The Managing Director Gescom and Others vs Mallamma and Others

A.N. Venugopal Gowda, J.—The respondents filed O.S. No. 11/2012 against the appellants, to pass decree for payment of compensation of Rs. 5,01,000/- with interest. Suit was decreed in part, awarding compensation of Rs. 4,78,600/- with interest at 6% per annum from the date of the suit till realization. R.A. No. 61/2012 filed by the defendants/appellants having been dismissed by the Presiding Officer, FTC-I at Raichur, this second appeal was filed.

The respondents filed the suit, claiming compensation, on account untimely death of Hampayya, due to electrocution, on 13.05.2011. Despite entering appearance through an advocate, the defendants did not file written statement. Following points were raised by the trial Judge:

"1. Whether the plaintiffs prove that Hampayya died due to the electrocution caused due to the negligence of defendants?

Whether the plaintiffs are entitled to compensation? If so to what extent?

What order or decree?"

Plaintiff No. 1 deposed as PW.1 and a witness was examined as PW.2. Exs.P1 to P7 were marked. No evidence was adduced by the defendants. Considering the rival contention, the trial Judge held that Hampayya died due to electrocution caused due to the negligence of the defendants. Finding that the deceased was an agricultural coolie, aged about 45 years and was earning Rs. 120/- per day, the loss of dependency was assessed at Rs. 6,04,800/-. 1/4th of the amount was deducted towards personal expenditure of the deceased and the plaintiffs were held entitled to compensation of Rs. 4,53,600/- i.e., under the head Moss of dependency'' and Rs. 25,000/-under the conventional heads such as Moss of consortium'' and ''funeral expenses''. Thus, the suit was decreed and he defendants were directed to pay the damages of Rs. 4,78,600/- with interest at 6% per annum from the date of the suit till realization.

An appeal having been filed by the defendants, the appellate Judge on afresh assessment and appreciation of the evidence brought on record of the suit, has recorded the finding that there is no scope for interference and that the appeal having been found to be devoid of merit, was dismissed with cost.

Sri. Ravindra Reddy, learned advocate for the appellants reiterated the contentions as was advanced before the Court below. He submitted that the trial Court is unjustified in decreeing the suit without framing an issue, in regard to legality of construction just below existing electricity line. He submitted that there being no finding with regard to the negligence by the defendants, the award of compensation is illegal and the impugned judgments/decrees have given raise to substantial question of law.

Sri. Basavaraj R. Math, learned advocate for the respondents, on the other hand submitted that the written statement having not been filed and suit having not been contested, it was unnecessary for the trial Judge to frame issues. Learned counsel submitted that, in the circumstances of the case, framing of point for consideration is justified. Learned counsel further submitted that there being no evidence of whatsoever nature adduced by the defendants, the Courts below are justified in directing the appellants to pay the assessed compensation. Learned counsel further submitted that the question decided being essentially one of fact and as both Courts below have decided the matter on appreciation of oral and documentary evidence placed on record of the suit and there being concurrent findings, which are essentially one of fact, no substantial question of law has arisen for consideration and hence, the second appeal, under Section 100 CPC is not maintainable.

Perused the record and considered the rival submissions.

Suit was not contested by filing written statement. Plaintiff No. 1 got herself examined as PW.1 and also examined a witness as PW.2. Exs.P1 to P7 were marked. By noticing Ex. P7, trial Judge has accepted the case of the plaintiffs and has held that there was negligence on the part of the defendants in not maintaining the electricity poles, its wire in tight conditions. Negligence of the defendants having been established and there being no dispute with regard to death of Hampayya, aged about 45 years and the plaintiffs being his legal heirs and dependants, the compensation payable was assessed and was directed to be paid.

The Lower Appellate Court, which is the final Court of fact, has confirmed the finding of the trial Court regarding the negligence of the defendants/appellants and consequent liability to pay the compensation. On fresh assessment and appreciation of the record of the suit, the appellate Court has confirmed the finding of the trial Court regarding negligence of the defendants, resulting in the death of Hampayya and also the consequent liability to pay the compensation.

In view of the concurrent findings which have been recorded, there is no scope for interference with the finding on fact concurrently recorded by Courts below, with regard to the negligence on the part of the appellants and their liable to pay the compensation, which has been assessed by applying principles adopted in the matter of determination of compensation payable in Motor Vehicle Accident Claims. As this appeal does not involve any substantial question of law, there is no scope for interference in exercising power under Section 100 CPC.

In the result, for want of substantial question of law, the appeal is rejected.

The amount in deposit be disbursed in equal portion amongst the plaintiffs. 30% of the amount payable to each of plaintiff Nos. 2 and 3 be invested in fixed deposit, in a nationalized bank, for a period of three years, with provision for withdrawal of interest periodically. 50% of amount payable to plaintiff Nos. 4 and 5 each be invested in fixed deposit, in a nationalized bank, for a period of five years, with provision for withdrawal of interest periodically. The amount payable to the share of plaintiff No. 1 be released, out of the amount already deposited by the defendants.

Draw decree accordingly.