IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : .03.2010 CORAM: THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH C.S.No.727 of 2008 1.S.Rosalin Samuvel 2.Minor Carolin Jestina 3.J.Sara .. Plaintiffs Vs. 1.The Superintending Engineer, Tamil Nadu Electricity Board, CEDE / North, Anna Salai, Chennai-2 2.The Chief Engineer, Tamil Nadu Electricity Board, CEDE / North, Anna Salai, Chennai-2 .. Defendants Prayer:- This Suit has been filed under Order IV Rule 1 of the Original Side Rules R/W Order VII Rule 1 of C.P.C. For Plaintiffs :Ms.Geetha Rajasekar For Defendants :Mr.N.Muthuswami JUDGMENT
This suit has been filed by the plaintiff against the defendant seeking for compensation and for costs.
2.The brief facts in the case of the Plaintiff would be as follows:-
2(1) On 20.07.2005, the husband of the first Plaintiff Samuvel visited his mothers house at No.49/58, Anna Salai, M.G.Nagar, Ezhil Nagar, Chennai 600 118 and he parked his Motor Cycle viz. TVS 50 XL Super, in front of the house and he was talking with his mother. At that time, one passer-by had called the said Samuvel and informed that his Motor Cycle had fallen down in a pit dug by the Tamil Nadu Electricity Board and filed with loose sand. In order to take out the said vehicle, Samuvel tried to lift the vehicle. Suddenly due to outflow of electricity from under-ground cables, vehicle connected with that cable and electrocuted the first Plaintiffs husband Samuvel and he died on the spot. Immediately, dead body of Samuvel was taken to the Stanley Government Hospital and post mortem was conducted. In the Post Mortem Report, it was clearly stated that the death of Samuvel was only due to electrocution.
2(2) Only a day prior to the accident, Tamil Nadu Electricity Board employees, dug the Road, did some repairs in the under ground cables. Thereafter, they filled the pit only with loose sand and failed to cover the cables with due diligence. Therefore, there was seepage of electricity from the cable, which passed on to the Motor Cycle parked in that place by Samuvel. When he tried to lift the Motor Cycle, it changed his destiny and he died on the spot due to electrocution. The accident was solely due to the negligence of the employees of the defendants. The deceased Samuvel is survived by his female child, who was only eight months old at that time, his wife and aged widow mother viz. the Plaintiffs herein.
2(3) The deceased Samuvel was working in a private company and earning Rs.5,000/- p.m. exclusive of other perks. The deceased Samuvel had the following educational and technical qualifications:-
i. Decree in Bachelor of Business Administration (B.B.A)
ii. Post Graduate Diploma in Computer Applications (PGDCA)
iii. Course Completion Certificate in Supervision issued by National Productivity Council, India.
iv. Short Term Course Certificate in Small Industries Management Assistants.
v. Certificate issued by Department of Technical Education Junior Grade (Typewriting).
Even though, he was working in a private concern and earning only a sum of Rs.5,000/- at the time of his death, he was qualified and constantly updating his knowledge and would have earned more in the future due his qualifications in several fields. Therefore, there was a bright chance for his future prospective income, but which was cut short due to his tragic death resulting from the negligence of the employees of the Tamil Nadu Electricity Board.
2(4) Moreover, the deceased Samuvel was just 33 years old, hale and healthy person with clean habits at the time of his death, if he would not have died due to electrocution, he might have lived for at least another 50 years. That apart, first Plaintiff is a very young lady, lost her husband at her early 30 and lost her social status. The most unfortunate thing is that the second Plaintiff was eight month old at the time of her fathers death would never know her fathers love and affection and would have to raised by a single parent. Further, the third Plaintiff is who lost her husband at her young age i.e. in 1977 and lived with the support of her only son deceased Samuvel, was also severely affected with the sudden and untimely death of her only son. Therefore, all the three Plaintiffs are put to heavy loss, mental shock and agony. In view of the above facts and circumstances stated about, the Plaintiffs are entitled for just, proper compensation for the death of the Samuvel from the defendants.
