IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 RFA.No. 769 of 2008() --------------------- OS.46/2000 of SUB COURT, SULTHAN BATHERY .................... APPELLANT/IST DEFENDANT ------------------------------------------- KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDHUTHI BHAVAN, PATTAM, THIRUVANANTHAPURAM. BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB RESPONDENT(S): PLAINTIFFS AND 2ND DEFENDANT ------------------------------------------- 1. K.SARASWATHI, AGED 47 YEARS, W/O.V.R.MOHANADASAN @ MOHAN DAS, HOUSE WIFE, VELUNGAL HOUSE, VAZHAVATTA, MUTTIL P.O., VAZHAVATTA, VYTHIRI. 2. DHANYA DAS, AGED 27 YEARS, D/O.V.R.MOHANADASAN @ MOHAN DAS, VELUNGAL HOUSE, VAZHAVATTA, MUTTIL P.O., VAZHAVATTA, VYTHIRI. 3. K.SOUMYA, AGED 25 YEARS, D/O.V.R.MOHANADASAN @ MOHAN DAS, VELUNGAL HOUSE, VAZHAVATTA, MUTTIL P.O., VAZHAVATTA, VYTHIRI. 4. K.KARUNAKARAN, S/O.KUTTI, AGED 59 YEARS, KOLANGARAYIL HOUSE, MEENANGADI P.O., SULTHAN BATHERI. SRI.N.NAGARESH, COUNSEL FOR THE CAVEATORS. THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 28/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: KURIAN JOSEPH & K.T.SANKARAN, JJ. ----------------------------------------- R.F.A.No.769 of 2008 ----------------------------------------- Dated this the 28th day of November, 2008 JUDGMENT Kurian Joseph,J. The appeal is filed by the Kerala State Electricity Board against the judgment and decree dated 19-12-2007 in O.S.No.46 of 2000, on the file of the Court of the Subordinate Judge of Sulthan Bathery. The suit was filed by respondents 1 to 3 claiming compensation. The court below decreed the suit and held that the plaintiffs are entitled to realise from the first defendant a sum of Rs.2,40,120/- with 6% interest from the date of the suit till realisation. 2. The plaintiffs are the widow and children of late P.R.Mohan Das. Mohan Das was a Supervisor in Western Oil Mills. Ten metres away from the Mill, there is a 100 KWA Transformer belonging to the Kerala State Electricity Board, situated on the side of the road. Electricity was disconnected to the premises of the Mill from 7-5-1997 till 14-5-1997. When the supply came on 14-5-1997 at 5 p.m. Mohan Das switched off the lights. When he operated the star delta starter of the 40 HP motor, he sustained electric shock and fell down. The fuses at the KSEB Transformer station were blown off. Mohan Das was taken to hospitals and at last he was taken to the Medical College R.F.A.No.769 of 2008 -:2:- Hospital, Kozhikode. He died on 16-5-1997. The plaintiffs contended that the accident happened because of the gross negligence on the part of the Electricity Board. Mohan Das was aged 39 at the time of accident. The plaintiffs contended that he was getting an income of Rs.3 lakhs per annum from landed properties and Rs.2,750/- per month as Supervisor. A sum of Rs.6 lakhs was claimed as compensation from the first defendant, Electricity Board. It was also contended that the second defendant, who is the brother of Mohan Das and who was also the Managing Partner of Western Oil Mills, is jointly and severally liable for the compensation. 3. The court below on the available evidence on record decreed the suit at Rs.2,40,120/- with 6% interest from the date of the suit to be realised from the first defendant along with costs from the defendants. Hence the appeal by the defendant. 4. Learned counsel appearing for the appellant has mainly four contentions:- (1) There is no evidence regarding the negligence on the part of the appellant KSE Board. (2) The accident occurred owing to the negligence on the part of the second defendant, the owner of the Oil Mill, in not taking the necessary precautionary steps. (3) The suit is barred by limitation. R.F.A.No.769 of 2008 -:3:- (4) The amount decreed, in any case, is excessive. As far as the first ground is concerned, in view of the decision of the Supreme Court in M.P.Electricity Board v. Shail Kumari, 2002 (1) KLT 480 (SC) the appellant cannot be heard to contend that there is no negligence on the part of the appellant. It is to be noted that despite the evidence of PW2 the Electrical Inspector, the statutory authority, the first defendant did not have any evidence. As far as the defence regarding the negligence on the part of the second defendant is concerned, it has to be seen that the un-controverted evidence of the statutory authority, namely, the Electrical Inspector, shows that the accident occurred solely due to the negligence on the part of the appellant Electricity Board. The contention of the appellant is that even if there was some fault in the installation of the Electricity Board, had the second defendant owner of the Mill provided shock-proof mat, the workman would not have been electrocuted. It has come out from the evidence of the Electrical Inspector, who has been examined as P.W.2, that the accident occurred only due to the fault in the installation of the Electricity Board at the premises of the oil mill. During cross-examination the Inspector has stated that he had found R.F.A.No.769 of 2008 -:4:- the mat on the floor of the switch board. At any rate, the appellant has no case that the second defendant had not provided any precautionary measures despite notice. There is also no case for the appellant that any action was initiated against the second defendant for not taking any precautionary measures. In such circumstances, the appellant cannot be heard to say that the second defendant owner of the Oil Mill is also liable and responsible for the accident. The report of the Electrical Inspector under Section 161 of the Electricity Act, 2003 has become final since the same has not been either appealed against or challenged in any forum by the Electricity Board. 5. The next contention is regarding limitation. It is contended that the suit based on the fatal accident is filed beyond the prescribed period of two years. But it has to be seen that the 3rd defendant is a minor daughter of the deceased and hence in view of Section 7 of the Limitation Act, that contention also is not available to the appellant. 6. The last contention is regarding the quantum of compensation. The income of the deceased at the rate of Rs.2,000/- per month was proved through the second defendant, the employer. After deducting 1/3rd for personal expenses the annual income was fixed at Rs.16,008/-. The deceased, it is not in dispute, was aged 39 R.F.A.No.769 of 2008 -:5:- and hence the statutory multiplier is taken as 15 and thus the suit was decreed at Rs.2,40,120/-. In the absence of any contra evidence it cannot also be held that the quantum is excessive. The interest granted is only at the rate of 6%. In the above circumstances we do not find any merit in the appeal. It is accordingly dismissed. (KURIAN JOSEPH, JUDGE) (K.T.SANKARAN, JUDGE) ahg. KURIAN JOSEPH & K.T.SANKARAN, JJ. --------------------------- R.F.A.No.769 of 2008 ---------------------------- JUDGMENT 28th November 2008