THE HONOURABLE MR v. Ramaswamy

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.12.2007CORAM:THE HONOURABLE MR.JUSTICE V.DHANAPALANA.S.No.746 of 1992The Superintending Engineer,Coimbatore Electricity Distribution Circle/South,Coimbatore – 12.... Appellant/ Defendantvs.Ramaswamy... Respondent/ Plaintiff Appeal filed under Section 96 of the Code of Civil Procedureagainst the judgment and decree dated 05.08.1989 made in O.S.No.399of 1986 on the file of the First Additional Sub-Court, Coimbatore.For Appellant:Mr.N.MuthusamiFor Respondent:Mr.P.SelvarajJ U D G M E N TChallenging the judgment and decree dated 05.08.1989 made inO.S.No.399 of 1986 on the file of the First Additional Sub-Court,Coimbatore, the defendant has preferred this appeal. 2.Brief facts leading to the filing of the appeal, in anutshell, are as under:(i)The plaintiff is a Cobbler belonging toScheduled Caste. On 01.06.1982, his second son minorRajan alias Ramaswamy, aged about 7 years and his firstdeaf and dumb son were playing near their house atKonavaikalpalayam, Kurichi Village, Coimbatore. Whilethe two sons of the plaintiff were playing, a suddenelectric shock bursted out from the nearby Electric postand it caused an immediate attack on them. The deaf anddumb son escaped from the heavy shock though affected byit. But unfortunately, the plaintiff's minor second sonRajan was heavily attacked and died of electrocution.(ii)According to the plaintiff, the accidentoccurred due to negligence and carelessness of the https://hcservices.ecourts.gov.in/hcservices/ handling of the job of maintaining the Electricitycircuit in that locality by the defendant employees andthey are vicariously liable for the accident; because oflack of vigilance and smartness of the defendant Board,the plaintiff has lost his second son; it is the boundenduty of the defendant and his men to maintain theelectricity circuit key and prevent all reasonabledangers to the inhabitants of the locality.(iii)Since the first son is deaf and dumb, theplaintiff thought of putting his deceased son ineducation and he was prepared to spend any amount forthe same. According to the plaintiff, his deceased sonhad a very good opportunity of education and job onavailing the concessions given to the Schedule Castecommunity by the Indian Government. According to theplaintiff, the pain and suffering which he experiencesdue to the death of his second son is immeasurable andnothing would console him equal to his deceased son.Therefore, he filed a suit in O.S.No.399 of 1986 on thefile of the Subordinate Court, Coimbatore for adirection to the defendant to pay a sum of Rs.50,000/-with future interest and costs. (iv)In the Written Statement, the defendant hasstated that under Hindu Law, the mother alone is thelegal representative of the unmarried deceased sons; thefather has no legal claim to succeed to the estate ofthe son, while the mother is alive; therefore, the suitas framed is not maintainable in law and facts. It isfurther stated that the plaintiff is not a dependant ofthe deceased boy; moreover he has not stated the realfacts and circumstances under which the boy waselectrocuted. At the time of the alleged accident therewas heavy gale and live wire had loosened and touchedand energised the iron pole; since the Board is alwaystaking proper care in maintaining the lines, thetouching of the pole by the live wire is beyond thecontrol of the Board due to natural calamities andcauses. Due to heavy wind and rain, even well-builtstructures could not withstand; that being so, theDepartment cannot be saddled the burden and liabilityfor the accident which was not due to their act; sincethe deceased boy was aged only 7 years, he was unableto resist the induction but the same was not due toelectric shock.(v)The defendant has specifically denied in theWritten Statement that the deceased boy was very good https://hcservices.ecourts.gov.in/hcservices/ and intelligent. According to the defendant, thedeceased boy was not studying in School and he was onlygrazing the cattle as stated by his father in hisstatement to the Department. The defendant also deniedthe allegation and claim of the plaintiff regarding thequantum of compensation. The defendant contended thatthe claim of Rs.50,000/- is excess, arbitrary and has nolegal basis, since the plaintiff has nowhere stated thathe was getting income through his deceased son;therefore, the claim is not only excessive but also animaginary one.(vi)It is the further contention of the defendantthat their Board is not liable to pay compensation forno fault of their employees. But in any event, theDepartment is generous enough to grant an ex gratiapayment of Rs.7,200/- to the parents of the deceased asper the rules and regulations of the Board. But thelegal heirs of the deceased have so far not claimed thesame. Therefore, they prayed for dismissal of the suit.4.The Trial Court, on consideration of the oral anddocumentary evidence has decreed the suit with costs, holding thatthe plaintiff is entitled to compensation of Rs.27,000/- withinterest at the rate of 12% per annum from the date of filing ofthe suit till the date of payment and also directed the defendantto pay a sum of Rs.3,750.50 to the Government as court fee.Challenging the said order passed by the First Addl. Sub Judge,Coimbatore, the defendant Board has preferred this appeal.5.Heard Mr.N.Muthuswamy, learned counsel for theappellant/defendant and Mr.P.Selvaraj, learned counsel for therespondent/plaintiff.6. Learned counsel for the appellant/defendant hasstrenously put forth the following contentions :(i)having held that the mother alone is the legalheir of the deceased, the court below should haverejected in limine the suit filed by the father.(ii)the interpretation of the learned Sub Judge asregards Section 4 of the Fatal Accidents Act is highlymisconceived and ex facie erroneous and there is nothingto warrant an inference that either father or motheralone can file a suit for compensation.(iii)the learned Sub Judge erred in drawinginspiration from and placing any reliance on the https://hcservices.ecourts.gov.in/hcservices/ provisions of the Motor Vehicles Act and the practiceand procedure adopted in cases pertaining to MotorAccident claims.