SANTHA W/O LATE VISWAMBARAN and 2 others v. KERALA STATE ELECTRICITY BOARD and 2 others

**CR** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 18TH DAY OF MARCH 2020 / 28TH PHALGUNA, 1941** **RFA.No.586 OF 2008** **AGAINST THE JUDGMENT IN OS 128/2003 OF SUB COURT, MUVATTUPUZHA** **AGAINST THE ORDER/JUDGMENT IN CMCP 10/2008 OF HIGH COURT OF KERALA** ## **APPELLANTS/PLAINTIFFS:** **1 SANTHA W/O LATE VISWAMBARAN, AGED 42 YEARS, RESIDING AT KALIYICKATHARAYIL HOUSE, KALAMPOOR, ENANALLOOR VILLAGE, MUVATTUPUZHA.** - **2 VISHNU** **AGED 14 YEARS, (MINOR) RESIDING AT KALIYICKATHARAYIL HOUSE, KALAMPOOR, ENANALLOOR VILLAGE, MUVATTUPUZHA.** - **3 JISHNU AGED 12 YEARS, (MINOR) RESIDING AT KALIYICKATHARAYIL HOUSE, KALAMPOOR, ENANALLOOR VILLAGE, MUVATTUPUZHA.** **BY ADVS. SRI.K.JAJU BABU (SR.) SRI.T.S.SHYAM PRASANTH SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENTS/DEFENDANTS:** - **1 KERALA STATE ELECTRICITY BOARD THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY** - **2 THE EXECUTIVE ENGINEER (GENERAL) OFFICE OF EXECUTIVE ENGINEER , KERALA STATE ELECTRICTIY BOARD, MUVATTUPUZHA.** - **3 ASHARAF** **S/O PAREETH, KUNNEL VEEDU, MYLOOR KARA, VARAPETTY VILLAGE, MUVATTUPUZHA.** **R1 BY SRI.PULIKOOL ABUBACKER, SC, KSEB R1 BY ADV. SRI.ASOK M.CHERIYAN** ## **OTHER PRESENT:** ## **SC FOR KSEB - SRI. SUDHEER GANESHKUMAR** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 17-03-2020, THE COURT ON 18-03-2020 DELIVERED THE FOLLOWING:** **RFA.No.586 OF 2008** **2** ## **CR** ## **J U D G M E N T** Among the relevant issues in this appeal, one is edificed on an interpretative contention by the appellants that even if the claim made in a plaint is lower, courts are enjoined to grant higher amounts if such are found justified from the pleadings and evidence on record. 2. The plaintiffs in O.S.No.586/2008 on the file of the Sub Court, Muvattupuzha have filed this appeal against the judgment and decree of the said Court; however, only to the limited extent of denying and reducing compensation to them under some heads and in granting future and pendente lite interest only at the rate of 6% per annum. 3. The constitutive facts involved in this case are that late Viswambaran, who is the husband of the 1[st] appellant and the father of appellants 2 and 3, was electrocuted to death on 20.09.2001, while he was walking through the property of a certain Sri.Raju, S/o.Velayudhan. Subsequently, the appellants filed the suit claiming compensation under the following heads: **RFA.No.586 OF 2008** **3** |a) Compensation on account of the<br>pain and suffering undergone by<br>the deceased.|-Rs.20,000/-| |---|---| |b) Compensation on account of<br>funeral expenses.|-Rs.5,000/-| |c) Compensation on account of loss<br>of estate/dependency|-Rs.1,75,000/-| |d) Compensation for loss of service,<br>love and affection|-Rs.50,000/-| |e) Compensation for shortening of<br>life|-Rs.25,000/-| |Total|-Rs.2,75,000/-| 4. The Trial Court took the suit to trial and found that the accident occurred on account of the negligence of the Kerala State Electricity Board (KSEB for short), its maintenance staff and concerned officials and thus awarded an amount of Rs.1,89,000/- as compensation to the plaintiffs, along with 6% interest from the date of suit till realization, from the KSEB and the other defendants. 5. The appellants contend that award of Rs.1,89,000/-, against the suit claim of Rs.2,75,000/-, is unfair and unconscionable and therefore, that the judgment, to that extent, be set aside, thus decreeing the suit as prayed for, along with interest at the rate of 12%, further asserting that the interest of 6% now awarded is too meagre and **RFA.No.586 OF 2008** **4** disproportionate to the prevailing rates. 6. I have heard Smt.Neethu Vinod, learned counsel appearing for the appellants and Sri.Sudheer Ganesh Kumar, learned Standing Counsel for the KSEB. 7. As I have already indicated above, the sole contention of the appellants/plaintiffs is that the amount awarded is less and that the interest granted is meagre. 