C. L. Joseph and Saramma George v. Kerala State Electricity Board and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **FRIDAY, THE 6[TH] DAY OF OCTOBER 2023 / 14TH ASWINA, 1945** ## **RFA NO. 25 OF 2005** **AGAINST THE JUDGMENT AND DECREE DATED 10.04.2003 IN OS 281/1999 OF** **PRINCIPAL SUB COURT, NORTH PARAVUR.** ## **APPELLANTS/PLAINTIFFS:** - **1 C.L.JOSEPH,KOCHERRYKATTU, CHATHENKALLEL VEETTIL, KARUMALOOR VILLAGE, U.C.COLLEGE P.O.** - **2 SARAMMA GEORGE, W/O.PAUL JOSEPH, KOCHERRYKATTU CHATHENKALLEL VEETTIL, KADUNGALLOOR KARA.** - **BY ADV SRI.T.A.UNNIKRISHNAN** ## **RESPONDENTS/DEFENDANTS:** - **1 KERALA STATE ELECTRICITY BOARD, REP. BY SECRETARY, TRIVANDRUM.** - **2 SOSAMMA JOSEPH, W/O.C.L.JOSEPH, KOCHERRYKATTU CHATHENKALLEL VEETTIL, KADUNGALLOOR KARA, KADUNGALLOOR VILLAGE.** - **3 ANIYAMMA, D/O.C.L.JOSEPH, KOCHERRYKATTU CHATHENKALLEL VEETTIL, KADUNGALLOOR KARA.** **BY ADVS. SRI.P.SANTHALINGAM (SR.) SRI.P.V.ELIAS SRI.S.SHARANSCK.S.E.BOARD SRI.P.A.AHAMED, SC, KERALA STATE ELECTRICITY BOARD LIMITED** ## **THIS REGULAR FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON** **27.09.2023, THE COURT ON 06.10.2023 DELIVERED THE FOLLOWING:** **R.F.A.No. 25 of 2005** 2 ## **C.S.SUDHA, J.** **-------------------------------------R.F.A.No. 25 of 2005 ---------------------------------------------------Dated this the 6[th] day of October, 2023** ## **J U D G M E N T** This appeal under Order XLI Rule 1 CPC has been filed by the plaintiffs in O.S.No.281/1999 on the file of the Subordinate Judge's Court, North Paravur, aggrieved by the judgment and decree dated 10/04/2003 by which their claim for compensation has only been partly allowed. The respondents herein are the defendants in the suit. The parties will be referred to as described in the suit. 2. The first plaintiff is the father and the second plaintiff, the widow of deceased Paul Joseph, who died due to electrocution. The second and the third defendants are the mother and sister of the deceased. Paul died on 02/08/1997 due to electrocution while he was passing under the hightension electric wire hanging dangerously low near HMP colony paddy field near U.C.College, Aluva. The deceased was a painter and a mechanic who was employed in Saudi-Arabia for the period from 03/11/1992 to 08/01/1995. During the said period he was drawing salary of ₹18,000/- per month. He died in the mishap while he was working at a workshop and **R.F.A.No. 25 of 2005** 3 drawing a monthly salary between ₹3,000/- to ₹4,500/-. Due to the death of Paul, the plaintiffs lost support to the family and have suffered mental agony and pain. Paul died due to the carelessness and negligence on the part of the first defendant KSEB and its employees. Therefore the plaintiffs seek damages to the tune of ₹8 lakhs with interest and costs from the defendants and their assets. 3. The second and the third defendants are _ex parte_ . 3.1. The first defendant KSEB filed written statement denying any liability and contended that there was no negligence on their part. The allegation that the death of Paul Joseph was caused entirely due to the negligence on the part of KSEB and its officials is incorrect and false. On 02/08/1997 at about 11.30 a.m., Paul Joseph was electrocuted while he was passing through a nadavarambu near U.C.College, Aluva. Due to overweight, the electric line from the 11 KV feeder Paravur line got loosened from the pin-binding and was hanging from the pin-insulation at a height of about 5 ft. from the ground. The maintenance staff of the KSEB used to conduct periodic check-up and give regular and proper maintenance to the said line and its accessories which included the pin-binding and the pininsulation. The materials used to draw the line were not of inferior quality as alleged by the plaintiff. No person from the locality had ever complained **R.F.A.No. 25 of 2005** 4 about the electric-line hanging dangerously low at the place of occurrence. Had anybody complained so, the defect would have been rectified immediately. The over-weight on the 11 KV line had occurred quite unexpectedly. The accident occurred solely due to the carelessness of the victim. This is especially so as one Purushothaman (PW2) who was walking in front of the deceased, passed beneath the conductor without coming into contact with the live electric wire. The victim did have the opportunity to avoid the accident, as no reasonable man would take the risk of touching a broken line when it is in touch with a high-voltage electric line. Had the victim shown a