IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 RFA.No. 673 of 2008() --------------------- OS.44/2006 of SUB COURT, QUILANDY .................... APPELLANTS/DEFENDANTS: ------------------------------------------- 1. KERALA STATE ELECTRICITY BOARD THIRUVANANTHAPURAM, REP. BY ITS CHAIRMAN 2. ASST.EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, PERAMBRA, KOZHIKODE DISTRICT. 3. THE SECRETARY, KSEB PATTAM, THIRUVANANTHAPURAM.. BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB SRI.PULIKOOL ABUBACKER, SC, KSEB RESPONDENTS: ------------------------ 1. SUNITHA KUMARI, W/O.LATE SAJEEVAN KUZHIPARAMBIL MEETHAL HOUSE PERAMBRA PO., KOZHIKODE. 2. VRINDA, D/O.LATE SAJEEVAN, AGED 8 YEARS (MINOR), KUZHIPARAMBIL MEETHAL HOUSE PERAMBRA PO., KOZHIKODE. REP. BY HER GUARDIAN MOTHER SUNITHAKUMARI, 1ST RESPONDENT. 3. NANDA, D/O.LATE SAJEEVAN, 5 YEARS KUZHIPARAMBIL MEETHAL HOUSE, PERAMBRA PO., KOZHIKODE, REP. BY HER GUARDIAN MOTHER SUNITHAKUMARI 1ST RESPONDENT. 4. AMAL JEEVAN, S/O.LATE SAJEEVAN 3 YEARS, KUZHIPARAMBIL MEETHAL HOUSE PO.PERUMBRA, CALICUT, REP. BY HIS GUARDIAN MOTHER SUNITHAKUMARI 1ST RESPONDENT. 5. DEVI, W/O.KANNAN, AGED 55 YEARS KUZHIPARAMBIL MEETHAL HOUSE, PERAMBRA PO., KOZHIKODE. ADV. SRI.AVM.SALAHUDIN FOR R1 TO 5 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M.L.JOSEPH FRANCIS JJ., - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 673 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of August, 2011 JUDGMENT K.M. Joseph J., The appellants are the Kerala State Electricity Board and its officers who are defendants in a suit laid by respondents seeking compensation. Compensation was sought on the basis that the husband of the first respondent, father of respondents 2 to 4 and son of the 5th respondent died on account of electrocution, which in turn was as a result of negligence of the appellants. 2. Briefly put the case of the plaintiffs is as follows. On 12.7.2003 the deceased was walking through the Idapparathazha Velliyodamkandi road for plucking coconuts and he came into contact with a live wire lying across the road and that resulted in his death. The appellants were bound to upkeep the service lines and to R.F.A. No. 673 of 2008 :2: do periodical maintenance to all electric service lines with new one. The service line from which the deceased Sajeevan received electrical shock was lying on the road side in a broken condition. The appellants never had a proper watch of the connection or to replace the broken lines. Negligence was attributed. The deceased was the sole bread winner in his family consisting of his wife and children. He was 37 years and earning Rs.6,000/- per month. Though a total claim of Rs.4,65,000/- was made, they limited their claim to Rs.3,00,000/-. 3. The appellants filed written statement, inter-alia stating as follows. The deceased tried to take and remove the live line lying on the road without taking any precautions and sustained electric shock. The line men were authorised to do the required repairs and they conduct periodical inspection through the lines and maintain the lines. The live line was broken due to the negligent act of Chekkotty, coconut plucker engaged to pluck coconuts from the property of one Pulikkol Chandran. He negligently cut and allowed to fall cudgel leaf on the live line and the line was broken and fell R.F.A. No. 673 of 2008 :3: on the ground. But this fact was not informed to the office of the 2nd appellant to take immediate action to stop the flow of electricity through the line. The deceased person, who was walking through the road instead of taking any precaution touched the live line with bare hand and sustained electric shock. The negligence was on the part of Chekkotty, his employer and the deceased. The appellants had taken steps to file complaint against Chekkotty. But the respondents filed suit without impleading them as parties. The suit was allowed for non joinder of necessary parties. 4. The Court, after raising appropriate issues came to the conclusion that there is negligence on the part of the appellants. It was also held that the suit cannot be said to be bad for non joiner of necessary parties. There is no complaint filed by Chekkotty. There was only the oral evidence of PW1. The Court further found that it is not clear why the Officer of appellants at the time of the incident, was not examined. DW1 is the then officer of appellants, who had no direct knowledge of what steps had been taken by the officers during the relevant time, it is found. The Court found that the R.F.A. No. 673 of 2008 :4: appellants were bound to explain why the electric wires had not been automatically disrupted when the line was broken. The argument of the respondents was of importance that the line was broken since no timely maintenance to line was done, it is found. The court found that the case of appellants that the power supply would not have cut off in case heavy object fell on line cannot be easily grasped. Evidently the fuse wire had remained in tact even after the cudgel leaf fell on the live power wire. The supply would have been cut off if the fuse wire had appropriate resistance and it was found further that it was for the appellants to explain why no circuit breakers have been installed. 