Munnar Panchayat v. P. Karuppaiha and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE P.BHAVADASAN** ## **THURSDAY, THE 4TH AUGUST 2011 / 13TH SRAVANA 1933** ## **AS.No. 370 of 1998()** **------------------OS.296/1992 of SUB COURT, THODUPUZHA** **..................** **APPELLANT / 1ST DEFENDANT :** **----------------------------------------------** **MUNNAR PANCHAYAT, REPRESENTED BY THE EXECUTIVE OFFICER, MUNNAR PANCHAYAT, MUNNAR, K.D.H. VILLAGE, DEVICOLAM TALUK.** **BY** ## **RESPONDENTS / PLAINTIFFS AND 2ND AND 3RD DEFENDANTS :** **--------------------------------------------------------------------------------------------** **1. P. KARUPPAIHA, S/O. PARAMASIVAN, PATHUMURI LAYAM, NEAR ENGINEERING DEPARTMENT OF TATA TEA COMPANY, MUNNAR, K.D.H. VILLAGE, DEVICOLAM TALUK.** **2. SARASWATHY K.,** - **INSTANT TEA FACTORY, TATA TEA COMPANY, NALLATHANNI, MUNNAR P.O., K.D.H. VILLAGE, DEVICOLAM TALUK.** **3. SATHI K., TOWN DEPARTMENT, MUNNAR WORKSHOP, K.D.H. VILLAGE, DEVICOLAM TALUK.** **4. CHANDRAN K., PACKETTING CENTRE, PALLAVI ESTATE, MUNNAR P.O., K.D.H. VILLAGE, DEVICOLAM TALUK.** **5. SEKHARAN K., TOWN DEPARTMENT, MUNNAR, K.D.H. VILLAGE, DEVICOLAM TALUK.** **6. TATA TEA LIMITED, SEVEN MALA ESTATE,** **TATA TEA LTD., MUNNAR, K.D.H. VILLAGE, DEVICOLAM TALUK.** **...2/-** **AS.No. 370 of 1998() -2-** **7. KERALA STATE ELECTRICIY BOARD, REPRESENTED BY THE SECRETARY, BOARD SECRETARIAT, THIRUVANANTHAPURAM.** **R1 TO R5 BY ADV. SRI.K.GOPALAKRISHNA KURUP, SENIOR ADVOCATE R6 BY ADVS. SRI.JOSEPH KODIANTHARA, SENIOR ADVOCATE SRI.JOSEPH MARKOSE, SENIOR ADVOCATE R7 BY ADVS. SRI.S.RAMESH BABU, SC. KSEB SRI.P.SANTHALINGAM, SC, KSEB** **THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 04/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** **AS.No. 370 of 1998() -2-** ## **JUDGMENT** **Finding that fresh vakalath was not filed for appellant, notice was issued to the appellant panchayat. Inspite of that, there is no representation for the panchayat when the matter was taken up for consideration. Accordingly, the appeal is dismissed for default.** **04/08/2011 SD/- P. BHAVADASAN, JUDGE** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **P.N. RAVINDRAN ==================== A.S. NO. 370 OF 1998 ==================== Dated this the 12[th] day of December 2012** ## **JUDGMENT** The appellant is the first defendant in O.S.No.296 of 1992 on the file of the Court of the Subordinate Judge of Thodupuzha. Respondents 1 to 5 are the plaintiffs and respondents 6 and 7 are defendants 2 and 3 respectively therein. After the appeal was filed, the first respondent passed away. Thereupon, respondents 2 to 5, his children, were recorded as his legal heirs. The suit instituted by respondents 1 to 5 for realization of the sum of Rs.75,000/- as damages from the defendants jointly and severally was decreed and the plaintiffs were allowed to realise the sum of Rs. 75,000/- from the first defendant with interest at 6% per annum from the date of suit till realisation. The first defendant has aggrieved thereby filed this appeal. The brief facts of the case are as follows:- 2. Late Anthoni Ammal, wife of the first plaintiff and mother of plaintiffs 2 to 5 was a permanent labourer, employed in Tata Tea Company. She was electrocuted at about 9.30 PM on 4-6-1991. The instant suit was filed on the allegation that the incident took place as a result of the gross negligence, rashness and omissions on the part of 2 A.S.No.370 of 1998 the first defendant Panchayat which was in charge of the street lighting and upkeep of overhead lines within its local limits. It was alleged that the defendants did not properly maintain the supply system thereby causing the wire to snap, that the electric post through which the wire was drawn was very old and notwithstanding the directions issued by the Kerala State Electricity Board to replace the damaged post more than two years back, the first defendant Panchayat did not take steps to replace it. 3. The first defendant entered appearance and filed a written statement wherein the principal contention raised was that the incident was an Act of God. The first defendant however admitted the fact that the wife of the first plaintiff and mother of plaintiffs 2 to 5 was electrocuted on 4-6-1991. The relevant averments in paragraphs 3, 4 and 5 of the written statement dated 9-3-1995 filed on behalf of the first defendant are extracted below. “3. Para '1' is admitted to the extent that Anthoniammal was electrocuted. Plaintiffs are put to strict proof of the cause of the accident. The K.S.E. Board is not fully aware of the relationship between the parties. 4. The statements in paras 3 and 8 are not fully true. The true state of affairs is as stated below. 