Kerala High Court
3Rd vs State Of Kerala on 7 August, 2013
Author: P.Bhavadasan
Bench: Thottathil B.Radhakrishnan, P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
WEDNESDAY, THE 7TH DAY OF AUGUST 2013/16TH SRAVANA, 1935
AS.No. 484 of 1996 ( )
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AGAINST THE DECREE & JUDGMENT IN OS 15/1993 of SUB COURT,QUILANDY.
.......
APPELLANT(S):3RD DEFENDANT
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MOIDU HAJI, ROSE MAHAL,
THIKKODI, KOZHIKODE.
BY ADV. SRI.M.AJAY
RESPONDENT(S)/PLAINTIFFS1,3,4,5,6 & DEFNDANTS 1,2 & 4
---------------------------------------------------------------------------------------
1. KUNHIKRISHNAN NAIR, S/O.PAIDAL NAIR,
AGED 69 YEARS/91, KOZHIPUNATHIL HOUSE,
THIKKODI, KOZHIKODE .
2. SOUDHAMANI, D/O.BALAN NAMBIAR,
AGED 34 YEARS/91, KOZHIPUNATHIL HOUSE,
THIKKODI, KOZHIKODE.
3. RESHMA, D/O.SOUDHAMINI, AGED 9 YEARS /91(MINOR),
KOZHIPUNATHIL HOUSE, THIKKODI, KOZHIKODE.
4. BABY, D/O. SOUDHAMINI, BORN 1991(MINOR)
KOZHIPUNATHIL HOUSE, THIKKODI, KOZHIKODE.
5. BABY, D/O.SOUDHAMINI, BORN 1991(MINOR)
KOZHIPUNATHIL HOUSE, THIKKODI, KOZHIKODE.
(RESPONDENTS 3-5 BEING MINORS ARE REPRESENTED HEREIN BY THEIR
MOTHER , THE SECOND RESPONDENT).
6. THE SECRETARY,KERALA STATE ELECTRICITY BOARD,
THIRUVANANDAPURAM.
7. THE CHAIRMAN, KERALA STATE ELECTRICITY BOARD,
THIRUVANANDAPURAM.
tss
A.S.NO.484/1996
8. DEVAKI AMMA, D/O.CHANDU NAIR, AGED 60 YEARS/91,
KOZHIPUNATHIL HOUSE, THIKKODI, KOZHIKODE.
R1,2,4 & 5 BY ADVS. SRI.B.KRISHNAN
SRI.R.PARTHASARATHY
R6 & 7 BY ADV. SRI.P.SANTHALINGAM (SR.)
R6 & 7 BY ADV. SRI.S.SHARAN,SC,K.S.E.BOARD
BY ADV. SRI.C.K.KARUNAKARAN,SC FOR KSEB
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 31/07/2013,
ALONG WITH AS. 229/2003, THE COURT ON 07/08/2013 DELIVERED
THE FOLLOWING:
tss
"CR"
Thottathil B.Radhakrishnan
&
P.Bhavadasan, JJ.
= = = = = = = = = = = = = = = = = = = = = = = =
A.S.Nos.484 of 1996-A & 229 of 2003-C
= = = = = = = = = = = = = = = = = = = = = = = =
Dated this the 7th day of August, 2013
Judgment
Thottathil B.Radhakrishnan, J.
1.The third defendant and the plaintiffs have filed
these appeals.
2.The Kerala State Electricity Board, its Chairman
and the third defendant were sued for damages on
account of the electrocution of Raveendran Nair,
the predecessor-in-interest of the plaintiffs and
the fourth defendant. The court below granted a
decree as against the third defendant. He is,
therefore, in appeal. The plaintiffs are in
appeal against the refusal of decree as against
the KSE Board.
AS484/96 & 229/03 -: 2 :-
3.The learned counsel for the third defendant
argued that applying the doctrine of strict
liability as enunciated in the precedents laid
down by the Hon'ble Supreme Court of India in
M.P.Electricity Board v. Shail Kumari [(2002) 2
SCC 162] and H.S.E.B. v. Ram Nath [(2004) 5 SCC
793], the liability was entirely on the KSE Board
to ensure that the lines are maintained with due
vertical clearances and horizontal clearances as
provided by the prescriptions contained in the
Indian Electricity Act, 1910, for short, the
"Act" and the Indian Electricity Rules, 1956, for
short, the "Rules". It was accordingly argued
that the material evidence on record, including
Ext.X1 report by the Electrical Inspector,
pointedly show that the KSE Board and the
officers under it had failed to discharge their
statutory obligations and hence, they are liable
to satisfy the decree. The learned counsel also
argued that the quantum of damages fixed is
excessive.
