricity Board Vs. kamalakshy Amma (AIR 1987, Kerala, 253), it was held at Para 9 as hereunder:

“When the plaintiffs succeeded in proving that a pedestrian (in this case, the deceased) was electrocuted from a live wire hanging down from an electric post, there is a presumption of fact that there was lack of proper care on the part of those in the management or control of the power supply system at the particular place. The maxim res ipsa loquitur is a principle which aids the court in deciding as to the stage at which the onus shifts from one side to the other. S.114 of the Evidence Act gives a wide discretion to the courts to draw presumptions of fact based on different situations and circumstances. This is in a way, a recognition of the principle embodied in the maxim re ipsa loquitur. The leading case on the subject in Scott. V. London and Sk. Kantherine Docks Co. (1865) 3 H & C 596. Erle. C.J. in the said case has stated that, “where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, It affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.” Evershad M.R. in Moore V. R. Fox & Sons (1956) 1 QB 596 affirmed and followed the principle laid down in Scott’s case. Winfield in his famous treatise on Tort, after referring to the decisions which founded the above doctrine, has mentioned the two requirements to attract the above principle. They are (i) that the “thing” causing the damage be under the control of the defendant or his servants, and (ii) that the accident must be such as would not in the ordinary course of things have happened without negligence. This principle which was often found to be helping guide in the evaluation of evidence in English decisions has been recognized in India also. The Supreme Court in Syed Akbar V. State of Karnataka AIR 1979 SC 1848 [LQ/SC/1979/300] has discussed the applicability of the maxim res ipsa loquitur in civil as also criminal cases, in the light of the provisions of the Evidence Act. Sarkaria, J in the said decision has observed as followed:

“The rule of res ipsa loquitur in reality belongs to the law of torts. Where negligence is in issue, the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. The event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. Further the event which caused the accident must be within the defendant’s control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred.”

19. In Asa Ram and Another Vs. M.C.D. and others (AIR 1995 Delhi 164), it was observed at paras 9, 10 and 19 as hereunder:

On the other hand defendant adduced the evidence of S.K.L. Kapoor. Appearing as D.W.1 he stated that after the accident of 4th August, 1985 he reached the site in question and submitted his report. When subjected to cross-examination, he had to admit that all files of his office were paginated and each page was numbered. But only the document dated 4-8-85 placed on file was not paginated nor numbered. Non-pagenating, he tried to explain it away by saying that this document was urgent, therefore, he took it directly to the residence of the Superintending Engineer. Hence, could not be pageneated on the file, He however, could not offer any explanation as to why these two documents were not pageneated even thereafter. The said document Ex.DW.1/1. To a court question he admitted that correctness were always initialed, but the corrections made in this case in the document were not initialed by any official of the defendants. In order to clarify his position he stated that document dated 4-8-85 was a copy. The original of which was with the Superintending Engineer. According to him his report was based on personal observation and what was told to him at the site. Regarding the report of Electric Inspector, Delhi Administration, he stated that the inspector visited the site on 5-8-85. He, however, admitted that in his report he has not mentioned plaintiff’s house number. According to him this was only a preliminary report. The actual accident report did give house number. But the said original accident report was not produced. In fact perusal of the report shows that he never visited the site. Nor he mentioned the name of the neighbours from whom he gathered the alleged information. According to him photographs were taken at the site but those have not been produced nor filed the same on the court record. Mr. A.K. Gupta, DW.2, was working as Inspector in July, 1985 at Sub-Zone Ujwa District Najafgarh. He admitted that a complaint was received from the plaintiff in July, 1985, but could not produce the original complaint which according to him must have been destroyed being more than one year old. He admitted, when subjected to cross-examination, that complaints regarding naked wire recorded in a separate register. He could not deny the suggestion that complaint regarding hanging of loose wire might have been entered in that register meant for such complaints. He did not produce that complaint register for the month of July-August, 1985. So far as Mr. T.R. Sharma, DW-3, is concerned, when subjected to cross-examination, he could not say whether in the year 1985 electricity was supplied to the plaintiffs from Pole No.38 or 36. He even could not say whether the electricity in the year 1985 was supplied to the house of the plaintiff at all or not. He was absolutely ignorant about the supply position or regarding the incident in question.

