Karnataka High Court
Bengaluru Electricity Supply Company ... vs Sri Thirumalappa on 20 July, 2022
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR
R.F.A. NO.1112 OF 2017 (PAR)
BETWEEN:
1. BENGALURU ELECTRICITY SUPPLY COMPANY LTD.,
K.R.CIRCLE,
BENGALURU - 560 001.
REPRESENTED BY
GENERAL MANAGER (ADMIN AND HRD),
EARLIER KNOWN AS
KARNATAKA ELECTRICITY BOARD,
CAUVERY BHAVAN, K.G.ROAD,
BENGALURU - 560 009.
2. THE ASSISTANT EXECUTIVE ENGINEER (ELE).,
BENGALURU ELECTRICITY SUPPLY COMPANY LTD.,
EARLIER KPTCL, SUB-DIVISION,
OMBR LAYOUT, BANASWADI DIVISION,
BENGALURU - 560 043.
...APPELLANTS
(BY SRI.H.V.DEVARAJU, ADVOCATE)
AND:
1. SRI. THIRUMALAPPA,
S/O LATE CHIKKATHIMMARAYAPPA,
HINDU, AGED ABOUT 53 YEARS,
2. SMT. HEMALATHA,
W/O SRI.THIRUMALAPPA,
HINDU, AGED ABOUT 49 YEARS,
3. SRI. JAGADEESH,
S/O SRI.THIRUMALAPPA,
HINDU, AGED ABOUT 27 YEARS,
2
4. SRI. NATARAJ,
S/O SRI.THIRUMALAPPA,
HINDU, AGED ABOUT 25 YEARS,
THE RESPONDENTS 1 TO 4 ARE
RESIDING AT ANIGHATTA, BIDALURU POST,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT - 562 110.
5. SRI. MANJUNATH,
ELECTRICAL CONTRACTOR,
AGED ABOUT 45 YEARS,
S/O ANKAPPA REDDY,
C/O ASSISTANT EXECUTIVE ENGINEER (ELE),
KPTCL SUB-DIVISION,
OM-BR LAYOUT, BANASWADI DIVISION,
BENGALURU - 560 043.
...RESPONDENTS
(BY SRI.T.C.SATHISH KUMAR, ADVOCATE FOR R1 TO R4;
NOTICE TO R5 IS HELD SUFFICIENT VIDE ORDER
DATED 17.11.2021)
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 14.02.2017
PASSED IN OS.NO.2972/2011 ON THE FILE OF THE XI ADDL.
CITY CIVIL JUDGE, BENGLURU CITY, DECREEING THE SUIT FOR
RECOVERY OF MONEY AND DAMAGES.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the defendants in O.S.No.2972/2011 is directed against the impugned judgment and decree dated 14.02.2017 passed by XI Addl.City Civil and Sessions Judge, Bangalore, whereby the said suit filed by 3 the respondents - plaintiffs against the appellants -
BESCOM for payment of compensation in their favour from the appellants towards the death of one Thyagaraj due to electrocution and other reliefs was decreed by the trial court in their favour.
2. Heard learned counsel for the appellants and learned counsel for the respondents and perused the material on record.
3. The material on record discloses that the plaintiffs are the parents and brothers of the deceased Thyagaraj, who was an electrician expired due to electrocution on 29.12.2005 while doing work of shifting electric pole at Chikkabanasawadi near OMBR layout main road. It is contended that while plaintiffs 1 and 2 are the parents of deceased Thyagaraj, plaintiffs 3 and 4 were his minor brothers and all of them were dependent upon the said Thyagaraj, who was the sole bread winner / earner of the family. It was contended that the untimely death of the said Thyagaraj was on account of the negligence on the part of the appellants, who were liable to pay 4 compensation together with interest in favour of the plaintiffs.
4. The defendants - BESCOM contested the suit by filing their written statement disputing and denying the plaint averments.
5. Based on the above pleadings, the trial court framed the following issues:-
"1. Whether the plaintiffs prove that on 29.12.2005 at about 5.00 p.m at Chikkabanaswadi near OMBR Layout main road, one Thyagaraj was working on the electric pole under the employment of defendant No.3 and he (Thyagaraj) was electrocuted due to the negligence of defendant No.1 and 2 and he sustained sever burn injuries and he died in the hospital?
