Mathew Varghese v. Kerala State Electricity Board (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** **FRIDAY, THE 27TH DAY OF JUNE 2014/6TH ASHADHA, 1936`** **RFA.No. 257 of 2012 (H)** **---------------------------------[O.S.NO.405/2000 OF THE PRINCIPAL SUB COURT, KOTTAYAM]** **...........** ## **APPELLANT/PLAINTIFF:** ## **-----------------------------------** - ***1. MATHEW VARGHESE, S/O. C.M. VARGHESE, *(DIED). AGED 27, OF CHIRAYIL HOUSE, VAKATHANAM VILLAGE, PUTHENCHANDA, P.O. CHANGANACHERRY TALUK, NOW RESIDING AT CHIRAYIL HOUSE, MADAPPALLY VILLAGE, MADAPPALLY KARA OF CHANGANACHERRY TALUK, KOTTAYAM DISTRICT.** ## ***ADDL. APPELLANTS 2 TO 5 IMPLEADED:** **2. SIJU MATHEW, (W/O. MATHEW), CHIRAYIL HOUSE, VAGATHANAM VILLAGE, PUTHENCHANDA (P.O), CHANGANASSERRY TALUK, NOW RESIDING AT CHIRAYIL HOUSE, MADAPPALLY VILLAGE, MADAPPALLY KARA, CHANGANASSERY TALUK, KOTTAYAM DISTRICT.** **3. ALIAMMA VARGHESE, -DO- -DO-.** **4. NIKHIL VARGHESE (MINOR), -DO-DO-.** **5. ASHIT PHILIP MATHEW (MINOR), -DO-DO-.** - ***A2 TO A5, BEING THE LEGAL REPRESENTATIVES OF DECEASED SOLE APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS IN THE APPEAL VIDE ORDER DTD. 22/02/12 IN I.A. NO.2255/09.** **# 2ND APPELLANT (SIJU MATHEW) IS APPOINTED AS GUARDIAN AND NEXT FRIEND OF MINORS (A4 & A5) VIDE ORDER DTD. 22/02/12 IN I.A. NO.2256/09.** **ADDL.A2 & A3 BY ADV. SRI.B.KRISHNAMANI.** **Prv.** ## **R.F.A. NO.257/2012- H:** ## **RESPONDENTS/ DEFENDANTS:** **----------------------------------------------** **1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM.** **2. ASST. EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL MAJOR SECTION, CHANGANACHERY.** **R1 & R2 BY SRI.P.SANTHALINGAM, SENIOR ADVOCATE, ADV. S. SARAN. SR. GOVT. PLEADER SRI. NOBLE MATHEW.** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 10-03-2014, THE COURT ON 27-06-2014 DELIVERED THE FOLLOWING:** **Prv.** ## **R.F.A. NO.257/2012- H:** ## **APPENDIX** ## **APPELLANTS' ANNEXURE:** **ANNEXURE - I: TRUE COPY OF THE SALARY CERTIFICATE DTD. 01/02/2006.** ## **RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY//** **P.S. TO JUDGE.** **Prv.** ## THOTTATHIL B.RADHAKRISHNAN 'CR' & ## A.MUHAMED MUSTAQUE, JJ. ---------------------------------------------------------- R.F.A.No.257 of 2012 ---------------------------------------------------------Dated this the 27[th] day of June, 2014 ## JUDGMENT ## Muhamed Mustaque, J. The original appellant filed a suit claiming compensation against the Kerala State Electricity Board (hereinafter referred to as the “Board”), on account of injuries sustained by him. The suit was dismissed for want of proof of negligence against the Board. 2. The original appellant died and his legal heirs are now impleaded as additional appellants 2 to 5. 3. We have heard the learned counsel for the appellant and the learned standing counsel for the Board. 4. The alleged incident occurred on 23.4.1999, while the original appellant/plaintiff was riding a Suzuki Motor Cycle along M.C. road from Kottayam to Changanassery. According to the plaintiff, a stay wire of the nearby electric pole, removed from the pole, was lying loose on the eastern side of the road and his left foot got entangled in the loose wire and, on account of the impact of the accident, it severed at midtarsal joint. The Board denied R.F.A.No.257 of 2012 2 the cause of the accident. The plaintiff relied on Ext.A17 F.I.Statement, Ext.A18 Mahazar, Exts.A25 and A25(a) photographs and negative and Exts.A14(a) and A15 reports in the news papers to prove the cause of the accident. The court below while dismissing the suit relied on Ext.A19 refer report in Crime No.300 of 1999 of the Changanassery Police Station. In the report, it is stated that the plaintiff was riding his motor cycle and while giving side to the KSRTC Bus, the motor cycle moved to the left side and as a result of such diversion, it ran over the heap of rubbles which was lying on the side of the road for the purpose of tarring. The court also relied on Ext.B1. Ext.B1 is an application for loan filed by the plaintiff's father, who was employed under the Board, wherein he has stated that his son had sustained injuries due to road accident. 