IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 13.09.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S.NO.961 of 2004 1.The Junior Engineer, Tamil Nadu Electricity Board, Vedaraniyam, Nagapattinam District. 2.The Assistant Executive Engineer, Tamil Nadu Electricity Board, Vedaraniyam, Nagapattinam District. 3.The Chairman/Managing Director, Tamil Nadu Electricity Board, Chennai- 600 002. ... Appellants/Defendants Vs. 1.Kala 2.Minor Sangeetha @ Thilagavathi 3.Minor Ajith Kumar 4.Neelavathy (Minors 2 and 3 represented by guardian and Mother of the first respondent) ... Respondents/Plaintiffs Appeal suit filed under Section 96 of the Civil Procedure Code, against the Judgment and Decree dated 30.03.2001 made in O.S.No.305 of 1999 on the file of the Learned Principal Subordinate Judge, Nagapattinam. For Appellants : Mr. N.Muthuswami (TNEB) For Respondents: No Appearance J U D G M E N T The Appellants/Defendants have preferred this present Appeal as against the Judgment and Decree dated 30.03.2001 made in O.S.No.305 of 1999 on the file of the Learned Principal Subordinate Judge, Nagapattinam. https://hcservices.ecourts.gov.in/hcservices/ 2.The trial Court in the Judgment in O.S.No.305 of 1999 dated 30.03.2001 has among other things held that 'the Appellants/ Defendants are directed to pay a sum of Rs.3,36,000/- as compensation to the Respondents/Plaintiffs and passed the Judgment to the effect by granting two months time to the Appellants/ Defendants to pay the aforesaid amount etc.' 3.For trial three Issues have been framed for adjudication by the trial Court. 4.Before the trial Court, on the side of the Respondents/Plaintiffs witnesses PW1 and PW2 were examined and Ex.A.1 to Ex.A.5 were marked. On the side of the Appellants/Defendants, DW1 was examined and no Exhibits were marked. 5.The trial Court on an appreciation of oral and documentary evidence available on record has come to the resultant conclusion that the Respondents/Plaintiffs are entitled to receive a compensation of Rs.3,36,000/- from the Appellants/Defendants and accordingly, passed a Decree to that effect by granting two months time to the Appellants/Defendants to deposit the said amount into Court. 6.Being dissatisfied with the Judgment and Decree passed by the trial Court in O.S.No.305 of 1999, dated 30.03.2001, the Appellants/Defendants as an aggrieved persons have projected this Appeal before this Court. 7.The point that arises for rumination is: Whether the Respondents/Plaintiffs are entitled to receive a sum of Rs.4,00,000/- as compensation from the Appellants/Defendants, for the death of Sivaprakasam, on account of the carelessness and negligence of the Appellants/Defendants?. 8.According to the Learned Counsel for the Appellants/ Defendants, the trial Court's Judgment in the main suit in O.S.No.305 of 1999, dated 30.03.2001 is contrary to Law, weight of evidence and probabilities of the case and in fact, the trial Court has not assigned any reasons for arriving at a compensation of Rs.3,36,000/- with interest. 9.The Learned Counsel for the Appellants/Defendants submits that the trial Court has not assigned reasons on what basis it has fixed the age of the deceased Sivaprakasam as 27 in the absence of documentary proof for the same. 10.Advancing his argument, the Learned Counsel for the https://hcservices.ecourts.gov.in/hcservices/ Appellants/Defendants submits that the trial Court has not specified the reason in the Judgment on what basis it has fixed the compensation at Rs.3,36,000/- for the death of the deceased Sivaprakasam and in fact, there is no yardstick applied for arriving at the compensation. 11.Lastly, it is the contention of the Learned Counsel for the Appellants/Defendants that the trial Court has indulged in surmises and conjectures and moreover, the Award passed by the trial Court in any event is an excessive or exorbitant one and therefore, the same is liable to be set aside by this Court and the Appeal may be allowed by this Court, in the interest of Justice. 12.A perusal of the Plaint averments filed by the Respondents/ Plaintiffs would go to show that the deceased Sivaprakasam on 03.11.1998 at about 08.00 PM during night was proceeding on the road near Anderkadu Check Post and at the time, the high tension electric wire snapped and fell on the deceased, as a result of which the deceased died due to the electrocution and when the neighbours raised noise the Respondents/Plaintiffs came to the scene of occurrence and they arranged for stopping of electricity supply and accordingly, the electricity supply was stopped and when they saw the deceased Sivaprakasam, they came to know that he was dead. 13.Further, an information was furnished to the Village Administrative Officer for the death of Sivaprakasam and also a FIR under Section 174 of CrPC was registered in Crime No.657 of 1998 on the file of Vedaraniyam Police Station. The Constables attached to the said Police Station took the body of the deceased Sivaprakasam to the Government Hospital where Postmortem was conducted and the said Postmortem Report was filed. 