2. Whether the plaintiffs prove that the said Thyagaraj died due to negligent act of defendants?
3. Whether the D.1 and D.2 prove that alleged incident took place due to own negligence of the said Thyagaraj?
4. Whether the plaintiffs prove that they put to irreparable injury and damages due to death of said Thyagraj?
5. Whether the civil court has no jurisdiction to determine any 5 compensation or award in any electrical accident?
6. Whether the plaintiffs are entitle for compensation/ damages of Rs.2,50,000/-along with interest @ 12% p.a from the date of incident i.e., 29.12.2005?
7. What order or decree?"
6. Plaintiff No.1 examined himself as PW-1 and one witness as PW-2 and Exs.P1 to P15 were marked, while the Assistant Executive Engineer of BESCOM was examined as DW-1 and Ex.D1 was marked.
7. After hearing the parties, the trial court decreed the suit directing the defendants to pay compensation in a sum of Rs.7,08,000/- together with interest at 9% p.a. in favour of the plaintiffs from the date of death of Thyagaraj on 29.12.2005. The trial court further directed that out of the aforesaid amount of Rs.7,08,000/-, a sum of Rs.1,00,000/- already paid by the defendants to the plaintiffs shall be deducted. Aggrieved by the impugned judgment and decree passed by the trial court, the 6 defendants - BESCOM are before this Court by way of the present appeal.
8. The following points arise for consideration in the present appeal:-
(i) Whether the trial court was justified in awarding compensation in a sum of Rs.7,08,000/- in favour of the plaintiffs?
(ii) Whether the trial court was justified in awarding interest at 9% p.a.?
Re-Point No.1:-
9. A perusal of the material on record including the impugned judgment and decree will indicate that the trial court answered all the issues in favour of the plaintiffs and against the defendants by holding as under:-
"10. Issue No.1 to 3 : These three issues are taken together for discussion to avoid repetition of facts and circumstances.
It is the case of the plaintiffs that, when deceased Tyagaraj, son of 1st and 2nd plaintiff and brother of 3rd and 4th plaintiffs was carrying on electrical work of shifting the pole under 3rd defendant, who in turn executing the work of defendant No.1 and 2 as an electrical contractor, the officials of defendant No.1 and 2 charged 11 7 K.V to the pole negligently and thereby deceased Tyagaraj got electrocuted and succumbed to injuries. Defendant No.1 and 2 asserted that Line was charged after taking clearance between 3.45 hrs to 4.45 hrs. Whereas deceased climbed the pole at about 5.15 p.m to bring back his cutting player without taking the permission from his employer or from defendant No.1 and 2 and thereby got electrocuted due to his own negligence. However, it is not in dispute that 3rd defendant was executing the work of defendant No.1 and 2 as an electrical contractor and deceased Tyagaraj was working under 3rd defendant and shifting the electrical pole at Chikkabanaswadi near OMBR layout Main Road when the incident took place. With these version of respective parties, now let me scan through oral and documentary evidence relied upon by them. 1st plaintiff, who is none other than father of deceased Tyagaraj, got examined himself as P.W.1 on behalf of himself and also on behalf of other plaintiffs . In his chief- examination, he has reiterated the entire plaint averments and further got marked as many as 15 documents Ex.P.1 to P.15. Ex.P.1 is the FIR registered by concerned OMBR Layout police against the officials of defendant No.1 and 2 herein and also 3rd defendant. Ex.P.2 is the statement of one Ramu, the complainant. In his statement, he has narrated the manner of occurrence and asserted that when deceased Tyagaraj was tightening the electrical wire, concerned line man charged the 11 K.V wire and thereby deceased died due to electrical shock. Ex.P.3 is the charge sheet filed by concerned police in this regard. Ex.P.4 is the spot mahazar, Ex.P.5 P.M. report of deceased Tyagaraj. According to the opinion of concerned doctor, deceased due to shock as a result of electrocution, Ex.P.6 is the inquest report, Ex.P.7 statement of deceased father P.W.1 herein before concerned police, Ex.P.8 certificate issued by Chinmaya Mission Hospital stating that deceased was brought dead to their hospital on 29.12.2005 at about 5.30 p.m. Accordingly, they have informed concerned Chikkabanaswadi police station in this regard. Ex.P.9 election I.D card of deceased 8 Tyagaraj , Ex.P.10 is the school certificate of deceased Tyagaraj, Ex.P.11 office copy