Karnataka High Court
Laxmibai W/O.Sidaram Gosali vs The Chief Engineer, Kptcl Navanagar, ... on 12 October, 2023
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NC: 2023:KHC-D:12539
RSA No. 5755 of 2010
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 12TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 5755 OF 2010
BETWEEN:
1. LAXMIBAI W/O. SIDARAM GOSALI,
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O.CHICKNAND, TQ: GOKAK,
DIST: BELGAUM-591307.
2. LAXMAWWA W/O. RAYAPPA GOSALI,
AGE: 60 YEARS, OCC:AGRIL,
R/O. CHICKNAND, TQ: GOKAK,
DIST: BELGAUM-591307.
3. RAYAPPA S/O. KRISHNAPPA GOSALI,
AGE: 70 YEARS, OCC: COOLIE,
R/O. CHICKNAND, TQ: GOKAK,
DIST: BELGAUM-591307.
Digitally ...APPELLANTS
signed by
BHARATHI S (BY SRI. VISHWANATH ALLANNAVAR, ADVOCATE)
Location:
HIGH AND:
COURT OF
KARNATAKA
1. THE CHIEF ENGINEER,
KPTCL NAVANAGAR, HUBLI,
DIST: DHARWAD-580001.
2. THE EXECUTIVE ENGINEER,
KPTCL GHATAPRABHA,
TQ: GOKAK, DIST: BELGAUM-591307.
3. THE ASST. EXECUTIVE ENGINEER,
O & M SUB DIVISION, KPTCL, GHATAPRABHA,
TQ: GOKAK, DIST: BELGAUM-591307.
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NC: 2023:KHC-D:12539
RSA No. 5755 of 2010
4. THE ASST. ENGINEER,
KPTCL, APMC ROAD, GOKAK,
DIST: BELGAUM-591307.
5. THE SECTION OFFICER,
KPTCL, APMC ROAD, GOKAK,
DIST: BELGAUM-591307.
...RESPONDENTS
(BY SRI. B. S. KAMATE, ADVOCATE)
THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DATED:05-02-2010, PASSED IN
R.A.NO.85/2007, ON THE FILE OF THE VI-ADDL. DISTRICT
JUDGE, BELGAUM, ALLOWING THE APPEAL AGAINST THE
JUDGEMENT AND DECREE DATED:27-06-2007, PASSED IN
O.S.NO.188/2005, ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN) GOKAK, PARTLY DECREEING THE SUIT FILED FOR
DAMAGE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC') by the plaintiffs challenging the judgment and decree dated 05.02.2010 passed in R.A. No.85/2007 by the 6th Addl. District Judge, Belagavi (hereinafter referred to as 'first appellate Court') and confirming the judgment and decree dated 27.06.2007 passed in O.S.No.188/2005 -3- NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 by the Prl. Civil Judge (Sr.Dn.), Gokak (hereinafter referred to as 'trial Court').
2. The parties will be referred to as per their ranking before the trial Court for the sake of convenience.
3. The plaintiff No.1 is the wife and plaintiffs No.2 and 3 are the parents of the deceased Sidram Gosali. It is the case of the plaintiffs that when the deceased was doing coolie work on 17.07.2002 at about 6.00 a.m., when he went to the land belonging to his father/plaintiff No.3, to start the electric pumpset for lifting the water due to blockage of air since the pumpset did not start, the deceased was attempting to remove the air. At that time, there was high voltage of electricity and due to the flow of the electricity in the motor, which gave a shock to the deceased and he was thrown into the well. He succumbed to the injuries sustained due to a stone hitting his head in the well. That the defendants have failed to maintain proper flow of electricity and there was no safety measures to control the high voltage. That the deceased -4- NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 was doing coolie work and was an earning member of the family and plaintiff No.1 has lost her husband and plaintiffs No.2 and 3 have lost their son and hence, the suit filed for claiming damages of Rs.2,00,000/- together with interest at 18% p.a.