5. The place of occurrence of the accident is well within the area of the Tata Tea Ltd; the 2[nd] defendant here-in. M/s. Tata Tea Ltd; is the authorised license of the K.S.E.Board for the supply of electrical energy within the Estate area. The 3 A.S.No.370 of 1998 K.S.E. Board is giving 11 KV.supply to Tata Tea company only up to the switching station at Pallivasal.” 4. The second defendant entered appearance and filed a written statement denying and disputing liability. They contended that street lights and L.T. lines along the main roads and streets in Munnar Grama Panchayat including the road from Munnar to Sevenmallay Estate are being maintained by the first defendant Panchayat as part of its statutory obligations under the Kerala Panchayat Raj Act and therefore, no negligence can be attributed to the second defendant. Paragraph 4 of the written statement dated 6-1-1994 filed on behalf of the second defendant which is relevant for the purpose of this case, is extracted below. “The allegations in paragraphs 2 and 3 are denied and the Plaintiffs are put to strict proof of such allegations. It is submitted that the street lights and the electric lines along the main roads and streets including the road from Munnar to Sevenmallay Estate are being maintained by the 1[st] defendant Munnar Panchayat as part of its statutory obligations under the Kerala Panchayats Act. As such no negligence can be attributed to the 2[nd] Defendant in regard to the maintenance of the said electric line and no liability in respect of the alleged accident can be fastened on the 2[nd] Defendant. The 1[st] Defendant Panchayat maintains the street lights and L.T. Lines along the main roads and these lines are connected to the main street light L.T. Line. Sectionalising fuse cut-outs are installed at Branch-off points from where the 1[st] Defendant Panchayat's L.T. Lines start. These street lights are maintained by the 1[st] Defendant which has on its rolls an Electrical 4 A.S.No.370 of 1998 Supervisor and Electrician who in turn have the necessary authorisation to attend to the maintenance of these street light lines and posts. The specific allegation in paragraph 3 of the Plaint that the 2[nd] Defendant has committed gross negligence and that it was not diligent in maintaining the supply system is therefore false and is hereby denied. In the light of the above submissions it can be seen that the 2[nd] Defendant was not in any way responsible for the alleged accident. ” 5. The Kerala State Electricity Board, the third defendant in the suit filed a written statement dated 23-12-1993 wherein in paragraph 5 it was contended that it is the responsibility of the Munnar Grama Panchayat to maintain the street lights within the limits of the Panchayat and that the Board has nothing to do with the supply of electrical energy in Munnar Grama Panchayat. It was contended that the plaintiff has no cause of action against the Board and therefore they are not entitled to any relief as against the Board. 6. In the court below, the first plaintiff was examined as PW-1, the Special Grade Secretary of first defendant Panchayath was examined as DW-1, the Electrical Overseer of the first defendant Panchayat was examined as DW-2 and Exts.B1 to B5(d) were produced and marked. The trial court on an anaysis of the pleadings and the evidence oral and documentary avaliable in the case held that the death of the deceased took place on account of the negligence of the first defendant and that the plaintiffs are entitled to recive the sum 5 A.S.No.370 of 1998 of Rs.75,000/- as comepsnation. The suit was accordingly decreed, allowing the plaintiffs to realise the sum of Rs.75,000/- from the first defendant with interest and costs. Hence this appeal. 7. I heard Sri.Joyce George, learned counsel appearing for the appellant, Sri.K.Gopalakrishna Kurup, learned Senior Advocate appearing for respondents 1 to 5, Sri.Jospeh Kodianthara, learned Senior Advocate appearing for the sixth respondent and Sri.S.Sharan, learned counsel appearing for the Kerala State Electricity Board. I have also gone through the pleadings and the materials on record. The fact that the wife of the first plaintiff and mother of plaintiffs 2 to 5 was electrocuted when the electrical wire passing through the road in front of her residence snapped and she died due to electric shock, is not in dispute. It is also not in dispute that the first defendant alone was responsible for the upkeep and maintenance of electricity lines passing through Munnar Grama Panchayath. The solitary defence put forward by the first defendant was that the incident