5. It seems that the court below had overlooked various circumstances and sequence of events that would establish preponderance of probability of the case pleaded by the plaintiff. The accident occurred on 23.4.1999 at 9.15 p.m. The newspaper reports, which came on next day reported that while the plaintiff was giving side to the KSRTC Bus, his bike hit on the R.F.A.No.257 of 2012 3 heap of rubbles and thereafter, his foot entangled in the stay wire and as a result, his foot was chopped off. It was also reported that the local people had taken the plaintiff to the hospital. The news paper reports are not admissible and are considered as hearsay evidence. However, there are well known exception to hearsay evidence if a statement is contemporaneously made, which is known as res gestae, as embodied under Section 6 of the Evidence Act, 1872 (hereinafter referred to as the “Act”). Section 6 of the Act provides that the facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places. The Hon'ble Supreme Court in Sukhar v. State of Uttar Pradesh [(1999) 9 SCC 507] held as follows: “Section 6 of the Evidence Act is an exception to the general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow R.F.A.No.257 of 2012 4 ## fabrication”. ## 6. In Gentela Vijayavardhan Rao v. State of A.P.[ (1996) ## 6 SCC 241] held as follows: “The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue 'as to form part of the same transaction' that it becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae.” 7. Though the aforesaid may not apply in all circumstances, it would definitely gain importance in cases R.F.A.No.257 of 2012 5 where the probability of a case is being considered in peculiar circumstances, particularly where, at the first instance, the victim of any act or omission is unable to make an attribute in the form of a complaint soon after the act or omission which ultimately gives rise to a particular claim or litigation. This case is one of such nature. It is to be noted that while giving the F.I. Statement, the plaintiff was not aware, what actually hit on his left foot, which is evident from F.I. Statement given by him on 1.5.1999. Therefore, it cannot be said that the plaintiff is making a concocted story for the purpose of claiming compensation. In civil cases a contemporaneous publication of news reporting about the cause of the accident, cannot be brushed aside stating that it is only hearsay evidence especially when there is no challenge to the contents of the report. The newspaper report that immediately reported about the accident has to be considered along with other evidence. Ext.A18 Mahazar clearly shows that a cut portion of the stay wire was lying loose under the heap of the rubbles. Ext.A25 photograph produced by the plaintiff along with the negative would show that the stay wire was lying loose under the rubbles. It has to be remembered that R.F.A.No.257 of 2012 6 the accident occurred at 9.15 p.m. DW1 is an Assistant Engineer, who admitted that a few days before the accident, the electric post had broken down due to hit by a car and the stay wire was changed into a strut. The evidence adduced by the plaintiff has to be examined in the light of admission of DW1, as to the replacement of stay wire by the strut. It is to be noted that the Board filed a statement denying the allegation that the post situated near the accident spot requires no stay wire at all. The Board took up the plea that the accident occurred due to high speed of the plaintiff's motor cycle on the metal and tarred portion of the MC road. We are sure, by examining the chain of circumstances, as revealed through the evidence, would clearly establish the case of the plaintiff that his left foot was entangled in the loose stay wire. We do not see any merit or substance for placing reliance on Ext.B1 by the court below. According to us, while applying for loan by the father of the plaintiff, he is not expected to highlight the cause of the accident. The reason, he entreated the Board for obtaining loan, undoubtedly, is on account of the road accident involving his son. The approach of the court appears to be that in the absence of direct evidence, R.F.A.No.257 of 2012 7 relating to the cause of the accident, other evidence does not have any significance. The court below failed to appreciate the evidence adduced and misdirected itself by finding that in the absence of direct evidence such as eye witnesses, the case put forward by the petitioner cannot be accepted. Therefore, we hold that the accident occurred when the left foot of the plaintiff got entangled in the stay wire. 8. The next question is, as to whether the Board is negligent or not. It is not necessary, for every careless act, the defendant may be held responsible in law. The defendant would be liable for negligence, if he is under a legal duty to take care. What does the duty to take care mean? The duty to take care arises towards individuals against whom it may be reasonably anticipated that they