IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 4TH APRIL 2011 / 14TH CHAITHRA 1933 RFA.No. 131 of 2003() ------------------------------- OS.NO. 388/1998 of ADDL.SUB COURT,PARAVOOR .................... APPELLANTS/ PLAINTIFFS ----------------------------------------- *1. PURUSHOTHAMAN, S/O. THEVAN, NELLIPPILLITHAZHATH, KIZHAKKEPRAM KARA, KOTTUVALLY VILLAGE, PARAVOOR TALUK.(DIED) 2. ALLI, W/O. PURUSHOTHAMAN, DO. DO. DO. * ADDL.3RD APPELLANT IMPLEADED * 3 ADDL.APPELLANT: DILEEP, S/O. PURUSHOTHAMAN, NELLIPPILLITHAZHATH, KIZHAKKEPRAM KARA, KOTTUVALLY VILLAGE, PARAVOOR TALUK. * THE LEGAL REPRESENTATIVE OF THE DECEASED FIRST APPELLANT IS IMPLEADED AS ADDITIONAL THIRD APPELLANT AS PER ORDER ORDER DATED 14/2/2011 IN I.A.NO.466/11. BY ADVS. SRI.S.SHYAM SRI.BOBBY MATHE KOOTHATTUKULAM SRI.LATHEESH SEBASTIAN RESPONDENT(S)/ DEFENDANT: ----------------------------------------------- KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VYDUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI.A.SUDHI VASUDEVAN, SC, KSEB THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04/04/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts THOTTATHIL B. RADHAKRISHNAN & P.BHAVADASAN, JJ. ~~~~~~~~~~~~~~~~~~~~~ R.F.A. No. 131 of 2003 B ~~~~~~~~~~~~~~~~~~~~~ Dated this the 4th day of April, 2011 J U D G M E N T Thottathil B. Radhakrishnan, J. 1.This appeal is by the plaintiffs in an action for compensation under the Fatal Accidents Act. 2.The deceased son of the plaintiffs met with a fatal accident attributed to an electric shock from a broken electric line, which fell on him, while he was unloading sand or mud from a mini lorry. Before the court below, the father of the deceased gave evidence as PW1. The Engineer of the Electricity Board gave evidence as DW1. Ext.X1 was the report of the Electrical RFA131/2003 -: 2 :- Inspector, which has a statutory value in terms of the provisions of Electricity Act. With these materials, the court below concluded that the accident occurred due to the negligence of the defendants and they were liable to compensate. 3.The court below also found against the plea of the defendants that the incident is only a motor vehicle accident and, that therefore, the matter comes within the jurisdiction of the Motor Accidents Claims Tribunal and hence the suit is not maintainable. 4.The trial court held that the deceased would have obtained Rs.100/- as income per day for 20 days a month. He was 21 years at the time of the incident. He was unmarried. The plaintiffs were his parents. The court below accordingly fixed compensation as Rs.1,30,000/-, including funeral expenses and payments towards mental agony of the parents and the contribution that the deceased would have made to his parents. RFA131/2003 -: 3 :- 5.The plaintiffs are before us in appeal on the question of quantum of compensation. 6.There is no appeal by the defendants. The plea as to maintainability and jurisdiction, which have essentially to be answered depending on question of facts and questions of law, cannot, therefore, be agitated in this appeal. There are also no Cross Objections. 7.On hearing the learned counsel for the parties, we notice that the incident occurred in 1997. The deceased was 21 years at the time of his death. The unchallenged statement of his father P.W.1 is that the deceased was a healthy person and was used to physically labour. He used to work in clay brick manufacturing. Such work would be available for six months and other months he used to go for other work. The father as P.W.1 stated that he would get Rs.125/- as wages per day and would pay the father Rs.75/- per day after RFA131/2003 -: 4 :- spending for himself for Rs.50/-. He stated that he has another son who is studying in the ITI for Electrician course. We do not find any ground to disbelieve the testimony of P.W.1 that his son was receiving Rs.125/- per day. This could be taken as an average. It would also be appropriate to take that on a monthly average, he could get work for 25 days per month, though P.W.1 may suggest that he used to work on all days. We accordingly take it that the annual income of the deceased can be safely fixed at Rs.37,500/-. With this, we see that P.W.1, the elder among the parents of the deceased, i.e., the father, was 48 years old at the time of the incident. 8.The learned counsel for the Board is justified in making reference to the decision in Sarla Verma and Others Vs. Delhi Transport Corporation and another [(2009) 6 SCC 121], wherein, in paragraph 31, the Apex Court laid down a clear distinction as regards classes where the deceased was unmarried. It was laid down that, in such cases, RFA131/2003 -: 5 :- a yardstick had to be taken and the probable contribution to parents has to be pegged at 50%. 9.Adopting the annual income deduced in paragraph 7 above as Rs.37,500/-, 50% of that has to be taken applying the principle enunciated in Sarla Verma (supra) since the deceased was industrious. This takes the compensation payable on account of loss of earning paid at Rs.2,43,750/-. Added to this, we are inclined to take the view that the parents were deprived of love and affection of their son and they had also to spend the funeral expenses. We, therefore, fix amounts due otherwise than on lost of earning at Rs.7,500/-. This takes the total compensation payable at Rs.2,51,250/-. This will stand rounded off as Rs.2,50,000/-. 10.Since the loss is found to have been the result of negligence of the defendant, the defendant shall be liable to pay the court fee due from the plaintiffs in the suit and in this appeal. RFA131/2003 -: 6 :- In the result, this appeal is allowed modifying the decree granted by the trial court as follows: i. The plaintiffs will be entitled to recover from the defendant and its assets an amount of Rs.2,50,000/- with 6% interest per annum from the date of suit till payment or realization with proportionate costs in this appeal and in the court below. ii. If any amount has already been paid or deposited before the court below, that would be credited while reconciling the satisfaction of the decree as revised herein. iii. In terms of Order 33 Rule 10 of C.P.C., we further direct that the court fee payable in the suit and in this appeal shall be paid by the defendant. RFA131/2003 -: 7 :- iv. The appellants will be entitled to proportionate costs throughout. (THOTTATHIL B. RADHAKRISHNAN, JUDGE) (P.BHAVADASAN, JUDGE) aks-sha/05.04 RFA131/2003 -: 8 :- THOTTATHIL B. RADHAKRISHNAN & P.BHAVADASAN, JJ. ~~~~~~~~~~~~~~~~~~~~~ R.F.A. No. 131 of 2003 B ~~~~~~~~~~~~~~~~~~~~~ J U D G M E N T 4th April, 2011