Kerala High Court
Kerala State Electricity Board vs Kamalakshy Amma on 5 September, 1986
Equivalent citations: AIR1987KER253, AIR 1987 KERALA 253, ILR (1987) 1 KER 309, (1987) ILR(KER) 1 KER 309, (1986) KER LJ 985, (1986) KER LT 1124, (1987) ACJ 251
Bench: K.S. Paripoornan, K.T. Thomas
JUDGMENT Thomas, J.
1. One Krishnan Nair and Appu Nair was a member of the Piravom Panchayat. He left his house during the early hours on 13-12-1982 to have a dip in a nearby canal, without any premonition that he would be entrapped by the death warrant so imminently. A live wire, snapped out of the cup joint on an electric post, was lying on the road and Krishnan Nair accidentally came across with the live wire and he slumped down and breathed his last. Thus his life was snuffed in a trice. His aged mother, his widow and children initiated action against the Kerala State Electricity Board (for short the KSEB) for damages on account of his death, alleging that the KSEB was negligent in maintaining the electric line under their management on the route concerned. The trial court accepted the case and gave a decree for Rs. 75,0007-with interest and costs. The KSEB, aggrieved by the aforesaid decree has filed this appeal.
2. The plaint averments show that Krishnan Nair was a man of good health, doing business in textiles provisions and general goods, besides running a rice mill, and was earning fairly good income with which the members of his family were getting on well and his five children were prosecuting their studies. He was electrocuted sometime soon after 5-30 a.m. on 13-12-1982 when he was going for a bath in the Lift Irrigation Canal situated nearby. The electric wire got snapped from the cup joint due to lack of proper care and maintenance. Thus the plaintiffs claimed damages from the KSEB on the ground of negligence on the part of the latter who was in charge of the control and management of the power supply in the route concerned. According to the plaintiffs, the deceased was getting an average of Rs. 1,000A per month besides Rs. 75/- per month as sitting fee being a member of the Panchayat. The entire family was depending on the deceased for the livelihood of its members and for the educational expenses of the children. Hence, the claim for Rs. 75,000/- was made in the plaint.
3. In the written statement, the KSEB admitted that Krishnan Nair died at the time and on the date alleged, but they denied that he was electrocuted. They also denied negligence on their part and claimed that the electric installations under their management were regularly and properly maintained, adopting all safety methods and precautionary measures. According to the KSEB, Krishnan Nair did not have any income at all and he was only "an unemployed politician". The amount of damages claimed is highly exorbitant and inflated, contended the KSEB.
4. The learned Sub Judge came to the conclusion that Krishnan Nair was electrocuted at the place and time alleged in the plaint, and the KSEB was negligent in maintaining the electric line on the route.
The learned Sub Judge found that Krishnan Nair was earning a good income from his business in different fields. His life expectancy was estimated to be 75 years approximately. The quantum of damages due to the plaintiffs was assessed to be Rs. 84,850/-, but as the claim was only for Rs. 75,000/-, a decree in that sum was granted.
5. Learned counsel for the KSEB contended that the court below went wrong in holding that the KSEB was negligent in maintaining the electric line in good repair and that the quantum of damages has been arbitrarily fixed without norms or principles.
6. We obtained the records from the court below and heard the counsel again at length on the points urged by him. On a consideration of the entire facts and circumstances of this case, in the light of the arguments addressed by the learned counsel for the appellant, we do not consider this a fit case where notice to the respondents should be issued.
7. That Krishnan Nair died during early morning on 13-12-1982 is common case. P.W. 3, a teacher of the local Government High School, has given evidence that he was the first to see Krishnan Nair lying on a live electric wire on the road and that he rushed to a lineman and got the electric supply disconnected. P.W. 3 further said that he went to the Police Station and launched the first information statement, on the basis of which an FIR was prepared. The only attempt made in cross-examination was to show that maintenance of the electrical installations was being attended to by the officials. The fact of death due to electrocution is not challenged. P.W.2 is the 3rd plaintiff. It is wrongly recorded in the deposition that P.W. 2 is the first plaintiff. He is one of the sons of the deceased Krishnan Nair. He also speaks about the events which took place on the fateful day when his father left his house for taking bath in the nearby canal and that he came to know of the mishap which visited his father and he rushed to the scene immediately and saw his father lying on the live electric wire. His testimony cannot be rejected on the sole ground that he is the son of the deceased and one of the claimants. There was no cross-examination on the point that his father died of electrocution. P.W. 1 is the President of the local Panchayat, who deposed that he saw Krishnan Nair lying on the electric wire at the place mentioned in the plaint. The court below placed absolute reliance on the evidence of those witnesses and came to the conclusion that the death of Krishnan Nair was due to electrocution at the time and place mentioned in the plaint. We do not find any reason to disbelieve their evidence.
