IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 17TH JUNE 2008 / 27TH JYAISHTA 1930 RFA.No. 333 of 2008() --------------------- OS.161/2003 of PRINCIPAL SUB COURT,ATTINGAL .................... APPELLANTS/DEFENDANTS ---------------------- 1. KERALA STATE ELECTRICITY BOARD REP;BY THE 2ND APPELLANT. 2. SECRETARY, KERALA STATE ELECTRICITY BOARD, 'VAIDYUTHI BHAVAN", PATTOM, THIRUVANANTHAPURAM. BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB RESPONDENTS: ------------- 1. RUGMINI AMMA,D/O.DEVAKI AMMA, HINDU, HOUSE WIFE, AGED 52 YEARS, RESIDING AT CHEMPALA KOCHUVEEDU, AT ANDOORKONAM IN ANDOORKONAM VILLAGE IN THIRUVANANTHAPURAM TALUK AND DISTRICT. 2. GOVERNMENT OF KERALA REPRESENTED BY THE 2ND DEFENDANT. 3. CHIEF SECRETARY, GOVERNMENT OF KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ADMISSION ON 17/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & T.R.RAMACHANDRAN NAIR, JJ. ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ R.F.A.No.333 of 2008-D ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ Dated this the 17th day of June, 2008 J U D G M E N T P.R.RAMAN, J. The appellants are defendant Nos.3 and 4 in the suit instituted by the plaintiff as O.S.No.161/2003. The suit is one for damages instituted by the plaintiff who is the mother and sole legal heir of late Sri.Sasidharan Nair, who was electrocuted at 1.30 p.m on 06/08/2002 at Andoorkonam. It was alleged that the death happened while he was engaged in agricultural work in the property where overhead extra high tension 110 K.V electric line from the 220 K.V Pothencode Sub Station to the Karyavattom Technopark 110 K.V Sub Station pass through. The accident happened while he was passing underneath Tower No.4 and 5 with a head load of manure for agricultural purpose due to the contact of a standing accasia plant with the electric line. The electrocution occurred because of not cutting the touching trees and for not keeping the required height to the overhead lines. The Electricity Board is legally bound to take precautionary adequate safeguards R.F.A.No.333/2008 -:2:- to avoid fatal accidents by maintaining required clearance in the area of the 110 K.V lines. It was specifically alleged that the electrocution occurred due to the negligence of the third defendant and their officials and on failure to discharge the statutory duty contemplated under law. The deceased was the sole breadwinner of his family consisting of his mother father and two younger sisters. He was earning not less than Rs.6,000/- per month out of which he spent Rs.5,000/- atleast to maintain the plaintiff and other family members. The plaintiff is a chronic Asthma patient and has no independent means of living. Though the compensation amounting Rs.12,25,000/- was claimed, the plaintiff limited her claim to Rs.7,00,000/-. The suit itself was instituted as an indigent person. 2. The fourth defendant, in the written statement filed on behalf of the third defendant also contended that the suit is not maintainable. The accident was admitted. But further allegation that the electrocution took place because of the negligence of the defendants was denied. There is a specific contention in the written statement that the deceased got electric shock while cutting an accasia plant which fell on the electric line. Though he R.F.A.No.333/2008 -:3:- was taken to the Medical College Hospital, on the way he died. According to them, before cutting down the tree, the deceased had not taken proper care and caution. Neither the property owner nor the deceased passed any information to the Electricity Board before cutting down the tree. No abnormality was noticed at the time of inspection on 15/03/2002. Fencing was provided at Tower locations with anti clamping device. The line was constructed observing all statutory formalities. Therefore, according to them, the accident occurred due to the negligence on the part of the deceased in not taking proper care and caution while removing the branches of the accacia tree. 3. The court below framed necessary issues for trial. PWs.1 to 5 and Exts.A1 to A16 were examined and marked on the side of the plaintiff. DWs.1 and 2 and Exts.B1 to B4 were examined and marked on the side of the defendants. The court below on an appreciation of the evidence and record found that the accident occurred due to the negligence on the part of the appellants/defendants. 