Tripura State Electricity Corporation Limited And Ors vs Rita Kalai And Ors

Heard Ms. S. Debgupta, learned counsel appearing for the defendant-appellants as well as Mr. T.D. Majumder, learned counsel appearing for the plainatiff-respondents.

By means of this appeal filed under Section 96 of the CPC, Tripura State Electricity Corporation Limited and its officers have challenged the judgment and decree dated 14.09.2017 delivered in Money Suit No.30 of 2014 by the Civil Judge (Senior Division), Court No.3, West Tripura, Agartala.

The respondents instituted the suit being the dependents of the deceased namely Jiban Kalai who died out of electrocution on 19.04.2014. The suit was instituted under Section 1-A of the Fatal Accident Act, 1939 claiming the damages that the respondents herein had suffered for death of Jiban Kalai as stated.

Briefly stated, the case of the plaintiff-respondents is that on 19.04.2014 at about 3 p.m. in the afternoon for heavy storm one live electric wire got scattered and laid on the brinjal field of the deceased. The plaintiff-respondent No.1 informed the occurrence to the call centre of the respondents. The plaintiffs have admitted that there had been immediate response and the staffs of the respondents attended the complaint, and „shut down‟ the line. After the staffs of the respondents confirmed that the line was shut down, Jiban Kalai went to his brinjal field to pluck brinjal for sale. At about 4 p.m. on the same day i.e. 19.04.2014, he came with contact of live electric wire, but after half an hour of the death, he was seen by his relative including the plaintiff-respondent No.1. When he was taken to the Ompi Primary Health Centre, he was declared death. A written information was lodged to the Taidu Police Station complaining the rash and negligent act of the staffs of the respondents and the said complaint was registered as Taidu P.S. Case No.02 of 2014 under Section 174 of the Cr.P.C. According to the plaintiff-respondents, the deceased was a reputed businessman and had a good earning. Apart that, he had two vehicles having registration No.TR01-Y-0784 and TR03-C-0727 for his "personal use." According to them, they have spent a sum of Rs.2,00,000/- for the funeral ceremony and for the last rite. The deceased is survived with his wife, the plaintiff-respondent No.1 and his three children, the plaintiff-respondents No.2, 3 and 4 and his father Sri Bishu Kalai, the plaintiff-respondent No.5. According to the plaintiff-respondents, they were all dependent on the deceased. Those dependent-plaintiffs do not have any other means for their livelihood and for the said death, they have lost their means of survival. They claimed a sum of Rs.75,00,000/-as damage for the said death.

After due notice under Section 80 of the CPC, the suit was instituted as the demand as raised in the said notice was not complied with. In para-20 of the plaint, it has been asserted by the plaintiff-respondents that the plaintiff-respondent No.1 used to get a sum of Rs.50,000/- per month as the maintenance from the deceased, but due to the fatal accident, the plaintiff-respondents have lost their means of survival.

The respondents No.2, 3 and 4 filed the joint written statement and claimed there was no actionable wrong to institute the suit. They have categorically stated that the deceased did not die for coming in contact with the live electric wire, maintained by those defendants. As there is no negligence on their part, the plaintiff-respondents are not entitled to get any compensation whatsoever. Even, they are not liable to make any payment as compensation or otherwise to the plaintiff-respondents. The statement made by the plaintiff-respondents is that one live electricity line was snapped by storm and it fell on the brinjal field of the deceased. When that was known to the plaintiff-respondent No.1, she had informed the call centre of the defendant-appellants and the staff of the appellants came and shut down the electricity line. After that, they informed the nearby people that the electricity line had been made dead. Have such announcement registered, Jiban Kalai went to the brinjal field to pluck brinjal for sale and at that time, he came in contact with the live electricity line, he got fatally electrocuted and died. The appellants have denied this part of the fact stating that when the line had been shut down, there cannot be any electricity in the snapped line. It has been indicated that since there was thunder with storm "the electrocution" had been caused by thunder. As such, the death is not for coming to contact of the snapped electricity line, but for thunder. The defendant-appellants have categorically denied that the deceased came suddenly in touch with the said electric wire and got electrocuted. However, the defendant-appellants have categorically admitted certain facts which are material for adjudication. In their written statement, the defendant-appellants have stated that it is to be mentioned here that on 19.04.2014, there was heavy storm with lightening. Due to said storm at Jantrana Para area 1(one) LT pole was broken and some lines became scattered and it was not possible to rectify the line instantly and hence, the 66 KV Sub-Station was shut down for disconnection the power lines in that locality. So, the allegation that 1(one) live electric wire was lying on the brinjal field of the deceased is false and fabricated. Hence, there was no question of fatal accident taking place. The deceased, Jiban Kalai, died for not coming to direct contact with the live electric wire and as such, the defendant-appellants who are responsible to manage that line having due authority management under the Electricity Act, 2003, cannot be saddled with any liability for whatever damage that has been suffered by the plaintiff-respondents.

