JUDGMENT
A.B. Pal, J.
1. The Judgment and award dated “23.11.1999 passed by the District Judge, West Tripura, Agartala in T.S. (F. A.) No. 07 of 1997 stands impugned in the present appeal preferred by the State of Tripura. An amount of Rs. 4,00,000/- (rupees four lakhs) with interest at the rate of 12% per annum on failure to pay the amount to the claimants-respondents within a period of three months has been awarded by the judgment impugned.
2. In a tragic accident four members of a family were electrocuted to death on 2.10.1996. On the fateful evening the deceased Gautam Paul (35) along with his wife Rachana Paul (25) and their two daughters aged 8 and 4 were returning home from Maharajganj Bazar. Due to heavy rain-pour even the main road went underwater. Unfortunately, a live electric wire from the main power line had fallen on the road, which could not be noticed due to rainwater and darkness. Gautam came in contact with the said live wire and got electrocuted. He cried for help. To save him, his wife and two daughters, panicked as they were, touched him and got electrocuted. All four persons died on the spot. Another boy of the neighbourhood aged 17-18 years came to their rescue but died the same way.
3. Gautam left behind his old parents as the surviving legal heirs. A criminal investigation was initiated following an FIR lodged on the following day in the East Agartala Police Station. A case was registered under Section 304 (A) of the Indian Penal Code and after completion of the investigation the said case (GR. Case No. 805 of 1996) came to be tried by the Chief Judicial Magistrate, West Tripura, Agartala. The parents instituted the present suit under the Fatal Accidents Act, 1855 claiming compensation of Rs. 24,20,000/- for the accidental death of four persons who were their son, daughter-in-law and grand children. In support of the amount claimed the income of the deceased Gautam Paul and his wife Rachana Paul had been shown to be Rs. 4,000/- and Rs. 1,000/- per month respectively. It has been claimed that Gautam was a businessman and his wife was Crafts woman earning from Cane works.
4. The power department of the State Government being responsible for generation, transmission and supply of power in the State, it was contended on behalf of the claimants that maintenance of power line was also their sole responsibility. As the accident had occurred from live-wire fallen from the service-main of the power line, the said department is contended to be guilty of negligence and thus liable to compensate for the loss of lives of the persons aforementioned.
5. But the State and other official respondents their written statement bluntly denied any responsibility contending inter alia that no electrical accident had at all occurred on the date and time aforementioned and no electrical wire was lying on the road.
6. Their further contention is that the installation and electrical lines are periodically checked. If there was any extension of electric line from the service main, which had allegedly fallen on the road a First Information Report (FIR) would have been lodged in the police station concerned and the unauthorized service line would have been disconnected. It has however been admitted that one Bhuban Sutradhar lodged an FIR in the East Agartala Police Station stating that an accident had taken place from unauthorised hook line drawn from the service-main claiming lives of four persons on 2.10.1996.
7. It is then contended that as the State-appellants herein were not responsible–for the hook line unauthorisedly drawn for power theft, the deaths resulting there-from cannot be an actionable wrong on their part and consequently no liability to pay compensation can be fastened with them
8. The learned trial court framed four is-sues and proceeded to determine the same on the basis of two witnesses examined by the claimants and other materials on records. On admission the first issue regarding maintainability of the proceeding has been decided in the affirmative.
9. The rest three issues relate to the factum of accident, the deaths by electrocution and the claim for compensation including just and reasonable amount. The first witness is the father of deceased Gautam according to whom his son was earning Rs/; 3000-4000/- per month from his business: His daughter-in-law was however, earning Rs. 1000/- per month only from her cane-works. The sudden loss of his son and other members of the family shocked him and his wife beyond repair and deprived them of their dependency. The father was aged 55 years when he deposed on 6.11.1998. In other words, he was 53 on 2.10.1996 when the accident had occurred.)
10. The other witness is a neighbour who supported the claim of the father that the deceased Gautam was a businessman, though according to him, the monthly income of Gautam was Rs. 5,000/- while that of Rachana was Rs. 1200/-. He further stated that the occurrence was reported to the police station immediately and on the following day the staff of electric department came to the place of occurrence and tried to settle the matter amicably.
11. Apart from the evidence of two witnesses aforementioned the learned trial court obtained the case record of GR.-805 of 1996 from the court of the Chief Judicial Magistrate and after perusal of the same observed that Gautam, his wife and children died after being electrocuted on the date and time aforementioned. As the State in the department of power did not adduce any evidence to controvert the claim made and sought to be substantiated by oral and documentary evidence, the learned trial court decided all the remaining three issues in favour of the claimants holding that they are entitled to compensation and the State is liable to bear the responsibility.
12. As regards the quantum of compensation learned trial court has not employed any method of calculation. Instead, in consideration of the death of four persons, a lump sum amount of Rs. 4,00,000/- has been awarded. Aggrieved, the State has come in appeal calling in question correctness and legality of the decision of the learned trial court so arrived at.
13. We have heard learned Counsel for the parties. From a careful perusal of the grounds taken in the memorandum of appeal it would appear that the main thrust of the attack to the judgment impugned has been built on the basis of the provisions contained in the Indian Electricity Act, 1910 with special reference to the scheme of compensation contained therein to cover such death or other damages due to any accident resulting from generation, transmission, supply or use of energy. It has been submitted on behalf of the appellants that Section 33 of the said Act provides that the Electrical Inspector shall be the ” authority to inquire into any accident in connection with generation, transmission, supply or use of energy and such inquiry shall be initiated following notice of such occurrence to him.
