IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 30TH APRIL 2009 / 10TH VAISAKHA 1931 AS.No.64 of 1995(C) ----------------------- OS.647/1990 of SUB COURT, THRISSUR .................... APPELLANT/1st PLAINTIFF: ----------------------------- SARADA AMMA, AGED 40 YEARS, D/O. THEKKEVATHIYIL AMMU AMMA, PANJAL VILLAGE AND DESOM, TALAPPILLY TALUK. BY MR.P.VIJAYA BHANU, ADVOCATE. RESPONDENTS/ DEFENDANTS 1 AND 2: --------------------------------------------- 1. KERALA STATE ELECTRICITY BOARD, REP. BY ITS SECRETARY, THIRUVANANTHAPURAM. 2. MAHESWARAN NAMBOODIRIPAD, S/O. KARUTHEDAN MANA ALIAS OZHIVANNUR MANA NARAYANAN NAMBOODIRIPAD, PANJAL VILLAGE AND DESOM, TALAPPILLY TALUK. 3. ARAVINDAKSHAN NAIR, S/O. KOLANCHERY KUNCHI AMMA, PANJAL VILLAGE AND DESOM, TALAPPILLY TALUK. ADDL.R4. NANGEAMMA ANDARJANAM, AGED 60 YEARS, W/O. LATE MAHESWARAN NAMBOOTHIRIPAD, KARUTHEDATH ALIAS OZHIVANNUR MANA, PANJAL VILLAGE, AND DESOM, TALAPPILLY TALUK. ADDL. R5. NARAYANAN NAMBOOTHIRI, AGED 30 YEARS, S/O. MAHESWARAN NAMBOOTHIRIPAD, KARUTHEDATH ALIAS OZHIVANNUR MANA, PANJAL VILLAGE AND DESOM, TALAPPILLY TALUK. AS.No.64/1995 ...2... ADDL. R6. SREEDEVI ANDARJANAM, AGED 27 YEARS, D/O. MAHESWARAN NAMBOOTHIRIPAD, KARUTHEDATH ALIAS OZHIVANNUR MANA, PANJAL VILLAGE AND DESOM, TALAPPILLY TALUK. ADDL. R7. SATHEESAN NAMBOOTHIRI, AGED 25 YEARS, S/O. MAHESWARAN NAMBOOTHIRIPAD, KARUTHEDATH ALIAS OZHIVANNUR MANA, PANJAL VILLAGE AND DESOM, TALAPPILLY TALUK. ADDL. R8. KRISHNAN NAMBOOTHIRI, AGED 20 YEARS, S/O. MAHESWARAN NAMBOOTHIRIPAD, KARUTHEDATH ALIAS OZHIVANNUR MANA, PANJAL VILLAGE AND DESOM, TALAPPILLY TALUK. (ADDL. RESPONDENTS 4 TO 8 ARE IMPLEADED AS PER ORDER IN C.M.P.No.1382/1996 DTD. 30.04.2009) BY MR.C.K.KARUNAKARAN, S.C, KSEB FOR R1. MS.N.SUDHA DEVI, ADVOCATE, FOR ADDL.R4 TO R8 MR.WILSON URMESE, ADVOCATE. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 30/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AS.No.64/1995 Order on C.M.P.No.645/1995 in AS.No.64/1995 Dismissed. 30.04.2009 Sd/- PIUS C. KURIAKOSE, JUDGE. // True Copy // P.S. to Judge. smp PIUS C. KURIAKOSE, J. ----------------------------------------------- A.S. No. 64 OF 1995 ----------------------------------------------- Dated this the day of February, 2009 J U D G M E N T The plaintiffs in a suit for compensation towards untimely death of their only son are the appellants. The defendants, the Kerala State Electricity Board and the owner of the premises where the son of the plaintiffs lost his life due to electrocution are the respondents. The parties will be referred to as they were before the trial court. The plaintiffs' case was that their only son was student of 8th standard of Panjal Government High School and he was electrocuted at 11.30 a.m. on the 1st March, 1987. It was alleged that the second defendant had sought the service of the plaintiffs' son for drawing water from the well and that he approached the well he received electric shock from the electric wire laid on the ground leading to an electric motor unauthorisedly installed near to the well. The second defendant negligently and with the full knowledge that the same is likely to cause danger to the life of people approaching the well for drawing water installed the motor and gave connection to the same through the wire laid on the ground. The second defendant had not taken any safety measures to avoid any possible danger by electrocution. Thus the second defendant culpably negligent in not taken precautionary AS. N0. 64/95 -2- measures to avoid incidents of electrocution. The first defendant K.S.E.Board is bound to check electric fittings in the house and to supervise the safety measures connected with the same. The first defendant never discharged the duty though they are bound to supervise electrical installations in the house as per the rules under the Electricity Act. If the Electricity Board carried out periodical inspection and taken corrective measures the incident would not have been happened. In that way the failure on the part of the Electricity Board to discharge their legal duty amount to culpable negligence and dereliction of duty. The son of the plaintiffs was aged only 14 years was quite healthy and was of very good character. He was the only ray of hope for his parents, the plaintiffs. His life would not have prematurely ended but for electrocution and normally he would have lived for not less than 70 years. The fate of their only child at the age of 14 came as a shock to the parents and their grief and misery is fathomless. The plaintiffs parents are entitled to compensation for loss of affection and sense of security over and above for the loss of dependency. Towards funeral expenses the plaintiff had to spend Rs.1000/- and towards other accounts plaintiffs claim Rs.99,000/-. The defendants by their negligent conduct and dereliction of duty are AS. N0. 64/95 -3- responsible for the untimely death of the plaintiffs' son and hence they are liable to compensate the plaintiff. Their demands for compensation have turned futile and hence the suit. 2. The first defendant Electricity Board filed a written statement admitting that the accident took place at 11.30 a.m. on 1-3-1987 and that the victim was an school boy aged 14 years. It was contended that the electric connection given to the 2nd defendant's house was only for domestic purpose and at the time of giving connection there was no electric motor installed there in the property. The first defendant K.S.E.Board had not consented to install any electric motor in the property of the second defendant. For pumping of water using motor no sanction was given to the second defendant by the first defendant. The Electrical Inspector of the Government after inspecting the installation in the property of the second defendant reported that the installation of the motor was very carelessly done and not upto the standards. The motor was not properly earthed. The death of the child is due to the leakage of electricity to earth in the premises of the consumer. It is therefore contended that the second defendant alone is responsible for the accident. Since electric shock was received from any of the installations carried out with approval from the first AS. N0. 