5. The Court had relied on the decision reported in M.P. Electricity Board v. Shail Kumar and others (AIR 2002 SC 551), wherein the Apex Court held that: “At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authoritees manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps”. R.F.A. No. 673 of 2008 :5: 6. The Court found that the appellants had not shown that they had taken proper care and precaution in maintaining the transmission wire and yet wires had snapped because of the circumstances beyond their control. 7. The Trial Court proceeded to award a sum of Rs.2,50,000/- with 12% interest from the date of suit till the date of realisation with costs. 8. We heard learned counsel for the appellants and learned counsel for the respondents. 9. Learned counsel for the appellants would submit that there is no negligence on the part of the appellants. The line had broken and fell down due to the negligent act of Chekkotty, who was the coconut plucker engaged to pluck coconuts from the property of one Pulikkol Chandran and there was negligence on the part of deceased in picking the live line wire also. The cudgel leaves were brought to fall on the line wire by Chekkotty on the previous day and this fact was not informed to the Electricity authority and if they had informed the same to the Authority they would have taken R.F.A. No. 673 of 2008 :6: steps to stop the flow of electricity through the line, it is submitted. It is not on account of failure to maintain the electric line, the incident happened, argues the learned counsel for the appellants. He would also submit that an award of Rs.25,000/- should have been awarded towards pain and sufferings. 10. Per contra learned counsel for the respondents would support the decision of the Trial Court. He also had relied on the decision of the Apex Court reported in M.P. Electricity v. Shail Kumar (2002(1) KLT 480(SC)). 11. That death was caused, in this case, due to electrocution, is admitted. There is also no doubt that the electric line was lying on the ground. According to the appellants the death was caused due to the negligent action of one Chekkotty. In this case, there are two aspects, in the first place only evidence adduced by the appellants is in the form of oral testimony of DW1. No doubt, he has apparently spoken about Chekkotty bringing down the line. But it is noted by the Trial Court that there is no evidence of any complaint. If the complaint was there, it could have been produced. R.F.A. No. 673 of 2008 :7: Therefore the failure to produce any documentary evidence of any complaint in this regard, though it is stated that it was contemplated, at least that will go a long way in establishing the correctness of the view taken by the Trial Court. Further even it is brought down if the system worked correctly, flow of electric current should have come to an end immediately. Therefore whichever way the matter is viewed the finding of the Trial Court that there was negligence on the part of appellants cannot be overturned. In the circumstances of this case, we repel the argument of the learned counsel for the appellants that there is no negligence on the part of the appellants. As far as the question relates to award of Rs.25,000/- towards pain and sufferings, having regard to the circumstances of the case, we do not think that a case is made out for reducing the compensation towards pain and sufferings. Further, we notice that interest is awarded at the rate of 12% from the date of suit till the date of realisation. Learned counsel for the respondents is unable to support the award of interest beyond the date of decree at 12%, in view of the provisions R.F.A. No. 673 of 2008 :8: laid down in Sec.34 of C.P.C., as per which in decree for money, interest cannot exceed 6% from the date of decree. It is not a commercial transaction. In such circumstances, while we confirm the reasoning and also the award of Rs.2,50,000/-, we modify the judgment and decree and direct that interest from the date of decree till the date of realisation will be only at the rate of 6% instead of 12%. The appeal is allowed in part as above. K.M.JOSEPH, (JUDGE) M. L. JOSEPH FRANCIS, (JUDGE) dl/