AS484/96 & 229/03 -: 3 :-
4.On behalf of the plaintiffs, apart from
supporting the decree as it stands, including as
regards the quantum of damages, their learned
counsel argued that notwithstanding the liability
of the third defendant, the court below ought to
have passed a joint and several decree as against
the KSE Board as well. It was argued that the
liability based on the doctrine of strict
liability, as noted above, does not get wiped out
and there was no ground to exonerate the KSE
Board and its officials from liability.
5.KSE Board's learned counsel argued that Ext.X1
report of the Electrical Inspector, who is a
statutory authority under the Act and the Rules,
clearly shows that the situation was on account
of the third defendant raising the height of his
compound wall and then providing grills on top of
it, the painting of which was being done by
Raveendran Nair at the point of time of the
incident that resulted in his electrocution. The
AS484/96 & 229/03 -: 4 :-
enquiry by the Electrical Inspector by making
local inspection and interacting with the
relevant persons in the locality revealed that
the accident was on account of the third
defendant not having taken precautionary
measures, including by intimating the KSE Board
to off the lines while such work was being
carried out. The learned counsel thus argued that
the court below was justified in relying on Rule
82 of the Rules which enjoined that the existing
compound wall could not have been raised without
prior intimation to the Board authorities as
enjoined by that rule. KSE Board, therefore,
pleaded that the appeal as against it be
dismissed.
6.D.W.1 is the Assistant Engineer of the KSE Board.
He gave evidence that the third defendant had not
given any intimation or obtained permission in
connection with the erection of the ornamental
fittings on top of his compound wall and that the
electricity line was in place through the
AS484/96 & 229/03 -: 5 :-
alignment for the previous more than thirty
years. His cross examination only tends to show
that he had to warn the people in third
defendant's home that the work should not be
carried out without further permission; yet no
further request was made even before proceeding
with the work. There is no contra evidence.
Neither the third defendant nor any one on his
behalf has tendered any evidence.
7.Rule 82(1) of the Rules provides, inter alia,
that if at any time subsequent to the erection of
an overhead line (whether covered with insulating
material or bare), any person proposes to erect a
new building or structure or to carry out any
other type of work, whether permanent or
temporary, or to make in or upon any building or
structure, any permanent or temporary addition or
alteration, he and the contractor whom he employs
to carry out such work shall, if such work would
result in contravention of any of the provisions
of rule 77, 79 or 80, give notice in writing of
AS484/96 & 229/03 -: 6 :-
his intention to the supplier and to the
Inspector and shall furnish therewith a scale
drawing showing the proposed building, proposed
alteration etc. The procedure to be followed on
receipt of such notice is enjoined by sub-rules 2
onwards of Rule 82. Rule 77 provides for
clearance above ground of the lowest conductor
and enjoins that no conductor of an overhead
line, including service lines, erected across a
street shall at any part thereof be at a height
of less than those prescribed therein. Rule 79
deals with clearances from buildings of low and
medium voltage lines and service lines. Rule 80
deals with clearances from buildings of high and
extra-high voltage lines. Therefore, if any
erection, addition or alteration to any existing
building or structure is likely to lead to
violation of the vertical or horizontal
clearances as prescribed by rule 77, 79 or 80,
any person carrying out such activity has the
statutory obligation to give the statutory notice
in terms of sub-rule 1 of Rule 82 of the Rules.
AS484/96 & 229/03 -: 7 :-
The same principle applies even to a new
structure. When the third defendant is shown to
have not issued any notice in writing in terms of
Rule 82, he cannot claim the protection of having
not caused the accident by merely passing of the
blame to the KSE Board on the doctrine of strict
liability. The testimony of D.W.1 that the line
was running for at least thirty years prior to
the accident is not controverted by any evidence
by or on behalf of the third defendant. As
rightly noted by the court below, the evidence of
D.W.1 that before erecting modification to the
existing compound wall, third defendant had not
preferred any notice as envisaged under Rule 82
of the Rules, is also not contradicted by any
evidence by him or on his behalf. Going by the
sub-rule 1 of Rule 82, what is required is to
give a notice in writing. There is no evidence of
tendering such notice. Obviously therefore, the
decision of the court below that the third
defendant is liable for the decree cannot but be
upheld.
