Kerala High Court
Appellatns/ vs K.K.Vava on 31 March, 2014
Bench: Thottathil B.Radhakrishnan, A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
MONDAY,THE 31ST DAY OF MARCH 2014/10TH CHAITHRA, 1936
RFA.No. 149 of 2013
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O.S.NO. 34/2010 OF THE SUB COURT, KATTAPPANA.
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APPELLATNS/PLAINTIFFS:
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1. K.K.VAVA,
PUTHANKARICHIRAYIL HOUSE, KUMARAKAM SOUTH.P.O.,
KOTTAYAM DISTRICT.
2. P.T.RAJAMMA,
W/O.K.K.VAVA, PUTHANKARICHIRAYIL HOUSE,
KUMARAKAM SOUTH.P.O., KOTTAYAM DISTRICT.
3. PRAVEEN.P.,
S/O.K.K.VAVA, PUTHANKARICHIRAYIL HOUSE,
KUMARAKAM SOUTH.P.O., KOTTAYAM DISTRICT.
BY ADV. SRI.P.S.KRISHNA PILLAI
RESPONDENTS/DEFENDANTS 1 TO 4:
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1. KERALA STATE ELECTRICITY BOARD,
VAIDYUTH BHAVAN, PATTOM.P.O.,THIRUVANANTHAPURAM,
REPRESENTED BY ITS SECRETARY.
2. THE ASSISTANT EXECUTIVE ENGINEER,
ELECTRICAL SECTION OFFICE, KAMBILIKANDAM,
KONNATHADY PANCHAYAT, IDUKKI DISTRICT.
3. WILSON GEORGE,
SHINE DECORATION, RESIDING AT UZAVANAL HOUSE,
VELLILAMKANDAM KARA, AYYAPPANCOVIL VILLAGE,
KALTHOTTY.P.O.,IDUKKI DISTRICT.
4. GOVERNMENT OF KERALA (STATE OF KERALA),
REPRESENTED BY THE DISTRICT COLLECTOR, IDUKKI.
R1 & R2 BY SRI.K.M.SATHYANATHA MENON,SC
R4 BY SR.GOVERNMENT PLEADER SRI.NOBLE MATHEW
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 03-03-2014, THE COURT ON 31-03-2014 DELIVERED THE FOLLOWING:
Msd.
"CR"
THOTTATHIL B.RADHAKRISHNAN
&
A.MUHAMED MUSTAQUE, JJ.
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R.F.A.No.149 of 2013
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Dated this the 31st day of March, 2014
JUDGMENT
Muhamed Mustaque, J.
1.This appeal is at the instance of the plaintiffs in O.S.No.34/2010 on the file of the Sub Court, Kattappana, who are the legal heirs of one Prasanth, who died in electrocution on 24.01.2006. The plaintiffs 1 and 2 are the parents and the third plaintiff is the brother of the deceased. The court below dismissed the suit on the ground that the suit is barred by limitation. Challenging the judgment and decree, this appeal is filed.
2.The deceased Prasanth was employed with the third defendant in the suit for doing decoration work on contract basis. On 24.01.2006, he, along with his co-workers were engaged by the third defendant, to remove the arch erected across Adimaly-Chinnar PWD Road at Kambilikandam. The arch was R.F.A.No.149 of 2013 2 erected there in connection with the reception of the Minister for Electricity, who had come there to inaugurate a Sub Station of the KSEB at Kambilikandam. While the said Prasanth along with his co-worker Dinesh were removing the arch, they came into contact with a 11 KV overhead electric line, which passed across the road and consequently, Prasanth was electrocuted. His co-worker also sustained burn injury due to the electric shock. In the suit, the plaintiffs claimed a compensation of Rs.4 lakhs from the defendants. In the suit, besides the KSEB, the State of Kerala and the employer of the deceased Prasanth were arrayed as defendants. The State of Kerala was set ex parte.
3.The court below, after adverting to the pleadings and evidence came to the conclusion that the plaintiffs are entitled to a compensation of `3,40,000/-. The court below entered into a definite finding, that is, on account of the negligence of the officials of the Board, the accident occurred resulting in the death of Prasanth. The court below also found that the third plaintiff in the suit, the brother of the deceased is not entitled to R.F.A.No.149 of 2013 3 any compensation under the Fatal Accidents Act, 1885 (hereinafter referred to as, the "Fatal Act").
