Divisional Engineer, Telecom BSNL v. V. Balamani and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: ## THE HONOURABLE MR.JUSTICE V.RAMKUMAR & THE HONOURABLE MR.JUSTICE K.HARILAL ## WEDNESDAY, THE 22ND DAY OF FEBRUARY 2012/3RD PHALGUNA 1933 ## RFA.No. 103 of 2005 (E) -----------------------------------OS.12/2002 of SUB COURT, HOSDRUG ## APPELLANT(S)/APPELLANTS/DEFENDANTS 3 & 4: --------------------------------------------------------------------------------------- ## 1. DIVISIONAL ENGINEER, TELECOM BSNL - CHERUVATHOOR P.O., CHERUVATHOOR, KASARAGOD. 2. GENERAL MANAGER, TELECOM BSNL, CHERUVATHOOR P.O., CHERUVATHOOR, KASARAGOD. BY ADV. SRI.MATHEWS K.PHILIP,SC, BSNL ## RESPONDENT(S)/PLAINTIFFS/DEFENDANTS 1 & 2: ------------------------------------------------------------------------------- 1. V.BALAMANI, THALIYAMMADA, PULIYANNUR, CHEENENI VILLAGE, POTHAVOOR P.O. HOSDURG TALUK, KASARAGODE. 2. V.M.RAMYA, MINOR, REPRESENTED BY V.BALAMANI, THALIYAMADA PULIYANNUR, CHEENENI VILLAGE POTHAVOOR P.O., HOSDURG TALUK, KASARAGODE. 3. V.M.REMIT, MINOR REPRESENTED BY V.BALAMANI, THALIYAMADA PULIYANNUR, CHEENENI VILLAGE POTHAVOOR P.O., HOSDURG TALUK, KASARAGODE. 4. VADAKKEVEETTIL PARU, REPRESENTED BY V.BALAMANI, THALIYAMADA PULIYANNUR, CHEENENI VILLAGE POTHAVOOR P.O., HOSDURG TALUK, KASARAGODE. RFA.No. 103 of 2005 (E) 2 ## 5. THE SECRETARY, K.S.E.BOARD, ## VAIDYUTHI BHAVANAM PATTOM, THIRUVANANTHAPURAM. ## 6. EXECUTIVE ENGINEER, ELECTRICAL DIVISION KANHANGAD, KASARAGODE DISTRICT. R,R5 & R6 BY SRI.JOSE J.MATHEIKEL, SC, KSEB R,R1 TO R4 BY SRI.T.K.VIPINDAS THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 09-02-2012, THE COURT ON 22.02.2012 DELIVERED THE FOLLOWING: ## **V. RAMKUMAR, & HARILAL, JJ.** **= = = = = = = = = = = = = = R.F.A Nos. 103 and 190 of 2005** **= = = = = = = = = = = = = = =** ## **Date: 22.02.2012** ## COMMON JUDGMENT ## Ramkumar, J. In these appeals filed under Section 96 read with Order XLI Rule I C.P.C the four defendants in O.S.No.12/2002 on the file of the Subordinate Judges Court, Hosdrug, challenge the judgment and decree passed by the said court. 2. The appellants in R.F.A.No.103/2005 are defendants 3 and 4 representing the Bharat Sanchar Nigam Limited (BSNL for short) and R.F.A.No.190/2005 is filed by defendants 1 and 2 who represent the Kerala State Electricity Board (KSEB for short). 3. The aforementioned suit was filed by the common respondents 1 to 4 in these appeals for damages to the tune of Rs.3 lakhs. 4. The case of the plaintiffs can be summarised as follows:- **R.FA.Nos. 103 & 190 of 2005** -:2:- The 1st plaintiff is the wife deceased Ramachandran. The 2[nd] and 3[rd] plaintiffs are the minor children of deceased Ramachandran born in the 1[st] plaintiff. The 4[th] plaintiff is the mother of deceased Ramachandran. Deceased Ramachandran, aged 45 years at the time of his death was an able bodied agricultural labourer. He was the sole breadwinner of a happy family consisting of his wife, 2 children and his mother. They were having a telephone connection having number 750034 installed in their house by the BSNL, Cheruvathur. On 27.03.2001, at about 5 pm while Ramachandran attended an incoming telephone call powerful electric current passed through the telephone wire and Ramachandran got electrocuted and died instantaneously. The overhead electric line on the public road had snapped and had established contact with the unguarded telephone line beneath the power lines and that was the reason for the mishap. The above occurrence took place as a result of the negligence of the BSNL and the KSEB. Ramachandran was getting an average monthly income of Rs.3,000/-. But for the above occurrence, he would have lived for more than 70 years. Hence the suit for decreeing Rs.3,00,000/- (Rupees three lakh only) by way of damages. 5. The suit was resisted by defendants 1 and 2 representing the KSEB by filing a written statement contending, inter alia, as follows:- **R.FA.Nos. 103 & 190 of 2005** -:3:- On 27.03.2001, a broken conductor from the 11 KV line had fallen on the unguarded overhead stay wire provided by the Telecom directly underneath the 11 KV line. The said 11 KV line was fed from 110 KV sub-station from Payyannur through 11 KV methyl feeder. The said line was operated and controlled from the said sub-station using circuit breakers with earth fault and over current relays for automatically switching off the feeder and thereby afford protection to human beings, animals etc. in the event of any fault in the line caused either by