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2002 DIGILAW 761 (KER)

The Union Of India v. Soosanna Eldhose

2002-11-20

K.A.MOHAMED SHAFI, PIUS C.KURIAKOSE

body2002
JUDGMENT K.A. Mohamed Shafi, J. 1. Defendants 1 and 2 in O.S, No. 191 of 1996 on the file of the Subordinate Judge's Court, Muvattupuzha are the appellants. The judgment and decree passed in the above suit are under challenge in this appeal. 2. Suit was filed by Plaintiffs 1 to 5, who are the legal representatives of one Eldhose, who died due to electrocution at about 3 a.m. on 3151995 in his residence, claiming compensation. The fact that as the telephone was ringing continuously at that early morning on 3151995 when deceased Eldhose took the phone, he suffered severe electric shock and collapsed and he died on the way to the hospital is not in dispute. Plaintiffs contended that the telephone line was crossing all K.V. electric line at that area and due to negligence on the part of the Telecom Department and the Kerala State from defendants 1 and 2, the Union of India and the Telecom Department and no claim was made against the third defendant, the KSEB. 3. While defendants 1 and 2 appeared before the lower court and contested the suit, the third defendants has remained ex parte. Defendants 1 and 2 contended that the accident has occurred not due to the negligence or laches on the part of the Officials of the Telecom Department and that the accident has occurred due to the abnormal sagging of the 11 K.V. electric line and touching the same on a drop wire quite accidently and not due to any fault of the Telecom Department but due to the poor installation of the 11 K.V. line. They also contended that the Telecom Department had taken sufficient precaution and it was difficult to provide guarding as the 11 K.V. line was crossing a canal. They further contended that it is clear from Exhibit XI file relating to the enquiry conducted by the Electrical Inspector that the electric post was slanting too much and the 11 K.V. line was sagging. Therefore, they contended that defendants 1 and 2 are not liable for the claim made by the plaintiffs. 4. The lower court after trial found that the plaintiffs are entitled to a total compensation of Rs. 4,50,000/ and after deducting the amount of Rs. 75,000/ already paid, they are entitled to the balance amount of Rs. Therefore, they contended that defendants 1 and 2 are not liable for the claim made by the plaintiffs. 4. The lower court after trial found that the plaintiffs are entitled to a total compensation of Rs. 4,50,000/ and after deducting the amount of Rs. 75,000/ already paid, they are entitled to the balance amount of Rs. 3,75,000/ with interest thereon at the rate of 12% per annum with proportionate costs from defendants 1 and 2. 5. Against that judgment and decree defendants 1 and 2 have come up . in appeal before this Court as already stated. Plaintiffs have preferred a Memorandum of Cross Objection challenging the judgment and decree passed by the lower court in so far as the lower court has disallowed Rs.50,000/ out of the claim made by them. 6. The appellants vehemently contended that even though the plaintiffs, respondents 1 to 5 herein, had claimed compensation from the appellants as well as the KSEB, in Exhibit A23 registered notice dated 1581995 sent by them claiming damages, in the suit they claimed damages only from the appellants. According to the appellants is to clear from the evidence on record that the third defendant, the 6th respondent herein, is liable to pay damages and even though the lower court has also found that the third defendant is also liable for damages, the lower court passed the judgment and decree only against defendants 1 and 2. 7. S.32 of the Indian Electricity Act stipulates that every person generating, transmitting, supplying or using energy shall take all reasonable precautions in constructing, laying down and placing his electric supply lines and other works' and in working his system so as not injuriously to affect whether by induction or otherwise the working of any wire or line used for the purpose of telegraphic, telephonic or electric signalling communication or the currents in such wire or line. Therefore, the appellants vehemently contended that it is the duty of the third defendant to safeguard telephone line drawn beneath the 11 K.V. line in this case. They also contended that as it is clear that the accident has occurred due to the sagging of the 11 K.V. electric line and touching the telephone line, the third defendant alone is liable for damages in this case. 8. It is pertinent to note that the Sub Divisional Engineer, Telecom Department. They also contended that as it is clear that the accident has occurred due to the sagging of the 11 K.V. electric line and touching the telephone line, the third defendant alone is liable for damages in this case. 8. It is pertinent to note that the Sub Divisional Engineer, Telecom Department. Kothamangalam Division, during the relevant time, has deposed as D.W.I that the telephone line was drawn while the electric line was in existence at that place for the last many years,and has drawn beneath the electric line R.87 of the Indian Electricity Rules deals with the lines crossing or approaching each other which lays down that where an overhead line crosses or is in proximity to any telecommunication line, either the owner of the overhead line or the telecommunication line, whoever lays his line later, shall arrange to provide for protective devices or guarding arrangements in a manner laid down in the Code of Practice or the guidelines prepared by the power and Telecommunication Coordination Committee subject to the provisions of subrules (2) to (8). Therefore it is clear that as admittedly the telephone line was drawn by the appellants underneath the existence 11 K.V. high power