Tamil Nadu Electricity Board v. Rajendran & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 21.08.2009CORAM:THE HONOURABLE MR. JUSTICE K.K.SASIDHARANA.S. No.529/19991.Tamil Nadu Electricity Board, rep. By its Chairman, 800, Anna Salai, Chennai-2.2.The Superintending Engineer,Vellore Electricity Distribution Circle,Tamil Nadu Electricity Board, Vellore-33.The Executive Engineer, Operation &Maintenance, Vellore Electricity DistributionCircle, Vellore4.The Junior Engineer,Vellore Electricity Distribution Circle,Tamil Nadu Electricity Board,Kagithapattarai, Vellore-12: Appellants/Defendants 1 to 4Vs.1.Rajendran2.Babu3.Minor Munusamy..Respondents 1 to 3/Plaintiffsrep. By his brother andnatural guardian Rajendran4.Subramani: Respondent-4/Defendant -5Appeal filed against the Judgment and Decree dated 19.03.1999made in O.S.No.610/1991 on the file of the Sub Court, Vellore.For appellant :Mr.N.MuthusamyFor respondent : Mr.T.Dhanya Kumar, for respondents 1 to 34th respondent not ready in Notice J U D G M E N TThis first appeal is directed against the Judgment and Decreedated 19.03.1999 in O.S.No.610/1991 on the file of the Sub Court, https://hcservices.ecourts.gov.in/hcservices/ Vellore. 2.Defendants are the appellants.3.Parties are referred to as plaintiff and defendantshereinafter.4.The suit in O.S.No.610/1991 was instituted by the plaintiffsclaiming a sum of Rs.2 lakhs as compensation from the defendants onaccount of electrocution of their mother Kuppammal on 15.09.1988.5.In the plaint in O.S.No.610/1991, plaintiffs inter-aliacontended thus :(a)Plaintiffs are the legal representatives of the deceasedKuppammal who died on 15.09.1988 on account of electrocution.Deceased Kuppammal was employed as sweeper in the local GovernmentHospital on a monthly salary of Rs.3,000/-. The deceased was residingat No.62, Arugandampoondi of Thottapalayam. Kuppammal's motherGovindammal was also a resident in the very same street.(b)On 15.09.1988, at about 7.30 p.m., mother of Kupammal viz.,Govindammal came to her house to distribute Prasadam in connectionwith Vinayaga Chadurthi Festival. At about 8.00 p.m., Kuppammal cameout of the house and proceeded to her residence. It was raining andshe walked a few steps towards North to go to her house. The livewire carrying electricity broke from the lamp post which was standingon the southern side of the house of the plaintiffs along with thesocket, and fell on Govindammal, causing her instantaneous death. Onhearing the death cry of her mother Govindammal, Kupammal rushed tothe spot and she was also electrocuted.(c)The incident was solely on account of the negligence on thepart of the defendants in not keeping the live electricity wires in afit and proper condition. In fact, on the previous day, complaint waslodged by the husband of the deceased Kuppammal to the fourthdefendant with regard to the poor condition of the pole wire andthere being short circuit. However, there was no action. The deceasedKuppammal was hale and healthy. She was looking after the entirefamily. Plaintiffs have become orphans on account of the death oftheir mother. Kuppammal was employed in Government service and onaccount of her death, the family suffered monetarily as well asemotionally. Accordingly, they prayed for a sum of Rs.2 lakhs ascompensation.6.The suit was resisted by the defendants. In the writtenstatement filed by the fourth defendant, it was contended thus :-(a)The allegations that the accident was due to the negligenceof the defendants was specifically denied; https://hcservices.ecourts.gov.in/hcservices/ (b)There was heavy rain and wind in the Vellore Town on15.09.1989, especially in the evening. Owing to the heavy wind andrain, street light electric over-head line gave way at shackle pointwith shackle, and the electric wire over-head line fell on theground. At about 7.30 p.m. on the same day, Govindammal came intocontact with the overhead line lying on the ground while going to herhouse and died. On hearing her cry, deceased Kuppammal came to rescueher mother and she also came into contact with the live electric wirelying on the ground and died. There was absolutely no negligence onthe part of the Electricity Department. Overhead lines were beinginspected and maintained