Based on those rival pleadings, the trial court framed as many as 7(seven) issues which are as follows :

ISSUES

(i) Whether the suit is maintainable in its present form and nature ?

(ii) Whether Jiban Kalai died on electrocution on 19.04.2014 at 3 pm. due to negligence of the defendants ?

(iii) Whether medical evidence conclusively proved that Jiban Kalai died due to electrocution ?

(iv) Whether Jiban Kalai had a monthly income of Rs.60,000/- ?

(v) Whether the present plaintiffs were completely depended upon the income of Jiban Kalai ?

(vi) Whether the plaintiffs are entitled to compensation of Rs.75,00,000/- (Rupees seventy five lakh) payable by defendants ?

(vii) Whether the parties are entitled to any other relief/reliefs ?

After recording the evidence of the plaintiff-respondents, the trial court has observed that negligence of the defendant-appellants has been well proved by the plaintiff-respondents as it has surfaced in the evidence that the legal duty to exercise reasonable care, a failure to exercise that reasonable care and cause of physical harm by the negligent conduct, physical harm in the form of actual damages and the proximate cause showing that the harm is within the scope of liability have been proved. From the evidence as led by the plaintiff-respondents, the trial court has found that the defendant-appellants did not deny, rather they have admitted that one LT pole was broken and some electric lines got scattered and it was not possible to rectify the line instantly and as a result, they had shut down the 66 KV sub-station. Thereafter, the said electrocution took place indicating that all the lines were not shut down. As a result, all the issues were answered in the affirmative in favour of the plaintiff-respondents. It has been categorically held that the deceased is survived by the plaintiff-respondents and they are the legal heirs as per law. That fact has been proved by the documentary evidence [Exbt.7].

Having inferred as such, the trial court has assessed the damage following two decisions of the apex court namely Sarla Verma and Others versus Delhi Transport Corporation and Another reported in (2009) SCC 121 and Santosh Devi versus National Insurance Company Limited and Others reported in (2012) 6 SCC 421. In those decisions earlier decision of the apex court was examined and finally, they laid down certain guidelines for assessment of the damage.

There is no harm in applying those principles in a case of fatal accident as well. The trial court has assessed the monthly income of the deceased at Rs.30,000/- considering Rs.20,000/- as contribution to the plaintiff-respondents. There is no dispute that the age of the deceased was 29 years at the time of death and within range of 26-30 years. As per table provided in Sarla Verma (supra) for selecting the appropriate multiplier, the multiplier was selected by the trial court at 17 and which according to us is a correct multiplier. By applying this multiplier with the income as assessed, a sum of Rs.40,80,000/- was quantified as the damage and thereafter, Rs.2,00,000/- was given for the mental shock and agony for the said death. Thus, the total compensation had been assessed at Rs.42,80,000/-. It has been directed that out of the said sum, Rs.21,00,000/- shall be kept separately in the name of the plaintiff-respondents No.2 to 4 in fixed deposit in any Nationalized Bank and remaining Rs.21,80,000/- shall be paid to the plaintiff-respondent No.1. It appears that the plaintiff-respondent No.5 has not been granted any compensation.

Ms. S. Debgupta, learned counsel appearing for the defendant-appellants has raised three-fold objections to question the legality of the said judgment viz. (i) there is no proof of actionable claim inasmuch as it is an admitted case by the plaintiffs that after 66 KV sub-station was shut down, the accident took place and as such, the defendant-appellants cannot be held responsible for the death (ii) In order to clarify further, she has submitted that in all probability, the death was caused by thunder and death by thunder is also by electrocution. Being the act of nature, the defendant-appellants cannot made responsible for such death and (iii) she has raised further objection that assessment as made is without any foundational proof in respect of the income of the deceased and no analysis has been made by the trial court that how the income has been assessed at Rs.30,000/- per month. It appears that on the basis of resolution in respect of maintenance, which is not admitted in the evidence, the said amount has been deduced, but such deduction is completely against the principles of law and good conscience and hence that requires to be interfered with.

Mr. T.D. Majumder, learned counsel appearing for the plaintiff-respondents has submitted that true it is that no income has been assessed based on any documentary evidence but the court can deduce the income considering the number of the dependents, their status and the basic livelihood as they were getting from the deceased. Mr. Majumder, learned counsel has submitted that the theory of death by thunder has not been substantiated nor raised by the defendant-appellants. The defendants did not adduce any evidence to support their contention and thus they have failed to discharge their onus as warranted under Section 103 of the Evidence Act. That apart, Mr. Majumder, learned counsel has shown us the postmortem examination report where the doctors have clearly stated that the death has been caused by electrocution. Moreover, in the description of the injury, it has been opined by the postmortem doctor namely Dr. Biswajit Debbarma that the on touch of the electric contact which touched the right index finger caused the said death. Mr. Majumder, learned counsel has submitted that if the death were caused by thunder, only right index finger would not have been burnt or electrocuted. It is only possible when someone touched the live electric wire. This court finds sufficient force in the submission of Mr. Majumder, learned counsel appearing for the plaintiff-respondents.

