IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.09.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S. No.587 of 2003 1.The Chief Engineer, Tamil Nadu Electricity Board, Mount Road, Chennai-2. 2.The Superintending Engineer, Tamil Nadu Electricity Board, Cuddalore N.T. 3.The Divisional Engineer, Tamil Nadu Electricity Board, Chidambaram. ...Appellants Vs. 1.V.Sundari 2.Minor V.Sundar 3.Minor V.Sudhagar 4.Minor V.Suganya (Minors 2 to 4 are represented by Mother and Guardian First Respondent V.Sundari) 5.S.Manoranjitham 6.S.Chitra 7.S.Dayalan 8.S.Kala 9.Minor S.Mala (Minor Mala rep. By Mother and Guardian Fifth Respondent S.Manoranjitham) ...Respondents Prayer: Appeal filed under Section 96 of C.P.C. against the Judgment and Decree dated 23.07.2001 made in O.S.No.90 of 1998 on the file of Sub Court, Chidambaram. For Appellants : Mr.N.Muthuswami (TNEB) For Respondents : Mr.N.Moontu Ugaindiran for M/s. R.Srinivas J U D G M E N T
The Appellants/Defendants have projected the present Appeal as against the Judgmen and Decree dated 23.07.2001 in O.S.No.90 of 1998 on the file of Sub Court, Chidambaram.
2.The trial Court on an appreciation of oral and documentary evidence available on record while passing the Judgment in O.S.No.90 of 1998 dated 23.07.2001 has among other things observed that ‘the Respondents/Plaintiffs are entitled to receive a sum of Rs.5,44,000/- as compensation from the Appellants/Defendants together with subsequent interest at 9% p.a. from the date of plaint viz., 05.01.1998 till the date of realisation with costs, etc.,’ and decreed the suit accordingly.
3.The trial Court has framed two issues for adjudication. On the side of the Respondents/Plaintiffs, Witnesses P.Ws.1 and 2 were examined and Exs.A1 to A7 were marked. On the side of the Appellants/Defendants, Witness DW1 was examined and Exs.B1 to B3 were marked.
4.Being aggrieved against the Judgment and Decree passed by the trial Court in O.S.No.90 of 1998 dated 23.07.2001, the Appellants/Defendants have projected this Appeal before this Court.
5.The point that arises for rumination in this Appeal is:
Whether the Respondents/Plaintiffs are entitled to claim a compensation of Rs.10,00,000/- for the death of Vaithilingam from the Appellants/Defendants jointly and severally with interest at 12% p.a.?
CONTENTIONS, DISCUSSIONS AND FINDINGS ON POINT:
6. The Learned counsel appearing for the Appellants/Defendants submits that the trial court has committed a material error in arriving at a conclusion that the death occurred due to improper maintenance of the wire and negligence of the Appellants and the incident took place owing to an Act of God that electric wire got snapped which caused the alleged death of the Deceased and that the Appellants are no way responsible for the death of the Deceased but these aspects of the matter has not been materially adverted to by the trial court in a proper legal perspective which has resulted in a serious miscarriage of justice.
7.Advancing his arguments, it is the contention of the Learned counsel for the Appellants/Defendants that the trial court has misdirected itself in accepting the self serving evidence of the Plaintiffs’ side witnesses Nos.1 and 2 while deciding the case against the Appellants Board to the effect that the Plaintiffs live in one place and in any event, the finding of the trial court bristles with surmises and conjectures and therefore, prays for allowing the Appeal to promote substantial cause of justice.
8.In response, the Learned counsel for the Respondents/Plaintiffs submits that the trial court has taken note of all the relevant facts and circumstances of the case in an integral fashion and has arrived at a conclusion that the Appellants/Defendants are liable to pay a sum of Rs.5,44,000/- as compensation together with interest at 9% p.a. from the date of filing of the plaint till date of realisation, etc., and this need not be disturbed by this Court sitting in Appeal.
