Kerala State Electricity Board v. Sasidharan (Insane) 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. 206 of 2009 (C)** **--------------------------------[AGAINST THE DECREE AND JUDGMENT DATED 30-08-2008 IN O.S.NO. 74/2007 OF THE IIND ADDL.SUB COURT,KOZHIKODE]** **...........** ## **APPELLANT/2ND DEFENDANT:** **--------------------------------------------** **THE SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVAN, PATTAM, THIRUVANANTHAPURAM.** ## **BY SRI.PULIKOOL ABUBACKER, S.C.** ## **RESPONDENTS/PLAINTIFFS & DEFENDANTS 1 AND 3:** **-----------------------------------------------------------------------------** ## **1. SASIDHARAN, (INSANE),** **S/O. PARAYIL VEETTIL KALYANI, AGED 49 YEARS. PARAYIL VEEDU, REP. BY HIS GUARDIAN, UNCLE, ACHUTHAN, S/O. CHAKKAPPAN, AGED 52 YEARS, PARAYIL HOUSE, KUNNAMNGALAM AMSOM, DESOM, KOZHIKODE TALUK.** ## **2. A.P. AHAMEDKUTTY HAJI,** **S/O. MOIDEENKUTTY, IYYAMBALATH, MOTTEKUNNUMMAL HOUSE, KODUVALLY AMSOM, DESOM, P.O. KODUVALLY, KOZHIKODE.** ## **3. NATIONAL INSURANCE COMPANY,** **REPRESENTED BY DIVISIONAL MANAGER, DIVISIONAL OFFICE, KOZHIKODE.** **R1 BY ADV. SRI.P.V.KUNHIKRISHNAN, (CAVEATOR), R2 BY ADV. SRI.K.M.FIROZ.** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03-03-2014, THE COURT ON 31-03-2014 DELIVERED THE FOLLOWING:** **Prv.** **THOTTATHIL B.RADHAKRISHNAN & A.MUHAMED MUSTAQUE, JJ.** ~~~~~~~~~~~~~~~~~~~~~~~~~ **R.F.A.No.206 of 2009** ~~~~~~~~~~~~~~~~~~~~~~~~~ **Dated this the 31[st] day of March, 2014** **J U D G M E N T** ## **Muhamed Mustaque, J.** This appeal is filed by the Kerala State Electricity Board (for short, the “Board”), challenging the judgment and decree in a suit for compensation on account of the death caused to one Kalyani, due to electrocution. 2. The plaintiff in the suit is a mentally disabled person and the only son of the deceased Kalyani. The brief plaint allegations are as follows. The deceased Kallyani was employed at the first defendant's house as a domestic servant. The first defendant had put up a temporary shed adjacent to his shop building. Electricity was supplied to the temporary shed by drawing an unauthorised connection from the shop building. The supply wire was drawn without any safety precautions. Thus, the deceased Kalyani, while removing the waste inside the shed came into contact with ## **R.F.A.No.206 of 2009** ## **-:2:-** the electric line, illegally drawn to the temporary shed and breathed her last breath due to the electrocution. 3. The first defendant filed a written statement and contended that the deceased Kalyani was not his employee. It is also contended by him that she got electrocuted from the earth wire on the side of the shop building situated 15 meters away from his house. 4. The Electricity Board, the second defendant in the suit, contended that the Board has given electric connection to the shop named ‘Sakeena Store’ on the application made by the first defendant and the deceased Kalyani accidently touched the earth wire, which was installed for providing electric supply to the shop and got electrocuted. It is also stated that the insulation of the supply wire in the shop room was torn and had come into contact with the earth wire. It is further stated that the earth wire was found detached from the earth pipe and the deceased Kalyani came into contact with the earth wire by her own negligence and got electrocuted. 5. In the suit, the Insurance Company was also made a party as the third defendant. The third defendant admitted that special insurance policy has been issued to the Board for payment of _ex-gratia_ benefit to the ## **R.F.A.No.206 of 2009** ## **-:3:-** dependants of any members of the public electrocuted from the installations of the Board, upto a maximum of Rs.50,000/-. 6. Before the court below, on the side of the plaintiff, his uncle and guardian, namely, Achuthan was examined as PW1 and Exts.A1 to A6 were marked. Defendants did not adduce any oral evidence and Exts.B1 and B2 were marked. 7. The court below, on an analysis of the evidence and pleadings, found that the second respondent-Board was negligent. It is found by the court below that if proper care, caution and routine inspection had been conducted by the employees of the Board, the above incident could have been averted. It is the failure on the part of the Board to conduct such supervisory act, which paved way for fastening liability on the Board. The Board did not adduce any evidence to substantiate their contentions in their written statement, to prove the negligence of the deceased or that of the first defendant. 8. Learned counsel for the appellant-Board argues that the first defendant failed to inform the Board about the torn insulation of the supply wire. We do not think such an inaction on the part of the first respondent ## **R.F.A.No.206 of 2009** ## **-:4:-** would give rise to sharing of the liability i.e., to share the amount of compensation to be paid to the dependant of the victim, for the obvious reason that the Board under the relevant Act and Rules, namely, the Indian Electricity Act and Rules, has a statutory duty to oversee and supervise the installations in consumers’ places. It will be apposite to quote Rule 46 of the Indian Electricity Rules in this context, which reads as follows: "46. Periodical inspection and testing of consumer's installations.