Leela and ShiJi v. The Chairman, Kerala State Electricity Board and The Assistant Executive Engineer, Kerala State Electricity Board

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE B.P.RAY** **THURSDAY, THE 11TH DAY OF JULY 2013/20TH ASHADHA, 1935** ## **WP(C).No. 27569 of 2008 (F)** **----------------------------** ## **PETITIONER(S):** **--------------------------** **1. LEELA, W/O SWAMINATHAN, KUZHAKKODU LAKSHAM VEEDU, MINI ESTATE, MEPPUKKADA MALAYINKEEZHU P.O., THIRUVANANTHAPURAM** **2. SHIJI, D/O. SWAMINATHAN, KUZHAKKODU LAKSHAM VEEDU, MINI ESTATE, MEPPUKKADA MALAYINKEEZHU P.O., THIRUVANANTHAPURAM** **BY ADVS.SRI.R.T.PRADEEP SRI.V.VIJULAL** ## **RESPONDENT(S):** - **----------------------------** **1. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD, PATTOM, THIRUVANANTHAPURAM.** **2. THE ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, MALAYINKEEZHU P.O.** **R1,2 BY ADV. SRI.P.P.THAJUDEEN, SC, K.S.E.B R1,R2 BY ADV. SMT.NAZEEBA.O.H., KERALA STATE ELECTRICITY BOARD** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11-07-2013 ALONG WITH WPC NO. 27829/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 27569 of 2008 (F)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1: COPY OF APPLICATION DATED 12.11.2007 IN O.P.814/2007 BEFORE PERMANENT LOK ADALAT. EXT.P2: COPY OF WRITTEN STATEMENT DATED NIL.1.2008 BY ASST.EXECUTIVE ENGINEER,K.S.E.B. BALAYINKEEZH. EXT.P3: COPY OF COMMON AWARD DATED 05.06.2008 IN O.P.814/2007 BY PERMANENT ADALATH.** **RESPONDENT'S EXHIBITS: NIL** **/TRUE COPY/ P.A TO JUDGE** **LSN** ## **B.P.RAY, J.** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No.27569 & 27829 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** _**Dated this the 11[th] day of July, 2013**_ ## **JUDGMENT** Heard learned counsel for the parties and perused the materials available on record. 2. Petitioners in these two writ petitions are the legal heirs of the deceased who died due to electrocution while attempting to pluck guava fruit from the terrace of a building where the deceased being engaged on masonry work. An overhead low tension electric line touching the branches of guava tree was the cause of electrocution. According to learned counsel for the petitioners, there is gross negligence and dereliction of duty on the part of KSEB. The permanent Lok Adalath rejected the claim for compensation on the ground that the deceased volunteered the injury. Being aggrieved by Ext.P3 award passed by the permanent Lok Adalath, petitioner approached this court with the following prayers: _1. to issue a certiorari or any other appropriate writ, order or direction calling upon the records pertaining to Ext.P3 and quash the same._ _2. to issue a writ of mandamus or any other appropriate writ, order or direction._ _3. such other reliefs which this honourable Court deem fit and proper in the interests of justice._ W.P.(C)No.27569 & 27829 OF 2008 :: 2 :: 3. I have gone through Ext.P3 award dated 5[th] June 2008 passed by the Permanent Lok Adalath. The claim petition was dismissed holding as follows: _“Appreciation of facts of these case lead to irresistible conclusion that the sheer negligence of the deceased as well as the injured is the sole reason for this unfortunate incident. Since it is a voluntary action on the part of the victims, they are not entitled to get any compensation from the respondents and the respondents cannot be held liable to pay compensation to the petitioners. Since the petitioners are found not entitled to get any compensation, the question of quantum of compensation does not arise for consideration. Therefore the three Ops are liable to be dismissed but without any order as to cost.”_ 4. Learned Standing Counsel appearing for the Board submits that the respondents have taken safety measures as contemplated under the rules and periodical touchings were cleared by the concerned Electrical Sections. No one has lodged any complaint before the concerned Section in the subject issue till the date. Therefore, in view of the decision taken by the Permanent Lok Adalath these writ petitions are liable to be dismissed. 5. Learned counsel for the petitioner has drawn my attention to a Division Bench decision of this Court reported in _2010 (4) KLT 914 (Kunjan Raghavan v. Kerala State Electricity Board)_ . The relevant portion of the judgment reads as follows: W.P.