periodically and the incident had takenplace purely due to natural calamity viz. due to heavy wind and rain.It was an act of God. There was no complaint from the husband of thedeceased Kuppammal at any time with regard to the poor condition ofthe pole wire much less on the previous day. There was no shortcircuit in the Melaniai Street, as averred by the plaintiffs. Thecondition of the lamp post and the overhead line in the accident spotwere intact and in good condition. The deceased Kuppammal as well asdeceased Govindammal ought to have been careful and should havenoticed the live wire and should have avoided the accident. Thecompensation claimed was wholly exorbitant and accordingly prayed fordismissal of the suit.7.The learned Trial Judge on the basis of the pleadings framedthe following issues for consideration :-1. Did the deaths occur due to failure onthe part of the defendants 1 to 4 in properlymaintaining the electric wire ?2. Are the defendants 1 to 4 liable tocompensate the plaintiffs ?3. Are the plaintiffs entitled to getcompensation of Rs.4 lakhs from the defendants ?4. To what other relief the plaintiffs areentitled to ?"8.Before the trial Court, PWs-1 and 2 were examined and Exs.A-1to A-5 were marked. Though DW-1 was examined on the side of thedefendants, no documents were marked.9.The learned Trial Judge on the basis of the oral as well asdocumentary evidence adduced on the side of the parties, arrived at acategorical finding that the incident was only on account of thenegligence of the defendants. Accordingly, the issue regardingnegligence was answered against the defendants.10.The trial Court also found that the deceased Kuppammal wasemployed as sweeper in the local Government hospital. The trial Courton the basis of evidence of PW-1 and in the light of Ex.A-5, fixed https://hcservices.ecourts.gov.in/hcservices/ the age of the deceased at 30 and concluded that the deceased wasearning a sum of Rs.3000/- per month. Accordingly, decree was grantedfor a sum of Rs.2 lakhs.11.It is the said Judgment and Decree dated 19.03.1999 which isimpugned in the first appeal at the instance of the unsuccessfuldefendants.12.The learned counsel for the defendants submitted that theincident was not on account of the negligence of the defendants as itwas an act of god. According to the learned counsel, the quantum wasalso excessive and without basis and as such, the same is liable tobe set aside.13.The learned counsel for the plaintiffs contended that theevidence adduced on the side of the plaintiffs clearly shows that thedefendants were negligent and careless and the finding recorded bythe learned Trial Judge was on the basis of materials. Quantum wasassessed on the basis of the monthly income earned by the deceasedand also on the basis of contribution to the family. The learnedcounsel also contended that the defendants are not entitled tochallenge the issue regarding negligence as they have alreadysatisfied the Judgment and Decree passed in the connected suit filedat the instance of the legal heirs of the deceased Govindammal whoalso died along with Kuppammal on 15.09.1988.14.The following points arise for consideration in the presentappeal :-(a)Whether the incident was due to thenegligence of the defendants so as to give acause of action to the plaintiffs to claimdamages from the defendants ?(b)Whether the plaintiffs are entitled toclaim damages and if so, the quantum ?15.The unfortunate incident on 15.09.1988 which took the livesof Govindammal and Kuppammal remain unchallenged. In fact, the deathof Kuppammal was clearly admitted in the written statement filed bythe defendants.16.The first plaintiff was examined as PW-1 and in her evidence,she has deposed about the incident in question as well as the age andmonthly income of the deceased and her contribution to the family.PW-2 was working as Electrician and in his evidence, he deposed thatthere was rain and wind on the fateful day and he was a witness tothe incident. PW-2 has clearly stated that the defendants were highlynegligent. Electric wire was hanging about 10 days prior to theincident and the matter was informed to the electricity department.However, there was no action taken by the department to rectify thedefects. The electricity