IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.06.2010 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR Appeal Suit No.114 of 2003 1.Superintending Engineer Tamil Nadu Electricity Board Nagapattinam 2.Junior Engineer Tamil Nadu Electricity Board Nagur Nagapattinam ...Appellants/defendants Vs. 1.Syed Sulthani 2.Minor Ahamed Nachiyar 3.Minor Hammed Maraghyar 4.Fathima Ghani (No.2 and 3 represented by their mother and Natural Guardian, 1st Respondent) ... Respondents/plaintiffs 5.The State of Tamil Nadu rep. by the District Collector Nagapattinam ... Respondent/defendant Prayer: Appeal filed under Section 96 of Civil Procedure Code against the judgment and decree dated 31.10.2002 made in O.S.No.99 of 2001 by Principal Sub-Judge, Nagapattinam. For Appellants : Mr.N.Muthusami For Respondents : Mr.T.R.Rajaraman For R1 to R4 Mr.Ravi, Additional Govt. Pleader For R5 JUDGMENT The Superintending Engineer, Tamil Nadu Electricity Board, Nagapattinam and the Junior Engineer, Tamil Nadu Electricity Board, Nagur, Nagapattinam, who figured as defendants 1 and 2 in the https://hcservices.ecourts.gov.in/hcservices/ original suit have filed this appeal against the judgment and decree of the trial Court viz., the Court of the Principal Sub-Judge, Nagapattinam dated 22.10.2002 made in O.S.No.99 of 2001 on the file of the trial Court. 2.The facts relating to the filing of the appeal can be briefly stated as follows:- The respondents 1 to 3 /plaintiffs 1 to 3 are the wife and minor children of Late Mohammed Fakhruddin. Respondent No.4/4th plaintiff is the mother of Late Mohammed Fakhruddin. On 20.12.1999 in the early morning at about 3 a.m, the above said Mohammed Fakhruddin suffered an electric shock in front of his house in Nagur as he came in contact with a live high tension wire that got disconnected from the post and fell on him. Due to the said electric shock he died on the spot and the doctors at Government District Head Quarters Hospital, Nagapattinum declared him dead when his body was brought to the said hospital. The cause of death was also ascertained to be electric shock after conducting postmortem examination. A Postmortem report was also issued. The Village Administrative Officer informed the police of the said occurrence and a case was registered on the file of Nagoor Police Station as Crime No.240 of 1999 under Section 174 Cr.P.C. Claiming that the unfortunate incident took place due to the failure on the part of the appellants herein/defendants 1 and 2, to properly maintain the high tension electrical line, as a result of which the high tension wire got cut even when there was no natural calamity like heavy rain, storm or heavy wind blow. The respondents 1 to 3 herein/plaintiffs 1 to 3 filed the above suit O.S.No.99 of 2001 on the file the trial Court viz., the Court of Principal Sub Judge, Nagapattinam praying for a decree directing the appellants 1 and 2/defendants 1 and 2 to pay a sum of Rs.6,00,000/- as compensation together with interest on the said amount and cost. 3.The above said suit was filed in forma pauperis initially against the appellants 1 and 2 /defendants 1 and 2 alone. Since the suit was filed in forma pauperis, the State of Tamil Nadu represented by the District Collect was added as a party respondent to the application seeking permission to file the suit as an indigent person. Consequently, even after such a permission was granted, the Government of Tamil Nadu continued to be arrayed as 3rd defendant as a formal party. Being added as a formal party, the Government of Tamil Nadu who figures as 5th respondent in the appeal (3rd defendant in the suit) did not file any written statement. The second defendant filed a written statement and the same was adopted by the first defendant. In the said written statement they contended that the high tension line was properly maintained effecting periodical repairs and that due to heavy rain and wind blow, the high tension wire got cut; that the same was an accident as a result of an act of god beyond the control of the appellants/defendants 1 and 2 and that there was no negligence and want of care on the part of the https://hcservices.ecourts.gov.in/hcservices/ appellants/defendants 1 and 2. It was also contended therein that the amount claimed as compensation was exorbitant and highly unreasonable. The trial Court framed the issues which read as follows: 1)Whether the plaintiffs are entitled to a sum of Rs.6,00,000/- as compensation with subsequent interest as prayed for? 2)To what other relief the plaintiffs are entitled? 4.In the trial, one witness was examined on each side. 9 documents and 2 documents were marked on the side of the plaintiffs and defendants 1 and 2 respectively. 