14.The case of the Respondents/Plaintiffs is that for the death of Sivaprakasam, the defect in not maintaining the electricity wire properly by the Appellants/Defendants is the cause and in the scene of occurrence, the electric wire under control of the Appellants/Defendants, its men, its superintendent have not supervised the electric wires and they have remained in the state of repair. Also, the electric post was in a slanting position and further that, many electric posts were standing without any support and also, the side electric posts have no supporting wires and in the places where the electric posts were standing, concrete was not laid and as a result of which the said Sivaprakasam died and for his death, the Appellants/Defendants are liable to take responsibility. 15.According to the Respondents/Plaintiffs, the deceased Sivaprakasam was keeping good physic and good health and he was an active person. Before his death, he was employed in Salt Preparing Centre (cg;gsk;) and he was to supervise the employees besides performing agricultural jobs. In other days, he used to netting https://hcservices.ecourts.gov.in/hcservices/ baskets and he was earning a sum of Rs.4,500/- per month and after deducting a sum of Rs.1,000/- which he took for his personal expenses, the balance amount was spent by him towards his family expenses and for his children, wife and mother. The Respondents/Plaintiffs were dependents on the income of the deceased Sivaprakasam. Due to the death of the deceased Sivaprakasam, the Respondents/Plaintiffs have suffered untold mental agony and loss of income. The two children have lost their love and affection of the deceased father. At the time of his death, Sivaprakasam was aged about 27. Had he not died in the electric accident, then he would have lived for another 40 years and would have contributed in many ways to the Respondents/Plaintiffs. 16.The First Respondent/First Plaintiff (Wife of the deceased Sivaprakasam) is aged 22. The deceased Sivaprakasam had been alive for 40 years, he would have earned a salary of Rs.6,00,000/- because of the negligence and carelessness of the Appellants/ Defendants, the deceased Sivaprakasam had met with an accident, as a result of which the Respondents/Plaintiffs have lost a sum of Rs.6,00,000/-. However, the Respondents/Defendants have claimed a compensation of Rs.4,00,000/- from the Appellants/Defendants. 17.The Appellants/Defendants have taken a stand that it is true that Sivaprakasam has died on 03.11.1998 due to the electrocution and for his death, the Electricity Board is not responsible in any manner and further that on the date of accident, the Telephone Department people have dug a pit near the electricity pole for laying telephone cables and therefore, the pit was not closed and it remained opened. Moreover, on the day, there was a heavy rain and soil erosion took place and the incident had taken place in the scene of occurrence where Electric Pole No.13 got slanted during the night time and also, the wire that was passing in between the Pole No.12 and Pole No.13 got snapped and fell down and at the time, the deceased crossed the road and at the time, the snapped wire touched the deceased and the deceased came into contact with the said wire, as a result of which he died and therefore, for the death of the deceased, natural calamity and Telephone Department were responsible and not for the Electricity Department. 18.The deceased Sivaprakasam to the knowledge of the Defendants was working as ordinary Coolie Labour and to aver anything contra is not correct and for the death of Sivaprakasam the Electricity Board is not responsible. 19.It is the evidence of PW1 (First Respondent/First Plaintiff) that on 03.11.1998, her husband Sivaprakasam was proceeding in a Cycle near Adhanur Check Post at about 08.00 PM during night in the direction of North to South and at the time, the electric wire snapped and fell on her husband, as a result of which he expired and that she had not witnessed the occurrence. It is the further https://hcservices.ecourts.gov.in/hcservices/ evidence of PW1 that at the time of the death of her husband Sivaprakasam, his age was 24 years and because of the death of her husband, the entire family was affected and they are suffering much and they have lost the income and therefore, they claim a sum of Rs.4,00,000/- as compensation. 20.PW1 (First Respondent/First Plaintiff) in her cross examination has specifically deposed that it is not correct to state that because of the rain, the electric post fell down and therefore, the Electricity Board is not responsible. 