Page No. 1 of 54 A.S.No.24 of 2022
IN THE COURT OF THE JUDGE: FAMILY COURT-CUM-
III-ADDITIONAL DISTRICT JUDGE AT MAHABUBNAGAR
Present:- Smt.S.V.P.Surya Chandra Kala,
Judge,
Family Court-Cum-III ADJ, Mahabubnagar.
Saturday, this the 23rd day of March, 2024
A.S.No.24 of 2022
Between:-
1. The Superintending Engineer, TSSPDCL., Mahabubnagar.
2. The Executive Engineer, TSSPDCL., Bhoothpur Mandal.
… Appellants.
AND
1. V. Sheshaiah @ Seshaiah Chary S/o. Kalappa, age 67 years, Occ:Agriculture and Retired Teacher.
2. Smt. V. Padmamma W/o. V. Sheshaiah @ Seshaiah Chary, age 55 years, Occ:Housewife.
Both are R/o: Annasagar Village, Bhoothpur Mandal, now residing at H.No.11-1/2, Plot No.9, Teachers Colony, Mahabubnagar.
...Respondents.
3. The District Collector, Mahabubnagar.
…Respondent.
Sub:- An appeal under Order XLI Rule 1 of C.P.C against the judgment and decree dated 30.01.2019 passed in O.S.No.132 of 2010 on the file of the Court of II Addl. Senior Civil Judge at Mahabubnagar. Between:-
1. V. Sheshaiah @ Seshaiah Chary S/o. Kalappa, age 67 years, Occ:Agriculture and Retired Teacher.
Page No. 2 of 54 A.S.No.24 of 2022
2. Smt. V. Padmamma W/o. V. Sheshaiah @ Seshaiah Chary, age 55 years, Occ:Housewife.
Both are R/o: Annasagar Village, Bhoothpur Mandal, now residing at H.No.11-1/2, Plot No.9, Teachers Colony, Mahabubnagar.
...Plaintiffs.
And
1. The Superintending Engineer, TSSPDCL., Mahabubnagar.
2.The Executive Engineer, TSSSPDCL., Bhoothpur Mandal.
3. The District Collector, Mahabubnagar.
…Defendants.
Sub:- Suit for damages of Rs.5,00,000/-.
* * *
This appeal suit is coming up before me on 21.03.2024 for final hearing in the presence of Sri V. Manohar Reddy, Advocate for the appellants and Sri J. Ravi Kumar, Advocate for the respondent Nos.1 and 2 and Sri G. Manoher, Advocate for the respondent No.3, and upon hearing the arguments and upon perusing the material on record, this Court delivered the following:-
J U D G M E N T
The present Appeal suit was filed by the appellants/defendants against the respondents/plaintiffs Under Order 41 Rule 1 CPC r/w Sec 96
CPC being aggrieved by the judgment of the trial Court i.e., of II Addl.
Senior Civil Judge’s Court, Mahabubnagar in O.S.No.132 of 2010 as
decreed the said suit and awarded compensation of Rs. 5 lakhs together with interest @ 6 % pa from the date of the suit till the date of realization with joint and several liability.
Page No. 3 of 54 A.S.No.24 of 2022
2.For the sake of convenience, both parities are going to be arrayed as referred before trial Court.
3.The grounds of appeal, in brief, are that:
(i) That the judgment and decree of the trial Court was contrary to Law. The trial Court said to have failed to take in to consideration that alleged accident was said to have not occurred due to alleged negligence of the officials of the appellants and said to have fixed liability erroneously on the appellants despite alleged occurrence of accident due to alleged negligence of the deceased.
(ii) It was further urged that the trial Court said to have not taken into consideration regarding alleged not taking any precautions for alleged utilization of crowbar when it was said to have come into contact with wire, result of which, the deceased was said to have electricuted and submitted the accident was occurred due to alleged negligent act of the deceased.
(iii) It was also submitted that compensation awarded was excessive without any evidence and also further submitted that the trial Court said to have failed to appreciate the evidence on record which was said to have clearly demonstrated that the deceased was erecting stone posts in agricultural land with help of an iron road under 11 KV line at a height of more than 12 mts without any precautions there by, came into contact with the wire and got electrocuted.
(iv) It was further urged that the trial Court ought to have seen that in Ex.A1
FIR there was clear indication that the deceased was erected stone posts with help of road but not digging the pits with the help of crowbar. It was further urged that the trial Court ought to have given weight to the
Page No. 4 of 54 A.S.No.24 of 2022 testimony of Dw-1 that 11 KV electric lines would be at height of 18 feet from the ground level and thus there was no possibility of crowbar contacting in the live wire of 11 KV wire in the absence of the evidence to show 11 KV wire lines were hanging below the height of 10 feet.
(v) As per further grounds of appeal the trial Court was erred in assuming the evidence of P.W.1 that the deceased could not raise the crowbar to a height more than 9 feet when the height of the deceased was 5.7 inches and length of crowbar being 4 feet. By further submitting that in the absence of evidence as to the earnings of the deceased and any evidence regarding entitlement of the plaintiffs to compensation claimed by them and awarding compensation of Rs. 5 lakhs was without any basis and further pleaded that the suit was filed beyond the period of limitation and sought to allow the appeal by setting aside the judgment and decree of the trial court. Hence, this appeal.
4.Now the points for determination are:
1. Whether there is any irregularity and impropriety in the judgment of the trial Court in awarding compensation to the respondents/ plaintiffs?
2. If So, whether the trial Court is justified in awarding compensation of Rs.5 lakhs to the respondents?
3. Whether, the judgment of the trial Court is sustainable under Law?
4. To what relief?
5.Written Arguments were submitted on behalf of the appellants and respondents.
6.Point Nos.1 to 3:
Perused the record. As point Nos 1 to 3 are inter related to one another, hence they are going to be discussed under one common head for the sake of convenience.
Page No. 5 of 54 A.S.No.24 of 2022
7.In order to determine the points for consideration it is appropriate to look into the pleadings of both parities, evidence placed before the trial
Court and the appreciation of evidence made by the trial Court.
8.As per the pleadings of the plaintiffs in brief are that the plaintiffs one and two are said to be the parents of the deceased Rajesh Kumar who said to have died on account electrocution on 02.04.2008 in the limits of
Annasagar of Bhoothpur mandal of Mahabubnagar District.
9.The defendant Nos. 1 and 2 being the officials of TSSPDCL were said to have vested with the power in the district and D3 being the head of the district was pleaded as proper parity. As per further pleas of the plaintiff the first plaintiff was said to be retired teacher and said to have possessed land in Sy.N. 107, said to have situated within the limits of
Annasagar village of Bhoothpur mandal.
10.It was further pleaded that the deceased Rajesh Kumar was the second son of the plaintiffs herein, and on 02.04.2008 the deceased plaintiff No.1 said to have gone to their land said to have situated at
Annasagar village and were attending the work of fixing boundary stones to their land. The 11 KV electricity line was passing through the land of the plaintiffs, while the deceased was digging pits for erecting boundary
Page No. 6 of 54 A.S.No.24 of 2022 stones with the help of a crowbar of about 4 and half feet length, the same said to have come into contact with live electric wire which was said to have erected at a low height, result of which the deceased said to have received electric shock and said to have died instantaneously due to electrocution.
11.It was further pleaded that the defendants said to have erected the electric wires of 11 KV electricity line negligency and without proper maintenance which lead to low level leaning of wires that lead to the electrocution and death of the son of plaintiffs, it was further pleaded that it was the strict liability of the defendants to maintain the wires properly while supplying the power from one sub station to another. Though the son of plaintiffs was said to be cautious enough the live electric wires which had high power attracted the deceased through the crowbar and extended electric power to the body of deceased. the said incident was the result of alleged negligent acts on the parts of the defendants.
