KERALA STATE ELECTRICITY BOARD v. MARY VARKEY 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** # **MONDAY, THE 31ST DAY OF MARCH 2014/10TH CHAITHRA, 1936** ## **RFA.No. 679 of 2013** **----------------------OS NO. 178/2009 OF SUB COURT,KOCHI DATED 20-03-2013 .....** ## **APPELLANTS/DEFENDANTS:** **--------------------------------------------** ## **1. KERALA STATE ELECTRICITY BOARD,** - **REPRESENTED BY SECRETARY, VYDYUTHI BHAVAN, PATTOM PALACE.P.O., THIRUVANANTHAPURAM-695 004.** ## **2. SEBASTIAN,** **S/O. GEORGE, SUB ENGINEER, KERALA STATE ELECTRICITY BOARD OFFICE, MATTANCHERRY, KOCHI-682 002, RESIDING AT ETTUNGAL VEETTIL, NEAR BAZAR STOP, CHELLANAM.P.O., KOCHI-682 008.** ## **BY ADV. SRI.K.M.SATHYANATHA MENON,SC,KSEB** ## **RESPONDENT(S):PLAINTIFFS:** **----------------------------------------------** ## **1. MARY VARKEY,** - **W/O. LATE BABU @ VARKEY M.V., MARANGADAN PUTHUSSERY HOUSE, C.C.9/1186, AJANTHA ROAD, MANTHARA DESOM, MATTANCHERRY VILLAGE, KOCHI TALUK, PIN-682 008.** ## **2. NIMMY MARIA,** - **D/O. LATE BABU @ VARKEY.M.V., MARANGADAN PUTHUSSERY HOUSE, C.C.9/1186, AJANTHA ROAD, MANTHARA DESOM, MATTANCHERRY VILLAGE, KOCHI TALUK, PIN-682 008.** ## **3. NIKHIL VARGHESE,** - **S/O. LATE BABU @ VARKEY.M.V., MARANGADAN PUTHUSSERY HOUSE, C.C.9/1186, AJANTHA ROAD, MANTHARA DESOM, MATTANCHERRY VILLAGE, KOCHI TALUK, PIN-682 008.** **R1 TO R3 BY ADVS. SMT.NEETHU PREM SMT.ALISHA MATHEW** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/03/2014, THE COURT ON 31/03/2014 DELIVERED THE FOLLOWING:** **Kss** THOTTATHIL B.RADHAKRISHNAN & A.MUHAMED MUSTAQUE, JJ. ---------------------------------------------------R.F.A.No.679 of 2013 ---------------------------------------------------Dated this the 31[st] day of March, 2014 ## JUDGMENT ## Muhamed Mustaque,J. - 1.This appeal is filed by the Kerala State Electricity Board (hereinafter referred to as, the "Board") challenging a judgment and decree passed by the court below in a suit for compensation initiated by the legal heirs of one Babu @ Varkey M.V., who died in electrocution. - 2.The plaintiffs in the suit are the legal heirs of the deceased Babu. On 24.05.2006, at about 8.15 p.m., the deceased Babu was standing near an electric post at L.G. Pai Road. While so, an overhead electric line snapped from the post and fell on him. The deceased succumbed to the injuries suffered by him, while he was being taken to the hospital. - 3.The court below, on an appreciation of the evidence, found that the Board is liable to pay compensation based on the R.F.A.No.679 of 2013 2 principles of strict liability and awarded a compensation of `7 lakhs. - 4.Heard the learned Standing Counsel for the Board and the learned counsel appearing for the respondents/plaintiffs. - 5.In this appeal, the learned Standing Counsel for the Board addressed this Court on three points. According to the learned Standing Counsel, the incident occurred on 24.05.2006 and the suit is filed after a period of one year. Hence, it is barred by limitation. It is also contended by the learned Standing Counsel for the Board that since the accident occurred due to natural calamity, the State should be a necessary party to the suit and, therefore, the suit must fail for want of non-joinder of necessary parties. It is finally contended that the court below went wrong in fixing the compensation, based on the multiplier adopted by the Motor Vehicles Act, 1988 (hereinafter referred to as, the “Act”). We have also heard the learned counsel for the respondents/plaintiffs, who supported the judgment of the court below. R.F.A.No.679 of 2013 3 6.Onto the question regarding limitation, this Court in Kerala State Electricity Board v. Subhadra [2013 (4) KLT 17] held that, in a claim for compensation due to electrocution, the act is to be treated as a tortious act committed by the Board and such a claim is governed by Article 113 and not by Article 82 of the Limitation Act(hereinafter referred to as, the “Act”). Article 113 provides the limitation period as three years. In view of the above decision, this point is found against the appellants. - 7.The contention of the appellants that the State should be a party to the suit is misconceived. The Board is duty bound in terms of Rule 91 of the Indian Electricity Rules, 1956 (hereinafter referred to as, the “Rules”) to protect the overhead lines with such device, to render the line harmless, in case it breaks. ## 8.Rule 91 of the Indian Electricity Rules, 