THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.C.C.A No. 191 of 2000 Judgment: This appeal is directed against the judgment and decree dated 07.04.2000 passed in O.S. No. 109 of 1995 by the II Senior Civil judge, City Civil Court, Hyderabad, whereby and whereunder the appellants herein suffered a decree. The parties hereinafter will be referred to as they are arrayed before the trial Court for the sake of convenience. The brief facts of the case are as follows. The plaintiff is the mother of the deceased boy. The first defendant is the AP Transmission Corporation Limited represented by its Superintending Engineer (Operation Circle), Hyderabad. The second defendant is the Assistant Divisional Engineer (Distribution), Musheerabad, Hyderabad. The father of the deceased was shown as the third defendant. The plaintiff filed the suit against defendants 1 and 2 directing them to pay compensation of Rs.5,00,000/- with interest at 24% p.a. and for the costs of the suit. The case of the plaintiff is that her son namely C.V.S.V.N. Sharma (hereinafter referred to as ‘the deceased’) was studying Intermediate course in Keshav Memorial Junior College, Narayanguda as on the date of accident. He was the only son to her. He was brilliant and promising in his academic career. He was also qualified for the post advertised by the Headquarters Recruitment Zone (Military), Mount Road, Tenayampet, Madras. He appeared for the interview held for the said post on 21.11.1991. He was expecting selection and assuring salary of Rs.2,000/- per month. The further case of the plaintiff is that on the fateful day i.e., on 30.12.1990 the deceased went to his friend’s house bearing No.1-1-336/88, Vivek Nagar, Chikkadpally, Hyderabad, and while he was removing a kite from the High Tension wires he came in contact with those wires and sustained burn injuries and succumbed to those injuries on the same day while undergoing treatment in Osmania General Hospital, Hyderabad. A case in Crime No.463 of 1990 was registered on the same day. The further case of the plaintiff is that the High Tension wire was drawn very close to the building, thereby the first floor of the building became accident prone and that the owners of the building had been making representations since 1985 to the defendants requesting them to shift the High Tension lines. Alleging that the accident occurred due to the negligent act of the defendants in not removing the High Tension wires, the plaintiff filed the suit. It is also the specific case of the plaintiff that on 21.12.1985 the owners of the building deposited an amount of Rs.3840/- by way of Demand Draft towards estimated charges for shifting the poles and that the first defendant by letter dated 30.09.1999 directed the plaintiff to approach the second defendant for taking necessary action and accordingly a representation was made to the second defendant, but the second defendant failed to take any steps to shift the electric live wires from the proximity of the building and allowed the live wires to hang very close to the building. Contending that due to untimely death of their son, the plaintiff and the third defendant suffered unbearable mental agony and they are deprived of the support of their son in their old age, filed the suit claiming compensation. The second defendant filed written statement, which was adopted by the first defendant. The defendants, inter alia, contended that the deceased while trying to retrieve one of the kites fell down near the balcony of the said house accidentally came in contact with 11 KV Overhead Line near the balcony of the house. Their specific case is that since the boy came in contact with live electric wires while flying kites in the public place which was prohibited by the police it cannot be said that the department is responsible for the death of the deceased. The allegation that the poles were very close to the building and that the defendants are responsible for the accident has been denied. Their further case is that the building was constructed much later adjacent to 11 KV lines. It is also their case that on the request of the owner of the building, the L.T Line was shifted and that the owners of the building had requested only for shifting of L.T Line and that there was no possibility of shifting of H.T Line as it is a narrow road with telephone lines existing on the other side of the road. Contending that the deceased was not earning any amount and there was nothing on record to show that the deceased would have earned Rs.2000/- per month and that the total claim is excessive and exorbitant the defendants requested to dismiss the suit. The trial Court framed the following issues. 1. Whether the death of the son of the plaintiff and defendant No.3 was caused due to the negligence of the defendants 1 and 2? 