KERALA STATE ELECTRICITY BOARD v. Pandarathodika Moideen and Karuthon Safiya

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE SHIRCY V.** **MONDAY,THE 04TH DAY OF FEBRUARY 2019 / 15TH MAGHA, 1940** **RFA.No. 613 of 2011** **AGAINST THE DECREE AND JUDGMENT IN OS 109/2007 of SUB COURT, TIRUR** ## **APPELLANTS/DEFENDANTS:** - **1 KERALA STATE ELECTRICITY BOARD REP.BY ITS SECRETARY,KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN, PATTAM, THIRUVANANTHAPURAM 695 001.** - **2 THE SECRETARY KERALA STATE ELECTRICITY BOARD, VYDHYUTHI BHAVAN,PATTAM,THIRUVANANTHAPURAM 695 001** - **3 THE EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION, TIRUR.** - **4 THE ASSISTANT EXECUTIVE ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL MAJOR DIVISION, TIRURANGADI.** - **5 THE SUB ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION,KUNNUMPURAM, A.R NAGAR.** - **6 THE DEPUTY CHIEF ENGINEER KERALA STATE ELECTRICITY BOARD, ELECTRICAL DIVISION,TIRUR.** **BY** **SRI.PULIKOOL ABUBACKER, SC, KSEB SRI.SUDHEER GANESH KUMAR, SC,KSEB SRI.ARUN KUMAR.A. SC, KSEB** R.F.A.No.613 of 2011 2 ## **RESPONDENTS/PLAINTIFFS:** **1 PANDARATHODIKA MOIDEEN AGED 48 YEARS,S/O.ALAVI, KOLAPPURAM SOUTH,A.R NAGAR P.O, MALAPPURAM DISTRICT 676 505.** **2 KARUTHON SAFIYA AGED 40 YEARS,W/O.PANDARATHODIKA MOIDEEN,, KOLAPPURAM SOUTH,A.R NAGAR P.O, MALAPPURAM DISTRICT 676 505.** **BY ADVS. SRI.T.KRISHNANUNNI (SR.) SMT.P.A.SHEEJA SRI.JAMSHEED HAFIZ** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 04.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.F.A.No.613 of 2011 3 ## **JUDGMENT** The Kerala State Electricity Board/the appellants herein are the defendants in the suit filed for compensation by the parents of one Mohammed Rafeek who died due to electrocution 2. The plaintiffs /respondents have claimed an amount of Rs.10 lakhs as compensation on the death of their elder son due to electrocution. The court below considered the evidence on record and rejected the contentions raised by the Kerala State Electricity Board (for short 'the Board') and fixed compensation to the tune of Rs.7,25,000/-. 3. Facts as emerge from the record are as follows: Mohammed Rafeek an youngster aged only 19 years died on 23.10.2005 due to electrocution. On that fateful day while he was walking through Kolappuram-Thirurangadi road to Kutturpalam, unfortunately, he was trapped into a live broken electric wire lying on the road and got electrocuted and died instantaneously. The incident was due to the gross negligence of the Board in maintaining the electric wire. The deceased though aged only 19 years was earning an income of Rs.200/- per day. He was the sole bread winner R.F.A.No.613 of 2011 4 of the family consisting of his parents (the plaintiffs), three minor children and an unmarried sister. So they have claimed in total an amount of Rs.10 lakhs as compensation. 4. The Board denied the allegation of negligence attributed by the plaintiffs and contended that the deceased along with some others,were engaged in fishing with the aid of unauthorized electricity from an electric post and got electrocuted and thus the death occurred; so the Board was not responsible for his death. It is specifically contended that the defendants have drawn a 3 phase line from the transformer at Kolappuram for giving electric connection to the pump house owned by one Abdul Azeez. But, two months prior to this incident, there was short circuit in the said line and the line has become faulty. Since the fault could not be located, the bridging to the three phase line from the tapping post was removed and tied to the three phase line itself. Subsequently, the main line upto the tapping post was changed. The incident was during heavy rainy season. Just prior to the incident an arecanut tree had fallen on the disconnected line due to heavy wind and rain. Two posts were slanted in the bad weather and one line happened to be over sagging, touching the ground and the deceased attempted to tap electricity from that line for fishing and the line came into contact with the stagnated water on the road and thus he got electric shock. The Board has further contended R.F.A.No.613 of 2011 5 that the allegation that the deceased was earning an income of Rs.200/- per day is not correct and so the compensation claimed by the plaintiffs was exorbitant. The incident happened due to the negligence of the deceased. An amount of Rs.50,000/- was paid as exgratia immediately, after the incident and the amount thus paid by the Board was quite sufficient and reasonable compensation. 5. Before the court below PW1 and PW2 were examined and Exts.A1 to A11 were marked on the side of the plaintiff. No oral evidence was adduced by the Electricity Board. Exts.X1 and Exts.X1(a) were marked. The court below has fixed an amount of Rs.7,25,000/as compensation to the plaintiffs. After deducting the amount of Rs.50,000/- already paid as exgratia, the suit was decreed for a sum of Rs.6,75,000/- with interest at the rate of 6% per annum from the date of the suit till realization. 6. The said judgment and decree are under challenge. 7. In the appeal memoradum, the Board has contended that the court below failed to consider the negligence on the part of the deceased in causing the incident. The court has also failed to give reasons for awarding such a huge amount as compensation. So in short, it is contended that the amount awarded as compensation to the plaintiffs/respondents is exorbitant and excessive. 8. Heard Sri.Pulikool Aboobacker the learned Standing Counsel R.F.A.No.613 of 2011 6 for the Board and Adv.Sri.Jamsheed Hafiz,the learned counsel for the respondents/plaintiffs. 