IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29 .10.2010 CORAM: THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH C.S.No.599 of 2007 Raju Gobind Dansingani .. Plaintiff Vs. 1.The Tamil Nadu Electricity Board, 800, Anna Salai, Chennai-2 2.The Superintending Engineer, Tamil Nadu Electricity Board, CEDE West, Chennai-40 .. Defendants Prayer:- This Suit has been filed under Order IV Rule 1 of the Original Side Rules R/W Order VII Rule 1 of C.P.C. For Plaintiff :Mr.S.RajendraKumar for M/s.Norton and Grant. For Defendants :Mr.N.Muthuswami JUDGMENT This suit has been filed by the plaintiff against the defendant seeking for compensation and for costs. 2.The brief facts in the case of the Plaintiff would be as follows:- The plaintiff was the only son of Shri.Gobind Dansingani and Smt.Veena G.Dansingani and he was born on 07.02.1970. The plaintiff is a B.Com., Graduate from Madras University and immediately after his graduation in the year 1990, he got a job as Manager (Wholesale and Retail Operations) with M/s.Ram's EMDE in West Indies. He was in -charge of the overall operations for the organisation and he worked there until his resignation in the year 2000. The plaintiff joined Netscape, a subsidiary of M/s.America Online Member Service India Pvt. Ltd., (formerly known as Netscape Communications) as Coach on a monthly salary of Rs.30,000/-. On 15.11.2002, he was posted at Bangalore, where he took up residence and established his family. He was promoted as Senior Coach in September 2004. His last revised CTC was Rs.5,46,000/- per annum. 2(2) On 09.09.2005, the plaintiff along with his wife came to Chennai to take part in a family celebration. On10.09.2005, the plaintiff and his wife went to the house of his only sister, Mrs.Kavitha Divakar, at Door No.1161, 6th Avenue, Anna Nagar, Chennai at around 10 p.m. After getting down from the car, the plaintiff and his wife were walking towards the gate of his sister's house when the plaintiff suddenly felt the heavy fall of an electric pole on the left side of his head and shoulders. The plaintiff received a violent blow and almost got crushed under its weight. He fell unconscious. Later he learnt that his wife, sister and passers-by had rescued him from underneath the electric pole and had rushed him to Sundaram Medical Foundation Hospital in Anna Nagar. 2(3) The plaintiff regained consciousness only on 11.09.2005. The plaintiff learnt that the Sub- Inspector of Police, V-5, Thiru mangalam Police Station, Chennai had registered a case in V-5 Cr.No.2977/05. The Medical Report given by Sundaram Medical Foundation reveals that at the time of admission of the plaintiff, "There was immediate loss of consciousness with amnesia for the incident; fracture surgical neck of left humerus; bleed from the nose and right ear; abrasion and hematoma behind the right ear; contusion on the left side of the back." C.T.Scan of the brain showed "extensive subarachnoid air-fracture through sinus; skull fractures". The plaintiff was transferred on 14.10.2005 to Apollo Specialty Hospital for "Stereotactic Surgery to drain an entrapped left occipital horn". After intensive treatment in Sundaram Medical Foundation and Apollo Specialty Hospital, the plaintiff's life has been saved, thanks to the efforts of the Doctors, but he has now been rendered permanently disabled. The plaintiff was discharged from Sundaram Medical Foundation on 12.12.2005 with advise to be under rest and continue the treatment as out-patient. The plaintiff is "Shunt Dependent", a medical terminology that refers to a state of affairs of a patient on whom a special surgery to fix drains has been performed. By that time, the plaintiff had already incurred medical expenses to the tune of Rs.8,40,000/-. 2(4) This incident received wide publicity in news papers and the Chief Minister of Tamil Nadu gave an ex-gratia payment of Rs.50,000/- as immediate solatium to the plaintiff. 2(5) After nearly four months, on 01.02.2006, the plaintiff managed to report to work. The plaintiff could not discharge his duties since it was found that very frequently he was losing memory. Therefore, the plaintiff was forced to tender his resignation on the ground of incapacitation on 08.02.2006. 2(6) The plaintiff was referred to Shreya Hearing Clinic for conducting Audio Metric Tests which took place on 17.03.2006. The plaintiff was diagnosed to have severe to profound sloping mixed hearing loss in the right ear and manual to moderate sloping conductive hearing loss in the left ear. 2(7) The plaintiff was further directed to undergo Neuro Psychological Assessment Tests which were conducted on 22.03.2006. The tests lasted for 3 = hours. The following impairments were shown in the test report:- i.Design fluency of the plaintiff was severely affected. ii.The plaintiff's working memory both verbal and visual were affected. iii.Learning and memory for verbal material was affected. iv.Plaintiff's visual integration on object assembly and learning and memory for visual stimuli were affected. 