64/95 -4- defendant there is no liability on the part of the first defendant to pay compensation. The second defendant violated the Rules and Regulations of Indian Electricity Act, which led to the accident. The amount of compensation claimed is an inflated one. It is further contended that as the first defendant is not responsible for the child's death they are not liable to pay any compensation. As per terms and conditions of the supply of electrical energy responsibility is that of consumer for installations of electrical appliances in the property. 3. The second defendant consumer has filed a detailed written statement repudiating his liability to pay compensation. The circumstances narrated in the plaint regarding the death of the child are denied. It is denied that he solicited the service of deceased boy for bailing of water from the well. It was contended that there was no connection as master and servant between the second defendant and the deceased victim. Second defendant pretended ignorance regarding the incident of electrocution and would deny that there is any possibility of getting electric shock from the wire leading to the motor. The water from the well was being drawn up by using motor. There was no necessity for bailing out water from the well. There was no electrical installation in the property which would come into contact AS. N0. 64/95 -5- with the body of anyone who would come to the vicinity of the well. The motor had been installed and had been in use as per the consent of the Electricity Board and this defendant had taken adequate safety measures as provided under the Regulations. According to this defendant, there is no negligence or dereliction of duty on his part. Even the entry of the boy into the property of the 2nd defendant was unauthorised and unwarranted. It was only because of the negligence and unwarranted act the incident occurred. The entire incident was beyond the control and management of the second defendant. From 27-2-1987 onwards the power supply to the second defendant's house was practically nil. The deceased was suffering from disease and there was no possibility for a long life for the deceased. The entire claim of the plaintiffs is built on imagination. The plaintiffs are said to have not suffered any mental agony due to the death of their child. It was also contended that for the funeral purpose no money was spent from the pocket of the plaintiffs. 4. On the above pleadings, the learned Subordinate Judge formulated the following issues for trial. 1. Whether there was any negligence on the part of the defendants? 2. Whether the defendants are liable for compensation and if so, AS. N0. 64/95 -6- what is the quantum? 3. Reliefs and costs? 5. At trial the evidence consisted of the oral testimonies of PW-1, the first plaintiff mother of the deceased and a witness PW-2 and Ext.A1 copy of the lawyer notice, A2 reply notice sent by the first defendant, A3 reply notice sent by second defendant to the plaintiff and A4 merit certificate obtained by the deceased child. The counter evidence consisted of the oral testimonies of DWs. 1 and 2. On evaluating the evidence the learned Subordinate Judge would find that the endeavour of the witness examined on behalf of the Electricity Board was only to fasten the responsibility for the incident on the second defendant. According to the learned Judge, if the first defendant is responsible for the faulty installation of the electric appliances and the first defendant gave electric connection to the same, both are equally responsible for the negligent act since the negligent act of the second defendant cannot be separated from that of the first defendant. According to the learned Judge they have either to sail in the same boat or to sink with the same boat. The learned Subordinate Judge highlights certain admissions in the reply notice sent by the Electricity Board that there was no faulty installation AS. N0. 64/95 -7- s and observe that these admissions gave momentum to the second defendant's contention that the installations were free from fault. Learned Judge points out that after the incident, a mahazar was prepared by the Board officials and it is the law that the Electrical Inspector should draw up an enquiry report with respect to the inspection. Learned Judge noticed that first hand information by an independent agency is not brought to the court. Neither the report nor the official is summoned to the court. The importance of the report looms large according to the learned Sub Judge in the light of the contention of the second defendant that the motor was installed near the house so that it can be seen by anybody coming to the house while the contention of the first defendant and the plaintiffs is that the motor was installed in the bathroom in a very defective and dangerous manner. According to the learned Judge since installation of the motor and using of poor quality wire to given connection to the same are the main points alleged against the second defendant, the mahazar prepared immediately after the incident or the enquiry report of the Electrical Inspector is absolutely necessary to pin the liability on the second defendant. According to the learned Judge, there was no evidence before the court to come to a conclusion that there was AS. N0. 