IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 AS.No. 332 of 1996() --------------------------- OS.22/1991 of SUB COURT, MUVATTUPUZHA .................... APPELLANTS/ PLAINTIFFS: --------------------------------------- 1. KUNJAN RAGHAVAN, S/O KUNJAN, CHARUVELIL HOUSE, NORTH MARADI KARA, MARADI VILLAGE. 2. AMMINI , W/O. KUNJAN RAGHAVAN, CHERUVELIL HOUSE, NORTH MARADY KARA, MARADI VILLAGE. BY ADVS. SRI. SIBY MATHEW, SRI. WILSON URMESE RESPONDENTS/ DEFENDANTS: --------------------------------------------- 1. KERALA STATE ELECTRICITY BOARD, TRIVANDRUM, REPRESENTED BY ITS SECRETARY, KERALA ELECTRICITY BOARD, HEAD OFFICE, THIRUVANANTHAPURAM. 2. THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION, MUVATTUPUZHA. BY ADV. SRI.C.K.KARUNAKARAN (SC FOR KSEB) THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 21/10/2010, THE COURT ON SAME DAY DELIVERED THE FOLLOWING: sts THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 332 of 1996 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of October, 2010. JUDGMENT Thottathil B. Radhakrishnan, J , C.R. Appellants sued the Kerala State Electricity Board and its officer claiming damages for the alleged electrocution of their son, Shibu, on 27.7.1989. Then aged 20 years, he had studied upto SSLC and was employed in an electrical shop drawing daily wages at the rate of Rs.50/-. The plaintiffs pleaded that while the deceased and his friends, P.Ws.3 and 4, were swimming and playing with the aid of inflated rubber tube in paddy fields behind a Government U.P. School, which remained flooded due to rains, the deceased came into contact with a live electric supply line that was hanging close to water and resultantly succumbed. They attributed Shibu's death to the negligence of the defendants and claimed damages A.S.332/1996. 2 assessed as Rs.1,20,000/- towards loss of income, Rs.7,500/- for pain and suffering, Rs.10,000/- towards loss of love and affection, Rs.5,000/- towards funeral expenses and Rs.1,500/- towards other expenses. 2. Defendants contended that the deceased was playing with his friends in the flooded paddy field and there was sufficient clearance between the wire and water level and that is why the line was not switched off. They denied the alleged negligence and pleaded that Shibu did not come into contact with the electric line. They put forth a case that Shibu died of 'Asphyxia' due to drowning and that the plaintiffs are therefore not entitled to damages from the defendants. They also disputed the plaintiffs' plea as to the age, qualification and other personal details of the deceased. A.S.332/1996. 3 3. The trial Judge heard and recorded the testimony of P.W.2, the father of the deceased, of P.Ws.3 and 4, the friends, who were playing with Shibu at the relevant time and of P.W.1, the doctor who conducted autopsy and issued Ext.A1 post-mortem certificate. Ext.A2 SSLC certificate, Ext.A3 certificate for wages paid to Shibu by M/s. Dhanya Auto Electric Works, Muvattupuzha, Ext.A4 identity card issued to Shibu from the Town Employment Exchange, Muvattupuzha, Ext.A5 inquest report, Ext.A6 FIR and FIS and Ext.A7 photocopy of scene mahazar in the criminal case registered regarding the occurence, were admitted to evidence. The defendants did not tender any oral or documentary evidence. 4. The trial court found that the plaintiffs failed to prove that Shibu died as a result of electrocution or on account of any negligence attributable to the defendants. Holding so, the suit was dismissed, also without quantifying damages. A.S.332/1996. 4 5. In support of this plaintiffs' appeal, it was argued that the preponderance of probabilities emanating out of the totality of the evidence on record unequivocally points only at the negligence of the defendants and the principle of strict liability applies on the facts of the case in hand. It was also argued that the inability of P.W.1, the doctor, to state with specificity, on the basis of the autopsy, as to whether it was a case of electrocution, cannot be treated as decisive, having regard to the rest of the evidence. P.Ws.3 and P.W.4 were eye witnesses whose presence was proved also by the fact that it was P.W.3, who tendered the first information statement recorded by the police within a short span of time after the alleged incident, it is pointed out. It was further argued that the impugned finding on the issue of negligence is to be reversed and damages be awarded as prayed for, in view of the legal evidence in that regard. A.S.332/1996. 5 6. Per contra, learned counsel appearing for the defendants argued that the material evidence that clinches the issue is Ext.A1 postmortem certificate. It does not contain any burn injury being recorded and does not disclose any injury attributable to electrocution. It is pointed out that 'Asphyxia' is not shown attributable to electrocution, but only to drowning. Learned counsel very persuasively said that even if the defendants did not tender any evidence, oral or documentary, the totality of the materials on record does not lead to any conclusion other than that arrived at by the trial court and that the appeal is to be dismissed. 