Poomangalorakath Kunhaisaha v. Kerala State Electricity Board

## **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. 11 of 2005** **----------------------OS NO.83/2000 OF SUB COURT, PAYYANNUR DATED 20-10-2002** **....** ## **APPELLANT/PLAINTIFF::** **--------------------------------------** **POOMANGALORAKATH KUNHAISHA, D/O. ASHIYA, RESIDING AT KUNDERI, THIRUMENI AMSOM AND DESOM, CHITTADI P.O., KANNUR DISTRICT.** **BY ADV. SRI.V.N.RAMESAN NAMBISAN** ## **RESPONDENTS/DEFENDANTS 1 TO 4::** **-----------------------------------------------------------** ## **1. THE ASSISTANT EXECUTIVE ENGINEER,** **K.S.E.B. MAJOR SECTION, VELLUR.** ## **2. THE EXECUTIVE ENGINEER,** ## **K.S.E.B. ELECTRICAL DIVISION, PAYYANNUR.** ## **3. THE SECRETARY,** - **KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM.** ## **4. STATE OF KERALA,** ## **REPRESENTED BY DISTRICT COLLECTOR, KANNUR.** **R1 TO R3 BY SRI.P.SANTHALINGAM,SENIOR ADVOCATE ADVS.SRI.S.SHARAN,SC,K.S.E.BOARD SRI.K.R.SADASIVAN NAIR, SC.K.S.E.B. R4 BY GOVERNMENT PLEADER SRI.JOSE AEADIODI** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 19/03/2014, THE COURT ON 27/06/2014 DELIVERED THE FOLLOWING:** **Kss** ## **RFA.NO.11/2005** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEX.A130: TRUE COPY OF STATEMENT OF MEDICAL BILLS ISSUED TO THE PETITIONER.** **ANNEX.A131: TRUE COPY OF THE MEDICAL CERTIFICATE DATED 16/09/2013 ISSUED BY DR.RAJANEESH KUMAR, JISHA MEDICAL CLINIC, THERTHALLY, KANNUR.** **ANNEX.A132: TRUE COPY OF THE CERTIFICATE DATED 1/03/2014 ISSUED BY THE SECRETARY, CHERUPUZHA GRAMA PANCHAYAT.** **RESPONDENT'S ANNEXURES: N I L** **/TRUE COPY/** **P.A.TO JUDGE** **Kss** ## THOTTATHIL B.RADHAKRISHNAN & A.MUHAMED MUSTAQUE, JJ. ----------------------------------------------------------- RFA No.11 of 2005 ----------------------------------------------------------Dated this the 27[th] day of June, 2014 ## JUDGMENT ## Muhamed Mustaque, J. This appeal is filed by the plaintiff in a suit for compensation against the Kerala State Electricity Board (hereinafter referred to as the “Board”), on account of injuries suffered by her due to electric shock from the staywire installed on the side of the pathway. The court below found that the Board was negligent and awarded compensation of `26,286/-. 2. In this appeal, the plaintiff challenges the inadequacy of the compensation amount. It is to be noted that there is no challenge by the Board against the liability. 3. The alleged incident occurred on 09.12.1996 at about 7 a.m. while the plaintiff was on her way to home suffered an electric shock from the staywire installed on the side of the pathway and sustained burn injuries. 4. To understand the nature of injuries suffered by the plaintiff, we have referred to the deposition of PW1, Dr.Kunhambu, a Plastic Surgeon attached to the Department of RFA No.11 of 2005 2 Surgery, Pariyaram Medical College Hospital. It was deposed by the Doctor that the plaintiff had suffered burn injuries on dorsal aspect of right and left hand involving the fingers and left wrist. He affirmed that the plaintiff suffered thermal burns and high voltage deep burn. It was also noticed by PW1 that the plaintiff had multiple burns all over the both lower limbs. Annexure-A131 is a medical report, by Dr.Rajesh Kumar, received as an additional evidence in the appeal. It shows that the soft tissue of middle and ring fingers of right hand was merged together upto the half of middle finger and ¾[th] of ring finger. It was reported that she was not able to hold things or to write due to the deformity caused by scar tissue on healing the burn of right hand. She underwent surgery on 12.7.2003 as shown in Annexure-A131 and the present condition is reported to be that, she will be able to write and do all the activities normally with the right hand. The above aspects are medically noted with respect to the injuries suffered by her which required surgery and other medical attention. The plaintiff claimed `3,40,000/- in the suit under various heads. 5. The court below awarded `20,000/- towards pain and mental agony and `6,286/- towards medical expenses. The court below is of the view that the plaintiff did not establish her claim RFA No.11 of 2005 3 for damages under the heads of permanent disability, partial disability, disfigurement, future medical expenses etc. 6. “The basic principle for the measure of damages in Tort as well as in contract there should be a restitutio in integrum (which essentially means restoration to original condition). Apart from cases in which exemplary damages are awarded (See Winfield and Jolowicz on Tort, 12[th] Edition, page 622)”. The claim under the head of restitutio in integrum can be classified as one under pecuniary loss and non-pecuniary loss. Non-pecuniary losses are such as claim for loss of amenity etc. To sustain a claim based on pecuniary loss, the plaintiff has to prove the actual loss. Assessment of non-pecuniary loss is essentially an exercise made by the courts without any actual proof of the same. The court has to take the relevant facts such as age, family, and other societal conditions while determining the compensation. 