5.At the conclusion of trial, the trial Court, on an appreciation of pleading and evidence, came to the conclusion that the accident resulting in the death of Mohammed Fakhruddin, the husband of the first respondent (father of the respondents 2 and 3 and son of the 4th respondent) was due to the negligence on the part of the appellants herein/defendants 1 and 2 in so far as they failed to properly maintain and keep the high tension line repaired periodically and that hence, they were liable to pay compensation to the respondents 1 to 4/plaintiffs 1 to 4, who are the wife and children of the deceased. Taking the age of the deceased at the time of his death to be 32 years and his monthly income to be Rs.1500/-, the learned trial Judge assessed the damages on the head of loss of dependency at Rs.4,68,000/-, added a sum of Rs.2,000/- as compensation for funeral expenses and fixed the total compensation at Rs.4,70,000/-. Accordingly, a decree was passed directing the defendants in the suit to pay a sum of Rs.4,70,000/- as compensation to the plaintiffs together with an interest for the said amount at the rate of 9% p.a from the date of suit. 6.Aggrieved by the judgment and decree of the trial Court, the appellants herein/the defendants 1 and 2 have brought forth the appeal on various grounds set out in the memorandum of appeal. 7.The correctness of the finding of the Court regarding the alleged negligence on the part of Tamil Nadu Electricty Board as the cause for the accident resulting in the death of Mohammed Fakhruddin and the finding of the Court holding the appellants liable to pay compensation to the respondents 1 to 4/plaintiffs is questioned in the appeal. The decree of the trial Court is also challenged on the reasonableness of the quantum awarded as compensation by the trial Court. It has also been contended in the appeal memorandum that the award of interest for the damages from the date of plaint is also not in accordance with law. The appellants have also contended in their grounds of appeal that there was contributory negligence on the part of the deceased in not taking note of the snapped wire and stepping https://hcservices.ecourts.gov.in/hcservices/ on it and the same was not taken into consideration by the trial Court in fixing the extent of the liability of the appellants. 8.The points that arise for consideration in the appeal are 1) Whether the appellants/respondents 1 and 2 are responsible for the accident which resulted in the death of Mohammed Fakhruddin, the husband of the first respondent/ father of the Respondent Nos. 2 and 3/son of Respondent No.4? 2) Whether the appellants are liable to pay compensation to the respondents 1 to 4? 4) Whether the amount awarded by the Court below as compensation is excessive requiring reduction in this appeal? 5) Whether the interest awarded by the trial Court can be upheld? 9.The arguments advanced by the leaned counsel for the appellants and the learned counsel for the respondents 1 to 4 and that of the learned Additional Government Pleader representing Respondent No.5 were heard and the materials available on record were perused. Points 1 and 2:- 10.It is the argument advanced by the learned counsel for the appellants that the high tension electric line got snapped due to an act of god during rainy season; that there was contributory negligence on the part of the deceased Mohammed Fakhruddin, who stepped on the life high tension wire that was lying on the ground without noticing it and that hence the appellants should have been held not liable to pay any compensation to the respondents 1 to 4. In the alternative, it was argued on behalf of the appellants that in any event, there was contributory negligence on the part of the deceased and hence the compensation should have been reduced to a certain extent for the same. The learned counsel for the respondents 1 to 4, on the other hand would submit that the negligence on the part of officials of the Tamil Nadu Electricity Board was established beyond doubt; that there was no contributory negligence as contended by the appellants and that the well considered judgment and decree of the trial Court cannot be either set aside or modified regarding fixation of liability and quantum of compensation. 