Karnataka High Court
The Executive Engineer vs Kajji Lakshmana on 19 February, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 19th DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
REGULAR SECOND APPEAL No.6307/2012(RES)
C/w.
REGULAR SECOND APPEAL No.6308/2012
BETWEEN:
1. The Executive Engineer
GESCOM, O & M Division
Moka Road, Bellary 583 101.
2. The Assistant Executive Engineer
GESCOM, O & M Division
Moka Road, Bellary 583 101.
... APPELLANTS
(COMMON)
(By Sri. B. S. Kamate, Advocate)
AND:
1. Kajji Lakshmana
S/o. late Konchagerappa
Aged about 49 years
Occ: Agriculture
2. Smt. Ambamma
W/o. Kajji Lakshmana
Aged about 44 years
Occ: Housewife
2
Both are R/o. Kakkabevinahalli village
Tq. & Dist: Bellary 583 101
3. The State of Karnataka
Represented by Deputy Commissioner
Bellary 583 101
... RESPONDENTS
(IN RSA NO.6307/2012)
(By Sri. Anand K. Navalgimath, HCGP for R3;
R1 & R2 - served)
1. Lakshmamma
W/o. late Ramareddy
Aged about 54 years
Occ: Housewife
2. Eshwara, S/o. late Ramareddy
Aged about 34 years
3. Gangadhara, S/o. late Ramareddy
Aged about 29 years
All are R/o. Kakkabevinahalli village
Tq. & Dist. Bellary 583 101
4. The State of Karnataka
Represented by Deputy Commissioner
Bellary 583 101
... RESPONDENTS
(IN RSA NO.6308/2012)
(By Sri. Anand K. Navalgimath, HCGP for R4;
R1 to R3 - served)
RSA NO.6307/2012 IS FILED UNDER SECTION 100 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
29.06.2012 PASSED BY THE LEARNED SENIOR CIVIL JUDGE,
BELLARY IN R.A.NO.43/2010 AND THE JUDGMENT AND
DECREE DATED 16.6.2010 PASSED BY THE LEARNED I ADDL.
CIVIL JUDGE (JR.DN.), BELLARY IN O.S.NO.384/2008 AND
DISMISS THE SUIT IN O.S.NO.384/2008.
3
RSA NO.6308/2012 IS FILED UNDER SECTION 100 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
29.06.2012 PASSED BY THE LEARNED SENIOR CIVIL JUDGE,
BELLARY IN R.A.NO.44/2010 AND THE JUDGMENT AND
DECREE DATED 16.6.2010 PASSED BY THE LEARNED I ADDL.
CIVIL JUDGE (JR.DN.), BELLARY IN O.S.NO.383/2008 AND
DISMISS THE SUIT IN O.S.NO.383/2008.
THESE APPEALS COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Both these appeals have arisen out of the judgment and decree passed in O.S.Nos.383/2008 and 384/2008, which were pending on the file of the Court of I Addl. Civil Judge (Jr.Dn.), Bellary and confirmed in Regular Appeals bearing R.A.Nos.44/2010 and 43/2010 respectively.
2. Appellants were the defendants in both these suits. Original suit bearing O.S.No.383/2008 was filed by the wife and children of one Ramareddy, who died in an electrocution on the night of 29.09.2007 while doing domestic work in front of his house and similarly one boy by name Kajji Umesh, son of the plaintiffs in O.S.No.384/2008 who was working on behalf of said Ramareddy in front of their house in 4 Kakkabevinahalli, Bellary Tq. & Dist, also died in the same electrocution. Electric poles with wires had been installed for supply of electricity to the said village. According to the plaintiff in both these cases, the house had been damaged to the maximum extent and the villagers had requested the authorities of GESCOM to effect the necessary repairs and avoid future danger to lives. In spite of their request, no repair had been done.
3. At about 7.50 p.m. in the night of 29.09.2007, both Kajji Umesh son of plaintiffs in O.S.No.384/2008 and Ramareddy husband of first plaintiff in O.S.No.383/2008 and father of plaintiff Nos.2 and 3 were doing their domestic work in front of their houses, which are situated side by side. At that relevant point of time, the damaged electric wire suddenly fell on them and as a result of the same, they succumbed to the electrocution at the spot. This death, according to the plaintiffs in both these cases, was due to the negligence in maintaining electric line installed by the 5 defendant electric supply company. Kajji Umesh son of Kajji Lakshmana was stated to be assisting them financially by earning and he was earning at the rate of Rs.2.5 lakhs p.a. and was supporting the plaintiffs. According to them, he was the only person to look after the affairs of the agricultural operations. Due to the sudden and untimely death of their grownup son, they had lost the earning capacity and therefore, they had requested the Court to award a sum of Rs.2.5 lakhs as compensation with interest at 24% p.a. from the date of suit till realization. Similarly, plaintiffs in O.S.No.383/2008, the husband and children of deceased Ramareddy had also requested the Court to award a sum of Rs.1.5 lakhs as compensation.