21.The evidence of PW2 is to the effect that he knows PW1 and on 03.11.1998 at about 08.00 PM in the night, he along with Sivaprakasam were returning from the Provision Stores after purchasing the provisions and while Sivaprakasam was crossing the road, the electric wire snapped and fell on him, as a result on which he died and for the accident, the Electricity Board is responsible. 22.It is the further evidence of PW2 that before the incident 15 days ago, the Telephone Department dug a pit and Sivaprakasam was doing an Coolie job, getting income of Rs.150/- daily and he used to give that money to the family and he knows about the incident directly. 23.PW2 in his cross examination has stated that at the time of accident, it was a rainy season. But on the day of accident, there was no rain and that the agricultural job in a year would last long for six months. 24.DW1 in his evidence has stated that on the day of accident, he was on duty and at the accident place, a pit was newly dug for laying down telephone cables and a pit was dug even underneath the electric post and at the time of accident, there was a heavy rain and because of the rain and also due to digging of the pit, the electric post slanted and fell down and at about 09.00 PM in the night on the day of occurrence, he visited the scene of occurrence and since it was night on the day of occurrence and because of the carelessness of Sivaprakasam the accident had took place. 25.In Ex.A.1 xerox copy of FIR, the name of the complainant is mentioned as Thiyagarajan, V.A.O., Anderkadu. The person who died is mentioned as Sivaprakasam. The date of occurrence is mentioned as 03.11.1998 at about 20 hours. The date of information is 03.11.1998 at about 22 hours. The scene of occurrence Anderkadu Check Post is situated at a distance of 100 Feet at 5 KM distance on the Western side. 26.It is evident from the recitals in FIR namely Ex.A.1 that the complainant Thiyagarajan, VAO has mentioned that on 03.11.1998 at about 8 o'clock in the night near Anderkadu Check Post, the electric https://hcservices.ecourts.gov.in/hcservices/ post got slanted and the electric wire fell down and without seeing the said wire Thiru.Sivaprakasam, S/O.Ganesha Devar, Kailavanampettai, Vedaraniyam Taluk and Village went near the same and he got electrocuted and died on the spot. Based on the complaint of VAO Thiyagarajan, the Sub-Inspector (Trainee) of Vedaraniyam Police station R.Radhakrishnan, a criminal case was registered in Crime No.657 of 1998 under Section 174 of Criminal Procedure Code. 27.In Ex.A.2 Postmortem Certificate dated 04.11.1998 in respect of the deceased Sivaprakasam aged about 27 years, it is mentioned as below: "Postmortem commenced at 04.11.98, 11 AM to 12 Noon. Appearances found at the postmortem: An young male body was lying on its back. Face and limbs were smeared with sand. Rigor mortis of whole body was present blood stained fluid was oozing from the mouth both upper and lower limbs were extended. External injuries: 1.Electrical Burns a.Lower part of RT Thigh 5X1X1/2cms. b.Lower part of LT Thigh 2X1X1/2cms c.RT. Wrist just above 1X1X1/2cms. Internal Examination: 1.Hyoid bone Intact 2.Lungs and Heart showed signs of Asphyxia 3.Stomach contained undigested Food materials. 4.All abdominal organs showed signs of Asphyxia 5.Bladder was empty Skull and Brain were normal. Approximate time of death 12 to 24 hours prior to postmortem. Cause of Death: Reserved pending report of chemical analysis. 28.Ex.A.3 is the Lawyer's notice dated 21.12.1998 addressed to the Junior Engineer, Tamil Nadu Electricity Board, Vedaraniyam and Assistant Executive Engineer, Tamil Nadu Electricity Board, Vedaraniyam issued by the Respondents/Plaintiffs' Counsel in and by which a claim for compensation of Rs.5,00,000/- was made and the Appellants/Defendants are directed to pay the said sum of Rs.5,00,000/- within 15 days from the date of receipt of the said notice. Even in the said notice, it was mentioned that Sivaprakasam died due to electrocution on the spot itself and that the Respondents/Plaintiffs went to the scene of occurrence and he made an arrangement and stopped the electricity supply and after stopping the electricity supply when they removed the body of Sivaprakasam and saw https://hcservices.ecourts.gov.in/hcservices/ him they found that he was dead and immediately, they gave information to the VAO through him a complaint was lodged before the Vedaraniyam Police Station and in the presence of persons belonging to the Police Station of Vedaraniyam, the body of Sivaprakasam was taken to Vedaraniyam Government Hospital where the postmortem was conducted. 