Baby v. Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA** **FRIDAY, THE 7TH DAY OF JUNE 2013/17TH JYAISHTA 1935** **RFA.No. 21 of 2004 (C)** ## **-----------------------** **AGAINST THE ORDER/JUDGMENT IN OS NO. 109/1999 OF SUB COURT,THODUPUZHA DATED 30-11-2001** **....** ## **APPELLANTS/DEFENDANTS:** **--------------------------------------------** **1. THE KERALA STATE ELECTRICITY BOARD, REP.BY ITS SECRETARY, VAIDYUTHI BHAVAN, THIRUVANANTHAPURAM.** **2. THE ASST.EXECUTIVE ENGINEER, GENERATION AND TRANSMISSION, KSE BOARD, MOOLAMATTOM, ARAKULAM VILLAGE, THODUPUZHA.** ## **3. THE ASSISTANT ENGINEER,** - **GENERATION AND TRANSMISSION, KSE BOARD, MOOLAMATTOM, ARAKULAM VILLAGE.** **BY SRI.P.SANTHALINGAM,SENIOR ADVOCATE BY ADVS.SRI.C.K.KARUNAKARAN, SC,KSEB SRI.S.SHARAN,SC,K.S.E.BOARD SRI.A.SUDHI VASUDEVAN, SC, KSEB** ## **RESPONDENT(S)/PLAINTIFF:** **------------------------------------------------** **BABY, S/O. DANIEL, THANNIKKAKUZHIYIL HOUSE, ANCHERI KARA, ALAKODE VILLAGE.** **BY ADV. SRI.T.J.MICHAEL** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 12/03/3013, THE COURT ON 07/06/2013 DELIVERED THE FOLLOWING:** **Kss** # **THOTTATHIL B. RADHAKRISHNAN & B. KEMAL PASHA, JJ.** **-----------------------------------------------** R.F.A. No.21 of 2004 & Cross Objection No.38 of 2013 **-----------------------------------------------** Dated this the 7[th] day of June, 2013 ## **J U D G M E N T** ## **Kemal Pasha, J.** It is a wonder that the plaintiff who had suffered 81% burns from a 220 KV electric line on 2.1.1998 is still living, even though with 30% disability! 2. During the period of incident, the plaintiff aged 35 was residing along with his wife and two children at his house. He was employed in a rubber factory and was also engaged in tapping works. He R.F.A.21/2004 -:2:- was able bodied and healthy. He is running a piggery near to the boundary line of his property. Moolamattom-Kalamassery 220 KV transmission electric line of the K.S.E.B passes through the eastern side of the house of the plaintiff. The ridge at the boundary line of his property through which there is a pathway, is situated almost beneath the said power line. The K.S.E.B has failed to keep the minimum required ground clearance for the said 220 KV power line at the place where it passes near to the house of the plaintiff. Even though the minimum required ground clearance was 7.3 metres, there was only 5.35 meters of ground clearance at that place. The plaintiff, who was unaware of the consequence and impending danger, was walking beneath the electric line through the pathway by R.F.A.21/2004 -:3:- carrying a teak pole for repairing the roof of the bakery. All of a sudden, on account of a flash from the electric line through the teak pole, electricity passed on to the body of the plaintiff thereby he suffered 81% burns all over his body, especially, to his hands, chest, buttocks etc. Immediately, he was taken to the Co-operative hospital, Thodupuzha and after first aid, he was referred to the Medical Mission Hospital, Kolencherry, from where he was again taken to the Medical College Hospital, Kottayam. He was treated as inpatient at the Medical College Hospital, Kottayam for the period from 2.1.1998 till 14.3.1998. he was Again, readmitted on 25.3.1998 and on discharged 28.3.1998. Even after that, he still continues treatment as an out-patient. R.F.A.21/2004 -:4:- 3. It is not disputed that the condition of the plaintiff remained very critical for the first one month of his treatment as in-patient and he was managing in isolation with strong antibiotics. He was suffering from excruciating pain. On healing of burns, surgery was done for skin grafting. The blood vessels and nerves of both his hands became fused on account of burns at the wrist, and thereby both the hands have become almost completely disabled. Loss of skin in an extensive manner has resulted in him susceptible to frequent infections. Even after his sustaining 81% burns, he survived only because of the fact that he was very healthy and able bodied, before the incident. After the incident, he has been practically rendered totally disabled to do any work and thereby he lost his earning capacity. R.F.A.21/2004 -:5:- 4. The wife of the plaintiff is unemployed. His wife and two children were totally depending on his earnings for their livelihood. According to the plaintiff, he was earning an amount of Rs.150/- daily and he had works for 26 days in a month. He calculated an amount of Rs.5,26,500/- towards damages for loss of his earning power and disability, Rs.50,000/- as compensation for pain and sufferings, Rs.50,000/- towards compensation for dis-figuration and loss of amenities, Rs.25,000/- towards loss of expectancy of life and Rs.25,000/- towards medical expenses including expenses for bystanders. Even though the plaintiff has calculated the total amount of compensation at Rs.6,75,500/-, he has limited his claim to Rs.3,00,000/-. 