2(5) It is pertinent to state that immediately after the mishap, the Plaintiffs have informed the defendants about the incident through telegraphic message. The accident news was published in Tamil dailies also. Therefore, as per the Tamil Nadu Electricity Board Act and Rules, the defendant has to appoint its officials for enquiry, file a Report and has to compensate the Plaintiffs. However, they have not done so. The third Plaintiff had lodged a criminal complaint against the employees of the defendants in Kodungaiyur Police Station, and the same was taken on file in C.C.No.3207 of 2006,. The same is pending. The Plaintiffs had also sent a Representation dated 11.08.2005 to the Chief Ministers cell, requesting to order for damages from the defendants. In response thereof, the Defendants were directed to take appropriate action. However, no action was taken by the defendants. Consequently, the Plaintiffs have also sent an Advocate Notice dated 28.09.2007 to the defendants, demanding inter alia a sum of Rs.20,00,000/- towards compensation. The defendants had duly received the Advocate Notice. However, they have neither paid the compensation nor sent any reply for it till this date. Therefore, the Plaintiffs are constrained to file this suit for damages. The Plaintiffs are entitled for compensation under the following heads:
(1) Loss of Future income - Rs.12,00,000/- (2) Loss of consortium - Rs. 3,00,000/- (3) Loss of estate and expectation of life - Rs. 1,00,000/- (4) Loss of love and affection - Rs. 2,00,000/- (5) For mental shock and agony - Rs. 2,00,000/- --------------------- Total - Rs.20,00,000/- ---------------------
2(6) The deceased Samuvel was the bread winner of the family and due to his untimely death, the Plaintiffs are literally starving for their day to day needs, food, shelter, cloths etc. The first Plaintiff is depending upon her aged parents for all her requirements. Moreover, the second Plaintiff has to be brought up in a proper manner and educated. Therefore, it is just and necessary to pass a decree for a sum of Rs.20,00,000/- towards compensation for the death Samuvel. The third Plaintiff has to be supported financially during her old age.
2(7) In view of the facts and circumstances stated above, the Plaintiffs pray that this Court may be pleased to pass a Judgment and Decree as against the defendants and in favour of the Plaintiffs.
i. Directing the defendants to pay a sum of Rs.20,00,000/- towards damages to the Plaintiffs with 24% interest from the date of the Plaintiff till the payment of the same.
ii. For costs of the suit.
3.The brief facts in the case of the defendant stated in the counter affidavit would be as follows:-
3(1) On 27.07.2005 Wednesday at 9.00 P.M., a phone call was received by Assistant Executive Engineer / Construction / Tondiarpet, from Ezhil Nagar area that a person got an electrical accident on the main road at Anna Salai, Ezhil Nagar. Immediately Assistant Executive Engineer / Construction / Tondiarpet has visited the spot and noticed that a 3.5 x 25 sq.mm cable joint under the ground near Door No.58/49, Anna Salai, Ezhil Nagar. On visiting the spot, the public in that area informed that a person by name J.Samuvel S/o Jones got electrocution with the cable joint, while he was trying to take his motor cycle fallen on the road and Samuvel was sent to Stanley Hospital for treatment. Subsequently information was received that the said Samuvel died at 11.00 P.M. on 27.07.2005.
3(2) The investigation of the spot and the cable, it was found that a LT Cable joint of 3.5 x 25 sq.mm. UG cable under the ground was available. A sintex water tank near by the above door number has been provided for public drinking water. The Corporation water lorries are coming on the street daily twice or thrice to fill up the water in the tank. Since the cable laid under ground adjacent to the water tank, the water lorry parked frequently at this place and could have damaged spot and made the spot as a trench resulting in stagnation of water.
3(3) The said J.Samuvel is stated to have parked his motor cycle on the cable joint and fallen on the ground. When the motor cycle fallen on the LT Cable joint, its sharp side stand pierced into the cable joint and contacted the line conductor and thereby Samuvel got electrocuted while lifting the motor cycle.
3(4) On 28.07.2005, a police complaint was lodged with P-6 Kodungaiyur Police Station, and case was registered with F.I.R. NO.903 of 2005 dated 28.07.2005.
3(5) With reference to paragraph 4 of the plaint, he submits that no pit was dug by the Tamil Nadu Electricity Board as alleged by the plaintiffs, and filled with loose sand in the place where J.Samuvel electrocuted. It is not correct to state the Samuvel died on the sport. Even in the F.I.R., is stated that after electric shock, Samuvel was taken to private hospital and thereafter as directed by private hospital, he was taken to Stanley Hospital where he was declared dead. In the postmortem report no conclusive finding is given and the opinion given is a reserved pending chemical analysis report.