12.It was also pleaded that the deceased was aged about 26 years old at the time of his death and he said to have worked as a financial accountant and pleaded his earnings as Rs.7,000/- to Rs.8,000/- per month and he said to have contributed the same to the plaintiffs for the maintenance of the family. Due to sudden demise of the deceased the plaintiffs were said to be
Page No. 7 of 54 A.S.No.24 of 2022 not only put to much mental agony but also monetary support at their old age.
13.By further pleading that the deceased Rajesh Kumar was shifted to
Government Hospital, Mahabubnagar where autopsy was said to have held and the medical officer said to have opined that the cause of death of the deceased was due to electrocution and police, Bhoothpur investigated into the matter vide Cr.No. 64 of 2008, hence, the plaintiffs claimed a sum of
Rs. 5,00,000/- as compensation from the defendants.
14.It was pleaded that the death of the deceased was due to alleged negligent acts of the defendants Nos. 1 and 2 by putting on the live electric wires with low level and by alleging without taking precautionary measures to restore the wires to proper and correct height, the defendants said to have resorted to alleged acts endangering the lives of passers.
Therefore, the plaintiffs were constrained to file the present suit for damages and to make good the loss said to have suffered by the plaintiffs due to the untimely death of the deceased Rajesh Kumar.
15.The claim of the plaintiffs was resisted by the defendant No.2 by filing written statement and denied the allegations made in the plaint, defendant No.1 filed adoption memo adopting the written statement of
Page No. 8 of 54 A.S.No.24 of 2022 defendant No.2. No written statement was filed on behalf of defendant
No.3. They pleaded ignorance that the plaintiffs as the parents of the deceased. They admitted defendant Nos. 1 and 2 as officials of Central
Power Distribution Company it was contended they were not officials of
AP Transco. It was contended due to bifurcation there was no nexuses between AP Transco and Distribution Company. Hence, contended they both would not share the responsibilities for alleged negligent acts. Hence, contended the cause title as incorrect
16. As per the further contentions of the defendants, the plaint was silent regarding alleged which negligent acts said to have committed by defendants were alleged acts said to have not performed by them. It was also contended mere issuance of FIR was not consluive proof of negligence and there was alleged heavy contributory negligence on the part of the deceased and if the deceased had taken minimum care while passing through fields he could have perfectly avoided the accident. By further contending that there was no cause of auction for filing the suit and the suit was not maintainable for joinder of necessary parties and by further contending the suit was barred by limitation, sought for dismissal of the suit.
Page No. 9 of 54 A.S.No.24 of 2022
17.In view of rival contentions following issues were framed for consideration by the trial Court such as:
1. Whether the plaintiffs are entitled for recovery of suit amount as prayed for?
2. Whether the suit is within the period of limitation?
3. To what relief?
18.In support of the claim of the plaintiffs the first plaintiff was examined as P.W.1 by filing chief examination affidavit of P.W.1 and got marked Ex.A1 and Ex.A2. Ex.A1 is the copy of FIR in Cr.No. 64 of 2008,
U/Sec 174 of Cr.P.C of Bhoothpur police station on 02.04.2008. Ex.A2 is the copy of inquest report of the deceased V.Rajesh Kumar in Cr.No. 64 of 2008. Whatever was pleaded in the plaint (pleadings) was incorporated the same things in the chief-examination affidavit, when the 1st plaintiff was examined as P.W.1. No further evidence was adduced on behalf of the plaintiffs. Hence, further evidence of the plaintiffs was closed. A witness said to be Assistant Divisional Engineer was examined on behalf of the defendant as D.W.1 and no documents were marked on behalf of the defendants.
19.No further evidence was adduced on behalf of the defendants. hence, further evidence of the defendants was closed.
Page No. 10 of 54 A.S.No.24 of 2022
20.On hearing both sides, as evidence on record was found quite sufficient, hence trial Court made finding that the plaintiffs were entitled for recovery of amount as prayed by them and granted compensation of
Rs.5 lakhs against the defendant Nos.1 to 3 with joint and several liability.
Being aggrieved by the same, the present appeal came before the Court for consideration.
21.The plaintiffs filed the suit seeking damages of Rs.5 lakhs on account of alleged death of their alleged son V. Rajesh Kumar due to electrocution said to have occurred on account of alleged negligent acts of the defendants. Originally the suit was filed against AP Transco and others and subsequently by virtue of order of trial Court in I.A.No.832 of 2010,
dt. 30.08.2010 amended the cause title as filed against TSSPDCL.
Carrying out certain activities pertaining to power was not in dispute by the defendants.
22.To substantiate the claim of the plaintiffs when the first plaintiff was examined as P.W.1, he incorporated the same things, as pleaded by the plaintiffs in his chief examination affidavit also. In order to establish that on account of the death of the deceased criminal law was set into motion the plaintiff relied upon Ex.A1 the copy of FIR in Cr.No.64 of 2008 of
Bhoothpur P.S. U/Sec.174 of IPC. P.W.1 also relied upon Ex.A2 copy of
Page No. 11 of 54 A.S.No.24 of 2022 inquest report of the deceased to support their pleadings and ocular testimony of P.W.1, to establish death of the deceased was un-natural for which, criminal law was set into motion.
23.Occurrence of death of the deceased was undisputed by the defendants at no point of time. Like wise death of the deceased due to electrocution was also not in dispute and not denied the same by the defendants by way of specific suggestions. The documents relied upon by the plaintiffs under Exs.A1 and A2 were not in question. As per Ex.A1 copy of FIR basing upon alleged report of P.W.1 the criminal law was set in to motion, on the same day of alleged occurrence i.e., on 02.04.2008.
When alleged incident took place at about 09:30 hours the law was set in to motion at 10:00 hours and prima-facie mentioned in the report the same things pleaded by the plaintiffs and it was mentioned regarding instantaneous death of the deceased due to electrocution on account of touching 11 KV current line to the iron rod with which his son said to have been fixing boundary stones when P.W.1 and his son said to have proceeded to their own fields, on the same day in Sy.No. 107. Even as per the copy of inquest report under Ex.A2 also the apparent cause of death of deceased was due to current shock. In view of not disputing about un- natural or un-timely death of the deceased and also the cause of the death
Page No. 12 of 54 A.S.No.24 of 2022 of the deceased due to electrocution was not in dispute hence it could be considered the death of the deceased was proved as per law by the plaintiffs.
24. In view of filing of the suit on 30.04.2010 after 2 years of alleged occurrence the defendants contended the suit was barred by limitation. The trial Court held that the claim of the plaintiff was governing by Article 113 of Limitation Act but not by Article 71 of the Limitation Act.
By virtue of Article 71 of the Limitation Act prescribes “Limitation for filing a suit….”
As per Article 71 of the Limitation Act
Article 71 refers to a suit on a bill of exchange accepted, payable at a particular place, and time begins to run when the bill is presented at the place and that is the cause of action as presentment at that place is essential under the Negotiable Instruments Act.
As per Article 113 of the Limitation Act
Article 113 (corresponding to Article 120 of the Act 1908) is a residuary article for cases not covered by any other provisions in the Act. It prescribes a period of three years when the right to sue accrues. Under
Article 120 it was six years which has been reduced to three years under
Article 113.
Page No. 13 of 54 A.S.No.24 of 2022
25.The appellants in the written arguments submitted as suit ought to be dismissed on the grounds of limitation by submitting that the suit was filed beyond the period of limitation. In the written arguments of the respondent/plaintiffs it was argued that the trial Court rightly taken into consideration all the aspects while adjudicating the suit and also submitted that the respondent filed E.P.18 of 2021 of the file of learned Principal
Senior Civil Judge, Mahabubnagar and the same was pending and till then
the appellants said to have not deposited awarded amount and the respondents being aged persons were said to have been suffering from ailments such as blood pressure and sugar. Even in the pleadings of the appellants as defendants taken plea that the suit was bared by limitation.
