IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 9TH JULY 2010 / 18TH ASHADHA 1932 SA.No. 478 of 1997() ------------------------------ AS.71/1991 of SUB COURT, OTTAPPALAM OS.132/1989 of MUNI-MAGI.COURT,MANNARKAD .................... APPELLANT(S): (APPELLANTS/PLAINTIFFS) -------------------------------------------------------------- 1. VALIYADI SAINABA, W/O. THOTTUMUKKATH PUTHIYAMALIYAKKAL DECEASED POOKKOYA THANGAL. 2. IST APPELLANT'S CHILDREN, EMBICHIKOYA THANGAL. 3. HASHIM THANGAL, (THE APPELLATNS RESIDE AT PAYYANEDAM DESOM, KUMARAMPUTHUR AMSOM IN MANNARKKAD TALUK.) BY SRI.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE BY ADV. SRI.M.KRISHNAKUMAR RESPONDENT(S): RESPONDENTS/ DEFENDANTS) ------------------------------------------------------------------------ 1. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION OFFICE, MANNARKKAD. 3. THE EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION, PALAKKAD 14. R1 TO R3 BY ADV. SRI.A.SUDHI VASUDEVAN, SC, KSEB THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss S.S.SATHEESACHANDRAN ------------------------------------------------- S.A.No.478 of 1997 ------------------------------------------------- Dated this the 9th day of July, 2010 JUDGMENT Claim for damages by the plaintiffs, setting forth a case that valuable rubber trees in his plantation were destroyed by a fire, arising out of the contact of loose electric lines drawn through his property by the respondent - Kerala State Electricity Board {for short “Board”}, after trial was dismissed by the learned Munsiff-Magistrate, Mannarghat. Appeal preferred by the plaintiffs (A.S.No.71/91) against the dismissal of their suit O.S.No.132/89 was also unsuccessful as the learned Sub Judge, Ottapalam concurred with the findings of the trial judge for non-suiting them. This appeal is preferred against the concurrent decision so rendered by the two inferior courts. 2. The case of the plaintiffs, in brief, is that on 14.2.1989 at about 2 P.M., a fire occurred in their rubber plantation which emanated from the coming into S.A.No.478 of 1997 :: 2 :: contact of live electric lines drawn through their property. About 300 rubber trees in their plantation wereburnt down completely resulting in a loss of Rs.15,000/- was their case to claim such damages from the defendant Board. The lines were sagging and loose and there was negligence on the part of the Board in maintaining such lines drawn through the property was the case to claim the damages. 3. Resisting the claim, the defendant filed a written statement, in which among others, it was contended that there was no sagging of the lines and the fire which occurred in the property of the plaintiffs burning down the trees was not on account of the contact of electric lines drawn through that property. It was further contended that the case set up by the plaintiffs as to the cause of fire was totally false, since none of the rubber trees situate close to the lines were burnt. Negligence imputed against the defendant in the S.A.No.478 of 1997 :: 3 :: maintaining of the lines was also stoutly refuted by the Board. 4. In the trial, plaintiffs examined Pws.1 to 5 and exhibited Exts.A1 to A4 on the side of the defendant, a departmental official was examined as DW.1. An Advocate Commissioner had conducted a local inspection and prepared a report, which was exhibited as Ext.C1. After appreciating the evidence, the learned Munsiff found merit in the defence canvassed by the defendant that the cause of the fire had not been established as having arisen from the contact of live electric lines drawn through the rubber plantation. Adverting to the commission report, Ext.C1 and also other materials placed before the court, the claim for damages was found meritless, relying on the circumstance that none of the trees situate close to the electric lines were burnt down in the fire. On entering such findings, the trial Judge non-suited the plaintiffs. S.A.No.478 of 1997 :: 4 :: 5. In appeal, the learned Sub Judge considered only one question as to whether there was negligence by the officers of the defendant in the causing of the fire. The appellate Judge, mainly taking note of the materials collected in the report by the Advocate Commissioner that as on the date of his inspection, the lines were found to be not sagging and also the plaintiffs had no case of any new electric post additionally implanted in their property to avoid sagging of the lines, which was canvassed in trial, found that no interference with the conclusion drawn by the trial Judge was warranted. In that view of the matter, the appeal was dismissed. 6. I heard the counsel on both sides. 7. There is total mis-appreciation of the evidence, and, in fact, inconsequential and insignificant matters were given undue weightage by both the courts and that has resulted in miscarriage of justice, is the submission of the learned counsel for the appellants to S.A.No.478 of 1997 :: 5 :: assail the concurrent decision entered by such courts dismissing the claim for damages. On the other hand, the learned counsel for the respondent Board has contended that the plaintiffs have failed to establish by any materials that the fire had occurred on the cause pleaded by them i.e., by the contact of the electric lines drawn through their properties, which are stated to have been sagging at that point of time. When the Advocate Commissioner visited the property the lines were found to be not sagging, and that state of affairs should be deemed to have continued even when the fire occurred, in the absence of any contra evidence, is the further submission of the counsel to contend that no interference with the dismissal of the claim for damages to the plaintiffs is called for. 8. Having consideration over the submissions made by the counsel with reference to the materials tendered in the case, it is seen, both the courts have S.A.No.478 of 1997 :: 6 :: placed much reliance on the statement recorded from a department official of the respondent, by the Advocate Commissioner, at the time of local inspection, in which among other things, that official stated that the fire