1 2025:CGHC:52997 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 179 of 2014 1 - State Of Chhattisgarh, Through The Collector, Dist. Rajnandgaon C.G., Chhattisgarh 2 - The Executive Engineer Mongara Barrage Project, Water Resources Division Dongargaon, Dist. Rajnandgaon C.G. , District : Rajnandgaon, Chhattisgarh ... Appellant(s) versus 1 - Ku.Sarita @ Savita D/o Late Sukhram Aged About 18 Years R/o Village Durretola, Tahsil And Thana Ambagarh Chowki, District Rajnandgaon C.G., Chhattisgarh 2 - Rohit Kumar S/o Late Sukhram Aged About 10 Years Represented Through Their Vali Guardian Smt. Sankay Bai, Wd/o Late Mehatru, R/o Village Durretola, Tahsil And Thana Ambagarh Chowki, District Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh 3 - Ku. Sarasvati D/o Late Sukhram Aged About 8 Years Represented Through Their Vali Guardian Smt. Sankay Bai, Wd/o Late Mehatru, R/o Village Durretola, Tahsil And Thana Ambagarh Chowki, District Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh 4 - Deleted (Smt. Sankay Bai) W/o As Per Hon’ble Court Order Dated 21- 02-2022 5 - The Executive Engineer (Sanchar And Sudhar) Chhattisgarh Electricity Board, Dongargaon, District Rajnandgaon C.G., District : Rajnandgaon, Chhattisgarh ... Respondent(s) (Cause title taken from Case Information System) For Appellant(s)/State : Mr. Kishan Lal Sahu, Deputy G.A. For Respondents No. 1 to 3 : Mr. Malay Shrivastava, Advocate VED PRAKASH DEWANGAN Digitally signed by VED PRAKASH DEWANGAN Date: 2025.11.03 19:03:08 +0530 2 For Respondent No.5 : Mr. Vinod Deshmukh, Advocate Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 30/10/2025 1. The present first appeal under Section 96 of the Code of Civil Procedure, 1908 filed by the defendants No. 1 and 3 against the impugned judgment and decree dated 03.09.2014, passed by learned Additional District Judge (FTC), Rajnandgaon, in Civil Suit No. 7-B/2011, whereby a decree for compensation of Rs. 2,43,800/- has been passed in favour of the plaintiffs. 2. The brief facts of the case, emerges from the pleadings of the parties, are that, the defendants No. 1 and 3 were constructed a canal at Village Mongra, Tahsil Ambagarh Chowki, for which they floated a tender for construction of left bank canal from KM 0 to KM 33.5 Dongargaon distributory KM 0 to KM 14 including earthwork, structures and construction of two numbers tunnel in canal. One Soma Enterprises, Hyderabad was the successful bidder and work was allotted to him for construction of said canal. There was a high- tension line passing through the place and for hight-extension of 11 KV electricity line, they communicated with the electricity department and on 10.05.2006, paid the amount of demand note issued by the Electricity Department, Ambagarh Chowki. During the construction work of the said canal, the mother of the plaintiffs No. 1 to 3 came into contact of high-tension electric current and has died on 06.05.2006. The plaintiffs have filed the civil suit for compensation 3 against death of Laxvantin Bai, against the defendants No. 1 and 3 with the pleading that the defendant No.3 was constructing the canal without taking the safety measures, as there was number of electricity poles, through the electric lines were passing and electric current was supplied, despite that they continued their construction work, and on 06.05.2006, when the deceased Laxvantin Bai was going to forest for collecting Tendu leaves, she came into contact with electric current and has died. The defendants are negligent in constructing the canal, by which the deceased has died, and therefore, the defendants are liable to pay compensation. The plaintiffs claimed Rs. 7,40,000/- as compensation on various heads. 3. The defendants No. 1 and 3 contested the claim of the plaintiffs and filed their written statement, denying their liability and plaint averments. The defendants No. 1 and 3 had come with the plea that the construction of Mongra Canal project was in the public interest. A tender was called and the work was allotted to Soma Construction company under the terms and conditions of the work contract. Sufficient safety measures have been taken and barricades were also fixed by wooden poles, so that no one can come near the place of construction. A signboard was also fixed there, that it was not the public road. There is no negligence on the part of the defendant No.3. It is also pleaded that as per clause 3.11 of the work contract, the contractor i.e. Some Enterprises, Hyderabad would be liable for any kind of damages or loss caused to any person and the State Government would not be liable for any kind of damages. There was 4 regular communication with the Electricity Department to take safety measures during the construction period and therefore, the State Government is not liable to pay any compensation to the plaintiffs. 