4. The defendants, being the same in both these cases had filed separate written statement and stand taken in both these cases are identical. Defendants have specifically pleaded that death was not due to any negligence as alleged in the plaint, but due to natural calamity. It is their case that 6 a sum of Rs.1.0 lakh was paid in each case as exgratia and this has to be taken into consideration. Plaintiffs had been called upon to strictly prove the negligence attributed in the maintenance of electric line by the electric company. In the light of the receipt of ex-gratia, the plaintiffs are estopped from claiming compensation in their defence. With these pleadings, they had requested for dismissal of the suits.
5. On the basis of the above pleadings, following issues came to be framed in both the cases separately. Issues in O.S.No.383/2008
i) Whether the plaintiffs proves that, they are wife and sons of deceased Remareddy?
ii) Whether the plaintiffs further prove that due to negligence act of the defendants, said Ramareddy and Kajji Umesha died?
iii) Whether the plaintiffs are entitled relief of monetary benefits of Rs.1,50,000/-? 7
iv) Whether the defendants prove that electric accident occurred due to natural calamity and not due to negligence of GESCOM authority?
v) Whether the defendants further prove that they have already paid Rs.1,00,000/- cheque to the plaintiffs on 1.10.2007 on humaaaanitarian ground due to death of Ramareddy and Kajji Umesha?
vi) Whether the plaintiffs are entitled to the relief as sought for in the plaint?
vii) What decree or order?
Issues in O.S.No.384/2008
i) Whether the plaintiffs prove that, they are father and mother of deceased Kajji Umesh?
ii) Whether the plaintiffs further prove that due to negligence act of the defendants, said Ramareddy and Kajji Umesha died?8
iii) Whether the plaintiffs are entitled relief of monetary benefits of Rs.2,50,000/-?
iv) Whether the defendants prove that electric accident occurred due to natural calamity and not due to negligence of GESCOM authority?
v) Whether the defendants further prove that they have already paid Rs.1,00,000/- cheque to the plaintiffs on 1.10.2007 on humanitarian ground due to death of Ramareddy and Kajji Umesha?
vi) Whether the plaintiffs are entitled to the relief as sought for in the plaint?
vii) What decree or order?
6. Both the cases were clubbed to record common evidence and to dispose of both the suits by a common judgment. Smt.Lakshmanna plaintiff No.1 in O.S.No.383/2008 is examined as P.W.1 and plaintiff No.1 in O.S.No.384/2008 is examined as P.W.2 and one Sunkanna is 9 examined as P.W.3. 23 exhibits have been got marked on behalf of the plaintiffs. Mr.J.K.Vishwanath, a responsible officer of defendants electric company is examined as D.W.1 and 4 exhibits have been got marked on their behalf. After analyzing the evidence placed on record and after hearing the arguments, both the suits have been decreed and direction has been given to pay a sum of Rs.50,000/- as additional compensation to the wife and children of deceased Ramareddy and a sum of Rs.2,50,000/- to the parents of the deceased Kajji Umesh with interest at 8% p.a. from the date of suit till realization. Both the suits have been decreed with costs by a considered judgment dated 16.06.2010.
7. Being aggrieved by the said common judgment and decree, defendants had chosen to file separate appeals in R.A.No.43 and 44 of 2010 before the Court of Principal Senior Civil Judge, Bellary. Similarly, plaintiffs in O.S.No.383/2008 had also filed an appeal in R.A.No.55/2010 on the ground that the compensation so awarded was inadequate. All these 10 three appeals came to be clubbed and a common order has been passed by dismissing all these three appeals. The defendants in these two suits are aggrieved by the concurrent judgments of the trial Court as well as the first appellate Court are before this Court by filing separate appeals under Section 100 of CPC.
8. Several grounds had been urged in the appeal memo stating that a sum of Rs.1.0 lakh paid as exgratia in each case must be taken into consideration and the negligence attributed to the electric company is not sustainable either in law or in facts. It is further contended that the defendant company had maintained the electric line perfectly and that the unfortunate electrocution happened for the reasons beyond the control of the company. It is further contended that when a sum of Rs.1.0 lakh has been received in each case as exgratia amount and hence they are estopped from claiming any amount either as compensation or as solatium. Hence, it is contended that the suit so filed in the trial Court 11 were not at all maintainable. The learned counsel for the appellants has argued at length in regard to the grounds raised in these appeal memorandums.
