IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 RFA.No. 755 of 2010() ------------------------------ OS.86/2001 of ADDL.SUB COURT, KOTTAYAM .................... APPELLANT/1ST DEFENDANT ------------------------------------------- KERLA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN,THIRUVANANTHAPURAM. BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB RESPONDENTS/PLAINTIFFS AND 2ND DEFENDANT ------------------------------------------------------------------------- 1. CHANDRIKA, W/O. DECEASED SHAJI, AGED 43 YEARS, RESIDING AT KUZHITHERILAYA PUTHEN VEEDU, EDAYAZHAMKARA, VECHOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT-686 001. 2. SREEKUTTY, D/O. SHAJI, AGED 15, RESIDING AT KUZHITHERILAYA PUTHE VEEDU, EDAYAZHAMKARA, VECHOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DIST-686 001. REPRESENTED BY HER NEXT FRIEDN AND MOTHER CHANDRIKA. 3. SREEMON, S/O. SHAJI, AGED 11 ½, RESIDING AT KUZHITHERILAYA PUTHEN VEEDU, EDAYAZHAMKARA, VECHOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT-686 001, REPRESENTED BY HER NEXT FRIEND AND MOTHER CHANDRIKA. 4. CHELLAPPAN, F/O. SHAJI, RESIDING AT KUZHITHERILAYA PUTHEN VEEDU, EDAYAZHAMKARA, VECHOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT-686 001. 5. MEENAKSHI, M/O.SHAJI, AGED 57 YEARS, RESIDING AT KUZHITHERILAYA PUTHE VEEDU, EDAYAZHAMKARA, VECHOOR VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT-686 001. 6. NATIONAL INSURANCE COMPANY LTD., REPRESENTED BY ITS MANAGER BRANCH II, ARISTO JUNCTION, THAMPANOOR, THIRUVANANTHAPURAM-695 001. BY THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.M.Appln. 1948 of 2010 in R.F.A. No. 755 of 2010 & R.F.A. No.755 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of November, 2010. 0RDER/JUDGMENT Bhavadasan, J, C.M.Appl. 1948 of 2010 This is an application filed under Section 5 of the Limitation Act seeking to have the delay of 765 days in filing the appeal condoned. 2. In the affidavit in support of the petition, it is averred that the judgment was pronounced on 31.3.2008. Copy was applied for only on 29.1.2010 and the same was received on 15.2.2010. Thereafter it took sometime to get the concurrence from the office regarding the filing of the appeal after obtaining certified copy of the judgment and decree. Sanction was finally accorded on 31.3.2010. Immediately thereafter the appeal was filed. C.M.Appl.1948/10 &RFA755/10. 2 3. In order to ascertain whether any purpose would be served by condoning the delay, the merits of the case was also looked into. 4. It appears that Shaji, the husband of the first plaintiff and the father of plaintiffs 2 and 3, a duck rearer was electrocuted when he came into contact with a live snapped electric wire. He was passing through a paddy field. The trial court after an elaborate consideration of the matter awarded a sum of Rs.5,73,100/- as compensation with interest at 7% per annum from the date of suit till the date of decree and thereafter at 6% per annum till realisation. 5. In support of the claim, the plaintiffs had examined P.Ws. 1 and 2. P.W.1 is none other than the wife of the deceased, the first plaintiff. She spoke about the income of her husband and various other factors. She narrated the incident also. Ext.A1 is the certified copy of the FIR in Crime No. 45 of 2000 of Kumarakom Police Station. The inquest report as well as the postmortem report clearly shows that the cause of death C.M.Appl.1948/10 &RFA755/10. 3 was electrocution. P.W.2 also spoke about the incident as he had occasion to see the accident in which Shaji died. Therefore there was sufficient evidence to show that Shaji was electrocuted. The defendants, for reasons best known to them, chose to adduce no evidence at all and their only contention in this appeal is that there is no evidence of any negligence on their part, which resulted in the death of Shaji, and the court below has erred in taking the income of Shaji as Rs.2500/-. 6. It is not proper to say that there is no evidence regarding the income of Shaji. His wife has spoken about the income and she had stated that the deceased used to earn Rs.3,600/- per month by duck rearing. There is no reason to disbelieve her. The court below had deducted 1/ 3rd of the amount towards the expenses of the deceased and had taken only Rs.2,400/- towards contribution to the family. The amount so taken appears to be very reasonable. 7. Even though there is a contention by the Board that there is no negligence on their part, that is without basis. C.M.Appl.1948/10 &RFA755/10. 4 P.W.2, who had seen the incident had spoken about the same and it was for the Board to show that there was no negligence on their part. P.W.2 had clearly stated that while Shaji was passing through the paddy filed along with his ducks, he suffered electric shock and died as a consequence thereof. As already noticed, there is absolutely no evidence produced by the Board to show that they have taken all necessary precautions to ensure safety of the line. In the decision reported in H.S.E.B. v. Ram Nath ((2004) 5 SCC 793) it has been held that the burden is on the Board to show that they have taken all precautions and installations were maintained in the proper manner so that no untoward incident happens. 8. In the decision reported in M.P.Electricity Board v. Shail Kumari (2002(1) KLT 480) it was held that in an electrocution case, in the nature of the activity undertaken by the Board, the liability cast on such person is strict liability and it is for them to prove that they were not negligent. C.M.Appl.1948/10 &RFA755/10. 5 9. The court below has noticed that if there was proper inspection and proper maintenance of the electric line, the incident could have been easily avoided. There is absolute want of care on the part of the Board and the court below has found that negligence is proved. There was no inspection report or any other evidence from the side of the Board regarding the incident. There is no reason to disbelieve P.Ws. 1 and 2 when they say that the incident was due to the negligence on the part of the Electricity Board. It must be remembered that the Board had documents to show that periodical maintenance and repairs had been undertaken and inspection was done periodically. Nothing prevented them from producing those documents to establish that there was no negligence on their part. There was no attempt to do so. 10. Therefore it appears that there is no merit in the appeal at all. In the light of the fact that no purpose will be served by condoning the delay as it will be a futile exercise, this C.M.Appl.1948/10 &RFA755/10. 6 petition is held to be without merits and it is accordingly dismissed. R.F.A. 755/2010. In view of the dismissal of C.M.Appl. 1948 of 2010, this appeal also stands dismissed. Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.