IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 478 of 1997()
1. V.SAINABA
... Petitioner
Vs
1. KSEB
... Respondent
For Petitioner :SRI.A.P.CHANDRASEKHARAN (SR.)
For Respondent :SRI.A.SUDHI VASUDEVAN, SC, KSEB
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :09/07/2010
O R D E R
S.S.SATHEESACHANDRAN
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S.A.No.478 of 1997
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Dated this the 9th day of July, 2010
JUDGMENT
Claim for damages by the plaintiffs, setting
forth a case that valuable rubber trees in his plantation
were destroyed by a fire, arising out of the contact of
loose electric lines drawn through his property by the
respondent – Kerala State Electricity Board {for short
“Board”}, after trial was dismissed by the learned
Munsiff-Magistrate, Mannarghat. Appeal preferred by
the plaintiffs (A.S.No.71/91) against the dismissal of
their suit O.S.No.132/89 was also unsuccessful as the
learned Sub Judge, Ottapalam concurred with the
findings of the trial judge for non-suiting them. This
appeal is preferred against the concurrent decision so
rendered by the two inferior courts.
2. The case of the plaintiffs, in brief, is that on
14.2.1989 at about 2 P.M., a fire occurred in their
rubber plantation which emanated from the coming into
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contact of live electric lines drawn through their
property. About 300 rubber trees in their plantation
wereburnt down completely resulting in a loss of
Rs.15,000/- was their case to claim such damages from
the defendant Board. The lines were sagging and loose
and there was negligence on the part of the Board in
maintaining such lines drawn through the property was
the case to claim the damages.
3. Resisting the claim, the defendant filed a
written statement, in which among others, it was
contended that there was no sagging of the lines and the
fire which occurred in the property of the plaintiffs
burning down the trees was not on account of the
contact of electric lines drawn through that property. It
was further contended that the case set up by the
plaintiffs as to the cause of fire was totally false, since
none of the rubber trees situate close to the lines were
burnt. Negligence imputed against the defendant in the
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maintaining of the lines was also stoutly refuted by the
Board.
4. In the trial, plaintiffs examined Pws.1 to 5
and exhibited Exts.A1 to A4 on the side of the defendant,
a departmental official was examined as DW.1. An
Advocate Commissioner had conducted a local
inspection and prepared a report, which was exhibited
as Ext.C1. After appreciating the evidence, the learned
Munsiff found merit in the defence canvassed by the
defendant that the cause of the fire had not been
established as having arisen from the contact of live
electric lines drawn through the rubber plantation.
Adverting to the commission report, Ext.C1 and also
other materials placed before the court, the claim for
damages was found meritless, relying on the
circumstance that none of the trees situate close to the
electric lines were burnt down in the fire. On entering
such findings, the trial Judge non-suited the plaintiffs.
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5. In appeal, the learned Sub Judge considered
only one question as to whether there was negligence by
the officers of the defendant in the causing of the fire.
The appellate Judge, mainly taking note of the materials
collected in the report by the Advocate Commissioner
that as on the date of his inspection, the lines were
found to be not sagging and also the plaintiffs had no
case of any new electric post additionally implanted in
their property to avoid sagging of the lines, which was
canvassed in trial, found that no interference with the
conclusion drawn by the trial Judge was warranted. In
that view of the matter, the appeal was dismissed.
6. I heard the counsel on both sides.
7. There is total mis-appreciation of the
evidence, and, in fact, inconsequential and insignificant
matters were given undue weightage by both the courts
and that has resulted in miscarriage of justice, is the
submission of the learned counsel for the appellants to
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assail the concurrent decision entered by such courts
dismissing the claim for damages. On the other hand,
the learned counsel for the respondent Board has
contended that the plaintiffs have failed to establish by
any materials that the fire had occurred on the cause
pleaded by them i.e., by the contact of the electric lines
drawn through their properties, which are stated to
have been sagging at that point of time. When the
Advocate Commissioner visited the property the lines
were found to be not sagging, and that state of affairs
should be deemed to have continued even when the fire
occurred, in the absence of any contra evidence, is the
further submission of the counsel to contend that no
interference with the dismissal of the claim for damages
to the plaintiffs is called for.
