IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 11TH NOVEMBER 2010 / 20TH KARTHIKA 1932 AS.No. 548 of 1994() ------------------------------- OS.214/1990 of ADDL.SUB COURT, PALAKKAD .................... APPELLANT(S): PLAINTIFF --------------------------------------- JOSEPH S/O. MATHEW, PARANEKKAL HOUSE, KALLEKULANGARA, AKATHETHARA AMSOM, PALAKKAD TALUK. BY ADV. SRI.V.N.ACHUTHA KURUP RESPONDENT(S): DEFENDANTS ----------------------------------------------- 1. THE KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM REP.BY ITS SECRETARY. 2. THE EXECUTIVE ENGINEER, ELECTRICAL DIVISION, KERALA STATE ELECTRICITY BOARD, PALAKKAD. R1 & R2 BY ADV. SRI.O.V.RADHAKRISHNAN SRI.S.RAMESH BABU(ADDL.SC. FOR KSEB) SRI.G.JANARDANA KURUP(SC FOR KSEB) SRI.N.D.PREMACHANDRAN, SC, KSEB SRI.C.K.KARUNAKARAN, SC FOR KSEB THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 11/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ AS No.548 of 1994-A ------------------------------------------------------------------------ Dated 11th November 2010 Judgment Thottathil.B.Radhakrishnan, J. The plaintiff in a suit for damages, is the appellant. He alleged that fire broke in a coconut farm belonging to him caught fire due to electric sparks from the overhead lines on account of negligence of the first respondent Kerala State Electricity Board and its officers, including the second defendant and resultantly, a portion of the coconut farm including yielding as well as young trees were destroyed. He pleaded that around 350 saplings were destroyed. He attributed the situation to the negligence of the officers of the Board in maintaining the overhead lines, making specific allegations that the overhead lines were sagging in violation of the prescriptions of the Indian Electricity Act and Rules. He had availed a loan of Rs.30,000/- from the land mortgage bank and the amount repayable had doubled by that time. AS No.548/1994 2 2. Contesting, the defendants pleaded that the electric lines were maintained properly and there is no reason for any attribute being made to the defendants for the fire incident in question. The defendants also sounded in the written statement that it could also be a case of subotage. They also disputed the quantum of damages claimed. It appears from the evidence that the plaintiff was facing proceedings by way of distress action in relation to the loan account. He had also certain writ proceedings before this court. He appears to have moved the vacation court and obtained issuance of a commission. 3. The Commissioner filed Ext.A9 report and tendered evidence as PW2. The plaintiff's specific allegation was that there were recurring incidents of short circuits and electric sparks. Insofar as the quantum of compensation is concerned, all that we have, is the evidence of PW1 - the plaintiff and PW2 - the Commissioner, who filed Ext.A9 report. AS No.548/1994 3 4. With the aforesaid materials, the court below dismissed the suit, holding that the defendants are not liable to pay compensation as no negligence on their part was established. The quantum of compensation in the assessment of the court below, has to be best pegged at an amount of Rs.20,000/- reflected by Ext.B1 report of the Kerala Fire Force Department. 5. In this appeal, the learned counsel for the plaintiff seriously challenged the finding of the court below that the Board and its officers were not negligent. Reference was made to the entire evidence and the circumstances. The evidence of PWs 3 and 4 are suggested to be appropriately corroborating the version of PW1 about the incident. As regards the quantum of compensation, it was pointed out that the Commissioner's report Ext.A9 is sufficiently corroborated by the testimony of the Commissioner as PW2. It is also stated that the testimony of PW1 further corroborates the evidence in that regard. AS No.548/1994 4 6. Per contra, the learned counsel for the K.S.E.B. argued that there is no material on record, which would indicate that the fire was due to any problem with the electric lines or that there were any short circuit. It was suggested that the situation may be one of subotage and the plaintiff was facing distress action on account of the loan transaction. The learned counsel further argued that there is no material providing any data to quantify the damages, if at all this court were to reverse the impugned findings on the issue of negligence. 7. The incident was on 10.04.1986. Ext.B1 is the report drawn up on that day itself, by the Kerala Fire Force Department. It contains the clear statement that the incident occurred due to electric sparks which fell on the dry grass in the farm. Even if we were to take it that the fire force officials were not eye witnesses to that incident, we have to take it that the same was recorded as the first among the informations available lex loci. The earliest statement of the local people which prompts an officer to AS No.548/1994 5 record certain fact on the basis of such information obtained during his official duty in connection with the incident, gives it such credibility on the basis of presumption as to regularity of official acts and such materials would not have been recorded by the fire force officer, having regard to the common course of natural events and human conduct, that it could be acted upon as sufficient material on which inferences could be drawn. In this view of the matter, we are inclined to take Ext.B1 and the statement regarding the incident as legal evidence. This, corroborated by the statements of PWs 1, 3, and 4, stands to prove the incident as alleged by the plaintiff. 8. Not only that, in terms of the provisions of the Indian Electricity Act, 1910 and the Rules issued thereunder, that were in force at the time of the alleged incident, the Board is the authority to maintain the electric lines as the licensee, being duly authorised in terms of the statutory provisions. Except the evidence of DW1, there is no material offered by the Board to show that the lines AS No.548/1994 6 were appropriately maintained in terms of the Rules. The Board is bound to maintain an appropriate beat records for routine supervision of the overhead lines. These are materials that should be available in the office of the Board. In fact, DW1 has stated that no such records have been maintained by the Board. Not only that, in the light of the incident, there was no reason why the Board had also not obtained any inspection report through the Chief Electrical Inspector in terms of the provisions of the Electricity Act. 9. On a preponderance of probabilities, the allegation of negligence levelled against the defendants stands. We hold so and reverse the finding of the court below in that regard. 10. PW2's evidence proving Ext.A9 commissioner's report does not by itself inspire confidence to accept the contents of that report as reflecting actual damages though the statements regarding damage caused may be quite right. We say this because of the credibility that would attach to the testimony of PW2, and her AS No.548/1994 7 statement of having prepared that report. We attach that credibility to the damage assessed. But, insofar as the quantum of damages is concerned, we are of the view that the yardsticks in that respect do not appear to be proper. There are serious disputes between the parties as to whether the coconut trees were 5 to 10 years old or were only saplings. The Commissioner appears to have adopted, essentially, the version of the plaintiff and has valued each coconut tree at Rs.500/-. This was some time in 1986. Even in the matter of valuation of loss or damage, or matters applying yardsticks available in different prescriptions as to such assessments including those relatable to assessment of compensation for Improvements by tenants, the yield yielding trees have to be assessed; necessary deductions have to be made towards droppings and also towards maintenance and for are non-yielding trees, the appropriate timber value has to be determined on the basis of law relating to such valuation. The plaintiff speaks only about coconut trees. In that view of the matter, AS No.548/1994 8 we do not find any justifiable reason to act on the data given in Ext.A9 by the Commissioner, as regards the damages. 11. However, taking the totality of the facts and circumstances into consideration and the views of the fire force department as contained in Ext.B1 that the total loss would be around Rs.20,000/-, we are inclined to think that nominal damages fixed @ Rs.30,000/- would be reasonable on the facts and circumstances of the case. In the result, allowing the appeal in part, the decree of the court below is set aside and the suit is decreed, allowing the plaintiff to recover an amount of Rs.30,000/- with interest @ 6% per annum from the date of suit till the date of realisation, from the assets of the first defendant with proportionate costs of the suit and of this appeal. We further direct that if the aforesaid amount including interest and costs is not deposited within a AS No.548/1994 9 period of two months, the rate of interest will stand modified to be 12%. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta AS No.548/1994 10