4. PW.5 is the property owner where the accident took place. He deposed that the deceased was doing manual work in R.F.A.No.333/2008 -:4:- the property of one Somasekharan Nair adjacent to his property. The deceased was carrying manure keeping it over his head and making a cross through his property from the adjacent road so as to reach the aforesaid Somasekharan Nair's property. While so, the he happened to touch the accacia plant standing in his property which resulted in contact with the overhead electric line resulting his electrocution. Two documents have been proved through PW.5 as Exts.A15 and A16, which are letters addressed to him by the Assistant Executive Engineer, Transmission Sub Division, K.S.E.B, Kazhakuttom. By these letters they have directed PW.5 to give consent for erecting a new tower in his property or to remove soil on a depth of 75 cms, so as to maintain the vertical height of the electric line within 15 days of the letters. It is further stated in Exts.A15 and A16 that the Electrical Inspectorate have directed K.S.E.B to maintain the proper vertical clearance consequent to the incident happened in this case. 5. On the side of the defendants, DWs.1 and 2 were examined. Their evidence was appreciated by the court below. According to DW.1, periodical patrolling was conducted. He admitted that the vertical clearance at the scene of occurrence is R.F.A.No.333/2008 -:5:- only 5.63 metres, whereas the required vertical clearance to be maintained is 6.4 metres. But he also admitted having issued Exts.A15 and A16 letters to PW.4. Therefore, from the evidence of DW.1 and Exts.A15 and A16 it has come out that at the spot where the incident occurred, the vertical clearance from the ground level to the overhead 110 K.V. electric line, the height is only 5.63 metres. 6. DW.2 was summoned to produce the report of inspection conducted by the Electrical Inspectorate, that is marked as Ext.B4. DW.2 is an Electrical Inspector who assisted Sri.Ayyappan Nair in preparing Ext.B4 report. DW.2 deposed that the vertical clearance supposed to be maintained in respect of overhead 110 K.V line is 6.1 metre. But he did not give a clear cut answer as to the present vertical clearance at the spot. 7. With respect to the allegation by the defendants that while cutting down a tree that the victim suffered electric shock by contact with the falling down tree over the overhead electric wire, there is no evidence other than the mahazar prepared by the Assistant Executive Engineer of K.S.E.B which is marked as Ext.B2. Even the person who prepared Ext.B2 was not examined R.F.A.No.333/2008 -:6:- before the court. Ext.B2 itself was marked subject to the objection raised by the counsel for the plaintiff. Even the time of preparation of the mahazar is not mentioned. Hence the veracity of Ext.B2 and the contents thereof was held to be not proved. 8. In this connection, it must also be noticed that Ext.B4 is a report wherein it is stated that the vertical clearance of the spot is 5.6 metres. But for the report that victim was cutting down the tree, there was no direct evidence but was based on hearsay information. Since, Ext.B4 itself was prepared only on 07/08/2002, the next day of the incident, the report could only give direct information regarding the vertical height but not the cause of death. Therefore, it clinches to the issue regarding the vertical height maintained at that spot. Thus the court irresistibly reached to a conclusion that the negligence is on the part of the K.S.E.B. 9. Though the learned counsel appearing for the K.S.E.B disputed the correctness of the findings on the above issue, we, after careful consideration of the entire materials on record and after considering the judgment on the issue under consideration, are satisfied that the said finding is based on evidence and not a perverse finding and do not warrant any interference. R.F.A.No.333/2008 -:7:- 10. The court below has applied necessary yardsticks while quantifying the amount payable. The monthly income was assessed at Rs.2,250/-. 1/3rd of his income was deducted for his personal maintenance and the available income for his family was taken as Rs.1,334/- which is very nominal. Even though an amount of Rs.7,00,000/- was claimed as compensation, the court below has awarded only reasonable amount of Rs.2,95,400/- with interest at the rate of 6% per annum. In the circumstances, there is no merit in this appeal. Therefore, the appeal is dismissed. P.R.RAMAN, Judge T.R.RAMACHANDRAN NAIR, Judge ms