JAYAMMA v. EXECUTIVE ENGINEER, BESCOM

1. JAYAMMA W/O LATE H.V. BASAVARAJU, AGED ABOUT 39 YEARS.

2. H.B. KEERTHIKUMAR, S/O LATE H.V. BASAVARAJU, AGED ABOUT 21 YEARS. BOTH ARE R/O S. HOSSURU, (ALILEHALLI) VILLAGE, KASABA HOBLI, TIPTUR TQ, TUMKURU DIST 572 101 (BY SRI. ANUPAMA D.A., ADVOCATE FOR SRI. GIRISH B BALADARE, ADVOCATE) …APPELLANTS AND:

EXECUTIVE ENGINEER, BESCOM, TIPTUR, TUMKURU DIST 572 101

SUPERINTENDENT ENGINEE, BESCOM, O AND M CIRCLE, Digitally signed by MAMATHA R Location: High Court of Karnataka - 2 - NC: 2024:KHC:44633 RSA No. 149 of 2022 OLD KOTHIHOPU ROAD, TUMKUR 572 101 …RESPONDENTS

(BY SRI. DESHPANDE AMIT ANAND, ADVOCATE) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 25.10.2019 PASSED IN RA.No.10046/2017 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, TIPTUR, ALLOWING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 24.08.2016 PASSED IN OS No.33/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, TIPTUR. THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This second appeal filed by the appellants challenging the Judgment and Decree dated 25th October 2019 passed in R.A.No.10046/2017 by the V Addl. District and Sessions Judge, Tiptur and the Judgment and Decree dated 24th August 2016 passed in O.S.No.33/2014 by the learned Senior Civil Judge and JMFC, Tiptur. - 3 - NC: 2024:KHC:44633 RSA No. 149 of 2022

2. For convenience, parties are referred to as per their rankings before the Trial Court.

Appellants are plaintiffs, and respondents are the defendants.

Plaintiffs filed a suit against defendants for damages. It is the case of the plaintiffs that Plaintiff No.1 is the wife of late H.V.Basavaraju and Plaintiff No.2 is the minor son of late H.V.Basavaraju and Plaintiff No.1. On 16.05.2001, at noon 12.15 p.m., in S.Hosuru (Alilehalli) village, Kasaba Hobli, Tiptur taluk, the said H.V.Basavaraju and his brother Siddalingaiah, when they were working in their garden land Survey No.232, the said H.V.Basavaraju switched on the starter box of the borewell without knowing electric grounding at that place. He sustained injury due to electric shock and died on the spot. The brother of the deceased, viz., Siddalingaiah lodged a complaint before the Rural Police Station, Tiptur and Police registered the case in UDR No.7/2012. It is contended that H.V.Basavaraju died due to negligent act of the - 4 - NC: 2024:KHC:44633 RSA No. 149 of 2022 defendant-BESCOM authority. It is contended that the deceased H.V.Basavaraju was the only bread earner in the family of the plaintiffs and after the death of deceased, plaintiffs are put to starvation. Hence, the plaintiffs demanded a compensation from the defendants, but the defendants refused to pay the compensation. Hence, cause of action arose for the plaintiffs to file a suit for compensation by way of damages.

The defendants filed a written statement denying the plaint averments and it is contended that the incident occurred due to negligence of H.V.Basavaraju. Hence, prays to dismiss the suit.

The Trial Court, based on the above pleadings, framed the following issues:

1. Whether the plaintiffs proves that one H.V.Basavaraju s/o Venkata Bovi died on

16.05.2012 due to electrocution at S.Hosuru (Alilehalli) village, Kasaba hobli, Tiptur taluk, Tumkur district? - 5 - NC: 2024:KHC:44633 RSA No. 149 of 2022

2. Whether the plaintiffs proves that the said electrocution is due to the negligence on the part of the defendants?

3. Whether the plaintiffs are entitled compensation, if so, at what rate?

4. What order or decree?

The plaintiffs, to prove their case, examined Plaintiff No.1 as P.W.1 and marked seven documents as Ex.P1 to Ex.P7. The official of the defendant was examined as D.W.1 and marked one document as Ex.D1. After recording evidence, the Trial Court, on the assessment of oral and documentary evidence, answered Issue Nos.1 and 2 in the affirmative, Issue No.3 partly affirmative and Issue No.4 as per the final order. The suit of the plaintiff was partly decreed with cost for Rs.7,10,200/- with interest at the rate of 6% p.a., from the date of suit till the date of realization against the defendants. The defendants are liable to pay the said compensation amount to the plaintiffs. The plaintiffs being dissatisfied with the - 6 - NC: 2024:KHC:44633 RSA No. 149 of 2022 compensation awarded by the Trial Court, preferred appeal in R.A.No.10046/2017 on the file of the learned V Addl. District and Sessions Judge, Tiptur.

The Appellate Court framed the following points for consideration: i) Whether, the compensation of Rs.7,10,200/- awarded by the trial court for the death of deceased H.V Basvaraju is not adequate and in- sufficient? ii) Whether the appellants/plaintiffs are entitled for enhancement of compensation? iii) What order?