7. Looking at the written statement, we find that two facts are admitted. One is that the deceased was playing with his friends in the flooded paddy field. Second is that there was a live electric wire above the water, though the plea is that there A.S.332/1996. 6 was sufficient clearance between the wire and the water level. With this factual situation juxtaposed with Ext.A7 scene mahazar and Ext.A6 FIR and FIS, we find that these materials sufficiently corroborate the testimony of P.Ws.3 and 4, who have necessarily to be taken as disinterested, except may be to the extent of an urge to ensure that justice is rendered to their friend. 8. It is an argument on behalf of the Board that while the version of P.W.3 is that for about four minutes the deceased was found hanging from the electric wire, there is no evidence of any burn injury in the inside of the palm of the victim. Learned counsel for the Board points out that when high voltage burns are suffered, such external injuries may have to be available. We need to note that there is no defence version offered before the trial court on any of the relevant aspects, by the defendants adducing any evidence. We have been taken through some of A.S.332/1996. 7 the authorities in medical jurisprudence and we find that the external injuries as would be available in cases of bodies which are dry at the time of contact with live electric wire and in cases of those which come into contact while wet, tend to be different. In fact, we notice a passage from Medical Jurisprudence and Toxicology by Dr.K.S. Narayanan Reddy that a well-moistened skin may not show electrical burn, while a thick dry skin may show well-marked electrical burn. 9. Ext.A1 postmortem report shows that the opinion as to the cause of death was recorded as 'Asphyxia' probably due to drowning. It records frothy fluid extruding from both nostrils and absence of external injuries. The lungs were congested and revealed plenty of frothy fluid. The chambers of the heart were full. Stomach contained muddy fluid. On the basis of this postmortem certificate, the doctor, who issued it tendered evidence as P.W.1. He said that he did not note the A.S.332/1996. 8 colour of the body and did not see any object in the hand or any blood in the frothy fluid. He did not see any foreign matters like weeds in the lungs and there was no external or internal injury. In fact, he speaks in tune with the views expressed by Dr. Reddy in his book. He says that when electric contact is in a wet surface, external injuries may not be found and he reasons it out by saying that it is because of the fact that energy will be distributed over a wider area. He says that there were no foreign matters in the stomach and he cannot say whether the deceased suffered any respiratory arrest, which is probable in the case of an electrical contact. When it was put to him that the primary cause of death of Shibu was electrocution, he stated that he cannot give a definite opinion. He was specifically asked as to what was his opinion. He then said that there was no confirmatory evidence of drowning. He also said that presence of frothy liquid in the nostril; expanded nature of lungs with plenty of frothy fluid; congestion of the heart; and presence A.S.332/1996. 9 of muddy fluid in the stomach are confirmatory evidence of drowning. P.W.1 further stated the condition of the dead body in cases relating to electrocution and ultimately concluded that he cannot definitely say whether the death was due to electric shock. 10. With the quality of the aforesaid forensic evidence, we have to visualize the occurrence on preponderance of probabilities as emanating out of the evidence available in the case. 11. Ext.A7 scene mahazar, the first information statement given by P.W.3 and the undisputed fact that the deceased and his friends were playing in the flooded paddy field, coupled with the existence of a live electric wire in the area, when taken together, show that the version of P.W.3 regarding the incident is the most probable one. His version that A.S.332/1996. 10 the victim was stuck on to the live electric line for about four minutes may be a little bit of exaggeration. He is an youngster of around 20 years of age. He belongs to the rural set up. He, P.W.4 and the deceased were playing in the water at the relevant time. It is the version of an eye witness about a friend dying in the water. If his version that Shibu had come into contact with the live wire is accepted, it would be a case where, due to the contact with the live electric wire, Shibu suffered an electric shock and on account of that, he was thrown into the water. There is not even a sustainable suggestion by the defendants that Shibu did not know to swim. It could have been a case where the muscular instability of the victim, resulting out of the electric shock was such that he could not have saved himself from drowning. This is the inescapable conclusion, regard being had to the common course of natural events and human conduct. We proceed to elucidate this further. A.S.332/1996. 