8. Learned counsel contended that the burden is on the plaintiff to prove that the death of the deceased was occasioned on account of the negligence on the part of the defendants and that discharge of the said burden is incomplete if the evidence has only shown that the deceased was electrocuted. According to the counsel, absence of evidence pointing to dereliction of duty on the part of the officials of the KSEB or to prove that the electric wire got detached from the cup joint due to the failure to make periodical maintenance, would be far short of proving negligence on the part of the KSEB.
9. When the plaintiffs succeeded in proving that a pedestrian (in this case, the deceased) was electrocuted from a live wire hanging down from an electric post, there is a presumption of fact that there was lack of proper care on the part of those in the management or control of the power supply system at the particular place. The maxim res ipsa loquitur is a principle which aids the court in deciding as to the stage at which the onus shifts from one side to the other. S. 114 of the Evidence Act gives a wide discretion to the courts to draw presumptions of fact based on different situations and circumstances. This is in a way, a recognition of the principle embodied in the maxim res ipsa loquitur. The leading case on the subject is Scott v. London and St. Katherine Docks Co. (1865) 3 H & C 596. Erle C.J. in the said case has stated that, "where the thing is shown to be under the management of the defendant or his servants and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care''. Evershad M. R. in Moore v. R. Fox & Sons (1956) 1 OB 596 affirmed and followed the principle laid down in Scott's case. Winfield in his famous treatise on Tort, after referring to the decisions which founded the above doctrine, has mentioned the two requirements to attract the above principle. They are, (i) that the "thing" causing the damage be under the control of the defendant or his servants and (ii) that the accident must be such as would not in the ordinary course of things have happened without negligence. This principle which was often found to be a helping guide in the evaluation of evidence in English decisions has been recognised in India also. The Supreme Court in Syed Akbar v. State of Karnataka AIR 1979 SC 1848 has discussed the applicability of the maxim res ipsa loquitur in civil as also criminal cases, in the light of the provisions of the Evidence Act. Sarkaria, J. in the said decision has observed as followed :
"The rule of res ipsa loquitur in reality belongs to the law of torts. Where negligence is in issue, the peculiar circumstances constituting the event or accident, in a particular case, may themselves proclaim in concordant, clear and unambiguous voices the negligence of somebody as the cause of the event or accident. It is to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is unknown and no reasonable explanation as to the cause is coming forth from the defendant. The event or accident must be of a kind which does not happen in the ordinary course of things if those who have the management and control use due care. Further the event which caused the accident must be within the defendant's control. The reason for this second requirement is that where the defendant has control of the thing which caused the injury, he is in a better position than the plaintiff to explain how the accident occurred."
10. In this case, the plaintiffs discharged their burden by establishing that Krishnan Nair was electrocuted from a live wire which hanged down from an electric post on the roadside. Facts thus far established speak for themselves and it is for the KSEB to rebut the presumption with positive evidence to show that they have been maintaining the power supply system at this particular place under proper care and repair. But the KSEB utterly failed to rebut the presumption. D.W. 1, an Assistant Engineer of the KSEB, instead of rebutting the presumption, has candidly admitted that he has no direct knowledge about the occurrence and that he did not make an enquiry about it. On the other hand. Ext. X1. a report prepared by the Electrical Inspector shows that the accident occurred when "one of the L.T. conductors slipped from the pin insulator by breaking the binding wire". Ext. Xl report was made under Rule 44A of the Indian Electricity Rules and thus is a public document made by a public servant in the discharge of his statutory duty. The contents of Ext. XI would cut at the root of the defendant's case that there was no negligence at all on the part of the KSEB in keeping the power supply system under proper care.