was an Act of God. It is contended that all over Kerala there was unprecedented rains during the monsoon of 1991 and due to the natural calamity many trees were uprooted and loss to buildings and other improvements were caused. Apart from vageuly denying the averment in paragraph 3 of the plaint that the first defendant was negligent in the upkeep and maintenance of the electricy lines drawn through Munnar Grama Panchayath, the 6 A.S.No.370 of 1998 first defendant had no specific case that it was periodically examining the electricity posts and the lines. The trial court also held that the first defendant has admitted the fact that the wife of the first plaintiff and mother of plaintiffs 2 to 5 was electrocuted when she came in contact with the live wire lying on the road, that the first defendant has not given any specific reason as regards the cause of the accident, that the first defendant has not explained how the live wire came off and how the cut off system failed, that it was the duty of the first defendant to exercise necessary care and that in the absence of any explanation from the side of the first defendant, it has to be held that the accident occurred due to the negligence of the first defendant. 8. In **Kerala State Electricity Board** v. **Kamalakshy Amma** (1986 KLT 1124) a Division Bench of this Court considered a similar case and held that when the plaintiffs have succeed in proving that the deceased was electrocuted from a live wire hanging from an electric post, there is a presumption that there was lack of proper care on the part of those in management and control of the power supply system, that the plaintiffs have discharged their burden to establish the fact that the deceased was electrocuted from a live wire which hung down from an electric post on the roadside, that the facts established speak for itself and it was for the Kerala State Electricity Bord which was supplying electricy to rebut the presumption with positive evidence to 7 A.S.No.370 of 1998 show that it has been maintaining the power supply system at the particular place under proper care and repair. 9. DW-2, the Overseer of Munnar Grama Panchayat who was in charge of the street lights system had even in his chief examination admitted that the cut off system had failed. He has admitted during cross examination that there is no record to show the date on which the electricity post was installed. He has also admitted during cross examination to a pointed question as to whether the Electrical Inspector had directed the damaged post to be removed, that 2 to 3 years prior to the accident, instructions had been given to carry out standardization. In the light of the evidence on record, I am in agreement with the trial court that the first defendant has failed to rebut the presumption that there was lack of proper care on the part of the first defendant, by adducing positive evidence to show that it had been maintaining the power supply system under proper care. I accordingly uphold the finding of the trial court that the incident occurred as a result of the negligence of the first defendant. 10. Though the learned counsel appearing for the appellant contended that the quantum of compensation awarded by the trial court is on the higher side, having regard to the fact that the husband would have been entitled to seek compensation for loss of consortium and the children who are aged between 21-29 would also have been A.S.No.370 of 1998 8 entitled to claim compensation for loss of love and affection, the sum of Rs.75,000/- awarded as compensation for the wrongful death of a woman aged 45 years cannot be said to be exorbitant. The trial court has also taken note of the fact that the deceased was employed in Tata Tea Limited. The second defendant had admitted that the deceased was earning Rs.25/- per day as wages. The trial court had also held that considering the age of the deceased it would be just and reasonable to adopt a multiplier of 12 and calculated on that basis, the estate of the deceased will be entitled to receive the sum of Rs.90,000/- as compensation. It was on that basis that the plaintiffs were given 5/6 share of the said sum of Rs.90,000/- as damages. On an over all view of the evidence oral and documenatary available in the case, it cannot be said that the quantum of compensation awarded by the trial court is exorbitant. For the reasons stated above, I hold that there is no merit in the instant appeal. The appeal fails and is accordingly dismissed. Having regard to the fact that the appellant is a public authority, I refrain from awarding costs. Sd/- **P.N.RAVINDRAN, JUDGE.** Rkc // true copy// PA to Judge