Santosh v. Executive Engineer, Karnataka Electricity Board, Hubli
2010-12-16
B.V.PINTO, V.G.SABHAHIT
body2010
DigiLaw.ai
JUDGMENT V.G. Sabhahit, J This appeal is filed by the Plaintiff in O.S. No.163/2001 on the file of the Prl. Civil Judge (Sr.Dn.), Hubli, being aggrieved by the judgment and decree dated 31.01.2004 seeking for enhancement of damages awarded by the trial Court. 2. The essential facts of the case leading up to the filing of this appeal with reference to the ranking of the parties before the trial court are as follows: The plaintiff who was aged about 11 years was studying in 7th standard at Hebsur and he was staying with his parents. The defendants 5 and 6 had built a building for High School in Hebsur with due permission from respondent No.7. The defendant No.7 has given permission to construct the building, without observing the legalities which are to be followed at the time of granting the permission. The electric lines have gone on the building of the High School and that lines are at the touchable limits of any infant. That neither the Chairman of the school, nor the authorities of the KEB took any precautions to change the electric lines in anticipation of damage either to the property or to the human body if the said lines are continued in the existing manner, even after the construction of the said school building. That the electric lines have been touching the pillars of the building of the school at the instance of a simple blow of air and it has been common to touch with the pillars in the course of tumpest air. It is further the case of the plaintiff that on 12.05.1995, plaintiff and his friend Hallappa alias Ravi Koppal (plaintiff in O.S.No.85/1997) were playing the games and when these boys touched the pillars, which were exposed to the air, but suddenly they sustained a shock and immediately fell down there on the surface. The people have listened the hue and cry of the plaintiff and Hallappa, rescued the children and took them to hospital for treatment at Hebsur. The plaintiff was an inpatient from 12.05.1995 to 12.07.1995 and his left forearm was amputated in the hospital of Dr. A.S. Mudaraddi, Vidyanagar, Hubli and therefore the suit was filed seeking damages of Rs.5 lakhs from the defendants.
The plaintiff was an inpatient from 12.05.1995 to 12.07.1995 and his left forearm was amputated in the hospital of Dr. A.S. Mudaraddi, Vidyanagar, Hubli and therefore the suit was filed seeking damages of Rs.5 lakhs from the defendants. The suit was resisted by the defendants school authorities contending that there was negligence on the part of the KEB in not shifting the electricity wire which was passing just above the school which was touching the pillars and further contended that there was negligence on the part of the plaintiff and also the school authorities in not properly constructing the building and therefore they are not liable to pay the damages. Defendant Nos.2 and 3 adopted the written 'statement of defendant No.1. Defendant Nos.5 and 6 filed the written statement stating that the school building was built in accordance with the sanctioned plan and they had written a letter to the KEB to shift the main line as it is dangerous to students of the said school and despite the request made by the school authorities, the KEB did not take any action and therefore there was negligence on the part of the KEB defendants 1 and 2 and that therefore they are not liable to pay damages. Having regard to the above said pleadings, the following 8 issues were framed by the trial Court: "1. Whether defendants 1 to 4 were negligent in drawing or maintaining electric line by the side and near the school building of defendants 5 and 6? 2. Whether defendants 5 and 6 were negligent in putting up the construction of their school building very near to the electric line? 3. Whether 7th defendant was negligent in granting permission to defendants 5 and 6 to construct school building? 4. Whether the alleged electrocution to plaintiff was due to negligent acts of defendants? 5. Whether plaintiff had sustained injuries due to said electrocution? 6. Whether plaintiff has suffered any permanent physical disability due to said electrocution? 7. If so, how much damages the claimant is entitled to and from whom? 8. What decree or order?" 3. The suit filed by the plaintiff herein was clubbed along with the suit filed by the natural guardian of another injured by name Halappa Mallappa Koppal. In the said suits, common evidence was recorded. On behalf of the plaintiff, PW-2 (father of the plaintiff) and PW-3 Dr.
8. What decree or order?" 3. The suit filed by the plaintiff herein was clubbed along with the suit filed by the natural guardian of another injured by name Halappa Mallappa Koppal. In the said suits, common evidence was recorded. On behalf of the plaintiff, PW-2 (father of the plaintiff) and PW-3 Dr. P.S. Banakar, were examined and they also got examined PW-4 who was an eye witness to the incident and got marked the documents Ex.P. 1 to Ex.P. 168. On behalf of the defendants, DWs- 1 to 5 were examined and Ex.D.1 to 16 were got marked. The trial Court after considering the contention of the learned Counsel appearing for the parties and appreciating the oral and documentary evidence on record held that the plaintiffs' in both the suits had sustained injury due to the negligence on the part of respondents-4 to 6 herein (school authorities) and held that there was no negligence on the part of the respondents 1 to 3 (KEB) and awarded damages of Rs.1,10,000/- to the plaintiff. Being aggrieved by the above said judgment and decree, this appeal is filed by the plaintiff. 4. It may be noted here itself that so far as the finding of the trial Court regarding the negligence on the part of respondents 4 to 6 and liability to pay damages saddled upon them and entitlement of the damages In favour of the plaintiff was challenged by defendants 4 and 5 in both the suits in R.F.A. Nos. 637/2004 and 639/2004 and both the appeals have been dismissed by confirming the judgment and decree passed by the trial Court holding that the plaintiff sustained injury due to the negligence on the part of defendants 4 to 6 and not on behalf of defendants 1 to 3 and that the plaintiff is entitled to damages. 5. We have heard learned. Counsel for the appellant and learned Counsel for respondents 1 to 3. Other respondents though served with notice have not chosen to appear before this Court. 6. Learned Counsel for the appellant-plaintiff submitted that the quantum of damages of Rs.1,10,000/- awarded by the trial Court is wholly inadequate and the trial Court has not taken into consideration the deposition of PW-3 who has spoken to about the disability sustained by the plaintiff and the loss of amenities which he has suffered and which he has to undergo throughout his life.