4. The defendants entered appearance and filed written statement denying the case of the plaintiffs. It is the specific contention of the defendants in the written statement that there was no fault on behalf of the defendants and the negligence was solely on the deceased. It was admitted that there was flow of electricity to the motor and land belonging to plaintiff No.3. The allegation that the defendants were negligent in maintaining proper and accurate supply of power was denied. The other averments made in the plaint were denied. It is further specifically averred that the owner of the land is specifically responsible for the accident.
5. Consequent to the pleadings of the parties, the trial Court framed issues. The plaintiff No.2 was examined -5- NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 as PW-1. Exs.P-1 to P-14 were marked in evidence. The Assistant Executive Engineer of the defendants was examined as DW-1. However no documentary evidence was produced.
6. The trial Court by judgment and decree dated 27.06.2007, decreed the suit of the plaintiffs and held that the plaintiffs are entitled for the damages of `1,67,600/- and that the defendants No.1 to 5 are liable to pay the same with interest together from the date of suit till the date of realization. Being aggrieved, defendants preferred RA No.85/2007. Plaintiffs entered appearance in the said appeal and contested the same. The first appellate Court, by its judgment and decree dated 05.02.2010, allowed the appeal filed by the defendants and dismissed the suit of the plaintiffs. Being aggrieved, the present second appeal is filed.
7. This Court vide order dated 05.04.2014 admitted the above appeal and framed the following substantial question of law:
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NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 "Whether the first appellate Court has committed a serious error in up turning a well considered judgment passed in O.S.No.188/2005 by ignoring the material evidence placed on record and thus the judgment of the first appellate Court is perverse and illegal?"
8. Learned counsel for the plaintiffs Sri. Vishwanath Allannavar contended that the trial Court having noticed Ex.P-3 the inquest mahazar, and Ex.P-4 postmortem report, has recorded a finding that the defendants are negligent in causing the death of the deceased which is just and proper. He further submitted that admittedly the defendants did not produce the report which was available with the defendants and which is submitted by the officer of the defendants after the occurrence of the accident and an adverse inference is required to be drawn. He further submits that the first appellate Court on surmises has set aside the judgment of the trial Court which is liable to be interfered with. He further submits that this Court is entitled to mould the relief which is required to be done in the present case. -7-
NC: 2023:KHC-D:12539 RSA No. 5755 of 2010
9. Per contra, learned counsel Sri B.S. Kamate for respondents/defendants vehemently contended that the first appellate Court has adequately appreciated the oral and documentary evidenced on record and has rightly set aside the judgment and decree of the trial Court. He further submitted that the respondents are the supplying authority and it is required to be noticed that it is their responsibility to supply the electricity up to the pole and further up to the switch board and thereafter it is the responsibility of the consumer. He further, referring to the evidence of PW-1 submitted that they have not proved that the defendants were in any manner negligent in causing the occurrence of the accident and it is the deceased himself who was responsible for the same.
10. The submissions of both the learned counsel have been considered and the material available on record have been perused.
11. The trial Court consequent to the pleadings of the parties, framed the following issues: -8-
NC: 2023:KHC-D:12539 RSA No. 5755 of 2010
1. Whether plaintiffs prove that the incident of electrocution has taken place due to negligence of the fault of defendants in maintaining proper electricity supply and due to impact deceased Sidaram died?
2. Whether defendants prove that suit is bad for non-joinder of necessary party?
3. Whether defendants prove that the deceased husband of plaintiff-1 died due to his own fault?
4. Whether the plaintiffs are entitled for compensation if so, how much from whom?
5. What decree or order?
12. It is relevant to note that the trial Court noticing Ex.P-3, the inquest mahazar and Ex.P-4 postmortem report has recorded a finding that the deceased died due to the shock that he received as he was thrown into the well and he sustained injuries and succumbed to the same. Further appreciating the oral evidence, the trial Court has recorded a finding that PW-1 having deposed that the deceased was removing the blockage of air from the pump set and at that time, there was no electricity supply and suddenly there has been a supply of high voltage electricity which caused the death of the deceased. It is further noticed that PW-1 was -9- NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 present in the land at the time of incident had occurred. It is been specifically noticed that DW-1 who is the Assistant Executive Engineer of the defendants has deposed that he was not the official working at the time of the incident. He has admitted in the cross-examination that his predecessors visited the spot after the incident and submitted a report. He further admitted that the said report has not been produced before the Court. Hence, the trial Court held that the deceased died due to electrocution.
