IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.PADMANABHAN NAIR WEDNESDAY, THE 20TH FEBRUARY 2008 / 1ST PHALGUNA 1929 AS.No. 362 of 1997() ----------------------------- OS.604/1994 of SUB COURT, PALA .................... APPELLANTS - PLAINTIFFS : ------------------------------------ 1. K.J. ABRAHAM, S/O.JOSEPH, KOONTHAMATTATHIL MONIPPALLY, KOTTAYAM. 2. ACHU, W/O. THOMAS, VANCHITHARATHU, EDAKKADI, CHAKKAMPUZHA, RAMAPURAM, KOTTAYAM. 3. MARY JOHN, W/O. JOHN, NELLUSSERIL, KANNAMKARA, THANNEERMUKKAM, CHERTHALA, ALLEPPEY. 4. LEELAMMA THOMAS, W/O. THOMAS, KARAMAYIL, KANJIRAPPALLY, KOTTAYAM. 5. SIMON JOSEPH, S/O. JOSEPH, KOONTHAMATTATHIL UZHZVOOR, MEENACHIL, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENTS - DEFENDANTS: ------------------------------------------ 1. THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM. 2. THOMAS, S/O. JOSEPH, KOONTHAMATTATHIL HOUSE, GOOD SHEPERD ESTATE, GUDALLOOR, TAMIL NADU. 3. REV. FR. JAYARAJ, OFM BERU MARIAN, PASTERAL CENTRE, PALLIKUNNU, KANOOR. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 20/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. PADMANABHAN NAIR, J. = = = = = = = = = = = = = = = = = = = A.S. NO.362 OF 1997 = = = = = = = = = = = = = = = = = = = Dated this the 20th day of February, 2008 J U D G M E N T -------------------- Heard. Admitted. Advocate Shri C.K.Karunakaran takes notice for the first respondent. Appeal itself is heard and disposed of. 2. Plaintiffs in O.S. No.604 of 1994 on the file of the Subordinate Judge's Court, Pala, are the appellants in this appeal. 3. One Lukose, S/o. Thomas, died on 22.6.1993 due to electrocution. Plaintiffs are the brothers and sisters of deceased Lukose. Defendants 2 and 3 are also the heirs of deceased Lukose. Plaintiffs filed the suit claiming Rs.1,00,000/- as compensation on account of the death of Lukose with the following averments. At about 11.00 a.m. on 22.6.1993 the deceased was grazing cattle in the property belonging to the first plaintiff. The deceased came into contact with a broken live electric line lying in the property. He sustained electric shock and died. Electric wires and A.S. NO.362 OF 1997 -: 2 :- lines must be maintained in good condition at all times. First respondent and its employees are bound to see that the electric lines should not fall down and thereby cause danger to human life. First defendant is liable for the accident occurred as it was due to the carelessness and negligence on the part of its employees. The act of the first defendant and its employees is an actionable wrong and the plaintiffs are entitled to get compensation. Electric live line drawn along the property was happened to be broken down due to the wrongful and negligent act of the first defendant and its employees. There is a statutory duty cast on the first defendant to maintain the transmission line properly. Negligent transmission of electric energy and lack of maintenance of the transmission line are breach of legal duties. The property belongs to the first plaintiff and it was a rubber estate. The line was drawn very close to a rubber tree which stood in the property. The electric wire come into contact with the tree when the same sways in the wind. The electric line got damaged because of the friction due to the touching of the line and as a result it was broken. The electric line was old and rusty and that also caused the falling of the A.S. NO.362 OF 1997 -: 3 :- electric line. First defendant owed a statutory duty to provide appliances to get information about the breaking of electric line then and there. First defendant and its employees were duty bound to ensure that the electric supply in the line should be cut off automatically as and when a supply line was broken. First defendant ought to have taken reasonable means to keep the electricity harmless to human life. The deceased was aged 40 years and he was supervising and managing the agricultural land owned by his brothers. Deceased was getting a monthly salary of Rs.1,500/- and he was making a contribution of Rs.1,000/- to the plaintiffs and defendants 2 and 3 and he used to spent Rs.500/- for his own personal expenses. Plaintiffs 1 and 2 are entitled to get the contribution at least for a period of 10 years and as regards plaintiffs 3 to 5 and defendants 2 and 3 it would have been much more. So the pecuniary loss is assessed as Rs.50,000/-. For loss of expectation of life, pain and suffering, damages were also claimed. The total amount claimed by the plaintiffs was Rs.1,00,000/-. 