failure of line equipments such as porcelain insulators, air brake switches, lighting arrestor, dropout fuses, transformers and also due to falling of trees or tree branches. The KSEB had taken all the required precautionary measures. The Telecom authority represented by defendants 3 and 4 had drawn the telephone line 10 years after the power line was drawn by the KSEB. The unguarded stay wire was drawn by Telecom under the 11 KV line without any protection. The power conductor had snapped due to the shattering of porcelain disc insulator resulting in the flowing of heavy short circuit current to earth causing overheating and melting of aluminum conductor thereby loosening of the conductor from tension clamps of the 11 KV porcelain discs and finally falling on the unguarded overhead stay drawn by the Telecom department underneath the 11 KV line. Since the ## **R.FA.Nos. 103 & 190 of 2005** -:4:- conductor rested on the stay wire without touching earth, it resulted in the extension of high voltage supply to the victim's residence and the resulted electrocution death. The KSEB had been undertaking periodical maintenance works and there was no negligence on the part of the KSEB . The Telecom was bound to provide protective guarding for their stay wire under the 11 KV line to prevent accidental contact with the power line. The entire installation of the KSEB are insured with the National Insurance Co. The plaintiffs were paid Rs.50,000/- by way of ex gratia. Since there was no negligence on the part of the KSEB the suit may be dismissed. ## 6. Defendants 3 and 4 representing the BSNL also resisted the suit by filing a written statement contending inter alia as follows:- The suit is false, frivolous and vexatious. It is admitted that the telephone connection of the plaintiffs having number 750034 of Cheemeni exchange stood in the name of deceased Ramachandran. The plaint allegation that deceased Ramachandran got electrocuted while attending an incoming telephone call is not correct. All the telephones of Cheemeni exchange towards Podavoor including the plaintiff's telephone were out of order from 3 pm on 27.03.2001 consequent on the snapping of the 11 KV wire. Those telephones were restored gradually on the next day only. Similarly, the **R.FA.Nos. 103 & 190 of 2005** ## -:5:- KSEB had also switched off the power line from 3 pm on 27.03.2001. There was therefore no occasion for deceased Ramachandran to get an incoming telephone call at 5 pm on that day. There was also no occasion for the deceased to sustain an electric shock from the telephone. But the plaint allegation that these respondents were negligent in not providing the necessary protective cover to the telephone line underneath the 11 KV line is denied. Adequate safeguards had been provided for the stay wire . These defendants are not responsible for the death of Ramachandran. As per the report of the technical committee there was no possibility of getting any fatal electric shock from the telephone instrument as the cord wire was found melted and having no continuity. Hence these defendants cannot be blamed or held liable for the death of Ramachandran by electrocution. The suit may, therefore, be dismissed. 7. On the side of the plaintiffs, the 1[st] plaintiff (Balamani) was examined as PW1and Exts.A1 and A6 were got marked. On the side of the appellants an Assistant Executive Engineer, KSEB was examined as BWI and Divisional Manager, Telecom was examined as DW2 and Exts.B1 and B2 were marked. 8. The learned Subordinate Judge, after trial, as per judgment and decree dated 06.08.2004, decreed the suit for Rs.2,50,000/- **R.FA.Nos. 103 & 190 of 2005** -:6:- (Rupees two lakhs fifty thousand only) and giving a credit to the ex gratia payment of Rs.50,000/-(Rupees fifty thousand only) made by the KSEB at an early stage, directed the defendants to pay the balance amount of Rs.2,00,000/-(Rupees two lakhs only) with 12% interest per annum from the date of suit till realisation of proportionate cost. It is the said decree which is assailed in these appeals by the defendants. 9. We heard Advocate Sri.Mathew K Philip, the learned counsel for defendants 1 and 2 and Advocate Sri.Sathyanatha Menon, the learned Standing Counsel for defendants 3 and 4 and Advocate Sri.Vipindas the learned counsel for the plaintiffs. We also perused the records. 