reasonable man's sense and prudence, the accident would not have happened. At any rate there is contributory negligence on the part of the victim. Hence, the first defendant is not liable to pay compensation to the legal-heirs of the deceased as the death of the victim was caused due to his own negligence. Further, the compensation claimed by the plaintiff is highly excessive and without any basis. The age, educational qualification, occupation, monthly income etc. of the victim stated in the plaint are not correct and hence denied. The Board has paid ₹2,000/- as funeral expenses to the second defendant, which payment was made only on compassionate grounds. The damages claimed in the plaint is without any basis and hence the plaintiffs are not entitled to the reliefs prayed for. 5 ## **R.F.A.No. 25 of 2005** 4. After completion of the pleadings, necessary issues were framed by the trial court. PWs.1 to 6 were examined and Exts.A1 to A11 and Exts.X1 to X4 were marked on the part of the plaintiffs. DW1 was examined and Ext.D1 was marked on the side of the first defendant. The trial court on an appreciation of the oral and documentary evidence and after hearing both sides, decreed the suit partly. The plaintiffs were held entitled to recover an amount of ₹1,43,400/- with interest @ 6% p.a. from the date of suit till recovery from the first defendant and their assets. Plaintiffs were also allowed to recover proportionate costs from the first defendant. Aggrieved by the amount of compensation awarded, the plaintiffs have come up in appeal. 5. The point that arises for consideration in this appeal is whether there is any infirmity in the findings of the court below calling for an interference by this Court. 6. The first defendant/KSEB has not filed any appeal or cross objection challenging the finding of the trial court that the deceased died due to electrocution and that the said incident occurred due to the negligence of the first defendant/KSEB and its employees. As there is no challenge to the said findings, the same has become final and hence I will only be considering the case of the plaintiffs as to whether there is any infirmity **R.F.A.No. 25 of 2005** 6 committed by the court below in fixing the compensation as urged on behalf of the plaintiffs. 7. According to the plaintiffs, the deceased, a young and healthy man of 29 years, who had a quite long life expectancy, was earning about ₹3,000/- to ₹4,500/- per month at the time of his death. Due to the death of Paul Joseph, the plaintiffs who were completely dependent on him, lost their support and have suffered enormous mental agony and pain. In support of the plaintiffs' case regarding the monthly income of the deceased, they relied on Exts.A9 to A11. Ext.A9 certificate issued by one K.A.Augustine, Kollapparambil, U.C.College P.O., states that late Paul Joseph, an employee of S.D.Automobiles for the period from 1984 to 1991 was being paid ₹150/per day as wages. Ext.A10 issued by Terry Rooke, the Site and Factory Manager, Zubair Furniture Factory LLC, states that Paul Joseph had worked in their organisation as a Polisher w.e.f. 03/11/1992 to 08/01/1995. Ext.A11, a foreign service agreement dated 16/09/1992 executed between M/s.Zubair Furnishing LLC, P.O.Box 3217, Ruwi, Sultanate of Oman, the employer and the deceased Paul Joseph, says that the latter had been appointed to work as Polisher/Spray Painter in the Company for a period of two years and that his salary would be R.O.(Riyal) 55/- per month and food allowance @ R.O.(Riyal) 15/- per month. **R.F.A.No. 25 of 2005** 7 7.1. The learned trial judge found that the aforesaid documents do not help the plaintiffs in establishing their case that the deceased was earning about ₹3,000/- to ₹4,500/- on 02/08/1997, that is, at the time of his death and hence taking into account the fact that he was a spray painter, fixed his income at the rate of ₹1,500/- per month. Out of the said amount, 1/3[rd] i.e., ₹1,000/- was deducted towards his subsistence. Thus, the yearly net income of the deceased was calculated at ₹12,000/-. At the time of death, Paul Joseph was aged 29 years and so the multiplier was taken to be '18'. The yearly income was multiplied by '18' and the total amount of compensation for the loss of estate was arrived at ₹2,16,000/-. After fixing the loss of estate so, the learned Judge went on further to deduct 35% from the said amount fixed. According to the learned judge, the first plaintiff was aged 55 years and the second plaintiff, widow, aged 26 