2(8) The plaintiff had to tender his resignation from work only due to the above impairments. The above faculties are very much important to perform any job. The plaintiff is not capable of doing any job as he is under constant medical treatment. Even on 03.04.2006, the plaintiff had an epileptic attack and he was immediately admitted into National Institute of Mental Health, Bangalore. There the plaintiff has been advised to undergo "Sodium Valporate Test" every month to check his Serum Valporate and Phenytoin levels which costs him Rs.1,000/- per month, in order to prevent further seizures. Further, the plaintiff is required to be continuously under strong medication. The plaintiff is incurring heavy expenses on this account also. The plaintiff's health condition is such that he is totally and permanently disabled from taking up any employment. 2(9) The accident resulting in the uprooting of the electric pole and the severe injuries suffered by the plaintiff were the direct result of poor maintenance of the pole by the first defendant. The defendants owed a duty to the public for the proper upkeep of their facilities and the fact of the accident itself betrays the negligent conduct of the defendants. The plaintiff's present condition could only be traced to the negligence on the part of the defendants who had failed to remove the post that was standing without any stay wire and the purpose for which it was laid was non-existent. Previously, overhead power cabled were strung to the post. It was long time back underground cables were laid in Anna Nagar area and yet the posts were not removed by the defendants. The defendants have not only failed to remove the posts but they have also been negligent in not observing the necessary precaution for securing the post from falling. The defendants as controlling heads are vicariously liable for the acts of commission and omission on the part of their subordinates. 2(10) The injuries has caused both pecuniary and non-pecuniary loss to the plaintiff, which are quantified in the following manner:- i.As on date, the plaintiff has incurred a sum of Rs.8,40,000/- as medical expenses for his treatment, which are supported by medical bills. The plaintiff has been advised to continue with the treatment throughout his life. ii. Therefore, taking into consideration, the nature of the injury suffered by him and the cost of treatment he would have to incur for the rest of his life, the plaintiff is claiming a sum of Rs.5,00,000/- towards future medical expenses. This sum has been arrived at after reckoning the probable escalation in the price of medicines, diagnostic techniques and hospitalisation charges. As stated above the plaintiff is required to undergo Sodium Valporate Test every month at the cost of Rs.1,000/- each time. The plaintiff has been undergoing the said tests from April/May 2006 onwards and that he should continue the process for the rest of his life. On account of the negligent attitude of the defendants, the plaintiff is forced to suffer all his life, and to be heavily dependent of strong medications/treatments even to perform his normal domestic routine chores. The plaintiff could not get himself gainfully employed anywhere on account of his present physical condition. Any amount of monetary compensation will not make good to the un-hold routine pains and tortures suffered by the plaintiff daily. Hence, he has forced to seek appropriate compensation to sustain himself and his family. 2(11) The plaintiff is aged about 37 years and in the normal course of employment, the plaintiff will retire at the age of 58 years. At the time of the incident he was earning approximately Rs.30,000/- per month. Had this accident not taken place, the plaintiff would have earned Rs.79,20,000/- (Rs.30,000/- p.m. X 12 months X 22 years) even if a conservative calculation is adopted without taking into consideration, the prospects of increase in salary and promotion, which are automatic. The plaintiff submits that there is also another method of calculating just compensation namely, by using admissible tools like multiplier and making due provisions for increase in salary. By adopting the said method, the plaintiff's average monthly salary should be reckoned at one and-a-half times more than the present salary of Rs.30,000/-, which is Rs.45,000/- per month or Rs.5,40,000/- per annum (Rs.45,000/- X 12 months) which if multiplied by adopting a multiplier of 17, the just compensation will amount to Rs.91,80,000/-. Therefore, looked at Rs.91,80,000/-, under the head 'Permanent Loss of Income on account of 100% loss of earning capacity', which he is restricting to Rs.75,00,000/-. The plaintiff respectively submits that for the financial year 2004-05, he was shown taxable Income of Rs.4,50,491/- for which he has paid Income Tax of Rs.1,06,066/-. 