Madras High Court
Nagapattinam District. vs . ... Appellants on 15 October, 2019
Author: P.Rajamanickam
Bench: P.Rajamanickam
S.A.No.1305 0f 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 27.09.2019
PRONOUNCED ON : 15.10.2019
CORAM:
THE HONOURABLE Mr.JUSTICE P.RAJAMANICKAM
S.A.No.1305 0f 2005
1. The Divisional Officer,
Bharat Sanchar Nigam Limited,
(Telephone Department),
Thiruvarur, Thiruvarur Taluk,
Nagapattinam District.
2.The Sub-Divisional Officer,
Bharat Sanchar Nigam Limited,
(Telephone Department),
Thiruvarur, Thiruvarur Taluk,
Nagapattinam District. Vs. ... Appellants
1. Veerasamy
2. Paripooranam
3.The Superintending Engineer,
Tamil Nadu Electricity Board,
Nagapattinam, Nagapattinam District.
4. The Executive Engineer,
Tamil Nadu Electricity Board,
Thiruvarur, Thiruvarur Taluk,
Nagapattinam District.
5.The Junior Engineer,
Tamil Nadu Electricity Board,
Thiruvarur Taluk,
Nagapattinam District. ... Respondents
PRAYER : Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree dated 08.12.2004 and made in A.S.No.59 of 2004
on the file of the District Court, Nagapattinam, Nagapattinam District, in
confirming the judgment and decree dated 07.07.2003 and made in
O.S.No.275 of 1999 on the file of the Additional Sub-Court,
Nagapattinam.
For Appellants : Mr. A.P. Srinivas
For Respondents :Mr.R.Murugabarathi for R1 & R2
R3 to R5 – set exparte
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S.A.No.1305 0f 2005
JUDGMENT
This second appeal has been filed by the defendants 4 and 5 against the judgment and decree passed by the District Judge, Nagapattinam in A.S.No.59 of 2004 dated 08.02.2004 confirming the judgment and decree passed by the Additional Sub-Judge, Nagapattinam, in O.S.No.275 of 1999 dated 07.07.2003.
2. The respondents 1 and 2 herein had filed a suit in O.S.No.275 of 1999 on the file of the Additional Sub- Judge, Nagapattinam, claiming compensation of Rs.1,50,000/- with interest for the death of their son Sakthivel due to electrocution. The learned Additional Sub-Judge, Nagapattinam by the judgment dated 07.07.2003 had partly decreed the suit declaring that the defendants 1 to 5 are liable to pay a sum of Rs.60,000/- with interest at the rate of 6% p.a., from the date of suit and in the said amount, the defendants 1 to 3 have to pay a sum of Rs.30,000/- and the defendants 4 and 5 have to pay Rs.30,000/- and also directed the defendants 1 to 5 to pay the costs. He also directed the plaintiffs to pay court fees to the Government as the suit was filed informa pauperis.
3. Aggrieved by the aforesaid judgment and decree, the defendants 4 and 5 had filed an appeal in A.S.No.59 of 2004 on the file http://www.judis.nic.in 2/17 S.A.No.1305 0f 2005 of the District Judge, Nagapattinam. The learned District Judge, Nagapattinam, by the judgment dated 08.12.2004 had dismissed the said appeal confirming the judgment and decree passed by the trial court. Feeling aggrieved, the defendants 4 and 5 have filed the present second appeal.
4. For the sake of convenience, the parties are referred to as described before the trial court.
5. The averments made in the plaint are in brief as follows:
The plaintiffs are the parents of one Sakthivel. The said Sakthivel was aged about 15 years and he was studying in VIII std., in Government School at Pulikarai. On 30.03.1995 at about 8.30 a.m., when the said Sakthivel was going to the backside of his house, electricity passed on the said Sakthivel through the stay wire of the electricity post and hence, he was thrown away and the said accident leads to cause death to the said Sakthivel. Since the defendants have not properly maintained electric line and telephone post, the aforesaid accident had occurred. Hence, the plaintiffs filed the suit claiming compensation of Rs.1,50,000/- with subsequent interest. http://www.judis.nic.in 3/17 S.A.No.1305 0f 2005
6. The averments made in the written statement filed by the second defendant and adopted by the defendants 1 and 3 are in brief as follows:
The allegation that on 30.03.1995 when the plaintiffs' son Sakthivel went to the backside of his house, he was electrocuted due to passing of electricity through the staywire attached to the electricity post and caused death is false. The aforesaid accident took place when the said Sakthivel holding the stay wire attached to the telephone post and shaked the same, the telephone wire contacted with the electricity line which was running above the telephone lines. Since telephone line was installed after the installation of electricity lines, the telephone department had put up a guard in the telephone line. But the said guard was not properly earthed and hence accident took place. If the telephone department had properly earthed their lines, this kind of accident would not have occurred. Further the guard which was put on the telephone line also not properly fitted. Therefore, the Electricity Department is in no way responsible for the aforesaid accident. Due to the negligence on the part of department of Telephone, the aforesaid accident occurred and therefore, the defendants 1 to 3 prayed to dismiss the suit against them.