will be affected by the act of defendant's omission or commission. The road margins where the heap of rubbles and the stay wire were lying, are not the places for motor cycle riding persons to pass through. But, certainly, on account of occasions, as the one that has come out in the evidence, like the plaintiff giving side to the KSRTC Bus coming from the opposite side, a rider of such vehicle may have to R.F.A.No.257 of 2012 8 occupy the road margin. Road margins are not intended for storing heap of rubbles or for leaving any articles or materials. We have no doubt that the persons, who are responsible for storing heap of rubbles along the side of the road margins, are also responsible for such accidents. If the Board had erected any stay wire or strut on the road margin, they also have the duty to remove the stay wire or strut, if any, lying unwanted. The duty to remove such unwanted strut or stay wire is, in fact, the duty to take care against injury that may result on account of unwanted stay wire lying on the road margin. It is to be noted that the Board filed a statement denying the allegation that the post situated near the accident spot requires no stay wire at all. The Board took up the plea that the accident occurred due to high speed of the plaintiff's motor cycle on the metal and tarred portion of the MC road. Thus, we hold that the Board is negligent in allowing the unwanted stay wire to remain on the road margin. 9. The court below assessed `1,16,000/- towards compensation for medical expenses. However, the court below did not advert to the other claims made by the plaintiff. The R.F.A.No.257 of 2012 9 plaintiff claimed a total compensation of `8 lakhs. The plaintiff sued as an indigent before the court below and in the appeal. The plaintiff claimed that he had 40% permanent disability relying on Ext.A10, issued by the Specialists Hospital, Ernakulam. The plaintiff was working as a Sales Executive in the Marikar (Motors) Limited and his monthly income was around `3,000/- besides incentives. He has also produced certificate to prove his income. We are of the view that the plaintiff being a sales executive, will be entitled for incentives. We, therefore, estimate his monthly income at `4,000/-. PW6, who is an accountant of the organization where the plaintiff was employed, also testified the plaintiff's income certificate. The plaintiff also claimed loss of earning for the period 24.04.1999 to 04.03.2000 by calculating `39,224/-. Considering the nature of injuries suffered by the plaintiff that we have no doubt that he is entitled for the above amount. This is also reflected from Ext.P29 produced before this Court. Thus, we hold that the plaintiff is entitled for `39,224/- rounded to `40,000/-, as loss of earning. The plaintiff had to travel many places for treatment and he was treated at Ernakulam and at Manipal. We assess a sum of R.F.A.No.257 of 2012 10 `15,000/- towards travelling expenses. While assessing travelling expenses, we have also taken into account that the plaintiff's need to have the support in such travel to the places like Ernakulam and Manipal. We find guidelines for the assessment of loss under the Motor Vehicles Act can be followed for assessing compensation for pain and suffering and we, therefore, assess `5,000/- as compensation towards pain and suffering. We do not want to interfere with the calculation of the expenses incurred for treatment of the plaintiff, made by the court below. Now, the next question is regarding the loss of earning capacity. The plaintiff was aged 27 years at the time of the accident. Therefore, multiplier to be adopted is 17 based on Sarla Verma (Smt) and others v. Delhi Tansport Corporation and another [2009 (6) SCC 121]. The loss of earning capacity assessed by the Doctor is 40%. We do not see any reason to reject the assessment made by the Doctor. We assess the loss of earning capacity as follows: `4000x12x17x40/100 = `3,26,400/- Accordingly, the appellants are entitled for the total compensation of `5,02,400/- as follows: R.F.A.No.257 of 2012 11 Loss of earning capacity : `3,26,400/Medical expenses : `1,16,000/Loss of earning : ` 40,000/Travelling expenses : ` 15,000/Loss on pain and suffering : ` 5,000/-------------------Total : `5,02,400/- In the result, the appellants are entitled to recover the above amount together with 6% interest from the date of suit till realisation from the defendant-Board. The appellants are also entitled to proportionate costs throughout. Sd/- ## THOTTATHIL B.RADHAKRISHNAN, JUDGE Sd/A.MUHAMED MUSTAQUE, JUDGE ln /True copy/ P.A. to Judge