11. The next contention is regarding the quantum of damages awarded by the court below. The learned Sub Judge, in determining the quantum of damages, has taken into account the following factors, (i) the income of the deceased at the time of his death, (ii) the extent of dependency on the income of the deceased, and (iii) the life expectancy of the deceased and the period up to which the deceased would have continued to earn income. The court below estimated the net income of the deceased after meeting his personal expenses at Rs. 1,075/- per month. In arriving at that figure the learned Sub Judge took into account the facts that the deceased had business in textiles, provisions, and general goods, and also that he was miming mill, besides the silting fee of Rs. 75/-per month which the deceased was getting as a member of the Panchayat. No exception to the above reasoning can be taken, especially in view of the fact that five college going children and another daughter were depending on the income of the deceased. According to the learned Sub Judge, the deceased would have lived as an earning man at least for another 13 years and hence the court adopted 13 as a multiplier. In fact the court below arrived at a figure of Rs. 84,850/-as the amount of compensation to which the plaintiffs are legitimately entitled, but limited it to Rs. 75,000/- since the plaintiffs made a claim only for that amount.
12. Courts have pointed out, time and again, that some degree of guess work is inevitable in assessing the quantum of general damages. This is due to practical difficulties in chalking out precise data or yardsticks in assessing the amount of damages. Decided cases provide some light in this field. In C.K.S. Iyer v. T. K. Nair, AIR 1970 SC 376 at page 380, para 40, the Supreme Court held:
"There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations but the amount recoverable depends on the particular facts and circumstances of each case...... .. In assessing damages, the Court must exclude all considerations of matter which rest in speculation or fancy though conjecture to some extent is inevitable........ In the matter of ascertainment of damages, the appellate Court should be slow in disturbing the findings reached by the courts below if they have taken all the relevant facts into consideration."
In British Transport Commission v. Gourley H. L. (1955) 3 All ER 796 at p. 808 Lord Reid said :
"The general principle on which damages are assessed is not in doubt. A successful plaintiff is entitled to have awarded to him such a sum as will make good to him the financial loss which he has suffered, and will probably suffer, as a result of the wrong done to him for which the defendant is responsible ............... Such damages can only be an estimate, often a very rough estimate, of the present value of his prospective loss."
A review of the decided cases points out that in fixing the quantum of compensation in accident cases there is bound to be some element of_ arbitrariness. The matter would normally be left to the primary court or Tribunal to take a reasonable, overall view of the salient features of the facts and then to fix the quantum of compensation bearing in mind the relevant factors and guidelines. When once such an amount is determined, unless it is shown to be patently wrong or perverse or a positive basis is indicated to refute such quantum, it will not be proper for an appellate court to interfere with it. It cannot be denied that it is the duty of the primary court or Tribunal, on a total view of the matter, to award what it considers, under all the circumstances, a "fair" compensation. The compensation awarded may not be "full", but at the same time it should be fair, and just or reasonable and not "illusory". In the very nature of things, it is not possible to formulate precisely the principles to be applied in all cases, but it may be possible in a majority of cases, for one to feel that the compensation awarded is fair and just or reasonable. We are reminded of the speech of Lord Devlin in H, West & Son. Ltd. v. Shephard (1963) 2 All ER 625 at p. 638 (HL) to the following effect :
"What is meant by compensation that is fair and not full? I think it means this. What would a fair-minded man, not a millionaire, but one with a sufficiency of means to discharge all his moral obligations, feel called on to do for a plaintiff whom by his careless act he had reduced to so pitiable a condition? Let me assume for this purpose that there is normal consciousness and all the mental Suffering that would go with it. It will not be a sum to plumb the depths of his contrition, but one that wilt enable him to say that he has done whatever money can not He Has ex hypothesi already provided for all the expenses to which the plaintiff has been put and he has replaced all the income which she has lost. What more should he do, so that he can hold up his head among his neighbours and say with their approval, that he has done the fair thing?"
We concur with the above test and would respectfully adopt the above passage as our own. We should add, that what is "fair" and just is that which is reasonable and real compensation.
13. In a recently decided case by a Division Bench of this Court in Raimand Augustine v. Ludvic, 1986 Ker LJ 595, Sivaraman Nair, J. who delivered the judgment for the Bench made a brief survey through a catena of earlier decisions for estimating the quantum of general damages in respect of death by accident. In that case the trial court fixed 15 as the multiplier, despite the old age of the claimants, and it was urged before the Division Bench that the multiplier ought to have been at least 20. But their Lordships declined to enhance the multiplier further due to paucity of evidence and maintained the multiplier at 15. We do not find any reason to reduce the multiplier fixed by the court below in this case though we regret our inability to enhance the same further in the absence of an appeal by the plaintiffs.
