IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 AS.No. 383 of 1995(D) ----------------------- OS.103/1991 of SUB COURT, HOSDRUG .................... APPELLANTS/RESPONDENTS: -------------------------------- 1. KERALA STATE ELECTRICITY BOARD, TRIVANDRUM-4 REPRESENTED BY ITS CHAIRMAN. 2. CHIEF ENGINEER, K.S.E. BOARD, TRIVANDRUM-4. 3. EXECUTIVE ENGINEER, K.S.E.BOARD, KASARGODE. 4. ASST.EXECUTIVE ENGINEER, K.S.E.BOARD, P.O.NILESHWAR. 5. ASSISTANT ENGINEER, K.S.E.BOARD, P.O.NILESHWAR. BY ADV. SRI.C.K.KARUNAKARAN, SC FOR KSEB RESPONDENTS/PLAINTIFFS: ------------------------------- 1. P.SAROJINI, W/O.AYYAPPAN, AYITHALA, NILESHWAR.P.O., HOSDURG TALUK, KASARGODE DISTRICT. 2. P.K.GEETHA, OF DO. DO. 3. P.K.SREEJA, OF DO. DO. 4. P.K.SREEJITH (MINOR). ADV. SRI.S.V.BALAKRISHNA IYER, K.JAYAKUMAR THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP.2914 OF 1995 IN A.S.NO. 383 OF 1995 ----- DISMISSED. 12/06/2009. SD/- A.K.BASHEER, JUDGE. SD/- P.S.GOPINATHAN, JUDGE. (TRUE COPY) A. K. Basheer & P. S. Gopinathan, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 383 of 1995 (D) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of June, 2009. Judgment Basheer, J: This appeal by the Kerala State Electricity Board and its officers, is directed against the decree and judgment passed by the trial court in a suit for damages. 2. The suit in forma pauperis was filed by the mother and children of deceased P.K.Valsala who was a fish vendor in the market in Nileshwar town. Valsala was a widow aged about 35 years at the time of her death. She had three children of whom one had just attained majority. The other two were minors aged 14 and 11. Her aged mother who was plaintiff No.1, was also living under the care and custody of deceased Valsala. 3. On December 15, 1988 at about 4.30 p.m. Valsala had, as usual, gone to the market for her business. According to the plaintiffs Valsala happened to step on a wire lying very near to a transformer installed by the Board at the market. She was electrocuted. Even though Valsala was taken to the hospital immediately, she did not survive. Plaintiffs alleged that the mishap occurred only because of the negligence on the part of the Board and its officers in installation and maintenance of the transformer. Plaintiffs claimed a total sum of Rs.2 lakhs as damages. 4. In the written statement filed by the appellants/defendants it was AS.383/1995. 2 admitted that Valsala died due to electrocution. However it was contended that the transformer in question was installed with all requisite precautions as per Electricity Rules 1956. While conceding that the transformer had been installed on one side of the market, it was contended that it had been properly fenced with a security fencing. According to the defendants the earth wire might have accidentally got energised when birds or crows sitting on the live wires in the transformer got electrocuted as a result of which the wings of those unfortunate birds might have come into contact with telephone wires, which run parallel and criss cross at some places. Defendants contended that deceased Valsala might have come into contact with the live wire somehow. The defendants disputed the claim of the plaintiffs contending, inter alia, that the deceased had not been earning Rs.50/- per day and that she would not have continued to do manual labour till the age of 75 as contended by the plaintiffs. In short it was contended that since the accident was not due to any negligence on the part of the Board, it was not liable to pay any damages, much less Rs.2 lakhs as claimed by the plaintiffs. 5. The court below framed the following issues: “1. Whether Valsala died by electrocution due to the negligence on the part of the defendants? 2. If so, what will be the quantum of AS.383/1995. 3 compensation to be awarded? 3. Reliefs and costs Addl.issue No.4. Whether the suit is barred by limitation as against the 1st defendant?” The mother of the deceased was examined before the rial court as Pw.1 and another witness was examined as Pw.2 . Exts.A1 to A6 were marked on the side of the plaintiffs. Dw.1 was examined on the side of the Board and Exts.D1 and D2 were also marked in the case. 6. The court below after considering the oral and documentary evidence on record held that the Board and its officers had failed to take proper precautions to avoid the death of Valsala and that the Board and its officers were negligent in this regard. Similarly, the court below further held that the claim made by the plaintiffs was very reasonable and decreed the suit for a sum of Rs.1,85,000/- with future interest at 12% per annum. Of course the court arrived at the above figure after adjusting the amount of Rs.15,000/- paid by the Government as ex gratia to the legal representatives of the deceased. 7. It is vehemently contended by Ms.Jyothi, learned counsel for the appellants that the court below had committed serious illegality in granting a decree to the plaintiffs as prayed for without adverting to the relevant materials available on record in their proper perspective. It is contended by AS.383/1995. 