5. The defendants resisted the suit by filing a R.F.A.21/2004 -:6:- written statement contending that the plaintiff is not entitled to claim any compensation from the defendants, as the incident had occurred solely due to the negligence on the part of the plaintiff. Defendants have denied the averments regarding the earnings of the plaintiff. It was also contended that there was sufficient ground clearance for the power line through the property of the plaintiff. According to the defendants, the incident had occurred when the plaintiff had negligently lifted a fresh wooden pole having a length of 15 feet, while standing beneath the line. 6. The evidence consists of the oral testimony of PWs.1 to 3 and DW1 and the documentary evidence marked as Exts.A1 to A4, B1 and X1. The court below found that the defendants were R.F.A.21/2004 -:7:- negligent as they had failed to provide the required minimum ground clearance for the electric line at the spot and held that an amount of Rs.1,00,000/could be granted as just and reasonable compensation to the plaintiff. The defendants have come up in appeal. The plaintiff who is dissatisfied with the quantum of compensation, has come up with the cross objection. 7. According to plaintiff as PW1, the incident had occurred solely due to the negligence on the part of the defendants as they have failed to provide the minimum required ground clearance for the high power electric line. It has come out that an enquiry was conducted by the Electrical Inspector in the matter and Ext.X1 file for the same was maintained and kept at the office of the Electrical Inspectorate, R.F.A.21/2004 ## -:8:- Idukki. PW3 Electrical Inspector, Idukki was called upon to produce Ext.X1 file. He produced and proved Ext.X1. He has clearly deposed that the minimum required ground clearance for the said line is 7.3 metres, whereas, the ground clearance at the spot was only 5.35 meters. According to him, while PW1 was carrying a teak pole having a length of 3 metres, the plaintiff suffered electric shock by way of flash from the electric line through the teak pole. From the evidence it has come out that, had there been sufficient ground clearance as per the Rules, the plaintiff would not have subjected to electric shock even when he was carrying such a wooden pole having a length of 3 metres. Therefore, it stands proved that the incident had occurred due to the negligence on the part of the defendants. ## R.F.A.21/2004 -:9:- 8. We had occasion to discuss a similar question, and considered the principles of strict liability in **Varghese and another v. K.S.E.B [2013(2) ILR 99 = 2013(1) KHC 816(DB)]** . 9. The principle of strict liability was laid down in the celebrated case of **Rylands v. Fletcher (1868) L.R.3H.L.330** that, “if a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbours, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent damage”. **Rylands v. Fletcher** certainly involves a liability without proof of fault (subject to certain exceptions, most of which, are not or our recognized accepted by jurisprudence R.F.A.21/2004 -:10:- through precedents) for personal injuries or loss of life on account of the hazardous business of the defendant. 10. The rule in **Rylands v. Fletcher** , has resulted in the creation of a category of liability, for caused ultra-hazardous business or damage by activities, which is justified on the basis that the persons carrying them on should bear all the risks associated with them, and not merely those arising from their negligence. In **Shiffman v. Order of St. John [(1936) 1 All.E.R. 557]** , where the plaintiff became injured in Hyde park by a falling flag-pole belonging to the defendants, it was held that the would have been entitled to recover plaintiff even damages on the basis of **Rylands v. Fletcher** though he neither owned nor occupied the land on R.F.A.21/2004 ## -:11:- ## which the injury occurred. 11. The rule of strict liability born in **Rylands v. Fletcher** has been applied in our country by almost all the Civil Courts, High Courts and the Apex Court. In **M.P.Electricity Board v. Shail Kumari** **[2002 (1) KLT 480(SC)]** it was held; “It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the board. If the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into it, the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension, the managers of its R.F.A.21/2004 -:12:- supply have the added duty to take all safety measures to prevent escape of such energy.” It was further held; “Even assuming that all such measures have been adopted, a person undertaking an activity hazardous or involving risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other of person, irrespective any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of R.F.A.21/2004 ## -:13:- the negligence or fault in this way ie., the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm, he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.” 12. The Rule in was **Rylands v. Fletcher** followed with approval by the Apex court in **Charan Lal Sahu v. Union of India (1990(1) SCC 613), Gujarath State Road Transport Corporation v.** R.F.A.21/2004 -:14:- **Ramanbhai Prabhatbhai (1987 (3) SCC 234), Kaushnuma Begum v. New India Assurance Co. Ltd. 2001 (2) SCC 9 and M.C.Mehta v. Union of India (1987(1) SCC 395)** . 13. In **M.C.Mehta v. Union of India(1987(1) SCC 395)** , the apex court has gone even beyond the rule of strict liability by holding that; “Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in **Rylands** R.F.A.21/2004 ## -:15:- ## **v. Fletcher** ." 