Even though, there was no such suggestion put forth to P.W.1 on the aspect of limitation and even in the affidavit of evidence of D.W.1 there was no such evidence regarding pleas taken by him regarding limitation, but the aspect of limitation can be looked into by the Court. The trial Court observed that the period of limitation to claim compensation was one year under Article 71 of Limitation Act and the contentions of the learned counsel for the defendants was considered as untenable regarding limitation and trial Court felt that the claim of the plaintiffs falls under
Article 113 of Limitation Act, hence, felt that the claim of the plaintiffs
Page No. 14 of 54 A.S.No.24 of 2022 was within the limitation while answering the second issue regarding period of limitation and made defendant Nos.1 and 2 jointly and severally liable to pay compensation of Rs.5,00,000/-.
26.In the instant case the suit was filed on 30.04.2010 and the date of death of the deceased was on 02.04.2008 and the suit was filed within two years from the date of death of the deceased by virtue of filing suit within 3 years from the date of death of the deceased on which date the cause of action arose for the plaintifs to seek for damages or compensation, or legal recourse, hence, it can be considered the suit is rightly fled within the period of limitation prescribed under provisions of limitation Act.
27.Article 82 of the Limitation Act prescribes the period of Limitation of 2 years for suits relating to torts by executors, administrators or representatives under the Indian Fatal Accidents Act, 1855 and the period of limitation begins to run from the date of the death of the person did.
28. At this juncture it is worth-mentioning ruling of Hon'ble High Court of Tripura in “SIPRA BANIK AND OTHERS v. CHAIRMAN-CUM-
MANAGING DIRECTOR SIPRA BANIK AND OTHERS v.
CHAIRMAN-CUM-MANAGING DIRECTOR” in which the Hon'ble
Court is kind enough to discuss the applicability of relevant articles under
Limitation Act in case of death of the deceased due to electrocution.
Page No. 15 of 54 A.S.No.24 of 2022 “18. On the other hand, in State of Tripura v. Swapna Chakraborty (AIR 2005 Gau 173) (supra) a Divisoin Bench of the Gauhati High Court which then exercised jurisdiction over the State of Tripura was dealing with the case of electrocution and the question raised was whether the period of limitation would be governed by Article 82 or by the residuary
Article. The Hon’ble Division Bench after making reference to Article 82 and the provisions of the Fatal Accidents Act has pleased to held as follows:
“xx.xxxxx It would appear from the above provisions that the words ‘actionable wrong’ in Section 1-A for which a suit can be fled, might have inspired use of the word ‘action’ before the word ‘suit’. When
Section 1-A provides “the act, neglect or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereof, such ‘action’ undoubtedly has been used only to mean a suit which may be the remedy against an actionable wrong. We have noted with keen interest the use of the word ‘suit’ in the headline, the words ‘action or suit’ in frst and second para and only ‘action’ in the third para of Section 10A. The words ‘in every such action the Court may give such damages’ in third para certainly point to the suit only.
Thus, the words ‘action or suit’ which appear in Sections 1-A and 2 of the Fatal Accidents Act when read in the context of the relevant provisions of Limitation Act appearing in Part VII irresistibly leads to the only conclusion that the Word ‘action’ or ‘suit’ were intended to mean one course of action or remedy only and the legislature had no intention to provide two separate remedies in two diferent ways, This view is reinforced from the fact that the words ‘by…executor, administrator or representative’ of the deceased appearing in Section 1-
A have been reproduced in Article, 82 of Limitation Act. When there is no doubt that death by electrocution is an actionable wrong falling under the ambit of ‘tort’ no provision other than those contained in Part VII of
Page No. 16 of 54 A.S.No.24 of 2022 the Limitation Act can, in our considered view, be made applicable and in that view of the matter, Article 137 relating to application cannot be interpreted as an action within the meaning of Sections 1-A or 2 of the
Fatal Accidents Act. xx.xxxxx”.
19. I am in respectful agreement with the said judgment. As pointed out above the Hon’ble Apex Court judgment were delivered in diferent contexts. The wording of Article 82 is totally diferent from the wording of Article 36 of the 1908 Act or Article 72 of the 1963 Act. Article 82 encompasses all claims which are based on Section 1-A of the Fatal
Accidents Act. No doubt the Fatal Accidents Act also deals with claims/actions/suits arises from torts or actionable wrongs but Article 82 covers all claims made under the Fatal Accidents Act and unlike the divisions between diferent types of tort which could be made under
Article 36 of the Act, 1908 or under Article 72 of the Act of 1963
Article 82 encompasses within its fold all types of tort and all actions and suits which can be brought under the Fatal Accidents Act.
20. In The Hon’ble Delhi High Court in Abha Yadav v. Municipal
Corporation of Delhi, 2003 ACJ 1620 has also pleased to take the same view and pleased to held that “the limitation for fling a suit where the husband of the plaintif died due to electrocution would be governed by
Article 82 of Limitation Act because the suit is governed by the Fatal
Accidents Act. However, in the case before the Delhi High Court since one of the plaintifs was a minor the beneft of Sections 6 and 7 of the
Limitation Act was given to the plaintifs.
21. In Maya Rani Ghosh etc. v. State of Triupra, AIR 2007 Gau 76 pleased to have decided by the Hon’ble Division Bench of the Agartala
Bench of the Gauhati High Court it was pleased to held as follows:
“54. When the words ‘action’ and ‘suit’, appearing in the Act of 1855, are ready, in the context of the relevant provisions of the Limitation Act,
Page No. 17 of 54 A.S.No.24 of 2022 as appear in Part VII, one is driver to the one and only conclusion that the word ‘action’ or ‘suit’ were intended to mean one course of ‘action’ and one remedy only and the legislature had no intention to provide two separate remedies in two diferent ways. This impression gets strengthened from the fact that the words ‘by executors, administrators or representatives’ of the deceased, appearing in Section 1-A, have been reproduced in Article 82 of Limitation Act. When there is death by electrocution, it is an ‘actionable wrong’, which falls within the ambit of ‘tort’. In such a case, no provision, other than those contained in Part VII of the Limitation Act, can, in our view, be made applicable and in that view of the matter, Article 137, which relates to applications, cannot be applied.”
22. In Shaitan v. Ajmer Vidyut Vitran Nigam Limited, RLW 2008 (3)
Raj 1429 the Hon’ble Rajastan High Court and in Smt. Minakshi Patra v. Secretary, Irrigation and Power, Govt of Orissa, AIR 1999 Orissa 137 the Hon’ble Orissa High Court have also taken the same view.
29.So by virtue of filing of suit within 2 years from the date of death of the deceased, it can be considered the suit is rightly fled within the limitation prescribed in such cases under article 82 of Indian Limitation
Act.
30.Now it has to be seen whether the death of the deceased was due to own negligence or whether defendants were negligent in maintaining the electric wires properly by taking minimum reasonable care thereby they were quite responsible for the death of the deceased.
Page No. 18 of 54 A.S.No.24 of 2022
31.During the Cross examination of P.W.1, P.W.1 admitted that on the date of incident himself along with his deceased son went to their fields with an iron rod about 3 ½ to 4 ½ feet. He deposed his deceased son’s height as 5 ½ feet and his deceased son was not an agriculturist. He denied the suggestion that since his deceased son was not an agriculturist, he had no knowledge about dealing with an iron rod in the agriculture fields and that while he was digging the land with the said rod without taking proper care the rod hit 11 K electricity wire. He deposed he had no knowledge that they could complain about the hanging of 11 K wire to the electricity department.
32.P.W.1 denied the suggestion that said 11 K wire was not hanging.
