THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

APPEAL SUIT NO.795 OF 2012 AND APPEAL SUIT NO. 1012 OF 2012

COMMON JUDGMENT:

1. As both the Appeals arise out of the Judgment and decree dated 27.04.2010 in O.S.No.86 of 2008 on the file of Additional Senior Civil Judge, Tirupati (for short 'the trial Court'), the same are disposed of by this following common Judgment.

2. For convenience, the parties will be referred to as plaintiffs and defendants per their respective ranks before the Trial Court.

3. The plaintiffs filed the suit in O.S.No.86 of 2008 seeking damages for Rs.8,00,000/- for the death of Shanmugham (hereinafter will be referred to as 'the deceased'), who died due to electrocution.

4. After completion of the trial and hearing the arguments of both sides, the trial Court partly decreed the suit, awarding damages to the extent of Rs.3,00,000/- with proportionate costs against the defendants 1 and 2 with interest at 6% p.a., from the date of suit till realization on Rs.3,00,000/-, the rest of the plaintiffs claim in the suit is dismissed, and the suit against the 3rd defendant is dismissed as not pressed by the plaintiffs.

5. The plaintiffs filed the Appeal in A.S.No.795 of 2012, under Section 96 of the Code of the Civil Procedure, 1908, seeking

enhancement of the damages. Whereas the unsuccessful defendants No.1 and 2 filed the Appeal in A.S.No.1012 of 2012, questioning the correctness of the Judgment and awarding damages against them.

6. In a nutshell, the averments in the plaint are to the effect that the 1st plaintiff is the wife, plaintiffs 2 and 3 are the children and plaintiffs 4 and 5 are the father and mother of the deceased. On 10.03.2007 at 10.00 AM, the deceased went to the Tiffin shop belonging to one Chengamma and adjacent to the shop, there was an electric stay wire abutted to the earth running from an electric pole due to its shock, he died on the spot. It is only the electric pole's supporting wire, and no one could expect it to give an electric shock. The deceased died only due to negligence in discharging the duties by the defendants, and the police registered a case in Cr.No.29 of 2007 under section 304A of I.P.C., against the defendants 2 and 3. Due to the sudden death of the deceased, the plaintiffs sustained heavy losses, and it is very difficult to lead their lives. The deceased used to earn Rs.250/- to Rs.300/- per day and contributed the same to his family. If the defendants could have discharged their duties properly, the deceased's death could not have occurred.

7. The 2nd defendant filed a written statement contending that the defendants were unaware of the deceased's age and that he was going to Tiffin shop on 10.03.2007 at 10.00 AM. It is deliberate and false that

adjacent to the Tiffin shop, an electric stay wire was abutted to the earth running from the electric pole, due to its shock, he died on the spot. The defendants are not liable to compensate the plaintiffs much less. The postmortem report does not state the deceased's death due to electrocution, and the negligence on their part caused the deceased's death due to electrocution is devoid of truth.

8. The 1st defendant filed a memo adopting the 2nd defendant's written statement.

9. The plaintiff's counsel filed a memo that the suit against 3rd defendant was not pressed as per the docket order dated 26.03.2009.

10. Based on the above pleadings, the trial Court framed the following issues:

• (1) Whether the plaintiffs maintained the present suit against the defendants?
• (2) Whether the plaintiffs are entitled to the damages as claimed in the suit?
• (3) To what relief?

11. During the trial, on behalf of the plaintiffs, P.Ws.1 to 4 were examined, and Exs.A1 to A.8 were marked. On behalf of the defendants, D.W.1 was examined, and no documents were marked.

12. Learned counsel for the appellants/plaintiffs in A.S.No.795 of 2012 contends that the trial Court ought to have awarded at least Rs.7,00,000/-instead of awarding Rs.3,00,000/-, which is a very much

meager amount as the deceased was getting a sum of Rs.250/- to Rs.300/- per day; also, he is aged about 30 years only. The trial Court failed to see that there is no dispute about the deceased's income as there is no suggestion made by the respondents therein.

13. Learned counsel for the appellants/defendants in A.S.No.1012 of 2012 contend that the trial Court ought to have seen that the burden of proving that the accident occurred due to the appellants' negligence in maintaining the electric wires lies on the plaintiffs was not discharged. The trial Court erred in law in holding that the deceased touched the stay wire and died, and the appellants were negligent in maintaining the electric cables.

14. Having regard to the pleadings in the suit, the findings recorded by the Trial Court and in light of the rival contentions and submissions made on either side before this Court, the following points would arise for determination:

• 1. Whether the trial Court erred in holding that defendants 1 and 2 are liable to pay the compensation?
• 2. Whether the compensation towards damages granted by the trial Court is just and reasonable, and it requires enhancement?

