Kerala State Electricity Board v P. N. Sasi and Chandrika Sasi

# **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** ## **RFA.No.166 OF 2009** **AGAINST THE JUDGMENT IN OS 19/2002 DATED 19-08-2005 OF PRINCIPAL SUB COURT,NORTH PARAVUR** ## **APPELLANT/DEFENDANT:** **KERALA STATE ELECTRICITY BOARD REP BY ITS SECRETARY VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.** **BY ADVS. SRI.C.K.KARUNAKARAN, SC FOR KSEB SRI.P.SANTHALINGAM (SR.) SRI.S.SHARAN, SC K.S.E.BOARD SRI.P.A.AHAMED, SC, KERALA STATE ELECTRICITY BOARD LIMITED SRI. A. ARUN KUMAR** ## **RESPONDENTS/PLAINTIFFS:** **1 SRI.P.N.SASI, PERUMALPARAMBIL MANAKKAPPADY KARA, KARUMALLOOR VILLAGE, PARAVUR TALUK. 2 SMT.CHANDRIKA SASI, W/O.SASI PERUMALPARAMBIL,MANAKKAPPADY KARA,KARUMALLOOR VILLAGE, PARAVUR TALUK.** ## **R1 BY ADV. SRI.SHINDO VARGHESE** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 29.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** RFA.No.166 OF 2009 2 ## **JUDGMENT** The Kerala State Electricity Board ('the KSEB' for short) the defendant in O.S.N.19/2002 on the file of the Subordinate Court, North Paravur has come up with this appeal aggrieved by the judgment and decree dated 19.8.2005. 2. An young boy aged 18 years died due to electrocution on 20.6.1998. On his death, his parents as the plaintiffs filed the suit claiming an amount of Rs.8,20,000/- as damages/compensation. The court below decreed the suit as prayed for. 3. For the sake of convenience the parties are referred to as the plaintiffs and the Board. 4. Brief facts of the case are as follows: The plaintiffs are the parents of a boy named Shyamesh, aged 18 years. He was a resident of Karuchira near Karumalloor. On 20.6.1998 he has gone to his friend's house to watch World Cup in the T.V. After watching the match in the T.V, he returned to his house at about 2.30 a.m. On his way back to his home, RFA.No.166 OF 2009 3 he came into contact with a live broken electric wire in the pathway leading to his house and thus got electrocution and instantaneously he died. Though, the boy was a student he was also earning for his family and his sudden death had caused much financial difficulties apart from the emotional loss of his parents. Hence, they have claimed a sum of Rs.8,20,000/- as compensation on his death. 5. The Board refuting the claim, inter alia contended that the death was not due to any negligence on the part of the Board. A dry wooden branch of a jack fruit tree standing near the lane fell on an electric wire and the line was broken and unfortunately the victim who happened to pass through the lane during the night in the darkness came into contact with the electric wire and thus got electrocuted. But the death was not due to the negligence of the Board in maintaining the electric wire. Hence, the Board is not liable to pay compensation. It is also contended that exorbitant amount was claimed as compensation as the victim was a student and not an earning member of the family. RFA.No.166 OF 2009 4 6. Before the court below, on the side of the plaintiffs PWs1 to 4 were examined and Exts.A1 to A8 were marked. The defendant did not adduce any oral or documentary evidence. Ext.X1 was marked. 7. The court below on appreciation of the entire evidence available on record decreed the suit as prayed for. It is also to be noted that after the judgment and decree the Board has deposited the entire amount as per the decree before the court below and the plaintiffs have received the same from the trial court. 8. Admittedly, Shyamesh the son of the plaintiff died due to electrocution, on 20.6.1998. He was aged only 18 years at the time of his death. It is also not in dispute that he sustained electric shock while he was walking through the public road towards his residence in the night of 20.6.1998. PW1 his father who is the first plaintiff had narrated the incident in detail. According to him, during the incident, World Cup was going on and there was no T.V available at his residence to watch the match and his son who was crazy of football match, went to a RFA.No.166 OF 2009 5 neighboring house to watch the match in the T.V. and the match was over only by 2.30 a.m. So at 2.30 a.m when he returned to his residence through the public way he came into contact with the live broken electric wire and got electrocuted and died instantaneously. 9. The Board has not denied the incident and according to the Board, a dry branch of a jack fruit tree which was standing on the side of the public road fell on the electric line and the electric line was snapped and was lying on the public road. It was in the midnight and moreover it was during the monsoon season and the Board has not received any information about the incident immediately. So the Board could not cut off the electricity passing through the wire and the wire remained as live for sometime in the public lane and thus the victim who was passing through the road happened to touch on the electric line and got electrocuted. Ext.A3 postmortem certificate would show that the death of the son of the plaintiffs was due to electrocution. Ext.A1 is the death certificate pertaining to the victim. An FIR was also registered by the police concerned about the incident immediately after the RFA.No.166 OF 2009 6 incident. According to the plaintiffs, the victim was a second year degree student of U.C. College, Aluva at the time of the incident. PW1 his father had further deposed that due to the financial condition of the family, though the victim was a degree student, used to do mason work during holidays as well during vacation and earn income of approximately Rs.150/- per day to support the family. PW1 has further deposed that the deceased used to earn about Rs.4,000/- per month as he was getting sufficient works during the said period. So when his income is calculated considering the support given by him to the family, it would come, atleast to Rs.4,000/- per month. 