11.It is an admitted fact that the high tension electric wire got snapped during the night hours of 19.12.1999 and the early morning before dawn 20.12.1999; that the electric supply through the high tension wire, which was lying on the street after getting snapped was not cut off and that the deceased Mohammed Fakhruddin who came into contact with the live high tension wire, which had fallen https://hcservices.ecourts.gov.in/hcservices/ on the ground sustained a fatal electric shock at about 3 a.m. on 20.12.1999. There is a slight difference between the versions of the respondents 1 to 4 /plaintiffs and the appellants/defendants 1 and 2 as to when did the high tension line get snapped and fell on the ground. According to the testimony of PW1 at about 3 a.m. on 20.12.1999 on hearing the alarm sound from Pandian who was residing in the neighbouring house, the deceased Mohammed Fakhruddin went out of his house to see what was happening there and at that point of time, the high tension wire got snapped and fell on him as a result of which he died of electric shock. 12.On the other hand, it is the case of the appellants / defendants 1 and 2 that the high tension electric line had already got snapped and fallen on the ground and the deceased Mohammed Fakhruddin, without noticing the same, stepped on it and got killed due to electric shock. It is the clear and categorical testimony of PW1 that all the members of the family were awaken at about 3 a.m. on 20.12.1999 as it was their festive season and they had to start their "Nombu" at 3 a.m.; that at about 3 a.m., they heard an alarm from one Pandian who was residing in the neighbouring house, pursuant to which her husband Mohammed Fakhruddin went to the road to see what was happening and at that point of time the high tension electric line got snapped and fell at his feet resulting in his getting an electric shock leading to his death on the spot. It is her clear evidence that soon after the occurrence, they informed the Tamil Nadu Electricity Board officials over phone and thereafter they disconnected the supply through the electricity line and came to the spot. It is also the clear evidence of PW1 that the high tension electric line was not properly maintained by effecting periodical repairs and that the same was the reason for the wire getting snapped and falling on the ground. 13.One Arumugam has been examined as DW1 on the side of the appellants/defendants 1 and 2. Though he would have stated that he was deposing on behalf of the defendants, what was his designation in Tamil Nadu Electricity Board has not been stated. As per his evidence, it can be ascertained that electric supply was stopped soon after the information regarding the accident was received by the Assistant in the office. It is true that the appellants/defendants 1 and 2 have made an attempt to show that the high tension electric wire was properly maintained effecting periodical repairs by producing Exs.B1 and B2. A proper appreciation of the evidence of DW1 and the said documents will justify the discountenance of the above said contention of the appellants/defendants 1 and 2. Ex.B1 would show that the power supply was cut on 18.12.1999 for cutting the trees which tended to come in the way of the high tension line. Ex.B2 also shows that the tree cutting work was done in Pandaga Salai Street. All that the evidence of DW1, Exs.B1 and B2 would show is that power supply through the high tension electric line running along Pandaga Salai Street was stopped on 18.12.1999 for cutting the https://hcservices.ecourts.gov.in/hcservices/ tress causing an obstruction and that during the period of such power cut, the trees were cut. There is nothing in the evidence of DW1 and Exs.B1 and B2 to show that the high tension wires were checked on the said date. The records relating to the inspection of lines showing the periodical repairs have not been produced. Therefore, the fact that trees that had grown near the high tension line had been cut on 18.12.1999 cannot be stretched further to warrant an inference that the high tension wires were inspected and repaired to see that the same would not get snapped due to wind or other cause. 14.There is clear evidence on the part of the respondents 1 to 4 /plaintiffs to the effect that there was no natural calamity like heavy rain, heavy blow of wind or some other cause resulting in snapping of the high tension wire. At the same time, there is no proof for the contention raised by the appellants/defendants 1 and 2 that there was heavy rain on the date of occurrence and due to the same, the high tension wire got snapped. If at all there was such heavy rain and heavy blow of wind that might cause the high tension wires coming into contact with each other resulting in the snapping of the high tension wires, the appellants/defendants should have stopped the power supply through the uninsulated high tension wires to ensure that no such mishap would happen. It is also an admitted fact that no safety measures like providing of insulation pipes with cross wires were taken to prevent the falling of the live high tension wires on the street in the event of the same getting cut due to any reason and thereby to prevent any causality in such event. As it is admitted by DW1 that the high tension electric lines may get snapped when they come into contract with each other due to wind, the officials of the Electricity Board should have taken steps to see that the high tension wires are maintained at appropriate tension and by providing safety measures like provisions of crossbars or cross wires to prevent the high tension wires coming into contact with each other. 