The Secretary, Kerala State Electricity Board v. T. Afsath and others (RFA No. 148 of 2004) and Cross Objection No. 69 of 2006

## **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 30TH DAY OF MAY 2014/9TH JYAISHTA, 1936** ## **RFA.No. 148 of 2004 (C)** **-----------------------OS. NO.63/2001 OF SUB COURT, KASARAGOD.** **........** ## **APPELLANTS/DEFENDANTS:** **--------------------------------------------** ## **1. THE SECRETARY, K.S.E. BOARD, VAIDYUTHI BHAVANAM, THIRUVANANTHAPURAM.** **2. THE ASST. EXE. ENGINEER, ELE. MAJOR SECTION, K.S.E. BOARD, SUB SECTION, CHENGALA, CHENGALA VILLAGE, KASARGODE TALUK.** **BY SRI.P.SANTHALINGAM, SENIOR SC, ADV. SRI.S.SHARAN,SC, K.S.E. BOARD.** ## **RESPONDENTS/PLAINTIFFS 1 TO 3:** **------------------------------------------------------** **1. T. AFSATH, AGED 31 YEARS, W/O. LATE ABDULLA KUNHI & D/O. M.A. ABOOBACKER, MUSLIM, HOUSEHOLD, RESIDING AT ARANGADY, KANHANGAD SOUTH (VILLAGE), HOSDURG TALUK, P.O. KANHANGAD.** **2. JAMSHEENA, AGED 12 YEARS,** - **D/O. LATE ABDULLA KUNHI AND SMT.T. AFSATH, ARANGADY, KANHANGAD SOUTH (VILLAGE), HOSDURG TALUK, P.O. KANHANGAD. (MINOR REP. BY NEXT FRIEND MOTHER T.AFSATH, -DO- -DO-).** **3. JAVATH, AGED 5 YEARS, S/O. LATE ABDULLA KUNHI & T. AFSATH, ARANGADY, KANHANGAD SOUTH (VILLAGE), HOSDURG TALUK, P.O. KANHANGAD. (MINOR REP. BY NEXT FRIEND MOTHER T. AFSATH, -DO- -DO-).** ## **BY ADV. SRI.SURESH KUMAR KODOTH.** **THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 11/04/2014, ALONG WITH CO. NO.69 OF 2006, THE COURT ON 30/05/2014 DELIVERED THE FOLLOWING:** **rs.** ## THOTTATHIL B.RADHAKRISHNAN & ## A.MUHAMED MUSTAQUE, JJ. --------------------------------------------------------- R.F.A.No.148 of 2004 and Cross Objection No.69 of 2006 -------------------------------------------------------------- Dated this the 30[th] day of May, 2014 ## JUDGMENT ## A.Muhamed Mustaque,J. - 1.The Kerala State Electricity Board (hereinafter referred to as the “Board”) challenges the judgment and decree passed by the court below against them in a suit for compensation initiated by the dependents of the deceased Abdullakunhi, who died on account of electrocution on 10.08.1999. The court below awarded compensation of `3,75,860/- together with interest at the rate of 6% from the date of suit till realisation. Challenging the inadequacy of the compensation, the plaintiffs also preferred Cross appeal. - 2.Heard the learned counsel for the defendant-Board and the learned counsel for the respondents/plaintiffs. - 3.An electric conductor line passing through the areca garden R.F.A.No.148 of 2004 & C.O.No.69 of 2006 2 got snapped and was lying hidden in the stagnated water and the water was charged with high voltage electricity. Abdullakunhi was unaware of it. He stepped into the stagnated water for the purpose of chopping the grass and got electrocuted and died instantaneously. 4.Electricity is a dangerous substance and, therefore, the principles of strict liability would apply. In Union of India v. Prabhakaran Vijaya Kumar & Others [(2008) 9 SCC 527], it was held by the Hon'ble Supreme Court that in cases where the principles of strict liability applies, the defendant has to pay damages for the injury caused to the plaintiff, even though the defendant may not be at any fault. In M.P Electicity Board v. Shail Kumari [(2002(1) KLT 480 (SC)], the Hon'ble Supreme Court held that if a live wire got snapped and fell on the public road, the electric current thereon should have automatically been disrupted. Authorities manning such dangerous commodities have an extra duty to chalk out measures to prevent such mishaps. We also find that the Board having failed to ensure safety by using devices to R.F.A.No.148 of 2004 & C.O.No.69 of 2006 3 render a broken line harmless, when it breaks, in terms of Rule 91 of Indian Electricity Rules had committed a statutory breach of duty bestowed on them. Thus, we affirm the finding of negligence, rendered by the court below, on the Board. 