29.In Ex.A.4 Reply issued by the Assistant Executive Engineer (Operation and Maintenance) of Electricity Board, Vedaraniyam addressed to the Respondents/Plaintiffs's Lawyer, it is among other things mentioned that on 03.11.1998 at about 8 O'Clock during night Sivaprakasam, S/O.Ganesha Devar belonging to the Velappan Kadu, Age 27, because of the heavy rain in Vedaraniyam to Thiruthuraipoondi Main Road at Adhanur Check Post, one Electricity Pole got slanted and as a result of which the electricity wires got snapped and while they were falling down the aforesaid person while endeavouring to cross the road from one Shop got electrocuted and died on the spot etc. 30.Interestingly, in Ex.A.4 Reply notice dated 05.01.1999, it was mentioned that the scene of occurrence was inspected by the Junior Engineer (maintenance), Vedaraniyam Junior Engineer (Operation and Maintenance), Kariyapattinam, the Board Employees and they conducted inspection and found that the electric post was in a proper condition and on the morning, the Telephone Department for the purpose of laying down the Cables dug a pit for six feet and the pit was not closed and the electric post got slanted on the Northern Side slowly and as a result of which the electric wires got snapped each other, as a result of which the wires got cut and fell down, as a result of which one person from the Shop made an attempt to cross the Road in the said path and that the cut electricity wires came into contact with the deceased and the deceased died on account of the same. 31.Ex.A.5 is the Legal Heir Certificate dated 03.12.1998 issued by the Tahsildar of Vedaraniyam wherein the Respondents 1 to 4 have been shown as Legal Representatives of the deceased Sivaprakasam. 32.The core stand taken by the Appellants/Defendants as seen from Ex.A.4 Reply notice is that a pit was dug near the side of the electric post on the day of occurrence and the said pit was not closed and as a result of heavy rain, the electric post got slanted and because of the natural calamity and because of the heavy rain and digging of a pit, the electric post got damaged and as a result of which the incident took place. 33.In this connection, it is not out of place for this Court to point out that 'Electricity is a dangerous thing and resultantly, the duty of those individuals, who own or control it is laid down in Rylands -vs. Fletcher's case (1868) LR 3 H.L.330.' The Electricity Board is liable for the negligence in the exercise of its statutory https://hcservices.ecourts.gov.in/hcservices/ powers and in addition to the fact that it is liable for nuisance also. However, the burden of establishing that there has been no negligence is on the Electricity Board as there is no obligation placed on the person, who has suffered damage, to prove negligence on his part. The standard of care required is a high one, owing to the dangerous nature of electricity as per the decision Northwestern Utilities v.London Guarantee and Accident Co. (1936) A.C. 108 (gas). 34.When it is overhead by wires or cables, in addition to in precaution required by a statute a great care must be taken to see that it is not likely to become the source of danger. 35.The individuals who install or disconnect electrical equipment are liable for negligence. 36.As far as the present case is concerned, it is quite clear that the VAO Thiru.Thiyagarajan of Anderkadu has lodged a FIR as per Ex.A.1 in Crime No.657 of 1998, which has been registered under Section 174 of CrPC on 03.11.1998 at 22 hours. Though in the Ex.A.1 FIR the complainant Thiyagarajan, VAO has mentioned that on 03.11.2998 at about 08.00PM during night time near the Anderkadu Check Post, the Electricity Pole slanted and the wire from the said pole snapped which was not seen by the deceased Sivaprakasam and he died of electrocution etc., this Court is of the considered view that high degree of care is required in maintaining the electricity pole and the supply of electricity in this regard. Besides this, the Appellants/ Defendants notwithstanding the fact that they have been taken a plea that because of the heavy rain and due to natural calamity and digging a pit on the side of the electricity post for the purpose of laying down telephone cables, the incident took place on 03.11.1998 by means of pole getting slanted and the wire getting snapped etc. PW2 in his evidence had categorically stated in the cross examination that there was no rain on the day of occurrence, he was returning along with the deceased Sivaprakasam after purchasing provision from the Provision Store. On the day of occurrence at about 08.00 PM when Sivaprakasam crossed the road, the electric wire fell upon him and he died on the spot would go to show that the stand taken by the Electricity Board is not a correct and tenable one and therefore, the plea taken by the Appellants/Defendants is out rightly rejected by this Court. 