Kerala High Court
Kerala State Electricity Board ... vs Kali And Ors. on 2 March, 1990
Equivalent citations: II(1990)ACC428, 1991ACJ64
JUDGMENT Varghese Kalliath, J.
1. This is an appeal by the defendant. Defendant is the Kerala State Electricity Board, represented by its Secretary, Trivandrum. Plaintiffs are the widow and children of one Ayyappan. Ayyappan died on 12.10.1977 as a result of electrocution. The accident occurred as a direct result of the rash and negligent acts and omissions on the part of the defendant.
2. On 12.10.1977, at about 6 a.m. deceased Ayyappan was proceeding to his place of work. He came into contact with a live wire lying across the road and that resulted in the death of Ayyappan. The fact that a live wire was lying across the road, which would cause injury to those who are walking across the road, was intimated to the Mala Division of the first defendant, Electricity Board, by the local citizens on 10th and 11th. The servants of the Board did not switch off the supply when the incident took place.
3. Deceased Ayyappan was earning an income of Rs. 20/- per day, being a daily labourer. He was aged 57 and he would have earned his daily wages at least for 13 years more. He was paying Rs. 15/- per day for the maintenance of his family. Plaintiffs claim Rs. 70,200/- as pecuniary loss occasioned on account of the death of Ayyappan. They claimed Rs. 5,000/- for the loss of expectation of life, pain and suffering. They also claimed Rs. 500/- for funeral expenses.
4. Defendant resisted the suit and submitted that the plaintiffs are not entitled to any amount as compensation on account of the death of Ayyappan. It was said that on the night of 11.10.1977, there was heavy rain and falling of cadjan leaves on the live wire had caused snapping of 2 phase conductors which were lying on the side of the road. The broken wire could have been seen by a person passing through the road without taking undue care and caution. The incident which resulted in the death of the deceased was solely due to the rash and negligent act of the deceased in contacting the live wire. Defendant denied the contention that Mala Division was intimated about the snapped wire. Defendant said that there was no negligence on its part. They further said that Ayyappan was the sole earning member of the family and he was contributing Rs. 15/- per day towards the maintenance of the family. The first plaintiff, the widow of Ayyappan, was given at the first instance Rs. 200/- and an ex gratia payment of Rs. 1,000/- on 20.5.1980.
5. The court below considered the evidence in the case, assessed the other circumstances involved in the case and decreed the suit directing the defendant to pay a total amount of Rs. 26,500/- to the plaintiff. Now, the defendant appeals.
6. From the narration of facts, it is clear that the first question that has to be considered in this case is whether the defendant was negligent or that the defendant was taking appropriate and proper care in the matter of maintaining the power supply. There is no dispute that a live wire was lying on the road. According to the defendant, it was on account of the fall of cadjan leaves when there was heavy rain. There is no reason for the snapping of a live wire and that too, by the fall of a cadjan leaf, if proper care has been taken in drawing the line. Further, when once such an accident occurs, it is the duty of the defendant to switch off the power supply so that the defendant would have avoided the accident. So long as this has not been done, it is difficult to contend that the defendant was not negligent in the matter. The court below has said that a perusal of the entire file shows how indifferent and how negligent the defendant Board was in carrying out its duties. No contra evidence is adduced by the defendant apart from, the oral testimony of DW 1 who was the Assistant Engineer is charge of the division during the relevant period. He has said that he had seen the line only one week prior to the incident. Sufficient safeguards have not been taken is patently clear since there was no earthing of the two posts between which electrocution had taken place. The court below has found that the defendant was negligent and as such the tragic incident took place on account of its negligence and so the defendant is liable to compensate the plaintiffs. I do not think there is any reason for me to differ from this finding of the court below.
7. The next question that has to be considered is in regard to the quantum of damages awarded. It has to be noted that the life of a bread-winner of the family was snapped away on account of the negligence of the defendant. The court has awarded a total compensation of Rs. 26,500/-. In awarding this compensation, the court has held that the deceased would have lived for another 8 more years and for his contribution to the family, i.e., for the maintenance of the plaintiff, Rs. 12/- per day can be fixed. I do not think that the court below has gone wrong in fixing the expectation of life of a man aged 57 years as 8 years and this finding can (Sic. cannot) be interfered with by an appellate court. So also, the finding that a daily labourer would have given for the maintenance of his family Rs. 12/- per day is also a finding which requires no interference by the appellate court. The compensation has been calculated on the above basis.