(C)No.27569 & 27829 OF 2008 :: 3 :: _“11. Ext.A7 scene mahazar, the first information statement given by PW3 and the undisputed fact that the deceased and his friends were playing in the flooded paddy field, coupled with the existence of a live electric wire in the area, when taken together show that the version of PW3 regarding the incident is the most probable one. His version that the victim was stuck on to the live electric line for about four minutes may be a little bit of exaggeration. He is an youngster of around 20 years of age. He belongs to the rural set up. He, PW4 and the deceased were playing in the water at the relevant time. It is the version of an eye witness about a friend dying in the water. If his version that Shibu had come into contact with the live wire is accepted, it would be a case where due to the contact with the live electric wire, Shibu suffered an electric shock and on account of that, he was thrown into the water. There is not even a sustainable suggestion by the defendants that Shibu did not know to swim. It could have been a case where the muscular instability of the victim, resulting out of the electric shock was such that he could not have saved himself from drowning. This is the inescapable conclusion, regard being had to the common course of natural events and human conduct. We proceed to elucidate this further._ _12. In terms of Section 114 of the Evidence Act, the court is empowered to presume existence of certain facts. The court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business in their relation to the facts of the particular case. The term “common course”, as noted in State of Rejasthan v. Bhera, 1997 Crl.L.J.2347, qualifies not only natural events but is also qualifies human conduct, and the common course of natural events and human conduct has its origin in the habit of man or other being irrespective of the fact whether such habit is on account of the operation of law of nature or on account of the operation of law made by man. We are in agreement with that view. Common course of human conduct on account of the operation of law of nature includes human conduct attributable to the ability to think and act as_ W.P.(C)No.27569 & 27829 OF 2008 :: 4 :: _an ordinary human being. Reflex actions and other attributes attendant to normal functioning of the human body and mind are part of the common course of human conduct. This includes the indomitable urge to self preservation._ _13. The importance and validity of the duty and right to selfpreservation is well reflected and noticed with emphasis in Surjit Singh v. State of Punjab (1996) 2 SCC 336 profitably quoting Verses 17, 18, 20 and 22 in Chapter 16 of Garuda Purana. It is worthwhile in this case to quote those very Verses:_ _17. Vinaa dehena kasyaapi canpurushaartho na vidyate Tasmaaddeham dhanam rakshetpunyakarmaani saadhayet_ _18. Rakshayetsarvadaatmaanamaatmaa sarvasya bhaajanam Rakshane Yatnamaatishthejje vanbhaadraani pashyati_ _20. Sharirarakshanopaayaah kriyante sarvadaa budhaih Neechanti cha punastyaagamapi kushthaadiroginah_ _22. Aatmaiva yadi naatmaanamahitebhyo nivaarayet Konsyo hitakarastasmaadaatmaanam taarayishyati_ _The English version of the above, as noted by the Apex Court, is as follows:_ _17. Without the body how can one obtain the objects of human life? Therefore protecting the body which is the wealth, one should perform the deeds of merit._ _18. One should protect his body which is responsible for everything. He who protects himself by all efforts, will see many auspicious occasions in life._ _20. The wise always undertake the protective measures for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body._ _22. If one does not prevent what is unpleasant to himself, who else will do it? Therefore one should do what is good to himself._ _(emphasis supplied)_ W.P.(C)No.27569 & 27829 OF 2008 :: 5 :: _14. In the common course of human conduct, it has necessarily to be presumed that one facing a situation which may result in his death would resort to everything possible under his command to escape from the clutches of death. This is an inescapable inference and a legitimate presumption based on common course of human conduct and also on the basis of common course of natural events. This presumption is available as regards the conduct expected of Shibu. Had he fallen into water without suffering an electric shock resulting in his being immobilized, the remains of that robust young boy of 20 years would not have been found without any evidence of struggle in the water. The postmortem report clearly shows that there was no attempt on the part of the deceased to escape from the water. There is no indication that the victim had struggled in the water. What does it show? Either it was a dead body that dropped into the water or that what fell in the water was an incapacitated, may