7. The court below awarded `20,000/- towards pain and mental agony. We find `20,000/- awarded under this head palpably low considering the injuries suffered by her. While assessing the loss of compensation on account of pain and suffering, the court has to bear in mind the entitlement of the plaintiff for any other compensation on account of such suffering RFA No.11 of 2005 4 to which she can claim loss. Thus the plaintiff's entitlement for any pecuniary loss is also relevant consideration, while determining the assessment under the head non-pecuniary loss on the ground of pain and suffering. 8. Having regard to the fact that the plaintiff was a minor at that time of the incident, she cannot claim any pecuniary loss. We, therefore, fix `50,000/- as a compensation towards pain and suffering. The next head under which the plaintiff claimed compensation was for partial disability. No doubt, there is no partial disability as revealed from the evidence. However, there was a temporary disability for a certain period as the plaintiff was unable to do any work with the right hand. It is reported in Annexure-A131 that it is after the surgery on 12.7.2003, the plaintiff is able to write and do all the activities normally with the right hand. We, therefore, award a compensation of `15,000/- for temporary disability. The petitioner is also entitled for compensation for disfigurement. We notice that the plaintiff suffered injuries before her marriage. These injuries would have also reflected in her marriage prospects. Even though it is submitted that now she is married and settled near Mysore, we fix as a sum of `25,000/- towards disfigurement. RFA No.11 of 2005 5 9. The petitioner was given a sum of `6,286/- towards medical expenses. The plaintiff produced Annexure-A130 to show that she had incurred `3,355.80 towards the consultation fee of the Doctor. We have no doubt that the plaintiff would have incurred medical expenses after the disposal of the suit. We find that apart from the medical expenses already incurred and also for future, the plaintiff may also incur other incidental expenses such as, for transport, bystander etc. We, therefore, award `25,000/- as a consolidated amount towards treatment expenses. 10. The plaintiff made a claim under the head of permanent disability, which, according to us, the plaintiff is not entitled to. It is to be noted that while entering the finding regarding negligence on the part of the Board, the court relied on Ext.X1 case record. It is revealed from Ext.X1, the Electrical Inspector reported that the cause of the accident was on account of using poor quality insulators in the 11 KV line and also for not providing insulator to the staywire drawn from the 11 KV post. This finding essentially warrants the question whether this is a fit case, where exemplary damages could be awarded? The exemplary damages are awarded by taking note of the conduct of the defendant, as a punitive measure and refrain them from similar behaviour in future. We find sheer negligence on the part RFA No.11 of 2005 6 of the officials of the defendant-Board, resulting in the accident and, therefore, the plaintiff is entitled for a sum of `15,000/under the head of exemplary damages. Even though there is no claim for the plaintiff in the suit, we feel that such claim can be accommodated as it does not exceed total claim made by the plaintiff against the defendant. 11. In the above circumstances, we hold that the plaintiff is entitled for a total compensation of `1,30,000/-. Accordingly, this appeal is allowed in part. The plaintiff is, therefore, entitled to recover a sum of `1,03,714/- together with 9% interest from the date of indigent O.P. filed before the court below, from the defendants, in addition to the amount of `26,286/- already awarded by the court below. `1,30,000 - 26,286 = `1,03,714/- Pain and suffering : 50,000/Temporary Disability: 15,000/Disfigurement : 25,000/Treatment expenses : 25,000/Exemplary damages : 15,000/== ========== `1,30,000/== ========== Having regard to the nature of the litigation and the economically marginalised sector to which the plaintiff belong, we hold that RFA No.11 of 2005 7 she is eligible to be exempted from paying court fee in the court of first instance in view of order XXXIII Rule 11 of CPC as amended by notification dated 13.01.1999 - see for support, **Joseph v. Kerala State Electricity Board** [ ILR 2013(1) Ker.26]. In exercise of authority as afore-noted, the direction contained in the judgment and decree ordering realisation of court fee from the plaintiffs is vacated, and it has to be ordered that no court fee shall be recovered from the plaintiff in the suit and in this appeal. Sd/THOTTATHIL B.RADHAKRISHNAN, JUDGE Sd/A.MUHAMED MUSTAQUE, JUDGE ln /True copy/ P.A to Judge