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 6TH OCTOBER 2009 / 14TH ASWINA 1931 AS.No. 561 of 1998(A) ---------------------------------------- OS.116/1993 of ADDL.SUB COURT,KOTTAYAM .................... APPELLANT/DEFENDANT IN OS.NO.116 OF 1993: --------------------------------------------------------------------- THE KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE SECRETARY, VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM - 4. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENT(S)/PLAINTIFFS IN OS.NO.116 OF 1993: --------------------------------------------------------------------------- 1. KURIAN THOMAS, RESIDING AT KUTHUKALLUNKAL HOUSE, NATTAKOM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT. 2. SOSAMMA THOMAS, W/O. KURIAN THOMAS, RESIDING AT KUTHUKALLUNKAL HOUSE, NATTAKOM VILLAGE, KOTTAYAM TALUK, KOTTAYAM DISTRICT (DIED). ADDL.R3. MR. KURIAN THOMAS, FATHER, KUTHUKALLUNGAL HOUSE, CHINGAVANAM, KOTTAYAM DISTRICT. ADDL.R4. MR. THANKACHAN, BROTHER, DO. DO. ADDL.R5. MR. BABYCHAN, DO. DO. ADDL.R6 MR. PAPPACHAN, DO. DO. ADDL.R7. SMT. SARAMMAL, SISTER, DO. A.S.NO.561 OF 1998 A ADDL.R8. SMT. KUNJAMMA, SISTER, DO. (THE LEGAL HEIRS OF THE DECEASED R2 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 3 TO 8 VIDE ORDER DATED 25.11.2004 ON I.A.NO.790/00). ADV. SRI.MATHEW JOHN (K) FOR R1 SRI.BABY THOMAS FOR ADDL.R4 TO R8 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 06/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. ------------------------------------------ A. S. NO. 561 OF 1998 A ------------------------------------------ Dated this the 6th October, 2009 JUDGMENT K.M. Joseph, J. Appellant is the Electricity Board which is the defendant in a Suit for realisation of money as compensation. Case of the respondents/plaintiffs, in brief, is as follows: On 30.8.1992, while the plaintiffs' son was on his way to his residence during night, he died due to electrocution which happened when he came into contact with the live electric line lying across the road leading to his residential building. The plaintiffs alleged negligence. The appellant filed Written Statement. Respondent/plaintiffs are the father aged 70 and mother aged 65. The first plaintiff was examined as PW1. The alleged employer of the deceased was examined as PW2. PW3 is a relative and a person who is alleged to have given a complaint about the sagging line to the Electricity Board. PW4 AS.NO.561/98 A 2 is an Electrician. Respondents have produced Exts.A1 to A7. There was no oral evidence or documentary evidence on the part of the appellant. 2. The trial court found that the deceased succumbed to electrocution. Case of negligence was accepted. The Suit was decreed in a sum of Rs.1,50,000/= with interest at twelve per cent from the date of the Suit till the date of realisation. 3. We heard the learned counsel for the appellant and also the learned counsel appearing on behalf of the respondents. Counsel for the appellant would point out that this is a case where the respondents have failed to prove negligence. He would point out that it is for the plaintiffs to discharge the burden and prove their case which they have not done in this case. It is pointed out that it is the case of the respondents that a complaint had been lodged about the line. It is submitted that there is power lodged with the Court under Section 165 of the Evidence Act. Thereunder, it is open to the court to see that justice is done by enabling the production of all evidence before AS.NO.561/98 A 3 it. The court may ask questions and what is more, learned counsel for the appellant would submit that it is the duty of the court to ask questions or seek production of documentary evidence. It is contended that when evidence was adduced to the effect that complaint was given by giving it in writing in the Complaint Book, the respondents should have taken steps to see that evidence is brought before the court. At any rate, the court ought to have taken it upon itself to cause production of the said evidence. In this context, learned counsel relied on the Judgment of the Apex Court in Zahira Habibulla H. Sheikh And Another v. State of Gujarat And Others ((2004) 4 SCC 158). He further sought to enlist the support of the Full Bench decision of this Court in Parukutty v. Province of Madras (1961 KLT 846) for the proposition that the initial burden to prove a case is on the plaintiffs and the burden of proof on the pleadings never shifts. It always remains constant. He further relied on a Judgment of a learned Single Judge of the Gujarat High Court (As His Lordship then was) in Soni Vrajlal Jethalal v. Soni AS.NO.561/98 A 4 Jadavji Govindji and Others (AIR 1972 Gujarat 148). Therein, the learned Single Judge held as follows: “One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression “the act of the Court” is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter upto the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court.” He also relied on the decision of the Apex Court in R.M. Yellatti v. Assistant Executive Engineer (AIR 2006 SC 355). Therein the Court held as follows: “12. Now, coming to the question of burden of proof as to the completion of 240 days of continuous work in a year, the law is well settled. AS.NO.561/98 A 5 In the case of Manager, Reserve Bank of India, Bangalore v. S. Mani reported in (2005) 5 SCC 100, the workmen raised a contention of rendering continuous service between April, 1980 to December, 1982 in their pleadings and in their representations. They merely contended in their affidavits that they had worked for 240 days. The tribunal based its decision on the management not producing attendance register. In view of the affidavits filed by the workmen, the tribunal held that the burden on the workmen to prove 240 days service stood