be a live, body, which could not, but drown and die. Electrical injuries, indisputably, can lead to immediate unconscious stage. Dr.Reddy speaks of this in his book referred to above. A hale and healthy youngster, Shibu, playing in the water would never accept for himself a situation of death in the water. The urge to live and be alive would have only prompted him to escape from water. Self-preservation of one’s life would be the only urge that would surge if one is conscious while drowning. Every available reflexes will motive action to escape death. They are part of the thought process. This is why self-preservation is treated as fundamental in nature, sacred, precious, inviolable and the necessary concomitant of the right to life. This aspect is indefeasible part of human conduct. On the evidence relating to the body of the victim, the inescapable conclusion is that Shibu suffered electric shock and was resultantly thrown into the water from which he could not save himself, he having been either dead, unconscious or wholly immobilized excluding him from even attempting to get out of the water._ _15. On the basis of the evidence on record, we find that the incident speaks for itself. Res ipsa loquitur. Even assuming that Shibu died of drowning, his coming into contact with the_ W.P.(C)No.27569 & 27829 OF 2008 :: 6 :: _live electric wire has been proved by the acceptable versions of Pws 3 and 4. Then, the conclusion is inescapable that Shibu drowning in water was a consequence of the chain of events arising out of the contact with the live wire. Such continuity of the chain of causation did not snap when Shibut fell off from the electric wire._ _16. Now the question is whether the deceased could be attributed with any negligence. Learned counsel for the Board points out that PWs 3 and 4 and Shibut were playing in the water 50 meters from the electric post. That does not improve the matter. The question is whether the electric line was maintained with statutory clearance as required in terms of the relevant laws. The Board is the authority to have the best evidence. There is no evidence in this regard by the Board. This is a case of no evidence in defence. Not only that, the Board is a licensee dealing with electrical energy, which is hazardous. Board is the sole licensee having monopoly operation with the support of statutory provisions. Statutory rights are coupled with statutory duties. The duties responsibilities of licensees stand to charge the Board and its officers of such liabilities as would fall within the principle of strict liability as laid down by the Apex Court in HSEB v. Ram Nath (2004) 5 SCC 793 and M.P.Electricity Board v. Shail Kumar ((2002) 2 SCCC 162). In the case in hand, there is no question of holding that there is any situation where the deceased had contributed to the accident. In this view of the matter, the finding of the trial court that Shibu was negligent and that resulted in his death is unsustainable to deprive his estate, heirs and representatives of damages on account of his death. That finding is therefore reversed and it is held that Shibu’s death is attributable only to the negligence of the Board and its officials. The Board is also vicariously liable for the tortuous liabilities so incurred by its servants.”_ 6. Keeping in view the authoritative pronouncement of the Division Bench of this Court, I am of the view that there is gross negligence on the part of Board officials in maintaining clear distance of electric line from W.P.(C)No.27569 & 27829 OF 2008 :: 7 :: being linkered by the branches of Guava tree. I think it proper to examine the evidence on record to fix the quantum. Learned counsel for the petitioner submitted that there is no evidence on record except the exhibited documents. Oral evidence was not laid to arrive at a conclusion with regard to the quantum of compensation. 7. Considering the entire facts and circumstances of the case and in view of the authoritative pronouncement of this Court, I have no hesitation to set aside the impugned award and remit the matter back to the Permanent Lok Adalath to fix the quantum of compensation and I do so. Parties are directed to adduce further evidence, if any, to enable the Permanent Lok Adalath to assess the compensation. Permanent Lok Adalath shall reconsider the matter in the light of the judgment of this Court quoted above and pass a fresh award within a period of three months from the date of receipt of a copy of this judgment after giving notice to all the parties concerned. Writ petitions are disposed of. ## **B.P.RAY, JUDGE** _jes_