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 R.F.A.No.679 of 2013 4 consumer's premises shall be protected with a device approved by the Inspector for rendering the line electrically harmless in case it breaks” 9.In M.P.Electricity Board v. Shail Kumari [2012(1) KLT 480 (SC)], it was held that if any live wire gets snapped and falls on the public road, the electric current being passed through the said wire should automatically be disrupted. We see that the failure on the part of the Board to provide the device to ensure the protection under Rule 91 of the Rules, is a breach of statutory duty. Thus, mere non-performance of an act, which the statute requires a person to perform itself, is a negligence on the part of that person. Therefore, we do not see any reason for the State being made a party to the proceedings. This point is also found against the appellants. - 10.Electricity is a dangerous substance. Therefore, in an accident arising from dangerous substance, the principles of strict liability would apply. In the cases involving the principles of strict liability, the defendant-Board has to pay damages for the injury caused to the plaintiffs even though, the defendant may not have been at any fault, see for support- Union of India R.F.A.No.679 of 2013 5 v. Prabhakaran Vijaya Kumar & Others [(2008) 9 SCC 527]. We find that the Board is liable to compensate the plaintiffs, even without any proof of negligence. 11.In a recent judgment by this Court in RFA No.38 of 2004, it was held that the multiplier method adopted in Sarla Verma (Smt) and others v. Delhi Tansport Corporation and another [2009 (6) SCC 121], can be followed in fatal accident cases. Hence, we calculate the compensation payable to the plaintiffs as follows: The deceased was aged 45 years at the time of accident. As per Column No.4 in the table enumerated in Sarla Verma's case (supra), the proper multiplier is 14 for persons, who are aged between 41 and 45 years. The deceased was a taxi driver. The court below calculated the monthly income of the deceased at `5,000/-. We do not see any illegality in fixing `5,000/- per month as the monthly income. The plaintiffs are dependants of the deceased. Based on the judgment in Sarla Verma's case (supra), where the number of dependent family members are 2 to 3, ¼[th] of the income should be deducted towards the personal living expenses of the deceased. Thus, we take the net R.F.A.No.679 of 2013 6 income of the deceased after such deduction at `3,750/-. Therefore, calculation of loss of dependency is worked out as `3750 X 12 x 14 = `6,30,000/-. The court below awarded a compensation of `6,75,000/- towards loss of dependency. We, therefore, modify the award of compensation by the court below under this head to that extent. 12.The court below also granted compensation for loss of consortium at `50,000/-, `50,000/- as compensation for love and affection and `5,000/- towards funeral expenses. The court below also have deducted `50,000/- as ex-gratia amount given to the plaintiffs. We do not find any justification in awarding compensation on account of loss of consortium and loss of love and affection. Such a claim is inadmissible under the loss of estate as per the provisions of the Fatal Accidents Act, 1885, see for support - Lachhman Singh and others v. Gurmit Kaur and others [AIR 1979 P&H 50(FB)]. However, we find that no compensation is awarded to the plaintiffs under the head loss of estate to the deceased under the heads expectation for life, physical suffering and mental agony caused to the deceased. We, therefore, award a sum of ` 1 lakh under this head. R.F.A.No.679 of 2013 7 Thus, the total compensation to which the plaintiffs are entitled to, is `7,35,000/-. After deducting the amount of `50,000/towards ex-gratia, the plaintiffs will be entitled to a sum of `6,85,000/-. We do not see any other ground to interfere with the judgment and decree passed by the court below and we, therefore, modify the judgment and decree by awarding a compensation of `6,85,000/- together with 6% interest from the date of suit till the date of realisation. Thus, this appeal is dismissed subject to the above modification, with regard to the compensation amount awarded. We refrain from awarding costs, as the modification of the judgment and decree of the court below is only to the extent of `15,000/-. Sd/THOTTATHIL B.RADHAKRISHNAN, JUDGE Sd/A.MUHAMED MUSTAQUE, JUDGE ln /True copy/ P.A. to Judge