IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 RFA.No. 810 of 2008 --------------------- ( OS.146/2005 OF SUB COURT, NEYYATTINKARA ) APPELLANT/FIRST DEFENDANT: ------------------------------------------------ THE KERALA STATE ELECTRICITY BOARD, VYDHUDHI BHAVAN, THIRUVANANTHAPURAM,REP. BY ITS SECRETARY. BY ADV. SRI.C.K.KARUNAKARAN, SC , KSEB RESPONDENTS/PLAINTIFFS AND SECOND DEFENDANT: ------------------------------------------------------------------------------- 1. MRS. REETHA, AGED 51 YEARS, W/O. LATE STEPHEN, RESIDING AT IRRAYIMMAN THURAPURAYIDAM, PULLUVILA P.O, VIZHINJAM, THIRUVANANTHAPURAM. 2. BELSITTA, AGED 34 YEARS, D/O. LATE STEPHEN, RESIDING AT IRRAYIMMAN THURAPURAYIDAM, PULLUVILA P.O., VIZHINJAM, THIRUVANANTHAPURAM. 3. CLARA, AGED 28 YEARS, D/O. LATE STEPHEN, RESIDING AT IRRAYIMMAN THURAPURAYIDAM, PULLUVILA P.O., VIZHINJAM, THIRUVANANTHAPURAM. 4. EUGINE, AGED 32 YEARS, D/O. LATE STEPHEN, RESIDING AT IRRAYIMMAN THURAPURAYIDAM, PULLUVILA P.O., VIZHINJAM, THIRUVANANTHAPURAM. 5. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. THIS REGULAR FIRST APPEAL HAVING COME UP FOR ORDERS ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R. RAMACHANDRA MENON, JJ. ........................................................................ R.F.A. No. 810 OF 2008 & C.M . Application No. 2353 OF 2008 ......................................................................... Dated this the 29th January, 2009 J U D G M E N T Ramachandra Menon, J. : The appeal is filed by the first defendant in O.S.No. 146 of 2005 on the file of the Sub Court, Neyyattinkara, challenging the judgment and decree passed therein, awarding a total compensation of Rs.3 lakhs with interest at the rate of 6% per annum from the date of the suit till realisation and cost in respect of electrocution of the late Stephen, the husband of the first respondent herein (first plaintiff) and father of respondent Nos. 2 to 4 (plaintiff Nos. 2 to 4). 2. The appeal has been filed with an application to condone the delay of 44 days in filing the same. When the matter came up for consideration before this Court on 04.12.2008, the appellant was directed to produce a copy of the R.F.A. No. 810 OF 2008 & C.M . Application No. 2353 OF 2008 2 plaint along with the deposition of P.Ws.1 and 2 on 15.12.2008. It was noting the fact that the appellant-Board had not chosen to adduce any evidence - oral or documentary and that the only evidence, if at all any that could have been relied on by the Board could only be those elicited from the version of P.Ws. 1 and 2 during their cross examination, that it was felt very much appropriate for this court to look into the merits of the case as well while considering the petition seeking to condone the delay in filing the appeal. 3. The deceased Stephen while proceeding along the pathway on 19.06.1993 happened to come across a broken live wire of the K.S.E.B., sustaining serious electric shock leading to his death, which formed the subject matter of the Crime No.145 of 2003 registered by Kanjiramkulam Police station under Section 174 of the Code of Criminal Procedure. The death was sought to be compensated by filing the above Suit before the court below by the widow and children of the deceased, being the sole legal heirs, stating that the accident was only because of the lack of diligence and proper care in maintaining the supply R.F.A. No. 810 OF 2008 & C.M . Application No. 2353 OF 2008 3 line by the appellant Board. 4. The claim limited to Rs. 3 lakhs plus interest was opposed by the appellant-Board raising mainly three grounds; that the suit itself was not maintainable ; that the suit was bad for non-joinder of necessary parties and further that there was no negligence on the part of the Board. It was contended by the Board that the accident occurred not in the manner described in the plaint and that a galvanised iron stay wire tied between two coconut palms over and across a LT single phase line was broken due to stretching of the trees in wind, whereby one of the broken wires which was hanging from the coconut palm belonging to one P. Vincent fell on the pathway touching the phase conductor. It was stated by the Board that the other end of the wire was tied to another coconut palm in the property of one B. George. The deceased Stephen, according to the Board, in a rash and negligent manner pulled the wire which was in contact with the live electric line causing leakage of electricity through his body leading to his death. The negligence attributed on the Board was disputed, seeking to fix the same on the R.F.A. No. 810 OF 2008 & C.M . Application No. 2353 OF 2008 4 deceased himself. The plea of non-joinder of necessary parties was also put forth referring to the fact that owners of the concerned properties where the coconut palms were planted, were not made parties to the proceedings. 