discharged. In that matter, a three Judge Bench of this Court held that pleadings did not constitute a substitute for proof and that the affidavits contained self-serving statements; that no workman took an oath to state that they had worked for 240 days; that no document in support of the said plea was ever produced and, therefore, this Court took the view that the workmen had failed to discharge the burden on them of proving that they had worked for 240 days. According to the said judgment, only by reason of non-response to the complaints filed by the workmen, it cannot be said that the workmen had proved that they had AS.NO.561/98 A 6 worked for 240 days. In that case, the workmen had not called upon the management to produce relevant documents. The court observed that the initial burden of establishing the factum of continuous work for 240 days in a year was on the workmen. In the circumstances, this court set aside the award of the industrial tribunal ordering reinstatement.” He would further contend that the Board could not have been found to have been negligent in the matter. He would submit that actually the Board was maintaining the lines and it was only on account of vagary of the weather which manifested itself in the form of a heavy rain which culminated in the breaking down of the line. This is a matter over which, it is alleged, the Board had no control. He would further contend that the witnesses for the plaintiffs were related to the plaintiffs and were interested witnesses and, therefore, no reliance could be placed on their testimony. He would further point out that even going by Ext.A7 which is a newspaper report concerning the death of the AS.NO.561/98 A 7 deceased in this case, the paper would bear out the case of the appellant that the incident happened for reasons beyond its control. He points out that the paper report shows that there was rain on that day. This circumstance is enlisted to support his case of the line breaking down for reasons beyond the control of the appellant. Lastly, he would contend that the quantum of compensation awarded is not justifiable. He would submit that there is no discussion as to the heads under which the compensation was awarded. He would further point out that the court below erred in awarding interest at twelve per cent from the date of the Suit till the date of realisation. Appellant also relies on Order 11 Rules 12, 13 and 14, in an attempt to point out that the respondents have not done everything within their might to prove their case, that is to say, according to him, it is open to the respondent/plaintiffs to cause production of the documents in the form of Complaint Book to prove their case on a complaint having been lodged about the condition of the line. Learned counsel for the respondents would support the Decree. AS.NO.561/98 A 8 4. It cannot be disputed that the son of the plaintiffs died. The further question which arose was that what is the cause of his death. The trial court has found that he died due to electrocution. In this context, the trial court has relied on Ext.A4 which is the copy of the post mortem certificate, besides the oral testimony of PWs. 1 to 4. We went through the post mortem certificate. The Certificate lists the injuries suffered by the deceased as burn injuries. The Certificate clearly goes to probabilise the case of the respondent/plaintiffs that the deceased died due to electrocution. It is most significant in this context to note that the appellant has neither produced any documentary evidence, nor has examined a single witness. In this state of the evidence, we are inclined to confirm the finding of the trial court that the deceased died due to electrocution. 5. The further question is whether the appellant is justified in impugning the judgment on the ground that the court below erred in finding that the death was due to the negligence of the appellant. We have already noted that the death was due to AS.NO.561/98 A 9 electrocution. The case set up in the Written Statement by the appellant would show that the case of the appellant is that it was with great care and caution that the line was maintained, but, on that night, on account of the wind and rain and natural cause, that one line broke. It is significant that, as noted by the trial Judge, after setting up such a case in the pleadings, the appellant has not cared to adduce any evidence in support of the case that the line broke down on account of natural causes beyond the control of the appellant. The refusal on the part of the appellant to adduce any evidence in support of its case, in our opinion, has fatal consequences on the appellant's case. What was before the Court was only the evidence adduced by the respondent/plaintiffs in the form of both oral and documentary evidence. The oral evidence would appear to suggest that there was indeed a complaint given by PW3. The fact that PW3 has filed a complaint was also spoken to by PW1. Their evidence has been accepted by the trial court which had the opportunity to watch the demeanour of these witnesses. In the context of the AS.NO.561/98 A 10 facts of this case, we do not think that the appellant can be permitted to derive any assistance from the decision of the Apex Court which the learned counsel for the appellant would seek to rely on. There is evidence in this case which commended itself for the acceptance of the trial court to the effect that the deceased died due to electrocution and the electrocution happened in the manner set out by the respondent/plaintiffs. We notice that apparently there was also some enquiry by the Electrical Inspector as is usual in such case. But, neither the appellant, nor the respondents have produced before the court. At any rate, going by the evidence available in this case and the pleadings in this case, we do not think that the appellant has succeeded in persuading us to overturn the findings as to electrocution and the negligence on the part of the appellant. 