IN THE HIGH COURT OF KERALA AT ERNAKULAM
RFA.No. 810 of 2008()
1. THE K.S.E.B, VYDHUDHI BHAVAN,
... Petitioner
Vs
1. MRS. REETH, AGED 51 YEARS,
... Respondent
2. BELSITTA, AGED 34 YEARS,D/O. LATE
3. CLARA, AGED 28 YEARS,
4. EUGINE, AGED 32 YEARS,
5. THE DISTRICT COLLECTOR,
For Petitioner :SRI.C.K.KARUNAKARAN, SC FOR KSEB
For Respondent : No Appearance
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :29/01/2009
O R D E R
KURIAN JOSEPH &
P.R. RAMACHANDRA MENON, JJ.
........................................................................
R.F.A. No. 810 OF 2008
&
C.M . Application No. 2353 OF 2008
.........................................................................
Dated this the 29th January, 2009
J U D G M E N T
Ramachandra Menon, J. :
The appeal is filed by the first defendant in O.S.No. 146 of
2005 on the file of the Sub Court, Neyyattinkara, challenging the
judgment and decree passed therein, awarding a total
compensation of Rs.3 lakhs with interest at the rate of 6% per
annum from the date of the suit till realisation and cost in respect
of electrocution of the late Stephen, the husband of the first
respondent herein (first plaintiff) and father of respondent Nos. 2
to 4 (plaintiff Nos. 2 to 4).
2. The appeal has been filed with an application to
condone the delay of 44 days in filing the same. When the
matter came up for consideration before this Court on
04.12.2008, the appellant was directed to produce a copy of the
R.F.A. No. 810 OF 2008 & C.M . Application No. 2353 OF 2008
2
plaint along with the deposition of P.Ws.1 and 2 on 15.12.2008.
It was noting the fact that the appellant-Board had not chosen
to adduce any evidence – oral or documentary and that the only
evidence, if at all any that could have been relied on by the
Board could only be those elicited from the version of P.Ws. 1
and 2 during their cross examination, that it was felt very much
appropriate for this court to look into the merits of the case as
well while considering the petition seeking to condone the delay
in filing the appeal.
3. The deceased Stephen while proceeding along the
pathway on 19.06.1993 happened to come across a broken live
wire of the K.S.E.B., sustaining serious electric shock leading to
his death, which formed the subject matter of the Crime No.145
of 2003 registered by Kanjiramkulam Police station under
Section 174 of the Code of Criminal Procedure. The death was
sought to be compensated by filing the above Suit before the
court below by the widow and children of the deceased, being
the sole legal heirs, stating that the accident was only because
of the lack of diligence and proper care in maintaining the supply
R.F.A. No. 810 OF 2008 & C.M . Application No. 2353 OF 2008
3
line by the appellant Board.
4. The claim limited to Rs. 3 lakhs plus interest was
opposed by the appellant-Board raising mainly three grounds;
that the suit itself was not maintainable ; that the suit was bad
for non-joinder of necessary parties and further that there was no
negligence on the part of the Board. It was contended by the
Board that the accident occurred not in the manner described in
the plaint and that a galvanised iron stay wire tied between
two coconut palms over and across a LT single phase line was
broken due to stretching of the trees in wind, whereby one of
the broken wires which was hanging from the coconut palm
belonging to one P. Vincent fell on the pathway touching the
phase conductor. It was stated by the Board that the other end
of the wire was tied to another coconut palm in the property of
one B. George. The deceased Stephen, according to the Board,
in a rash and negligent manner pulled the wire which was in
contact with the live electric line causing leakage of electricity
through his body leading to his death. The negligence attributed
on the Board was disputed, seeking to fix the same on the
R.F.A. No. 810 OF 2008 & C.M . Application No. 2353 OF 2008
4
deceased himself. The plea of non-joinder of necessary parties
was also put forth referring to the fact that owners of the
concerned properties where the coconut palms were planted,
were not made parties to the proceedings.
5. It is seen that P.Ws. 1 and 2 were examined on the side
of the plaintiff/appellant and Exts. A1 to A5 were marked . No
evidence was adduced, either oral or documentary, from the
part of the defendant/the appellant herein to substantiate their
contentions.
