MUHAMMED S/O MOOSA and SAFIA W/O MUHAMMED v. THE SECRETARY, KERALA STATE ELECTRICITY BOARD and THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **THURSDAY, THE 9[TH] DAY OF NOVEMBER 2023 / 18TH KARTHIKA, 1945 RFA NO. 326 OF 2003** **AGAINST THE JUDGMENT AND DECREE DTD 9.4.2003 IN OS 104/1996 ON THE FILE OF SUBORDINATE JUDGE'S COURT, OTTAPPALAM** ## **APPELLANTS/PLAINTIFFS:** - **1 MUHAMMED S/O MOOSA, PERUVANKUZHIYIL(H), EDATHANATTUKARA AMSOM AND DESOM, MANARKKAD TALUK** - **2 SAFIA W/O MUHAMMED. DO,DO** **BY ADV SRI.SANTHEEP ANKARATH** ## **RESPONDENTS/DEFENDANTS:** - **1 THE SECRETARY, KERALA STATE ELECTRICITY BOARD, KSEB OFFICE, VIDYUTH BHAVAN, PATTOM, THIRUVANANTHAPURAM.** - **2 THE ASSISTANT ENGINEER, KERALA STATE ELECTRICITY BOARD, ELECTRICAL SECTION OFFICE, ALANALLUR, MANNARKKAD, PALAKKAD DIST.** **BY ADVS.R.HARISHANKAR SRI.P.SANTHALINGAM SR. SRI.KODOTH SREEDHARAN, SC, KSEB SRI.S.SHARANSCK.S.E.BOARD** **THIS REGULAR FIRST APPEAL HAVING COME UP FOR FINAL HEARING ON 03.11.2023, THE COURT ON 09.11.2023 DELIVERED THE FOLLOWING:** 2 **R.F.A.No. 326 of 2003** ## **C.S.SUDHA, J.** ## **-----------------------------R.F.A.No. 326 of 2003** ## **-----------------------------------------** ## **Dated this the 9[th] day of November, 2023** ## **J U D G M E N T** This appeal under Order XLI Rule 1 C.P.C. has been filed by the plaintiffs against the judgment and decree dated 09/04/2003 in O.S.No.104/1996 on the file of this Subordinate Judge's court, Ottapalam. The respondents herein are the defendants in the suit. The parties in this appeal will be referred to as described in the suit. 2. On 28/09/1995, Fiyaz, the eldest son of the plaintiffs died due to electrocution. On the said day, Fiyaz climbed on to a gooseberry tree standing in the compound of a mill owned by one Parokkottu Abdu Rahiman to pluck gooseberries. While so, the branch of the tree broke and in the course of the fall, the body of the boy came in touch with the stay wire of two electric posts standing in the compound of the mill. The stay wire happened to touch the 11 KV electric line, due to which the boy was electrocuted. The stay wire had not been properly fixed to the earth and it was hanging loose. There was no insulator made of clay in the stay wire and 3 **R.F.A.No. 326 of 2003** the stay wire had not been connected to the stay rod. As the stay wire had not been properly fixed, it was hanging loose under the gooseberry tree. Thus, the stay wire happened to come in contact with the live 11 KV supply line and the mishap occurred. The negligence, rashness, and carelessness on the part of the defendants in not fixing the stay wire properly caused the death of the plaintiffs' son. The boy was studying in 8[th] standard. The unexpected death of the boy caused great shock and mental agony to the plaintiffs. The plaintiffs have lost the gratuitous services from their son towards which they are entitled to an amount of ₹20,000/-; ₹10,000/towards loss of love and affection; ₹15,000/- towards pain and mental shock and ₹10,000/- towards funeral expenses. Thus, the plaintiffs claimed an amount of ₹3,70,000/- from the defendants and their assets. 3. The defendants (KSEB) filed written statement denying the allegations contained in the plaint. On the date of the incident, the deceased climbed the gooseberry tree standing in the mill compound. While he was plucking berries, a vertical branch of the tree from which he was plucking berries broke because of which the boy along with the branch fell on the electric line and was thus electrocuted. There was no negligence or carelessness on the part of the defendants. The allegation that the stay wire 4 **R.F.A.No. 326 of 2003** on the 11 KV line was not being maintained properly and was negligently hanging loose without proper safety, is incorrect and false. The stay wire on the 11 KV line had been well maintained with necessary protection. There was no possibility or chance for electricity to pass through the stay wire before the accident. Had there been power supply in the stay wire fixed to the earth, the 11 KV line would have tripped automatically in the substation and the power supply would have been cut off. The incident happened only because the boy along with the branch of the tree fell on the electric line. As there was no negligence or carelessness on the part of the defendant or its employees, the plaintiffs are not entitled to the relief prayed for, contended the defendants. 4. On completion of the pleadings, the parties went to trial. PWs.1 to 5 were examined and Exts.A1 to A3 series were marked on the side of the plaintiffs. DW1 was examined on behalf of the defendants. No documentary evidence was produced by the defendants. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment, though held that the defendants are not in any way negligent, held that the KSEB has to pay some amount as compensation on account of the death of the plaintiffs’ son and thus granted a decree for an 5 ## **R.F.A.No. 326 of 2003** amount of ₹25,000/- with interest at the rate of 6% per annum from the date of decree till realization from the defendants. Aggrieved, the plaintiffs have come up in appeal. 5. The only point that arises for consideration is whether there is any infirmity in the findings of the trial court calling for an interference by this Court. 6. Heard both sides. 7. The fact that the child died due to electrocution is admitted. According to the plaintiffs, the incident happened due to negligence on the part of the KSEB and its officials. The stay wire had not been properly fastened to the earth and hence the stay wire came in contact with the electric wire and thus the boy had been electrocuted. Had the stay wire been properly fastened to the earth, the incident would not have happened. It was pointed out that it is not necessary for the plaintiffs to prove negligence on the part of the KSEB or its officials. Based on the principle of strict liability, the defendants can be held liable for the mishap leading to the death of the son of the plaintiffs. In support of this argument, reference was made to the dictum in **Varghese v. Kerala State Electricity Board, AIR 2013 Ker. 135** , in which it has been held that even where there is lack of evidence to prove 6 ## **R.F.A.No. 326 of 2003** negligence on the part of the KSEB, the Board is liable for damages based on the principle of strict liability. _Per contra_ it was submitted by the learned counsel for the defendant KSEB that there is no infirmity in the findings of the trial court and that the trial court on a proper appreciation of the oral and documentary evidence has found no negligence on the part of the defendants and hence declined the amount claimed as damages. 