4.The court below, however dismissed the suit on the question of limitation relying on Article 82 of the Limitation Act (hereinafter referred to as, the "Act"). The court below was of the view that the claim for compensation under the Fatal Act is to be under Article 82 of the Act. The court below found that the suit was filed after two years from the date of incident. The court below also found that the plaintiffs had initially filed a suit before the Sub Court, Kottayam as indigent in O.P.No.5 of 2007 and the same was withdrawn as per the order of that court in I.A.No.523 of 2008 dated 19.02.2008 with a direction to present the suit before the proper court. The plaintiffs, thereafter, filed the suit as indigent before the court below on 17.11.2008. Since there was no proper pleading in the plaint as to exclude the period involved in prosecuting the matter before a court, which did not have the jurisdiction to exclude the said period in terms of Section 14 of the Act, the court below did not grant any benefit to the plaintiffs for exclusion of that period under Section 14 of R.F.A.No.149 of 2013 4 the Act. The incident occurred on 24.01.2006. The indigent O.P. was filed before the court below on 17.11.2008. In Kerala State Electricity Board v. Bhaskaran Nair [2002 (3) KLT 324), wherein it was held that the KSEB is a statutory body and so, the suit claim is to be treated as one for compensation or damages on account of tortious act committed by the State and such a claim is governed by Article 113 of the Act. Article 113 of the Act provides three years' period for limitation. Another decision of this Court in Kerala State Electricity Board v.Subhadra [2013(4) KLT 17] also followed the Bhaskaran Nair's case (supra) by reckoning the period of limitation under Article 113 of the Act. Thus, the finding of the court below that the suit is barred by limitation is liable to be set aside as against the Board.
5.Onto the question regarding negligence of the Board, the court below discussed and analysed the evidence in paragraphs 11 to 14 of the judgment. Though it was found by the court below that the Board was negligent, the Board is not competent to maintain an appeal against the said finding alone as the suit was dismissed on the ground of limitation. None the less, the R.F.A.No.149 of 2013 5 Board is entitled to challenge the said adverse finding under Order XVI Rule 22 of the Code of Civil Procedure. The Board maintained the stand that the deceased and the third defendant were negligent. Therefore, the Board seeks to exonerate the liability fastened on them by the court below. The court below noticed that the distance between the 11KV line and the arch was only 9 cms. It is evident from the proceedings of the Electrical Inspector that the arch existed there, from 06.1.2006 to 24.1.2006. The arch in question was erected at the behest of the Kerala Vyapari Vyavasayi Union, Kambilikandam unit. The court below found that the erection of the arch was in violation of Rule 82A of the Indian Electricity Rules, 1956 (for short, the "Rules"). We find that there was a statutory duty on the part of the officials of the Board, in terms of Rule 82A, to ensure clearance of any materials being placed under the overhead lines. We cannot assume for the moment that the Board officials did not see the arch which was in existence there from 06.1.2006 to 24.1.2006. In fact, such an arch was erected for the purpose of welcoming the Minister for Electricity, who had come there to inaugurate a Sub Station of R.F.A.No.149 of 2013 6 the KSEB. In the report of the Electrical Inspector, marked as Ext.B1 series, the Inspector has made pointed remarks as to the reasons for non-supervision by the Board officials in monitoring the erection of the arch, in violation of the Rules.
6.We have adverted to Rule 82 A of the Indian Electricity Rules. According to us, it invests the Board with power coupled with duty, the power, in relation to take action against the persons, who are liable for breach of a statutory provision in not obtaining permission and the duty, in respect of third parties, who may, at peril, consequent upon the failure to take action under Rule 82A, which in its intent and purport, is to operate a field to protect the third parties, who may on account of violation suffer loss. The House of Lords in Julius v.Lord Bishop of Oxford [(1880) 5AC 214] observed thus: "There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and R.F.A.No.149 of 2013 7 make it the duty of the person in whom the power is reposed, to exercise that power when called upon to do so." The Hon'ble Supreme Court followed the decision in Julius' case and held in Commissioner of Police, Bombay v. Gordhandas Bhanji [AIR 1952 SC 16] as follows:
"An enabling power of this kind conferred for public reasons and for the public benefit is, in our opinion, coupled with a duty to exercise it when the circumstances so demand. It is duty which cannot be shirked or shelved nor it could be evaded, performance of it can be compelled under Section
45."
When a power is vested with the authority to act for the benefit of a class of people either of definite nature or indefinite nature, such power shall be exercised for the benefit of such people. The failure to exercise such power will amount to non exercise of power and will result in breach of statutory duty. In Anns and others v. London Borough of Merton [(1977) 2 All ER 492], The House of Lords took the view that "when legislation gave with authority to control building operations by requiring approval of foundations of building by authority's Inspector, failure to carry out such inspection by the Inspector would R.F.A.No.149 of 2013 8 result in non-exercise of power, capable of amounting to a breach of duty of care". The Board failed to take action against the third defendant, who had erected the arch without permission." The dereliction of statutory duty is, itself, a breach as against the third party. Therefore, we affirm the finding of the court below regarding negligence on the part of the Board.