AS484/96 & 229/03 -: 8 :-
8.Now, the question is whether the KSE Board, with
its statutory duties under the Act and the Rules
and because it deals with the dangerous substance
- electricity - can be held to be at fault
applying the doctrine of strict liability as
enjoined by the laid down in Shail Kumari (supra)
Ram Nath (supra). The doctrine of strict
liability to the extent dealt with in Shail
Kumari (supra) was in the backdrop of facts
where the Electricity Board tried to push off its
liability by pleading that the electrocution in
that case was due to the clandestine pilferage
committed by a stranger, unauthorisedly siphoning
the electric energy from the supply line. The
Apex Court noted that control and supervision of
the electricity line in terms of the provisions
of the Electricity (Supply) Act, 1948 and Rules
did not provide room for the licensee to extend
any such defence. In Ram Nath (supra), the issue
arose in the context of a child being
electrocuted while atop a building where it
AS484/96 & 229/03 -: 9 :-
lived. The plea of the Electricity Board was that
the construction was unauthorised and the
licensee could not therefore be mulcted with any
liability. The Apex Court held that if the
licensee had found that unauthorised
constructions have been put up close to their
wires, it is their duty to ensure that such
construction is got demolished by moving the
appropriate authorities and if necessary, by
moving a court of law. Otherwise, they would take
the consequences of their inaction. If there are
complaints that these wires are drooping and
almost touching houses, they have to ensure that
the required distance is kept between the houses
and the wires, even though the houses be
unauthorised. This is how the law was developed
through the aforesaid precedents. In that view of
the matter, if electricity overhead line was in
position for at least thirty years before the
third defendant put up his building, the
proximity between such line and the compound wall
is a matter which has to be presumed to have been
AS484/96 & 229/03 -: 10 :-
within the knowledge of the officer of the
Electricity Board having control over the supply
lines in that area. This is how the power and
duty of inspection and supervision provided for
by the Act and Rules have to be understood. Shail
Kumari was rendered quoting the Privy Council in
Quebec Rly., Light, Heat and Power Co. Ltd. v.
Vandry [1920 AC 662] that the company supplying
electricity is liable for the damage without
proof that they had been negligent and even the
defence that the cables were disrupted on account
of a violent wind and high-tension current found
its way through the low-tension cable into the
premises of the respondents was not held to be a
justifiable defence. It was thus concluded that
merely because illegal act could be attributed to
a stranger, that is not enough to absolve the
liability of the Board regarding the live wire
lying on the road. We may now note that in Ext.X1
report, the Electrical Inspector says that the 11
KV line along the Pallikkara-Purakkad panchayat
road where the accident was caused was not
AS484/96 & 229/03 -: 11 :-
keeping statutory clearance from the road level
itself. The top part of the compound wall owned
by the third defendant was keeping hardly one(1)
metre clearance from the live 11 KV line at the
time of accident as against the minimum statutory
clearance of 3.7 metres. This serious lapse was
the main cause of the accident. While the
Electrical Inspector says that the third
defendant would have taken action so as to shift
or reinstall the 11 KV line even at the time of
modification of the compound wall, the fact of
the matter remains that nothing prevented the
Board authorities to compel the third defendant
to do so under the teeth of statutory compulsions
even by proceeding with appropriate authorities
to pull down third defendant's structure if it
was built without the sanction of the Board
authorities and without proper notice in terms of
Rule 82 of the Rules noted above. In this view of
the matter, it cannot be held that the KSE Board
is exonerated from its liability which is
fastened on it by the doctrine of strict
AS484/96 & 229/03 -: 12 :-
liability. The plaintiffs are, therefore,
entitled to a decree as against defendants 1 and
2 as well.
9.On the basis of the evidence on record, we are
also satisfied that KSE Board and its officials
on the one hand and the third defendant on the
other are equally liable for the tort that has
led to this litigation. The tortious liability
arising thereby is enforceable by the plaintiffs
jointly and severally against the KSE Board and
the third defendant. As joint tort-feasors, they
are liable to contribute in equal proportion. The
wrongs committed by the third defendant, when
weighed against those attributed to KSE Board and
its officials would maintain the scales of
justice holding them equally liable. Therefore,
as between the KSE Board and the third defendant,
the damages payable are liable to be shared in
the equal proportion.
10.We have also examined the legal evidence on
AS484/96 & 229/03 -: 13 :-
record and the material findings on the question
of quantum of damages. We are satisfied that the
decree for Rs.1,79,000/- is not excessive or as
having been granted without due legal evidence on
record. Therefore, we find no ground to interfere
on that count.