14. Learned counsel contended that the court below ought to have made deductions considering factors such as future imponderables which would have visited the deceased, and the advantage of getting a lump sum amount. If we have to find that deductions should have been made on account of the aforesaid factors, we cannot overlook or ignore other considerations which may further add to the assessment. It is of course a recent development that courts are inclined to recognise the fall in value of money while assessing the amount of compensation, or fixing the market value or estimating the unliquidated damages. Earlier, courts were hesitant in doing so. e.g. Denning L.J. (as he then was) expressed his view that "a man who stipulates for a pound must take a pound when payment is made, whatever the pound is worth at that time". Treseder-Griffin's case, (1956) 2 All ER 33. But a Division Bench of this Court in a recent decision, State of Kerala v. Thomas, ILR (1985) 1 Ker 228 took note of the deviation made by Browne-Wilkinson, J. in Multiservice Bookbinding v. Marden (1978) 2 All ER 489 two decades later. Their Lordships in the aforecited case, left the point for deeper consideration in future. In 1977, Lord Denning M. R. felt that his own earlier view needs change. Hence in Cookson v. Knowles (1977) 2 All ER 820 he urged his point thus :
"In Jefford v. Gee, in (1970) 1 All ER 1202, we said that, in personal injury cases, when a lump sum is awarded for pain and suffering and loss of amenities, interest should run 'from the date of service of the writ to the date of trial'. At that time inflation did not stare us in the face. We had not in mind continuing inflation and its effect on awards. It is obvious now that the guideline should be changed. The courts invariably assess the lump sum on the 'scale' for figures current at the date of trial, which is much higher than the figure current at the date of injury or at the date of writ. The plaintiff thus stands to gain by the delay in bringing the case to trial'.
In American Jurisprudence (Second Edition) (Vol. 22) at page 125 para 87, it is stated :
"Many cases have considered the effect which changes in the cost of living or the purchasing power of money should have on the amount of damages awarded in actions for personal injuries or wrongful death. The problem is presented because often the trial of the case is held several months or years after the injury, and further, the award - at least where the injury is permanent - compensates for injuries which will continue many years into the future. The rule is now well settled that a court, in determining whether an award of damages for personal injuries is proper, can consider the changes in the cost of living or, in its alternative expression, in the purchasing power of money. The court may also take account of future prospects of inflation or deflation, in fixing personal injury damages. The basis of this rule is that compensation means compensation in money, and the" value of money lies not in intrinsic worth but in what it will buy. Thus, reviewing courts state that changes in the value of money are considered in determining whether a particular award of damages is excessive or inadequate."
In working out the compensation, the court or Tribunal has wide discretion in the matter and in so doing, and in awarding a "fair" and "just" compensation, or a "reasonable" one, it may take into consideration the prevailing purchasing power of rupee in order to see that the awards must keep pace with the growing inflation. This is one of the factors to be borne in mind to enable the Tribunal or court to be just, real and reasonable in all the circumstances of the case. Sukumaran, J. in Kunjamma v. Geevarghese, 1984 Ker LT 128 at pp. 133 and 134, paragraphs 24 to 27, had occasion to deal with this aspect. The Delhi High Court in Jaimal Singh v. Jawala Devi, AIR 1976 Delhi 127 pointed out that "in assessing damages in fatal accident cases, compensation should be calculated so as to allow for the increasing cost in a depreciating currency ........ and a Judge cannot shut his eyes to the inflationary trend and the fact that the rupee has considerably gone down in value".
Parliament has given legislative recognition to this phenomenon when it amended the Land Acquisition Act, 1894, by Act 69 of 1984. in the statement of objects and reasons for the amendment the depletion of the rupee value is mentioned as one of the reasons for providing newer counts of compensation for the lands acquired. We are of the view that fall in the rupee value is a factor which courts can justifiably take into account in assessing damages in fatal accident pases. If that be so, the appellant cannot possibly have a grievance that the amount should have been further reduced on account of considerations of future imponderables and lump sum payment, because there are other considerations which may offset the former, if not override them.
On a consideration of various aspects, including the points urged by the appellant's counsel, we do not find any reason to interfere with the decree passed by the court below. The appeal is dismissed in limine.