Reasons
9. In both these cases, issue No.2 is in regard to the negligence attributed to the defendants electric company. Burden is initially on the plaintiffs to effectively prove that the electric line had not been properly maintained and that the electric wire fell of a sudden, as a result of which, they succumbed to electrocution. If initial burden is effectively discharged, the onus will shift on the other side. In a civil case preponderance of probabilities plays an important role. A person seeking a particular relief is expected to effectively discharge the burden. The burden of proof is not as high as insisted in criminal cases. It is an admitted position of law that in a criminal case, prosecution is always expected to prove the guilt of the accused beyond all reasonable doubt. 12
10. Admittedly, both Kajji Umesh and Ramareddy died in front of their houses in K.B.Halli village. The contents of the plaint have been reiterated in the affidavit filed in examination in chief by Sri.Kajji Lakshmana examined as P.W.2. Specific suggestion had been put to him that because of the force of the wind, the electric wire got cut off and fell on them. The said suggestion has been emphatically denied. The suggestion put to him that his son himself was responsible in touching the wire, which had fallen has also been specifically denied. Admittedly, incident in question took place on the night and the presence of P.Ws.1 and 2 at the relevant point of time is not seriously disputed. The entire focus of the cross-examination is in regard to the exgratia amount of Rs.1.0 lakh paid in each case. It is true that documents have been produced by the defendants in regard to the payment of Rs.1.0 lakh in each case as exgratia. Mere production of receipt to that effect will not disable the plaintiffs from claiming suitable compensation. It cannot be said that whatever amount is paid by the defendants is 13 equivalent to the requisite damage sustained by the plaintiffs. What exactly is the compensation will have to be decided on the basis of the respective age of the deceased, their earning capacity and the number of persons who were dependent upon them and probable span of future life.
11. It is in this regard, the evidence of D.W.1 also assumes greater importance. The affidavit filed in examination in chief, Mr.J.K.Vishwanath examined as D.W.1 is nothing but reiteration of contents of the written statement filed by the company in both these cases. He was Assistant Executive Engineer in GESCOM. He was working as an Engineer in Meter Testing Sub-Division at Bellary. He was in Rural Sub-Division, Bellary, when Ramareddy and Kajji Umesh died due to electrocution. He had visited the spot only on the next date. According to him, there was heavy rain and because of this heavy rain, the electric wire got cut off and fell. Nothing is placed on record to show that, as to whether it rained on that night and whether it rained so heavily in 14 order to damage the electric wire line. In the absence of acceptable material placed in regard to the wis major, the trial Court is justified in holding that the plaintiffs have discharged their initial burden and the onus that had shifted on the defendants has not been effectively explained. What is asserted during the course of examination of P.W.1 is that, it was because of the natural calamity that the incident took place and whatever incident took place was beyond their control. Suffice to state that evidence placed on record is sufficient enough to come to the conclusion that the electric wire had not been properly managed and because of the negligence, the incident in question took place.
12. It is true that a sum of Rs.1.0 lakh had been paid in each case as exgratia. The receipt of the said amount has been admitted by the witnesses on behalf of the plaintiffs. Admittedly, P.Ws.1 and 2 examined in these cases are illiterate and they do not know as to what is written there. Just because a sum of Rs.1.0 lakh has been received in each 15 case, it does not mean that the amount so received by them was equivalent to the requisite compensation for which they are entitled. The trial Court has taken into consideration a sum of Rs.1.0 lakh paid in each case while arriving at the exact compensation paid by the defendants.
13. Admittedly, Kajji Umesh was hardly 18 years and he had long span of life. The parents were dependent upon him and he was hale and healthy. Similarly, deceased Ramareddy was also quite hale and healthy, though he was aged about 60 years. Taking into consideration the loss of consortium, loss of earning capacity and the amount spent for funeral expenses, the trial Court has come to the conclusion that a sum of Rs.1,50,000/- would be the reasonable compensation in the case of death of Ramareddy and a sum of Rs.3,50,000/- is the reasonable compensation in the case of death of a Kajji Umesh. After deducting a sum of Rs.1.0 lakh paid as exgratia in each case, the defendants have been directed to pay a sum of Rs.50,000/- to the 16 plaintiffs, i.e, wife and children of Ramareddy and a sum of Rs.2,50,000/- to the parents of the deceased Kajji Umesh.
14. The trial Court has assessed the evidence on the basis of the preponderance of probabilities not only in regard to the negligence attributed to the defendants but also in regard to the just and reasonable compensation to be awarded in both these cases. Taking into consideration the totality of the case, the approach adopted by the trial Court is just and proper.
15. The first appellate Court, being the final Court of facts, has reassessed the entire evidence in right perspective and has tested the same on the touchstone of intrinsic probabilities. The first appellate Court has concurred with the trial Court judgment on important aspects and therefore, the judgment of the first appellate Court is not a lengthy one. Considering the various contentions urged on behalf of the appellants, the first appellate Judge has written a well considered judgment by upholding the judgment of the trial 17 Court. In this view of the matter, no illegality or perversity is found either in the judgment of the trial Court or in the judgment of the first appellate Court. Hence, appeals are liable to be dismissed holding that they are without any merit.
ORDER Both the appeals are dismissed as unfit for admission. No costs.
SD/-
JUDGE gab/MBS/-