7. After filing of the aforesaid written statement, by the http://www.judis.nic.in 4/17 S.A.No.1305 0f 2005 defendants 1 to 3, the plaintiffs had impleaded the defendants 4 and 5 (telephone department) as parties and amended the plaint as the said Sakthivel died when he touched the stay wire of telephone post.
8. The averments made in the written statement filed by the fourth defendant and adopted by the fifth defendant are in brief as follows:
The telephone department is in no way concerned with the death of the plaintiffs' son Sakthivel. The defendants 4 and 5 had been unnecessarily impleaded as parties. The allegation that the said Sakthivel had touched the telephone post and hence he was electrocuted is false. Only 50 volts (D.C) electricity will run through the telephone lines. It would not cause death. The amount of compensation claimed by the plaintiffs is excessive. Therefore, the defendants 4 and 5 prayed to dismiss the suit against them.
9. Based on the aforesaid pleadings, the learned Additional Sub- Judge, Nagapattinam had framed necessary issues and tried the suit. During trial, on the side of the plaintiffs, the first plaintiff examined himself as PW1 and they examined one more witness as PW2. They had http://www.judis.nic.in 5/17 S.A.No.1305 0f 2005 marked Exs.A1 to A3 as Exhibits on their side. On the side of the defendants, 1 to 3 one witness was examined as DW1. On the side of the defendants 4 and 5 one witness was examined as DW2. No exhibits were marked on the side of the defendants.
10. The learned Additional Sub-Judge, Nagapattinam, after considering the materials placed before him, found that only after installing electric lines, the telephone department had installed their lines under the electric lines and in such a case, the telephone department had to put a guard on their lines to prevent accident in the case of cutting and falling of the electricity line. He further found that in this case, though the telephone department had put up a guard in their line, they directly fitted the said guard with the telephone post without fixing ceramic insulator and that was the reason for passing electricity through the stay wire which was fitted with the telephone post. He further found that when the deceased boy touched the said stay wire, the electricity passed on him and caused death. He further found that the electricity department also not properly installed their overhead lines to ensure that they will not touch the telephone line in normal circumstances. Hence, he finally found that the electricity department as well as telephone department are jointly and severally liable for the aforesaid accident. He further, taking into consideration of the age of the http://www.judis.nic.in 6/17 S.A.No.1305 0f 2005 deceased quantified the compensation at Rs.60,000/- and directed the defendants 1 to 3 to pay Rs.30000/- and the defendants 4 and 5 to pay Rs.30000/- with interest at the rate of 6% per annum from the date of filing of the suit and also directed the defendants to pay the costs.
11. Aggrieved by the same, the defendants 4 and 5 filed an appeal in A.S.No.59 of 2004 on the file of the District Judge, Nagapattinam.
12. The learned District Judge, Nagappatinam, had dismissed the said appeal with costs confirming the judgment and decree passed by the trial court. Feeling aggrieved, the defendants 4 and 5 have filed the present second appeal.
13. This court at the time of admitting the second appeal has formulated the following substantial questions of law :-
“i) Having regard to the facts and circumstances of the case, whether the courts below are right in law in fixing 50% of the liability, on the appellants herein, wherein the respondents 3 to 5 failed to fulfil the statutory duty in maintaining the electric lines properly?
ii) Have not the courts committed grave illegality and procedural irregularity under the Indian Evidence Act, by giving http://www.judis.nic.in 7/17 S.A.No.1305 0f 2005 the findings, relying upon the photograph which was not even marked as an exhibit in the evidence?
iii) Whether the reliance by the courts below on a photograph which is not marked as an exhibit is permitted under CPC and come within the tenor of Rule 79 of Civil Rules of Practice and circular orders under Volume I?
iv) Whether the courts below are right in law in deciding the case without framing necessary issues with regard to the voluntary act of the deceased Sakthivel?
v) Are not the courts below wrong in applying tort and misfeasance on the appellants without deciding the contributory negligence on the part of the deceased Sakthivel which has resulted in miscarriage of justice?
vi) It is not the judgment and decree of the first appellate court is vitiated, since the appellate court has failed to decide the case independently afresh as required under Order 41 Rule 31 of CPC?
vii) Had not the lower appellate court committed grave illegality in dismissing the appeal especially when the trial court has not considered the entire material available on record proceeding on assumptions and presumptions which is contrary to the Indian Telegraph Act?”
