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 24TH NOVEMBER 2009 / 3RD AGRAHAYANA 1931 RFA.No. 415 of 2009() --------------------- OS.6/2007 of SUB COURT, TIRUR .................... APPELLANTS/DEFENDANTS NO.1-3 ----------------------------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE SECRETARY, VYDHUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM. 2. EXECUTIVE ENGINEER, ELECTRICAL DIVISION, PERINTHALMANNA. 3. ASSISTANT EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, VALANCHERY. BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB RESPONDENTS: PLAINTIFF AND 4TH DEFENDANT ------------------------------------------ 1. KUZHINGRA PARAMBIL KALI, W/O. VELAPPA, VADAKKUMPURAM AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. 2. KOLLACHATTIL PUSHPA, W/O. KUZHINGRA PARAMBIL PRAMOD, VADAKKUMPURAM AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. 3. DAUGHTER, KUZHINGRA PARAMBIL NAMITHA, (MINOR), REP.BY GUARDIAN/MOTHER, 2ND RESPONDENT. 4. KUZHINGRA PARAMBIL VELAPPA, VADAKKUMPURAM AMSOM DESOM, TIRUR TALUK, MALAPPURAM DISTRICT. ADV. SRI.JAMSHEED HAFIZ FOR R1 & R2 THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/11/2009, THE COURT ON 24/11/2009 PASSED THE FOLLOWING: K. M. JOSEPH & M.L. JOSEPH FRANCIS, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A.No. 415 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November, 2009 JUDGMENT Joseph Francis, J. This appeal is filed by defendants 1 to 3 in O.S. No. 6 of 2007 on the file of the Sub Court, Tirur. Respondents 1 to 3 herein are the plaintiffs 1 to 3 and the 4th respondent herein is the 4th defendant in that suit, which was filed claiming compensation. 2. When the above appeal came up for admission on 19.11.2009, respondents 1 to 3 appeared and on consent the appeal itself is heard without calling for the lower court records. 3. O.S.No. 6 of 2007 is a suit for damages for the death of one Pramod due to electrocution. The facts of the case are briefly as follows. The first plaintiff is the mother, the second R.F.A.No. 415 of 2009 2 plaintiff is the widow, third plaintiff is the minor daughter and the 4th defendant is the father of Pramod, who had been electrocuted on 28.6.2005. It is alleged that Promod, who was a coconut plucker, after completing his job for the day, had gone to take bath to the nearby pond and on the way he happened to touch with a live electric line, which was snapped from the electric post, as a result of which he got electrocuted. It was alleged that the said accident was due to the negligence of defendants 1 to 3, who are the officers of the Kerala State Electricity Board. The plaintiffs claimed Rs. 5 Lakhs as compensation from defendants 1 to 3 for the death of Pramod. 4. The 4th defendant remained ex parte. Defendants 1 to 3 filed written statement denying the allegation that the accident was due to the negligence of the K.S.E.B. It was contended that on 28.6.2005 there was a heavy rain and storm and an arecanut tree fell on the electric line and a single phase line was broken and hanged. R.F.A.No. 415 of 2009 3 As the line had not touched the earth, the fuse had not been cut off. It is also contended that the deceased, who was under the influence of alcohol, negligently caught hold of the line and thus the unfortunate accident happened. It is contended that the deceased died due to electrocution on account of his own negligence. However, the K.S.E.B. had paid Rs.50,000/- towards exgratia compensation on humanitarian consideration. The amount claimed as compensation is exorbitant. 5. In the Sub Court, PWs. 1 to 3 and DW1 were examined and Exts.A1 to A3 were marked. The learned Sub Judge, on appreciating the evidence, found that Pramod died of electrocution due to the negligence of defendants 1 to 3 in maintaining the electric line complying with the rules and regulations and the suit was decreed in part, allowing the plaintiffs to realise a sum of Rs.3,80,000/- together with interest at the rate of 9% p.a. from the R.F.A.No. 415 of 2009 4 date of decree till the date of realisation from defendants 1 to 3 with proportionate cost. Against that judgment and decree, defendants 1 to 3 filed this appeal. 6. Heard the learned counsel for the appellants and the learned counsel for the respondents. 