D. Ramani and Sunumon v. Kerala State Electricity Board and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **THURSDAY, THE 29TH DAY OF AUGUST 2019 / 7TH BHADRA, 1941** **AS.No.194 OF 2003** **AGAINST THE JUDGMENT IN OS 209/1995 DATED 30-01-1999 OF SUB COURT,THODUPUZHA** ## **APPELLANTS/PLAINTIFFS:** - **1 D.RAMANI W/O. LATE SUKUMARAN MALADATHU HOUSE, POOMALA KARA, VELLIMATTOM VILLAGE THODUPUZHA TALUK, IDUKKI DISTRICT.** - **2 SUNUMON S/O. LATE SUKUMARAN, REPRESENTED BY THE GUARDIAN AND NEXT FRIEND D. RAMANI, -DO- -DO-** **BY ADVS. SMT. MINI V.A. SRI.P.K.BALAKRISHNAN NAIR SRI.V.K.SUNIL** ## **RESPONDENTS/DEFENDANTS:** - **1 KERALA STATE ELECTRICITY BOARD REPRESENTED BY THE SECRETARY, KSEB, THIRUVANANTHAPURAM.** - **2 KARTHYANI, W/O. MADHAVAN, VENTHAPLACKAL (H) KOZHIMALA, KANCHIYAR PANCHAYATHU, AYYAPPANKOVIL, IDUKKI (DISTRICT)** - **3 SHAJI V.M. VENTHAPLACKAL (H),THOPPIPALA P.O., KOZHIMALA,KATTAPPANA.** - **4 MAGESH V.M. VENTHAPLACKAL (H),THOPPIPALA P.O., KOZHIMALA,KATTAPPANA.** - **5 USHA BAIJU VENTHAPLACKAL (H),THOPPIPALA P.O., KOZHIMALA,KATTAPPANA.** A.S.194/2003 2 **6 MOLLY CHANDRAN MELADATHU (H), KOOVAKANDAM P.O. POOMALA, VELLIAMATTAM. 7 KUMARI RAJAPPAN URUMBIL (H), NARIYAMPARA P.O., KATTAPPANA.** **R1 BY ADV. SRI.P.SANTHALINGAM (SR.) R1 BY ADV. SRI.K.M.SATHYANATHA MENON SCKSEB R1 BY ADV. SRI.S.SHARAN SCK.S.E.BOARD R1 BY SRI.P.A.AHAMED, SC, KERALA STATE ELECTRICITY BOARD LIMITED R2-6 BY ADV. DR.S.GOPAKUMARAN NAIR (SR.) R7 BY ADV. SRI.SADER E.REAZ** ## **OTHER PRESENT:** ## **SC ADV. A ARUNKUMAR** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 29.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** A.S.194/2003 3 ## **JUDGMENT** The plaintiffs in O.S. 209 of 1995 on the file of the Subordinate Court, Thodupuzha are the appellants. They have filed the suit for damages against the Kerala State Electricity Board (for short 'the Board'). The said suit was dismissed by the impugned judgment and decree dated 30[th] January, 1999. Aggrieved by the said dismissal of the suit, this appeal has been preferred by the plaintiffs/appellants. 2. For the sake of convenience the parties are referred to as 'the plaintiffs' and 'the Board'. 3. The brief facts of the case in a nut shell are as follows: The plaintiffs are the wife and child of one Sukumaran who died due to electrocution on 7.9.1990. On 7.9.1990, the deceased along with the plaintiffs had gone for a short visit to the residential house of his brother-in-law namely, Chandran A.S.194/2003 4 of Meladathu House, Poomala Kara, Velliyamattom Village. Chandran was residing in a property having an extent of 10 cents. A coconut tree was standing on the western side of the said property. An 11 KV electric line was passing through the southern side of that tree. Sukumaran climbed the coconut tree in order to pluck a tender coconut. When he reached the top of the trunk, he caught on a cadjan and unfortunately it touched on the 11 KV line and thus he sustained electric shock and was thrown to the ground. Though he was immediately rushed to the Hospital, he succumbed to the injuries. The death was due to the negligence and default on the part of the Board in maintaining the electric line. No protection or safety measures were taken by the Board to avoid danger and hence the death occurred. The deceased was aged only 24 years at the time of his death. He was engaged in agricultural labor and was earning an income of Rs.2,000/- A.S.194/2003 5 per month. Hence, an amount of Rs.2,00,000/- was claimed as compensation. 4. The claim of the plaintiffs was refuted by the defendant Board contending that the house of Chandran was situated on the left side of Velliyamattom-Poomala road. The 11 KV electric line was drawn above the road. Sukumaran tried to climb upon the coconut tree situated 8 meters away from the road. When he climbed upon the coconut tree and caught on a cudjan, it slowly leaned and touched the electric line. Thus, he suffered electric shock and died. The death was only due to the negligence of the victim. The 11 KV line was having sufficient clearance from the coconut tree and the Board had taken all measures for the maintenance of the electric line and in fact there was no negligence on the part of the Board and hence the Board is not responsible for the death of the victim. Moreover, the amount claimed by the plaintiffs is exorbitant A.S.194/2003 6 and excessive and hence the Board is not liable to pay the amount claimed as compensation to the plaintiffs. 