9. P.W.1 (First Respondent/Plaintiff-Wife of the Deceased Vaithilingam) in her evidence has deposed that her Deceased husband worked as a Driver in Thanthai Periyar Transport Corporation on a monthly salary of Rs.4,500/- and apart from that her husband received annual bonus, etc., and on 30.11.1997, at about 10.00 a.m., in Mazhavarayanallur Village, behind her house the Deceased went for a natures call and she went and saw him since he had not returned. At that time, the electric wire fell and it was on her husband’s body and he died because of coming into contact with the electric wire and the people from the street came there and she had given a complaint before the Police Station.
10. It is the evidence of PW1 that her husband’s sister and parents, her children all were dependent on her husband’s income and the sixth Plaintiff after filing of the suit got married to and the Eighth and Ninth Plaintiffs were not married and she claims a compensation of Rs.10,00,000/-.
11. P.W.1 in her cross-examination has categorically denied the suggestion put on the side of the Appellants/Defendants to the effect that on the date of occurrence, there was a cyclone along with rain and as such, the electric wire snapped and fell down and using the same, she claims a higher compensation. However, P.W.1 in her cross-examination has stated that on the date of occurrence, there was a slight rain but there was no wind and that the place where her husband died is at a distance of 20 metres away from her house and near the tooth side and on the face, neck, hand of her husband, there were burnt injuries.
12. The evidence of P.W.2 is to the effect that on the date of occurrence, he came to the road way from his house at about 10 o’ clock in the morning and he asked the Deceased Vaithilingam as to why water was not coming and as to why the light was not burning and the Deceased Vaithilingam was talking to him for some time and since he went for answering the natures call even after an half hours time, he had not turned up and when he went and saw him, at that time, a wire was encircling on him and he was not alive and his body was like a burnt one and the electric wire was going to the motor and immediately he phoned up to the Electricity Board and noone had come to the spot and therefore, he went directly to Sethiyathoppu Police Station and lodged a complaint.
13. P.W.2 in his evidence has categorically stated that because of the electric wire getting snapped, the Deceased died and further that he had not written the complaint and he does not know the person who wrote the complaint.
14. It is the evidence of P.W.2 in his cross examination that he had not seen the Deceased died directly and he does not know personally the reason for the death of the Deceased and he had not known about how many wires were encircling over the body of the Deceased.
15. D.W.1 (the Wireman of the Electricity Board) in his evidence has stated that the Department had no information that on 30.11.1997, the First Respondent/First Plaintiff’s husband died because of the electrocution and in their office, there was no Watchman and every month, they used to maintain the electric wire and before the date of occurrence, 15 days ago, they would have maintain the electric wire and that the said wire were in proper condition and the Plaintiffs are residing unitedly and they are not residing separately.
16. The evidence of DW1 is also to the effect that the electric wire because of electrocution got snapped and fell down and he repaired the snapped wire and the wire is low tension wire and when they went to the scene of occurrence, it was a marshy one and in that place, if a electric wire fell down, the said particular place would get burnt.
17. Ex.A1 is the xerox copy of the First Information Report in Crime No.750/1997 of Sethiyathoppu Police Station registered under Section 174 of the Criminal Procedure Code. The complainant is one Krishnamoorthy. In Ex.A1, F.I.R., the Complainant has mentioned that on 30.11.1997, at about 10 o’ clock in the morning, they were talking in pial of the house in a laughing manner and at that time, the Deceased informed him that his stomach was aching he would like to answer the natures call and for that purpose, he was going to the back side and since he had not returned for a long time and at that time, when he went behind and saw Vaithilingam lying on the floor and the snapped electric wire was on the body of the Deceased Vaithilingam and he died after getting burnt.
18. Ex.A3 is the Legal Heir Certificate in and by which his wife, sons and his parents have been shown as his legal heirs. Ex.A4 is the Death Certificate in respect of the Deceased Vaithilingam. Ex.A5 is the Salary Certificate of the Deceased Vaithilingam which shows that his total salary was Rs.4,220.20p and after deductions, the take home salary was Rs.2,006/-.