Witness adds that the said wire was hanging towards ground level at a minimum height taking the help of small stick. He denied the suggestion that a 11 K wire will never be hanged as mentioned by him and his son was not an employee and that he just completed his graduation and was idle, and that he was not an earning person as mentioned by him in his plaint and due to gross negligence of his son, the incident occurred and that defendants Nos. 1 and 2 were no way concerned with the incident and the said electricity department was not bound to compensate by way of damages to his deceased son.
Page No. 19 of 54 A.S.No.24 of 2022
33.It was undisputed by the defendants regarding death of the deceased as well as the relationship of the plaintiffs as the parents of the deceased V.
Rajesh Kumar. The on death of the deceased on account of electrocution was not disputed. There was no pleadings of the defendant that any kind of compensation or exgretia was paid to the plaintiffs on account of death of the deceased. In order to establish the death of the deceased on account of electrocution, for which plaintiffs relied upon Ex.A2 inquest report, inquest was conducted, in which the apparent cause of the death of the deceased was mentioned as electrocution.
34.Even though, initially the suit was filed in the year 2010 against the defendants, as per orders dated 30.08.2010 in I.A.No.832/2010 APCPDCL was added and subsequently it was amended as TSSODCL as per orders
dated 05.07.2018 in I.A.No.59/2018, carrying out particular activities by
the defendants in given area in which the death of the deceased was said to have occurred or control over the activities in respect of the area in which the plaintiffs' fields said to have situated or cause of action said to have arisen was not at all disputed by the defendants. Existence of electrical wire KV line through alleged fields of the plaintiffs was also not in dispute. However, the defendants attributed own negligence of the deceased in alleged coming into contact with live electrical wire.
Page No. 20 of 54 A.S.No.24 of 2022
35.During the cross-examination of P.W.1 for the defendant Nos.1 and 2, P.W.1 categorically admitted on the date of incident along with his son he went to their fields with an iron rod about 3½ to 4½ feet and deposed his son height as 5½ feet. He further deposed he had no knowledge that they could complain about hanging of 11KV wire to the electricity department and denied 11 KV wife was not hanging and according to his testimony the said wire was hanging towards ground level at minimum height takinghelp of small stick and denied 11KV wire would never be hanged as mentioned by him. He deposed his son was not an agriculturist and denied as his son was not an agriculturist, hence, he had no knowledge dealing with the iron rod in agricultural fields and while he was digging the land with the said rod without taking proper care the rod hit 11 KV electricity wire and P.W.1 denied the said suggestion. From the said suggestion in one way or the other coming into contact or hitting the rod to 11 KV electricity wire was undisputed by the defendants which would show the manner of the incident. It could be considered as the electricity wire was not at considerable height it came into contact with crowbar with which the son of P.W.1 was taking up the activity of digging the land.
36.Even from the suggestion putforth to P.W.1 it was admitted of proceeding of P.W.1 along with his son to their fields. As observed earlier
Page No. 21 of 54 A.S.No.24 of 2022 passing of 11 KV wire through the agricultural fields of P.W.1 was undisputed by the defendants. P.W.1 denied due to gross negligence of his son only the incident occurred and the defendant Nos.1 and 2 were no way concerned and electricity department was not bound to compensate. When occurrence of incident is not disputed by the defendants when the defendants are entrusted with duties of maintaining proper electric wire they are expected to make periodical check up to avoid unforeseen circumstances. In view of the existence of electricity wire in the fields of
P.W.1 along with his son, went to fields to take up certain operations in the agricultural fields, with implement such as an iron rod as there was 11KV wire which was said to have been hanging at a height below the prescribed level, it came into contact with an iron rod with which the son of P.W.1 was said to have been digging the fields. When from the testimony of
P.W.1 it was established of coming into contact with 11KV wire by his son while carrying out agricultural operations with an iron rod. The things speaks by itself in the instant case as the wire was not at considerable height it immediately came into contact with iron rod while it was using by the son of P.W.1, which shows hanging of live wire or electricity wire below the level to which it was expected to be arranged.
Page No. 22 of 54 A.S.No.24 of 2022
37.As per the testimony of Assistant Divisional Engineer he never visited the place of incident, hence, admitted he did not have personal knowledge about the case except about the material available with the office and deposed height of 11KV electricity line from the ground as 18 feet. He pleaded ignorance whether any preliminary enquiry was conducted by office with regard to the incident.
38.During the cross-examination of D.W.1 on behalf of the plaintiffs he deposed that he visited alleged place of occurrence on 08.10.2018. At first instance cross-examination was done subsequent to 04.10.2018 and he deposed of visiting alleged place of occurrence after filing chief affidavit
before the Court. So, nearly after 10 years of alleged occurrence he said to
have visited alleged place of occurrence. So, whatever the testimony given by D.W.1 regarding passing of wire nearly after 10 years of alleged occurrence was of no consequence.
39.D.W.1 deposed the 11KV wire at the place of occurrence was passing from Annasagar village to Thatikonda village at present and he could not depose the starting point from which it was passing at the time of incident as well as not known destination point. He admitted, he had no personal knowledge about the existence of wire at the time of incident and he deposed that on his instructions his chief-examination affidavit was
Page No. 23 of 54 A.S.No.24 of 2022 prepared and deposed in his chief affidavit instead of mentioning as 12 feet it was said to have typed as 12 meters. He denied he deposed false regarding height of the wire. He further deposed as per the inquest report at column No.8 he found the deceased died due to his negligence. He deposed as per the records the height of the deceased was mentioned as 5.7 feet. He admitted when the height of the rod i.e., 4½ feet was added to the height of deceased the total height was of 10 feet and odd. D.W.1 though denied the deceased died due to the negligence of the defendants’ office, but from the circumstances it could be considered as the electricity wire which ought to be maintained at proper height was not at the expected level of height it came into contact with the iron rod when used by the son of P.W.1. Hence, the incident taken place. Under such circumstances negligence of son of P.W.1 cannot be attributed in view of principles of strict liability and also the Trial Court rightly observed regarding possible circumstance of coming into contact with iron implement on KV wire regarding hanging of the electrical wire below the height and it was mentioned that below 10 feet height. By considering the height of the deceased as well as length of the implement the Trial Court came to conclusion that the electrical wire was hanging below 10 feet height, hence, there was clear negligence on the part of the defendants’
Page No. 24 of 54 A.S.No.24 of 2022 departments. Even referred the rulings of the Hon’ble Court in
Superintendenting, Engineer and Another Vs. Jagath Mama IV (2018)
ACC 29 (Hyd) in which it was pleased to observe that defendant were carrying out generation and transmission of electricity and that said activity is an inherently hazardous and risky activity which endangers human lives – Defendants activity would be governed by principle of strict liability.
40.In the instant case, by virtue of carrying out generation, transmission of electricity as well as maintaining of electricity such kind of activities required special attention and periodical check up, proper maintenance by virtue of its inherent hazardous and nature as it as it endangerous to the general public, hence, the Hon'ble Court is kind enough to observe that such kind of activities would be governed by the principles of strict liability and also the Trial Court referred the ruling the Hon'ble Apex
Court in M.C. Mehtha Vs. Union of India, in which it was pleased to observe that, “Where an enterprise is engaged in a Hazardous or inherently dangerous activity and harm is caused on any one on account of the accident, in operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are effected by the accident and such liability
Page No. 25 of 54 A.S.No.24 of 2022 is not subjected to any of the exception of strict liability under the rule of Rylands Vs. Fletcher”
41.So, by virtue of nature of the activities carried out by defendants which are inherent hazardous to the human life it is for the defendants to take possible minimum care to avoid unforeseen circumstances or mishap.
By virtue of the activities pertaining to electricity it involves risk to the lives of general public or by bypassers or cattle, hence, they are expected to take minimum possible care of maintaining electrical wires properly by ensuing all kinds of safety measures by making periodical visits by the concerned people of their department from time to time in order to avoid any unforeseen circumstances.
