Kerala State Electricity Board v. T. Subhadra and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR.JUSTICE P.BHAVADASAN WEDNESDAY, THE 7TH DAY OF AUGUST 2013/16TH SRAVANA, 1935 ## RFA.No. 720 of 2009 ------------------------ AGAINST THE ORDER/JUDGMENT IN OS 28/2006 of SUB COURT,NEYYATTINKARA DATED 22-08-2007 ## APPELLANTS/RESPONDENTS: 1. THE SECRETARY, KERALA STATE ELECTRICITY BOARD, VYDHUDHI BHAVAN PATTOM, THIRUVANANTHAPURAM. 2. THE ASSISTANT EXECUTIVE ENGINEER, - BALARAMAPURAM, NEYYATTINKARA. BY ADV. SRI.P.SANTHALINGAM SC FOR KSEB RESPONDENTS/PLAINTIFFS: 1. T.SUBHADRA, W/O.LATE SADASIVAN, AGED 60 YEARS, RESIDING AT KUNDARATHALAKKA, NARAVAOODU PALLICHAL, NEYYATTINKARA. 2. S.SANAL KUMAR, S/O LATE SADASIVAN, AGED 33 YEARS RESIDING AT KUNDARATHALAKKA, NARAVAOODU, PALLICHAL NEYYATTINKARA. 3. S.BINDU, D/O LATE SADASIVAN, AGED 32 YEARS, KUNDARATHALAKKA, NARAVAOODU PALLICHAL, NEYYATTINKARA. R1 TO 3 BY ADV. SRI.R.S.KALKURA THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 0708-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: R.F.A. NO. 720/2009 APPELLANT'S ANNEXURES: ANNEXURE A1: TRUE COPY OF THE DOCUMENT SHOWING THE PAYMENT OF RS.50,000/-- AS EX-GRATIA AMOUNT TO THE RESPONDENTS. ks. TRUE COPY P.S. TO JUDGE “CR” ## Thottathil B.Radhakrishnan ## & ## P.Bhavadasan, JJ. = = = = = = = = = = = = = = = = = = = = = = = = R.F.A.No.720 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 7[th] day of August, 2013 ## Judgment ## Thottathil B.Radhakrishnan, J. - 1.Kerala State Electricity Board and its officer are in appeal against the decree passed in a suit for damages for loss caused due to the electrocution of the predecessor-in-interest of the respondents. - 2.Vinod Kumar was electrocuted in the morning of 23.7.2001 when he came in contact with live wire line which had snapped from its alignment. The incident is not disputed. Appellants pleaded that natural calamity resulted in the incident and there is no culpable negligence. That plea was RFA720/09 -: 2 :- found against. Applying the doctrine of strict liability, that defence had to fail - See, Quebec Rly., Light, Heat and Power Co. Ltd. v. Vandry [1920 AC 662], W.B.SEB v. Sachin Banerjee [(1999) 9 SCC 21], M.P.Electricity Board v. Shail Kumari [(2002) 2 SCC 162] and Varghese and another v. K.S.E.B. [ILR 2013 (2) Ker.99]. - 3.The court below granted an amount of Rs.2 lakhs as damages with interest at 12% per annum from the date of the incident till date of decree and future interest therefrom at 6% per annum. - 4.This appeal was admitted condoning delay of 435 days on payment of costs. With no defence to that effect before the court below or in the appeal as it was initially laid, the appellants applied for leave to raise an additional ground of appeal to the effect that the suit was barred by limitation. The arguments mainly advanced before us were as to whether such a plea could be raised for the first time in appeal and as to whether RFA720/09 -: 3 :- the suit was barred by limitation. 5.Reference was made by the learned counsel for the respondents to Banarsi Das v. Kanshi Ram [AIR 1963 SC 1165] and Indore Municipality v. Niyamatulla [AIR 1971 SC 97] to point out that a new plea of limitation involving mixed question of law and facts should not be allowed to be raised at the stage of argument. The plea of limitation now sought to be raised as an additional ground is based on the admitted fact that Vinod Kumar was electrocuted on 23.7.2001 and the original petition by the plaintiffs seeking leave to sue as indigents was presented on 7.4.2004. That plea is not based on any disputed question of fact. It is essentially a question of law in view of Section 3 of the Limitation Act, 1963. Hence, the application for leave to raise additional grounds in appeal is allowed to the extent it relates to the plea that the suit was barred by limitation. RFA720/09 -: 4 :- 6.The learned counsel for the appellants argued that in terms of Article 82 of the Limitation Act, 1963, the suit ought to have been filed within a period of two years from the date of the death of the person killed. The learned counsel for the respondents, however, argued that applying the precedent, K.S.E.B. v. Bhaskaran Nair [2002 (3) KLT 324], it is trite law that it is Article 113 that governs and therefore, the period of limitation is three years from when the right to sue accrues. - 7.In Bhaskaran Nair (supra), which was also a case for compensation for death due to electric shock, this Court held that such a suit is to be treated as one for compensation or damages on account of a tortious act committed by the State and would, hence, fall under Article 113 of the Limitation Act. Reliance was placed on Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat [(1994) 4 SCC 1] and State of A.P. v. Challa Ramkrishna Reddy [(2000) 5 SCC 712]. We may add that in so far as the RFA720/09 -: 5 :- State of Kerala is concerned, the Kerala Torts (Miscellaneous Provisions) Act, 1976, among other things, in Section 2 thereof, inter alia, provides that on the death of any person after the commencement of that Act, all causes of action vested in him shall survive for the benefit of his estate except as regards the causes of action excluded as per the proviso to that section. Such survival is in favour of the estate and Section 3 of that Act provides that where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, damages recoverable for the benefit of the estate of that person shall be calculated as provided by clause (c) of Section 3 in cases where the death of that person has been caused by the act or omission which gives rise to the cause of action. Section 5 of that Act provides, inter alia, that the rights conferred by that Act for the benefit of the estates of deceased persons shall be in addition to, and not in derogation of, any rights conferred on the dependants of the deceased RFA720/09 -: 6 :- persons by the Indian Fatal Accidents Act, 1855. Article 82 of the Limitation Act applies to suits by executors, administrators or representatives under the Indian Fatal Accidents Act, 1985. It does not take in any other suit relating to tort. Action under Section 1A of the Fatal Accidents Act, 1855 is for compensation to the family of a person for loss occasioned to it by his death by actionable wrong, while the right to sue that survives in terms of the provisions of the Kerala Torts (Miscellaneous Provisions) Act is in favour of the estate. The right to sue under that Act is on behalf of the estate, while the right to sue under the Fatal Accidents Act is with the wife, husband, parent and child, if any, of the person whose death shall have been so caused. Therefore, notwithstanding the fact that Section 1A of the Fatal Accidents Act is quoted in the caption to the plaint from which this appeal arises, the claim arising on account of electrocution is essentially a composite claim which has germinated from the causes of action that fall RFA720/09 -: 7 :- under the Fatal Accidents Act and those causes of action which fall under the Kerala Torts (Miscellaneous Provisions) Act, the reliefs of which are in addition to, and not in derogation of, any right conferred under the Fatal Accidents Act on the dependants of a deceased person. Therefore, such a suit does not fall pithily under Article 82 of the Limitation Act. Nor does it so fall under any description of suit for which any period of limitation is provided for elsewhere in the Schedule. It, therefore, falls to be governed by the residuary Article 113 of the Limitation Act and the period of limitation is three years from when the right to sue accrues. In this view of the matter, we agree with the views in Bhaskaran Nair (supra) and follow it as a precedent. It is also profitable in this context to refer to Lissie Hospital v. Ajayakumar [2004 (1) KLT 344] which pointedly dealt with the provisions of the Kerala Torts (Miscellaneous Provisions) Act and Article 113 of the Limitation Act vis-a-vis a claim for damages, RFA720/09 -: 8 :- loss to an estate and the claim for compensation under the Fatal Accidents Act. - 8.For the aforesaid reasons, the plea of the appellants that the suit was barred by limitation fails. - 9.On to the question whether the quantum of damages granted by the court below is excessive, it needs to be noted that the material evidence indicates that the deceased was 29 years of age at the time of his death. He left behind his parents and siblings. The life expectancy and the contribution that the deceased would have made to his parents and siblings, by normal standards, do not indicate that the loss caused to the estate was determined by the court below at Rs.2 lakhs. The statement of the court below that on humanitarian grounds, the compensation has to be fixed at Rs.2 lakhs because the plaint did not disclose any schedule describing the breakup of the claim into different heads, does not by RFA720/09 -: 9 :- itself call for the decree being vacated. The amount of compensation of Rs.2 lakhs awarded by the court below is just and reasonable and the quantum of damages so awarded is not excessive, taking into consideration that the deceased was the sole earning member of the family. Therefore, we do not find any ground to interfere on that count. Equally, the court below has exercised its discretion under Section 34 C.P.C. in the matter of awarding interest. We find no ground to interfere with that, either. In the result, this appeal fails and is accordingly dismissed with costs. Sd/Thottathil B.Radhakrishnan Judge **==> picture [165 x 40] intentionally omitted <==** Sha/ -true copy- P.S.to Judge.