10. To substantiate the case of the plaintiffs that the victim used to engage as a manual laborer to earn money to assist his father financially, PW2 a contract worker and PW3 a co-worker of the victim were examined before the court. Both PW2 and PW3 deposed that the victim used to do manual labor and earn money. Though they were subjected to piercing cross examination nothing, could be brought out by the Board to discard their evidence that the victim was earning money to RFA.No.166 OF 2009 7 support his parents. As referred above, the Board has neither denied the incident nor contended that the victim was negligent and because of his negligence, he sustained electric shock which resulted in his death. So in fact, the Board has admitted that the snapped electric wire was in the public road and there was no precaution at that time to cut off the electricity. Hence, it remained alive in the public road. But the Board has a case that the death was not because of the negligence on the side of the Board, as it happened accidentally when a branch of a tree fell on the electric wire and thus it snapped and fell on the road at that point of time and thus the unfortunate incident had occurred. But the Board has a case that the amount claimed as compensation was exorbitant as the victim was only a student. The Board disputed the plaintiffs' case that he used to earn money to support the family by providing a sum at the rate of Rs.4000/- per month and vehemently contended that the evidence adduced on that line was only to be discarded. But it is pertinent to note that the officials of the Board were not examined by the Board to substantiate their case that the RFA.No.166 OF 2009 8 amount claimed by the plaintiff was exorbitant and there was no scope for the plaintiffs to contend that their son was an earning member and helping the family to pull on though he was a student at the time of the accident as evident by Ext.A6. 11. The learned counsel for the plaintiff has drawn my attention to the decision of the Hon'ble Supreme Court in **Iswar** **Bhai C Patel v. Harihar Behera and Ors. [1999(3) SCC 457]** where it was held that an adverse inference could be drawn when the defendant who does not present himself before the court for cross examination and refuses to enter into the witness box to refute the allegations made against him or to support his pleadings in his written statement. Here, the Board has not adduced any evidence and the Board did not attempt to disprove the case of the plaintiffs that the deceased used to earn an amount of Rs.4000/- per month to support his family though he was a student. So the above decision is squarely applicable in this case. 12. Hence, I find absolutely no reason to discard the evidence of the plaintiffs that the young boy aged 18 years, RFA.No.166 OF 2009 9 though pursuing his studies used to extend a helping hand to his parents and he managed to earn at least an amount of Rs.4000/- per month. 13. Apart from the negligence of Board proved against the Board the doctrine of strict liability can also be made applicable in this case as the Board is dealing with inherently dangerous activities. A Division Bench of this Court in **Varghese V. Kerala State Electricity Board [** _**2013 (2) KLT 67]**_ has observed in para no.14 that “14. The principle of strict liability was laid down in the celebrated case of Rylands v. Fletcher (1868)L.R.3.H.L.330 that, ”if a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbours, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent damage”. Rylands v. Fletcher certainly involves a liability without proof of fault (subject to certain exceptions, most of which, are not recognized or accepted by our jurisprudence through precedents) for personal injuries or loss of life on account of the hazardous business of the defendant.” ## It was further observed that: “The rule of strict liability born in Rylands v. Fletcher has RFA.No.166 OF 2009 10 been applied in our country by almost all the Civil Courts, High courts and Apex Court in M.P.Electricity Board v. Shail Kumari [2002 (1)KLT 480 SC] that; “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”. ## It was also observed that “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.” Therefore, strict liability theory also holds the Board responsible for the death of this young boy by shattering the dreams of a poor family. Considering the entire facts involved in this case, I do not find any justifiable reason to interfere with the finding of the court below that the plaintiffs are entitled to claim the RFA.No.166 OF 2009 11 amount as compensation on the death of their young son. As the parents lost their son at the age 18 years in fact the grief of the family cannot be compensated in terms of money. 14. Hence, I find no justifiable or valid reason to interfere with the finding of the court below that they are entitled to get an amount of Rs.8,20,000/-as compensation. As mentioned above, the Board has already deposited the amount before the court below after the judgment and decree as there was no order of stay from this Court while admitting the appeal. Thus, the amount had already been withdrawn by the plaintiffs. Hence, the appeal is dismissed. However, the parties shall bear their respective costs. **Sd/-** **SHIRCY V.** **JUDGE** smm