POINT NO.1:

15. The 1st plaintiff is the wife, plaintiffs 2 and 3 are the children and plaintiffs 4 and 5 are the parents of the deceased Shanmugam are

not in dispute. The 1st plaintiff is examined as PW.1. She testified that on 10.03.2007 at about 10.00 AM, her husband went for breakfast to the shop of Chengamma; adjacent to the said shop, there is an electric stay wire abutted to the earth running from an electric pole, and accidentally, the said stay wire touched the deceased; he fell and became unconscious and died on the spot.

16. PW.2 (N.Arunachalam) and PW.3 (V.K.Raghupathi) testified in their evidence that on 10.03.2007 at about 10.30 AM, the deceased Shanmugam died accidentally when the stay wire touched him and then, he fell and died at the spot.

17. To prove the deceased's death, the plaintiffs relied on Ex.A.1 certified copy of F.I.R., Ex.A.2-certified copy of postmortem report and Ex.A.3-certified copy of inquest report.

18. PW.4 (K.Bhaskar Reddy), who is working as a Professor and Head of the Department of Forensic Medicines, S.V.Engineering College, Tirupati, deposed that S.I., of Police, Tiruchanoor, addressed a questionnaire to him with a request to clarify regarding the cause of death of Shanmugam. The record shows that the medical officer who conducted the postmortem was unavailable due to his retirement. PW.4 had gone through Ex.A.2 (postmortem report). The PW.4's evidence, coupled with Ex.A.2, shows that the Doctor who conducted the postmortem examination had noticed two abrasions that were

insufficient to cause death in the ordinary course. PW.4 opined while answering the questionnaire that the deceased's death cannot rule the possibility out due to coming into contact with a stay wire. The PW.4's evidence shows that he had no personal knowledge about the injuries sustained by the deceased.

19. To show the deceased's death, the plaintiffs relied on the Ex.A.4-Death certificate of the deceased and Ex.A.8-certified copy of the charge sheet filed against the defendants. Ex.A.8 shows that police registered a crime against the defendants under section 304A of I.P.C. The defendants examined P.R.Harinath as DW.1. His evidence shows that he did not state facts relating to the occurrence in question except for the denial of the deceased's death. But in the cross-examination, DW.1 admitted that he had got knowledge about the deceased's death on 10.03.2007, but he does not know whether the deceased died due to electric shock and reason for his death; he admitted that the criminal case was registered for the death of deceased by Tiruchanoor P.S; he was shown as Accused No.3 in the said case; the charge sheet was also filed by police alleging that the deceased Shanmugam died due to the negligence of their department, i.e., APSPDCL.

20. As per the contents of the Ex.A.8 charge sheet, there was rain on 10.03.2007; the ground became wet; at about 10.00 AM, the deceased went to the Tiffin stall of LW.3-P.Chengamma; came into

contact with a stay wire, got an electric shock, and fell unconsciously on the ground. It is also the Prosecution's case, on 10.03.2007 at about 07.30 AM when LW.9-A.Vinayaka went to the Tiffin stall of P.Chengamma, and accidentally he got a mild electric shock when his hands touched the said electric pole's stay wire. Immediately, LW.3- P.Chengamma and LW.8-V.Munemma informed the same to Accused No.1, the Assistant Line Man, but he did take any proper care to rectify the defect. Then LW.8-V.Munemma informed Assistant Engineer, APSPDCL, but none of the electrical staff, including Accused No.1 to 4, visited the spot and rectified the mistake.

21. In K.Rajani and others, V. M.Satyanarayana Goud and

others1, the Hon'ble High Court is pleased to observe that:

"when the insurance company came to know that the police investigation is false, they must also challenge the charge sheet in appropriate proceedings. If at all the findings of the police are found to be totally incorrect, it is for the insurance company to produce some evidence to show that the contents of the charge sheet are false".

22. In the case of Bheemla Devi V. Himachal Road Transport

Corporation2, the Hon'ble Apex Court observed as follows:

"It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants are merely to establish their case on the touchstone of preponderance of probabilities. The standard

¹ 2015 ACJ 797

² 2009 ACJ 1725 (S.C.)

23. Nothing on record suggests that the Investigating Officer filed a charge sheet against the APSPDCL officials without conducting a proper investigation; it is also difficult to hold that the Police Officer fabricated a case. The document having some probative value, the genuineness of which is not in doubt, can be looked into for getting a preponderance of probable versions. As such, it is now well settled that even F.I.R or Police Papers, when made part of the record, can be looked into for giving a finding in respect of the happening of the occurrence. The preponderance of probabilities is the touchstone for concluding negligence and the occurrence mode and manner of happening.