14. In **Kunjan Raghavan v. Kerala State Electricity Board (2010 (4) KLT 914)** , a Division Bench of this court in which one of us, Thottathil B. Radhakrishnan, J, was a member, while speaking for the Bench held; “The question is whether the electric line was maintained with statutory clearance as required in terms of the relevant laws. The Board is the authority to have the best evidence. There is no evidence in this regard by the Board. This is a case of no evidence in defence. Not only that, the Board is a licensee dealing with electrical energy, which is hazardous. Board is the sole licensee having monopoly operation with the support of statutory provisions. Statutory rights are coupled with statutory R.F.A.21/2004 -:16:- duties. The duties and responsibilities of licensees stand to charge the Board and its officers of such liabilities as would fall within the principle of strict liability as laid down by the Apex Court in **H.S.E.B. v. Ram Nath (2004 (5) SCC 793)** and **M.P. Electricity Board v. Shail Kumar [(2002) 2 SCC 162]** ” 15. Even when no negligence is attributed to the defendants in this case, the defendants are liable for damages, based on the principles of strict liability. Now, what remains is the calculation of the quantum of damages. We are satisfied that the quantum arrived at by the court below as compensation to be paid to the appellant, is too meager and it does not reflect the actuals. 16. There is no dispute regarding the age of R.F.A.21/2004 -:17:- PW1. The cross objector at the time of the incident was 35. According to him, he was earning an amount of Rs.150/- per day and he had such works for 26 days per month. For the purpose of calculation of compensation, we are of the view that his monthly earnings can be taken as Rs.2,500/-. Ext.A3 is the disability certificate issued by PW2, thereby assessing his disability as 30%. Due to contracture and scaring of both hands, the mobility of all the fingers of the right hand is restricted and he cannot have a firm grip on anything with his right hand. The mobility of his index and middle fingers of the left hand is also restricted and he cannot have a firm grip on anything with his left hand also. Medical records clearly reveal that the blood vessel and nerves of his hands became fused by the burns R.F.A.21/2004 -:18:- at the wrist. It is a fact that both his hands have become almost permanently disabled. Even though PW2 assessed the disability at 30%, it seems that the disability will come much more than that. It has come out in evidence that the plaintiff has suffered severe dis-figuration. He was under treatment as inpatient for the period from 2.1.1998 till 14.3.1998. He was readmitted again on 25.3.1998 and discharged on 28.3.1998. When the cross objector is not challenging the percentage of disability assessed by PW2 as 30%, we are of the view that the disability can be taken as 30%. Almost for 2½ months he was undergoing treatment as in-patient. The medical records show that he continued treatment as outpatient also. It has to be considered that he had suffered total loss of earnings for six months. The R.F.A.21/2004 -:19:- fact that he has suffered excruciating pain, is also not in dispute. Considering his age, the multiplier can be taken as 15. 17. On an evaluation of the evidence adduced by the plaintiff, the compensation towards partial and permanent disability can be calculated as Rs.1,35,000/-. An amount of Rs.50,000/- can be considered as just compensation for pain and sufferings. Compensation for loss of earnings for six months can be calculated as Rs.15,000/-. Expenses towards bystander and medicines can be considered as Rs.15,000/-. An amount of Rs.25,000/- can be considered as compensation for dis-figuration. Therefore, the total amount of compensation to which the plaintiff is entitled, can be calculated as Rs.2,40,000/-. The impugned judgment and decree ## R.F.A.21/2004 ## -:20:- passed by the court below are modified to that effect. The appeal filed by the defendants, is liable to be dismissed with costs. In the result, this appeal is dismissed with costs. The cross objection is allowed to the extent as follows: - (i)The impugned judgment and decree are modified. - (ii)The cross objector-plaintiff is granted a decree for recovery of Rs.2,40,000/- with interest at 6% per annum from the date of suit till with costs of this cross payment/recovery, objection and of the suit, charged on, and recoverable from, the assets of the respondents-defendants. It is further decreed that if the liability in terms of the aforesaid is R.F.A.21/2004 -:21:- not satisfied by depositing the entire amounts within a period of two months from now, the rate of interest awarded by this decree will stand modified at 12% per annum from the date of suit till the date of payment/recovery. - (iii) In exercise of the power under Order 33 Rule 10 r/w O.44 R. 1, it is ordered that the court fee payable by the plaintiff in this cross objection and in the suit from which this cross objection arises, shall be recoverable from the respondent/defendant. **SD/-THOTTATHIL B. RADHAKRISHNAN, JUDGE** ## **SD/- B. KEMAL PASHA, JUDGE** ul/[True copy] _P.S. to Judge_