8. When the appeal was taken up for hearing, it was seen that the records of the trial court had not been forwarded to this Court. Hence, the records were called for. A communication dated 05/10/2023 has been received stating that as no appeal intimation had been received by the trial court, the depositions and the exhibits in the case have been destroyed as per order number RC.No.393/2023 dated 12/01/2023 of the District Court, Palakkad. Except the plaint and written statement, none of the trial court records are available before this Court. Both sides furnished copies of the documents and the depositions based on which, I proceed to dispose of the present appeal. 9. Admittedly there are no eyewitnesses to the incident. It is the admitted case of both sides that the boy had climbed on to a gooseberry tree and was plucking berries. In the said attempt, the branch of the tree broke 7 ## **R.F.A.No. 326 of 2003** and in the course of the fall, the boy along with the broken branch of the tree fell on the stay wire which in turn came into contact with an electric wire, resulting in the mishap. PW4, the first plaintiff when examined has deposed that the stay wire had not been broken. Crime 159/1995, Nattukal police station was registered relating to the incident in this case. PW2, the then Assistant Sub Inspector of the aforesaid station has prepared Ext.A2 scene mahazar. PW2 when cross examined deposed that the boy and the branch fell on the stay wire, because of which the stay wire was broken. The stay wire then came into contact with the electric line by which the boy was electrocuted. Therefore, as pointed out by the learned trial judge, the testimony of PW2 and PW4 are inconsistent. Going by the testimony of PW4, the stay wire had not been broken. However, going by the testimony of PW2, the stay wire was broken and so the stay wire came in contact with the electric line resulting in the boy being electrocuted. Further, PW2 has deposed that he had not seen the stay wire tied to the gooseberry tree. PW4 on the other hand deposed that when he reached the spot, he saw that the stay wire had been tied to the gooseberry tree and that it was lying loose. Therefore, as noticed by the trial court it can be seen that there is no consistent evidence relating to the manner in which the incident happened. 8 **R.F.A.No. 326 of 2003** The trial court has also referred to the deposition of PW3 and the description given in the scene mahazar. PW3 is a person conducting a shop near the scene of occurrence. According to PW3 as well as PW4, there was no clay to fix the stay wire and that the said line was lying loose near the gooseberry tree. But in Ext.A2 scene mahazar there is no such reference. The scene mahazar does not refer to the absence of clay or to the fact that the stay wire was hanging loose. The evidence let in by the plaintiffs is not consistent to establish their case. Therefore, as rightly held by the trial court, there is no satisfactory evidence to show the condition of the stay wire before or after the incident. When the witnesses arrived at the scene of occurrence, they saw the stay wire tied to the gooseberry tree. It appears that the boy had climbed on to the gooseberry tree and when the branch of the tree broke, the boy along with the branch fell on the stay wire resulting in the stay wire coming in contact with the electric wire resulting in the mishap. Therefore, no negligence or fault on the part of the KSEB is seen. 10. In **Varghese** ( _Supra_ ), the KSEB had taken up a defence that the boy electrocuted in the said case was flying a kite, which got entangled in an electric tower; that the boy climbed on to the electric tower and in his attempt to entangle the kite, he was electrocuted. The KSEB was unable to 9 ## **R.F.A.No. 326 of 2003** substantiate the said case. On the other hand, evidence came on record that the deceased boy was passing through a ridge of a paddy field; suddenly it started raining and the boy in his attempt to rush towards his house, accidentally came in contact with an electric tower and got electrocuted. In the said circumstances, it was held that on the principle of strict liability, the KSEB was responsible and liable to pay damages. The facts of the case at hand is entirely different. Nobody has a case that the stay wire was lying loose before the incident. It appears to have come loose only when the boy along with the branch fell on the stay wire because of which the stay wire came into contact with the electric wire, resulting in the incident. Therefore, the dictum referred to in **Varghese** ( _Supra_ ) is not applicable to the facts of the present case. 11. The trial court though held that the KSEB was not negligent or careless in maintaining the line, awarded an amount of ₹25,000/- along with interest at the rate of 6% per annum from the date of decree till realisation as compensation. According to the trial court though the defendants are not responsible for the incident they have got some liability to give relief to the plaintiffs. The KSEB has discretion to pay some interim relief at the time of the death of the boy. However, no amount has been paid to meet even the 10 ## **R.F.A.No. 326 of 2003** funeral or other urgent expenses. Hence the trial court was of the view that in the peculiar circumstances of the case some compensation has to be given to the plaintiffs for the death of their son and held that amount of ₹25,000/would not be excessive. The defendants/KSEB have not challenged the decree granted. I find no reason(s) to interfere with the impugned judgement. In the result, the appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. Sd/- **C.S.SUDHA** **JUDGE** ami/