42.In the instant case there appears there is gross negligence on the part of the defendants in carrying out operations pertinent to electricity and poor maintenance of electrical wires at the place of accident and without attending the place of accident they left the KV wire, hanging, below the expected level to its height, hence, it was resulted into death of the deceased. If the deceased expected to coming into contact with KV wire he would not have proceeded with particular activity during which iron implement/iron rod came into contact with live wire as level of KV wire was below than the original height as it was expected or which ought to be
Page No. 26 of 54 A.S.No.24 of 2022 maintained, beyond reach, by virtue of pressing electrical wire through fields in which carrying out agricultural activities is common and use of tractor or other implements is common, defendants are expected to maintain electrical live wires at considerable height due to absence of reasonable care, hence, the mishap occurred and the material placed by the plaintiff was quite sufficient to show there was gross negligence on the defendants in improper maintaining of electricity wire at public place.
43.As per the evidence placed by the plaintiff, the plaintiff/P.W.1 deposed the circumstances lead to the death of the deceased such as while his son was digging with crow bar to lay boundary stones the crow bar came into contact with electrical wire. Even it was denied by P.W.1 that his son did not know how to do agriculture or he studied upto graduation, but as per the testimony of P.W.1 his son came to P.W.1 to carry out particular activities and if the defendants would have taken protection to keep sufficient distance between the jumper wire and stay wires up to a distance of 3 feet there would be no possibility of touching the jumper wire with stay wire. Even if the circumstances enumerated by the defendants to be believed as true, the defendants being the proper authority, have to maintain electrical wires with sufficient height with sufficient distance and they are expected to take proper care, to see, in no
Page No. 27 of 54 A.S.No.24 of 2022 occasion due to fault or, in contact with any one, it would result into death or endanger the lives of the locality people concerned and by-passers.
They are expected to make periodical check up beside to check the electrical wires and to ensure they are not endanger to general public or cattle.
44.So, there is ample evidence regarding improper maintenance of electrical wire by the defendants. The defendants without taking precautions to keep maintain the electric wires at considerable height there would be no possibility of touching with crow bar with live wire. Even though, the circumstances enumerated to be believed as true, the defendants being the proper authority have to maintain electric wires with sufficient height at sufficient distance and they are expected to take proper care and due to any fault by virtue of coming in contact with the wires by any one, it would result into death or endanger to the lives of local people or the by passers or any one. They are expected to make periodical check up beside the checking the electrical wire and to ensure that electrical wires are not endanger to general public or cattle.
45. In view of the nature of the substence being electricity, supply of electricity, the very presence of situating electrical pole in a particular locality requires lot of attention, so as to avoid untoward incidents, as the
Page No. 28 of 54 A.S.No.24 of 2022 mismanagement, either due to Act of God or negligence of any one, will result into the great mishap hence, the concerned electricity department authorities are expected to maintain the things properly, so as to avoid any act endangering the lives of the vicinity as well as the by-passers. The term ‘negligence’ denotes absence of minimum reasonable care.
46. The term ‘negligence’ denotes civil wrong under law of torts it involves harm caused by failing to act as a form of carelessness, possibility with extenuating circumstances.
47. The law pertaining to the term ‘negligence’ can be understood as failing to pick up which is derived from Latin term ‘negligentia’ and it is based on the principles of justice, equity and good science so, term negligence can be understood as an act of being careless and it seeks/connotes the failure to exercise a minimum standard of care which a prudent man ought to have exercises on given situation. So, it can be considered as breach of a legal duty to take care. Result of negligence it may result into causing damage to the lives and properties. So, the term negligence can also be understood further as an omission to do something which a prudent man ought to do or doing something a prudent or reasonable man would not supported to do. So, the negligence can be non- feasance or merefeasance, which means the act of failure to do something
Page No. 29 of 54 A.S.No.24 of 2022 which a person is expected to do and also the act of not doing an action properly which is expected to be done properly.
48. Likewise, mal-feasance denotes the act of doing something which should not have been done at the very frst instance itself. So civil liability can arise on account of failure of a person to exercise ordinary care or due diligence. It can be understood from civil negligence, the plaintiff has to prove. It is most likelihood that plaintiff has to prove that the defendant is negligent. In order to commit the tort of negligence i.e. a civil wrong, certain essential characteristics are required in order to categorize certain act as negligence.
49.In order to make a person liable the first and the foremost essential, thing or condition to be satisfied is a duty to take minimum possible care and such kind of duty should be towards the plaintiff.
50.So, in the instant case, while carrying out electrical operations, the defendants are a statute bound to take minimum possible care to avoid unforeseen circumstances and by virtue of carrying activities when dealing with electrical power, the defendants owe duty of care to the general public while installing or maintaining the electrical system and it’s devices or other instruments or electrical wiring etc.
Page No. 30 of 54 A.S.No.24 of 2022
51.So, being carrying out the activities of public utility services, as they are meant to do for the sake of public, it can be considered they had duty towards the public and also as the deceased being one of the members of public can be considered, the duty was towards the family member of plaintiff also. The third essential condition in order to bring the case of the defendants under negligence is that there should be a breach of duty to take care. So, in the instant case, by virtue of carrying out electric operations, the defendant is duty bound to take care and also the defendant owed duty towards the deceased being one of the members of public to take care. In the instant case, the circumferences enumerated from the case of plaintiffs and evidence let in by both the parties goes to show there is breach of duty by the defendants, on account of failure to exercise reasonable care in maintaining electrical system, so, it can be considered the defendants omitted to perform their duties and committed an act of negligence by improperly maintaining the wiring with sufficient height.
52.So, the next characteristic of negligence to be established by the plaintiff is the actual cause in fact. So in the instant case, by virtue of poor maintenance of electrical wire with sufficient height, it led to the passing of electricity and the deceased came into contact with the electric wires.
Hence, it can be considered the plaintif is able to establish the defendants
Page No. 31 of 54 A.S.No.24 of 2022 violated the duty which is the actual reason or cause damages to the plaintiffs.
53.So, further the plaintiffs have to show the proximate nexus or cause between the acts of the defendants as well as the death of the deceased which is well established in the instant case, so, the primary cause of the injury was that of the poor maintenance of electric wires with sufficient height and absence of insulation of electrical wires. So, it was the reason causing electrocution, resulted into the death of deceased. One unforeseen cause of consequences is on account of poor maintenance of electrical system and lack of proper care and periodical check up of electrical lining by the defendants. So, in the instant case, the plaintiffs are able to establish not only that the defendants failed to exercise reasonable care but also failed to establish the failure of the defendants to exercise reasonable care which was resulted into the damages to the plaintiffs or to the deceased towards whom the defendant owed duty to take care.
54.So, the harm was of such a nature, which in the light of circumferences claimed the life of the deceased for which the defendant can be held liable to compensate the plaintiff for the damages occurred which in the light of circumstances, cannot be considered contributory negligence. In the instant case, as the burden to establish contributory
Page No. 32 of 54 A.S.No.24 of 2022 negligence lies on the defendants at first instance and in the absence of establishing the same or discharged the initial burden by the defendant in this regard, the plaintiff need not prove its non-existence. The death was not occurred on account of any Act of God or contributory negligence by the deceased. As the plaintiff is able to establish that there is prima-facie, duty casted on part of defendants to exercise minimum and proper or reasonable care which is expected to be exercised by the defendants in maintaining proper electrical wires with sufficient insulation and non- accessible to the public or the by-passers or cattle, on account of improper exercise in taking reasonable care (action by the defendants) as it causes potential harm which can be foreseen, hence the defendants can be held liable, on account of suffering, by causing loss to the deceased in particular as well as plaintiffs at large which is purely on account of negligent act of the defendants. So, due to the act of negligence in omission to exercise proper and reasonable care, the deceased as well as the plaintiffs suffered injury which could be reasonable foreseably consequences of the defendants, omission to maintain properly the electrical wires.