8. Smt.Neethu Vinod, began her submissions by relying on a Bench Judgment of this Court in **Jinto John v. V.J.Linto and Others [ILR 2018 (1) KER 435]** and she read out paragraph No.5 thereof as under: “5. Assessment of compensation under different heads is done for the purpose of granting just compensation. Hence, when once it is found that the compensation to which the claimant is entitled, be it under any particular head or aggregate, is more than what is claimed, its denial after assessment would result in denial of just compensation. In the light of the said decisions referred (supra) and our conclusions, it can only be held that the Tribunal ought to have granted the entire amount assessed as compensation for permanent disability. There is no justification in awarding only Rs.1,00,000/- after assessing Rs.2,59,200/- as the compensation thereof. In that view of the matter, the appellant is entitled to get the balance amount assessed by the Tribunal under the said head.” 9. The learned counsel, then submitted that the Trial Court ought to have granted compensation as per the plaint **RFA.No.586 OF 2008** **5** claim; alleging that it has incorrectly awarded only Rs.10,000/against the claim for Rs.50,000/- made by the appellants/plaintiffs towards compensation for loss of service, love and affection; while it has only granted Rs.2,000/- for the pain and suffering of late Viswambaran and for shortening of his life. Smt.Neethu Vinod, further submitted that even though the Trial Court has found appellants/plaintiffs entitled to Rs.2,40,000/- under the head 'Compensation on account of loss of estate/dependency', it has confined the said amount in the decree to Rs.1,75,000/-, solely for the reason that this was all that was claimed by appellants/plaintiffs in the plaint. She asserts that, going by the ratio in **Jinto John** (supra), the amount of Rs.2,40,000/- ought to have been granted by the Trial Court under this head, even though a lower figure had been sought for in the plaint. She thus prays that this appeal be allowed and the suit be decreed as above, with an additional prayer that the rate of interest be enhanced at least 12%. 10. Sri.Sudheer Ganesh Kumar, learned Standing Counsel for the KSEB, in opposition to the above, submitted that the impugned decree of the Trial Court is commensurate to the suit claim; asserting that no amount could have been awarded under the head 'pain and suffering of the deceased' and that **RFA.No.586 OF 2008** **6** therefore, grant of Rs.2,000/- itself was impermissible. He then contended that since the Trial Court has awarded Rs.10,000/towards compensation for 'loss of service, love and affection', no further amount could be granted for the shortening of life of late Viswambaran and thus prayed that this appeal be dismissed. On the contention of Smt.Neethu Vinod as regards the rate of interest, he submitted that fixing of interest by the Trial Court at the rate of 6% is without error, since in the absence of a contractual rate, the Court could have only gone by Order XXXIV of the Code of Civil Procedure (CPC), in awarding such a rate. 11. I have considered the afore submissions and have also gone through the evidence and materials on record. 12. The factum of the death of Viswambaran and negligence on the part of the KSEB are no longer in question, since they have chosen not to challenge the findings of the Trial Court. Ineluctably, therefore, all that this Court is called upon to consider is whether the compensation awarded and the rate of interest fixed by the Trial Court are legally and forensically correct. 13. The heads of compensation under which the appellants/plaintiffs have made the claim are as extracted in **RFA.No.586 OF 2008** **7** paragraph No.9 of this judgment. 