JUDGMENT
Padmanabhan Nair, J.
1. The defendants in O.S.No. 639 of 1993 on the file of the Subordinate Judge’s Court, Ernakulam are the appellants. The appeal is filed against the judgment and decree passed by the court below awarding an amount of Rs. 1,50,000/- as compensation on account of the death of Suresh Kumar, son of respondents 1 and 2 and the brother of other respondents.
2. Deceased Suresh Kumar was working as a cleaner-cum-checker in a stage carriage Bus bearing Registration No. KL-7 8937 plying between Kakkanad and Perumbadappu. At or about 4.30 a.m. on 29-6-1990, the deceased was walking along the pathway at Vazhakkala to fetch water from a public tap situated on the side of the road for cleaning the bus. An electric wire drawn over the pathway broke down and was lying on the pathway. Suresh Kumar accidentally touched the live wire. He sustained electric shock and died. The respondents who are the legal heirs of deceased Suresh Kumar filed the suit claiming compensation alleging that the power line drawn over the pathway was under the control and management of the first appellant and officers and employees working under it. It was alleged that the incident took place on account of the negligence of the appellant and its employees. It was also averred that the over head electric line was not properly maintained by the appellants so as to prevent danger or accident. It was also alleged that there was persistent friction of overhanging branches of the trees with the electric wire. Though several people of the locality had alerted the officers of the appellants regarding the state of affairs, they were keeping quiet and hence the appellants are liable to pay compensation. It was further averred that Suresh Kumar was aged 24 at the time of death and was healthy. He was working as a Cleaner-cum-Checker in a State Carriage and was earning not less than Rs. 100/- per day as wages. It is also averred that the appellants paid Rs. 15,000/- as ex gratia amount but failed to pay reasonable and adequate compensation. Hence the suit claiming an amount of Rs. 2.5 lakhs as compensation.
3. The appellants filed a written statement contending that the suit is not maintainable. It is contended that the incident occurred on 29-6-1990 and the suit was filed only on 28-6-1993. It is contended that in view of the provisions contained in Article 82 of the Limitation Act, which prescribes a period of two years from the date of accident, the suit is barred. The averment that the deceased was working as a cleaner-cum-checker and was earning Rs. 100/per day was denied. It is contended that had the deceased been more careful, the accident could have been avoided. It is averred that due to heavy rain and wind, a cadjan leaf from a coconut palm which was standing outside the clearance area fell on the line causing breakage of the live conductor. The averment that the incident occurred due to the negligence of the appellants was denied. It is contended that there was no negligence on the part of the appellants and the Board never received any complaint from the persons living in the locality. The accident was quite unforeseen and due to reasons beyond the control f the officers of the appellants. The averment that there were overhanging branches which posed threat to the live line was denied. It was also contended that the Board has taken all necessary safety measures. The quantum of compensation claimed under various heads is denied. The averment that the respondents were depending on the deceased was also denied. It was contended that even though there was no negligence on the part of the officers of the Board, an amount of Rs. 15,000/- was paid as ex gratia payment. Hence the appellants prayed for dismissal of the suit.
4. The learned Subordinate Judge, after considering the evidence, found that the incident occurred due to the negligence of the appellants and decree the suit. That judgment and decree are under challenge in this appeal.
5. The learned counsel appearing for the appellants vehemently argued that even though a specific contention regarding limitation was raised, the learned Subordinate Judge did not consider that point property. It was argued that the finding of the learned Subordinate judge that Article 113 of the Limitation Act applies to the facts of the case is not correct. It is also contended that the finding of negligence is not based on any evidence and the quantum awarded is highly excessive.
6. We shall first consider whether the suit is barred by limitation. The case put forward by the appellants is that the correct article which applies to the facts of this case is Article 82 of the Limitation Act and not Article 113 as found by the court below. It is argued that the respondents claimed compensation under Section (1A) and (II) of the Fatal Accidents Act and there is no other provision which enables to maintain an action claiming damages in a case of this nature. The appellants have also relied on a decision reported in Madan Gopal v. Dr. Rugmini (1988 (2) K.L.T. 442) and argued that in a case coming under Section (1A) of the Fatal Accidents Act, Article 82 of the Limitation Act applies and Article 113 has no application.