3(6) With reference to paragraph 5 of the plaint, he submit that no complaint was received from anywhere near Door NO.58/49, Anna Salai, M.G.R.Nagar, from November 2004 to till the date when the Samuvel electrocuted. Therefore no cable fault was attended by TNEB. Hence the question of digging pit by TNEB in that area has not arisen. He deny the allegation that a day prior to the accident, TNEB employees dug the road, did some repair in the under ground cables. It is also denied that TNEB filled the pit with loose sand and failed to cover the cables with due diligence. As already submitted there is no negligence of the employees of the defendant for the said accident. 3(7) All under ground cables used by TNEB to supply electricity were armoured cables which has good mechanical strength with the following specifications. The above 3.5 x 25 sq.mm. LT UG aluminium cable tested in 1100 V and it comprising of multistanded shaped compacted aluminium conductor PVC insulated, cores laid up, inner sheath of extruded PVC, Galvanised steel strips armoured and PVC sheathed overall, conforming to IS 554/Part I/1998 and its amendments upto date and with ISI mark. Hence it has good mechanical as well as insulation strength to protect live cable inside. Leakage of electricity only possible if any sharp edge passes through or pierced the armour and damages the live cable inside.
3(8) There is no leakage of current from the cable before and also at the time of parking his TVC-50 XL moped by Samuvel near Door No.58/49, Anna Salai, M.G.R.Nagar. But after meeting his mother, Samuvel returned to lift his fallen TVS-50 XL moped, he got electrocuted. It clearly shows that the sharp edge of the side stand of vehicle parked by Samuvel pierced the healthy cable joint and made the same unsafe.
3(9) The accident happened due to a live and healthy electrical cable which is properly laid under the ground in standard depth at Anna Salai, M.G.R. Nagar, which was mechanically damaged by the motor cycle side stand sharp edge. Also there is no complaint from this street people (or) any other agencies liked Metro water, Telephones and Corporation etc., that there was a cable in unsafe condition (or) in insufficient depth. Therefore it is respectfully submitted that there is no negligence on the part of defendants / TNEB.
3(10) With reference paragraph 6 and 7 of the plaint, he submit tat it is for the plaintiffs to prove about the earning of deceased and also plaintiffs are the legal heirs of the deceased.
3(11) With reference to paragraph 8 and 9 of the plaint, he submit that the compensation of Rs.20,00,000/- claimed by the plaintiffs under various heads are on the higher side and unsustainable. It is submitted that the cable was laid in standard depth. Due to various reasons the cable may come up or go deep under the ground by various departments like Metro water, Telephones, rectifications. Since there is no unsafe cable or any electrical live parts in that street and there is no complaint about leakage of electricity in its cables or pillars. Hence there is no negligence on the part of the defendant TNEB and they are not liable to pay the huge compensation claimed by the plaintiff. The interest claimed by the plaintiff at 24% per annum is excessive and unsustainable.
3(12) As already stated, the accident has not occurred due to the negligence of the defendant TNEB and defendants are not liable to pay compensation as claimed in the plaint. The question of payment of interest is also denied by the defendant of TNEB.
3(13) It is therefore prayed that the Court may be pleased to dismiss the above suit.
The following issues were framed for trial by this Court on 24.08.2009.
i. Whether the plaintiffs are entitled for the compensation of Rs.20 lakhs with subsequent interest and costs from the defendants ?
ii. Whether the defendants are liable to pay the said compensation to the plaintiffs?
iii. To what relief the plaintiffs are entitled ?
4.Heard Ms.Geetha Rajasekar, the learned counsel for the plaintiff and Mr.N.Muthuswami, the learned counsel for the defendants.
5. Issue No.2: The suit has been filed by the plaintiffs who are the wife , daughter and mother of the deceased person, who died in an accident due to the electrocution happened on 27.07.2005, in front of the house where the third plaintiff was residing. The said accident was said to have happened due to the electrocution of the deceased person when he attempted to take his moped TVS 50 parked in front of the house where the third plaintiff was residing when it was informed by the passers by that his moped had fallen down. According to the plaintiff, the deceased Samuvel married the first plaintiff in the year 2000 and they had a child, the second plaintiff herein in the year 2004. The deceased Samuvel was working as a peon in a private company, despite he was a Graduate in BBA and had passed Post Graduate Diploma in Computer Application. It is also the case of the plaintiffs that the entire family was depending upon the income of the deceased Samuvel, who was earning a sum of Rs.5,000/- along with perks. It is the further case of the plaintiff that the said deceased Samuvel also passed technical exams as Junior Grade in Typewriting and had undergone courses of the supervision and Management of assistance in small industries. It is further submitted on behalf of the plaintiffs that he would have earned more in future if he was alive.