had not caused damage to the trees situated on both sides of the lines for a distance of 45 metres. First of all, the Commissioner had no authority to record the statement of the official, which was incorporated as part of his report Ext.C1, without any order or direction from the court directing him to record the statement of that official or any person. Such being the position, the statement of such official recorded by the Commissioner deserves only to be ignored as of no consequence. The materials tendered in the case would only show that the fire did not cause any damage to any of the trees for a distance of 15 metres on both sides of the lines. Other than the statement of the department official recorded by the Advocate Commissioner, there was no material to S.A.No.478 of 1997 :: 7 :: show that damage by fire had been caused only to the trees situated 45 metres away from the lines. The fact that a good number of rubber trees planted in the property of the plaintiffs had been damaged by fire is not in dispute. It has also come out that, immediately after the occurrence of fire, the plaintiffs had filed a complaint before the police and PW.4, a police officer inspected the spot. True, there is some discrepancy in his evidence as regards the location of the trees in the property which caught fire. But he had inspected the spot, on a complaint from the plaintiffs, soon after the occurrence, remain undisputed. It is also an admitted fact that two lines; one LT line and above that a HT line were drawn through the property of the plaintiffs. The Commissioner has noted that the distance between these two lines were 15 metres. The Advocate Commissioner has also reported that a new post was also seen erected at the time of his local inspection. In S.A.No.478 of 1997 :: 8 :: Ext.C1 report, he has given particulars of that post as well. One of the plaintiffs examined as PW.1 gave evidence that by erecting a new post after the fire, sagging of the lines was reduced to a considerable extent. The plaintiffs did not have such a case in the plaint was the reason taken by the court below to hold that there was no erection of new post in the property or anywhere near to prevent sagging of the lines. The fire caused to the plantation was on account of the contact of live electric lines drawn through that property, and such lines were then sagging, the case of the plaintiffs, is corroborated by the evidence of Pws.2 and 3, two neighbours in the locality. PW.4, the police official, who inspected the spot, after getting a complaint over the fire, also gave evidence supporting the case of the plaintiffs. The plaintiffs also examined one retired departmental official, an Assistant Executive Engineer and he gave evidence that sparks of fire from the S.A.No.478 of 1997 :: 9 :: contact of sagging lines would cause fire to nearby trees and, sometimes, even to trees situate at considerable distance away. Such sparks need not cause fire to the trees underneath, but only to trees situated at a distance away, is the evidence of PW.5, a witness who had some expertise and experience, regarding the maintenance and up-keeping of the electric lines. The defendant has examined one departmental official as DW.1. His evidence would show that a notice was received from the plaintiffs demanding damages for the fire caused imputing that it was on account of the negligence in maintaining the electric lines drawn through the property. But that notice was not responded. He gave an explanation that since there was no departmental instructions, reply was not given. Other than the assertion of the defendant, and the evidence of DW.1, the departmental official examined on behalf of the defendant, there was no contra evidence to challenge S.A.No.478 of 1997 :: 10 :: the case of the plaintiffs that the fire resulting in damage to the trees had not arisen by the sagging electric lines coming into contact and sparks from such contact falling upon the trees. Some of the trees, underneath the lines were not affected by the fire and no damage was caused to them, but trees situate some distance away were burnt in fire cannot be given unmerited consideration since the ground level of the property, the blowing of wind, if any, and several other factors, including the growth underneath bushes surrounding such trees etc., may have relevance why the trees situate some distance away alone caught fire. Merely because the trees close to the lines were not affected by fire, no inference is permissible that the fire that occurred was not on account of the sparks from the electric lines drawn through the property. When that be so, the conclusion drawn by the court below that the cause for the fire as alleged had not been proved placing S.A.No.478 of 1997 :: 11 :: reliance on inconsequential circumstances cannot be sustained. The only question to be considered on acceptance of the case of the plaintiff for the cause of fire, which is proved by the materials tendered, is the quantum of damages to be awarded. True, no material other than the commission report and the oral evidence of the plaintiffs, Pws.1, 2 and 3, are available for assessing the damages. It is seen, the evidence let in is insufficient to fix the quantum of damages. Plaintiffs have contended that nearly 300 rubber trees, aged about 4 years, had been damaged in the fire. But in the commission report, the number of trees damaged are not stated. Though there is no positive and satisfactory evidence enabling the court to fix the quantum of damages, on the proved facts that rubber trees aged 4 years and that too a good number of trees have been damaged on account of the fire, which is found to have S.A.No.478 of 1997 :: 12 :: been caused from the sparks which emanated from the contact with the sagging electric lines drawn through the property, I find, the plaintiffs are entitled to nominal damages, which I fix at Rs.10,000/- from the defendant. In reversal of the decrees of the courts below, the plaintiffs are awarded a decree for Rs.10,000/- with proportionate costs. Appeal is partly allowed. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.