55. So, the plaintiffs are able to establish there was a duty of care on the part of defendants as well as there was breach of duty towards the deceased and general public and also it was the cause resulting harm and
Page No. 33 of 54 A.S.No.24 of 2022 substantial loss to the life of the deceased. So, the proximate nexus or cause was well established as the death of the deceased was occurred on account of material or improper maintenance of electricity by the defendants which resulted into the death of the deceased. So, the reason for cause of death was due to electrocution which was undisputed fact. So the plaintiffs are able to establish the defendant caused breach and it resulted injury to the plaintiffs on account of death of the deceased. So, the loss occurred to the plaintiff’s family cannot be compensated in mere terms of money.
56.So, emotional distress to the plaintiffs can also be considered as it is accompanied by physical or peculiar injury. As the plaintiffs are able to establish the breach of the duty. Hence, the defendants are required to compensate to the family of the victim.
57.So, in the instant case, by virtue of establishing negligence on the part of the defendants who are duty bound to maintain the electric wiring properly or omitted to do so result of act of their negligence, it made
Rajesh Kumar suffered damages not only pecuniary but also emotional distress.
Page No. 34 of 54 A.S.No.24 of 2022
58.By virtue of the nature of the electricity being endanger in case of having direct contact with it, it will result into mishap. Hence, it is expected to maintain it properly to avoid unfortunate things, endangering the public. As contended by the defendants if at all there was stay wire containing insulator it would not have resulted into electrocution, even if the iron rod was touched to the wire. If the defendants would have taken minimum reasonable care, or protection or proper measures to keep sufficient distance between the jumper wire and stay wires, it would have avoided in coming into contact of any wire by Rajesh Kumar or touching the jumper wire with stay wire. So, the defendants being concerned authorities failed to take minimum proper care in maintaining sufficient distance between the jumper wire as well as stay wire. They failed to take appropriate measures that no way it would come into contact with any one.
Substantial evidence is lacking from the defendants to show the stay wire contained insulator and the defendants failed to adduce any kind of evidence in support of their contentions in that regard.
59.So under such circumstances, in evidence of P.W.1 the eyewitness is quite sufficient, to speak/depose regarding touching the electric wire with crowbar, which was erected at low height was resulted into electric shock to deceased. There was no contentions of defendants that the stay wire was
Page No. 35 of 54 A.S.No.24 of 2022 containing insulator. It was not established positively by the defendants.
By virtue of Section 106 of Indian Evidence Act, when a fact is within the knowledge of any person, the burden of proof lies on the person to establish the same. In the instant case, when the defendants not even taken plea of having insulator to the wire and also the same was not established so, as to contribute own negligence on the part of the deceased that he used the crowbar with high force and it touched the stay wire and was resulted into coming with contact with electric wire which was erected at low level.
60. So, under such circumstances, as the defendants failed to establish that the stay wire was containing insulator or not below considerable height cannot be considered the defendants are able to establish they have taken minimum possible care and proper measurements sufficient while erecting a pole or installing stay wire or properly maintaining the same. So in the absence of establishing the contentions of the defendants positively it can be considered death of Rajesh Kumar was occurred due to electrocution in taking care and on account of negligent act of the defendant’s department and it’s authority, as they failed to maintain the stay wire with sufficient height or with reasonable caution.
61.So, their acts do not preclude them from their liability as they are negligent in keeping stay wire from near to the jumper wire and also as
Page No. 36 of 54 A.S.No.24 of 2022 there is improper maintenance of the stay wire with sufficient and reasonable height. So, under such circumstances, as there is absence of taking proper minimum care by the concerned department it can be considered, the death of the deceased is occurred due to negligence of the defendants as they failed to take proper minimum care in maintaining the electrical wires with sufficient distances or height so as to avoid untoward incidents. They failed to take proper measurements to keep those wires beyond reach of any of the public, more particularly, the deceased. Hence, there was absence of possible minimum care by the defendants in maintaining the electrical wires with sufficient height and distance which resulted into death of the deceased which was on account of poor maintenance and purely due to negligent acts of the defendants. Hence, they can be held liable on account of their improper maintenance or negligent in maintaining the electrical wires, it is resulted into death of deceased.
62.At this juncture it is worth-mentioning ruling of the Hon'ble High
Court in “Khiradabala Nath vs. Assam State Electricity Board And others” reported in WP(C) 5772 of 2001, delivered on 4th June, 2008, in which the Hon’ble Court is kind enough to refer the rulings of the Hon'ble
Page No. 37 of 54 A.S.No.24 of 2022
Apex Court as well as pleased to lay emphasize on the concept of strict liability also.
“A person, undertaking an activity involving hazardous or risky exposure to human life, is liable, under law of torts, to compensate for the injury suffered by any other person irrespective of any negligence carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such an undertaking, is known, in law as ‘strict’ liability’. The concept of ‘strict liability’ differs from the liability, which, ordinarily, arises on account of the negligence or fault, for when a person is held responsible for negligence or fault, the concept comprehends, that the foreseeable harm could have been avoided by taking reasonable precautions.” “Thus, the rule of ‘strict liability’, which makes a person liable to compensate one, who suffers injury by an act of an, undertaking, which is involved in hazardous or risky exposure to human life, is subject to certain exceptions, which have been enumerated hereinabove, one of such exceptions being the default of the plaintiff, i.e, when damage is caused solely by the act of the plaintif himself. This, in turn, means that the death or injury must have been caused by the act or default of the deceased or the injured, as the case may be. If the deceased or the injured had merely contributed partly to the accident, the rule of ‘strict liability’ will still apply. The responsibility to supply electrical energy in the localities, where the accidents, in the present cases, took place, was statutorily conferred on the respondents. If the energy transmitted by the respondents cause injury to, or death of a human being who gets unknowingly trapped into it, the primary liability to compensate the sufferer is that of supplier of the electric energy. So long as the voltage
Page No. 38 of 54 A.S.No.24 of 2022 of electricity, transmitted through the wires, is potentially of dangerous dimension the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road or hanging on the road from electrical poles, for users of such road would be under peril. [M.P
Electricity Board v. Shail Kumari, (2002) 2 SCC 162].”
63.It is, therefore, clear that the deceased got electrocuted by coming in contact with a live wire without any fault on his part due to electrocution but not due to an act of God or an act of any stranger. In the context of the fact that the respondents carry out generation and transmission of electricity, it is clear that the respondents have undertaken an activity involving hazardous and risky exposure and inherently danger to human lives. The respondents, in such circumstances will be governed by the principle of ‘strict liability’, and for an accident, as in the present case, the respondents must be held liable to pay compensation on the basis of the principle of ‘strict liability’.
64. By virtue of carrying out inherently dangerous activity by the defendants, on account of coming into contact of electrical wire by any one, is bound to receive serious injuries or die. So, as observed in the ruling of the Hon'ble Apex Court, when carrying of such kind of activity inherently dangers, they have to ensure that no injury would result from their activities. For improper maintenance, it claimed the life of deceased
Page No. 39 of 54 A.S.No.24 of 2022 as the consequence of their inaction. So, in the instant case the defendants failed to show, they ensured required height while maintaining electric live wires. So, in the instant case, the evidence was quite clear that the deceased got electrocuted by coming into contact with a live wire having unknown about un-insulation, without any fault on the part of the deceased, he was effected with electrocution, as the defendants carried out the generation and transmission of electricity, undoubtedly they have undertaken an activity involved the risk and hazardous exposure and inherently endangers to the human beings. Hence, under such circumstances, as observed by the Hon'ble Apex Court in the ruling referred supra, the principles of ‘strict liability’ will come into way and the defendants can be governed by the principles of ‘strict liability’ and to that extent, the defendants can be held liable to pay compensation even on the principles of ‘strict liability’ .