24. The evidence of PWs.1 to 4 and Ex.A.8 clinchingly establishes the death of the deceased due to electrocution. In light of this fact, the matter at hand pertains to whether the defendants' negligence led to the occurrence of the death of the deceased, consequently warranting consideration for compensation to be granted to the plaintiffs.

25. In Prafulla Kumar Rout v. State of Orissa3, the Apex Court has held that negligence is an omission to do something which a reasonable man guided upon these considerations which ordinarily regulate the conduct of human affairs would do or the doing of something which a prudent and reasonable man would not do.

³ 1995 Cri LJ 1277

26. In Ramesh Kumar Nayak v. Union of India4, the Apex Court considered the meaning of negligence and held that negligence means failure to exercise the required degree of care and caution expected of a prudent driver.

27. In Chatra and another v. Imrat Lal and others5, the Apex Court, while defining the meaning of negligence, has stated that negligence means the breach of the provisions of law as also the breach of the duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs, would do or the doing of something which a prudent and reasonable man would not do. The negligence or the rashness would depend upon the facts of each case.

28. In a decision reported in Shail Kumari vs M.P. Electricity Board6, the High Court of Madhya Pradesh observed thus:

"8. xxx The standard of care required of a body like the Electricity Board is a high one owing to the dangerous nature of electricity. It is negligence on its part to omit to use all reasonable known means to keep the electricity harmless. There is no burden on the plaintiff to prove negligence. If the defendant produces no material and evidence to negative negligence, negligence will be presumed.

….It is expected of the Board to do whatever is required to be done to avoid an accident. Its negligence cannot be equated with the negligence of an individual or situational negligence. There is a presumption of negligence when an accident of this nature occurs. The heavy onus is cast on the Board. It is required to discharge the onus....."

⁴ 1995 ACJ 443 : (AIR 1994 Ori 279)

⁵ 1998 (1) Civ. LJ 670 : 1997 AIHC 3631 (MP)

⁶ 2001 LawSuit (MP) 329

29. The appellants/defendants 1 and 2 contended that Andhra Pradesh Southern Power Distribution Company Limited (APSPDCL) Board is not at fault and the possibility of the alleged occurrence could not be ruled out due to the deceased's negligence and even according to the plaintiffs, the deceased touched the stay wire. The legal notice vide Ex.A.6, which the defendants received vide Ex.A.7 postal acknowledgement, also portrays the stand taken by both parties in the suit. The PWs.2 and 3's evidence do not show that the deceased touched the stay wire intentionally. The plaintiffs' contended that the electric stay wire is abutting the earth running from the electric pole, and it is supporting the wire of the said electric pole, and no one could expect that it would give an electric shock. It is not the defendants' version that electricity will also pass through the stay wire. As such, the deceased was not expected to know electricity passing through the stay wire. No prudent man touches the stay wire to know whether electricity passed through it. The evidence of PWs.1 to 3 is probable that the stay wire accidentally got in touch with the deceased.

30. In a decision reported in M.P. Electricity Board vs Shail Kumar7, the Hon'ble Apex Court held that:

"7. It is admitted that the responsibility to supply electric energy in a particular locality was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human being who gets unknowingly trapped in

⁷ 2002 LawSuit (SC) 35

it, the primary liability to compensate the sufferer is that of the supplier of the electric energy.

8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life is liable under the law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such a person is known, in law, as "strict liability".

9. The doctrine of strict liability had its origin in English Common

Law when it was propounded in the celebrated case of Rylands V.

Fletcher8; Justice Blackburn had observed thus:

"The rule of law is that the person who, for his own purpose, brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and if he does so he is prima facie answerable for all the damage which is the natural consequence of its escape."

The rule of strict liability has been approved and followed in many subsequent decisions in England, and decisions of the apex Court are legion to that effect. A Constitution Bench of the Apex Court in Charan Lal Sahu v. Union of India, A.I.R. 1990 SC 1480 and a Division Bench in Gujarat State Road Transport Corpn. V. Ramanbhai Prabhatbhai, A.I.R. 1987 SC 1690, had followed the principle in Rylands (supra) with approval. The same principle was reiterated in Kaushnuma Begum v. New India Assurance Co. Ltd., A.I.R. 2001 SC 485."

32. The Privy Council has observed in Quebec Railway, Light Heat

and Power Company Ltd. V. Vandry and others9 the electricity company

⁸ 1868 Law Reports (3) HL 330

⁹ 1920 Law Reports Appeal Cases 662

is liable for the damage without proof that they had been negligent. 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 held to be not a justifiable defence. Thus, merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding the live wire lying on the road.