5. It is seen that P.Ws. 1 and 2 were examined on the side of the plaintiff/appellant and Exts. A1 to A5 were marked . No evidence was adduced, either oral or documentary, from the part of the defendant/the appellant herein to substantiate their contentions. 6. As observed by the court below in paragraph No.7 of the impugned judgment , the defendant-Board had not produced any material to show that the electrocution was due to any rash or negligent act by the deceased, as contended by the Board in the written statement. Nobody was examined from the part of the Board, even to suggest the existence of any stay wire allegedly tied between two coconut palms and broken in the wind. Hence it was not at all necessary for impleading the owners of the property where the coconut palms were planted, as rightly held by the court below in paragraph No.7 of the judgment. R.F.A. No. 810 OF 2008 & C.M . Application No. 2353 OF 2008 5 Similarly, the challenge against maintainability of the Suit was also not substantiated, at least, by stating in what way the suit was not maintainable. In any view of the matter, as observed by the court below in paragraph No.7 of the impugned judgment, the contentions raised by the Board as to the 'maintainability' of the suit and as to the 'non-joinder of necessary parties' were not pressed during the trial stage, which made the court below to arrive at a finding against the Board in this regard. The finding and reasoning given by the court below on these two issues (Issue Nos.1 and 2), hence, is not assailable in any circumstances. 7. With regard to the extent of damages, the total amount originally claimed in the plaint was Rs.4,10,000/-, which however was limited to a total sum of Rs. Three lakhs plus interest. It has been brought out in evidence ( from the deposition of P.Ws. 1 and 2 and also by virtue of Exts.A1 to A5) that the deceased sustained electric shock when the live electric wire which was broken and lying down on the pathway came into contact with the deceased through the water accumulated on R.F.A. No. 810 OF 2008 & C.M . Application No. 2353 OF 2008 6 the pathway. As observed by the court below, the defendant Board had not produced even the site mahazar to examine any chance or probability of the case suggested by the Board in the written statement. It was accordingly that the court below arrived at a clear finding that the plaintiffs were very much entitled to get a decree in their favour. 8. In this context, it is also relevant to note that the negligence on the part of the appellant-Board can be inferred from the facts and circumstances of the case, as made clear by this court vide decisions reported in K.S.E.B. vs. Kamalakshy Amma (1986 K.L.T. 1124 ) and in Thressia vs. K.S.E. Board (1987 (1) K.L.T. 492) . In the instant case, the breakage of live wire and leakage of electricity only points to the negligence and lack of proper care and maintenance on the part of the Board in maintaining the electric line, without any regard to the lives and limbs of the general public . As it stands so, the issue No.3 answered by the trial court in favour of the plaintiffs, declaring their eligibility to claim compensation from the defendant-Board is perfectly in order. R.F.A. No. 810 OF 2008 & C.M . Application No. 2353 OF 2008 7 9. The facts and evidence discussed by the trial court reveal that the deceased was a fisherman aged 51 years. For computing the loss of dependency, the monthly income of the deceased has been reckoned by the court below only at a notional level. Even otherwise, the fact that the deceased was maintaining his family consisting of three grown up members, besides himself is enough to presume the same. Taking note of the relevant age factor, the trial court has fixed the 'loss of dependency' at Rs.2,50,000/-, fixing also such other amounts as Rs.20,000/- towards 'loss of estate'; Rs.20,000/- towards 'loss of love and affection' and Rs.10,000/- towards compensation for 'pain and suffering', thus granting a total sum of Rs. 3 lakhs which is very much reasonable and cannot be stated as on the higher side, on any scale. In the above facts and circumstances, particularly in the absence of any contra evidence, this court does not find any tenable ground necessitating interference on merits and as such, no purpose will be served by issuing notice to the respondents/plaintiffs in the petition filed by the appellant/Board R.F.A. No. 810 OF 2008 & C.M . Application No. 2353 OF 2008 8 seeking to condone the delay in filing the appeal. Accordingly, C.M. Application No.2353 of 2008 seeking to condone the delay in filing the appeal and consequently the appeal are hereby dismissed. No cost. I.A.NO. 5115 of 2008 is also dismissed. KURIAN JOSEPH, JUDGE. P.R. RAMACHANDRA MENON, JUDGE. lk