Having appreciated the rival contentions, two pertinent points which fall for response are as under:

(1) Whether the death was caused from the live electricity line which was snapped from the pole or the death was caused by thunder? and (2) Whether the assessment of the damage and the quantification of the compensation is just and reasonable or it requires some modification or change?

Having regard to the perspective fact as laid down by the plaintiff-respondents by adducing the oral evidence through Smt. Rita Kalai [PW-1], Sri Ajit Kalai [PW-2] and Sri Pariksihit Kalai [PW-3] and the documentary evidence, particularly, the final report in the case as was registered by the Taidu Police Station and Postmortem Certificate [Exbt.8 series]. We find that the theory of death by thunder has not been established at all. It was in the level of assumption. On the contrary, the testimony of PW-1 and the postmortem examination report [Exbt.8] do clearly show that the deceased died out of electrocution as he came in contact with the live electric wire which was snapped from the dislodged pole. The snapping of the line for dislodgement of the pole by the storm is an admitted fact. On reading those evidence over all, it clearly stands to indicate the death of Jiban Kalai to have caused by electrocution for snapping of electric line from the pole that was dislodged. Hence, the defendant-appellants cannot avoid their liability. It has been well established by the plaintiff-respondents that despite informing the staff of the defendant-appellants, they could not completely shut down the electricity line and as a result, the said fatal accident could take place. Therefore, there exists absolute negligence by the defendant-appellants. Such negligence has been sufficiently proved and thus the defendant-appellants are liable to make up the damage as suffered by the plaintiff-respondents. The first question be placed first. Is there any proof of the age of the deceased, Jiban Kalai? The answer must be in the affirmative as it has been shown that Jiban Kalai was aged about 29 years at the time of accident. But his income as assessed by the trial court cannot be relied by us as there is no primary proof to substantiate the said amount of income. We, by taking the factors of dependency and on considering that the five persons were dependent on the deceased, should accept the income of the deceased at Rs.20,000/- per month out of which, 1/4th should be deducted as his personal expense meaning Rs.5000/-. Therefore, the loss of dependency would come to Rs.15000/- per month. The annual loss of dependency, thus be assessed as Rs.15000 x 12 =Rs.1,80,000/-. With the said amount, the loss of future prospect in terms of the National Insurance Co. Ltd vs Pranay Sethi reported in (2017) 16 SCC 660 be added. The plaintiff-respondents are entitled to the loss of future prospect at 30% of the income of the deceased. Thus, the total loss of dependency and future prospects come to Rs.2,34,000/-. To get the total compensation the plaintiff-respondents has suffered the said amount [Rs.2,34,000/-] should be multiplied by the multiplier 17. The total compensation would be Rs.39,78,000/-. With the said amount, a sum of Rs.1,60,000/- on aggregate would be added as the loss and suffering of the plaintiff-respondents No.1 to 4. Further, with that amount a sum of Rs.15,000/-should be added as the cost of funeral expense. Thus, the total compensation would be Rs.41,33,000/-. The said amount shall carry interest @ 5% from the date of the institution of the suit, i.e. 02.09.2014. Out of the total amount with interest, Rs.8,00,000/- be paid to the plaintiff-respondent No.5 without keeping any fraction out of it. Out of the remaining amount of Rs.18,00,000/- be kept in equal share in the term deposit in the name of the plaintiff-respondents No.2, 3 and 4 and no amount shall be withdrawn from the said amount at any point of time. Only after the plaintiff-respondents No.2, 3 and 4 attained the majority, on their application the trial court may consider release of their amount. The remainder of the amount be allowed to be withdrawn by the plaintiff-respondent No.1 as her share and as the mother and guardian of the plaintiff-respondents No.2, 3 and 4.

Ms. S. Debgupta, learned counsel appearing for the defendant-appellants has apprised this court the defendant-appellants had deposited a sum of Rs.55,17,633/- in the registry by order. The said sum had been deposited in the UCO Bank, High Court Branch on 12.02.2020. The amount which the plaintiff-respondents are entitled to get be deducted from the said amount as deposited by the defendant-appellants. After such deduction, the amount that would be available be returned to the defendant-appellants forthwith on observing practice-direction.

In terms of the above, the appeal stands partly allowed.

Send down the LCRs forthwith.

A copy of this judgment and order be supplied to the learned counsel for the parties for doing their needful, free of cost.