5. Before the court below, the first plaintiff, the wife of the deceased, was examined as PW1 and Exts. A1 to A6 were marked on the side of the plaintiffs. An official from the side of the Board was examined as DW1. No documentary evidence was produced by the Board. The court below, on appreciation of the evidence, found that the death occurred due to the carelessness of the victim and hence the Board was not liable to pay any amount as compensation on his death. Aggrieved by the said finding of the court below, the plaintiffs have preferred this appeal. 6. Heard Adv. Mini V.A., the learned counsel for the appellants and Adv. Anilkumar A, the Standing Counsel for the Board. A.S.194/2003 7 7. The first plaintiff is the widow of deceased Sukumaran. Ext.A6 is the marriage certificate of late Sukumaran and the first plaintiff issued by the SNDP Branch, Amayannoor. Ext. A5 is the certificate issued from M.M. High School, Narampara, Kattappana to prove the age of the deceased. As evident by Ext.A5 he was aged only 24 years at the time of the incident, i.e., 7.9.1990. Ext. A2, the certified copy of the postmortem report would show that the death of Sukumaran, the husband of the first plaintiff and the father of the second plaintiff was due to electrocution. A crime was also registered as Crime No. 170 of 1990 of Kanjar Police Station regarding the incident in which the husband of the first plaintiff lost his life. Ext.A3 is the copy of the FIR thus registered in Crime No. 170 of 1990. As PW1 the first plaintiff has reiterated the averments in the plaint. According to her, on 7.9.1990 she along with the second plaintiff, her child, A.S.194/2003 8 accompanied deceased Sukumaran to his brother-in-law's house at Velliyamattom Village for a courtesy visit. While he was there, he climbed upon a coconut tree which was standing in the property of Chandran having an extent of 10 cents to pluck a tender coconut for himself. But, unfortunately, he sustained electric shock while he was in the top of the coconut tree in his attempt to pluck the tender coconut at 10 a.m. on 7.9.1990 and due to the electric shock he was thrown on the ground and died instantaneously. According to PW1, the death of the deceased was due to electrocution. When he attempted to pluck a tender coconut, he got electric shock and due to the impact of the electric shock from the 11 KV line, he fell down and sustained injuries and succumbed to the injuries is her version before the court below. Except the deposition of PW1, nobody else was examined to narrate the incident. The fact that death of the deceased was due to A.S.194/2003 9 electrocution was not denied by the defendant Board. PW1 is an eye witness to the incident and she had described the incident in detail before the trial court. According to her when he caught on a cudjan to pluck a tender coconut, the tip of the cudjan touched on the electric line which was passing near the coconut tree and due to the shock caused to him, he was thrown on the ground and died instantaneously. 8.The Board has a case that Sukumaran sustained electric shock when he climbed the coconut tree and caught hold of a cudjan, it slowly leaned down to the 11 KV line passing above the public road, though there was sufficient clearance between the tree and the 11 KV line. The Board had also contended that the Board was very vigilant in maintaining the electric line and it used to cut and remove and make premonsoon clearance as a precautionary measure and so there was no possibility to touch the electric line by the cudjan A.S.194/2003 10 merely on holding the same. 9. DW1, an official of the Electricity Board deposed that he gathered information from the sister of the deceased about the incident. According to him, the incident occurred when the deceased cut down a cudjan it fell on the electric line and due to the carelessness on the side of the deceased, he sustained electric shock and thus the death occurred. But, Ext.A1 the mahazar prepared at about 4 p.m. on the date of the incident by the police officials in Crime No. 170/1990 of Kanjar Police Station on getting information about the incident, would reveal was that two cudjan from the coconut tree was leaning towards the electric line at the time when the mahazar was prepared by them. So, what could be gathered from the mahazar, is that the cudjan from the particular coconut tree upon which the deceased climbed to pluck the tender coconut was leaning towards the 11 KV line. Of course, the officials A.S.194/2003 11 who prepared the mahazar were not examined to prove the contents of the same. But it is evident that the mahazar was prepared by the police personnel on the date of the incident itself. From the evidence of PW1 coupled with Ext.A1 mahazar, it could be seen that when the deceased touched the cudjan while attempting to pluck a tender