13. It is relevant to note that the defendants having taken a contention that the suit is bad for non-joinder of necessary parties, since the place at which the incident occurred is not the property of the plaintiff, the plaintiffs No.2 and 3 were impleaded subsequent to filing of the suit. It is not in dispute that the land in which the incident occurred, belongs to the father of the deceased i.e., Rayappa, who was impleaded as plaintiff No.3. Hence, the
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NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 issue No.2 with regard to non joinder of necessary parties was held in the negative.
14. The trial Court taking the income of the deceased at Rs.800/- p.m., the age as 30 years, applied multiplier of 16 and assessed the loss of dependency at `1,53,600/-. Thereafter assessing the compensation towards loss of consortium, loss of estate as well as transportation of dead body and funeral expenses, awarded a total sum of `1,67,600/- which is required to be paid by the defendants with interest at the rate of 6% p.a.
15. The first appellate Court considering the appeal filed by the defendants has framed the following points for consideration:
(1) Whether plaintiffs prove that the incident of electrocution has taken due to negligence of the fault of defendants in maintaining proper electricity supply and due to impact deceased Sidram died?
(2) Whether defendants prove that suit is bad for non-
joinder of necessary party?
(3) Whether defendants prove that the deceased husband of plaintiff died due to his own fault?
(4) Whether the plaintiff is entitled for compensation, If so, how much from whom?
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NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 (5) What decree or order?
16. The first appellate Court recorded a finding that if there was excess load in that lane, the fuse fixed to the electric board connected to the motor would have gone off and further recorded a finding that there was nothing on record that the deceased has taken sufficient care by putting off electric motor pump set before he removed the air from the motor. That the liability of the defendants is up to wiring the pole and if there is any defect in the installation of the pump set, the defendants would not be held liable for the same. The first appellate Court has further recorded that the father of the deceased having not been made a party, the suit of the plaintiffs is not maintainable.
17. It is relevant to note that the finding of the first appellate Court that the suit of the plaintiffs is not maintainable in the absence of Rayappa Gasali being made a party is ex facie untenable and liable to be rejected in view of the fact that the said Rayappa Gosali, who is the
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NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 father of the deceased has been impleaded as plaintiff No.3 in the suit.
18. With regard to the finding recorded by the first appellate Court that the defendants are liable in case of electrocution up to the wiring up to the pole and electricity as drawn from the pole by the individual customer through the contractor are proved by the defendants is erroneous inasmuch as there is no pleading raised by the defendants as to their role in the matter of supply and distribution of electricity and there is no documentary evidence on record placed by the defendants to demonstrate the exact role as well as the extent of their liability.
19. It is relevant to note that DW-1 having admitted that his predecessors had gone to the spot after the incident and having admitted that his predecessors have submitted a report regarding the same, the defendants having failed to produce the report, it is clear that an adverse inference is required to be drawn with regard to the same.
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NC: 2023:KHC-D:12539 RSA No. 5755 of 2010
20. As rightly noticed by the trial Court, the factual matrix pertaining to the occurrence of the incident is clear and forthcoming from Ex.P-3 - inquest mahazar and Ex.P- 4 - postmortem report. The said materials as appreciated by the trial Court has not been adequately re-appreciated by the first appellate Court. On the contrary, the entire findings recorded by the first appellate Court is with regard to the role of the defendants which has not even been averred by the defendants. The relevant material on record i.e., FIR - Ex.P-2, inquest panchanama - Ex.P-3 and postmortem report - Ex.P-4 have not even noticed by the first appellate Court. The trial Court having considered the said aspect of the matter and having recorded a finding of fact that the death of the deceased was due to electrocution, the said finding has been erroneously set aside by the first appellate Court.
