IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 RSA.No. 1226 of 2008() ---------------------- AS.41/2005 of SUB COURT, KOZHIKODE OS.834/2001 of MUNSIFF COURT .,KOZHIKODE-II .................... APPELLANT/APPELLANT/3RD DEFENDANT ------------------------------------------------------------ THE SECRETARY KUNNAMANGALAM GRAMA PANCHAYAT KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN SMT.BINDU GEORGE RESPONDENTS/RESPONDENTS/ PLAINTIFF & DEFENDANTS 1 AND 2 ------------------------------------------------------------------------------------------------ 1. V.APPU, 73 YEARS S/O.PACHAR, KODAKKATTU HOUSE KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK. 2. THE ASSISTANT EXECUTIVE ENGINEER K.S.E. BOARD, KUNNAMANGALAM AMSOM, DESOM, KOZHIKODE TALUK. 3. SECRETARY K.S.E.BOARD, VYDHUTHI BHAVAN, THIRUVANANTHAPURAM. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A.NO. 2658 OF 2008 IN R.S.A. NO. 1226 OF 2008 DISMISSED SD/- HARUN-UL-RASHID, JUDGE 15.7.2009 HARUN-UL-RASHID, J. ---------------------------------------- R.S.A.No. 1226 of 2008 ---------------------------------------- Dated this the 15th day of July, 2009 JUDGMENT The second appeal is directed against the judgment and decree in A.S. No. 41/2005 on the file of the Sub court Kozhikode which arises from the decree and judgment in O.S No. 834 of 2001 on the file of the Munsiff Court, Kozhikode-II. The suit for damages was decreed by the trial court and confirmed in appeal by the lower appellate court. Hence the Second Appeal. The 3rd defendant in the suit is the appellant herein The parties hereinafter referred to as plaintiff and defendants as arrayed in the suit. 2. The 1st defendant is the Assistant Executive Engineer of the Kerala State Electricity Board , Kunnamangalam Division, the 2nd defendant is the K.S.E.B and the 3rd defendant is the Kunnamangalam Grama Panchayath represented by its Secretary. 3. The plaintiff's case is that on 14.6.2001 one of the bullocks of the plaintiff was electrocuted when it was being taken home after ploughing works in fields, owing to electric shock sustained from live earth wire of the pump house belonging to the 3rd defendant-Panchayath, that the killed bullock was purchased by the plaintiff for Rs. 15,000/- It is the plaintiff's further case that the accident had taken place owing to the negligence of the defendants. The plaintiff prays for damages to the tune R.S.A. No. 1226 of 2008 -2- of Rs. 15,000/- with 24% interest from the defendants. 4. The defendants contested the suit . It is admitted by defendants 1 and 2 that the bullock of the plaintiff was electrocuted owing to electric shock from earth wire of the pump house belonging to the 3rd defendant-Panchayath. According to defendants 1 and 2, after grant of electric connection, it is the duty of the consumer to ensure safety of the electric installations in his private premises and therefore they have no liability to recoup the loss of the plaintiff. The 3rd defendant-panchayath in addition to the defence taken by the defendants 1 and 2, further contended that no statutory notice has been envisaged under Section 249 of the Kerala Panchayath Raj Act, had been issued by the plaintiff and therefore the suit is not maintainable The 3rd respondent-Panchyath also denied the averment that the earth wire was installed without taking safety precautions. 5. The trial court considered the dispute on the basis of the oral evidence of PWs 1 to 4, and the documentary evidence i.e Exts A1 to A5 . No oral or documentary evidence was tendered by the defendants 6. The trial court on evidence found that in Ext.A3 postmortem report would reveal that the death of the bullock was owing to ventricular fibrulation, respiratory failure and shock . Therefore it is proved that the death of the bullock was caused due to electriculation 7. The oral evidence tendered by the plaintiff was elaborately considered by the trial court. PWs 1 to 4 were examined by the plaintiff to R.S.A. No. 1226 of 2008 -3- prove his claim . After repelling the contentions of the defendants, the trial court held that the plaintiff's version that his bullock having been electrocuted by the electric shock sustained from the live earth wire of the pump house belonging to the 3rd respondent- Panchayath is true. The trial court also held that the pump house was in an abandoned and neglected condition and that the earth wire was located in low lying fields discloses the negligence of the 3rd defendant-panchayath in proper installation and maintenance of the electric installations. The learned Munsiff further held that the officers of the K.S.E.B. are also negligent in this matter in verifying that installations were properly installed and safety measures taken. 8. The trial court also found that even though the plaintiff issued the statutory notice as envisaged under Section 249 of the Kerala Panchayath Raj Act, the 3rd respondent- Panchayath failed to sent even a reply notice. 9. The contention regarding the quantum of damages payable was also examined. In that respect, the trial court also accepted the plaintiff's version to the effect that the price of the bullock is Rs. 15,000/-. In the circumstances a decree was passed by the trial court directing the defendants 2 and 3 to pay Rs. 15,000/- with interest at the rate of Rs.12% per annum from the date of Ext.A1 notice till the date of suit and future interest at the same rate of interest. 10. The 3rd defendant -Panchayath preferred appeal as A.S. R.S.A. No. 1226 of 2008 -4- 41/2005. before the lower appellate court. The lower appellate court very elaborately considered the contentions of the 3rd defendant-Panchayath, on the basis of evidence and agreed with the findings of the trial court for sound reasons. 11. I have gone through the findings entered by the trial court and the lower appellate court. I am of the view that the findings are solely based on the evidence adduced in support of the claim of the plaintiff. The courts below also noted the fact that there is no contra evidence adduced by the defendants except raising some contentions in their written statements. I fully agree with the findings of the courts below. No grounds are made out in this second appeal to invoke the jurisdiction under Section 100 of the C.P.C. No questions of law much less any substantial question of law arises for consideration in this appeal. This appeal fails and accordingly dismissed in limine. 12. The learned counsel for the appellant/3rd defendant submitted that they are ready to pay the decree amount and requested this Court to grant two months time from today for making the payment. The request of the counsel is allowed and two months time granted from today for making the payment. . It is made clear that the execution proceedings shall be kept in abeyance for the said period. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- R.S.A. No. 1226 of 2008 ---------------------------- JUDGMENT 15th July, 2009