19. In Ex.A6 Post Mortem Report dated 30.11.1997 in respect of the Deceased Vaithilingam, the Doctor has opined that ‘the Deceased would have appeared to have died of Electric Shock with intracranial Brain injury (contusion and bleeding in the brain substance) and in the varovagal attack.
20. Though the Respondents/Plaintiffs alleged that the live wire of the Defendants Department fell upon the Deceased Vaithilingam and he died on the spot because of the electrocution, the same was denied by the Appellants/Defendants in their Written Statement. Also, the plea taken by the Appellants/Written Statement was that there was heavy storm on 30.11.1997 and the electric wire was cut down by the storm wind due to Act of God and the death was not due to electrocution and further, there was no intimation to the Department in respect of the occurrence and there was no notice claiming compensation.
21. It is significant for this Court to make a relevant mention that the term ‘Negligent’ has three meanings i) a state of mind, in which it is opposed to intention ii) careless conduct and iii) the breach of a duty to take care that is imposed by either common or statute law. The three meanings which will apply in different circumstances but any one of them does not exclude the other meanings necessarily. A negligent state of mind is consistent with an intention to exercise, at any rate, some care, etc., The use of the word ‘Negligence’ may also be a careless conduct without reference to any duty being imposed to take case and in fact, the term ‘Negligence’ is defined as the omission to do something which a reasonable man, guided upon those consideration which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
22. The other meaning of the term ‘Negligence’ is a breach of duty to take care and it is relying the absence of such care and it was the duty of the Defendant to use. As per decision GRILL V. GENERAL IRON SCREW COLLIER CO. , (1866) L.R.1 C.P. 600, 612, a duty to take care can be imposed by law or can be created by contract or trust. ‘Negligence’ a breach of duty, is a specific tort in itself.
23. In an action for negligence, the Plaintiff must establish three things. They are,
i) a duty on the part of the Defendant to take reasonable care towards the Plaintiff to avoid the damage complained of;
ii) a breach of that duty by the Defendant,
iii) a casual relation between the breach of duty and the damage complained of.
24.It is to be noted that ‘Reasonable Care’ means the care and foresight of a reasonable man and therefore, the Plaintiff can succeed if he can show that the Defendant as a reasonable man should have foreseen the kind of damage that actually happened to him as per decision HINZ V. BERRY (1970) 2 Q.B. 40.
25. The burden of proving that there was no negligence is on the Electricity Board concerned as there was no obligation placed on the individual, who has suffered damage to prove negligence. The standard of care envisaged is a superior one owing to the dangerous nature of electricity. Where a person was injured as a result of breach by electricity undertaker of a regulation, then he has a right of action against the undertaker in respect of such breach, independently of any question of negligence.
26. When electricity is carried overhead by wires or cables in addition to any precautions required by statute, great care must be taken to see that it is not likely to become a source of danger. The liability of of persons who own or control electricity without any Statutory Authority has its birth in the case of RYLANDS V. FLETCHER, (1868) LR 3 H.L. 330. The persons who instal or disconnect electric equipment are only liable for negligence at a high degree of care is required. Their liability is similar to that of persons who install or disconnect gas.
27. As far as the present case is concerned, the Photos viz., Ex.A7 and Negatives have been marked by the Respondents/Plaintiffs showing the place of accident. D.W.1 in his cross-examination has specifically admitted that he has rectified or repaired the snapped wire on the date of occurrence. From Ex.A6, Post Mortem Report, it is clear that the Deceased died of electric shock, etc.,.
28. P.W.2 has specifically stated in his evidence that he telephoned to the Electricity Board but noone has come to the spot and further, P.W.1 has also deposed that even after the accident, he has given information about the accident. In the instant case, as seen from the evidence of P.W.2 that he informed through telephone and the Electricity Department has visited the scene of occurrence and they have stopped the electricity supply and they have also changed the wire and under these circumstances, the contra stand taken by the Appellants/Defendants is untenable and is not accepted by this Court.