6. The further question which remains is the question relating to the quantum. No doubt, the learned counsel for the appellant is justified in attacking the manner in which the trial court has arrived at the decretal amount. The Suit was initially AS.NO.561/98 A 11 launched for a sum of Rs.55,000/=. After an amendment, the plaint claim was enhanced to Rs.1,50,000/=. The entire claim stands decreed. Learned counsel for the appellant brings to our notice a decision of the Division Bench of this Court in KSEB and Another v. K.V. Bhaskaran Nair and Others (AIR 2003 Ker. 57). Therein, this Court held as follows: “11. Now we shall consider whether the quantum of compensation awarded is just and proper. In 1986 Ker.L.T.1124: (AIR 1987 Kerala 253) (supra), this Court has taken a view that the compensation awarded must be just, real and reasonable in all circumstances of the case. The deceased was aged 24 on the date of accident. He was unmarried. The claimants are his parents, brothers and sisters. On the date of suit, his father was aged 65 and mother aged 60. The brothers are all grown up. The learned Subordinate Judge, without assigning any reasons, has fixed the compensation of Rs.1,50,000/=. We are of the view that the way in which the Subordinate Judge fixed the compensation is not proper. The deceased was a AS.NO.561/98 A 12 cleaner-cum-checker of a stage carriage bus and P.W.3 is stated to be the owner of the bus in which the deceased was working. He deposed that he was paying Rs.100/= per day and the deceased was having employment throughout the month. But he has not produced any documents to show that the deceased was having employment every day and he had been paid Rs.100/= per day. At any rate, he would have worked for 15 days a month. But, even as an unskilled labourer, the deceased could have earned Rs.75/= per day and he would have got 20 days' work a month. So we are of the view that the monthly income can be safely fixed as Rs.1,500/= per month of which he would have spent on-third for his personal expenses and contributed two-thirds for his family. So, the loss of income will come to Rs.12,000/= per year. There was every possibility that the deceased would have married and started separate residence. We are of the view that 8 can be taken as the multiplier in this case. So the total compensation on account of the death of Suresh Kumar will come to Rs.96,000/=. The respondents have claimed compensation for AS.NO.561/98 A 13 funeral expenses and for pain and suffering. We are of the view that an amount of Rs.2,000/= can be awarded for funeral expenses and Rs.2,000/= for pain and suffering. So the total compensation due to the respondents on account of the death of Suresh Kumar can be fixed as Rs.One Lakh. The appellants have already paid an amount of Rs.15,000/= to the respondents. So the respondents are entitled to get an amount of Rs.85,000/= with 9% interest from the date of decree passed by the Court below till date of payment.” Learned counsel for the respondents points out that no principle of law as such has been laid down in the aforesaid decision. 7. The Appeal has been pending since 1998 and we do not think it necessary to remand it and we can determine the compensation on the basis of the evidence adduced. Evidence has been given to the effect that the plaintiffs were in receipt of Rs.500/= to Rs.600/= every week. The deceased was unmarried. The plaintiffs were aged 70 and 65 years respectively (the second respondent died subsequent to the filing of the Appeal AS.NO.561/98 A 14 and additional respondents 3 to 8 are impleaded as the legal heirs of the deceased second respondent). There is evidence to the effect that the plaintiffs have five children. There is evidence to show that the deceased was initially a cleaner and then he was working as a driver. No doubt, there is no documentary evidence as such to prove the employment, but PW2 has been examined to prove the employment and the salary paid to the deceased. It is also his case that the deceased was a driver and was exploring the possibility of seeking employment abroad. In such circumstances, we feel that we can safely fix the loss of dependency at Rs.1,500/= per month. Having regard to the age of the plaintiffs, we feel that we can take five as the multiplier. The amount by way of dependency would be Rs,.90,000/=. We feel that we can fix a sum of Rs.3,000/= as funeral expenses and Rs.10,000/= towards pain and suffering. We also feel that the respondents should be awarded a sum of Rs.15,000/= towards loss of love and affection. Thus, the respondents would be entitled to a sum of Rs.1,18,000/=. The AS.NO.561/98 A 15 respondents would be entitled to interest at the rate of nine per cent from the date of Suit till the date of decree Being a money decree, the respondents will be entitled to interest at six per cent from the date of the decree till the date of realisation. Accordingly, the Appeal is partly allowed and the Judgment and Decree of the court below is modified and the respondents are awarded a decree for money in a sum of Rs.1,18,000/= (Rupees One Lakh & Eighteen Thousand) with interest at nine per cent from the date of the Suit till the date of Decree with costs. The rate of interest for the period from the date of the Decree till the date of realisation will be six per cent. In the circumstances, the parties are directed to bear their respective costs in this Appeal. Sd/= K.M. JOSEPH, JUDGE Sd/= M.L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge AS.NO.561/98 A 16 K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. A.S.NO. 561 OF 1998 A JUDGMENT 6th October, 2009.