4. First defendant alone contested the matter. It had filed a written statement raising the following contentions. A.S. NO.362 OF 1997 -: 4 :- The averments made in the plaint are not true. The death of Lukose was not due to negligence or dereliction of duty on the part of the employees of the Kerala State Electricity Board. In the night of 21.6.1993 there was heavy rain and wind and due to the heavy rain and wind a rubber tree standing near to the disputed electric line outside the clearance area fell on the electric line and on account of the same, the conductor had snapped. But nobody had informed about the snapping of the conductor to KSEB's office until the accident occurred. If timely information was given to the KSEB, the unfortunate incident could have been avoided. Lukose was a mentally retarded person. The averment that he was grazing cattle was denied. Electricity line was maintained properly. There was no negligence on the part of the KSEB in properly maintaining the line. The line was broken on account of the heavy wind and rain in the night of 21.6.1993. The overhanging branches of the rubber trees were cut and removed for maintaining the statutory clearance. The electric line was not broken due to any wrongful or negligent act of the employees of the first defendant and it was due to the natural calamity and hence only an act of God. The death of A.S. NO.362 OF 1997 -: 5 :- Lukose, who was a mentally retarded person, had occurred due to the negligent act of the deceased himself. Deceased was an unmarried mentally retarded person who was not capable of knowing the danger that can happen in case he touches the broken live line lying on the ground. It was the duty of the plaintiffs to look after Lukose, who was a mentally retarded person. The plaintiffs were also negligent. The averment that the branches of the tree touched the electric supply line and the conductor was snapped due to friction was denied. The electric line drawn through the property of the first plaintiff was in good condition and it was properly maintained. It was broken only due to the exertion of heavy pressure while the rubber tree fell on it due to the heavy wind and rain in the previous night. Section fuse was provided at the tapping point of the electric line in question. The fault current was not strong enough to blow off the fuse. Quantum of compensation claimed was also denied. It was reiterated that the deceased was a mentally retarded person who was unable to do any act and he was not doing any work. The averment that he was managing and supervising the agricultural land owned by his brothers was denied. The A.S. NO.362 OF 1997 -: 6 :- deceased was not an earning member, but he was a disabled person. In fact brothers of the deceased were looking after him and on account of the death of Lukose, plaintiffs and defendants 2 and 3 sustained no loss. The compensation claimed was exorbitant. The allegation that there was negligence on the part of the employees of the KSEB was also denied. First defendant prayed for dismissal of the suit. 5. On the side of plaintiffs P.Ws.1 to 4 were examined and Exhibits A1 to A3 proved and marked. First defendant did not adduce any evidence either oral or documentary. The trial court after considering the evidence adduced by the plaintiffs found that the accident occurred due to an act of God. It was further held that there was heavy rain and wind in the previous night and on account of the same a rubber tree standing near the electric line fell over the line. The electric line was broken due to natural calamity which was beyond the control of the first defendant. The court below dismissed the suit. Challenging that decree and judgment, this appeal is filed. 6. Learned counsel appearing for the appellants has strenuously argued before me that the finding of the court A.S. NO.362 OF 1997 -: 7 :- below that the accident occurred due to an act of God is not based on evidence at all. It is argued that the first defendant did not adduce any evidence either oral or documentary. It is argued that the court below misread Exhibit A2. P.W.1 had not admitted at any point of time that there was heavy rain and wind in the previous night. 7. The fact that Lukose died due to electrocution on 22.6.1993 is admitted. The accident occurred at about 11.00 a.m. on 22.6.1993. The contention of the appellants was that the accident occurred due to the negligence of the employees of the first defendant. That aspect was denied by the first defendant. The case of the first defendant was that there was torrential rain and heavy wind in the night of 21.6.1993 and on account of the natural calamity a rubber tree standing outside the clearance area of the line uprooted and fell over the electric line which caused snapping of the electric line. To establish that fact first defendant did not adduce any evidence at all. Of course first defendant can rely on the evidence adduced by the plaintiffs to sustain its case. Court below simply assumed that there was torrential rain and heavy wind in the previous