6. As observed by the court below in paragraph No.7 of the
impugned judgment , the defendant-Board had not produced any
material to show that the electrocution was due to any rash or
negligent act by the deceased, as contended by the Board in the
written statement. Nobody was examined from the part of the
Board, even to suggest the existence of any stay wire allegedly
tied between two coconut palms and broken in the wind.
Hence it was not at all necessary for impleading the owners of
the property where the coconut palms were planted, as rightly
held by the court below in paragraph No.7 of the judgment.
R.F.A. No. 810 OF 2008 & C.M . Application No. 2353 OF 2008
5
Similarly, the challenge against maintainability of the Suit was
also not substantiated, at least, by stating in what way the suit
was not maintainable. In any view of the matter, as observed
by the court below in paragraph No.7 of the impugned judgment,
the contentions raised by the Board as to the ‘maintainability’ of
the suit and as to the ‘non-joinder of necessary parties’ were
not pressed during the trial stage, which made the court below to
arrive at a finding against the Board in this regard. The finding
and reasoning given by the court below on these two issues
(Issue Nos.1 and 2), hence, is not assailable in any
circumstances.
7. With regard to the extent of damages, the total amount
originally claimed in the plaint was Rs.4,10,000/-, which
however was limited to a total sum of Rs. Three lakhs plus
interest. It has been brought out in evidence ( from the
deposition of P.Ws. 1 and 2 and also by virtue of Exts.A1 to A5)
that the deceased sustained electric shock when the live electric
wire which was broken and lying down on the pathway came
into contact with the deceased through the water accumulated on
R.F.A. No. 810 OF 2008 & C.M . Application No. 2353 OF 2008
6
the pathway. As observed by the court below, the defendant
Board had not produced even the site mahazar to examine any
chance or probability of the case suggested by the Board in the
written statement. It was accordingly that the court below
arrived at a clear finding that the plaintiffs were very much
entitled to get a decree in their favour.
8. In this context, it is also relevant to note that the
negligence on the part of the appellant-Board can be inferred
from the facts and circumstances of the case, as made clear by
this court vide decisions reported in K.S.E.B. vs. Kamalakshy
Amma (1986 K.L.T. 1124 ) and in Thressia vs. K.S.E. Board
(1987 (1) K.L.T. 492) . In the instant case, the breakage of
live wire and leakage of electricity only points to the negligence
and lack of proper care and maintenance on the part of the
Board in maintaining the electric line, without any regard to the
lives and limbs of the general public . As it stands so, the issue
No.3 answered by the trial court in favour of the plaintiffs,
declaring their eligibility to claim compensation from the
defendant-Board is perfectly in order.
R.F.A. No. 810 OF 2008 & C.M . Application No. 2353 OF 2008
7
9. The facts and evidence discussed by the trial court
reveal that the deceased was a fisherman aged 51 years. For
computing the loss of dependency, the monthly income of the
deceased has been reckoned by the court below only at a
notional level. Even otherwise, the fact that the deceased was
maintaining his family consisting of three grown up members,
besides himself is enough to presume the same. Taking note of
the relevant age factor, the trial court has fixed the ‘loss of
dependency’ at Rs.2,50,000/-, fixing also such other amounts
as Rs.20,000/- towards ‘loss of estate’; Rs.20,000/- towards
‘loss of love and affection’ and Rs.10,000/- towards
compensation for ‘pain and suffering’, thus granting a total
sum of Rs. 3 lakhs which is very much reasonable and cannot
be stated as on the higher side, on any scale.
In the above facts and circumstances, particularly in the
absence of any contra evidence, this court does not find any
tenable ground necessitating interference on merits and as
such, no purpose will be served by issuing notice to the
respondents/plaintiffs in the petition filed by the appellant/Board
R.F.A. No. 810 OF 2008 & C.M . Application No. 2353 OF 2008
8
seeking to condone the delay in filing the appeal. Accordingly,
C.M. Application No.2353 of 2008 seeking to condone the delay
in filing the appeal and consequently the appeal are hereby
dismissed. No cost. I.A.NO. 5115 of 2008 is also dismissed.
KURIAN JOSEPH,
JUDGE.
P.R. RAMACHANDRA MENON,
JUDGE.
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