15.Admittedly, the Electricity Board has also not provided with an automatic tripping device in case the high tension wires come into contact with each other or a high tension wire gets snapped and falls on the ground. It was after the receipt of information over phone that Mohammed Fakhruddin died of electric shock, the power supply through the high tension wire which was running along a street inhabited by people was disconnected. If all these factors are taken into consideration, one would come to the conclusion, which shall be the only conclusion possible, that there was negligence on the part of the officials of the Tamil Nadu Electricity Board in maintaining the high tension electric wire running along or across the street and that the same was the cause of the accident in question. 16.The respondents 1 to 4/the plaintiffs have taken a clear stand that on hearing the alarm made by Pandian the deceased came out to see what was going on there, and at the point of time the high https://hcservices.ecourts.gov.in/hcservices/ tension wire got snapped and fell on his feet resulting in fatal electric shock. In such an event, we cannot even imagine the slightest decree of negligence or contributory negligence on the part of the deceased. Even assuming that the high tension wire had already got snapped and fallen on the ground even before the deceased went out of his house and that he stepped on the high tension wire which was lying on the ground without noticing it, the same shall not be enough to hold that there was contributory negligence on the part of the deceased. Clear evidence has been adduced through PW1 that it was dark and there was no light illuminating the place so as to enable the deceased to notice the high tension wire lying on the ground. As pointed out above, the Electricity Board has not chosen to provide safety measures like cross bar wires or tripping device to avoid causalities in such an event. Hence, this Court comes to the conclusion that the arguments advanced on behalf of the appellants that there was no negligence on the part of the officials of the Electricity Board and that at least there was contributory negligence on the part of the deceased cannot be countenanced and the same has got to be rejected as untenable. The Court below on proper consideration of pleading and evidence and proper application of the principle of law has rightly come to the conclusion that the death of the deceased Mohammed Fakhruddin should be solely attributed to the negligence on the part of the officials of the Tamil Nadu Electricity Board and that hence, the appellants/defendants 1 and 2 are liable to pay compensation to the respondents 1 to 4 / the plaintiffs, who are wife, children and mother of the deceased. There is no scope, whatsoever, to interfere with the same and the same deserves to be confirmed. Point No.3:- 17.So far as the quantum of compensation is concerned, it is the contention of the appellants that the amount awarded by the trial Court is highly unreasonable. The learned counsel for the appellants submitted that having fixed the monthly income of the deceased at Rs.1500/- per month and the age of the deceased at 32 years, the trial Court committed an error in applying the multiplier 26, that too without any deduction from the monthly income of the deceased towards the amount that would have been spent on himself. On the other hand, the learned counsel for the respondents 1 to 4 would contend that though the multiplier selected by the Court below cannot be justified, they are entitled to contend and show that the total amount awarded as compensation can be justified on the ground that the monthly income of the deceased should have been assessed at a higher rate and that compensation on other grounds also should have been allowed. There cannot be any dispute over the tenability of the said contention raised by the learned counsel for the respondents 1 to 4 as the same is on the sound recognized principles of law relating to assessment of compensation. Though some of the issues might have gone against the