7.The court below found that the suit against the third defendant was not maintainable as the accident in question occurred during the course of employment, and the remedy against the third defendant was only under Workmen's Compensation Act. We find that the cause of action against the third defendant is distinct and different. The liability of the Board arises in the context of statutory duty. The liability of the third defendant to the deceased arises on account of his status as the employer. The statutory breach committed by the third defendant in not obtaining permission entails penal liability against him at the hands of the Board. The liability that would be imposed by the Board against the employer is in a different capacity, qua offender. The right of the plaintiffs to claim compensation R.F.A.No.149 of 2013 9 against the third defendant arises out of a special relationship and is governed by the statutes like Workmen's Compensation Act. Therefore, we reject the contention of the Board that the third defendant is equally liable for tortious act. However, the plaintiffs may have a remedy of recourse against the third defendant under the Workmen's Compensation Act. It is only an option for the plaintiffs. If such a remedy is resorted to and any amount is received under the Workmen's Compensation Act, such amount is liable to be deducted while calculating the compensation under loss of dependancy under Section 1A of the Fatal Act. We neither see any ground canvassed by the Board for such a deduction nor we see that the Board or the parties have a case that the plaintiffs have obtained the compensation under the Workmen's Compensation Act.
8.We are also unable to accept the contention of the Board, attributing negligence to the deceased. The deceased being an employee, cannot be condemned for the lapses on the part of the officials, who are armed with the power to proceed against the person liable, who was his employer. For that lapse, we R.F.A.No.149 of 2013 10 cannot accept it as a negligence on the part of the deceased, who could not foresee such lapse as he was under the command of the third respondent in executing his work. We reject the contention of the Board on this point also.
9.The court below found that the plaintiffs are entitled for compensation of `3,40,000/-. The court below reckoned the notional income of the deceased at `36,000/-. The deceased, at the time of accident, was aged 19 years. In a recent judgment of this Court in R.F.A.No.38 of 2004, it was held that for computing the compensation under the Fatal Act, the multiplier method propounded in Sarla Verma(Smt) and others v. Delhi Transport Corporation and another [(2009) 6 SCC 121], can be followed. We do not see any illegality in fixing the notional income of the deceased at `36,000/-. We also see that the deduction of personal expenditure of the deceased by 1/3rd is in conformity with Sarla Verma's case(supra). The court below has taken 16 as the multiplier. We find that the multiplier adopted by the court below is incorrect in view of the multiplier adopted in Column No.4 of the table in Sarla Verma's case (supra), R.F.A.No.149 of 2013 11 which has to be at 18. Based on Sarla Verma's case (supra), the compensation for loss of dependency is to be worked out as follows:
Income `36,000/-, deducting 1/3rd towards personal expenses, net income is `24,000/-.
Therefore, loss of dependency is 24,000X18 =`4,32,000/-.
The plaintiffs have also claimed compensation under the head loss of estate. The court below found that the petitioner is entitled to `3,00,000/- under the head loss of dependency, `25,000/- towards pain and suffering and `15,000/- towards funeral expenses. Thus, the court below awarded a total compensation of `3,40,000/-. We are of the view that the plaintiffs are entitled to a total compensation of `4,32,000/- towards loss of dependency. We find that the amount of `25,000/- awarded under the head pain and sufferings, is not excessive. However, we find that the award of `15,000/- towards funeral expenses is excessive and the same shall be R.F.A.No.149 of 2013 12 limited to `5,000/-. Thus, we hold that the plaintiffs are entitled to a total compensation of `4,32,000 + `25,000 + `5,000 = `4,62,000/-.
10.The plaintiffs/appellants have limited their claim for compensation to `3,40,000/-. The court below rightly found that the third plaintiff is not entitled to any share in the compensation for loss of dependency. Therefore, we award compensation of `3,40,000/- to be recovered from the defendant-Board.
In the result, this appeal is allowed on the following terms:
i) The judgment and decree of the court below are set aside.
ii) The plaintiffs 1 and 2 in the suit are entitled to recover an amount of `3,40,000/- from the defendant-Board together with interest at 6 percent from the date of suit till realization. R.F.A.No.149 of 2013 13 III) The defendant-Board shall pay the amount as above to the plaintiff within a period 3 months from today.
Iii) The direction to recover the court fee, from the plaintiffs stand modified and it is ordered that the court fee payable by the plaintiffs in the suit and in this appeal, shall be remitted by the KSEB, the first defendant in the suit.
iv)The plaintiffs are also entitled to costs through out, bereft of component of the court fee being paid by the defendant-Board.
Sd/-
THOTTATHIL B.RADHAKRISHNAN, JUDGE Sd/-
A.MUHAMED MUSTAQUE, JUDGE ln /True copy/ P.A. to Judge.