coconut, he got electric shock from the 11 KV line passing near the tree. Though the Electricity Board has vehemently contended that there was no negligence on the side of the Board and the Board used to maintain the electric lines by cutting and removing the branches of the trees leaning towards the electric line to secure safety to the public, that too twice in an year, no reliable evidence was adduced by the Board to substantiate the same. The evidence of DW1 would show that such an exercise will be done by the Board twice in an year and it used to maintain records for the same. But, as the suit was filed much A.S.194/2003 12 later to the incident, and the evidence was adduced after further delay, the Board could not produce those documents before the Court to substantiate their contention. Of course, the suit was filed in the year 1995, though the incident was on 7.9.1990. But it is significant to note that the Board was fully aware of the incident and a crime was registered regarding the incident on the very same date, i.e., on 7.9.1990. So, the Board ought to have kept or maintained the documents to substantiate its case that the Board was careful and responsible in maintaining the electric line with all vigilance. When their stand is that all safety measures to protect the life and property of the public were taken, the failure to adduce evidence to substantiate their contention itself would substantiate the plaintiffs' allegation that the Board was negligent in maintaining the electric line and thus the unfortunate incident had occurred and the life of the young A.S.194/2003 13 man aged 24 years was lost leaving behind the young wife and a minor child without any source of maintenance. The child 2[nd] plaintiff was aged only 2 years and the 1[st] plaintiff was aged only 21 years at the time of the incident. Ext.A1 mahazar is not sufficient to conclude that there was clearance to the electric line So, the finding of the court below that the Electricity Board was maintaining the electric line properly and death of the deceased was due to his negligent act alone is not sustainable as per the evidence available on record. The Board failed to adduce sufficient evidence to establish its case . PW1, the wife who was present at the time of the incident, had narrated the whole episode in distinct and clear terms. Though she was subjected to severe cross examination by the Board, they could not succeed to bring anything against her deposition and to substantiate their case that the negligent or careless action on the side of the deceased who climbed the A.S.194/2003 14 coconut tree to pluck the tender coconut resulted in his death. It is also to be noted that though the incident was in the year 1990, the suit was filed only in the year 1995. The learned counsel for the appellant would submit that the first plaintiff being a young lady living in utter poverty without the help of anyone, could not approach for legal aid to prefer a complaint to get damages from the Board and that was the reason for preferring the case after a period of 5 years. But that is not a ground to reject her case and to conclude that the Board is justified in not producing the documents to substantiate their case. The learned counsel for the plaintiffs has argued that even if there was no negligence on the part of the Board applying the principle of Doctrine of strict liability the Board is liable to compensate the plaintiffs. 11. Doctrine of strict liability is explained in Rylands v Fletcher (1868 LR (3) HL 330 ) as under: A.S.194/2003 15 ''The rule of law is that the person who, for his own purpose,brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does so he is prime facie answerable for all the damage which is the natural consequence of its escape'' 12. The principle of Ryland v. Fletcher (1868 LR(3)HL 330 ) is followed in several Indian cases. [Maneyapanda Madappa v. Kuttanda Kariyapp (AIR 1964 Mysore 80), Darshan Ram and another v. Nazar Ram (AIR 1989 Punjab and Haryana 253) ]. 13. Coming to the facts of the present case, if the Board was also vigilant and exercised caution, this unfortunate incident could have been avoided. Incidents of this nature does not appear to be an unusual or stray incident. Periodical inspection and attention by the Board are expected to avoid and circumvent these types of incident. The Board is also bound to alert and sensitize common people A.S.194/2003 16 about the precautions, preventive steps and care to be taken. Safety as well protection of citizen from danger, is pivotal. In M.P.Electricity Board vs. Shail Kumari [2002 (2) SCC 162] the Apex Court has observed as follows; “7. 