decree holder, in an appeal filed against the decree, the decree holder can contend that those issues https://hcservices.ecourts.gov.in/hcservices/ also should have been decided in his favour in order to sustain the decree of the trial Court. Such a right of the decree holder is spelt out in the first clause of Or.XLI R.22(i) of C.P.C. It says any respondent, though he may not have appealed against any part of the decree, may not only support the decree but may also state that the findings against him rendered by the Court below in respect of any issue ought to have been in his favour. In the light of the above said principle of law spelt out in the said provision regarding the right of the decree holder to support the decree and in doing so to contend that an issue which was decided against him should have been decided in his favour, the finding of the Court below regarding quantum is to be considered. 18.There is no dispute regarding the correctness of the finding of the trial Court that the deceased was aged about 32 years at the time of his death. So far as the avocation and income of the deceased are concerned, the Court below has come to the conclusion that the claim of the plaintiffs that the deceased was doing business as a skin merchant and was having an average income of Rs.5000/- per month was not substantiated by reliable evidence. Averment has been made in the plaint to the effect that the deceased was doing business as a skin merchant and the modus operandi of his business was to collect the skins of goats and sheeps from the neighbouring villages, process them and sell them. In this regard, in addition to the testimony of PW1, the plaintiffs have also produced Exs.A5 to A9 in support of their contention that the deceased was doing such a business. In line with the plaint averments PW1 has deposed to the effect that her husband was doing skin business. Ex.A5 is the sales tax Assessment order of the assessment year 1999 – 2000 in the name of A. Mohammed Hussain. The same is not proved to be related either to the plaintiffs or to the deceased Mohammed Fakhruddin. Exs.A6, A7 and A9 are also found in the name of Mohammed Hussain. There is no correlation of the said documents with the deceased Mohammed Fakhruddin. Therefore, the documents marked as Exs.A5 to A9 cannot be relied on the proof that the deceased Mohammed Fakhruddin was a skin merchant as contended by the plaintiffs. 19.As the documents marked as Exs.A5 to A9 are not proved to be the documents relating to the business of the deceased Mohammed Fakhruddin, the remaining evidence available in this regard is nothing but the interested testimony of PW1. No other document showing the avocation of the deceased Mohammed Fakhruddin to be a skin merchant has been produced. There is no other evidence to corroborate the interested testimony of PW1 in this regard. The fact that there is no other evidence corroborating the interested testimony of PW1 coupled with the further fact that the documents relating to another person has been produced as the Exs.A5 to A9 will make it clear that the above said plea of the plaintiffs has not been substantiated by reliable evidence. The Court below has rightly arrived at the conclusion that the plaint averment to the effect that https://hcservices.ecourts.gov.in/hcservices/ the deceased Mohammed Fakhruddin was doing business as a skin merchant was not substantiated deserves no interference and on the other hand, has got be confirmed. 20.However, the trial Court has chosen to fix the monthly income of the deceased at a paltry sum of Rs.1500/-. A healthy male at the age of 32, who was supporting four other members of his family, viz., his wife, two children and a widowed mother would have earned more. The learned trial Judge has been carried away by the fact that the suit has been filed in forma pauperis to calculate the income of the deceased. The mere fact that the plaintiffs are allowed to file the suit as indigent persons shall not justify the inference that the deceased who was maintaining the plaintiffs out of his own earnings cannot have earned sufficient income for the bare maintenance of the family members. Therefore, the reasoning assigned by the learned trial Judge for fixing the monthly income of the deceased at his prime youth viz., at 32 years, at Rs.1500/- is unreasonably low and the same deserves interference and modification. In this regard, the learned counsel for the respondents 1 to 3 has relied on the judgment of Hon'ble Supreme Court in New India Assurance Co. Ltd., Vs. Smt. Kalpana & Others reported in (2007) 3 SCC 538 and contended that in the absence of any definite material about the income of