Chidambaram.4.The Assistant Executive Engineer, Operation & Maintenance, Tamil Nadu Electricity Board, Sethiathoppu v. 1.Thangaraju2.Muniammal

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 27.11.2007CORAM:The Honourable Mr.Justice S.TAMILVANANA.S.No.267 of 19961.Tamil Nadu Electricity Board, rep. By its Chairman, Anna Salai, Chennai.2.The Superintending Engineer, South Arcot Electricity Distribution System(South), Operation & Maintenance, TamilNadu Electricity Board, Cuddalore, South Arcot District.3.The Executive Engineer, Operation & Maintenance, Tamil Nadu Electricity Board, Chidambaram.4.The Assistant Executive Engineer, Operation & Maintenance, Tamil Nadu Electricity Board, Sethiathoppu. ... Appellants/Defendants-vs-1.Thangaraju2.Muniammal ... Respondent/PlaintiffAppeal is filed under Section 96 of C.P.C. against thejudgment and decree dated 08.09.1995 made in O.S.No.113 of 1992 on thefile of Subordinate Judge, Chidambaram.For Appellants : Mr.N.Muthuswami, TNEB For Respondents : Mr.Vedavallikumar https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTThis appeal has been preferred against the judgment and decreedated dated 08.09.1995 made in O.S.No.113 of 1992 on the file ofSubordinate Judge, Chidambaram.2.The appellants herein were the defendants in the suit beforethe Trial Court. The case of the respondent/plaintiff is that on11.03.1990 at about 8.00p.m., their daughter Vasanthi, who wasstudying, 6th standard, died due to the broken down of electric postin the village. It is not in dispute that Vasanthi, the minordaughter of the respondents had died on 11.03.1990, on account of thefalling of a damaged electric post, while the girl was worshiping thegoddess, Kannaiamman Deity in a procession at Chinnanagaram colony.When the Deity of the goddess was taken out in a procession, theminor girl was standing nearby the electrical post. While, theprocession was carring the Deity at a turning, a small wooden postused for carrying the Deity had touched the electric post and theelectric post which was already in a damaged condition, got brokendown and fell down on the minor girl and hit her, due to which, shedied on the spot. 3. According to the respondents, the accident had taken placeonly due to negligence of the employees of the Tamil Nadu ElectricityBoard, since the electric post was not properly maintained in a goodcondition. The respondents herein have further stated that most ofthe electric post in the said colony were in a very bad condition andinspite of the representation and complaints made before the officialsof the appellants, no action was taken by them to replace the oldelectric post, which were endangering human life. The respondentshave further stated that the deceased was their only daughter and theyhave no other issues and that the second respondent had also underwenta family planning operation on 16.09.1995 at the Government Hospital,Chidambaram and therefore, she could not have any issues in future.Due to the death of their only daughter, the respondents havesustained irreparable loss and also mental agony. 4. As there was no response from the appellants inspite of therepresentation made by the respondents, they issued a legal notice andthen filed the suit, before the Trial Court seeking compensation ofRs.1,00,000/- to be paid by the appellants herein, with 12% interestand costs for the loss sustained by the respondents due to the deathof their daughter.5.In the written statement filed by the appellants herein, asdefendants before the Trial Court, the death of Vasanthi, daughter ofthe respondents on 11.03.1990, has not been disputed. According tothe appellants herein, on 11.03.1990 at about 8.30p.m., on account of'Masimagam' festival, while the village people carrying the Deity of https://hcservices.ecourts.gov.in/hcservices/ Kanniyamman, in a procession, at a turning print in a very narrow andcrowded lane, one of the big logs used for carrying the Deity,forcibly dashed and hit against the electric pole, which resulted inthe electric post, being broken down and causing the accident. 6. According to the appellants, negligence has to be attributedagainst the persons who were carrying out the Deity in the processionand not the appellants. The appellants have also not disputed thatthe deceased Vasanthi was the only daughter of the respondents,studying 6th standard. However, in the written statement theappellants herein, have also denied the allegation that the electricpost was already in a damaged condition due to improper maintenance ofthe Electricity Board. 