11 12. In terms of Section 114 of the Evidence Act, the court is empowered to presume existence of certain facts. The court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. The term “common course”, as noted in State of Rajasthan v. Bhera, 1997 Cri.L.J.2347, qualifies not only natural events but it also qualifies human conduct, and the common course of natural events and human conduct has its origin in the habit of man or other beings irrespective of the fact whether such habit is on account of the operation of law of nature or on account of the operation of law made by man. We are in agreement with that view. Common course of human conduct on account of the operation of law of nature includes human conduct attributable to the ability to think and act as an ordinary human being. Reflex actions and other attributes attendant to normal A.S.332/1996. 12 functioning of the human body and mind are part of the common course of human conduct. This includes the indomitable urge to self-preservation. 13. The importance and validity of the duty and right to self-preservation is well reflected and noticed with emphasis in Surjit Singh v. State of Punjab ((1996) 2 SCC 336) profitably quoting Verses 17, 18, 20 and 22 in Chapter 16 of Garuda Purana. It is worthwhile in this case to quote those very Verses: 17. Vinaa dehena kasyaapi canpurushaartho na vidyate Tasmaaddeham dhanam rakshetpunyakarmaani saadhayet 18. Rakshayetsarvadaatmaanamaatmaa sarvasya bhaajanam Rakshane Yatnamaatishthejje vanbhaadraani pashyati 20. Sharirarakshanopaayaah kriyante sarvadaa budhaih Necchanti cha punastyaagamapi kushthaadiroginah A.S.332/1996. 13 22. Aatmaiva yadi naatmaanamahitebhyo nivaarayet Konsyo hitakarastasmaadaatmaanam taarayishyati The English version of the above, as noted by the Apex Court, is as follows: 17. Without the body how can one obtain the objects of human life? Therefore protecting the body which is the wealth, one should perform the deeds of merit. 18. One should protect his body which is responsible for everything. He who protects himself by all efforts, will see many auspicious occasions in life. 20. The wise always undertake the protective measures for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body. 22. If one does not prevent what is unpleasant to himself, who else will do it? Therefore one should do what is good to himself. (emphasis supplied) A.S.332/1996. 14 14. In the common course of human conduct, it has necessarily to be presumed that one facing a situation which may result in his death would resort to everything possible under his command to escape from the clutches of death. This is an inescapable inference and a legitimate presumption based on common course of human conduct and also on the basis of common course of natural events. This presumption is available as regards the conduct expected of Shibu. Had he fallen into water without suffering an electric shock resulting in his being immobilized, the remains of that robust young boy of 20 years would not have been found without any evidence of struggle in the water. The postmortem report clearly shows that there was no attempt on the part of the deceased to escape from the water. There is no indication that the victim had struggled in the water. What does it show? Either it was a dead body that dropped into the water or that what fell in the water was an A.S.332/1996. 15 incapacitated, may be a live, body, which could not, but drown and die. Electrical injuries, indisputably, can lead to immediate unconscious stage. Dr.Reddy speaks of this in his book referred to above. A hale and healthy youngster, Shibu, playing in the water would never accept for himself a situation of death in the water. The urge to live and be alive would have only prompted him to escape from water. Self-preservation of one's life would be the only urge that would surge if one is conscious while drowning. Every available reflexes will motivate action to escape death. They are part of the thought process. This is why self-preservation is treated as fundamental in nature, sacred, precious, inviolable and the necessary concomitant of the right to life. This aspect is indefeasible part of human conduct. On the evidence relating to the body of the victim, the inescapable conclusion is that Shibu suffered electric shock and was resultantly thrown into the water from which he could not save himself, he having been either dead, unconscious or wholly A.S.332/1996. 16 immobilized excluding him from even attempting to get out of the water. 