Kerala State Electricity Board v. Madhavan Achary and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **FRIDAY, THE 21ST DAY OF MARCH 2014/30TH PHALGUNA, 1935** ## **RFA.No. 902 of 2008 ( )** **------------------------** **OS.NO. 90/2001 OF ADDL.SUB COURT, KOLLAM** ## **-------------------------** ## **APPELLANT(S)/DEFENDANTS :** **----------------------------------------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY THE SECRETARY, VYDHUTHI BHAVAN,** **PATTOM,THIRUVANANTHAPURAM.** **2. ASSISTANT ENGINEER, ELECTRICAL SECTION, KERALA STATE ELECTRICITY BOARD , CHAVARA, KOLLAM.** **BY SRI.PULIKOOL ABUBACKER, SC, KSEB** **RESPONDENT(S)/PLAINTIFFS :** **------------------------------------------------** ## **1. MADHAVAN ACHARY,** - **MUKESH BHAVAN, VADAKKUMTHALA MEKKU, VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY,KOLLAM.** **2. PANKI AMMA, W/O. MADHAVAN ACHARY, MUKESH BHAVAN, VADAKKUMTHALA MEKKU, VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY,KOLLAM.** **3. MUKESH, AGED 11 YEARS, (MINOR), REPRESENTED BY HIS FATHER AND NATURAL GUARDIAN, MADHAVAN ACHARY, MUKESH BHAVAN, VADAKKUMTHALA MEKKU, VADAKKUMTHALA VILLAGE, KARUNAGAPPALLY ,KOLLAM.** **R1 TO R3 BY ADV. SRI.P.B.SURESH KUMAR** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03-03-2014 , THE COURT ON 21-03-2014 DELIVERED THE FOLLOWING:** **sts** # **THOTTATHIL B.RADHAKRISHNAN & A.MUHAMED MUSTAQUE, JJ.** --------------------------------------------------- R.F.A.No.902 of 2008 ---------------------------------------------------Dated this the 21[st] day of March, 2014 ## **JUDGMENT** ## **A.Muhamed Mustaque , J.** The Kerala State Electricity Board (hereinafter referred to as, the “Board”) is the appellant. The Board is challenging a decree and judgment passed by the court below in a suit for compensation against them. The plaintiffs 1 and 2 are the parents of deceased minor son Mahesh. The third plaintiff is the brother of the deceased. 2. The plaintiffs filed the suit claiming compensation of `5 lakhs alleging that the deceased Mahesh died due to electrocution. The alleged incident occurred while the deceased Mahesh was returning to his home after attending tuition at 6 p.m. on 10.06.1996. On his return, he came in contact with a live zink wire lying in the pathway leading to his house. 3. On the other hand, the defendant Board contended that due to heavy wind, on 10.06.1996, the supporting wire of R.F.A.No.902 of 2008 2 the weather proof wire from the electric post, drawn for a consumer, had broken about nine metres away from the terminal and the deceased while pulling the hanging wire happened to contact with the phase line resulting in electrocution. 4. The court below after adverting to the pleadings and evidence found that the defendant Board is liable to pay compensation of `2,62,200/- together with interest at the rate of 12% per annum till realisation. Challenging the decree and judgment of the court below, the Board filed this appeal. 5. Heard the learned Standing Counsel for the Board and also the learned counsel appearing for the respondents/plaintiffs. 6. The challenge in this appeal is mainly on the ground that the deceased boy was negligent in touching the hanging wire and therefore, the Board is not liable for the compensation. It is also assailed on the ground that the compensation amount awarded is exorbitant. 7. Electricity is a dangerous substance, as held by the Hon'ble Supreme Court in M.P.Electricity Board v. Shail Kumari [2012(1) KLT 480 (SC)]. It is also held in M.P.Electricity Board's R.F.A.No.902 of 2008 3 case (supra) that electricity being a dangerous substance, the principle of strict liability would apply in accidents which are arising out of dangerous substance like electricity. It is held by the Hon'ble Supreme Court in Union of India v. Prabhakaran Vijaya Kumar & Others [(2008) 9 SCC 527], in cases where the principle of strict liability applies, the defendant has to pay damages for injury caused to the plaintiff, even though the defendant may not have been at any fault. It is to be noted that the deceased touched the broken wire which under law should have remained harmless when it broke from the supply line. In this context, it is relevant to quote Rule 91 of the Indian Electricity Rules, 1956 (hereinafter referred to as, the “Rules”), which provides as follows: “Safety and protective devices:--(1) Every overhead line (not being suspended from a dead bearer wire not being covered with insulating material and not being a trolley-wire) erected over any part of a street or other public place or in any factory or mine or on any consumer's premises shall be protected with a device approved by the Inspector for rendering the line electrically harmless in case it