7. The learned counsel appearing for the respondents relied on the decision reported in Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat ((1994) 4 S.C.C.1) and State of Andhra Pradesh v. Chella Ramakrishna Reddy (A.I.R.2000 S.C.2083) and argued that this is a suit for damages on account of the tortious act committed by the appellants and as such Article 82 has no application but it is governed by Article 113 of the Limitation Act. Sri Suresh Kumar died at or about 4.30 a.m. on 29-6-1990. The suit was filed on 28-6-1993. The specific case put forward by the respondents is that death of Sri Suresh Kumar occurred due to a negligent act of the employees of the first appellant, K.S.E.Board. According to the appellants, when death occurs due to the negligent act of the tortfeasors, the same is a matter covered by the provisions of the Fatal Accidents Act and a suit filed by the legal heirs of the deceased is governed by the provisions of the Fatal Accidents Act and Article 82 of the India Limitation Act prescribes the period of limitation for filing such a suit. Article 82 of the Indian Limitation Act reads as follows:-
"By executors, administrators The date of or representatives under the Two years. the death of Indian Fatal Accidents Act, the person 1855. killed." In Madan Gopal's Case (supra) this Court held that the a suit by a husband for damages for the death of his wife due to the negligence of the doctor is covered by the provisions of the Fatal Accidents Act and the suit is to be filed within two years. It was found that the claim put forward by the petitioner in that case squarely comes within the purview of the (Indian) Fatal Accident Act.
8. It is true that in this case also the death occurred due to the negligence of the appellants. The first appellant Kerala State Electricity Board is a statutory body and the second appellant is an officer working under the first appellant Board. In paragraph 4 of the plaint it is averred that the incident took place on account of the sheer and callous negligence of the Board and its employees. It is also alleged that there were overhanging branches touching the line which posed serious threat to the pedestrians waling through the pathway and on several occasions, the people in the locality made several demands to the appellants regarding the condition and state of line. But eh appellants did not take any action int he matter. It was also alleged that no routine maintenance was done by the appellants to maintain the electric line and they were not following the provisions of the Indian Electricity Act and Rules. According to the respondents, the death occurred due to the failure to discharge a public duty which is a tortious act committed by a statutory body. In Jay Laxmi Salt Works (P) Ltd. v. State of Gujarat (1994) 4 S.C.C.1) the Supreme Court held that when tortious liability arising due to negligence, mistake, defective planning or failure to discharge public duty, it is governed by the provisions of Article 113 of the Indian Limitation Act, the residuary Article. The Apex Court considered the meaning of the word ‘tort’. It was held that the test should be whether injury or damage occurred due to failure or duty to take reasonable care. It was held as follows:-
“Where the State undertakes common law duty its actions may give rise to common law tort. Negligence in performance of duty is only a step to determine if action of Government resulting in loss or injury to common man should not go uncompensated. If construction of bundh is a common law or public duty then any loss or damage arising out of it gives rise to tortious liability not in the conservative sense but certainly in the modern and developing sense. A common man, a man in the street cannot be left high and dry because wrongdoer is State. The basic element of trot is duty. And that comes into play fully when there is a common law duty. Since construction of bundh was a common law duty any injury suffered by a common man was public trot liable to be compensated.”
In State of Andhra Pradesh v. Challa Ramakrishna Reddy (A.I.R.2000 S.C.2083) one of the plaintiffs and his father were lodged in jail. There was failure on the part of the police to provide adequate security in spite of being asked. A bomb last occurred. The plaintiff and his father sustained injuries. Father succumbed to the injuries. The suit was filed for damages on account of the negligence of the officers of the State which had resulted the death of the father of the plaintiff. The defendant State contended that the suit was barred as the same was filed after the period of one year. The High Court as well as the Apex Court found that the period of limitation for filing such a suit is governed by Article 113 of the Indian Limitation Act. In view of the principle laid down in (1994) 4 SCC 1, we are of the view that the claim put forward by the respondents cannot be thrown away on the technical ground of limitation. In this case also, there is allegations of negligence and failure to discharge public duty on the party of the employees of the first appellant, K.S.E.Board which is a Statutory Body. So the suit claim is to be treated as one for compensation or damages on account of a tortious act committed by the State. Hence the same is not governed by Article 82 but by Article 113 of the Indian Limitation Act. So the finding of the court below that the suit is not barred by limitation is correct and we confirm that finding.