From the oral and documentary evidence discussed above one thing clearly emerges and that is that Karan Singh died due to coming in contact with the electric current. The point for consideration is whether there was any naked wire handing on the staircase of plaintiff’s house or whether deceased fiddled with the electric wire illegally and unauthorisedly. The defence set up by the defendants in their written statement was that the deceased fiddled with the electric main. But this defence was not put to plaintiff when he appeared at PW-1. Only a half hearted suggestion was given about fiddling with the wire which of course was denied. PW-1 and PW-2 were not confronted with any material which could prove that deceased fiddled with electric mains in order to get illegal electricity. Even the fact that the transformer was defective and there was no electricity in the pole has not been established nor any suggestion in this regard was put to PW-1 and PW-3 Rather from the evidence it clearly emerges that the deceased came in contact with the loose wire hanging on his staircase which caused his death. Defendants have not been able to prove that there was no naked and uninsulated wire handing on the house of the plaintiff. On the contrary photograph Ex.PW-1/9 taken on the date of the accident show a loose wire separated from the main and hanging on the staircase of the house of the plaintiffs. According to plaintiffs’ witnesses current was passing through this loose wire. Defendants have not been able to controvert the documentary and oral evidence led by plaintiff. PW.1/2 testimony that he lodged complaint on 6-7-85 regarding loose naked wire handing and the current passing from the same crossing over his house, has remained unrebutted on the record. In fact defendant’s own witness. DW-3 admitted that DESU maintained separate complaint register regarding the complaint of a naked hanging wire. But neither the said register was produced nor copy of the plaintiff’s complaint was produced. For the non-production of these material documents an adverse inference can be drawn against the defendants. Had these material documents namely complaint register of hanging wire and the original complaint lodged by plaintiffs, been produced it would have gone against the defendants and would have falsified defendant’s defence. Statement of PW-1 that he lodged complaint on 6th July, 1985 regarding a loose wire hanging on his staircase and current passing through it thus stand fully proved. Lodging of the report on 6th July, 1985 vide Entry No.490687/490688 has not been denied by DW-2, rather Sh.A.K. Gupta admitted in no uncertain words that he did receive the complaint in the month of July, 1985 from the plaintiff. He also admitted that a separate complaint register was maintained in this regard. Hence, it does not lie in the mouth of the defendant now to contend that a loose wire was not hanging or that Karan Singh died because he as fiddling with electrical main. Heavy reliance has been placed by the counsel for defendant on Ex.DW-1/1 i.e., submission of detail by the Executive Engineer D-9 regarding the incident. Reading of Ex.DW-1/1 shows that this report was based on the information fed by Sh. Guru Adhar break down Superintendent of the DESU. He on receiving the information of Karan Singh’s death switched off the supply and went to the site to enquire. The said Guru Adhar has not been examined nor his report has been proved on record. Perusal of Ex.DW-1/1 shows that it is in fact Guru Adhar who gathered the information about the death of Karan Singh. Since, neither Guru Adhar has been examined nor his report in original has been produced, therefore, no reliance can be placed on Ex.DW-1/1. It is not known as to from whom Sh. Guru Adhar enquired that Karan Singh with the help of a bamboo stick was trying to restore the electricity supply. In the absence of such details and more so Ex.DW-1/1 being based on hear say the same cannot be relied upon. Similarly Ex.DW-1/2 is an incident report given by Executive Engineer-D again based on the alleged information given by Guru Adhar, Break down Superintendent. Hence, it cannot be relied upon. Any information which is based on an information given by someone else