9. Muhammed Rafeek, the deceased was aged only 19 years at the time of his death due to electrocution. PW1,his father as PW1 has given evidence before the court below that on 23.10.2005, while his son was walking along with some others through the public road leading to Kutturpalam from Kolappuram-Tirurangadi public road, he came into contact with a broken live electric line which was lying on the road and thus got electric shock and died on the spot itself. It is revealed from Ext.A1, the copy of the First Information Report that Crime No.486/2005 was registered on 23.10.2005 at 23.00 hrs. Ext.A1 would show that though the deceased was shifted to the Government Hospital immediately after the incident he died due to electrocution. Ext.A2 is the Scene Mahazar prepared in the crime on the very next day of the incident at about 10.30 a.m, ie; on 24.10.2005. Ext.A2 Scene Mahazar would give a vivid picture of the place of occurrence, the position of the electric post as well the position of the electric wire hanging from the electric post at the place of the incident. The place of occurrence was a public mud road known as Kolappuram-Tirurangadi leading to Kutturpadam. The Assistant Surgeon of the Government Hospital, Tirurangadi had certified in Ext.A3, the postmortem certificate that the death of the R.F.A.No.613 of 2011 7 deceased was due to electrocution. Ext.A4 is the death certificate of the deceased. By this certificate the Tirurangadi Grama Panchayath certified that the death of Muhammed Rafeek, son of Moideen was on 23.10.2005. 10. The learned counsel for the Board has pointed out that though the plaintiffs had produced all these documents, the officials who prepared the same were not examined as witnesses to prove the veracity of those documents. But it is pertinent to note that all these documents were marked before the trial court without any objection on the side of the Board. The Board has not raised any contention at the time of marking of the documents or at the time of examining PW1 before the court that, these documents are not genuine documents and cannot be relied upon. It is clear from the records that all these documents were marked without any objection on the side of the Board. More over there is no dispute regarding the death of the deceased that it was due to electrocution. It is also to be noted that in the written statement it was specifically contended by the defendants that they have drawn a three phase line from the transformer at Kolappuram for giving electric connection to the pump house of one Abdul Azeez and just two months prior to the incident, there was short circuit in the said line and thus the line has become faulty. It was further admitted by the defendants that since the Board could not R.F.A.No.613 of 2011 8 locate the fault, the bridging to the three phase line from the tapping post was removed and tied to the three phase line itself and the main line upto tapping post was changed. The defence of the board is that the line had broken due to the heavy rain on the previous day and two posts had slanted and one line was over sagging due to lack of strength touching the ground and when the deceased attempted to tap electricity for fishing ,the line touched the stagnated water on the road and electrocution was from that line. The incident was in the night . In absence of evidence it is not possible to conclude that the death of the deceased was as narrated by the board. On the other hand the case of the plaintiffs that the deceased who happened to walk through the road without any information or knowledge about the dangerous position of the live electric wire, had accidentally came into contact with the electric wire, and got electrocuted and thus died instantaneously, appears to be more probable. 11. It was admitted by the board that some defect was noted in the electrical line about two months back itself but it is clear that only some temporary arrangement was made. Therefore,it is evident that necessary repairs with required devices were not effected. The negligence or carelessness on the part of board in maintaining the line, installation of devices, failure to take safety measures to avoid danger to human life etc were so patent. The board has not foreseen R.F.A.No.613 of 2011 9 the risk involved though duty bound to take safety measures and precautions to prevent mishaps. It is an admitted fact that a live wire was in a sagging position and that wire snapped and fell on the public road where water was stagnated. The deceased who touched the water got electrocuted. If the board was vigilant and had taken precautions this unfortunate incident ought to have been avoided . The evidence on record clearly indicate negligence on the part of the board. 12. A mistake of the court below pointed out by the learned counsel for the Board is that no proper issue was raised by the trial court as contemplated under Order 14 Rule 1 of CPC and so the board could not adduce any evidence to prove that there was no negligence on the side of board. But it is to be noted that the court has raised the following issues on the basis of the pleadings in the suit. 1) Whether the plaintiffs have got any cause of action. 2) Whether the plaintiffs are entitled to the reliefs sought for. 3) Reliefs and costs. Of course Order XIV Rule 1 of CPC deals with framing of issues. “1.Framing of issues- (1) issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue R.F.A.No.613 of 2011 10 or a defendant must allege in order to constitute his defence. (3) Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. - (4) Issues are of two kinds: - (a) issues of fact, - (b) issues of law. - (5) ******* - (6) *******” 13 **.