5.With regard to the quantum of compensation awarded, in recent judgment of this Court in Anitha and Others v. Kerala State Electricity Board, TVM and others [2014 (2) KHC 114], it was held by this Court that the multiplier method adopted in Sarla Verma (Smt) and Others v. Delhi Transport Corporation and another [(2009) 6 SCC 121], can be followed to determine the compensation amount on account of loss of dependency. The deceased was aged 34. Therefore, 16 can be adopted the multiplier. The court below calculated the monthly income of the deceased at `2,400/-. The first plaintiff has given evidence that the deceased used to get `5,000/- per month. We find her evidence need not be discredited. It is held in Anitha's case (supra) that in civil proceedings, the wife is competent witness to depose about the income of her husband. Considering the nature of the work of the deceased R.F.A.No.148 of 2004 & C.O.No.69 of 2006 4 such as supervisor to the construction work and milk vendor, we are of the view that a sum of `3,500/- can be fixed as his monthly income. It is to be noted Hon'ble Supreme Court in Laxmi Bai v. Mohammed Tabbar [2008 ACJ Pg.1488], held that notional income can be fixed at `3,000/-, in the absence of any other proof, as to the income. Therefore we feel `3,500/- is modest and reasonable. After deducting 1/3[rd] of the expenses, that would have been incurred by the deceased, we calculate the compensation amount as follows: `28,000X16=`4,48,000/-. 6.The court below awarded `48,960/- towards loss of consortium, love and affection and also `500/- towards the cost of lawyer notice. We find no compensation is awarded for loss of expectation of life. Accordingly, we award `75,000/- under the head loss of consortium, loss of expectation of life and love and affection. Thus, the plaintiffs are entitled for the compensation of `4,48,000/towards loss of dependency, `75,000/- towards loss of expectation of life, consortium and love and affection, and R.F.A.No.148 of 2004 & C.O.No.69 of 2006 5 `500/- for the cost of lawyer notice. Therefore, the plaintiffs are entitled for the total compensation of `5,23,500/-. The plaintiffs limited their claim to `5,00,000/- in the cross objection. Therefore, we find the plaintiffs are entitled for full compensation of `5lakhs. The court below awarded `3,75,860/-. The claim in the Cross-objection is for `1,24,140/-. Thus, the Cross-objection is allowed. - 7.The plaintiffs are entitled for the above amount together with - 6% interest from the date of suit till realisation with proportionate costs. - 8.Having regard to the nature of the litigation and the economically marginalised sector to which the plaintiffs belong, we hold that they are 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]. That modification to the impugned judgment and decree can be made in favour of the R.F.A.No.148 of 2004 & C.O.No.69 of 2006 6 plaintiffs in exercise of power under Order XLI Rule 33 CPC. 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 is ordered that no court fee shall be recovered from them. In the result: 1. RFA No.148 of 2004 is dismissed by affirming the judgment and decree of the court below. 2. Cross-objection No.69 of 2006 is allowed for recovery of sum of `1,24,140/- together with 6% interest from the date of suit till realisation. 3. The cross-objectors/plaintiffs are also entitled for the proportionate costs. Sd/- ## THOTTATHIL B.RADHAKRISHNAN, JUDGE ## Sd/- ## A.MUHAMED MUSTAQUE, JUDGE ln /True copy/ P.A. To Judge R.F.A.No.148 of 2004 & C.O.No.69 of 2006 7