15. On the basis of the evidence on record, we find that the incident speaks for itself. Res ipsa loquitur. Even assuming that Shibu died of drowning, his coming into contact with the live electric wire has been proved by the acceptable versions of P.Ws.3 and 4. Then, the conclusion is inescapable that Shibu drowning in water was a consequence of the chain of events arising out of the contact with the live wire. Such continuity of the chain of causation did not snap when Shibu fell off from the electric wire. 16. Now the question is whether the deceased could be attributed with any negligence. Learned counsel for the Board points out that P.Ws.3 and 4 and Shibu were playing in the water 50 meters from the electric post. That does not A.S.332/1996. 17 improve the matter. The question is whether the electric line was maintained with statutory clearance as required in terms of the relevant laws. The Board is the authority to have the best evidence. There is no evidence in this regard by the Board. This is a case of no evidence in defence. Not only that, the Board is a licensee dealing with electrical energy, which is hazardous. Board is the sole licensee having monopoly operation with the support of statutory provisions. Statutory rights are coupled with statutory duties. The duties and responsibilities of licensees stand to charge the Board and its officers of such liabilities as would fall within the principle of strict liability as laid down by the Apex Court in H.S.E.B. v. Ram Nath ((2004) 5 SCC 793) and M.P. Electricity Board v. Shail Kumar ((2002) 2 SCC 162. In the case in hand, there is no question of holding that there is any situation where the deceased had contributed to the accident. In this view of the matter, the finding of the trial court that Shibu was negligent A.S.332/1996. 18 and that resuled in his death is unsustainable to deprive his estate, heirs and representatives of damages on account of his death. That finding is therefore reversed and it is held that Shibu's death is attributable only to the negligence of the Board and its officials. The Board is also vicariously liable for the tortious liabilities so incurred by its servants. 17. On to the question of the quantum of damages, we shall now consider the facts and evidence relevant in that regard. The parents of the deceased were quite young at the relevant time. Father was 43 years old and mother 39. They had to unfortunately sue for damages for the death of their son, who died at the age of 20 years. His age is proved with the SSLC certificate. He was looked upon as the bread winner of the family. Ext.A3 certificate for wages shows that he was earning daily wages at the rate of Rs.50/- at the time of his death, that is, when he was 20 years old. Ext.A4 shows that the A.S.332/1996. 19 deceased had registered his name with the Employment Exchange. Obviously, he had a future to aspire for. Dependency of the parents and various other relevant factors taken in the back drop of these proved facts would show that the annual income could be reasonably fixed at Rs.8,800/- after deducting 1/3rd in consideration of the expenses of the victim, had he been alive. Rounding it off, it comes to Rs.9,000/-. The reasonable multiplier, having regard to the age of the victim being 20 years, would be 16. Taking the average of the age of the parents to determine the multiplier, we will be reaching the figure 18 as the multiplier and it makes not much of a difference. We adopt 18 x 9000 as the annual income, which means that an amount of Rs.1,62,000/- could be treated as the reasonable compensation towards loss of earnings. Adding to this the amount of Rs.7,500/- claimed towards pain and suffering, Rs.3,000/- towards funeral expenses, Rs.10,000/- towards loss of love and affection, all such claims being reasonable in our A.S.332/1996. 20 judgment, the total would come to Rs.1,82,500/-. The total amount claimed in the plaint is Rs.1,44,000/-. We accordingly, confine the relief to Rs.1,44,000/- with eligible interest and costs. In the result, allowing the appeal: i) The impugned decree and judgment are set aside. ii) The suit is decreed granting the plaintiffs a decree for recovery of Rs.1,44,000/- with interest at 6% per annum from 27.7.1989, the date of death of Shibu, till payment with costs of this appeal and of the suit, provided such amount is paid by depositing it within a period of two months from now. In the event of failure to make such deposit, the plaintiffs will be eligible to such decree with the rate of interest modified at 12% and all such amounts shall be charged on and recoverable from the assets of the first defendant. A.S.332/1996. 21 iii) In exercise of power under Order 33 Rule 10 read with Order 44 Rule 1, it is ordered that the court fee payable by the plaintiffs in this appeal and in the suit from which this appeal arises shall be recoverable from the first respondent/first defendant. Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.