4. The defendant No.2 has also filed his written statement separately and denied the plaint averments and his liability to pay compensation. It is pleaded that on 01.01.2009, the Chhattisgarh State Electricity Board has been bifurcated in five different entities and now the Chhattisgarh State Electricity Board is dissolved and no effect order can be passed against it. The defendant No.2 has wrongly been made as a party defendant in the suit. The case pertains to Dongargaon, whereas the Executive Engineer, CSEB, Dongargarh has been made as a party defendant No.2. It is further pleaded that from the proposed site of construction, there was 11 KV line and it can be removed only after receiving the application and its charges, which are required to be paid by the concerned constructing agency and then only the construction work can be started. The construction agency has not paid any amount and has not informed the starting of their work there. They unilaterally started the work and collected soil, which comes up to consideration hight and for that reason the hight between 11 KV electricity line and the floor of the soil collected there was remained about 5 feet and 4 inches. The deceased Laxvantin Bai while passing through the place, came into contact with electricity current and has died on 06.05.2006. It is no negligence on the part of the defendant No.2 and he is not liable to pay any compensation to anyone. It is also pleaded that though there 5 was various communications and issuance of demand note to the defendants No. 1 and 3, however till the date of incident, the amount of demand was not deposited by the defendants No. 1 and 3 and it could be deposited only on 29.05.2006 i.e. after the incident. The State Government as well as the contractor were liable for the incident and thus the suit against the defendant No.2 is liable to be dismissed. It is further pleaded that the deceased herself was negligent and has died due to her own negligence and the plaintiffs are not entitled for any compensation. 5. Based on the pleadings of the respective parties, the learned trial Court has framed the following issues:- Ø- वाद्ቚश्न 1- क्या, दिदन क 6.5.2006 क ्ቚदिवादगण क उपेቌኋ एवा लापेरवाही क करण लाቌኋवा नबाई दिबाजला र क सं पेक ेሰ! आ जन क करण उसंक ेሰ#त्या% ही गया ? 2- क्या, वादगण ्ቚदिवादगण सं सं या%्ሹ रूपे सं अथवा पे#थक-पे#थक रूपे सं 7,40,000/- ቌኋदिपे*दि पेन क अधि,कर ही-? 3- क्या, छ०ग० रज्या दिवाቕ኎% दिवारण क पेन ेሰयादिद ोሣ3गरग वा ቛኋर कयापेलान या ቔኍ (सं चार एवा सं%,र) ्ቚकरण ेሰ! आवाश्याक पेቌኋकर ही- ? यादिद ही ्ቚभावा ? 4- संहीया एवा वाद व्याया ? 6. The plaintiffs have examined Ku. Sarita @ Savita/PW-1, Sham Bai/PW-2, Narsingh Kirge/PW-3 and they have relied the documents (exhibit P-1 to P-11), which are the merg intimation, postmortem report and notice under Section 80 of CPC issued to the defendants. The defendants have examined R.S. Rathore/DW-1, P.K. Bhaskar/DW-2 and had relied the documents of their official 6 communication with the Electricity Department and the tender documents, which are exhibit D-1 to D-20. 7. The learned trial Court, after appreciation of the evidence led by the parties, partly allowed the suit and granted compensation of Rs. 2,43,800/- in favour of the plaintiffs against the defendant No.3 and decreed the suit vide its judgment and decree dated 03.09.2014 holding that the deceased Laxvantin Bai has died due to negligence of the defendants and the defendant No.3 is liable to pay compensation to the plaintiffs. The said judgment and decree is under challenge in the present first appeal. 