7.The Trial Court has framed the following issues:1)Whether the accident had taken place due tonegligence and improper maintenance of the electricpost?2) What relief the plaintiffs are entitled to?An additional issue was also framed which is asfollows:Whether the suit is bad for non-joinder ofnecessary parties?8.The Trial Court considering the oral and documentary evidenceand also the arguments advanced by both sides, answered all the issuesin favour of the respondents/plaintiffs and partly allowed the suit,directing the appellants/defendants to pay Rs.65,000/- as totalcompensation to the respondents with 12% interest from the date offiling of the suit with costs. According to the secondrespondent/P.W.1, on 11.03.1990, at about 8.00p.m. his daughterVasanthi died only due to the falling down of the broken electricpost, while she was standing nearby the said post during theKanniamman Koil festival. According to him, the electric post hadbeen found in a damaged condition even prior to the accident. As perthe evidence of P.W.4, Village Administrative Officer, many of theelectric posts, in the village were found in a damaged condition anddue to the breaking of cement portion, iron rods could be seen insidethe posts. P.W.2, who had been the Panchayat President and P.W.3, aresident of the said village, who participated in the village festivalhave also deposed similar evidence fixing the negligence on theappellants/defendants that the electric post in the village was notproperly maintained.9. A, Grade-I Police Constable attached to Sethiyathope PoliceStation was examined as P.W.5 and through him, the case records in https://hcservices.ecourts.gov.in/hcservices/ Crime No.118/90 on the file of the Sethiyathope Police Station,relating to O.S.No.113 of 1992 had been produced before the TrialCourt. An Assistant Engineer of Tamil Nadu Electricity Board,attached to Sethiyathope sub-station was examined as D.W.1. He hasnot denied the death of Vasanthi, daughter of the respondentsherein, on account of the electric post fallen down on the minor girl.10. The certified copy of the First Information Report registeredon 11.03.1990 by Sethiyathope Police Station in Crime No.118 of 1990,under Section 337 and 304(a) IPC, has been marked as Ex.A1. As perthis First Information Report, the case was registered on account ofthe death of Vasanthi aged about nine years, died due to the accidentof electric post fallen down on the girl. Even in Ex.A4, the deceasedminor girl is stated as daughter of the respondents. Ex.A2 is thecertificate issued by Civil Surgeon, Government Hospital, whereby itis certified that the second respondent Muniyammal had underwentlaproscopic operation on 16.09.1995. The Xerox copy of the recordsheet relating to Vasanthi, issued by the Head Master, R.C.School,Chinna Nerkundram has been marked as Ex.A3, wherein the date of birthof the deceased girl Vasanthi is stated as 01.09.1981. A copy of thelegal notice issued by the respondents has been marked as Ex.A4 andthe postal acknowledgments are marked as Exs.A5 to A8. Ex.A9 is thecopy of the Postmortem Certificate of Vasanthi, aged about nine years.11.The oral and documentary evidence adduced by therespondents/plaintiffs would clearly establish that the accident hadtaken place due to the improper maintenance of the electric post bythe appellants and due to the accident the minor girl died.12. On the facts and circumstances, this Court is of the viewthat there is no legally acceptable defence available on the side ofthe appellants, to allow this appeal. Though the appellants had deniedthe relationship of the respondents with the deceased Vasanthi, in thewritten statement, the said relationship has been established by wayof oral and documentary evidence. The evidence available on recordwould clearly establish the fact that the electric post was broken andfallen down on the nine year old girl, Vasanthi, and caused her death,since the electric post had been in a damaged condition, as stated bythe respondents herein. The Trial Court has awarded only a minimumamount of Rs.65,000/- as compensation to be paid to the respondentswith 12% interest and costs. However, there is no cross appeal by therespondents. https://hcservices.ecourts.gov.in/hcservices/

13.In the aforesaid circumstances, I could find no error orinfirmity in the impugned judgment and decree rendered by the Courtbelow, to be interfered with in favour of the appellants. Hence, thisappeal fails. In the result, confirming the judgment and decree passedby the Court below, this appeal is dismissed with costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarSmiTo,1. The Subordinate Judge, Chidambaram.2.The Record Keeper, V.R.Section, High Court, Madras+1cc to Mrs. Vedavallikumar, Advocate Sr 70150ASM(CO)km/10.6.A.S.No.267 of 1996