14. Heard Mr.A.P.Srinivas, learned standing counsel for the http://www.judis.nic.in 8/17 S.A.No.1305 0f 2005 appellants and Mr.R.Murugabarathi, the learned counsel for the respondents 1 and 2.
15. Substantial questions of law 1 to 7:-
The learned standing counsel for the appellants/defendants 4 and 5 has submitted that the courts below failed to consider that there is no evidence that there was negligence on the part of the telephone department. He further submitted that the courts below failed to consider that it is the duty of the defendants 1 to 3 to maintain the electric lines with all safety measures. As the defendants 1 to 3 have failed to perform their statutory duty, the courts below ought to have held that the defendants 1 to 3 alone are liable to pay compensation, if any. He further submitted that the courts below erred in law and on facts and on holding that the terminals of guard and stay wire have not been properly insulated by the defendants 4 and 5. He further submitted that the trial court relying upon the photograph which was not even marked as exhibit in the evidence found that the accident took place as seen in the said photograph. He further submitted that the courts below failed to see that if the electricity department had not periodically inspected their lines and ensured that the lines are not hanging closely to the telephone lines which is running below their lines. He further submitted that the courts below failed to see that the velacity of the electricity runs through the telephone line is only less than 50 volts that too direct current and in the http://www.judis.nic.in 9/17 S.A.No.1305 0f 2005 case of passing of higher voltage, automatically all the apparatus of the telephone department would get damaged, but there is no evidence of such damage and that itself would show that the accident did not occur as alleged by the electricity department. He further submitted that the trial court without considering the aforesaid facts and evidence in a proper perspective had mechanically decreed the suit fixing liability on the defendants 4 and 5 also and the appellate court also had mechanically confirmed the same and therefore he prayed to allow the second appeal and set aside the judgments and decrees passed by the courts below and dismiss the suit against the defendants 4 and 5.
16. Per contra, learned couonel for the respondents 1 and 2/ plaintiffs has submitted that the trial court taking into consideration of the oral and documentary evidence adduced by both sides came to the conclusion that the plaintiffs' son Saktivelu died due to electrocution and the said accident took place due to the neglience on the part of the electricity department as well as telephone department. He further submitted that since DW2 has admitted in his cross-examination that the accident occured as shown in the photograph, non-marking of the photograph is not fatal to the plaintiffs' case. He further submitted that DW2 has categorically admitted in his cross-examination that guard http://www.judis.nic.in 10/17 S.A.No.1305 0f 2005 which was put on their line fitted with telephone post directly without fixing ceramic insulator and that was the reason for passing of electricity through the said post and stay wire. He further submitted that the trial court taking into consideration of the aforesaid facts had rightly fixed the liability on both the departments and the same has been confirmed by the first appellate court and in the said factual concurrent findings, this court cannot interefere and therefore, he prayed to dismiss the second appeal.
17. Though notices served on the respondents 3 to 5/ defendants 1 to 3, and their names also printed in the cause-list, there was no representation for them and hence they were called absent and set exparte.
18. A perusal of the plaint shows that originally the suit was filed against the defendants 1 to 3 alone (Electricity Department). In paragraph No.2 of the said plaint, it was specifically pleaded that on 30.03.1995 at about 8.30 a.m., that when the plaintiffs' son Sakthivel was going to the back side of his house, electricity psssed through the stay wire attached to the electric post and caused accident resulting in death. For proper appreciation, the relevant portion of the plaint is extracted hereunder:-
http://www.judis.nic.in 11/17 S.A.No.1305 0f 2005 “,e;epiyapy; fle;j 30/03/95 k; njjp fhiy Rkhh; 8/30 kzpf;F kDjhuh;fs;-thjpfspd; kfd; ic& jpU/ rf;jpnty; jd; tPl;ow;F gpd;g[wk; bfhy;iyf;Fr; brd;w nghJ (kpd;; fk;gj;ij) ,Gj;J fl;lg;gl;oUe;j !;nl fk;gpapy; kpd;rhuk; gha;e;J. me;j kpd;rhuk; ic& rf;jpntypd; clypy; gha;e;J ic rf;jpnty; rpy epkpl';fSf;Fg; gpd;dh; J}f;fp vwpag;gl;lhh;“.