years, at the time of the incident. Taking into account the age of the first plaintiff and his expectation of life, a deduction of 25% was made from the compensation fixed from the loss of estate. Taking into account the age of the second plaintiff, it was held that there was possibility of her remarrying and so 10% was deducted from the compensation. Thereby a total of 35% was deducted from the total compensation fixed and thus the compensation was arrived at ₹1,45,400/-. This finding of the trial court is seriously challenged by the **R.F.A.No. 25 of 2005** 8 plaintiffs/appellants. The learned counsel for the plaintiffs pointed out that as long as Ext.A9 and Ext.A11 stand unchallenged, fixing of the monthly income @ ₹1,500/- was quite unjustifiable and that wages at least @ ₹150/per day as evidenced by Ext.A9 document ought to have been fixed. It was also pointed out that the second plaintiff still continues to be unmarried. Therefore, even if the first plaintiff was 55 years old, there was no justification in deducting 35% towards life expectancy of the dependents, goes the argument. 8. As referred to earlier, Exts.A9 to A11 are relied on by the plaintiffs to substantiate their case relating to the monthly wages/income of the deceased. Exts.A9 to A11 are not seen marked through PW1, the first plaintiff/father. The said documents seem to have been marked on consent. Therefore, the first defendant KSEB, thereafter cannot take any objection(s) to the said documents. Ext.A9 shows that the deceased was getting ₹150/per day as wages during the period from 1984 to 1991. The incident admittedly took place on 02/08/1997. Therefore by 1997, the wages in all probability would have only increased from ₹150/- per day. Even then, if wages @ ₹150/- per day is taken, and if the deceased considered to have got work at least for 26 days a month, the monthly wages would work out to ₹3,900/-. In such circumstances, fixing monthly income @ ₹1,500/- does **R.F.A.No. 25 of 2005** 9 not appear to be fair or correct, especially when Exts. A9 and A11 have not been challenged or discredited in any way. Therefore, in my opinion, taking into account Exts.A9 and A11, it would be reasonable to fix the income of the deceased @ ₹3,000/- per month. Deducting 1/3[rd] towards the subsistence of the deceased, the balance would be ₹2,000/- and hence the yearly wages would be ₹24,000/-. As far as the selection of the multiplier is concerned, it is well settled that it cannot in all cases be solely dependent on the age of the deceased. The age of the dependents have also relevance in deciding the quantum of compensation in fatal accidents. ( **General Manager, KSRTC v. Susamma Thomas, 1994 KHC 34 : AIR 1994 SC 1631** ; **U.P State Road Transport Corporation v. Trilok Chandra, 1996 KHC 294 : (1996)4 SCC 362** ; **Sarla Verma v. Delhi Transport Corporation, 2009 KHC 4634 : AIR 2009 SC 3104** and **Manissery Mariyumma v. A.Govinda, 2013(3) KHC 479** ). 9. In the case on hand, the first plaintiff/father was 55 years old and the second plaintiff/widow was 26 years old at the time of the incident. As per the table given in **Sarla Verma** ( _Supra_ ), the multiplier to be adopted, if the second plaintiff's age is considered, would be '17' and if it is the age of the first plaintiff that is taken into consideration, the multiplier would be '11'. However, the multiplier '18' that has been adopted by the trial court is not **R.F.A.No. 25 of 2005** 10 challenged by either side and hence the same is taken as the multiplier. When the yearly income of ₹24,000/- is multiplied by '18', it works out to ₹4,32,000/-. An amount of ₹5,000/- granted towards pain and suffering is also not challenged and therefore, the total amount would come to (₹4,32,000/- + ₹5,000/-) ₹4,37,000/-. An amount of ₹2,000/-, admittedly, has been paid by the first defendant/KSEB and when the same is deducted from the aforesaid amount of ₹4,37,000/-, the same comes to ₹4,35,000/-. Hence I find that the plaintiffs are entitled to an amount of ₹4,35,000/- with interest @ 6% per annum from the date of suit till realisation and costs from the first defendant and their assets. In the result, the appeal is partly allowed. The judgment and decree of the trial court is modified to the following extent. The plaintiffs are entitled to an amount of ₹4,35,000/- with interest @ 6% per annum from the date of suit till realisation and costs from the first defendant and their assets. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA** **JUDGE** ami/