** It is to noted that the first issue raised by the court below, whether the plaintiffs have got any cause of action which would cover the entire case of the plaintiffs that the death of the deceased was due to electrocution because of the negligence or failure to maintain electric line properly by the board. The entire facts which have been pleaded by the plaintiffs to get compensation on the death of the deceased and the contentions raised by the Board in denying the same would cover that issue, though no specific issue was raised. So also the second issue raised by the court that the plaintiffs are entitled to the relief sought for would cover the major and material points relied on by the plaintiffs and which have been denied by the board. So the mere failure on the side of the court to raise specific issues which would cover those two issues cannot be considered as a fault on the side of the court so as to deny a valid claim raised by the plaintiffs. 14. It is pertinent to note Rule 44(a) of the Indian Electricity R.F.A.No.613 of 2011 11 Rules, 1956, which came into force with effect from 9.11.1985 says that if any accident occurs in connection with generation, transmission, supply or use of electricity, and the accident results or is likely to have resulted in loss of human life or injury, the authorized person of the State Electricity Board shall forward a telegraphic report of occurrence to the electrical inspector within 24 hours of the knowledge of the occurrence, and a written report in the form stated in Annexure XII within 48 hours of the knowledge of the occurrence. 15. Ext.X1 is the file pertaining to the report thus prepared by the Inspectorate. The document marked through PW2 was summoned by the court at the instance of the plaintiffs. Of course PW2 has no personal knowledge about the incident which has taken place on 25.10.2005 in which the deceased had lost his life. But he had given evidence on the basis of the record maintained in the office in his official capacity and hence the court has relied on the document produced by the witness though it was prepared by then Electrical Inspector. In Ext.X1(a) file the details of the incident which caused the death of the deceased has been detailed by the Inspector who prepared the report. It is stated that the electric line was broken and was lying on the road and two electric posts were found in a slanting position. This report is a public document maintained in the office of the electric Inspectorate and it would show that the Inspector R.F.A.No.613 of 2011 12 inspected the spot immediately after the incident as contemplated in Rule 44(a) of the Indian Electricity Rules. There is nothing wrong in accepting the document as such which has been proved by examination of PW2 before the court though he was not the officer who prepared the report. So as mentioned above, the documents produced by the plaintiffs were all marked before the court without any objection from the side of the defendants. The court below has rightly considered the entire evidence adduced and concluded that the plaintiffs have discharged the burden by establishing that the deceased was electrocuted from the live line which was hanging from an electric post on the road side and without any information or knowledge while the deceased was passing through the public road got electrocuted and died instantaneously. 16. Apart from the negligence of board proved against the board the doctrine of strict liability can also be made applicable in in this case. 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 R.F.A.No.613 of 2011 13 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 is further observed that: “The rule of strict liability born in Rylands v. Fletcher has 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.” So applying the doctrine of strict liability also even if no R.F.A.No.613 of 2011 14 negligence is attributed by KSEB it is liable to pay damages. 17. The next point argued by the learned counsel for board is that an exorbitant amount was awarded as compensation on the death of a boy aged 19 years. According to PW1 he was suffering from some kind of rheumatic fever and was not in a position to earn money for the livelihood of the huge family and so, the deceased though aged only 19 years was engaged in various jobs including coolie works and earning a daily income of Rs.200/-. The court below considering the entire aspects especially in the absence of contra evidence accepted the claim raised by the plaintiffs and concluded that the daily income of the deceased was Rs.200/- per day and after deducting 1/3[rd] for his personal needs concluded that the monthly contribution to his family was Rs.4000/- and thus the compensation was calculated and fixed as Rs.7,20,000/-. It was considering his age and the average income he was earning for the family. I find absolutely no reason to interfere with the findings of the court below regarding the compensation thus fixed by the court. The court has also taken note of the fact that the family was given Rs.50,000/- as exgratia immediately after the death of the deceased and that has been deducted from the amount of compensation fixed by the court and thus a decree for Rs.6,75,000/was awarded with interest at the rate of 6%. I have meticulously gone through the evidence adduced by both sides and I find absolutely no R.F.A.No.613 of 2011 15 justifiable reasons to interfere with the findings of the court below. Hence, the judgment and decree passed in favour of the plaintiffs who lost their son at the young age of 19 years,that too the sole bread winner of the family is only to be confirmed and I do so. In the result, the appeal is dismissed. No costs. smm **Sd/SHIRCY V. JUDGE**