of legal notice issued to defendants herein, Ex.P.12 to P.15 are the postal acknowledgments for having served the said notice. In the cross-examination of P.W.1, it is elicited that one Ramu was working with deceased Tyagaraj and in turn they were working with 3rd defendant since 3 years prior to the death of deceased Tyagaraj. It is also elicited that, P.W.1 came to know about the incident through Ramu at about 12.30 at mid night. Further in the cross- examination of P.W.1, it is categorically suggested that deceased was doing mason work and some mud work with 3rd defendant and he was not supposed to climb electrical pole. This is a new theory introduced by defendant No.1 and 2 while cross-examining P.W.1. At the time of filing their written statement, defendant No.1 and 2 asserted that deceased climbed the pole just to take back his cutting player, which he has forgotten and kept on the pole itself while tightening the electrical lines. Whereas in the cross-examination, it is suggested that he was doing some mason work under 3rd defendant and not carrying any electrical work. The Post Mortem report of deceased Tyagaraj establishes that deceased died due to electrocution. Further D.W.1, who got examined himself on behalf of defendant No.1 and 2 admits in his cross- examination that, deceased died due to electrocution. Complainant police have filed charge sheet, not only against 3rd defendant herein, but against officials of defendant No.1 and 2 stating that due to the negligence of defendants, who charged 11 K.V line, when deceased was tightening the lines, he suffered electrocution and thereby died due to electrocution. This charge sheet, which is as per Ex.P.3, is not at all challenged by defendant No.1 and 2 herein. Further it is also not in dispute that defendant No.1 and 2 have already paid Rs.1,00,000/- to the plaintiffs herein by way of compensation . D.W.1 admits in his cross- examination that in all cases, where death is caused by electrocution, their department will pay Rs.1,00,000/- to the family of the deceased. He also admits that criminal case has been filed 9 against BESCOM in C.C.No.24478/2006. D.W.1 categorically admitted that deceased Tyagaraj died due to electrocution. This version of D.W.1 and also oral and documentary evidence relied upon by plaintiffs , more particularly the post mortem report Ex.P.5 establishes that deceased died not only due to electrocution , but due to the negligence of defendant No.1 and 2. Plaintiffs also examined the very complainant Ramu, who was working with the deceased at the time as P.W.2. Even he has narrated the manner of occurrence before this court, absolutely no documents produced by defendants to show that concerned lines were charged only after assuring that all electrical work has been completed. The investigation report filed by concerned police as per Ex.P.3 establishes negligence on part of BESCOM authority. This final charge sheet has not at all been challenged by defendant No.1 and 2 herein. The version of defendants at the time of filing their written statement is contrary to oral testimony of P.W.1. D.W.1 is not disputing filing of criminal case against BESCOM authorities and also death of deceased Tyagaraj due to electrocution. D.W.1 only asserts that as per Ex.D.1, plaintiffs are entitled for only compensation of Rs.1,00,000/-. Any how, what is the just and reasonable compensation to be paid in such cases has to be assessed by court. Accordingly, there is no reason to disbelieve the oral and documentary evidence relied upon by the plaintiffs with regard to manner of occurrence. That apart, D.W.1 has deposed before this court only on the basis of records. Defendant No.1 and 2 neither examined concerned authorities, who were actually present at the spot at the time of occurrence nor his employees Prashanth Kumar, Assistant Engineer, BESCOM and another accused, who is line man of BESCOM. Above all, BESCOM authorities not at all challenged the final charge sheet filed by concerned officials. If there was no negligence on part of defendant No.1 and 2, there was no scope for them to pay Rs.1,00,000/- to the plaintiffs herein immediately after the death of deceased Tyagaraj. All these circumstances establishes that defendant No.1 and 2 have not at 10 all approached this court with clean hands nor placed any material before this court to establish that death of Tyagaraj was solely due to his own negligence and there is no negligence on part of BESCOM authority. Accordingly, I have answered Issue No.1 and 2 in affirmative and Issue No.3 in negative.