2(12) The plaintiff requires a personal attendant to be by his side always in order to help him to move about for performing his normal chores like bathing etc. At present the plaintiff has employed an attendant by paying him a monthly salary of Rs.2,500/-. The plaintiff is also entitled to quantify the gratuitous services of his wife for the rest of his life. The plaintiff is quantifying the damages under this caption at Rs.2,00,000/-. 2(13) The plaintiff is herein below summerising the compensation claimed by him under the following distinct heads:- a) Medical expenses incurred Rs.8,40,000/- b) Future medical expenses Rs.5,00,000/- c) Pain and suffering and mental agony Rs.2,00,000/- d) Loss of amenities and permanent disability Rs.1,00,000/- e) Expenses for employing Personal attendant Rs.2,00,000/- f) Loss of consortium Rs.1,00,000/- g)Permanent loss of income on account of 10% loss of earning capacity Rs.75,00,000/- ------------------- Rs.94,40,000/- ------------------- The plaintiff has received Rs.50,000/-from the Chief Minister's Relief Fund and he has also received a sum of Rs.5,00,000/- from his employer as solatium. After deducting the sum of Rs.5,50,000/- from Rs.94,40,000/- the plaintiff is claiming a restricted sum of Rs.85,90,000/- as compensation from the defendants. 2(14) The plaintiff issued a legal notice dated 24.05.2006 to the defendants calling upon them to pay Rs.85,90,000/- as compensation. The defendants by their notice dated 02.06.2006 have accepted the factum of the incident, but have taken a plea that the incident was on account of 'Act of God'. Hence, the plaintiff is filing this suit for damages for a sum of Rs.85,90,000/-. The plaintiff therefore prays that this Court may be pleased to pass a judgment and decree. i) Directing the defendants to pay the sum of Rs.85,90,000/- with interest at 9% from the date of plaint till the date of realization. ii) For costs of the suit. 3.The brief facts in the case of the defendant stated in the counter affidavit would be as follows:- 3(1) In VI Avenue Anna Nagar, Chennai, the over head line to U.G. Conversion work order has been issued vide W.O.No.565/S4/D1/131/02/2004-2005, dated 17.06.2004 for laying 375 meters of 3-1/2x240 U.G. Cable, 375 meters of 3-1/2x120 U.G. Cable with 4 mini pillars. Out of the 375 meters 3-102x240 U.G. Cable drawn Reg.No.202394 dated 16.03.2005 and 4 Nos. of mini pillars were drawn vide requisition No.200629 dated 24.03.2005. The entire conversion of O.H. To U.G. Work was completed on 06.09.2005. In view of the holiday on 07.09.2005 and 09.09.2005 and 10.09.2005 being holiday, it was programmed to shift the dead lines and posts during the third week of September, 2005 i.e. From 12.09.2005. On 1.09.2005, due to heavy rains with gale winds accompanied by lightning and thunder E.B post might have fallen on to plaintiff on 10.09.2005 at 22 hours. The accident occurred due to "Viz Major" an Act of God and beyond the control of the defendants/Tamil Nadu Electricity Board. The victim was also paid Rs.50,000/- as Ex-gratia. The allegation that the plaintiff sustained fracture of left humerus bone, and that C.T.Scan showed extensive sub-arachuoid air fracture through sinus and fracture in the skull are not admitted and the plaintiff is to put to strict proof of the same. The further allegation that on 14.10.2005 the plaintiff was transferred to Apollo Speciality Hospital for steriotetic surgery to drain an entrapped left occipital horn is denied. This defendant further does not admit the allegation that the plaintiff spent Rs.8,45,000/- towards medical expenses. The plaintiff is put to strict proof of the same. The defendant further does not admit the allegation that the plaintiff was working as a Senior Coach in American Online India Pvt. Ltd., Bangalore, drawing a monthly salary of Rs.40,000/- and put the plaintiff to strict proof of the same. 3(2) The allegation that the plaintiff was unable to discharge his duties since he was losing his memory and enforced to tender his resignation on the ground of incapacitation are not admitted and put the plaintiff to strict proof of the same. The allegation that the plaintiff was directed to undergo Neuro Psychological assessments and the results are not admitted and put the plaintiff to strict proof of the same. Hence, the plaintiff allegation that all these tragedy could be traced on the part of the defendants / Electricity Board officials are not admitted. The accident occurred due to nature's fury and beyond the control of the defendants / Tamil Nadu Electricity Board. 