9. Now we shall consider how far the claim of the appellants that there is no negligence on the part of the appellants in maintaining the electric line is correct. The fact that Suresh Kumar died due to electrocution is not disputed by the appellants. Ext.A1 is the copy of the F.I.R. registered in Crime No. 78/1990 of Thrikkakara Police. Ext.A2 is the photo copy of the death certificate of Suresh Kumar. On the side of the respondents, P.Ws. 1 to 3 were examined. The respondents adduced evidence to show that the incident occurred due to the negligence of the officers of the first appellant-Board. D.W.1 is the Assistant Executive Engineer working in the Electricity Office at Thrikkakara. He deposed that on the previous night of the incident, there was heavy wind and rain. According to him, protective device was placed in the line which was removed by somebody after the incident. But as rightly observed by the learned Subordinate Judge, the appellants have no case that the device used was of such a nature that it will automatically switch off the line in case of the line is broken. It is admitted by D.W.1 that the Electrical Inspector inspected the accident spot but his report was not produced in the case.
10. Rule 29 of the Indian Electricity (Supply) Rules deals with general safety precautions to be taken. There is absolutely no evidence to hold that the appellants had taken all precautions prescribed under Rule 29. Since the appellants are admitting the fact that Suresh Kumar died of electrocution, the burden is on them to establish that there was no negligence on the part of the employees of the first appellant. In K.S.E.B. v. Kamalakshy Amma (1986 K.L.T.1124) a Division Bench of this Court found that in such cases the maxim “res ipas loquitur” applies. It was held as follows:-
“When the plaintiffs succeeded in proving that a pedestrian was electrocuted from a live wire hanging down from an electric post, there is a presumption of fact that there was lack of proper care on the part of those in the management or control of the power supply system at the particular place. The maxim “res ipsa loquitur” is a principle which aids the court in deciding as to the stage at which the onus shifts from one side to the other.”
The specific case put forward by the appellants is that snapping of live wire occurred due to the falling of cadjan leaf from a coconut palm standing outside the clearance area. There is absolutely no evidence to substantiate the same. So the appellants failed to establish there was no negligence on their part in maintaining the electric line and the accident occurred due to reasons beyond their control. So the finding of the learned Subordinate Judge that the appellants are liable to pay compensation is correct and does not call interference.
11. Now we shall consider whether the quantum of compensation awarded is just and proper. In 1986 K.L.T.1124 (supra), this Court has taken a view that the compensation awarded must be just, real and reasonable in all circumstances of the case. The deceased was aged 24 on the date of accident. He was unmarried. The claimants are his parents, brothers and sisters. On the date of suit, his father was aged 65 and mother aged 60. The brothers are all grown up. The learned Subordinate Judge, without assigning any reasons, has fixed the compensation of Rs. 1,50,000/-. We are of the view that the way in which the Subordinate Judge fixed the compensation is not proper. The deceased was a cleaner-cum-checker of a stage carriage bus and P.W.3 is stated to be the owner of the bus in which the deceased was working. He deposed that he was paying Rs. 100/- per day and the deceased was having employment throughout the month. But he has not produced any documents to show that the deceased was having employment every day and he had been paid Rs. 100/- per day. At any rate he would have worked for 15 days a month. But even as an unskilled labourer, the deceased could have earned Rs. 75/- per day and he would have got 20 days work a month. So we are of the view that the monthly income can be safely fixed as Rs. 1,500/- per month, of which he would have spent one-third for his personal expenses and contributed two-thirds for his family. So the loss of income will come to Rs. 12,000/- per year. There was every possibility that the deceased would have married and started separate residence. We are of the view that 8 can be taken as the multiplier in this case. so the total compensation on account of the death of Suresh Kumar will come to Rs. 96,000/-. The respondents have claimed compensation for funeral expenses and for pain and suffering. We are of the view that an amount of Rs. 2,000/- can be awarded of funeral expenses and Rs. 2,000/- for pain and suffering. So the total compensation due to the respondents on account of the death of Suresh Kumar can be fixed as Rs. One Lakh. The appellants have already paid an amount of Rs. 15,000/- to the respondents. So the respondents are entitled to get an amount of Rs. 85,000/- with 9% interest from the date of decree passed by the court below till date of payment.
In the result, the appeal is allowed in part. The finding that the appellants are liable to pay compensation on account of the death of Suresh Kumar is confirmed. The compensation awarded is reduced to Rs. One Lakh. The amount of Rs. 15,000/- already paid will be given credit to. The appellants shall pay the balance amount with 9% interest from the date of the decree passed by the court below within one month from today. No order as to costs.