IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE [ENTITY] & THE HONOURABLE MR. JUSTICE [ENTITY] MONDAY,THE 31ST DAY OF MARCH 2014/10TH CHAITHRA, 1936 RFA.No. 206 of 2009 (C) [AGAINST THE DECREE AND JUDGMENT DATED 30-08-2008 IN O.S.NO. 74/2007 OF THE IIND ADDL.SUB COURT,[ENTITY]] APPELLANT/2ND DEFENDANT: THE SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTAM, THIRUVANANTHAPURAM. BY [ENTITY], S.C. RESPONDENTS/PLAINTIFFS & DEFENDANTS 1 AND 3: 1. [ENTITY], (INSANE), S/O. [ENTITY], AGED 49 YEARS. [ENTITY], REP.BY HIS GUARDIAN, UNCLE, ACHUTHAN, S/O. CHAKKAPPAN, AGED 52 YEARS, PARAYIL HOUSE, KUNNAMNGALAM AMSOM, DESOM, [ENTITY] TALUK. 2. [ENTITY], S/O. MOIDEENKUTTY, [ENTITY], MOTTEKUNNUMMAL HOUSE, KODUVALLY AMSOM, DESOM, P.O. KODUVALLY, [ENTITY]. 3. NATIONAL INSURANCE COMPANY, REPRESENTED BY DIVISIONAL MANAGER, DIVISIONAL OFFICE, [ENTITY]. R1 BY ADV. [ENTITY], (CAVEATOR), R2 BY ADV. [ENTITY]. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03-03-2014, THE COURT ON 31-03-2014 DELIVERED THE FOLLOWING: Prv. [ENTITY] & [ENTITY], JJ. [CASE NUMBER] Dated this the 31st day of March, 2014 J U D G M E N T
[ENTITY], J.
This appeal is filed by the Kerala State Electricity [ENTITY] (for short, the "[ENTITY]"), challenging the judgment and decree in a suit for compensation on account of the death caused to one [ENTITY], due to electrocution.
2. The plaintiff in the suit is a mentally disabled person and the only son of the deceased [ENTITY]. The brief plaint allegations are as follows. The deceased [ENTITY] was employed at the first defendant's house as a domestic servant. The first defendant had put up a temporary shed adjacent to his shop building. Electricity was supplied to the temporary shed by drawing an unauthorised connection from the shop building. The supply wire was drawn without any safety precautions. Thus, the deceased [ENTITY], while removing the waste inside the shed came into contact with the electric line, illegally drawn to the temporary shed and breathed her last breath due to the electrocution.
3. The first defendant filed a written statement and contended that the deceased [ENTITY] was not his employee. It is also contended by him that she got electrocuted from the earth wire on the side of the shop building situated 15 meters away from his house.
4. The Electricity [ENTITY], the second defendant in the suit, contended that the [ENTITY] has given electric connection to the shop named `Sakeena Store' on the application made by the first defendant and the deceased [ENTITY] accidently touched the earth wire, which was installed for providing electric supply to the shop and got electrocuted. It is also stated that the insulation of the supply wire in the shop room was torn and had come into contact with the earth wire. It is further stated that the earth wire was found detached from the earth pipe and the deceased [ENTITY] came into contact with the earth wire by her own negligence and got electrocuted.
5. In the suit, the Insurance Company was also made a party as the third defendant. The third defendant admitted that special insurance policy has been issued to the [ENTITY] for payment of ex-gratia benefit to the dependants of any members of the public electrocuted from the installations of the [ENTITY], upto a maximum of Rs.50,000/-.
6. Before the court below, on the side of the plaintiff, his uncle and guardian, namely, [ENTITY] was examined as PW1 and Exts.A1 to A6 were marked. Defendants did not adduce any oral evidence and Exts.B1 and B2 were marked.
7. The court below, on an analysis of the evidence and pleadings, found that the second respondent-[ENTITY] was negligent. It is found by the court below that if proper care, caution and routine inspection had been conducted by the employees of the [ENTITY], the above incident could have been averted. It is the failure on the part of the [ENTITY] to conduct such supervisory act, which paved way for fastening liability on the [ENTITY]. The [ENTITY] did not adduce any evidence to substantiate their contentions in their written statement, to prove the negligence of the deceased or that of the first defendant.