3(3) The plaintiff claim of Rs.85,90,000/- under various heads are highly excessive, arbitrary and exorbitant and liable to rejected. In fact the defendants / Tamil Nadu Electricity Board understand that the plaintiff is hale and healthy and living a normal life. 3(4) There is no negligence of carelessness on the part of the defendants / Tamil Nadu Electricity Board as already stated in paragraph No.2 of its written statement. The accident occurred due to natural calamity for which admittedly he has been compensated by the payment of Rs.50,000/- by the Tamil Nadu Electricity Board and Rs.5,00,000/- by his employer. The defendant understand that he is now employed. Therefore, the plaintiff is not entitled to such a huge claim made in the plaint on various unsustainable grounds. 3(5) In the circumstances stated above, the plaintiff is not entitled to the relief's prayed for in the above suit and the same is liable to be dismissed. 4. The following issues were framed by this Court on 21.02.2008, for trial. (i) Whether the defendants are guilty of negligence ? (ii) Whether the defendants are liable to pay damages by way tortious liability ? (iii) Whether the defendants are entitled to set up a plea of 'vis majore' ? (iv) Whether the plaintiff is entitled to any compensation on account of the suffering undergone by him and if so, to what extant ? (v) Whether the plaintiff is entitled to any other relief ? 5. The plaintiff examined himself as PW1 and also examined the doctor, who treated him, as PW2 and had produced Exs.P1 to P40 in order to prove his case. The defendant had examined its superintending Engineer as DW1. No documentary evidence has been received on the side of the defendant. 6. Heard Mr.S.RajendraKumar for M/s.Norton and Grant, the learned counsel for the plaintiff and Mr.N.Muthusamy, the learned counsel for appearing for the defendants. 7. The learned counsel for the petitioner would submit in his argument that the suit has been filed by the plaintiff for compensation of Rs.85,90,000/- for the injuries caused to him on his head and shoulder, due to the fall of an electric pole belonging to the defendants. He would further submit in his argument that the said accident occurred on 10.09.2005, when the plaintiff along with his wife went to the house of his only sister Mrs.Kavitha Diwakar in Anna Nagar, Chennai, at about 10 p.m., when the plaintiff and his wife alighted from the car were walking towards the gate of his sister's house and at that time, the electric pole which was standing on the side of the platform had fallen on the head of the plaintiff and due to the impact caused due to the heavy fall of the electric pole, the plaintiff sustained injuries on his head and shoulders and due to the heavy blow, he fell un-conscious and thereafter, he could recognise that he was admitted in Sundaram Medical Foundation Hospital, Anna Nagar, Chennai for treatment. He would further submit in his argument that the electric pole was not properly maintained by the defendant and it was in a condition to fall on the head and shoulder of the plaintiff, so as to cause injuries and for that the plaintiff was not at all responsible. He would further submit in his argument that the defence raised by the defendants that it is an act of God cannot be helpful to the defendant since similar electric poles standing in the vicinity did not fall to the ground due to any heavy rains which may classify the incident as 'vis-major'. He would further submit in his argument that the poor maintenance of the defendants and their staffs or employees would lead to fall of the electric pole and the plaintiff sustained injuries on his head and shoulders for no fault of his. He would draw the attention of this Court to the application of doctrine of 'RES IPSA LAOQUITOR' which means the thing itself would speak. Therefore, the claim of the defendants that the electric pole fall on the plaintiff only due to the heavy rains which rained on that day and the evidence of DW1 would not be sufficient to show that there was no negligence on the part of the defendants in maintaining the said electric pole. He would further submit that the defendants are entirely liable to compensate the plaintiff, since the accident had happened due to the negligence of the defendants in maintaining the said electric pole. 8. He would also submit in his argument that the plaintiff was admitted in Sundaram Medical Foundation Hospital, Anna Nagar, Chennai and thereafter, taken to Apollo Multi Speciality Hospital, and he was operated and saved by the efforts of the doctors there. He would also submit that he was prescribed with certain drugs to be taken by him throughout his life and he had also under gone various tests subsequent to the recovery from the injuries but he could not discharge his duties as he was losing his memory frequently. He would further submit that he had tendered his resignation from his job on the ground of incapacity. He would further submit that