2. Whether the plaintiff and defendant No.3 are entitled to the damages claimed from defendants 1 and 2? 3. To what relief? On behalf of the plaintiff, the plaintiff herself was examined as PW.1 and PWs.2 and 3 were examined and Exs.A1 to A16 were marked. On behalf of the defendants DW.1 was examined and no documents were marked. The trial Court, on appreciation of the entire oral and documentary evidence on record, came to the conclusion that in spite of making a request to shift the lines the Electricity Department failed to shift the lines and that the High Tension electricity wires were at close proximity to the building and that the flying of kites is conventional or traditional play and that the defendants failed to maintain the distance of the lines from the residential buildings and holding so suit has been decreed and compensation of Rs.3,00,000/- has been awarded with interest at 12% p.a., from the date of decree till realization. Aggrieved by the same, the present appeal has been filed. Learned counsel for the appellants/defendants submits that the deceased was educated and he was flying kites and it is due to the negligence of the deceased he came in contact with the live wire and therefore the defendants cannot be held responsible for the death of the deceased. It is also contended that the owners of the house had constructed the house in very close proximity to the existing electric lines and it is the mistake of the owners of the house and this fact was not taken into consideration by the Court below. It is also contended that the distance to be maintained by the Electricity Department as required under the statutory provisions under Rules 79 and 80 of the Indian Electricity Rules, 1956 has been maintained. It is also submitted that after the application by the owners of the house the LT wires were shifted, whereas HT wires could not be shifted as the line was too narrow and there were already telephone lines. Learned counsel for the respondent/plaintiff submitted that admittedly the owner of the building has filed an application along with required fees for shifting of the wires and that in spite of paying required fees there was no proper action by the defendants and there is no proof that even the LT lines were shifted. The only point that arises for consideration is whether the findings of the lower Court are based on proper appreciation of evidence or not? It is not in dispute that the deceased boy was studying Intermediate and that he applied for the post advertised by the Headquarters Recruitment Zone (Military), Mount Road, Tenayampet, Madras and that he had appeared for the interview held for the said post on 21.11.1991. It is also not in dispute that the deceased was the only son to the plaintiff and the third defendant. The evidence of PWs.1 to 3 shows that the deceased boy came in contact with a live electric wire while trying to catch a kite and that subsequently he succumbed to injuries on the same day. The evidence of PW.2 the owner of the building assumes importance. Admittedly, the owner of the building filed an application for shifting of wires. He had paid required fees of Rs.3,840/-. Though the evidence of DW.1 the Assistant Divisional Engineer shows that they had already shifted the LT lines on the application of PW.2, but he had admitted that he had not filed any documentary evidence to show that they had shifted LT lines at the request of PW.2. Of course, he has denied the suggestion that he had not shifted the LT Lines. He has also admitted that even the locality people had been requesting to shift the HT Lines from the spot since long time. Of course, he says that they had conveyed to the locality people that it is not possible to shift HT Lines. Rules 79 and 80 of the Indian Electricity Rules 1956 are as follows. 79. Clearance from buildings of low and medium voltage lines and service lines-(1) Where a low or medium voltage over-head line passes above or adjacent to or terminates on any building, the following minimum clearances from any accessible point, on the basis of maximum sag, shall be observed:- (a) for any flat roof, open balcony, verandah roof and lean-to- roof- (i) when the line passes above the building a vertical clearance of 2.5 metres from the highest point, and (ii) when the line passes adjacent to the building a horizontal clearance of 1.2 metres from the nearest point, and (b) for pitched roof- (i) when the line passes above the building a vertical clearance of 2.5 metres immediately under the lines, and (ii) when the line passes adjacent to the building a horizontal clearance of 1.2 metres. (2) Any conductor so situated as to have a clearance less than that specified in sub-rule (I) shall be adequately insulated and shall be attached at suitable intervals to a bare earthed bearer wire having a breaking strength of not less than 350 kg. (3) The horizontal clearance shall be measured when the line is at a maximum deflection from the vertical due to wind pressure. Explanation- For the purpose of this rule, expression “building” shall be deemed to include any structure, whether permanent or temporary. 