29. In view of the evidence of P.W.1, especially the evidence of P.W.2, it is quite clear that on the Deceased Vaithilingam’s body, the snapped wire fell and because of electric shock, he died and therefore, the Electricity Board is squarely responsible for his death and the point is answered in favour of the Respondents/Plaintiffs and against the Appellants/Defendants by this Court.
30. Coming to the quantum of compensation to be awarded in the present case, the Appellants/Plaintiffs have claimed a sum of Rs.10,00,000/- as compensation for the death of Vaithilingam and the same to be paid by the Appellants/Defendants jointly and severally with interest at 12% p.a. Ex.A5 is the Salary Certificate of the Deceased Vaithilingam. From the Salary Certificate Ex.A5, it is quite clear that the Deceased was earning a sum of Rs.4,251.20p per month. At the time of his death, though in the plaint Vaithilingam’s age was said to be 37 but in the Post Mortem, Ex.A6 it was mentioned as 40 and that the trial Court had took the age as 40. The trial Court had adopted a multiplier of 16 and from and out of the salary of Rs.4,251.20p, leaving 1/3rd towards his personal expenses, the balance of Rs.2,834/- was taken into account as contribution to the family of the Deceased Vaithilingam and therefore, the trial Court had awarded a total sum of Rs.5,44,000/- as compensation in respect of the death of the Deceased Vaithilingam. Further, the trial Court had awarded interest at 9% p.a. from the date of filing of the plaint on 05.01.1998 till date of payment.
31.Though on the side of the Appellants/Defendants, a plea has been taken before this Court that the Respondents 6 to 9 are only Brothers and Sisters of the Deceased and they are not entitled to claim compensation, this Court is of the considered view that the Respondents 1 to 4/Plaintiffs are the Wife and the Children of the Deceased and the Fifth Respondent is the Mother of the Deceased and even though the Respondents 6 to 9 are said to be the Brothers and Sisters of the Deceased, since they depended on the income of the Deceased Vaithilingam and since a direction was issued by this Court in C.M.P.8801/2003 dated 22.04.2004 to the effect that the First Respondent/Plaintiff is permitted to withdraw the interest accrued on minor shares viz., the Respondents 2 to 4 and the Fifth Respondent therein has been permitted to withdraw the interest accrued on minor shares viz., the Ninth Respondent every quarterly till they attain majority and on attaining majority, the minors are permitted to
withdraw 50% of their respective shares and the balance shall continue to remain in the fixed deposit till the disposal of the appeal. At this stage, this Court is not inclined to disturb the same and looking at any angle and in view of the qualitative and quantitative discussions mentioned supra and on consideration of the relevant facts and circumstances of the case, in a conspectus fashion, this Court comes to an inescapable conclusion that the Judgment of the trial Court in awarding a compensation of Rs.5,44,000/- together with interest at 9% p.a. from the date of filing of the plaint viz., 05.01.1998 till date of realisation together with costs was not an excessive or exorbitant or extravagant one and the same does not suffer from any material irregularity or patent illegality and therefore, it does not require any interference in the hands of this Court at this stage of the Appeal and the point is answered accordingly and viewed in that perspective, consequently the Appeal fails.
32. In the result, the First Appeal is dismissed leaving the parties to bear their own costs. Consequently, the Judgment and
M.VENUGOPAL,J.
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Decree of the trial Court in O.S.No.90 of 1998 dated 23.07.2001 are affirmed by this Court for the reasons assigned in this Appeal. It is open to the Respondents/Plaintiffs to project an Interlocutory Application before the trial Court as per Rule 166 of the Civil Rules of practice for withdrawing their respective shares amounts, if any in the manner known to law and the trial Court is to permit them to withdraw the same of course, if necessary by providing adequate opportunities to the Appellants/Defendants in the manner known to law and in accordance with law.
13.09.2010
Index :Yes/No
Internet:Yes/No
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To
The Sub Court,
Chidambaram.
A.S.NO.587 OF 2003