8. Learned counsel for the appellants would submit that, the learned trial Court has erred in facts and law, while deciding the suit of the plaintiffs. He would submit that as per the work contract, the work was carrying out by Soma Construction, Hyderabad. Clause 3.11 of the work contract (exhibit D-20) clearly absolved the appellants to pay any compensation for loss or damages to any person and the contractor alone was held responsible for the same. When the work was allotted to the contractor, it is for him to take all the safety measures and to carry out the work carefully, however, due to negligent act of the contractor, the incident occurs and the deceased has died. When the contractor was under the obligation to take all safety measures and to pay compensation, in case any incident occurred, the liability should be fixed upon the contractor and not upon the defendants No. 1 and 3. In view of clause 3.11 of the work contract, the principles of owner and servant or the principal 7 employer is not applicable, so that the vicarious liability can be imposed upon the defendants No. 1 and 3. Under the tort, the liability should be fixed upon the person, who committed negligence and in the present case, the contractor was negligent in carrying the construction work. The contractor Soma Constructions, Hyderabad has not been made as a party defendant, and therefore, the matter may be remanded back to the learned trial Court for impleading the Soma Constructions as the party defendant in the suit and to decide the case afresh. 9. On the other hand, learned counsel for the plaintiffs and the defendant No.2 supported the impugned judgment and decree and submitted that the learned trial Court has rightly considered the case and passed the judgment and decree, which does not require any interference. 10. I have heard learned counsel for the parties and perused the record of the trial Court. 11. The main objection raised by the appellants herein, is that the work contract was allotted to Soma Constructions, Hyderabad and the said contractor was carrying out the work there. It is for him to take all safety measures at the proposed site of construction and he is responsible for any damages caused to anyone. Learned counsel for the appellants referred clause 3.11 of the work contract (exhibit D- 20), which has been proved by DW-1/R.S. Rathore, Sub-Divisional Officer, Mongra-Barrage project. The basis on which the appellants 8 are relying in the appeal is clause 3.11 of the work contract (exhibit D-20) and it is necessary to notice here the clause 3.11 of exhibit D- 20:- “3.11. From the commencement of the works to the completion of the same, they are to be under the contractor(s) charge. The contractor(s) is/are to be held responsible for and to make good all injuries, damages and repair occasioned or rendered necessary to the same by fire or others causes and they are to hold the Governor of Chhattisgarh harmless from any claims for injuries to persons or for structural damage to property happening from any neglect, default, want of proper care or misconduct on the part of the contractor(s) or of any one in his/their employ during the execution of the works.” 12. It transpires from perusal of the above said clause of the work contract, the liability to make good all the injuries, damages to any person from any neglect, default, want of proper care or misconduct was upon the contractor from the commencement of the work till the completion of the same. It is not in dispute that on 06.05.2006, the construction work of Mongra canal was going on and the said work was not completed. In the evidence, the PW-2/R.S. Rathore has stated that, the work was carrying out by the Soma Enterprises Limited, A-5 Class Contractor, Hyderabad and after execution of the work contract, he started work there. He specifically deposed that as per clause 3.11 of the work contract, the construction company would be liable to make good any kind of damages. Though, it is the evidence of DW-1 that in the criminal case registered against the employee of the department, they have been acquitted by the learned trial Court, but in the present case, the learned trial Court has rightly considered that the judgment passed in criminal case, is not binding upon the Civil Court and the case is to be decided on the 9 basis of pleadings and evidence of the civil suit. DW-1 has not stated anything in his statement, as to the date on which, they deposited the charges for shifting of the electricity line from the place of proposed site, and when the work order was issued. He simply stated that as per clause 3.11 of the tender document, the construction company would be responsible for payment of compensation. He admitted in his cross-examination that, he regularly not visited to the construction site, he personally has not inquired into the matter. In cross- examination he stated that, the compensation to the affected party would be paid from the amount of the contractor deposited with them. When the appellants challenging their liability to pay