IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 AS.No. 643 of 1994() -------------------- OS.20/1990 of SUB COURT, MUVATTUPUZHA .................... APPELLANT(S): ------------------------- 1. V.D.JOHN, S/O.DEVASSIA, AGED 47 YEARS, VELLARAMTHADATHIL VEEDU, VADAKARA PAITTAKKULAM KARA, OLIYAPPURAM P.O., KOOTHATTUKULAM VILLAGE. 2. THRESSIAMMA, W/O.JOHN, AGED 43, VELLARAMTHADATHIL VEEDU, VADAKARA PAITTAKKULAM KARA, OLIYAPPURAM P.O., KOOTHATTUKULAM VILLAGE. BY ADV. SRI.P.V.GEORGE RESPONDENT(S): --------------------------- 1. SIVADASAN @ SIVAN, S/O.GOVINDAN, VATTAKKASSERIL HOUSE, VADAKARA PAITTAKKULAM KARA, OLIYAPPURAM P.O., KOOTHATTUKULAM VILLAGE. 2. MATHEW ALIAS MATHACHAN, S/O. ULAHANNAN, MALEPLAKKIL VEEDU, VADAKARA PAITTAKKULAM KARA, OLIYAPPURAM P.O., KOOTHATTUKULAM VILLAGE. 3. ULAHANNAN, S/O.KURIAN, KUNNAPPILLIL VEEDU @ MALEPLAKKIL, VADAKARA PAITTAKKULAM KARA, OLIYAPPURAM P.O., KOOTHATTUKULAM VILLAGE. 4. JOY, KALAPPURACKAL VEEDU, VADAKARA PAITTAKKULAM KARA, OLIYAPPURAM P.O., KOOTHATTUKULAM VILLAGE. 5. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM. R1 BY ADVS. SRI.H.SIVARAMAN, SRI. MATHEW CHERIAN. R2 & R3 BY ADVS. SRI .V.P.YOHANNAN, SRI. JOSHI VARGHESE. R5 BY ADV. SRI. C.K.KARUNAKARAN, SC, KSEB THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NO.897/1992 IN AS NO.643/1994 CLOSED 9/07/2010 SD/- M.N.KRISHNAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M.N. KRISHNAN, J. ........................................... A.S.NO.643 OF 1994 ............................................. Dated this the 9th day of July, 2010. J U D G M E N T This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Muvattupuzha in O.S.No.20/1990. The unfortunate case had arisen out of the death of the daughter of the plaintiffs who died on account of electrocution. It is the case of the plaintiffs that unauthorised electric connection was taken through the rubber estate of the 4th defendant by defendants 1 to 3. On the fateful day when Mini John - the daughter of the plaintiffs with her brother-Anish went there to collect firewood, she suffered electrocution which resulted in her death. On hearing the hue and cry of the daughter, the second plaintiff rushed to the spot and she also sustained injuries. The plaintiffs have claimed a sum of Rs. One lakh as compensation for the death of the daughter and Rs.10,000/= as compensation for the injury sustained by the second plaintiff. Defendants 1 to 3 had denied their liability so also by defendants 4 and 5. 2. The learned trial judge found that an unauthorised : 2 : A.S.NO.643 OF 1994 electric connection was taken through the estate of the 4th defendant by defendants 1 to 3 and that the wires were not even insulated and so held that defendants 1 to 3 are liable and exonerated defendants 4 and 5 from the liability and dismissed the suit against them. It is against that judgment, the plaintiffs have come up in appeal claiming liability against the 5th defendant, the Kerala State Electricity Board as well as the quantum. 3. Except the learned counsel for the Kerala State Electricity Board, I did not have the assistance of others. I have perused the judgment and decree and proceeded to dispose of the appeal. The first and foremost point for consideration is on whose negligence the electrocution has taken place. Unlike in other cases, one has to state that an unauthorised eclectic connection was taken by defendants 1 to 3 through the estate of the 4th defendant without the consent, sanction or knowledge of the Kerala State Electricity Board. The line was taken through the ground. It was not properly insulated and the poor girl who had gone to collect firewood got electric shock on account of the same. : 3 : A.S.NO.643 OF 1994 4. The court below has analysed the evidence of PWs 1 and 2, DW1 and the other witnesses. PW2 has rushed to the spot on hearing the hue and cry of her daughter and it has also come out in evidence that she had sustained burn injuries when she attempted to save her daughter. Therefore her evidence is first hand evidence and it requires acceptability. The Board's evidence also would reveal that there was no authorised connection and therefore it was only an illegal act done by defendants 1 to 3 through the property of the 4th defendant and that has resulted in the accident. The evidence analysed by the court below does not suffer from any infirmity and therefore it has to be held that there was no connection given by the Board and it was violating the rules, illegal and illicit connection has been taken and therefore neither the 4th defendant nor the 5th defendant can be held liable for the incident and the evidence only shows that it was on account of the illegal line taken by defendants 1 to 3 through the estate of the 4th defendant that the incident took place and therefore I hold that defendants 1 to 3 alone are liable and : 4 : A.S.NO.643 OF 1994 defendants 4 and 5 are not liable and therefore the prayer to make them liable is to be only rejected. 