11. Issue No.4: Deceased Tyagaraj was eldest son of plaintiff No.1 and 2. It is not in dispute that he was working under 3rd defendant herein carrying electrical pole work and it is also not in dispute that 3rd defendant was a registered electrical contractor had taken the work of shifting of 11 KVA line under defendant No.1 and 2 at Chikkabanaswadi. Further the cross-examination of P.W.1, it is elicited that 1st plaintiff himself is a coolie by profession and earning Rs.200/- to 250/- per day. It is not in dispute that deceased Tyagaraj was bachelor. It is probable that he being the eldest son in the family of plaintiffs was taking care of plaintiffs out of his earnings. Plaintiffs categorically asserted that deceased was aged about 21 years and he was the sole earning member of family having good health and physique earning Rs.200/- per day and contribute his entire earnings to their family maintenance. This version of P.W.1 was not shaken even at his cross- examination. It is elicited in his cross-examination that, 3rd defendant was paying Rs.200/- to Rs.250/-per day to the deceased. Further it is elicited that he has no documents in this regard. As I have already stated in the written statement of defendant No.1 and 2, it is admitted that deceased was working under defendant No.3 herein. It is probable that 3rd defendant being electrical contactor, who used to employ deceased Tyagaraj and others to execute his electrical work, probably make payments by way of cash on daily basis. The non existence of records is probable under such circumstances. In an Indian family, the role of eldest son is very vital. It is probable that, the parents being aged and brothers being minors. Eldest son was spending his earnings to the welfare of the family. It is not the case of the defendants 11 that deceased was staying separately. Under such circumstances, due to the untimely death of deceased Tyagaraj, plaintiffs 1and 2 being aged parents, who lost their eldest son have not only put to great mental agony and said agony is continuous one as it is rightly stated that "Putrashokum Nirantharam". Such sons are assets to the parents in their old age and assets of minor brother and sisters, who properly takes the responsibility of father and thereby tried to shape the future of brothers and sisters. Due to the untimely death of deceased Tyagaraj, plaintiffs being aged parents and minor brothers not only put to mental agony, but also suffered monetarily. On a family consisting of5 members, which is probable that earnings of one person is not sufficient and in all possible manner parents tried to help their children by working themselves, without even thinking of their old age. Only for the reason that 1st plaintiff is also doing coolie work and earning Rs.200/- per day, defendants cannot come to the conclusion that there is no irreparable injury caused to the plaintiffs herein. In all probabilities due to the untimely death of deceased Tyagaraj, plaintiffs suffered mentally and also monetarily. Accordingly, I have answered this issue in the affirmative.
12. Issue No.5: Defendant No.1 and 2except asserting that, this court has no jurisdiction to determine compensation in electrical accident not placed any material before this court. As per Fatal Accident Act 1855, it is the duty of the courts to calculate just compensation to the accident victims. Accordingly, this court has got every jurisdiction to determine the compensation payable to the plaintiffs herein on account of death of deceased Tyagaraj due to electrocution. Accordingly, I have answered this issue in the affirmative.
13. Issue No.6: While calculating the compensation in electrocution cases, it is necessary for the court to calculate loss of estate of deceased, loss of expectation of life, mental agony caused to the plaintiffs due to untimely death of deceased, 12 funeral expenses, transportation of dead body from the hospital after post mortem to the home town etc. Since it is the duty of the court to calculate just compensation and pay the same to the claimants of deceased, whether the claim made by the plaintiffs is correct or not is not the criteria. It is not in dispute that plaintiffs claimed Rs.5,00,000/- initially at the time of filing of pauper miscellaneous petition and later restricted their claim to Rs.2,50,000/- since they were unable to pay court fee for more than that amount. Further the issue regarding court fee is between plaintiffs and the State. It is nothing to do with the compensation that has to be fixed by this court, which is to be paid by the defendant No.1 and 2. As I have already stated while calculating the compensation in case of death by electrocution, court has to consider not only the pain and suffering undergone by the plaintiffs due to the death of deceased, but also loss of estate and the shock undergone by them, funeral expenses, transportation of dead body etc., The date of birth of deceased was 10.4.1985, as per his school certificate as per Ex.P.10. Deceased died on29.12.2005. Hence, he was aged