8. Having consideration over the submissions
made by the counsel with reference to the materials
tendered in the case, it is seen, both the courts have
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placed much reliance on the statement recorded from a
department official of the respondent, by the Advocate
Commissioner, at the time of local inspection, in which
among other things, that official stated that the fire had
not caused damage to the trees situated on both sides of
the lines for a distance of 45 metres. First of all, the
Commissioner had no authority to record the statement
of the official, which was incorporated as part of his
report Ext.C1, without any order or direction from the
court directing him to record the statement of that
official or any person. Such being the position, the
statement of such official recorded by the Commissioner
deserves only to be ignored as of no consequence. The
materials tendered in the case would only show that the
fire did not cause any damage to any of the trees for a
distance of 15 metres on both sides of the lines. Other
than the statement of the department official recorded
by the Advocate Commissioner, there was no material to
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show that damage by fire had been caused only to the
trees situated 45 metres away from the lines. The fact
that a good number of rubber trees planted in the
property of the plaintiffs had been damaged by fire is
not in dispute. It has also come out that, immediately
after the occurrence of fire, the plaintiffs had filed a
complaint before the police and PW.4, a police officer
inspected the spot. True, there is some discrepancy in
his evidence as regards the location of the trees in the
property which caught fire. But he had inspected the
spot, on a complaint from the plaintiffs, soon after the
occurrence, remain undisputed. It is also an admitted
fact that two lines; one LT line and above that a HT line
were drawn through the property of the plaintiffs. The
Commissioner has noted that the distance between
these two lines were 15 metres. The Advocate
Commissioner has also reported that a new post was
also seen erected at the time of his local inspection. In
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Ext.C1 report, he has given particulars of that post as
well. One of the plaintiffs examined as PW.1 gave
evidence that by erecting a new post after the fire,
sagging of the lines was reduced to a considerable
extent. The plaintiffs did not have such a case in the
plaint was the reason taken by the court below to hold
that there was no erection of new post in the property or
anywhere near to prevent sagging of the lines. The fire
caused to the plantation was on account of the contact
of live electric lines drawn through that property, and
such lines were then sagging, the case of the plaintiffs,
is corroborated by the evidence of Pws.2 and 3, two
neighbours in the locality. PW.4, the police official, who
inspected the spot, after getting a complaint over the
fire, also gave evidence supporting the case of the
plaintiffs. The plaintiffs also examined one retired
departmental official, an Assistant Executive Engineer
and he gave evidence that sparks of fire from the
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contact of sagging lines would cause fire to nearby trees
and, sometimes, even to trees situate at considerable
distance away. Such sparks need not cause fire to the
trees underneath, but only to trees situated at a distance
away, is the evidence of PW.5, a witness who had some
expertise and experience, regarding the maintenance
and up-keeping of the electric lines. The defendant has
examined one departmental official as DW.1. His
evidence would show that a notice was received from
the plaintiffs demanding damages for the fire caused
imputing that it was on account of the negligence in
maintaining the electric lines drawn through the
property. But that notice was not responded. He gave
an explanation that since there was no departmental
instructions, reply was not given. Other than the
assertion of the defendant, and the evidence of DW.1,
the departmental official examined on behalf of the
defendant, there was no contra evidence to challenge
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the case of the plaintiffs that the fire resulting in
damage to the trees had not arisen by the sagging
electric lines coming into contact and sparks from such
contact falling upon the trees. Some of the trees,
underneath the lines were not affected by the fire and
no damage was caused to them, but trees situate some
distance away were burnt in fire cannot be given
unmerited consideration since the ground level of the
property, the blowing of wind, if any, and several other
factors, including the growth underneath bushes
surrounding such trees etc., may have relevance why
the trees situate some distance away alone caught fire.
Merely because the trees close to the lines were not
affected by fire, no inference is permissible that the fire
that occurred was not on account of the sparks from the
electric lines drawn through the property. When that be
so, the conclusion drawn by the court below that the
cause for the fire as alleged had not been proved placing
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reliance on inconsequential circumstances cannot be
sustained.
The only question to be considered on
acceptance of the case of the plaintiff for the cause of
fire, which is proved by the materials tendered, is the
quantum of damages to be awarded. True, no material
other than the commission report and the oral evidence
of the plaintiffs, Pws.1, 2 and 3, are available for
assessing the damages. It is seen, the evidence let in is
insufficient to fix the quantum of damages. Plaintiffs
have contended that nearly 300 rubber trees, aged
about 4 years, had been damaged in the fire. But in the
commission report, the number of trees damaged are
not stated. Though there is no positive and satisfactory
evidence enabling the court to fix the quantum of
damages, on the proved facts that rubber trees aged 4
years and that too a good number of trees have been
damaged on account of the fire, which is found to have
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been caused from the sparks which emanated from the
contact with the sagging electric lines drawn through
the property, I find, the plaintiffs are entitled to
nominal damages, which I fix at Rs.10,000/- from the
defendant.
In reversal of the decrees of the courts below,
the plaintiffs are awarded a decree for Rs.10,000/- with
proportionate costs. Appeal is partly allowed.
Sd/-
(S.S.SATHEESACHANDRAN)
JUDGE
sk/-
//true copy//
P.S. to Judge.