21. It is not in dispute that the deceased died due to electrocution. It is also not in dispute that the death caused due to electrocution was when the deceased was
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NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 removing the air from the electric pump which was installed in the land of his father and due to surge of electricity at that point of time, resulted in the body being thrown into the well and the deceased succumbed to the injuries in the said accident. The reasons for the surge of electricity which has been demonstrated and which has reached property of plaintiff No.3 are aspects within the domain and knowledge of the defendants and the defendants have not placed any material on record to demonstrate the details or manner leading to the said surge of electricity which has resulted in accident. Under the circumstances, there is absolutely no hesitation for this Court to affirm the findings recorded by the trial Court that the death of the deceased having occurred due to surge in the electricity, the defendants are liable to pay the compensation resulting in his death.
22. It is relevant to note that in the judgment of the Hon'ble Supreme Court in the case of M.P. Electricity
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NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 Board Vs. Shail Kumari and others1 relied upon by the learned counsel for the appellants, it has held as follows:
"8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e., the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.
12. In M.C. Mehta V. Union of India this Court has gone even beyond the rule of strict liability by holding that: (SCC p.421, para 31) Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on anyone on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liability to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands V. fletcher.
13. In the present case, the Board made an endeavour to rely on the exception to the rule of strict liability (Rylands V. Fletcher) being "an act of stranger". The said exception is not available to the Board as the act attributed to the third respondent should reasonably have been anticipated or at 1 (2002) 2 SCC 162
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NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 any rate its consequences should have been prevented by the appellant-Board."
(emphasis supplied)
23. Before assessing the quantum of compensation, it is relevant to note that the plaintiffs sought to file the suit as an indigent person and in that regard Misc.No.8/2003 was filed and pursuant to the order dated 13.07.2005 passed in Misc.No.8/2003, the plaintiffs were permitted to file the suit as indigent persons.
24. It is relevant to note that the death of the deceased has occurred on 17.07.2002 nearly more than 20 years ago and due to passage of time, money value having been increased substantially. The plaintiffs claimed a sum of `2,00,000/- in the plaint. While considering as to whether relief could be suitably moulded to grant adequate compensation, learned counsel for the respondents, would contend that the suit of the plaintiffs having been decreed wherein a sum of `1,67,600/- having been awarded and no appeal has been filed against the said judgment and decree passed by the trial Court and
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NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 regular appeal having been filed by the defendants with regard to the liability, it is now not open to seek for enhancement of the claim of damages.
25. Notwithstanding the fact that the plaintiffs have not challenged the award of compensation made by the trial Court, it is relevant to note that the defendants are an agency of the State and negligence having been found and the defendants having been held to be negligent in causing the death of the deceased, adequate compensation is required to be paid as a result of the same and to enable the same by virtue of Order VII Rule 7 of the CPC, the relief that is required to be granted can be adequately moulded.
26. It is further relevant to note that the plaintiffs having been permitted to sue as indigent person, aspect regarding the Court fee that is payable is covered under Order 33 Rule 10 of CPC which reads as follows:
"10. Costs where (indigent person) succeeds
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NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 Whether the plaintiff succeeds in the suit, the court shall calculate the amount of court fees which would have been paid by the plaintiff if he had not been permitted to sue as (an indigent person) such amount shall be recoverable by the (State Government) from any party ordered by the decree to pay the same, and shall be a first charge on the subject matter of the suit."