night. There is absolutely nothing in the A.S. NO.362 OF 1997 -: 8 :- evidence of P.Ws.1 to 4 from which it can be held that there was heavy rain and wind in the previous night. P.Ws.1 and 2 had categorically stated that on the previous night there was no rain or wind. No question was seen put to those witnesses by the first defendant during cross-examination regarding this aspect. First defendant did not go to box and did not adduce any evidence also. So there is absolutely no material on record to hold that there was heavy rain and wind in the previous night. Contention of the first defendant was that due to heavy rain and wind a rubber tree standing outside the clearance area of the electric line uprooted and it fell over the electric line. Exhibit A2 is the mahazar prepared in the criminal case. There is absolutely nothing in Exhibit A2 to show that any rubber tree which stood near the electric line uprooted and fell on the line. Exhibit A2 mahazar shows that live line was drawn in between two branches of a rubber tree which stood in the property belonging to the first plaintiff. It was very specifically stated in Exhibit A2 that there were visible marks of rubbing of electric line with the rubber tree. It also shows that a dried rubber twig having a length of 5 metres and a girth of hand was found lying on the top of the A.S. NO.362 OF 1997 -: 9 :- Crossarm fitted to the post and snapped wire on a point which touches the Crossarm. Description of the dried rubber timber shows that falling of the same over the electric line cannot be the reason for snapping of wire. So there is absolutely nothing on record to show that any rubber tree standing outside the clearance area of the electric line uprooted and fell over the electric line. So the finding of the court below that the snapping of the live electric line occurred on account of natural calamity and hence an act of God is unsupported by any material and liable to be set aside. 8. Kerala State Electricity Board is the sole agency in the State which produces and transmits electricity. It has got a duty to see that the electric lines are properly maintained. Further in Kerala there will be heavy rain during every monsoon. It is not an unexpected event. Further, in the normal course, a branch of a tree will not dry within one or two days. It would have taken a long time. So the branch of the tree fell over the electric line was not on account of natural calamity but it was a dead wood. So it is evidently clear that the first defendant failed to take reasonable precautions or care to maintain the electric line properly. So A.S. NO.362 OF 1997 -: 10 :- the only inference possible is that the accident occurred due to the negligence of the first defendant and its employees. I hold that the accident occurred due to the negligence of the first defendant. 9. The next question arising for consideration is what exactly is the compensation the plaintiffs and defendants 2 and 3 are entitled to get. First defendant has raised a contention that the deceased was a mentally retarded person. Of course, it did not adduce any evidence. The trial court did not quantify the compensation which the plaintiffs and defendants 2 and 3 are entitled to get. Considering all aspects of the matter, I am of the view that it is only just and proper that the parties are given one more opportunity to prove their case on merits. For that limited purpose, the case has to go back. The observation made by the court below that the first defendant failed to establish that the deceased was a mentally retarded person is also set aside. Both sides can adduce evidence on that point. 10. In the result, the appeal is allowed in part. The finding of the court below that the accident occurred due to natural calamity and hence an act of God is set aside. It is A.S. NO.362 OF 1997 -: 11 :- found that the accident occurred due to the negligence of the employees of the first defendant-first respondent. The observation of the court below that the first defendant failed to establish that the deceased was a mentally retarded person is also set aside. The case is remanded to the court below. The court below shall quantify the compensation which the plaintiffs and defendants 2 and 3 are entitled to get. Parties shall be given an opportunity to adduce evidence to prove their case. Being an old case, the court below shall make every endeavour to dispose of the case expeditiously, at any rate, within six months from the date of appearance of the parties before it. Parties are directed to appear before the Sub Court, Pala, on 25.3.2008. K. PADMANABHAN NAIR, JUDGE. vsv K. PADMANABHAN NAIR, J. ===================== A.S. NO.362 OF 1997 ===================== J U D G M E N T ------------------------------------------- 20TH FEBRUARY, 2008