cable with insulation was broken and the https://hcservices.ecourts.gov.in/hcservices/ department was also tipped off about the fault. Still, there was noaction at their instance. Though the defendants have examined D.W.1,who was working as an Engineer in the electricity department tojustify their contention that they were not responsible, his evidencewas found to be not sufficient to justify the contention that theywere not negligent. The evidence of PW-2 was found to be cogent andconvincing and the trial Court believed the said evidence andultimately arrived at a factual finding that the incident was not onaccount of act of God.17.The maintenance of the line vests only with the electricitydepartment. The incident happened on 15.09.1988. The incident was inSeptember and they could have anticipated rain accompanied by wind.Therefore, the defendants should have been careful enough to maintainthe electric line and to set right the defects. According to PW-2,intimation was given to the defendants two days prior to the incidentabout the poor condition of the electricity line. There was nothingon record to show that the defendants attended to such repairs.Electricity department was expected to maintain the lines properly,especially during the rainy season. When they have failed in theirduty to maintain the line properly, they cannot shriek theirresponsibility by labeling the incident as act of God, over whichthey have no control. Evidence adduced by the plaintiffs clearlyshows that the defendants were at fault. Therefore, I am of the viewthat the incident was only on account of the negligence of thedefendants. Accordingly, point No.1 is answered against thedefendants.18.The deceased Kuppammal was employed as a sweeper in the localGovernment Hospital. The trial Court on the basis of the evidence ofPW-1 and in the light of Ex.A-5, post-mortem certificate, fixed theage at 35. Though no report was produced to show that her salary wasRs.3,000/- per month, the trial Court was of the opinion that shewould have received a sum of Rs.3,000/- as salary. Accordingly, trialCourt fixed the compensation amount at Rs.2 lakhs.19.The fact that the deceased Kuppammal was employed in thelocal Government Hospital as sweeper was not denied. The defendantshaving not denied the employment of the deceased cannot allege thatthe compensation claimed was excessive. Age of the deceased was alsonot in dispute. Doctor who conducted postmortem has recorded the ageas 30 years. However, the trial Court on the basis of evidence of PW-1 fixed the age at 35 years. 20.In a matter like this, in the absence of a clear guideline toarrive at the quantum, it would be permissible to look at the sisterenactments like the Motor Vehicles Act. As per Section 167 of theMotor Vehicles Act, in case the deceased was less than 35 years,maximum multiplier would be 17. Even if the minimum salary was taken,it would be Rs.3,000/- per month @ Rs.100 per day. Out of the said https://hcservices.ecourts.gov.in/hcservices/ amount, 1/3 has to be deducted towards the personal expenses.Therefore, the remaining amount would be Rs.2,000/-. Even if amultiplier of 12 is taken, the total amount would be a sum ofRs.2,88,000. However, the learned Trial Judge has granted only a sumof Rs.2 lakhs. Therefore, the compensation arrived at by the learnedTrial Judge was perfectly correct and it does not call forinterference. 21.Therefore, on a careful consideration of the entirematerials, I am of the view that the Judgment and Decree of thelearned Trial Judge was based on evidence and it does not call forinterference.22.The second point is answered accordingly. Accordingly, theJudgment and Decree dated 19.03.1999 is confirmed and the firstappeal is dismissed. No costs.23.The appellants are directed to deposit the entire decreeamount with interest less the amount deposited already, within eightweeks, from the date of receipt of a copy of the judgment. Therespondents are permitted to withdraw the amount on such deposit asper the decree of the trial Court.Sd/Asst.Registrar/true copy/Sub Asst.Registrar tarToThe Subordinate Judge, Vellore.Copy to: The Section Officer,VR Section, High Court,Madras.+1cc to Mr.N.Muthuswami, Advocate Sr 40650RSY(CO)km/14.10.A.S. No.529/1999