In the result:
i.A.S.No.484 of 1996 is allowed in part
and A.S.No.229 of 2003 is allowed
vacating the impugned decree and
judgment.
ii.The plaintiffs are granted a decree for
recovery of damages of an amount of
Rs.1,79,000/- with interest at the rate
of 9% per annum from the date of suit
till realisation with costs of the suit
from defendants 1 and 3 jointly and
severally, and costs of A.S.No.229 of
2003 to be shared equally by defendants
AS484/96 & 229/03 -: 14 :-
1 and 3.
iii.Defendants 1 and 3 will be entitled to
contribution from each other to the
extent of one half of the amount covered
by the decree in favour of the
plaintiffs upon satisfaction by any
among them. That can also be enforced in
execution of this appellate decree.
iv.It is recorded that the third
defendant, who is the appellant in
A.S.No.484 of 1996, has filed
I.A.No.3576 of 2010 in C.M.P.No.4311 of
1996 pleading in the affidavit filed in
support of that petition, among other
things, that certain remittances have
been made in satisfaction of the
impugned decree pursuant to the
interlocutory orders issued by this
Court. It is ordered that such questions
can be considered in the course of
AS484/96 & 229/03 -: 15 :-
execution, discharge and satisfaction of
the decree granted hereby and shall be
without prejudice to the right of the
plaintiffs to execute this decree as
against defendants 1 and 3 jointly and
severally in terms of clause ii above
and such reconciliation of the
liabilities as between defendants 1 and
3 shall not stand in the way of the
enforcement of the decree in favour of
the plaintiffs in terms of clause ii
above.
Sd/-
Thottathil B. Radhakrishnan
Judge
Sd/-
P.Bhavadasan
Judge
Sha/
-true copy-
PS to Judge.
AS484/96 & 229/03 -: 16 :-
"No court fee shall be leviable or recovered in
relation to this appeal from the plaintiffs" vide
order dated 3.3.2017 in A.S.229/2003.
Sd/-
Registrar (Judicial)
AS484/96 & 229/03 -: 17 :-
Thottathil B.Radhakrishnan
&
P.Bhavadasan, JJ.
= = = = = = = = = = = = = = = = =
A.S.Nos.484 of 1996-A
&
229 of 2003-C
= = = = = = = = = = = = = = = = =
Judgment
7th August, 2013
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 12TH DAY OF FEBRUARY 2015/23RD MAGHA, 1936
Bail Appl..No. 436 of 2015
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CRIME NO. 3/2013 OF KUDIYANMALA POLICE STATION , KANNUR
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PETITIONER(S):
----------------------
1. ANUPRASAD, AGED 33 YEARS
S/O.BHASKARAN, VELLUVA PILAKKANDY PUTHIYAVEETIL
ERUVESSY AMSOM DESOM, TALIPARAMBA TALUK,
KANNUR DISTRICT.
2. BINEESH K.P, AGED 33 YEARS
S/O.KRISHNAN, KIZHAKKE PURAYIL, ERUVESSY AMDOM DESOM
CHUNDAKKUNNU.P.O., KANNUR DISTRICT.
BY ADVS.SRI.P.NARAYANAN
SRI.NICHOLAS JOSEPH
RESPONDENT(S):
-------------------------
STATE OF KERALA,
THROUGH STATION HOUSE OFFICER,
KUDIYANMALA POLICE STATION,
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.SREEJITH V.S.
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 12-02-2015,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
PJ
B.KEMAL PASHA, J.
============================
B.A. No.436 of 2015
=============================
Dated this the 12th day of February, 2015
O R D E R
Petition filed under Section 438 Cr.P.C.
2. Petitioners are A1 and A2 in Crime No.3 of 2013 of the Kudiyanmala Police Station, Kannur District, registered for the offences punishable under Sections 452 and 427 read with Section 34 of the Indian Penal Code and Sections 3 and 5 of the Explosive Substances Act.
3. The allegation against the petitioners is that on 03.01.2013 at 00.10 a.m., they trespassed into the house of the defacto complainant and hurled bombs, thereby causing explosion and destruction of the doors and windows of the house, thereby causing a wrongful loss of 50,000/- to the defacto complainant.
4. Heard learned counsel for the petitioners and the B.A. No.436 of 2015 2 learned Public Prosecutor.
5. The contents of the CD prima facie reveal the complicity of the petitioners. The allegations against the petitioners are very grave and serious. The investigation of this case is not over. Considering the seriousness of the allegations against the petitioners and the present stage of the investigation, I am satisfied that this is not a fit case wherein anticipatory bail can be granted to the petitioners.
6. The learned counsel for the petitioners seeks for an opportunity to the petitioners to surrender before the investigating officer and to co-operate with the investigation.
In the result, this bail application is dismissed. At the same time, if so advised, the petitioners may surrender before the investigating officer within ten days from today and in such case, the investigating officer can interrogate the petitioners, effect recovery if any, and conduct the investigation and produce the petitioners without delay before the court below, where the petitioners can move for bail. In such case, the learned Magistrate shall pass appropriate orders, preferably B.A. No.436 of 2015 3 on the same day itself, provided advance notice on such application has been given to the Assistant Public Prosecutor also.
Sd/-
B.KEMAL PASHA JUDGE DSV/12/2/15 //True copy// P.A.To Judge