33. In Saleema Begum and others V. State of J.K. and others¹⁰, the

High Court of J & K followed the Apex Court's Judgment in M. C. Mehta V. Union of India¹¹, has gone even beyond the principle laid down in "Rylands v. Fletcher" by holding as under:

"We are of the view that an enterprise which is engaged in a hazardous or inherently dangerous industry which poses a potential threat to the health and safety of the persons working in the factory and residing in the surrounding areas owes an absolute and non delegable duty to the community to ensure that no harm results to anyone on account of hazardous or inherently dangerous nature of the activity which it has undertaken. The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part. Since the persons harmed on account of the hazardous or inherently dangerous activity carried on by the enterprise would not be in a position to isolate the process of operation from the hazardous preparation of substance or any other related

¹⁰ 2022 LawSuit (J&K) 888

¹¹ 1987 AIR(SC) 1086

element that caused the harm must be held strictly liable for causing such harm as a part of the social cost for carrying on the hazardous or inherently dangerous activity." (Emphasis supplied)

34. In Superintending Engineer (Elec.) Operation Circle, Medak vs Jangiti Bhommamma¹², wherein the Composite High Court of Andhra Pradesh held as under:

"14.4 Dealing with the principle enshrined in the doctrine of res ipsa loquitur and the contention that the initial onus of proof is on the defendants and that the defence is untenable given the principle of strict liability, it is necessary to refer to the decision of this Court in Motukuri Bheemavvas case (supra).

35. On an appraisal of the evidence of PWs.1 to 4 and DW.1, it is manifest that the electricity board had not maintained the stay wires properly and had it been maintained properly, the death of deceased Shanmugam could have been avoided. I am unable to accept the contention of the learned counsel for the appellants/defendants 1 and 2 (APSPDCL officials) that the defendants had taken the necessary precautions and the death of deceased Shanmugam could not have occurred, had he not come into contact with stay wire.

36. No doubt, a public duty is cast on the authorities to inspect and verify whether the electricity lines are properly maintained. The verification or inspection is expected to be done in a place where the general public has access to move freely.

¹² 2019(0) ACJ 2160

37. The reading of the documents placed before the trial Court clearly shows that the incident occurred due to the negligence of the APSPDCL officials. When it contends that the incident happened due to the only negligence of the deceased, the defendants have to place necessary evidence before the trial Court, based on which, it is expected to give its conclusion. The defendants placed no material to show the incident occurred due to the deceased's negligence, as contended.

38. In light of this perspective, this Court finds it fitting to assert that the defendants 1 to 3 are jointly and severally liable to compensate the respondents/plaintiffs, considering the loss sustained due to their negligent act.

39. After careful consideration, the trial Court correctly appreciated the evidence. There is no reason for this Court to arrive at a different conclusion than the one arrived at by the trial Court regarding the occurrence of the incident due to negligence of the defendants/APSPDCL Officials. The findings arrived at by the trial Court are correct, and the appellants have shown no justifiable reasons for arriving at different conclusions; the view taken by the trial court does not call for any interference. I agree with the conclusion reached by the trial Court. Accordingly, Point No.1 is answered.

POINT NO.2:

40. In the event of a breach of public or statutory duty or negligence, compensation can be fixed on the department's employees,

and consequently, the application of vicarious liability can be invoked. There is no specific method of computing the compensation provided under the Electricity Act, and the rules framed there for death due to electrocution. However, as the death has been caused due to negligence and illegal use of electricity, it would be appropriate to apply the method as provided for in the Motor Vehicle Act for computation.

41. According to the plaintiff's case, the deceased lived by doing fruit business. To show the same, no documentary evidence is placed. In a case like this, where there is no specific evidence as to the income of the deceased, the Apex Court in Lakshmi Devi and others Vs. Mohammad Tabber¹³ held that, in today's world, even common labour can earn Rs.100/- per day. Based on the above principle, this Court can safely assess the monthly earnings of the deceased at Rs.3,000/-.

42. The evidence of PWs.1 to 3 show that the deceased lived by doing fruit business. The earnings of the labourer cannot be equated with the earnings of the person of dealing with the business. As such, this Court is inclined to fix the deceased's monthly income at Rs.4,200/-.