5. The next question is regarding the quantum. The girl was studying in 8th standard and was aged about 16 years at the time of death in the year 1985. Being a daughter, the parents cannot totally rely upon her throughout their life for the reason that in years to come she will get married and therefore the dependency rate will be certainly reduced. In a case of this nature where the parents have come forward with the claim for compensation, age of the parents have to be considered along with the age of the deceased to arrive at a decision. After the amendment of the Motor Vehicles Act, 1988, the statute itself has prescribed a table where for the death of children of 15 years, the multiplier of 15 is to be used. So also it has to be stated that when the age of the parents i.e., of the father is taken at 42 and the mother is taken at 38, the average age would come to 40 and applying the dictum of the Hon'ble Supreme Court reported in in Sarla Verma v. Delhi Transport Corporation (2009 ACJ 1298) the : 5 : A.S.NO.643 OF 1994 appropriate multiplier has to be 15. 6. Now the question is regarding the income to be taken. It is true that the legislature in its wisdom as per the amended Act of the Motor Vehicles Act, fixed the notional income at Rs.1,500/= for non earning member per annum. It was fixed on 7.11.1989. Whatever it is, a girl aged 16 years will start earning when she attains the age of 21 years. So considering the fact that the accident was in the year 1985, it will not be improper to fix the monthly income at Rs.600/=. When one third of the amount has to be deducted towards the personal expense, the dependency factor would come to Rs.4,800/= per annum before the marriage. Certainly when the person gets married, her preferences would shift to her husband and children and the parents can expect only a lesser amount. By that time there will be also increase in the remuneration or wages received by the person and it will not be inappropriate to fix the dependency at Rs.200/= per month. So, it will come to Rs.2,400/= per annum. When this is the basis and the multiplier to be used is 15 and when presumed that the girl : 6 : A.S.NO.643 OF 1994 will get married at the age of 25, there can be four years dependency at the rate of Rs.4,800/= and 11 years dependency at the rate of Rs.2,400/=. When it is so before marriage, it would be Rs.19,200/= and after marriage Rs.26,400/=. This court had held that even in instantaneous cases of death, pain and sufferings can be awarded at Rs.5,000/= and so, I award Rs.5,000/= for pain and sufferings. For the funeral expenses, I grant Rs.1,000/= and towards transport expenses another Rs.500/= is granted thus by making it a total of Rs.52,100/=. 7. PW2, the mother had suffered injuries and she had undergone treatment for a period of more than two months that is from 4.4.1984 to 30.6.1985. The trial court has considered those aspects with the medical evidence and awarded a sum of Rs.5,000/= as compensation. Therefore that also has to be only upheld and therefore the plaintiffs are entitled to a decree for Rs.57,100/= in stead of Rs.34,500/=. 8. Therefore the appeal is disposed of and a revised decree is passed whereby the plaintiffs are given a decree for : 7 : A.S.NO.643 OF 1994 realisation of Rs.57,100/= with 6% interest per annum from 28.3.1985 till realisation from defendants 1 to 3 and from their assets. The plaintiffs are also entitled to get proportionate costs of the suit and also the costs incurred in the appeal. The Registry shall address the District Collector for realisation of court fee under Order 33 Rule 10 of the Civil Procedure Code from defendants 1 to 3. Disposed of accordingly. M.N. KRISHNAN, JUDGE. cl : 8 : A.S.NO.643 OF 1994 M.N. KRISHNAN, J. ........................................... A.S.NO.643 OF 1994 ............................................. 9th day of July, 2010. J U D G M E N T