electric line, it was incumbent upon the appellants to provide for protective devices or guarding arrangements in the manner prescribed under R.87 of the Indian Electricity Rules. In this case the only contention of the appellants is that insulated drop wire was there at the place of crossing of the line as it was difficult to provide guarding as the line was drawn across a canal. Therefore, it is patent that no protective devices or guarding arrangements to protect the telecommunication line was provided by the appellants though they are statutorily liable to provide protective devices or guarding arrangements in the instant case. Hence the appellants cannot escape form their liability to compensate respondents 1 to 5 for the death of Eldhose in this case. 9. Even if the appellants had contended that the third defendant is liable in this case and the third defendant had remained ex parte, the appellants would have followed the third party procedure or for indemnification by the third defendant should have been resorted to by them in this case. 9. Even if the appellants had contended that the third defendant is liable in this case and the third defendant had remained ex parte, the appellants would have followed the third party procedure or for indemnification by the third defendant should have been resorted to by them in this case. It is settled law that the third party procedure can be availed of by a defendant against the person who is not a party to the proceedings by impleading him in the proceedings on an application made for that purpose under Order VIIIA of the Code of Civil Procedures. Third party proceedings can also be availed of against the person who is already on record as codefendant under Order VIIIA R.8 of the Civil Procedure Code. Therefore, without resorting to any such third party proceedings in this case against the third defendant which is already a party on record as codefendant in the suit, the appellants cannot contend that they are not liable to pay the damages claimed in this case as the third defendant is liable. Therefore, the contention raised by the appellants that the lower court is not justified in decreeing the suit against the appellants exempting the third defendant is not sustainable. 10. The appellants have contended that there is absolutely no evidence to establish that they are liable to pay the damages to the plaintiffs in this case. In order to find that the appellants are negligent and they are liable to pay compensation to the plaintiffs in this case, the lower court has relied upon Exhibit XI the entire file relating to the enquiry conducted by the Electrical Inspector in this case. A certified copy of the report of the Electrical Inspector is marked as Exhibit A25. In page 4 of that report sent by the Electrical Inspector to the appellants it is stated that the Telecom Department alone is responsible in this case. S.33 of the Indian Electricity Act provides that notice of accident resulting loss of human or Electrical Inspector and other appropriate Government authorities. Subs.(3) of S.33 stipulates that every Electrical Inspector or other person holding an inquiry under subs.(2) shall have all the powers of a Civil Court under the Code of Civil Procedure and issue report as to the cause of the accident, etc. Subs.(3) of S.33 stipulates that every Electrical Inspector or other person holding an inquiry under subs.(2) shall have all the powers of a Civil Court under the Code of Civil Procedure and issue report as to the cause of the accident, etc. Therefore, the Electrical Inspector has conducted an enquiry as provided under S.33 of the Indian Electricity Act and made available the entire file marked as Exhibit XI. Hence it is clear that Exhibit A25 report filed by the Electrical Inspector who is a Government servant is prepared in the course of exercise of his statutory duty and therefore it is admissible in evidence. 11. Learned counsel for the appellants submitted that Exhibit A25 report filed by the Electrical Inspector is not admissible in evidence in this case since the Electrical Inspector who has made Exhibit A25 report is not examined in this case. It has to be noted that the plaintiffs had filed LA. No. 1031 of 2000 before the lower court to mark the file of enquiry and connected files relating to the enquiry conducted by the Electrical Inspector under S.3.3 of the Indian Electricity Act which was cause produced through the Electrical Inspector and that application was allowed by the lower court on 1982000 being not opposed. Accordingly, the lower court marked the file regarding the enquiry conducted under S.33 of the Indian Electricity Act as Exhibit XI in this case. 12. It is also pertinent to note that in the decision reported in Kerala State Electricity Board v. Kamalakshy Amma ( 1986 KLT 1124 ) a Division Bench of this Court has held that a report prepared by the Electrical Inspector under R.44A of the Indian Electricity Rules is admissible in evidence and is a public document made by a public servant in the discharge of his statutory duty. In Para.10 of the said judgment the Division Bench has observed thus : "On the other hand, Ext. XI, 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.XI report was made made by a public servant in the discharge of his statutory duty. XI, 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.XI report was made 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." This Court has found that report filed by the Electrical Inspectors by conducting the enquiry under S.44A of the Indian Electricity Act in discharge of his statutory duty is admissible in evidence without examining the Electrical Inspector who made the report. Therefore, the contention of the appellants that Exhibit XI is inadmissible in evidence without examining the Electrical Inspector who conducted the enquiry and filed the report is not tenable. 