has no value unless the informer who gathered the information is produced and opposite party given an opportunity to cross-examine him. Ex.DW-1/1 and DW-1/2 show that copy of the same was addressed to Electrical Inspector, Delhi Administration for information. It has all along been the case of the plaintiffs that Electrical Inspector, after inspection found wire hanging and current passing through it. The said report has not been placed on record. A very feeble defence was given for the non-production of the said report. According to defendant, the Electrical Inspector being not an employee of the DESU, hence, his report was irrelevant. Secondly the said Electrical Inspector inspected the site on 5th August, 1985 but submitted his report in November, 1985. In these circumstances counsel contented that such a report of the electrical inspector is not worth reliance. It was only a waste paper. The said Electrical Inspector being not an employee of DESU hence his report has no value. To my mind, this submission has no merits. The Electrical Inspector being an independent Government official functionary, his report carried authenticity and, to my mind, more valuable piece of evidence than the oral testimony of defendants. His report would have thrown light on the actual position at site. In fact the whole controversy would have been solved. The contention of the defendants that the Electrical Inspector, Delhi Administration, has not the authority or that he was not competent to inspect and report is belied from defendants own conduct. If he had no authority when why the copy of exhibit DW-1/1 and DW-1/2 were sent to him. The Electrical Inspector being a person in authority, his report it can be said that defendants are concealing true facts. To my mind, the non-production of that report is deliberate. Had that report been produced, it would have gone against the defendants. That is the reason it has not been produced. Contention of Mr. Jayant Nath exhibit DW-2/1 was the only complaint received from plaintiffs in July, 1985 and the reading of the same would sow that plaintiff complained only about the non-supply of electricity and not of hanging wire. This argument has no force because as per DW-3 there were three kinds of complaint registers maintained by DESU namely (i) Meter Replacement Register, (ii) Service Line Replacement Register, and (iii) Complaint Register regarding naked wire known as service line register. The complaints regarding naked wire were registered in the Service Line Register. The said register was not produced nor Ex.DW-2/1 pertained to the said Line Register. Ex.DW.2/1 is only a copy of another register. Hence, the entries in Ex.DW-2/1 cannot be relied upon. The remarks made in Ex.DW-2/1 cannot be relied upon in the absence of original complaint lodged by plaintiff and the Service Line Register. The person who made these remarks has also not been produced to explain as to from where and on what basis he recorded the remarks in that register, copy of which is Ex.DW-2/1. Hence, plaintiff’s claim and version cannot be nullified because of these remarks on Ex.DW-2/1. Even otherwise complaint regarding naked wire were registered in Service Line register which Mr. Gupta DW-2 did not produce. For this reason also DW-2/1 cannot be relied upon. In fact, the DESU/defendant has miserably failed to prove that the deceased was fiddling with the electric main and, therefore, got electrocuted. From the evidence discussed above one can safely conclude that defendants have not been able to establish that deceased illegally fiddled with the electric main in order to have electricity supply available at this house. Nor have the DESU been able to prove that on 4th August, 1985 there was no electricity in the house of the plaintiff or in the village. If this suggestion be accepted, then the defence of the defendant that deceased was fiddling with the electricity main falls to the ground. This is contradictory to the defence set up in the written statement. It shows defendants are not sure of their stand. Defendants have failed even remotely to establish that there was any negligence on the part of the deceased in coming into contact with the electric wire which caused his death.