The Appellate Court, on reassessment of oral and documentary evidence, answered Point Nos.1 and 2 in the affirmative and Point No.3 as per final order. The appeal was allowed. It is ordered that the respondents are entitled for enhanced compensation of Rs.4,36,860/- with interest at the rate of 7% p.a., fro the date of suit till the date of realization. The plaintiffs were directed to pay the - 7 - NC: 2024:KHC:44633 RSA No. 149 of 2022 requisite court fee on the total compensation amount. The plaintiffs being dissatisfied with the compensation awarded by the Trial Court and appellate Court, have filed this regular second appeal for enhancement of compensation.

Heard the learned counsel for the plaintiffs and learned counsel for the defendants.

Learned counsel for the plaintiffs submitted that the compensation awarded by the Courts below is on lower side. Hence, she prays to allow the appeal.

Per contra, learned counsel for the defendant supports the impugned Judgments and prays to dismiss the appeal.

This Court admitted the appeal to consider the following substantial question of law: "Whether the compensation granted by both the Courts below is just and proper?"

Perused the records and considered the submissions of the learned counsel for the parties. - 8 - NC: 2024:KHC:44633 RSA No. 149 of 2022

It is not disputed that H.V.Basavaraju died due to electric shock and the brother of deceased H.V.Basavaraju has lodged a criminal case against the officials of the defendants and further, the plaintiffs produced records to show that the plaintiffs died due to electric shock. The Plaintiff No.1 was examined as P.W.1. She reiterated the plaint averments in the examination-in-chief and to substantiate their case, the plaintiffs have produced the documents. Ex.P1 is the geneological tree, Ex.P2 is the certified copy of the F.I.R which discloses that brother of Basavaraju had lodged a complaint against the officials of the defendants stating that there was a negligence on the part of the defendants. The Police has registered a criminal case in UDR No.7/2012 and the death was occurred due to negligence of the defendants and Ex.P3 is the certified copy of the complaint. Ex.P4 is the inquest mahazar copy. Ex.P5 is the copy of P.M report which discloses that the death was caused due to electric shock with the involvement of heart and brain. Ex.P6 is the charge sheet. Ex.P7 is the R.T.C extract. During cross- - 9 - NC: 2024:KHC:44633 RSA No. 149 of 2022 examination, nothing has been elicited from the mouth of this witness to disbelieve the examination-in-chief. In rebuttal, official of the defendant was examined as D.W.1, he reiterated the written statement averments in the examination-in-chief and produced the document marked as Ex.D1. Report was submitted by the Electrical Inspector. From the perusal of Ex.P2, Ex.P4 and Ex.P5, which discloses that the deceased H.V.Basavaraju died due to electric shock and the death was due to negligence on the part of the defendants. The Trial Court recorded the finding that the plaintiffs have proved that the death was occurred due to negligence on the part of the defendants and held that the plaintiffs were entitled for compensation and accordingly, decreed it. Accordingly, awarded compensation of Rs.7,10,200/- with interest at the rate of 6% p.a. The plaintiffs being dissatisfied with compensation awarded by the Trial Court, filed appeal in R.A.No.10046/2017. The Appellate Court allowed the appeal and enhanced the compensation of Rs.4,36,860/- - 10 - NC: 2024:KHC:44633 RSA No. 149 of 2022 in addition to the compensation awarded by the Trial Court.

As the accident is of the year 2012, though the plaintiffs have not produced any record to show the income of the deceased, the Trial Court has taken the notional income as per the chart prepared by the Karnataka State Legal Services Authority. The accident is of the year 2012. The notional income is taken at Rs.7,000/- p.m. In the post mortem report of the deceased, the age of the deceased is shown as 40 years. Whereas the Trial Court has taken the age of the deceased as 50 years. Thus, considering Ex.P5, this Court assess the age of the deceased as 40 years. As per the law laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 SCC 680, 40% future prospects has to be added to the notional income. Thus, it comes to Rs.7,000/- + 40% (Rs.2,800/-) = Rs.9,800/-. There are two plaintiffs, therefore, 1/3 is to be deducted - 11 - NC: 2024:KHC:44633 RSA No. 149 of 2022 out of Rs.9,800/-. Thus it comes to Rs.6,534/- (Rs.9,800/- - Rs.3,266/-). The deceased was aged about 40 years. Thus, the multiplier applicable to his age group is '15'. Thus, it comes to Rs.6,534/- x 15 x 12 = Rs.11,76,120/-. Plaintiffs are entitled for compensation of Rs.11,76,120/- under the heads of loss of dependency. In addition to it, the plaintiffs are entitled for a sum of Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate. Each plaintiff is entitled for Rs.40,000/- towards consortium (Rs.40,000/- x 2 = Rs.80,000/-). Thus, plaintiffs are entitled for compensation as under: Sl.No. Particulars Amount in (Rs.)

4. Loss of dependency 11,76,120/- Funeral expenses Loss of estate Loss of consortium 15,000/- 15,000/- 80,000/- Total: 12,86,120/- - 12 - NC: 2024:KHC:44633 RSA No. 149 of 2022 The compensation awarded by the Courts below are on lower side. The plaintiffs are entitled for enhanced compensation.