6.However, the defendants have denied the accident that it was not due to the negligence of the Electricity Board or their men and they did not dig any ditch on the previous day for repairing the under ground cable. Further it has been contended by the defendants that the claim of the plaintiffs are excessive.
7. The plaintiffs examined, first plaintiff as PW1 and third plaintiff as PW2 and had produced Exs.P1 and P17 in order to substantiate their case. The defendant examined as DW1 Assistant Executive Engineer of the Department and he produced the documents as D1 and D2 in order to disprove the case of the plaintiffs.
8. According to the submissions made by both sides and the case culled it out from the pleadings and evidence, the admitted facts have emerged as follows:-
i) The plaintiffs are the legal representatives of the deceased Samuvel who died in the electrocution incident.
ii) The death certificate as well as the post-mortem certificate produced in Ex.P10 and P12 would show that the deceased samuvel died due to the electrocution which happened on 27.07.2005.
iii) The electrocution was caused due to the contact of the TVS XL vehicle with the joint of the underground cable at the accident spot.
9.Now the point for consideration is whether the electrocution was caused due to the negligence of the employees of the defendant board.
10.The arguments submitted by the learned counsel for the plaintiffs would go to show that the Assistant Executive Engineer who had filed the written statement had categorically admitted that he had come to know about the accident that had happened because of the contact of the moped stand with the joint of the cable. Therefore, she would submit that the cable was repaired on the previous day and it had been left with joint, without any insulation with the risk of electric shock. She would submit that it would clearly prove the negligence of the defendant’s men. She would also draw the attention of the Court that the evidence of DW1 would not depict any truth in this case since his evidence would go to show that there was no joint in the cable and the cable was properly insulated with plastic insulation and the stand of the moped T.V.S 50 belonging to the deceased should have pierced into the cable and touched the cable, for causing electrocution, the said evidence is contrary to the pleadings of the defendant that electrocution happened due to the contact of the joint of the cable with the moped.
11. Considering the submissions, we have to look into the arguments of the learned counsel for the defendant. The learned counsel for the defendant would state in his argument that Ex.D2 has produced by the defendant would go to show that there was no complaint for repairing the under-ground cable running in front of the house where the third plaintiff is residing and if any complaint is given, it would have registered in the fuse of call register Ex.D2 and therefore, the plaintiffs’ case regarding the repairing of cable on the previous day cannot be true.
12. On a careful consideration, I could see that the admitted case of the defendant that there was a joint in the cable and due to contact of the moped T.V.S.50 with the said joint, the accident had happened would go to show that the under ground cable laid in front of the house belonging the the third plaintiff would not be an intact cable. It has got a joint at that place, where the accident had taken place. According to the evidence of DW1, there was no joint in the cable and the stand of the moped T.V.S.50 had pierced and contacted the life wire inside cannot be true. When the pleadings of the defendant is varying from the evidence of DW1, it cannot be relied upon. On the other hand the evidence of PW2, the mother of the deceased who was present at the time of accident in the house, that there was a repair work done on the previous day and the men belonging to the department had left the joint without insulation and had covered the joint with a small quantity of mud. The said evidence of PW2, coupled with the admissions made by the defendants, we could presume that the electrocution happened to the deceased Samuvel was due to the unattended work of the defendant’s men who repaired the cable on the previous day. The contention that nothing was mentioned about the said repair work in the fuse of call register Ex.D2 is in no way helpful to the defendants. Under Rule 91 of the Tamil Nadu Electricity Rules 1956, the Electricity Board is liable to pay compensation for the electrocution of any person as per the judgment of this Court made in 2008(4) LW 289 in between Chairman, Tamil Nadu Electricity Board and another v.Mrs.Lalitha and 2 others. The relevant passage would run as follows:-
“It is clear that Rule 91 of the Indian Electricity Rules, 1956 stipulates that every overhead electric line erected over any part of a street or other public place or any factory or mine or any consumer’s premises shall be protected with a device approved by the Inspector for rendering the line electrically harmless in case it breaks. It is seen that the electrocution had occurred only in the open place of the village and a poor man and his dependents were made victims.”