65. In the instant case, once it was established the death of the deceased was occurred on account of electrocution, the authorities concerned shall be held liable. On account of their negligence in maintaining properly of the electrical wires, it was resulted into death of deceased, which was untimely death. It shows their gross negligence and as they are held responsible for the death, they can be held liable to make payment of
Page No. 40 of 54 A.S.No.24 of 2022 damages. Using normal electrical equipment may result in short circuits and exposed wires and insulator breaks. So, it is expected to examine all the electrical equipments before used or put in usage even during usage also periodical checkup has to be made by the concerned authorities ensuring proper insulation and maintaining of electrical wires at considerable height beyond reach of any one and due to natural wear and tear the exposed wires and insulation breaks are possible. So, due to improper insulation, in order to maintain all power lines at considerable height it is resulted into electrocution and due to fault of utility corporation in improper maintaining the electrical equipment, they can be held responsible. So, the International Electrical Safety Code covers the design and construction of electrical system on the concerned authorities and they have to ensure strict/premises liability. Can be faulted under the theory of
When the defendants department owns the transmission poles and other equipment, then public utility can be held liable. For their failure to proper insulate electric line on site or for not properly maintaining live wires at considerable height and even for failure to insulate a live wire and they are potentially responsible for the loss or injury.
Page No. 41 of 54 A.S.No.24 of 2022
66.Hence, it can be considered the plaintiffs are able to establish the death of Rajesh Kumar due to electrocution is on account of negligent act of the defendants. Accordingly, the second issue was answered.
67.Hence, in the instant case by virtue of carrying out inherently hazardous and risky activity while dealing with generation, transmission and maintenance of electricity they failed to take minimum possible care.
Hence, it caused death and it was resulted into death of the deceased and it claimed the life of the deceased. Hence, by virtue of nature of the activities carrying out by the defendants, the circumstances enumerated in the instant case are being governing by principles of strict liability, hence, the defendant can be held strictly and absolutely liable to compensate to the parents of the deceased. Even though the term “compensation” is not appropriate term when compared to the loss occurred to the life of the deceased as well as his parents to alleviate the pain of parents or suffering of the parents of the deceased in terms of money, it was fit case to award compensation to the legal representatives to the estate of the deceased.
The Trial Court awarded damages to a tune of Rs.5,00,000/- directing the defendant Nos.1 to 3 to pay the same with joint and several liability together with interest @ 6% per annum.
Page No. 42 of 54 A.S.No.24 of 2022
68.As it is established that death of deceased is direct result of negligent act of the defendants, hence, it is for the defendants to pay damages to the family members of the deceased Rajesh Kumar. The defendants in their pleadings as well as in the testimony of D.W.1, it was deposed regarding alleged making payment of Rs.5,00,000/- towards compensation if negligence was found on their part but no document was filed in that regard. Though it was suggested to P.W.1 on behalf of the defendants that his son was not an employee and he just completed graduation and was idle and he was not an earning person as mentioned by him in the plaint, while awarding compensation it ought to be just and reasonable when compared with the loss of life of the deceased as well as the mental agony suffered by his parents. As per testimony of D.W.1 as on that date their office was paying Rs.5,00,000/- towards compensation if the negligence was on their part and he pleaded ignorance whether any preliminary investigation was done pertaining to that case by their office.
69.There is a difference between the term “compensation” as well as “exgratia”. The term “compensation“ can be understood as something in the terms of money awarded to someone in due recognition of loss or suffering or injury and the term damages related to the term compensation.
It can be understood as the monetary compensation which is payable by
Page No. 43 of 54 A.S.No.24 of 2022 the defaulting party to the aggrieved person for the loss suffered by him, which usually be granted by the civil courts to the aggrieved parties.
70.An “exgratia” payment can be understood as a payment made by an employer even in the absence of contractual obligation to do so. So, it can be understood gratuitous act which can be paid out of kindness, in order to do a favour without any legal obligation. So, it can be understood as a voluntary payment made gratuitously to do favour.
71.In the instant case, there was no evidence of defendants that they paid any exgratia or compensation to the parents of the deceased. the “compensation” payments are also made because of the loss or harm done to the other person or to settle a claim of loss or damages or harm.
Sometimes they can be paid in compliance of an order of a Court or
Tribunal. Some times it can also be made through a settlement outside the
Court. So, exgratia being gratuitous and voluntary act without expecting legal liability, hence it can no way be an impediment for the plaintiffs to claim for damages on account of the loss suffered by Rajesh Kumar. Out side the Court. But, in the instant case there was no evidence goes to show the gratuitous and voluntary act of exgratia was paid by the defendants when expected any legal liability.
Page No. 44 of 54 A.S.No.24 of 2022
72.Now it has to be seen whether the Court is justified in awarding the compensation to the plaintiffs the dependents or legal heirs of the deceased
Rajesh Kumar. In the light of circumstances, as undoubtedly the loss occurred to the plaintiffs is the death of the deceased, on account of death of the deceased Rajesh Kumar who lost their son which cannot be compensated in terms of money, while awarding compensation, the Court has to keep in mind the loss occurred to the victim or the benifciaries or legal heirs of the victim as well as earning capacity of the deceased Rajesh
Kumar, the age of the deceased, prospective necessities of the legal heirs of the deceased substantial loss occurred to the deceased, future prospectus, loss of estate, loss of consortium, and funeral expenses, etc.
73.At this juncture, it is worth mentioning for better understanding in determining issue, whether the plaintiffs are entitled for damages from the defendants to a tune of Rs.5,00,000/-, it is appropriate to mention various established legal principles of Hon’ble Courts. \
74.Section 168 of the Motor Vehicles Act was dealt with in “National
Insurance Company Limited VS. Pranay Sethi” case at para 57 it is pleaded to be held by Hon'ble Apex Court that, “Section 168 of the Act deals with the concept of “just compensation” and the same has to be determined on the foundation of fairness,
Page No. 45 of 54 A.S.No.24 of 2022 reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of “just compensation” has to be viewed through the prism of fairness, reasonableness and non- violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance.
Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be guided by the expression, that is, “just compensation”. The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma (supra) and it has been approved in Reshma Kumari (supra). The age and income, as stated earlier, have to be established by adducing evidence. The tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the tribunal and the
Courts is difficult and hence, an endeavour has been made by this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. We approve the principle of
Page No. 46 of 54 A.S.No.24 of 2022 “standardization” so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age.”
And also pleased to elaborate at para 48 of the same ruling in “National Insurance Company Limited VS. Pranay Sethi” pleased to have delivered on 31.10.2017, in point 17, that “17. ... In legal parlance, “consortium” is the right of the spouse to the company, care, help, comfort, guidance, society, solace, afection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non- pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United
States of America, Australia, etc. English courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse’s affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.”
75.Even in the ruling of Hon’ble Court in “Khiradabala Nath vs.
Assam State Electricity Board And others” reported in WP(C) 5772 of
Page No. 47 of 54 A.S.No.24 of 2022 2001, referred supra, it is pleased to make a reference of the ruling of the same Hon’ble Court in 2008 (1) GLT 974 in “State of Tripura and others Vs. Jharna Rani Pal And Another” and pleased to held that, “Even in a suit within a fatal accident the mechanism of use of employer as envisaged under the of the Motor Vehicles Act, 1988 can very well be followed.”
76. In the instant case, it is deposed that Rajesh Kumar was working as financial accountant and was aged about 26 years old at the time of his death and used to earn Rs.7,000/- and the same was denied specifically by the defendants in their pleadings. So, for assessing the amount for compensation to be awarded to the legal heirs or dependents of the deceased, the law laid down by the Hon’ble Courts in case of “Sarla
Varma and others Vs. Delhi Transport Corporation and another” and “National InsuranceCompany Limited VS. Pranay Sethi” can be taken into consideration for awarding compensation in computing the quntum of compensation.