8. In calculating the compensation on the above basis the pecuniary loss suffered by the plaintiff is Rs. 18,000/-. The court below added an amount of Rs. 2,000/- for the pain suffered by deceased Ayyappan. Of course, this includes pain and suffering and loss of expectation of life. This compensation is a compensation which will devolve on the estate of Ayyappan since Ayyappan died instantaneously, when he happened to touch the live wire. Counsel for the appellant submitted before me that under the Fatal Accidents Act, the court is not empowered to grant compensation under these two different heads, viz., pecuniary loss suffered by the plaintiff and compensation for pain and suffering and loss of expectation of life. In support of this proposition, he has cited Hindustan General Insurance Co. v. Sushila Gupta 1987 ACJ 70 (Allahabad).
9. In the above decision, a single Bench of Allahabad High Court held that under the Fatal Accidents Act, compensation for mental agony and suffering undergone by the widow due to the death of her husband is not an admissible amount in computing the compensation to be paid to the widow. Of course, the learned Judge has considered certain decisions of the Allahabad High Court and also the Supreme Court decision reported in Gobald Motor Service Ltd. v. R.M.K. Veluswami 1958-65 ACJ 179 (SC).
10. The question whether on the death of a husband or a father, the legal heirs are entitled to compensation for the loss of amenities like pain, agony and suffering and the loss of expectation of the life of the deceased, is a question which was considered by the Supreme Court in the light of several decisions of the House of Lords and Court of Appeal. The classic decision in this matter is Rose v. Ford (1937) AC 826. The House of Lords in that case held that this claim survived the benefit of a deceased person's estate. Once it was thought that the damages were based upon the subjective effect upon the mind of the injured person from his knowing that his expectation of life has been shortened or reduced. This was the view taken in Slater v. Spreag (1936) 1 KB 83. The position was considered thoroughly in Rose v. Ford (1937) AC 826 and the House of Lords held that what is said in Slater v. Spreag (supra) is not the law. In Rose v. Ford (supra), it was said that the subject-matter of the claim is normal expectancy of life and this is "a thing of temporal value, so that its impairment is something for which damages can be given". The measure of damage on this count was difficult for assessment because court felt great difficulty in measuring in money terms the normal expectancy of life. [See Mills v. Stanway Coaches Ltd. (1940) 2 KB 334]. In Benham v. Gambling (1941) AC 157, the House of Lords laid down the following rules:
(a) The thing to be valued is not the prospect of length of days but of a predominantly happy life. Therefore the actuarial test is not of much value, though it may be relevant, e.g., in cases of extreme old age. (b) The capacity of the deceased to appreciate that his further life would bring him happiness is irrelevant; the test is objective, not subjective, (c) Damages are in respect of loss of life, not loss of future pecuniary prospects, (d) Assessment is so difficult that very moderate damages should be given and even less for a very young child, because its future is so uncertain, (e) Wealth and social status must be ignored, for happiness does not depend on them.
11. The unreality of the subjective nature of the assessment of damages under this head is made plain and clear and has been judicially recognised in the celebrated case of H. West & Son Ltd v. Shephard 1958-65 ACJ 504 (HL, England). Because of this difficulty at one point of time, English courts were granting a conventional amount under this head. In the matter of determining damages, our courts are also taking a conventional amount as appropriate compensation for loss of expectancy of life. This conventional figure adopted by courts in England continued for a long time. It remained static for many years. In Yorkshire Electricity Board v. Naylor (1968) AC 529, where the deceased was a young man of 20 years with favourable prospects, a deviation was made and that deviation was upheld by the House of Lords.
12. Quoting several English cases, the Supreme Court in Gobald Motor Service Ltd. v. R.M.K. Veluswami 1958-65 ACJ 179 (SC), held that there was no duplication in awarding damages under both the heads, viz., pecuniary loss suffered by the legal heirs of the deceased and the amount for loss of expectancy of life of the deceased. The Supreme Court quoted the observations of Sir Shadi Lal CJ in Secretary of State v. Gokal Chand AIR 1925 Lahore 636 which read thus:
The law contemplates two sorts of damages; the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by the members of his family through his death. The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caused to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate.
In para 13 of the judgment, the Supreme Court observed thus:
In the instant case, under Section 1 of the Act both the courts gave compensation to plaintiffs 2 to 7 in a sum of Rs. 25,200/-. The sum was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for them. Under Section 2 both the courts awarded damages for the loss to the estate in a sum of Rs. 5,000/-. That figure represents the damages for the mental agony, suffering and loss of expectation of life. There was no duplication in awarding damages under both the heads. No material has been placed before us to enable us to take a different view in regard to the amount of compensation under Section 2 of the Act.
I have no doubt that the lower court has not gone wrong in awarding Rs. 2,000/- as compensation for pain and suffering, even though the court below has said pain and suffering include loss of expectation of the life of the deceased also. In the result, I see no justification for interfering with the judgment of the court below. Appeal is dismissed with costs.