64/95 -8- faulty installation of motor using poor quality of wire in the bath room of the 2nd defendant. As regards the plaintiffs' case that the service of the boy was solicited by the second defendant the learned Subordinate Judge observes that nobody has a case that the second defendant was permanently employed the deceased for any particular service or any particular service condition for paying any remuneration monthly or per day. It is noticed that the allegation was only that occasional service of the boy was being received by the second defendant. According to the learned Judge, none of the witness of the plaintiff had sworn to the effect that on the fateful day the boy's services were sought for by the second defendant. Learned Judge holds that if the boy had actually trespassed into the property and invited the accident himself, then no responsibility can be pinned on the second defendant, especially since there was no evidence to show that the second defendant purposely or negligently violated any law which would cast on him the duty to be otherwise. According to the learned Judge, there is dearth of evidence regarding faulty installation of the motor in the property of the second defendant. Learned Judge seems to have accepted the version of DW-1 that the boy was a trespasser or uninvited neighbour in the property at the time of the accident and AS. N0. 64/95 -9- that the naughty boy played with the electrical installations inviting the accident by electrocution. According to the learned Judge when there was no direct evidence regarding the faulty installations and the actual manner in which the death was caused the version of the second defendant was probable. The learned Judge also observed that in the absence of any evidence regarding the service of the boy having been solicited on the fateful day the second defendant cannot be made liable. Accordingly the suit was dismissed without costs. 6. After hearing counsel for some time I explored the possibility of a settlement between the parties by summoning the parties to my Chambers. My endeavour was unsuccessful. It was very extensive arguments which were addressed before me by the counsel for the parties, viz., Sri.George Thomas for the appellant, Sri.C.K.Karunakaran, Standing Counsel for the Electricity Board and Smt.Sudha Devi, learned counsel for the party respondent. 7. Mr.George Thomas submitted that the fact that the plaintiffs and the second defendant are adjacent neighbours was not in dispute. The cause of the death, the date and time of death, the place of death and the existence of the electric motor was also not in dispute. Referring to Ext.A2 the learned counsel for the plaintiffs submitted that AS. N0. 64/95 -10- the Electricity Board had specifically admitted that the incident occurred when plaintiffs' son Gopakumar was drawing water from the well in the compound of the second defendant as a result of the electric shock sustained from the motor installations provided to the above well for pumping water. Counsel submitted that through the reply notice the Board had admitted that from the investigations conducted by the Board officials it was understood that the electrocution was due to certain defects in the ordinary electrical installations made by the second defendant connecting the motor fixed near the well and also due to the negligence and carelessness shown by the second defendant in not curing the defects to the installations and in not taking necessary precautions or safeguards to prevent the inmates and other peoples employed by the Namboodiripad in his house from coming into contact with the installations. Mr.George Thomas highlighted the contention in the reply notice that if any defect in the operation of the D.P. switch or in the meter or in any other installations or even in the earthing was detected it was the duty of the consumer to give timely information to the concerned electrical section of the Board regarding the defects. No such complaint or report was received from the consumer, the second defendant about AS. N0. 64/95 -11- his electrical installations before the accident took place. It is only at the time of inspection of the site after the accident took place that the Board officials could detect that the D.P. switch was not under operation and that S.P. switch was connected with the D.P. and the motor being switched of with the operation of the S.P. It was also suspected that the motor itself was having leakage and the earthing was not proper. Counsel submitted that the Electricity Board had stated in the reply notice that according to their information it was known that Gopakumar was employed by the second defendant as a domestic servant being given only food for the services rendered. Highlighting the pleadings of the plaintiffs regarding the manner in which the accident occurred and the corresponding pleading of the defendant Mr.George Thomas submitted that there is no specific denial to the pleaded case of the plaintiff that the death is due to shock from the wire providing supply to the motor. Learned counsel would read over passages from the testimony of DW1 and would argue that the principle of res ipsa loquitur squarely applies in this case and there was every justification for decreeing the suit. According to him it was clear from this case that 2nd defendant has obtained motor connection after obtaining permission from the K.S.E.Board. There AS. N0. 64/95 -12- was admission from the mouth of DW1 that Electricity Boards officials who are coming for periodical inspection or at least for taking meter readings can see the illegal connection to the motor, which can see anybody who is coming to the house, but they have not taken sufficient steps to correct the illegal connection. Therefore counsel submits that both the defendants are liable to pay damages and requests that the suit be decreed as prayed for against both the defendants. (PIUS C.KURIAKOSE, JUDGE)