14. No such inquiry could be done as nobody gave any notice to the Electrical Inspector in the present case. However, it has been admitted that theft of electricity is a punishable offence under Sections 39,40 and 41 of the said Act, which is usually done by hook line. The appellants also admitted that such crimes are alarmingly on the rise in the State and the law enforcing agency has failed to rise to the occasion. It is then contended that as there is no possibility for the police to stop such crime in distant future and theft of energy by hook line has become a common and recurring phenomenon, the Power Department of the State Government cannot bear the responsibility of compensating loss of lives if the same occurs from unauthorized tapping of electricity
15. As regards the claim of compensation arising from such accident it is agreed that the State Government has set up a Committee to consider such claims and pay compensation as ex-gratia for loss of human life, animal life and other losses. As no such claim was lodged with the said Committee and as the alleged occurrence does not have any relation to generation, transmission and supply of energy there is no wrongful act or negligence on the part of the said department and, therefore, the amount awarded against the State is unsustainable in law,,
16. Another important argument advanced by the learned State counsel is that even if it is held that the claimants -parents are entitled to get compensation, such claim should be restricted only for the loss of their son Gautam. They are not entitled to claim anything for the loss of their daughter-in-law or grand children. Referring to the provision of Section 2 of the Fatal Accidents Act, 1855 it is argued that the suit or action shall be for the benefit of the wife, husband, parents and child of the person whose death is caused by such accident. The claimants being the parents of their son Gautam, the compensation should be restricted to the loss of their son only, not for others.
17. Per contra, the submission advanced by learned Counsel for the claimant-respondents is that the appellants have not adduced any evidence, oral or documentary, to substantiate their contention that the accident had occurred from unauthorized hook line drawn from service main. As admittedly the live wire had fallen from service main and in the absence of any evidence to the contrary it has to be held that the said live wire belonged to the State appellants whose department being in-charge of supply of power cannot deny responsibility of constant maintenance of the power line.
18. It has further been argued that nothing has been brought on record by the power department to controvert the observation of the learned trial court recorded on the basis of the records of the criminal trial court about factual position of the occurrence. It is pointed out that though in the written statement the appellants denied any such accident, they finally admitted that an FIR was lodged following which a criminal investigation into the accident was initiated. P.W. 2 has clearly stated that the Power department officials came to the place of occurrence on the following day and tried to settle the issue amicably.
19. It is, thus, very much evident that the accident from the electric live-wire causing the tragedy aforementioned and the possible liability of paying compensation were very much within the knowledge of the officials of the said department. No explanation has been offered why nothing was done under the Indian Electricity Act, 1910 or the scheme framed there-under to enquire into the cause of the accident as well as the liability to pay compensation even after the matter came to their knowledge soon after the accident. The department thus knowingly and intentionally tried to avoid its statutory liability.
20. After careful consideration of the rival contentions set out above and appreciation of the materials on record we have no hesitation to agree with the findings of the learned trial court that the accident had occurred from the live-electric wire fallen from service main of the power line maintained by the appellant. As nothing has been brought on record in support of the contention that the live wire was actually drawn by unauthorized persons for theft of power, the argument placed on that basis to shark the responsibility arising there-from is totally misplaced. It is really shocking to note that though a tragedy of such a magnitude had occurred claiming five lives on the fateful evening and the officials of the Power department visited the place on the following day, no inquiry under Section 33 of the Indian Electricity Act and other enabling provisions was at all initiated. Admittedly, the appellants had the knowledge of a criminal investigation initiated from the FIR lodged in connection with said accident. No explanation has been offered as to why the appellants have failed to press into service the scheme formulated for compensating loss of lives. What has surpassed every other issue is, to our consternation, the utter apathy of the officials of the Power department who have shown an abysmal lack of humanitarian roach.
21. After having unhesitatingly held, like the earned trial court, that the State appellant is responsible for the actionable wrong which led to the loss of lives of four persons of the same family we have turned our consideration to the amount awarded. As has been seen above, the amount of Rs. 4,00,000/-, has been assessed without employing any method of calculation. We appreciate and accept the submission of the learned State Counsel that in view of the provision in Section 2 of the Fatal Accidents Act, 1855 the claimant parents are entitled to compensation for the loss of their son only. The said provision reads:
2. [***] Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator, or representative of the person deceased;
And in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct.
22. Thus, even if it is accepted that the maximum monthly income of deceased Gautam Paul was Rs. 4,000/- only, the parents would not have got from him more than 1 /3rd of the same for the reason that 2/3 rd of his income would certainly have to be spent for him, his wife and children. Thus, l/3rd of the amount of Rs. 4000/- comes to Rs. 1,333/-, say Rs. 1400/-, which is required to be multiplied by appropriate multiplier. It would appear that the father of the deceased Gautam was aged only 53 at the time of accident. Therefore, the age of the mother is not likely to be more than 50 on that date. Taking the aid of the multiplier mechanism provided in the second schedule of the Motor Vehicles Act it would appear that the appropriate multiplier could be 13. The just and appropriate amount of compensation would thus be Rs. 1400 x 12 x 13 – Rs. 2,18,400/-. With this amount we allow another sum of Rs. 25,000/ – as conventional amount to cover all non-pecuniary aspects of the loss to bring the amount to Rs. 2,43,400/-. The amount shall bear interest at the rate provided in the judgment impugned from the date specified therein.
For the reasons and discussions aforementioned this appeal is partly allowed modifying the award indicated above leaving the parties to bear their own cost.