compensation and taking the benefit of clause 3.11 of tender document (exhibit D- 20), they should come with the specific evidence that, after complying all the process of shifting the electricity line and payment of charges to the Electricity Department, they handed over the proposed construction site to the construction agency to carry out their construction work, but in the present case, undisputedly the amount of demand note for shifting the electricity line from the proposed construction site was paid on 29.05.2006 and then the work order for shifting the electricity line was issued on 01.06.2006 (exhibit D-1). This would clearly demonstrate that without removing or shifting the electricity line or even without complying their part to deposit the amount of demand note for shifting of the electricity line, the work order was issued for construction of the said Mongra Canal to the construction agency and handed over the proposed site 10 knowingly that a high-tension 11 KV electricity line is bypassing from the proposed site. 13. From the evidence of DW-2/P.K. Bhaskar, who is the Assistant Engineer of defendant No.2, has proved that the work order for shifting of the electricity line was issued on 01.06.2006 and prior to that the incident was already occurred on 06.05.2006, for which the defendants No. 1 and 3 can also be held liable. Had they been deposited the charges of shifting of the electricity line from the proposed construction site before the incident, then they can take the defence that they had already complied with their part of the work contract and the liability would be upon the construction agency. The defendants No. 1 and 3 were required to provide the construction site without any hindrance or objection to the construction agency, but in the present case, there was an obstruction of 11 KV electricity line, which was passing through the proposed construction site, which ought to have removed before starting the construction. When the work order was issued stipulated with the fixed time period, the construction agency was required to start construction work immediately to complete the work looking to the time constraint. Though, there may be certain correspondences by the defendants No. 1 and 3 with the defendant No. 2, but the work order for shifting of the electricity line was issued only after depositing the charges under the demand note i.e. after the date of incident, and thus the defendants No. 1 and 3 cannot take the benefit of clause 3.11 of the tender document (exhibit D-20). 11 14. DW-2/P.K. Bhaskar is the witness of defendant No.2, who proved that, from the proposes site 11 KV line was passing and the construction agency was required to make application for transfer of the electricity line, if any construction work is required there and it is only after payment of transfer charges, the electricity company can transfer the electricity line and then only the construction agency can start their work. In the present case, the work order from the Electricity Department for transferring of the electricity line was issued on 01.06.2006 and prior to that the incident was already occurred on 06.05.2006. He also proved that the high-tension electricity line was in its correct hight, but the persons of the construction agency have collected soil there by their heavy earthmoving vehicle in one night, which led to reduction of the distance between the earth level and the electricity line, which caused the subject damage of death of Laxvantin Bai. 15. From the evidence of the plaintiffs’ side, they claimed that by the negligent act of the defendants, the deceased died and they claimed compensation on account of death of Laxvantin Bai. 16. From perusal of the impugned judgment, it transpires that the learned trial Court has also taken note of clause 3.11 of the tender document (exhibit D-20) and after a detailed discussion of the evidence available on record, held the defendant No. 3 liable to pay compensation on account of death of Laxvantin Bai and has assessed the compensation to the tune of Rs. 2,43,800/-, in which 12 this Court does not find any perversity with the evidence available on record. 17. This Court does not find any scope for interference in the appeal filed by the appellants/defendants No. 1 and 3, and therefore, the present appeal filed by the appellants is dismissed. 18. Parties shall bear their own costs. 19. Appellate decree be drawn accordingly. Sd/- (Ravindra Kumar Agrawal) Judge ved