43. In the public interest litigation for compensation and justice to persons who died and were injured in TISCOs function on 3.3.89 in Jamshedpur by sudden fire, the Supreme Court appointed Justice Y.V.Chandrachud to assess and report; Report given after about 7

¹³ 2008 ACJ 488

years; Claimants contending that system of multiplier in assessing compensation is not proper and considering the report and three decisions of Andhra Pradesh High Court, the Hon'ble Apex Court in

Lata Wadhwa & Ors. V. State of Bihar & Ors.¹⁴, observed that:

the manner of arriving at the damages is to ascertain the net income of the deceased available for the support of himself and his dependants, and to deduct therefrom such part of his income as the deceased was accustomed to spend upon himself, as regards both self-maintenance and pleasure, and to ascertain what part of his net income the deceased was accustomed to spend for the benefit of the dependants, and thereafter it should be capitalised by multiplying it by a figure representing the proper number of years purchase. It was also stated that much of the calculation necessarily remains in the realm of hypothesis and in that region arithmetic is a good servant but a bad master, since there are so often many imponderables.

The Hon'ble Apex Further observed that:

……..the multiplier method is of universal application and is being accepted and adopted in India by Courts, including the Supreme Court and as such, it would be meet and proper to apply the said method for determining the quantum of compensation.

44. By considering the parameters indicated in the Judgment and as schedule-II of the Motor Vehicle Act pertains to the fatal accidents, this Court is inclined to apply the schedule–II (U/sec.163-A of Motor Vehicle Act, 1988) to assess the compensation.

45. As per Ex.A3, the deceased's age was shown as 30 years as of the date of the incident, is not disputed. No material is placed to show that the parents of the deceased are exclusively dependents on the

¹⁴ 2001 ACJ 1735

deceased's earnings. This Court views that 1/3rd of the deceased's earnings to be deducted towards personal and living expenses. After the deduction of 1/3rd of the earnings as observed above, the monthly earnings of the deceased would arrive at Rs.2,800/- (i.e., Rs.4,200/-(-) Rs.4,200/-(x) 1/3).

46. To assess the loss of earnings, this Court views that '18' is the appropriate multiplier to assess the compensation. Thus, the loss of dependency can arrive at an amount of Rs.6,04,800/- (Rs.2,800/- x 12 x 18).

47. This Court views that the plaintiffs are entitled to compensation of Rs.2,000/- under the head of funeral expenses, Rs.5,000/- under the head of loss of consortium and Rs.2,500/- under the head of loss of estate. In all, the claimants are entitled to the compensation as detailed below:

Towards loss of dependency		Rs. 6,04,800/-
Towards funeral expenses	Rs.	2,000/-
Loss of consortium	Rs.	5,000/-
Loss of Estate	Rs.	2,500/-
		---------------------
Total:	Rs. 6,14,300/-
		----------------------

48. After considering the material on record, this Court holds that the plaintiffs are entitled to Rs.6,14,300/- with interest at 6% per annum. Given the discussion above in the Appeal, this Court warranted

interference with the impugned Judgment and allowed the Appeal preferred by the plaintiffs. Accordingly, this point is answered.

49. As a result, the Appeal in A.S.No.1012 of 2012 filed by defendants 1 and 2 is dismissed. The Appeal in A.S.No.795 of 2012 filed by plaintiffs is partly allowed. The trial Court's decree and Judgment are modified by enhancing the compensation from Rs.3,00,000/- to Rs.6,14,300/- (Rupees Six Lakhs Fourteen Thousand Three Hundred only), with costs and interest at the rate as awarded by the trial Court. Defendants 1 and 2 are directed to deposit the compensation, excluding the amount already deposited, within two months of receiving a copy of this Judgment. Out of the compensation awarded, the 1st plaintiff is entitled to 50% of the compensation with accrued interest; plaintiffs 2 and 3 are entitled to 20% each of the compensation with accrued interest, and plaintiffs 4 and 5 are entitled to the remaining 10% of the balance with interest. On such deposit, plaintiffs 1, 4 and 5 are permitted to withdraw their respective shares on filing appropriate applications before the trial Court. It is clear that plaintiffs 2 and 3, who are shown to be minors, are entitled to compensation only after attaining their majority. In the event of withdrawal of the amount, if any, deposited by the defendants in pursuance of the trial Court's Judgment, it is hereby directed to adjust the said amount as per the ratio fixed by this Court. In the

circumstances of the case, both parties shall bear their costs in appeals.

50. Miscellaneous petitions pending, if any, in this Appeal shall stand closed.

____________________________________ JUSTICE T. MALLIKARJUNA RAO

Date: 28.08.2023 SAK

20 TMR, J A.S. No.795 of 2012 & A.S. No.1012 of 2012

THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO

APPEAL SUIT NO. 795 OF 2012

AND

APPEAL SUIT NO. 1012 OF 2012

DATE: 28.08.2023

21 TMR, J A.S. No.795 of 2012 & A.S. No.1012 of 2012

SAK