about 21 years at the time of his death. Since there is no specific calculation available for calculating the compensation due to electrocution, it is necessary to follow the procedure adopted under Indian Motor Vehicle Act, while calculating compensation in accident cases. Under such circumstances, considering the age of deceased, the proper multiplier applicable as per the citations of Hon'ble Supreme Court in Sarala varma's case is 18 to calculate the compensation . Deceased died in the year 2005. It is probable that even an ordinary coolie gets Rs.200/- at that time. Hence, the income of deceased is assessed at Rs.6,000/- per month. Since he was bachelor, 50% is deducted out of his income towards personal expenses of deceased. It is not in dispute that plaintiffs have spent some amount towards transportation of dead body of deceased and also to perform funeral ceremony of deceased. Further due to the untimely death of deceased, plaintiff No.1 and 2 aged 13 parents lost their eldest son and put to great shock and mental agony. Plaintiffs3 and 4 being siblings of deceased Tyagaraj, lost his love and affection through out their life. Considering all these facts and circumstances, it is necessary to calculate the compensation payable to the plaintiffs herein due to the death of Tyagaraj by electrocution under the following heads:-
1. Loss of dependency: Rs.3,000/-X12X18= 6,48,000/-
2.Transportation of deadbody:20,000/-
3. Funeral expenses: 20,000/-
4. Loss of love and affection: 20,000/-
Total; Rs.7,08,000/-
Plaintiffs are accordingly, entitled for compensation of Rs.7,08,000/-. Plaintiffs no doubt restricted their claim of Rs.2,50,000/-. However, the duty casted on the court to calculate just compensation irrespective of claim made by the plaintiffs. That apart plaintiffs restricted their claim due to their inability to pay the court costs. Such inability shall not come in the way of calculating just compensation by this court. Accordingly, plaintiffs are entitled to compensation for a sum of Rs. 7,08,000/- together with interest at the rate of 9% p.a from the date of death of their son i.e., on 29.12.2005. Further the plaintiffs are also entitled to the cost from the defendant No.1 and 2. However, Rs.1,00,000/- paid by defendant No.1 and 2 shall be adjusted against the principal amount as calculated by the office. Further office is directed to calculate the court fee for a sum of Rs.6,48,000/- and defendants No.1 and 2 shall deposit the said court fee within two months from the date of decree. Hence, I answer Issue No.6 in affirmative.
14. Issue No.7:: In view of my findings on Issue No.1 to 6, I proceed to pass the following:-
ORDER Suit decreed with costs.14
Plaintiffs are entitled for compensation of Rs. 7,08,000/- together with interest at the rate of 9% p.a from the date of death of their son i.e., on 29.12.2005.
Further the plaintiffs are also entitled to the cost from the defendant No.1 and 2.
However, Rs.1,00,000/- paid by defendant No.1 and 2 shall be adjusted against the principal amount as calculated by the office.
Since court fee is paid only for Rs.2,50,000/- and it is appropriate to calculate court fee payable on Rs.6,48,000/- on plaint. Office is accordingly directed to calculate court fee on Rs.6,48,000/- and further defendants 1 and 2 are directed to deposit the said court fee after deducting the court fee of Rs.17,125/- paid by plaintiffs herein within two months from today.
Draw decree accordingly".
10. Upon re-appreciation and re-evaluation of the entire material on record, I am of the considered opinion that there is no illegality or infirmity in the impugned judgment and decree nor can the same be said to be capricious or perverse warranting interference by this Court in the present appeal.
Accordingly, Point No.1 is answered in favour of the respondents.
Re-Point No.2:-
1511. Insofar as the rate of interest is concerned, the trial court awarded interest at the rate of 9% p.a.; in my considered opinion, the said rate of interest deserves to be reduced to 6% payable by the appellants on the principal sum of Rs.7,08,000/- from the date of the incident i.e., 29.12.2005 till the date of payment / realisation.
Point No.2 is accordingly answered by reducing the interest awarded by the trial court from 9% p.a. to 6% p.a.
12. In the result, I pass the following:-
ORDER
(i) Appeal is allowed in-part.
(ii) The impugned judgment and decree dated 14.02.2017 passed in O.S.No.2972/2011 on the file of the XI Additional City Civil Judge, Bengaluru, insofar as it relates to awarding compensation of Rs.7,08,000/- in favour of the respondents is hereby confirmed.
(iii) However, the impugned judgment and decree passed by the trial court, insofar as it relates to payment of interest is modified from 9% p.a. to 6% p.a. payable 16 from the date of the incident i.e., 29.12.2005 till date of payment / realisation.
(iii) The directions issued by the trial Court to deduct a sum of Rs.1,00,000/- which is already paid by the appellants to the respondents is confirmed.
Sd/-
JUDGE JS/SRL