14. When I go through the various heads, I find some force in the submissions of Sri.Sudheer Ganesh Kumar that no amounts could have been granted against the claim for suffering and pain of late Viswambaran, but I cannot understand the purport of his submission that the compensation for “loss of service, love and affection” and for “shortening of life of late Viswambaran”, must be confined only to Rs.10,000/-. In fact, I am of the firm view that the award now made by the Trial Court against these heads is so exiguous, that it shocks the conscience of this Court; and am certain, therefore, that the said claims made by the plaintiffs in the plaint ought to have been granted in full; particularly, when the Trial Court does not explain why it has granted only Rs.10,000/- towards “loss of service, love and affection” and nothing at all towards “shortening of life of late Sri.Viswambaran”. 15. That being so said, I proceed to now consider the contention of Smt.Neethu Vinod that, notwithstanding that only an amount of Rs.1,75,000/- had been claimed by appellants/plaintiffs against the head “loss of estate/dependency” in the plaint, the Trial Court ought to have granted Rs.2.40 lakhs since it has been correctly found by it **RFA.No.586 OF 2008** **8** that because late Viswambaran was only 45 years old at the time of his death, the multiplier of 15 should be taken, thus deserving a computation of Rs.2,40,000/-. 16. As I have said above, Smt.Neethu Vinod makes this submission relying upon **Jinto John** (supra), as also **Anitha and Others v. KSEB [2014 (2) KLT 50],** contending that this Court is fully empowered to grant higher amount than what has been claimed in the suit. 17. However, when I go through the judgments relied upon by Smt.Neethu Vinod, it is clear that the appellants/plaintiffs had, in fact, sought larger amounts in the plaint, but had limited their claim to a lower one on account of their inability to pay Court Fee. It is in such circumstances, particularly in **Anitha (supra),** that a Division Bench of this Court found that it will be justified to grant compensation upto the actual claim made by the appellants and not merely to the extent to which it had been limited. However, in contrast, in the case at hand, it is clear that the full amount claimed is as extracted above; and obviously, therefore, it may not be justified for this Court to award in excess of the same, even going by the afore judgments. I therefore, repel this request of Smt.Neethu Vinod. **RFA.No.586 OF 2008** **9** 18. Now, moving on to rate of pendente lite and future interest, as rightly pointed out by Smt.Neethu Vinod, the Trial Court has granted 6% without offering any reason for the same; and I am of the view that since the accident happened in the year 2001, when the rate of interest on commercial transactions was well over 12% to 14%, award of interest at the rate of 9% would be sufficient to balance the dialectical interests of the parties. Going by the relevant time frames, I am of the firm view that award of interest at the rate of 9% would be fully justified; and in any event of the matter, since I am told that the KSEB has already deposited the suit amount, their liability consequent to the enhancement in interest would not cast a great burden on them. In the afore circumstances, this appeal is allowed in part, enhancing the compensation to the appellants from Rs.1,89,000/- to Rs.2,54,000/-, thus granting the full amounts sought for by them under the heads of “compensation for loss of service, love and affection” and “compensation for shortening of life”. It is so ordered. In addition to the above, the entire amount will carry interest at the rate of 9% from the date of suit till the actual payment; however, clarifying that with respect to the amounts **RFA.No.586 OF 2008** **10** already deposited by the KSEB, interest will run at such rate only till the date of deposit, but that the balance amounts will carry interest as afore till the date of payment. Since this appeal has been preferred by the appellants in forma pauperis on account of proven impecuniousness and since the 1[st] appellant has suffered immeasurably on account of the death of her husband - late Viswambaran and in bringing up her two minor children on her own, I deem it appropriate that the burden of having to pay the Court Fee be waived; and consequently, it is ordered that no recovery for the said amount will be initiated against the appellants, taking note of the afore circumstances. **Sd/-** **DEVAN RAMACHANDRAN** rp **JUDGE**