Hence taking into consideration the facts and circumstances of this case, I decree the suit in favour of the plaintiffs and against the defendants for a sum of Rs.3,60,000/- with costs plus simple interest at the rate of 12% p.a. from the date of filing of the suit till realization.”

20. Reliance also placed on Master Karthik being minor rep. By his father & others Vs. A.P. State Electricity Board and another (1995 (3) ALD 1 [LQ/TelHC/1995/322] ), where high-tension electricity lines without being insulated laid across a building without leaving the minimum prescribed clearance. Boy of 9 years coming into contact with the said wire and got his right hand and right leg burnt, resulting in their amputation, it was held that compensation is payable.

21. Reliance was also placed in M.C. Mehta and another Vs. Union of India and others ((1987) 1 SCC 395 [LQ/SC/1986/544] ).

22. Reliance was also placed on Charanlal Sahu Vs. Union of India which is a matter relating to claim of compensation relating to victim of gas leak, popularly known as Bhopal Gas Tragedy Case (AIR 1990 SC 1480 [LQ/SC/1989/648] ). Wherein it was observed.

“Over 120 years ago Rylands V. Fletcher (1868) 3 HL 330 was decided in England. There A, was the lessee of certain mines. B, was the owner of a mill standing on land adjoining that under which the mines were worked. B, desired to construct a reservoir, and employed competent persons, such as engineers and a contractor to construct it. A had worked his mines up to a sport where there were certain old passages of disused mines; these passages were connected with vertical shafts which communicated with the land above, and which had also been out of use for years, and were apparently filed with marl and the earth of the surrounding land. No care had been taken by the engineer or the contractor to block up these shafts, and shortly after water had been introduced into the reservoir it broke through some of the shafts, flowed through the old passage and flooded A’s mine. It was held by the House of Lords in England that where the owner of land, without willfulness or negligence, uses his land in the ordinary manner of its use, though mischief should thereby be occasioned to his neighbour, he will not be liable in damages. But if he brings upon his land anything which would not actually come upon it, and which is in itself dangerous and may become mischievous if not kept under proper control, though in so doing he may act without personal willfulness or negligence, he will be liable in damages for any mischief thereby occasioned. In the background of the facts it was held that A was entitled to recover damages from B, in respect of the injury. The question of liability was highlighted by this Court in M.C. Mehta’s case (supra) where a Constitution Bench of this Court had to deal with the rule of strict liability. This Court held that the rule in Rylands V. Fletcher (supra) laid down a principle that if a person who brings on his land and collects and keep there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. This rule applies only to non-natural user of the land and does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the things which escape are present by the consent of the person injured or in certain cases where there is a statutory authority. There, this Court observed that the rule in Rylands v. Fletcher (supra) evolved in the 19th century at a time when all the developments of science and technology had not taken place, and the same cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. In a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to be carried on as part of the developmental process, Courts should not feel inhibited by this rule merely because the new law does not recognize the rule of strict and absolute liability in case of an enterprise engaged in hazardous and dangerous activity. This Court noted that law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. Law cannot afford to remain static. This Court reiterated there that if it is found necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dangerous industries which are concomitant to an industrial economy, the Court should not hesitate to evolve such principle of liability merely because it has not been so done in England. According to this Court, an enterprise which is engaged in a hazardous or inherently dangerous industry which poses potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non-delegable duty to the community to ensure that no harm results to anyone. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results to anyone on account of an accident in the operation of such activity resulting, for instance, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who were affected by the accident as part of the social cost for carrying in such activity, regardless of whether it is carried on carefully or not. Such liability is not subject to any of the exceptions which operate vis- -vis the tortuous principle of strict liability under the rule in Rylands v. Fletcher. If the enterprise is permitted to carry on a hazardous or dangerous activity for its profit, the law must presume that such permission is conditional on the enterprise absorbing the cost of any accident arising on account of such activity as an appropriate item of its overheads. The enterprise alone has the resources to discover and guard against hazards and to provide warning against potential hazards. This Court reiterated that the measure of compensation must have a deterrent effect. The larger and more prosperous the enterprise, the greater must be the amount of compensation payable by it for the harm caused on account of an accident in the carrying on of the hazardous or inherently dangerous activity by the enterprise. The determination of actual damages payable would depend upon various facts and circumstances of the particular case.