(iv)the finding of the court below that the fatalaccident was solely due to the negligence on the part ofthe defendant is not based on any evidence, either oralor documentary but purely on surmises and conjecturesand moreover the learned Sub Judge has failed to seethat even PW1 has not asserted in a categorical mannerthat the accident was due to negligence on the part ofthe defendant.(v)the finding of the learned Sub Judge that thepoles got energised resulting in electrocution andconsequential death of the deceased and that thedefendant Board has not maintained the lines and polesproperly is not based on any evidence whatsoever.(vi)the court below has failed to consider theforce and fury of nature in the form of a strong galeresulting in the accident and that it was beyond thepower and control of the defendant.(vii)the fixation of quantum of compensationis not on any rationable basis but arbitrary.7.Per contra, learned counsel for the respondent/plaintiffhas contended that the plaintiff, who is the father of the deceasedminor boy aged about 7 years has the legal right to claimcompensation, since he is dependant on him. He submitted that theplaintiff has two sons, one is deaf and dumb and the other is thedeceased minor boy; the deceased son is the only source of theplaintiff's future; if were alive, he would have been given bettereducation using the benefits due to the Schedule Caste communityand he would have come up in life. According to the learnedcounsel, the Trial Court has rightly taken into consideration thevarious factors and calculated the compensation; the findingsrendered by the Trial Court in respect of the negligence caused dueto the maintenance of the electricity circuit in that localitybased on the oral and documentary evidence are indisputable and thecompensation awarded is in accordance with law. He contended thatthere is no legal infirmity in the findings of the Trial Court andtherefore, the appeal deserves no consideration and the same isliable to be dismissed.8.I have given careful consideration to the submissionsmade by the learned counsel on either side. https://hcservices.ecourts.gov.in/hcservices/

9.It is not in dispute that on 01.06.1982, the plaintiff'syounger son aged about 7 years died due to electrocution and thatif he were alive, he would have been given proper education andwould be of great support to the plaintiff in future. It is seenfrom the Written Statement that at the time of the allegedaccident, there was heavy gale and live wire had loosened, touchedand energised the iron pole; the touching of the pole by the livewire is beyond the control of the Board due to natural calamitiesand causes. It is also stated that even well built structurescould not withstand due to heavy wind and that the Departmentcannot be liable for the accident. The defendant Board hasadmitted that since the boy was only 7 years, he was unable toresist the induction but the same was not due to electric shock.Though the plaintiff has deposed that his deceased son, aged about7 years was earning a sum of Rs.5/- daily by way of grazing thecattle, he has not produced any evidence before this Court to thateffect. It is also seen in the Written Statement that theDepartment is willing to grant Rs.7,200/- as ex gratia to theparents of the deceased as per the Regulations of the Board.10.The Trial Court has considered the oral evidence ofP.W.1, the father of the deceased minor boy, who has narrated thecircumstances under which the accident took place due to thecarelessness and negligence of the appellant/defendant Board. TheTrial Court has also considered the evidence of D.W.1, who hasdeposed that the accident is beyond the control of the defendantElectricity Board since at the time of accident, there was heavygale and live wire had loosened, touched and energised the ironpole. The documentary evidence in Ex.A1 dated 23.05.1982, which isthe letter addressed to Kurichi Village Officer by the Sub-Inspector of Pothanur and the letter of the Assistant ElectricalEngineer to the plaintiff in Ex.A2 regarding the payment of exgratia have been considered by the Trial Court. The Trial Courthas also considered the documentary evidence on the side of thedefendant Board marked in Ex.B1 – letter of the plaintiff to theAssistant Electrical Engineer and Ex.B2- Report of the AssistantElectrical Engineer regarding the accident.11.The Trial Court, on consideration of the oral anddocumentary evidence, the age of the deceased boy and taking intoaccount the future prospects of the deceased boy, calculated themonthly income of the deceased at Rs.150/- for a period of 15 yearsand held that the plaintiff is entitled to Rs.27,000/- ascompensation with 12% interest per annum, which according to thisCourt is reasonable.12.This Court, in several cases similar to the case on handhas awarded compensation on the basis of certain factors which arenecessary to arrive at such a quantum of compensation. It is seen https://hcservices.ecourts.gov.in/hcservices/ that the Trial Judge has taken into consideration the provisionsunder Section 4 of the Fatal Accidents Act and the provisions underthe Motor Vehicles Act. On consideration of the facts andcircumstances of the case, it is seen that the plaintiff has losthis younger son, who would be of great moral support to the family,if he were alive. According to the defendant Board, the deceasedminor boy died only because he was unable to resist the inductionfrom the electric pole and that the Board cannot be burdened withthe liability of the accident; but, the fact remains that thedeceased died of electrocution due to the improper maintenance ofthe poles by the defendant Board. Though, loss of life of thechild cannot be compensated by any means, monetary compensationwould certainly be helpful to the parents of the deceased. In thatview of the matter, the findings arrived at by the Trial Judge togive an equitable remedy of awarding Rs.27,000/- as compensation tothe plaintiff who has lost his only support to the family cannot betermed as erroneous, as he has rightly taken into consideration thenecessary factors for determining the compensation.13.In view of the foregoing discussion, this Court findsthat there is no infirmity in the findings of the Trial Court andaccordingly the same is confirmed.In the result, the appeal stands dismissed. No costs. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.abeTo:1. The First Additional Subordinate Judge, Coimbatore. 2. The Record Keeper,VR Section, High Court, Madras.1 cc to Mr.N. Muthuswami, Advocate, Sr. 73234A.S.No.746 OF 1992KSJ (CO)kk 29/1