7. The learned counsel for the appellants submitted that the accident was due to the negligence on the part of the deceased, who was a habitual drunkard. The learned counsel for the appellants invited our attention to the decision of the Apex Court reported in Syad Akbar v. State of Karnataka (AIR 1979 SC 1848), in which it was held that: “As a rule, mere proof that an event has happened or an accident has occurred, the cause of which is unknown, is not evidence of negligence. But the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices R.F.A.No. 415 of 2009 5 the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. In such cases (a) the event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care and (b) it has to be further satisfied that the event which caused the accident was within the defendants control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred. Thus, for the application of the maxim res ipsa loquitur no less important a requirement is that the res must not only bespeak negligence, but pin it on the defendant.” 8. To prove the occurrence, the second plaintiff was examined as PW1, who is the widow of deceased Pramod. She deposed that Pramod was a coconut plucker and on 28.6.2005 at R.F.A.No. 415 of 2009 6 about 6 p.m. Pramod, after returning from his work, went to the nearby pond to have a bath and on the way he happened to land upon live electric wire, which was snapped from the electric post standing near the pathway and immediately he fell down and got entangled by the broken wire and died due to electrocution. PW1 deposed that the accident occurred due to the negligence of defendants 1 to 3 in properly maintaining the electric line. 9. PW2 deposed that Pramod died due to electrocution from a live wire, which was broken down from an electric post situated on the side of the public pathway. 10. PW3 is the Head Constable of Police of Valancherry Police Station, who registered the case with regard to the accident and prepared the F.I.R.. Ext.A1 is the copy of the F.I.R. in that case registered for unnatural death. In Ext.A1 it is stated that Pramod died due to electrocution from a live broken electric wire lying in the public pathway. R.F.A.No. 415 of 2009 7 11. DW1 was the Assistant Engineer of Valancherry Electrical Sub Division during the relevant time. He was not an eye witness to the accident and he had not gone to the scene of the accident even after the accident. DW1 deposed that there is no witness to prove that an arecanut tree fell on the electric line and due to that fact the electric wire was broken down. DW1 admits that as per the postmortem report the cause of death of Pramod was due to electrocution. Defendants 1 to 3 have not produced any evidence to prove that at the time of the accident Pramod was under the influence of alcohol. 12. The learned counsel for respondents 1 to 3 invited our attention to the decision reported in Kerala State Electricity Board v. Kamalakshy Amma (1986 KLT 1124), in which it was held that: “When the plaintiffs succeeded in proving that a pedestrian was electrocuted from a live wire hanging R.F.A.No. 415 of 2009 8 down from an electric post, there is a presumption of fact that there was lack of proper care on the part of those in the management or control of the power supply system at the particular place. The maxim “res ipsa loquitur” is a principle which aids the court in deciding as to the stage at which the onus shifts from one side to the other. S.114 of the Evidence Act gives a wide discretion to the courts to draw presumptions of fact based on different situations and circumstances. This is in a way, a recognition of the principle embodied in the maxim “res ipsa loquitur”. Where the thing is shown to be under the management of the defendant or his servants, and the accident in such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence in the absence of explanation by the defendants, that the accident arose from want of care. In this case, the plaintiffs discharged their burden by establishing that the deceased was electrocuted from a live wire which hanged down from an electric post on the roadside. Facts thus far established speak for itself and it is for R.F.A.No. 415 of 2009 9 the defendant to rebut the presumption with positive evidence to show that they have been maintaining the power supply system at this particular place under proper care and repair”. 