8. Learned counsel for the appellant-[ENTITY] argues that the first defendant failed to inform the [ENTITY] about the torn insulation of the supply wire. We do not think such an inaction on the part of the first respondent would give rise to sharing of the liability i.e., to share the amount of compensation to be paid to the dependant of the victim, for the obvious reason that the [ENTITY] under the relevant Act and Rules, namely, the [ACT], has a statutory duty to oversee and supervise the installations in consumers' places. It will be apposite to quote [SECTION] of the [ACT] in this context, which reads as follows:
"46. Periodical inspection and testing of consumer's installations.-(1)(a) Where an installation is already connected to the supply system of the supplier, every such installation shall be periodically inspected and tested at intervals not exceeding five years either by the Inspector or any officer appointed to assist the Inspector or by the supplier as may be directed by the State Government in this behalf or in the case of installations belonging to, or under the control of the Central Government, and in the case of installation in mines, oil-fields and railways, by the Central Government. "
9. In [PRECEDENT], the House of Lords took the view that "when legislation gave with authority to control building operations by requiring approval of foundations of building by authority's Inspector, failure to carry out such inspection by the Inspector would result in non-exercise of power, capable of amounting to a breach of duty of care". Therefore, we are of the view that the failure to exercise the power under [SECTION] of the [ACT] which is intended to protect the consumers and third parties, would entail breach of statutory duty.
10. We, therefore, reject the contention of the learned counsel for the appellant that the first defendant is also equally liable. The court below has discussed all the matters in detail and has come to the conclusion that the [ENTITY] alone is liable to compensate the plaintiff. We do not see any reason to upset the findings of the court below in this regard.
11. Onto the quantum of compensation awarded by the court below, the court below calculated the annual income of the deceased at Rs.18,000/-. However, we do not find any justification on the part of the court below in fixing the annual income at Rs.18,000/-. The court below ought to have fixed the annual income at Rs.30,000/-. In a recent judgment, the Hon'ble Supreme Court held that the notional income under the [SECTION] attached to [SECTION] of the [ACT] at Rs 15,000/- was fixed in the year 1994 and therefore, it is just and proper to fix the notional income at Rs.30,000/-. Also see [PRECEDENT]. The court below also took 10 years' multiplier. We find that the multiplier adopted by the court below is not correct. The multiplier ought to have been fixed as 5, in view of the decision of the Hon'ble Supreme Court in [ENTITY] (Smt) and others v. Delhi Transport Corporation and another [(2009 (6) SCC 121)]. Therefore, if we calculate the compensation in the light of [ENTITY]'s case, the plaintiff will be entitled to Rs.1,50,000/- as compensation. However, we see that no compensation is awarded towards loss of expectation of life, pain and suffering and also towards funeral expenses. We award Rs.50,000/- towards compensation under the above heads. We find that the court below is not justified in awarding Rs.20,000/- as compensation for loss of love and affection. The plaintiff cannot raise any claim for such loss under the [ACT]. We, therefore, find that the plaintiff is entitled to a total compensation of Rs.2 lakhs as mentioned above. Thus, the judgment and decree passed by the court below awarding a compensation of Rs.2 lakhs do not warrant any interference at the hands of this Court.
Having regard to the nature of the litigation and the economically marginalised sector to which the plaintiff belongs, we hold that he is eligible to be exempted from paying the court fee in the court of first instance in view of [SECTION] of [ACT] as amended by notification dated 13.01.1999. See for support, Joseph v. Kerala State Electricity [ENTITY] [ ILR 2013(1) Ker.26]. That modification to the impugned judgment and decree can be made in favour of the plaintiff in exercise of the power under [SECTION] [ACT]. In exercise of the authority as afore-noted, the direction contained in the judgment and decree, ordering realisation of the court fee from the plaintiff is vacated and it is ordered that no court fee shall be recovered from him.
Accordingly, this appeal is dismissed.
[ENTITY], JUDGE Sd/-
[ENTITY], JUDGE ms "The judgment dated 31/03/2014 in [CASE NUMBER] (last but one paragraph, page 7) is suo motu reviewed to the extent it vacates the direction for realisation of court fee from the plaintiff and it is made clear that it is open for the District Collector to proceed against the second defendant/appellant herein for recovery of the court fee in accordance with law".
vide order dated 04/02/2015 in [CASE NUMBER].
Sd/-Registrar (Judicial)