19. From the aforesaid averments, it is clear that the case of the plaintiffs was that their son Sakthivel was electrocuted due to the passing of electricity through the stay wire attached to the electricity post. But subsequently, they filed an application in I.A.156 of 1998 to implead the defendants 4 and 5 and the same was allowed and consequently, they were impleaded as defendants 4 and 5. At that time also, the plaintiffs have not amended the plaint stating that the electricity was passed through the telephone post. Subsequently, the plaintiffs filed another application in I.A.No.118 of 2001, seeking to amend the plaint stating that the electricity passed through the stay wire which was attached to the telephone post and accordingly the plaint was amended.
20. Though in the plaint, it has been stated that the said Sakthivel died due to the electrocution when the electricity passed through the stay wire attached to the electric post and the same was witnessed by one Natesan and Jaganathan, they did not lodge any complaint before the police. A perusal of Ex.A1 (xerox coy of FIR) would http://www.judis.nic.in 12/17 S.A.No.1305 0f 2005 show that the FIR was registered based on the complaint given by one P. Subramaniyam, Junior Engineer, TNEB, Tiruvarur. In the FIR, the defacto complainant has not stated that he has witnessed the occurrence. On the contrary, he has stated that he came to know that the deceased died when he was touching telephone post.
21. On behalf of the plaintiffs, PW2 Jaganathan was examined as eye witness. PW2 has deposed in chief- examination that he has witnessed the occurence that the deceased touched the telephone post and got electric shock and died but during the cross- examination, he has stated that only on hearing noise, he went to the place of occurence.
Further, if really he had seen the occurence, he would have lodged a complaint before the police. But he did not lodge any complaint before the police. Therefore, it is doubtful as to whether actually he has witnessed the occurence. Anyhow, there is no dispute that the deceased Sakthivel died only due to electrocution.
22. According to the defendants 1 to 3, since the telephone department had fitted their lines with the post without fixing any ceramic insulator, when the electric lines touched the telephone lines, the electricity would have passed through the telephone line and telephone post and when the deceased touched the stay wire which is attached to http://www.judis.nic.in 13/17 S.A.No.1305 0f 2005 the telephone post, he was electrocuted. But the defendants 4 and 5 denied the said allegations. According to the defendants 4 and 5, through telephone line, the electricity having voltage of 50 volts, that too, direct current alone could be passed and if any higher voltage of current passed through the said telephone wire, automatically all the apparatus with their lines would have been damaged but since no apparatus have been damaged, the contention of the Electricity Board is totally false.
23. Since the electricity board admitted the electrocution, the burden is upon them that the accident took place only due to the negligence on the part of the telephone department. In this case, as contended by the telephone department that there is no evidence that the apparatus connected with the telephone wires have been damaged. If really high voltage of electricity was passed through the telephone lines, it would have caused damage to the apparatus connected with the telephone lines. In this case, there is no evidence that any damage caused to the apparatus attached to the telephone line.
24.As already pointed out that the defacto complainant, who lodged a complaint before the police was the Junior Engineer of TNEB. As per FIR, he was not an eye-witness. So, it appears that only with a view to escape from the liability, he has lodged a complaint stating that http://www.judis.nic.in 14/17 S.A.No.1305 0f 2005 the deceased was electrocuted when he touched the telephone post. The aforesaid view is fortified by the original pleadings made in the plaint. The original pleadings would show that the deceased was electrocuted when he touched the electricity post only. Therefore, the accident took place only due to the negligence on the part of the defendants 1 to 3 (electricity board), but the trial court without taking into consideration of the aforesaid facts had held that the telephone department also responsible for the said accident and the same has been mechanically upheld by the first appellate court and the said findings are liable to be set aside. Accordingly, the substantial questions of law are answered in favour of the appellants.
25. In the result, the second appeal is allowed. The judgment and decree passed by the courts below are set aside and the judgment and decree passed by the trial court is modified to the effect that the defendants 1 to 3 alone are liable to pay compensation amount of Rs.60000/- with interest at the rate of 6% per annum from the date of filing of the suit i.e., from 05.07.1995, and that the defendants 1 to 3 are also liable to pay the costs to the plaintiffs. The suit in respect of the defendants 4 and 5 is dismissed. Since the suit was filed as informa pauperis, the defendants 1 to 3 are directed to pay the court fees to the Government. No costs.
http://www.judis.nic.in 15/17 S.A.No.1305 0f 2005 15.10.2019 Index :Yes/No Speaking/Non-speaking order gv P.RAJAMANICKAM.,J gv To
1. The District Court, Nagapattinam, Nagapattinam District.
2. The Additional Sub-Court, Nagapattinam.
3. The Section Officer, V.R. Section, High Court, Madras.
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