It was urged before us that there was an absolute and strict liability for an enterprise which was carrying on dangerous operations with gases in this country. It was further submitted that there was evidence on record that sufficient care and attention had not been given to safeguard against the dangers of leakage and protection in case of leakage. Indeed, the criminal prosecution that was launched against the Chairman of Union Varbide Shri Warren Anderson and others, as indicated before, charged them along with the defendants in the suit with delinquency in these matters and criminal negligence in conducting the toxic gas operations in Bhopal. As in the instant adjudication, this Court is not concerned with the determination of the actual extent of liability, we will proceed on the basis that the law enunciated by this Court in M.C. Mehta’s case (AIR 1987 SC 1086 [LQ/SC/1986/544] ) (supra) is the decision upon the basis of which damages will be payable to the victims in this case. But then the practical question arises: What is the extent of actual damages payable and how would the quantum of damages be computed Indeed, in this connection, it may be appropriate to refer to the order passed by this Court on 3rd May, 1989 giving reasons why the settlement was arrived at the figure indicated. This Court had reiterated that it had proceeded on certain prima facie undisputed figures of death and substantially compensating personal injury. This Court has referred to the fact that the High Court had proceeded on the broader principle in M.C. Mehta’s case (supra) and on the basis of the capacity of the enterprise because the compensation must have deterrent effect. On that basis the High Court had proceeded to estimate the damages on the basis of Rs.2 lakhs for each case of death and of total permanent disability, Rs.1 lakh for each case of partial permanent disability and Rs.50,000/- for each case of temporary partial disability. In this connection, the controversy as to what would have the damages if the action had proceeded, as another matter. Normally, in measuring civil liability, the law has attached more importance to the principle of compensation than that of punishment. Penal redress, however, involves both compensation to the person injured and punishment as deterrence. These problems were highlighted by the House of Lords in England in Rookes V. Barnard, 1964 AC 1129, which indicate the difference between aggravated and exemplary damages. Salmond on the Law of Torts, 15th Edition at P.30 emphasizes that the function of damages is compensation rather than punishment, but punishment cannot always be ignored. There are views which are against exemplary damages on the ground that these infringe in principle the object of law of torts, namely, compensation and not punishment and these tend to impose something equivalent to find it criminal law without the safeguards by the criminal law. In Rookes V. Barnard (supra), the House of Lords in England recognized three classes of cases in which the award of exemplary damages was considered to be justifiable. Awards must not only, it is said, compensate the parties but also deter the wrong doers and other from similar conduct in future. The question of awarding exemplary or deterrent damages is said to have often confused civil and criminal functions of law. Though it is considered by many that it is a legitimate encroachment of punishment in the realm of civil liability, as it operates as a restraint on the transgression of law which is for the ultimate benefit of the society. Perhaps, in this case, had the action proceeded, one would have realized that the fall out of this gas disaster might have been formulation of a concept of damages, blending both civil and criminal liabilities. There are, however serious difficulties in evolving such an actual concept of punitive damages in respect of a civil action which can be integrated and enforced by the judicial process. It would have raised serious problems of pleading, proof and discovery, and interesting and challenging as the task might have been, it is still very uncertain how far decision based on such a concept would have been a decision according to ‘due process’ of law acceptable by international standards. There were difficulties in that attempt. But at the provisions stand these considerations do not make the constitutionally invalid. These are matters on the validity of settlement. The Act, as such does not abridge or curtail damage or liability whatever that might be. So the challenge to the on the ground that there has been curtailment or deprivation of the rights of the victims which is unreasonable in the situation is unwarranted and cannot be sustained.”

23. It is settled principal that normally while awarding compensation the Courts are expected to adopt a liberal approach especially when the life of an young boy had been lost due to electrocution and when the unfortunate mother had approached the Court claiming compensation. The concurrent finding recorded is that in as much as in anxiety the boy came and entered into the field of yet another and touched the dead sheep ultimately he had lost life and on the ground of ‘contributory negligence’ Appellant is not entitled to any compensation in my considered opinion, cannot be definitely sustained.

24. It is need less to say that the Electricity Board has to maintain the lines in order and definitely due to the negligence on the part of the Board in maintained the line, mishap had happened which resulted in the death of an young boy. There is no serious controversy or dispute relating to the quantum of compensation or there is no serious controversy to the effect that the claim made by the appellant-plaintiff is on higher side.

25. In view of the same, it should be taken that the compensation claimed is just and proper in the facts and circumstances of the case.

26. In the light of the facts and circumstances especially in the light of Exs.A.1 to A.4 and the evidence of P.W.1 and P.W.2 and also DW.1 and taking into consideration the admitted facts, this Court is of the considered opinion that the concurrent finding recorded by both the Courts below with regard to contributory negligence on the part of the deceased for negativing the claim of the plaintiff, cannot be sustained and the said finding is hereby set-aside.

27. Accordingly the Second Appeal is hereby allowed with costs through out.

28. It is needless to say that in as much as the litigation was prosecuted as an indigent person, the appellant-plaintiff has to pay requisite Court fee.