4 the learned counsel that the court below ought to have found that there was no negligence on the part of the Board or its officers. According to the learned counsel, the unfortunate mishap was only a sheer accident for which the Board or its officers could not have been made responsible. It is further contended that the court below had committed grave error in adopting 35 as multiplier while fixing the compensation. 8. At the very outset it has to be noticed that there is no dispute with regard to how the unfortunate incident took place. That the lady had died of electrocution when her body came into contact with a live wire near the transformer is not in dispute at all. The Board did not have a case that the live wire which caused the death of the lady was not part of the transformer installed by it at the market. But a very strange and far fetched theory of improbability of negligence, if we may call it so, has been advanced by the appellants in the written statement which is very curious to read. Therefore we extract the same hereunder: “..The transformer was installed with all precautions as per Indian Ele. Rules 1956. The earth wires are not normally alive. There are telephone wires which runs sometimes parallel and sometime criss crossing at the particular place. It is possible that by contact with birds or crows sitting on live wires and in the AS.383/1995. 5 process getting electrocuted and in the struggle to extricate the wings of these unfortunates might have come into contact with telephone wires and consequently the non-live earth wires could have got energised. It is likely that during the particular moment deceased Vathsala must have come into contact with live wires. When earth wires are energised, normally the wire should have blown off. But there is an infinite small short time when the wires would be energised and unfortunately deceased must have come into contact with live wire at this split second duration and got electrocuted.” 9. We have carefully perused Ext.B1 scene mahazar and Ext.B2 report of the Asst. Executive Engineer. In Ext.B1 scene mahazar prepared by the Asst. Engineer employed by the Board immediately after the accident, the presence of the earth wire on which the body of the deceased had come into contact is clearly mentioned. It is pertinent to note that the Board did not have a case that the lady had tried to go near the security fencing of the transformer or touched the same. Similarly there is no case for the Board that any other electrical line from a private party was lying on the ground. In other words, the only live wire or line available in the AS.383/1995. 6 vicinity was that of the Board which formed part of the transformer in question. Therefore as rightly held by the trial court the accident had occurred only because of the negligence on the part of the Board and its officers in drawing the lines of the transformer. The Board should have taken care to ensure that the earth wire did not get energised whatever may be the fantastic theory that could be put forward by the Board. In that view of the matter we hold that the Board and its officers were negligent and responsible for the accident. 10. What remains is only the question of adequacy or otherwise of damages awarded by the court below. Though the Board had vaguely contended that the deceased was older than her age as claimed by the appellants, in the post mortem certificate the doctor had recorded her age as 35. No contra evidence was adduced by the defendants. Therefore the trial court had rightly adopted the age of the deceased as 35. 11. The court below reckoned the daily earnings of the deceased lady as Rs.25, and rightly so, in our view. It is contended by learned counsel for the appellants that the court below was not justified in adopting 35 as the multiplier. According to the learned counsel 16 ought to be appropriate multiplier that should have been applied. Whatever be the merit or demerit of the above contention, in the facts and circumstances of this case we have no hesitation to hold that the amount awarded by the court AS.383/1995. 7 below is not at all exorbitant or unreasonable. Deceased Valsala had three children and her aged mother to look after. Two of the children were still minors though the eldest one had just attained majority. Valsala was a widow and therefore the entire burden to look after her comparatively large family had fallen on her shoulders. Unfortunately cruel fate had taken away her life in some unfortunate circumstances. Even if the multiplier adopted by the court below is on the higher side, (which it is not) in the peculiar facts and circumstances of this case we are satisfied that no interference is warranted. In this context it has to be noticed that the court below had not awarded compensation under various heads which the plaintiffs could have claimed. 12. Thus having regard to the totality of the facts and circumstances of the case, we do not find any merit in the contentions raised by the appellants. The amount awarded by the court below is eminently justified. Therefore the decree and judgment passed by the court below are confirmed The appeal fails and it is accordingly dismissed with costs. A.K. Basheer Judge P. S. Gopinathan Judge an.