10. After hearing both sides and perusing the records, we are not inclined to accept the contentions raised by the respondents to disown their liability. The following facts have been clearly established in the case:- Ramachandran, who was aged 45 years on the date of his death was the sole breadwinner of a happy family consisting of his wife and two minor girls and 60 year old mother. He was an agricultural labour having regular work. He was having a telephone **R.FA.Nos. 103 & 190 of 2005** ## -:7:- connection with telephone No.750034 installed in his house by the Telecom Department of BSNL at Cheruvathoor. His father had died at the age of 85. His mother who is even now alive is now aged 70 years. On 27.3.2001, at about 5 pm, when Ramachandran attended an incoming telephone call he died instantaneously on account of high voltage current flowing through the land phone installed in his house. The reason for the high voltage current passing through the telephone line was the snapping of a 11 KV line which was passing above the overhead stay wire provided by the Telecom department underneath the 11 KV line. With the unforeseen death of Ramachandran the whole family plunged into a permanent gloom. There is no dispute regarding the cause of death of Ramachandran. 11. The KSEB and the BSNL has been indulging in a sort of recriminatory exercise one blaming the other. It is the greatest misfortune for a person to encounter death by electrocution as soon as he picks up his telephone. If the contention of the KSEB is to be accepted ,then on the snapping of the high tension wire, the circuit breakers installed by them should have swung into operation so as **R.FA.Nos. 103 & 190 of 2005** -:8:- to trip the system and prevent electric shock to Ramachandran. On the contrary, it was the lack of proper maintenance of the high tension wire which resulted in high tension wire getting snapped and falling on the telephone lines below so as to prematurely snatch the life of the sole breadwinner of a family. On the part of the BSNL also, had they provided adequate insulation to that segment of the telephone line passing below the high tension line the unfortunate incident of the high tension electric line coming into contact with the telephone line and the consequent fatal mishap would not have happened. Hence the BSNL was also equally guilty of not taking adequate precautionary measures. A person getting electrocuted the moment he picks up his telephone is something which is not at all normal by any stretch of imagination, unless the persons responsible for maintaining the respective systems, were grossly negligent. The court below has given a detailed account of the reasons for the tragic incident and we see no ground to disagree with the reasons given by the court below. The decision in Chellamma v. KSEB (ILR 2009(3) Kerala 499) is a clear pointer in support of the conclusions reached by the learned Subordinate Judge. Both the BSNL as well as the KSEB were equally responsible **R.FA.Nos. 103 & 190 of 2005** -:9:- for the unfortunate occurrence and both of them will have to equally share the liability. 12. The quantum of compensation fixed by the court below also cannot be said to be on the higher side. Had it been a road traffic accident, the widow and the minor children and the aged mother of deceased Ramachandran would have been awarded a higher amount of compensation. We, therefore, fully endorse the computation of the compensation made by the court below. The liability of the decreed amount will have to be equally borne by both the KSEB as well as the BSNL in equal shares. Out of the liability of Rs.1,25,000/-(Rupees one lakh twenty five thousand only) of the KSEB, they had paid an ex gratia amount of Rs.50,000/- (Rupees fifty thousand only) which is liable to be deducted. Therefore, the liability of KSEB is Rs.75,000/-(Rupees seventy five thousand only) and that of BSNL will be Rs.1,25,000/-(Rupees one lakh twenty five thousand only). 13. The court below directed payment of interest at the rate of 12% on the total amount of Rs.2,50,000/-(Rupees two lakhs fifty thousand only) from the date of suit till realisation. We see no warrant for the said percentage for the period after the decree. **R.FA.Nos. 103 & 190 of 2005** -:10:- Accordingly, that part of the decree is modified directing payment of interest at the rate of 12% per annum from the date of suit till the date of decree and thereafter at the rate of 6% ie. from the date of decree till realisation. In the result these appeals are dismissed with costs, subject to the above modification regarding the interest portion. V. RAMKUMAR, JUDGE. K.HARILAL,JUDGE. sj