The same principle laid down in Rule 39 of Indian Electricity Rules is applicable to the cables laid down for the conduction of electricity. According to Rule 39 of Indian Electricity Rules 1956, the protection through insulation of such cables have been enumerated, it runs as follows:-
Para: 39. Cables protected by bituminous materials:-
(1) Where the supplier or the owner has brought into use an electric supply line (other than an over-head line) which is not completely enclosed in a continuous metallic covering connected with earth and is insulated or protected in situ by composition or material of a bituminuous character-
(i) any pipe, conduit or the like into which such electric supply line may, have been drawn or placed shall, unless other arrangements are approved by the Inspector in any particular case, be effectively sealed at its point of entry into any street box so as to prevent any flow of gas to or from the street box; and
(ii) such electric supply line shall be periodically inspected and tested where accessible, and the result of each such inspection and test shall be duly recorded by the supplier or the owner.
(2) It shall not be permissible for the supplier or the owner after coming into force of these rules, to bring into use any further electric supply line as aforesaid which is insulated or protected in situ by any composition or material known to be liable to produce noxious or explosive gases on excessive heating.”
13.In view of the aforesaid judgment, coupled with Rule 39 of Indian Electricity Rules, I have no hesitation to hold that the defendant is responsible for the cause of the accident happened to the deceased Samuvel due to electrocution.
14. Therefore, the defendant board namely, Electricity Board is vicariously liable to pay compensation to the kith and kin of the deceased Samuvel.
Accordingly, issue No.2 is decided against the defendant.
Issue No.1:
15. The deceased Samuvel was working as a peon in a private company at the time of his death. The documents which are produced in this case would go to show that he was a Degree holder in B.B.A. and had also obtained a Post Graduate Diploma in Computer Application. In the aforesaid circumstances, the future prospectus of the deceased Samuvel would be high. There was no denial of evidence adduced by PW1. The plaintiffs 1 to 3 are not employed persons and they were depending on the income of the deceased Samuvel.
16. According to the Judgment of the Hon’ble Apex Court reported in 2009 6 SCC 121 and others in the case of Sarla Verma v.Delhi Transport Corporation and another, the relevant passage applicable would be as follows:-
“Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra case, (1996) 4 SCC 362, the general practice is to apply standardised deductions. Having considered several subsequent decisions of the Supreme Court, it is opined that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.”
It has been categorically laid down that when the dependents are more in number, the dependency could have been fixed at 3/4th instead of the normal deduction of 2/3rd in accordance with that when we calculate the dependency at 2/3rd out of the total income at Rs.5000/- plus Rs.625/- towards perks, we could see that the plaintiff would be entitled to a sum of Rs.3750/- per month from and out of the earnings of the deceased Samuvel. Accordingly, the annual dependency would be Rs.3750 X 12 = Rs.45,000/-.
17. As far as the age of the deceased Samuvel is concerned, he was only 32 years old at the time of his death. In the same judgment the Hon’ble Apex Court categorically pointed out that for a 32 years old person the multiplier 16 has to be applied. So, when we calculate the multiplier 16 with the annual dependency the compensation payable would be at Rs.7,20,000/-. The first plaintiff is a young widow who is running her life for the remaining years without any marriage and therefore, she is entitled for a sum of Rs.50,000/- under the caption of loss of consortium. The second plaintiff is the child who lost her love and affection from her father and she is entitled to a sum of Rs.15,000/- for the loss of love and affection. The third plaintiff is the old mother of the deceased who had lost her son’s guardianship during the evening of her life. In these circumstances, she is also found entitled to a sum of Rs.10,000/- for the loss of love and affection. As regards funeral expenses is concerned a sum of Rs.5,000/- is found payable to plaintiff’s, thus a total sum of Rs.8,00,000/- is directed to be paid to the plaintiffs by the defendants with interest at 8% per annum with proportionate costs.
18. The rest of the plaintiffs’ claim is dismissed without costs. Out of the said compensation, the plaintiff 1 and 2 are equally entitled to a 75% of the compensation. The remaining 25% has to be paid to the 3rd plaintiff. The share of the 2nd plaintiff shall be invested in the Indian Bank, High Court Branch for a period till she attains the age of majority and the first plaintiff is entitled to withdraw the accrued interest once in three months from the said fixed deposit towards the maintenance of 2nd plaintiff. Time for depositing the decree amount is one month.
.03.2010
Index : Yes /No
Internet : Yes / No
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V.PERIYA KARUPPIAH, J.,
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Pre-Delivery Judgment in
C.S.No.727 of 2008
.03.2010