breaks” R.F.A.No.902 of 2008 4 8. The Board is duty bound in terms of Rule 91 of the Rules to protect overhead line with such device to render the line harmless, in case it breaks. It was admitted by the Board that due to heavy wind, the line was broken and it is while pulling the hanging wire, the deceased boy suffered electrocution. Contributory negligence proceeds from the awareness of risk by the victim. It is preposterous to attribute awareness to a minor of eight years old about the risk in touching hanging line. Therefore, the statutory breach itself entails the liability on the Board without any further proof of negligence being established against the Board. Thus, the challenge made by the Board alleging negligence to the deceased Mahesh must fail. 9. The court below awarded a compensation of `2,62,000/- with interest at the rate of 12% per annum from the date of suit till the date of judgment and thereafter, at the rate of 6% per annum till realisation. The court below arrived at the above amount by calculating notional income of the deceased at `24,000/- per annum and applying the multiplier 15. The court below also have deducted 1/3[rd] of the expenses that would have R.F.A.No.902 of 2008 5 incurred towards maintaining the deceased had he been alive. The court below in this exercise, in fact, relied on the multiplier method adopted in Motor Vehicles Act, 1988(hereinafter referred to as, “the Vehicles Act”). In the recent judgment of this Court in R.F.A.No.38 of 2004, this Court held that the multiplier method adopted in the Motor Vehicle accident cases and as propounded in Sarla Verma (Smt) and others v. Delhi Tansport Corporation and another [2009 (6) SCC 121], can be followed in determining compensation of loss of dependency. In Puttamma v. Narayana Reddy [2014 (1) KLT 738 (SC)], it is held that in case of death of a child aged more than five years, compensation may be determined either at `1,50,000/- or with reference to the conditions of Second Schedule whichever is higher (see para-56). The deceased Mahesh was aged about eight years at the time of accident. In Kishan Gopal and Another v. Lala and others [(2014) 1 SCC 244], Supreme Court took note of the fact that the notional income in the Second Schedule under Section 163A of the Vehicles Act at `15,000/- was fixed in the year 1994 and therefore, it is just and reasonable to take notional income at `30,000/- per annum. The multiplier as per the Sarala Verma's R.F.A.No.902 of 2008 6 case(supra) is 15. If we take notional income at `30,000/-, it would be more than what is awarded by the court below. We, therefore, feel that the calculation of the notional income and loss of dependency by the court below is correct and does not warrant any interference. 10. The court below also had given compensation of `10,000/- for loss of estate and `10,000/- towards love and affection. `2,000/- was awarded for pain and suffering and another `2,000/- was awarded towards funeral expenses. We do not find any illegality in awarding the compensation as above. 11. We do not see any illegality or infirmity with the decree and judgment passed by the court below with regard to determining the compensation. Therefore, this appeal must fail. Having regard to the nature of the litigation and the economically marginalised sector to which the plaintiffs belong, we hold that they are eligible to be exempted from paying court fee in the court of first instance in view of order XXXIII Rule 11 of CPC as amended by notification dated 13.01.1999 - see for support, Joseph v. Kerala State Electricity Board[ILR 2013(1) Ker.26]. That modification to the impugned judgment and R.F.A.No.902 of 2008 7 decree are hereby made in favour of the plaintiffs, in exercise of power under Order XLI Rule 33 CPC. In exercise of authority as afore-noted, the direction contained in the judgment and decree ordering realisation of court fee from the plaintiffs is vacated, and it is ordered that no court fee shall be recovered from them. The appeal is disposed of. No costs. Sd/- **THOTTATHIL B.RADHAKRISHNAN, JUDGE** Sd/- **A.MUHAMED MUSTAQUE, JUDGE** ln /True copy/ ## P.A. to Judge The words “the direction contained in the judgment and decree ordering realisation of court fee from the plaintiffs is vacated, and it is ordered that no court fee shall be recovered from them” occurring in the last sentence of last paragraph of the judgment stands corrected and substituted with the words “it is ordered that no portion of the court fee payable on the plaint shall be recovered from the plaintiffs, though the direction for such recovery to the extent ordered by the court below as against KSEB will stand” vide order dated 18/08/2014 in RFA 902/2008. Sd/- Registr ar (Judicial)