IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 RFA.No. 479 of 2006 --------------------- ( OS.36/2003 of SUB COURT,KATTAPPANA ) APPELLANTS/ DEFENDANTS: -------------------------------- 1. K.S.E.BOARD, VYDHYUTHI BHAVANAM, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KATTAPANA KARA, KATTAPANA VILLAGE. 3. THE ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, K.S.E.BOARD, VANDIPERIYAR P.O., MANJUMALLY VILLAGE. BY ADV. SRI.K.S.ANIL, SC, KSEB ADV. SRI. ASOK M.CHERIYAN, SC, KSEB RESPONDENTS/ PLAINTIFFS: -------------------------- 1. MRS. SINKARAMMAL, AGED 46 YEARS, W/O. PONNAPPAN SEKHAR, MANOHAR ESTATE, MADHAVAN KARA, ANAVILASAM VILLAGE. 2. MS.BHARATHI, AGED 23 YEARS, W/O. SIVAKUMAR, MANOHAR ESTATE, MADHAVAN KARA, ANAVILASAM VILLAGE. 3. ARJUN, AGED 5 YEARS (MINOR), S/O. SIVAKUMAR, REPRESENTED BY HIS MOTHER BHARATHI W/O.SIVAKUMAR, MANOHAR ESTATE, MADHAVAN KARA, ANAVILASAM VILLAGE. 4. MS.DEEPALAKSHMI, AGED 2 YEARS (MINOR), REPRESENTED BY HER MOTHER BHARATHI, W/O.SIVAKUMAR, MANOHAR ESTATE, MADHAVAN KARA, ANAVILASAM VILLAGE. R1 AND R2 BY ADV. SRI.K.BALACHANDRAN (MANGALATH) BY ADV. SRI. RAJESH NAIR THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 07/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & K.T. SANKARAN, JJ. ........................................................................ R.F.A. No.479 OF 2006 ......................................................................... Dated this the 7th October, 2008 J U D G M E N T Kurian Joseph, J: Defendants 1 to 3 in O.S.No. 36 of 2003 on the file of the court of the Subordinate Judge, Kattappana are the appellants. The parties are referred to as plaintiffs and defendants. The suit was filed claiming compensation alleging negligence on the part of the defendants resulting in the electrocution of one Ponnappan and his son Sivakumar. The plaintiffs are the legal heirs of the deceased. The alleged incident happened on 09.01.2001 at about 6.45 a.m. The deceased were plantation labourers. When Ponnappan went for answering the nature's call, he came into contact with the stay wire and he was electrocuted. On seeing the incident, his son, Sivakumar went to the spot and made an attempt to rescue his father. However, he was also electrocuted and both of them died on the spot itself .. 2. Compensation to the tune of Rs. 5,00,000/- was claimed. . It is fairly clear from the pleadings and the judgment that the accident was admitted and there was no serious defence on the alleged negligence on R.F.A. No.479 OF 2006 2 the part of the defendants in maintaining the system. The stay wire happened to be live wire due to lack of proper maintenance of live wire. Going by the version of D.W.I, it can be seen that when there is earth leakage, the 'earth fault relay' in the sub station should have been tripped for avoiding further damages. Admittedly, the relay was not tripped, as a result of which, the electric post and the stay wire became live. In other words, had the safety mechanism been property maintained, the moment the live wire came into contact with the electric post, the safety mechanism should have been activated and relay could have been cut off. Admittedly, the said safety system was not functioning in this case. Therefore, the undisputed factual position is that the safety system was not property maintained. No doubt, falling of a tree or a branch of tree on a live wire is an act of God because of the heavy rains. But if resultantly, when the live wire comes into contact with either the stay wire or the electric pole and leads to earth leakage, the relay system in the sub station should have been tripped. Thus the failure to maintain the system being the admitted factual position and there being no evidence of any attributable role played by the deceased, we fully agree with the reasoning and findings of the court below on the negligence on the part of the defendants. 3. Ponnappan (father) was 55 years and son, Sivakumar was 26. It is seen that the trial court has taken resort to the schedule to the Fatal R.F.A. No.479 OF 2006 3 Accidents Act for the purpose of calculating the compensation. Being plantation labourers, it is the admitted position that the deceased were drawing Rs. 60/- per day. Going by the schedule to the Fatal Accidents Act, the legal heirs of Ponnappan are entitled to compensation to the tune of Rs.1,50,000 and in respect of Sivakumar to the tune of Rs. 2,59,200/-. Towards funeral expenses and loss of consortium, what is granted is only a nominal amount. On account of death of Ponnappan, the total compensation awarded by the court below is Rs.1,57,000/- and that of Sivakumar is Rs. 2,66,200/-, which is fairly just, proper and reasonable compensation, going by the schedule to the Fatal Accidents Act. 4. Further contention of the Standing Counsel for the Electricity Board is that in any case, there is no justification for the court below in awarding 18% interest. We find force in the said submission. Though there was a prayer for 18% interest, the trial court should have applied its mind as to the nature of the claim while awarding interest. It is not a compensation on account of a commercial transaction. At the relevant time, we find, for the compensation under the Fatal Accidents Act, the prevailing rate of interest is around 8%. However, having regard to the peculiar factual situation in the instant case, we see that the Electricity Board has already paid court fee to the tune of Rs.17,000/-. If the appeal is to be partly allowed, the Board will have to pay the entire court fee to the R.F.A. No.479 OF 2006 4 tune of Rs.50,840/-. Whereas, if we reduce the interest to 8%, since admittedly, an amount of Rs.50,000/- each has been paid, what the Board would pay is only around Rs.50,000/- Therefore, we need only make it clear that 18% interest shall not be taken as a precedent in such situations of awarding compensation for electrocution. Since interference by this court with regard to the interest will be detrimental to the financial interest of the Board, we refrain from doing so. In that view of the matter, we do not find any merit in the appeal. Since we have dismissed the appeal wherein the judgment and decree provides for interest at 18%, we caution the appellants that it will be in their interest to deposit the amount at the earliest possible occasion. I.A.No. 3886 of 2006 filed in this Appeal is also disposed of. KURIAN JOSEPH, JUDGE. K.T. SANKARAN, JUDGE. lk