80. Clearance from buildings of high and extra- high voltage lines.-(1) Where a high or extra-high voltage over-head line passes above or adjacent to any building or part of a building it shall have on the basis of maximum sag a vertical clearance above the highest part of the building immediately under such line, of not less than- (a) for high voltage lines up to and including 33,000 volts .. 3.7 metres (b) for extra-high voltage lines .. 3.7 metres plus 0.30 metre for every additional 33,000 volts or part thereof. (2) The horizontal clearance between the nearest conductor and any part of such building shall, on the basis of maximum deflection due to wind pressure, be not less than- (a) for high voltage lines up to and including 11,000 volts .. 1.2 metres (b) for high voltage lines above 11,000 volts and up to and including 33,000 volts .. 2.0 metres (c) for extra-high voltage lines .. 2.0 metres plus 0.3 metre For every additional 33,000 volts or part thereof. Explanation-For the purpose of this rule expression “building” shall be deemed to include any structure, whether permanent or temporary. The above rules show that the distance as shown in those rules have to be maintained and conductor shall be adequately insulated. It is not the case of DW.1 that they had maintained the said distance and insulated the conductor. There is no documentary evidence to show that the Electricity Department strictly complied with the said rules. According to DW.1, it is not mentioned by the owner of the building (PW.2) whether he made a request to shift HT lines or LT lines and in the application he had only stated about the shifting of lines. If that version of DW.1 is correct the electricity department having received requisite fee ought to have asked the owner of the building PW.2 to clarify whether he sought the shifting of H.T Lines or L.T Lines. As seen from the contents of the written statement the plea taken by the defendants is that shifting of HT wires is not possible as the lane is narrow and there are telephone lines existing on either side of the lane. If there are telephone lines and the lane is narrow the deceased cannot be found fault because the responsibility lies on the defendants to see that the distance as shown in the above quoted rules are being maintained. The public authorities have to consider the safety of the citizens particularly when a request is made by the locality people for shifting of HT wires and particularly when PW.2 filed a requisition and paid requisite fees. It appears that there was inordinate delay in shifting the wires. Whatever it may be, there is no proof of even shifting of those LT wires or HT wires. No documents have been filed on behalf of the defendants. Thus, it appears that the defendants were negligent in not removing the HT wires even after a request was made by the locality people and even after an application was submitted by PW.2 and even after PW.2 had paid the requisite fees for shifting of the wires. One of the important points argued by the learned counsel for the appellants is that PW.2 being the building owner had constructed the building without following the rules and regulations and without obtaining necessary permission from the municipal authorities and in very close proximity to the existing electricity wires. If at all PW.2 had constructed the building without following the rules and regulations and without obtaining permission from the municipal authorities and in close proximity to the live wires the defendants ought to have examined any one of the municipal authorities to prove the same. Admittedly, none of the municipal authorities have been examined to show that PW.2 constructed the building against the rules. Whatever it may be, existing of HT wires in close proximity to the building is not in dispute and the request of locality people and PW.2 for shifting of wires is also not in dispute and admittedly the defendants had failed to shift the H.T Lines in spite of the request of the locality people. In the circumstances, I do not see any reason to interfere with the well reasoned judgment of the lower Court. As far as the amount of compensation is concerned, considering the age and educational qualifications of the deceased and other facts and circumstances of the case, the lower Court has rightly calculated the compensation and I do not find any reasons to interfere with the same also. However, in the circumstances, the rate of interest awarded by the lower Court is reduced from 12% p.a., to 9% p.a. The appeal is, accordingly, disposed of. ______________________ B. CHANDRA KUMAR, J. Date: 21.07.2010 Nsr