-(1)(a) Where an installation is already connected to the supply system of the supplier, every such installation shall be periodically inspected and tested at intervals not exceeding five years either by the Inspector or any officer appointed to assist the Inspector or by the supplier as may be directed by the State Government in this behalf or in the case of installations belonging to, or under the control of the Central Government, and in the case of installation in mines, oil-fields and railways, by the Central Government. ..........." 9. In _**Anns and others v. London Borough of Merton**_ **[(1977) 2** **All ER 492]** , the House of Lords took the view that “when legislation gave with authority to control building operations by requiring approval of foundations of building by authority's Inspector, failure to carry out such ## **R.F.A.No.206 of 2009** ## **-:5:-** inspection by the Inspector would result in non-exercise of power, capable of amounting to a breach of duty of care”. Therefore, we are of the view that the failure to exercise the power under Rule 46 of the Indian Electricity Rules which is intended to protect the consumers and third parties, would entail breach of statutory duty. 10. We, therefore, reject the contention of the learned counsel for the appellant that the first defendant is also equally liable. The court below has discussed all the matters in detail and has come to the conclusion that the Board alone is liable to compensate the plaintiff. We do not see any reason to upset the findings of the court below in this regard. 11. Onto the quantum of compensation awarded by the court below, the court below calculated the annual income of the deceased at Rs.18,000/-. However, we do not find any justification on the part of the court below in fixing the annual income at Rs.18,000/-. The court below ought to have fixed the annual income at Rs.30,000/-. In a recent judgment, the Hon'ble Supreme Court held that the notional income under the Second Schedule attached to Section 163A of the Motor Vehicles Act at Rs 15,000/was fixed in the year 1994 and therefore, it is just and proper to fix the **R.F.A.No.206 of 2009** ## **-:6:-** notional income at Rs.30,000/-. Also see **Kishan Gopal and Another v. Lala and others [(2014) 1 SCC 244]** . The court below also took 10 years’ multiplier. We find that the multiplier adopted by the court below is not correct. The multiplier ought to have been fixed as 5, in view of the decision of the Hon’ble Supreme Court in **Sarla Verma (Smt) and others v. Delhi Transport Corporation and another [(2009 (6) SCC 121)]** . Therefore, if we calculate the compensation in the light of **Sarla Verma’s** case, the plaintiff will be entitled to Rs.1,50,000/- as compensation. However, we see that no compensation is awarded towards loss of expectation of life, pain and suffering and also towards funeral expenses. We award Rs.50,000/- towards compensation under the above heads. We find that the court below is not justified in awarding Rs.20,000/- as compensation for loss of love and affection. The plaintiff cannot raise any claim for such loss under the Fatal Accidents Act. We, therefore, find that the plaintiff is entitled to a total compensation of Rs.2 lakhs as mentioned above. Thus, the judgment and decree passed by the court below awarding a compensation of Rs.2 lakhs do not warrant any interference at the hands of this Court. ## **R.F.A.No.206 of 2009** ## **-:7:-** Having regard to the nature of the litigation and the economically marginalised sector to which the plaintiff belongs, we hold that he is eligible to be exempted from paying the 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 decree can be made in favour of the plaintiff in exercise of the power under Order XLI Rule 33 CPC. In exercise of the authority as afore-noted, the direction contained in the judgment and decree, ordering realisation of the court fee from the plaintiff is vacated and it is ordered that no court fee shall be recovered from him. Accordingly, this appeal is dismissed. ## **Sd/-** ## **THOTTATHIL B.RADHAKRISHNAN, JUDGE** ## **Sd/-** ## **A.MUHAMED MUSTAQUE, JUDGE** ms “The judgment dated 31/03/2014 in R.F.A.206/2009 **R.F.A.No.206 of 2009** ## **-:8:-** (last but one paragraph, page 7) is _suo motu_ reviewed to the extent it vacates the direction for realisation of court fee from the plaintiff and it is made clear that it is open for the District Collector to proceed against the second defendant/appellant herein for recovery of the court fee in accordance with law”. vide order dated 04/02/2015 in R.F.A 206/2009. Sd/-Registrar (Judicial)