13. In the decision of the Apex Court reported in M.P. Electricity Board v. Shail Kumari (2002 (1) KLT 480 (SC), it was held: “It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the board. If the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into it, the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension, the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire R.F.A.No. 415 of 2009 10 snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the board that somebody committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is the look out of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road, the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the mangers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as “strict liability”. It differs R.F.A.No. 415 of 2009 11 from the liability which arises on account of the negligence or fault in, this way i.e., the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm, he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions. 14. In the decision reported in Vellachi Ammal & Ors. v. Superintending Engineer (South Arcot Division North) (AIR 2008 (NOC) 2565 (Mad.), in which it is held: “(A) Electricity Act (54 of 2003), S. 176 - Electricity Rules (1956), R.91 - Death by electrocution - Death is caused due to severance of live electric wire on account of heavy rain and cyclone - It would not be R.F.A.No. 415 of 2009 12 presumed that death was caused only due to negligence of authorities - However cannot be said that it was an act of God as contended by Electricity Board - Even in such circumstances, Electricity Board is liable to pay compensation. 15. In the present case, the plaintiffs have succeeded in proving that Pramod died due to electric shock when the live electric line was snapped down to the public pathway. When he passed through that pathway he was electrocuted. According to defendants 1 to 3, on 28.6.2005 there was heavy rain and storm and an arecanut tree fell down on the electric line and hang and since not touched to earth the fuse was not melted and while so Pramod, who happened to pass through that way under the influence of alcohol, had caught hold of the hanging snapped wire and fell down and died. R.F.A.No. 415 of 2009 13 16. As already mentioned, apart from the interested oral testimony of DW1, who had not visited the spot of accident, there is no evidence to establish that defendants 1 to 3 had taken all precautions and safety measure and there was no negligence on their part in maintaining the electric line and the accident occurred due to the reasons beyond their control. Therefore, the learned Sub Judge is fully justified in finding that Pramod died due to electrocution due to the negligence of defendants 1 to 3 in maintaining the electric line complying with the rules and regulations. 17. The next question to be considered is whether the compensation awarded by the learned Sub Judge is justified and reasonable. In the plaint it is alleged that Pramod was a coconut plucker and was getting Rs.300 to 350/- per day. In Ext.A1 F.I.R. it is stated that Pramod is a coconut plucker. PWs. 1 and 2 deposed that Pramod was a coconut plucker and was getting Rs.300 to 350/- R.F.A.No. 415 of 2009 14 per day. On considering the nature of work done by the deceased, the learned Sub Judge assessed the income of Pramod as Rs.3,000/- per month. After deducting one-third towards his personal expenses, he would have contributed Rs.24,000/- p.a. towards family expenses. Pramod was aged 31 years at the time of his death. Therefore 17 taken as multiplier is reasonable. The compensation for loss of dependency calculated thus comes to Rs.4,08,000/- Rs.2,000/- was awarded towards transportation charges and funeral expenses. The second plaintiff is a widow, aged 22 years. Therefore, Rs.10,000/- awarded towards loss of consortium is justified. The third defendant is the child, who lost her father. Rs.10,000/- was awarded towards loss of love and affection. Thus, the learned Sub Judge assessed Rs.4,08,000/- as compensation, from which Rs.50,000/- given by the K.S.E.B. as exgratia payment is deducted and the balance compensation is Rs.3,80,000/- R.F.A.No. 415 of 2009 15 18. Therefore we are of the view that the compensation awarded by the learned Sub Judge is just and reasonable. Since the suit is for compensation, in view of Section 34 C.P.C. the interest from the date of decree should be reduced to 6% p.a. from 9% p.a. 19. Accordingly this appeal is allowed in part. The judgment and decree allowing the plaintiffs to realise Rs.3,80,000/- from defendants 1 to 3 is confirmed. But the interest from the date of decree is reduced to 6% p.a. from 9% p.a. The parties are directed to suffer their respective cost in this appeal. (K. M. JOSEPH) Judge (M.L. JOSEPH FRANCIS) Judge tm