13. Learned counsel for the appellants further submitted that Exhibit XI is only a corroborative piece of evidence and it is not conclusive proof relying upon the decisions reported in Martand Rao v. Malhar Rao (AIR 1928 PC 1928) and in Shivaraya v. Bakkappa (1995 Supp. (3) SCC 400). In Martand Rao's case (stated supra), the Privy Council has held that official reports regarding the nature of any estate are valuable and in many cases the best evidence of facts stated therein but opinions therein expressed should not be treated as conclusive in respect of matters requiring judicial determination, however eminent the authors of such reports may be. In Shivaraya's case (stated supra), the Supreme Court has held that the entry in the Panchayat Register is not an entry which would have established title to the land. 14. Both the above decisions are of no help to the appellants in this . case. First of all the report, Exhibit A25, is relied upon not with regard to any opinion expressed by the Electrical Inspector, but it is relied upon with regard to the facts stated therein with regard to the negligence on the part of the appellants herein. Secondly, it has been held by the Division Bench of this Court in Kamalakshy Amma's case (stated supra) that the report prepared by the Electrical Inspector, a Government servant, during the course of discharge of his statutory duties is admissible in evidence without examining him. Secondly, it has been held by the Division Bench of this Court in Kamalakshy Amma's case (stated supra) that the report prepared by the Electrical Inspector, a Government servant, during the course of discharge of his statutory duties is admissible in evidence without examining him. Therefore, the above argument advanced by the learned counsel for the appellants has to be rejected. 15. Learned counsel for the appellants further submitted that even if Exhibit XI is marked in evidence, the marking of the document is not proof of its contents. It may be true that mere marking of a document in evidence may not be proof of its contents in certain cases. But, in this case we have already found that Exhibit XI is admissible in evidence with regard to the facts stated therein, being prepared by a Government official in discharge of statutory duties. Therefore, the above argument advanced by the learned counsel for the appellants also does not hold good in this case. 16. From the above discussion, it is clear that the contentions raised by the appellants against the finding entered by the lower court that the appellants are liable for damages to the plaintiffs for the accidental death of Eldhose in this case are not sustainable. 17. The appellants have not disputed the quantum of compensation awarded by the lower court in this case. As against a total compensation of Rs. 5 lakhs claimed after deducting Rs. 75,000/ paid by the appellants, plaintiffs prayed for a decree for Rs. 4.25 lakhs in this case. Though the plaintiffs contended that deceased Eldhose was contributing Rs. 3,500/ per month and the annual dependency is 40,000/ the lower court has found that the monthly income of the deceased is Rs. 3,5007 and the deceased was contributing Rs. 2,500/ per month to the plaintiffs and as such the annual dependency comes to Rs. 30,000/. By adopting a multiplier of 15, the lower court found that the plaintiffs are entitled to a total compensation of Rs. 4.5 lakhs. Though the plaintiffs have contended that the quantification of monthly income and annual dependency by the lower court is too low and inadequate and the multiplier of 15 adopted is also less and the lower court ought to have adopted the monthly income at Rs. 4.5 lakhs. Though the plaintiffs have contended that the quantification of monthly income and annual dependency by the lower court is too low and inadequate and the multiplier of 15 adopted is also less and the lower court ought to have adopted the monthly income at Rs. 3,500/ itself and the multiplier of 16 should have been adopted, we find that the quantification of the monthly income, the multiplier and the multiplicand adopted by the lower court are just are reasonable in this case especially considering the evidence on record. 18. The plaintiffs has claimed Rs. 9,000/ towards funeral expenses and Rs. 10,000/ towards loss of consortium in the plaint. No evidence is adduced by them in support of those claims except claiming a consolidated sum of Rs. 5 lakhs as compensation. Even though in the impugned judgment the lower court has not stated anything about the claim for funeral expenses and compensation for loss of consortium, in view of the fact that the plaintiffs have only claimed a consolidated sum of Rs.5 lakhs including the claim towards funeral expenses and compensation for loss of consortium and also considering the fact that the total compensation of Rs. 4.5 lakhs awarded by the lower court is reasonable, we find that the plaintiffs are not entitled to any further amount on these counts than what is awarded by the lower court. Therefore, we find that the claim made by the appellants in the memorandum of cross appeal for the balance amount of Rs. 50,000/ claimed by them in the suit which was disallowed by the lower court, is not sustainable. 19. It is seen from the judgment passed by the lower court that though interest at 12% per annum is awarded on the amount decreed, the date from which interest payable is not specified. We find that though the accident in this case has occurred on 3151995, the suit is instituted only on 2791996. Therefore, we find that the plaintiffs respondents are entitled to interest at the rate of 12% per annum on the amount decreed from the date of suit, namely, 27-9-1996. In the result, the Appeal and the Memorandum of Cross Objection are dismissed confirming the judgment and decree passed by the lower court.