the plaintiff is to undergo Audio-metric test once in two months and he has lost his capacity to hear through right ear. The plaintiff is now to depend upon the medication permanently and he is prone to epileptic seizures and he has to engage one permanent attendant to take care of his normal routine life. He would further submit that the petitioner suffered due to the pain and sufferings because of the injuries and also expended nearly a sum of Rs.8,40,000/-. As regards pain and sufferings, he is still to undergo treatment for losing consciousness and destined to take medicines for maintaining his condition, and it may be assessed to Rs.2,00,000/-. He would also submit that the marriage life of the plaintiff was also taken away due to the injury sustained by him and he has claimed a sum of Rs.1,00,000/- on that caption. He would further submit in his argument that the petitioner has to appoint an attendant which would be a recurring expenditure to pay him a monthly salary of atleast a sum of Rs.2,500/- per month. He would also submit in his argument since he lost his job with an earning of a sum of Rs.43,393/- per month in a Call Centre at Bangalore, the plaintiff's loss over the permanent income would be around Rs.75,00,000/-, as he was only aged about 35 years, on the date of accident. However, when the multiplier is at 16 is used on his income of Rs.45,000/- per month, it would be around Rs.86,40,000/-. He would further submit in his argument, when all the expenditures along with permanent income has been calculated, it would show that the petitioner would be entitled to more than a sum of Rs.91,80,000/-, as compensation, to which the plaintiff restricted his claim at Rs.85,90,000/-. Therefore, suitable compensation may be ordered against the defendants for the loss sustained by the plaintiff due to the accident caused because of their negligence. 9. The learned counsel for the defendants would submit in his argument that the accident had happened on a rainy day and the unfortunate event happened to the plaintiff due to fall of an electric pole, which was not negligently planted or maintained by the defendants. He would further submit in his argument that the electric pole has been planted with utmost care and however, the heavy rain lashed on the fateful day had made the fall of electric pole on the plaintiff. Therefore, it is nothing but an 'Act of God' (vis-major) and there is no negligence on the part of the defendants. However, he would further submit in his argument, without prejudice his earlier submissions, that the claim at Rs.85,90,000/- is excessively sought for by the plaintiff taking the misfortune accident into a fortune in getting compensation. He would further submit in his argument that the plaintiff did not prove that he had sustained such a heavy loss. He would also submit in his argument that the plaintiff was not disabled as argued by the plaintiff per contra he was offered a job by the erstwhile employer and he would be drawing a salary of Rs.20,000/- per month and therefore, there is no question of any permanent loss of income for the plaintiff. He would further submit in his argument that the quantum of compensation claimed by the plaintiff for the pain and sufferings is also on a higher side and the calculation of permanent loss of income due to the disability caused to him was also not properly proved by the plaintiff. He would also submit that the Government on an ex-gratia consideration had paid a compensation of Rs.50,000/- to the plaintiff and the employer of the plaintiff had also given a sum of Rs.5,00,000/- towards the compensation. He would submit that the plaintiff at best can claim compensation towards medical expenditure incurred by him. He would therefore, request the Court to pass suitable orders by fixing a justifiable quantum in the event, the defendant are held liable by this Court. 10. I have given my anxious thoughts to the arguments advanced on either side. The arguments advanced on both sides are applied on issue wise. Issue Nos.i to iii: According to the evidence adduced on the side of the plaintiff the accident is said to have happened on 10.09.1995, at about 10 p.m. When the plaintiff and his wife were visiting his sister's house at Anna Nagar, Chennai when they were proceeding to the house of the plaintiff's sister after alighting from the car. In the said unfortunate event the electric pole standing by the side of the road, belonging to the defendants fell upon the head and shoulder of the plaintiff and caused injuries. 11. Nothing is suggested to the plaintiff that he was negligently crossing the electric pole, which was about to be fallen on the ground. It is the duty of the defendants, while supplying electricity to various consumers, to plant the electric poles which are connecting the electric wires, wherever necessary. Such