37.The term 'negligence' can be defined as a state of mind is the opposite of intention. An act is intentional when it is purposeful and done with either the desire or the object of producing a particular result. An act is negligent when it is done, not with the desire of producing a particular result, but actually producing that result by carelessness or indifference. A negligent state of mind is consistent with an intention to exercise, at any rate, some care, as the case may be. In short, the term 'negligence' has three meaning. (1)A state of mind in which it is opposed to intention (2) https://hcservices.ecourts.gov.in/hcservices/ careless conduct (3) the breach of a duty to take care that is imposed by either common or statute law. 38.When a duty to take care arises, the standard of care is generally that of the reasonable man, although this is not always so and resultantly, failure to take reasonable care and negligence or sometimes used as synonymous terms regardless of whether or not any duty exists. As a matter of fact the term 'negligence' is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do as per decision Blyth v.Birminghham Waterworks (1856) 11 Ex.781, 784. 39.The other meaning of 'negligence' is used in an objective sense and speaks of a breach of duty to take care, imposed by either common or statue law. In strict legal analysis, negligence means more than the heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing as per the decision Lochgelly Iron and Coal Company v.M.Mullan (1934) A.C.1,25. 40.One cannot ignore a vital fact that the term 'negligence' a breach of duty is of a specific tort in itself and not simply ... an element in some more complex relationship or in some specialized breach of duty as per the decision Grant v. Australian Knitting Mills (1936)A.C. 85, per Lord Wright P.103. 41.The Electricity Board is to prove that there has been no negligence on its part and it is not for the individual who suffered the damage to prove negligence. It cannot be gainsaid when an individual has been injured or died as a result of breach by Electricity undertaker of a regulation then he has a right of action against the undertaker in respect of such breach independently of any question of negligence. 42.The obligation to maintain over head Electric wire in a post belonging to Electricity Board is an absolute one and not merely to take a reasonable care. The crux of the issue is whether the Electricity undertakers has fulfilled their duty to take care having regard to the situation and position of the wire and to the known circumstances generally. 43.In Cunard v. Antityre Limited (1933) 1 K.B.551, 558 Talbot J. speaks of action able negligence as depending on breach of duty owned by defendant to plaintiff. 44.In Riddell v. Reid (1943) A.C. 1, 31 Lord Porter observed that 'Negligence is the failure to use the requisite amount of care https://hcservices.ecourts.gov.in/hcservices/ required by the law in the case where a duty to use care exists. 45.This Court pertinently opines that is legally irrelevant to inquire into an individual's actual state of mind inasmuch as it is his conduct which needs to be judged. 46.In the present case on hand, it cannot be denied that the First Respondent/First Plaintiff became a widow at the young age of 22. The Respondents 2 to 4/Plaintiffs 2 to 4 are the minor children of the deceased Sivaprakasam and mother of him. 47.The trial Court opined that the deceased Sivaprakasam was a Coolie at Salt-pan Centre (cg;gsk;) which was not disputed by the Appellants/Respondents and therefore, he would have earned daily at least Rs.75/- and after leaving Rs.25/- towards his personal expenses, he took into consideration that he spent Rs.50/- towards the expenses of the Respondents/Plaintiffs and in a month at least 20 days there would be worked and accordingly at least for 55 years he would have worked as a Coolie at the Salt preparation Centre and he would have contributed to the family by earning of income and accordingly, it awarded a sum of Rs.3,36,000/- as compensation. 48.Earlier, the trial Court came to the conclusion that the Electricity Board had not maintained the electric post properly and it had not conducted enough supervision over the electric pole and because of the negligence of the electricity Board, the accident took place and as a result of which Sivaprakasam died and therefore, it came to the inevitable conclusion that the Appellants/Defendants were liable to pay a compensation to the Respondents/Plaintiffs. In short, the plea of natural calamity was negatived by the trial Court. 49.It is the evidence of DW1 in his cross examination that the Telephone Department two days before the date of accident had dug a pit and they had not obtained permission and they had not also taken necessary steps for the Telephone Department digging a pit without obtaining the permission and also the Lineman