27. The claim made by the plaintiffs for `2,00,000/- is for the death of deceased Sidram Gosali. It is not that the suit claimed amount is an ascertained sum of money arising out of a contract or other transaction between the parties, which was sought to be recovered by the plaintiffs from the defendants. Hence, the relief claimed with regard to the amount of money that is payable to the plaintiffs for the death of the deceased is required to be moulded as also keeping in mind the fact that the suit has been filed by the plaintiffs and they were permitted to sue as indigent persons and having regard to Order XXXIII Rule 10 of the CPC, in the event the plaintiffs succeed in the suit, the Court fee which would have been paid by the plaintiffs, if they had not been permitted to sue as indigent persons, shall be recoverable by the State from the
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NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 defendants and the said Court fee shall be first charge on the subject matter of the suit. Hence, the Court fee payable is entitled to be deducted from the amount that may be awarded.
28. It is relevant to note that in similar cases2 this Court has awarded compensation relying upon the guidelines adopted while awarding compensation in cases where death has occurred arising out of motor vehicle accidents. No doubt, in the said cases, this Court exercised its jurisdiction under Article 226 of Constitution of India. However, with regard to the quantum of compensation is concerned, the same yardstick is required to be adopted in the present case.
29. In view of the aforementioned, it is just and proper that the adequate compensation is required to be assessed and awarded.
2 WP No.1383/2020 c/w matters, order dated 4.8.2022 - Rekha v. KPTCL WP No.35911/2016, order dated 16.12.2022 - Siddachari v. MD, CHESCOM
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NC: 2023:KHC-D:12539 RSA No. 5755 of 2010
30. With regard to quantum of compensation, it is relevant to note that in the present case, the death has occurred in the year 2002 and the notional income stipulated in the chart prepared by the Karnataka State Legal Services Authority for assessing the income of the deceased persons for year 2002, the amount stipulated is `3,250/- p.m. The age of the deceased was 30 years as on the date of accident as has been held by the trial Court. Hence, the multiplier is required to be taken as 17. The deceased was married having aged parents and hence, deduction is required to be taken as 1/3rd.
31. The Constitution Bench of the Hon'ble Supreme Court has held in the case of National Insurance Company Limited Vs. Pranay Sethi and others3 that the future prospects of 40% is required to be added to the income for the persons below the age of 40 years while assessing the loss of dependency. Hence, if the income of the deceased is assessed at `3,250/- and 40% of income 3 (2017) 16 SCC 680
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NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 is added as future prospects, loss of dependency is re- assessed as under:
`3,250+1300(40% of Rs.3,250/-)=4,550/- `4,550x12x17x2/3=6,18,800/-
32. As per the judgment of the Hon'ble Supreme Court in the case of Magma General Insurance Company Limited Vs Nanu Ram4, loss of consortium of plaintiff No.1 is reassessed at `40,000/- and compensation towards loss of estate and funeral expenses is assessed at `15,000 each. Hence, the total compensation is to be awarded in favour of the plaintiffs is reassessed at `6,88,800/- as against `1,67,600/- awarded by the trail Court.
33. The said compensation is liable to be paid with interest at 6% p.a. from the date of the suit till its payment.
4 (2018) SCC 130
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NC: 2023:KHC-D:12539 RSA No. 5755 of 2010
34. Out of the compensation awarded, 60% shall be paid to the plaintiff No.1 and 20% each shall be paid to plaintiffs No.2 and 3. 50% of the amount awarded to each of the plaintiffs shall be kept in Fixed Deposit for an initial period of 2 years. Accordingly, the substantial question of law is answered in the affirmative and following order is passed.
ORDER
(i) The above appeal is allowed;
(ii) The judgment and decree dated
05.02.2010 passed in R.A. No.85/2007
by the 6th Addl. District Judge, Belagavi, is set aside;
(iii) The judgment and decree dated 27.06.2007 passed in O.S.No.188/2005 by the Prl. Civil Judge (Sr.Dn.), Gokak, is modified by holding that the respondents/defendants shall liable to pay the plaintiffs a sum of `6,88,800/-
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NC: 2023:KHC-D:12539 RSA No. 5755 of 2010 together with interest at 6% p.a. from the date of suit till the date of payment with costs;
(iv) Decree to be drawn accordingly.
SD/-
JUDGE
NAA
List No.: 1 Sl No.: 47