77.So, the law evolved and as pleased to have settled by the Hon'ble
Apex Court in Pranay Sethi’s case as well as Sarla Verma’s case can be taken as an aid, while awarding compensation. In the instant case also in
Page No. 48 of 54 A.S.No.24 of 2022 order to determine quantum of just compensation and to further to go into the legality of quantum of awarded amount granted by the trial Court.
78.In the instant case, there is no evidence placed by P.W.1 that his son was working as finance accountant and was earning Rs.7,000/- to
Rs.8,000/- per month and he was aged about 26 years old and in support of his pleas and ocular testimony of P.W.1 there was no document relied upon such as birth certificate, SSC certificate or medical certificate or any kind of educational certificates. However, Ex.A1 copy of FIR dt.02.04.2008 and Ex.A2 copy of inquest report of the deceased dt.02.04.2008 were marked, but it was undisputed by the defendants completion of graduation by the deceased as it was suggested to P.W.1, however, the defendants disputed that the deceased was employee at the time of his accident. The age of the deceased in Ex.A1 copy of FIR and
Ex.A2 copy of inquest report dt.02.04.2008 of the deceased it was mentioned as 26 years old and his occupation was mentioned as business and hence in the absence of other material, things mentioned in Exs.A1 and A2 can be taken into consideration.
79.Even a coolie used to get not less than Rs.100/- per day could in 2008 and it be expected to draw Rs.3,000/- per month in average his annual income would be Rs.36,000/-. The record/document i.e., copy of
Page No. 49 of 54 A.S.No.24 of 2022
FIR and inquest report of the deceased is to be considered with regard to the age of the deceased as 26 years old. The age of the deceased at the time of death was 26 years old and there are 2 dependents hence personal deduction of 1/3rd can be taken into consideration and appropriate multiplier is “17” to the age group of 26-30, future prospects @ 40% to be taken as the age of the deceased at the time of incident was 26 years old i.e., below 40 years old.
80.As per the rulings of the Hon’ble Apex Court in National
Insurance Company Limited Vs. Pranay Sethi, 2017 ACJ 2700 (SC) ,
the Hon’ble Apex Court is pleased to observe that, “In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.”
81.As per the rulings of the Hon’ble Apex Court in National Insurance
National Insurance Company Limited Vs. Pranay Sethi, 2017 ACJ
2700 (SC) , the Hon’ble Apex Court is pleased to observe that, “Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards
Page No. 50 of 54 A.S.No.24 of 2022 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.”
82.It was further pleased to held in the above said ruling with regard go enhancement in conventional heads namely loss of estate, loss of consortium and loss of funeral expenses should be Rs.15,000/-,
Rs.40,000/- and Rs.15,000/- respectively. It was also pleased to held in the said rulings, the aforementioned amount should be enhanced @ 10% in every three years. As the said pronouncement was pleased to have delivered on 31.10.2017 as more than 6 years have lapsed. Hence, the aforementioned amounts can be enhanced @ 10% for every three years.
Monthly income of the deceased notionally Rs.3,000/- could be fixed as Rs.3,000/-
Deduction of 1/3 towards personal and living Rs.2,000/- expenses as the number of family members were shown as three, it would comes to Rs.3,000-Rs.1,000 = 2,000/-
The Future Prospects 40% is added, which Rs.2,800/- comes to Rs.2,000/- x 40% (2,000+800)
Annual Income of the deceased is Rs.2,800 X12 Rs.33,600/-
Multiplier applicable is “17” Rs.33,600X17=Rs.5,71,200/-
Loss of estate enhanced on first three years Rs. 18,150/- Rs.15,000X10% (15,000+1,500=16,500) enhancement towards loss of estate for second three years Rs.16,500X10% (16,500+1,650) =Rs.18,150/-
Page No. 51 of 54 A.S.No.24 of 2022
Funeral expenses enhanced on first three yearsRs. 18,150/- 15,000X10% (15,000+1,500=16,500) enhancement towards funeral expenses for second three years Rs.16,500X10% (16,500+1,650) =Rs.18,150/-
Filial consortium enhanced on first three yearsRs.96,800/- 40,000X10% (Rs.40,000+4,000=Rs.44,000) enhancement for second three years towards filial consortium each(44,000X10%=48,400) (children/petitioner Nos.1 and 2) (Rs.48,400X2=)
Grand Total Rs.7,04,300/-
83.Evne in view of aforementioned calculations by taking recourse of ruling of the Hon'ble Apex Court in National Insurance Company
Limited Vs. Pranay Sethi referred supra, the calculations were arrived to a tune of Rs.7,04,300/-. Hence, under such circumferences awarding compensation of Rs.5,00,000/- by the trial Court with interest at 6% per annum is quite justified as death of the deceased cannot be compensated in terms of money comparing to the loss occurred to the deceased as well as to the family members of the deceased.
84.The trial Court awarded interest @ 6% per annum which is also reasonable in the light of circumstances. By virtue of Section 34 of Interest
Act. Speaks of “Interest”.
Page No. 52 of 54 A.S.No.24 of 2022
85.By virtue of Section 34 C.P.C. which speaks that “Interest”. As per the said provision, (1) Where and in so far as a decree is for the payment of money, the
Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, [with further interest at such rate not exceeding six per cent. per annum as the Court deems reasonable on such principal sum], from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit [Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent. per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalised banks in relation to commercial transactions.
Explanation I.--In this Sub-section, "nationalised bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (5 of 1970).
Explanation II.-- For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.
(2) Where such a decree is silent with respect to the payment of further interest [on such principal sum] from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefor shall not lie.
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86.The trial Court apportioned the compensation to the parents of the deceased @ Rs.2,50,000/- it also does not warrant any interference as equally distributed compensation of amount of Rs.5,00,000/- to the parents even they deserved for consortium for loss of their son at an earlier age and due to untimely death of their son the appellants/plaintiffs suffered great mental agony. Hence, awarding compensation of Rs.5,00,000/- by the trial Court is quite reasonable and appropriate which does not warrant any interference.
87.So, the judgment of the trial Court is on sound principles of law and it can be considered the suit is filed within limitation and does not bared by limitation. Hence, appellants/plaintiffs are entitled for recovery of the suit amount, as prayed by them and also the suit is filed within the limitation.
There is no irregularity and impropriety in the judgment of the trial Court in awarding compensation to the respondent/plaintiffs. Hence, trial Court, is justified in awarding compesation of Rs.5,00,000/- to the respondents as such, the judgment of the trial Court is sustainable under law and
judgement of the trial Court does not warrant any interference.
Accordingly, these points are determined.
Page No. 54 of 54 A.S.No.24 of 2022
88.POINT No.4:-
In the result, the appeal suit is dismissed, confirming the judgement passed by learned II Additional Senior Civil Judge (FTC),Mahabubnagar in O.S.No.132 of 2010 dated 30.01.2019 in awarding compensation of
Rs.5,00,000/- to the respondent/plaintiffs with interest @ 6% per annum from the date of filing of the suit i.e., from 30.04.2010 till the date of realization and also apportionment @ RS.2,50,000/- each to the respondents/plaintiff Nos.1 and 2 with proportionate interest together, with costs, against the appellants/defendants No.1 to 3 with joint and several liability.
Partly typed to my dictation by typist on computer system and partly
dictated to stenographer, transcribed by her, corrected and pronounced by
me in the open Court, on this the 23rd day of March, 2024.
Judge,
Family Court-cum-III ADJ., Mahabubnagar. Appendix of evidence Witnesses examined -NIL-
Exhibits Marked. -Nil-
Judge,
Family Court-cum-III ADJ., Mahabubnagar.