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 supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the board that somebody committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is the look out of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and A.S.194/2003 17 fell on the public road, the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps. 8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of 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 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 cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions. 9. The doctrine of strict liability has its origin in English A.S.194/2003 18 Common Law when it was prepounded in the celebrated case of Rylands v. Fletcher (1868 Law Reports (3) HL 330). Blackburn, J., the author of the said rule had observed thus in the said decision. The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does so, he is prima facie answerable for all the damage which is the natural consequence of its escape.” 14. Following the said decision a Division Bench of this Court in Moidu Haji v. Kunhikrishnan Nair and Others [2013 (3) KHC 730 ] held in a case where a painter died due to electrocution when he climbed on the top of the compound wall to paint the grill which was erected on the top of the wall, that the Board is liable to pay compensation applying the doctrine of strict liability. 15. It has come out in evidence that the deceased was aged only 24 years and the unfortunate incident happened A.S.194/2003 19 when he visited his brother-in-law's house along with his family. It is true that the incident happened accidentally when he tried to pluck a tender coconut from the coconut tree standing in his brother-in-law's property. So, he never expected any unforeseen situation while climbing to pluck tender coconut. Therefore, the contention raised by the Board that he was careless or reckless in plucking the tender coconut by climbing the coconut tree standing in the property of his brother-in-law and that he was not vigilant enough in his action and thus the death occurred, cannot be accepted in the given facts of the case. The death of this young man was instantaneous, without even giving an opportunity to his relatives present, to rescue him. 16. On a meticulous evaluation of the entire evidence available on record, I find that the court below has erred in finding that the accident occurred due to the carelessness on A.S.194/2003 20 the side of the victim due to his own acts and hence the plaintiffs are not entitled to claim any amount as damages from the Board. 17. It is pointed out by the learned counsel for the Board that the claim for Rs.2,00,000/- on the ground that he was earning Rs.2,000/- per month is not correct and the plaintiffs have failed to adduce evidence to substantiate the same. Of course, no evidence was adduced by the plaintiffs to prove that his monthly income was Rs.2,000/-. But it is to be noted that he was aged only 24 years and engaged in manual work. Since he was only 24 years and that the incident happened in the year 1990, in the absence of definite and clear evidence on the side of the plaintiffs to prove their claim, I think that the claim for an amount of Rs.2,00,000/- is slightly on the higher side and therefore, considering the entire facts involved in the case, the compensation amount can be fixed as A.S.194/2003 21 Rs.1,50,000/-. The plaintiffs are entitled to get the amount from the Electricity Board with interest at the rate of 6% per annum from the date of the suit till realization. Accordingly, the appeal is allowed, the judgment and decree of the court below are set aside and a decree for realization of an amount of Rs.1,50,000/- as damages with 6% interest at the rate of 6% per annum from the date of the suit till realization, is granted. The plaintiffs are also entitled to realize the cost of the suit throughout. Sd/SHIRCY V JUDGE sb A.S.194/2003 22 The clerical/typing error crept in the result portion of the judgment is suo motu corrected as per order dated 22/03/2022 as follows “Accordingly, the appeal is allowed, the judgment and decree of the court below are set aside and a decree for realization of an amount of Rs.1,50,000/- as damages with interest at the rate of 6% per annum from the date of the suit till realization, is granted. The plaintiffs are also entitled to realize the cost of the suit throughout.” and another order passed on 22/3/2022 that “As court fee has not been remitted so far, Registry shall take steps to realize the requisite court fee as per law” is incorporated as part of the judgment dated 29/8/2019 in AS 194/2003. Sd/Joint Registrar