Learned Counsel for the appellant has taken us through the evidence of PW3 and the documents produced by him and submitted that the damages as sought in the suit may be granted. 7. Learned Counsel for respondents 1 to 3 submitted that the finding of the trial Court that they are not negligent and not liable to pay damages has been confirmed in connected appeals in R.F.A. Nos. 637/2004 and 639/ 2004 disposed of on 15.07.2010 and therefore they are not liable to pay damages. 8. Having regard to the contentions urged, the points that arise for our consideration in this appeal are: "1. Whether the damages of Rs.1,10,000/- awarded by the trial Court is inadequate and calls for enhancement as sought in the appeal? 2. If so, what is the damages to which the appellant is entitled to? 3. What order?" 9. We answer the above three points as follows: Point No.1: The damages of Rs.1,10,000/- awarded by the trial Court is on the lower side and the plaintiff is entitled to enhanced damages of Rs.2,44,200/- with interest at 6% p.a. from the date of suit till the date of deposit. Point No.2: In view of our answer to point No.1, Point No.3: As per the final order for the following REASONS 10. It is clear from the above said facts of the case that the finding of the trial Court regarding the negligence on the part of defendants 4 to 6 and entitlement of the plaintiff to damages; is confirmed by this Court in R.F.A. No. 637/2004 and 639/2004 by order dated 15.07.2010. The trial Court has awarded damages of Rs.1,10,000/- under the following, heads: Towards pain and sufferings Rs.40,000/- Towards medical expenses Rs.25000/- Towards loss, of future income Rs.25,000/- Towards loss of happiness and loss of amenities Rs.20,000/- Thus, total damages of Rs.1,10,000/- was awarded with interest at 6% p.a. from the date of suit till the date of payment. 11. PW-2, the father of the claimant has deposed in his evidence about the injuries sustained by his son/the plaintiff and also deposed that his son was inpatient from 12.05.1995 to 12.07.1995 and that his left fore arm was amputated and that he has sustained permanent physical disability and has suffered loss of amenities and therefore sought for the damages as sought for in the plaint.
In order to prove the quantum of damages to which the plaintiff is entitled to, the appellant herein has examined PW-3 Dr. P.S. Banakar and he has deposed in his examination-in-chief that he examined plaintiff on 12.05.1995 in the hospital of Dr. A.S. Mudaraddi and he treated him and he has stated that the plaintiff had sustained burn injuries to his left fore arm and other parts of the body. On 27.05.1995 his left fore arm was amputated because of gangarin, that he was inpatient from 12.05.1995 to 12.07.1995 and he had sustained 60% permanent physical disability. He has further deposed that the plaintiff would require amount for further treatment for fixing artificial fore arm which would cost ~31akhs as per Ex.P. 159 and Ex.P. 160. Even if artificial hand is fixed, he cannot attend to his day to day work in the said arm and he would continue to suffer disability and loss of amenity. It is elicited in his cross-examination that by mistake he has stated in his affidavit that the right hand of Santosh is mentioned whereas it was the left hand which was actually injured. He has issued the bills as per Ex.P.167 regarding the operation charges. He has denied the suggestion that the disability will reduce in due course of time. It is clear that the evidence of other witnesses is not necessary as it relates to the liability on the part of the defendants in paying the damages to be awarded to the plaintiff. 12. It is clear on appreciation of evidence of witnesses and also the documentary evidence produced by him namely EX.P.159 and Ex.P.160 as also Ex.P.167 that there is amputation of the left fore arm of the plaintiff who was aged about 11 years at the time of incident due to electrocution and consequent burn injuries. He was inpatient from 12.05.1995 to 12.07.1995. As there is amputation of left fore arm, he has sustained permanent disability and he will also continue to suffer loss of amenity in future and therefore having regard to the above said facts and circumstances, the damages awarded by the trial Court at Rs.1,10,000/- is wholly inadequate. However, so far as the heads of damages is concerned, Rs.40,000/- towards pain and suffering is justified. The award of Rs.25,000/- towards medical expenses cannot be said to be on lower side.
However, so far as the heads of damages is concerned, Rs.40,000/- towards pain and suffering is justified. The award of Rs.25,000/- towards medical expenses cannot be said to be on lower side. However so far as the loss of future income and loss of happiness and amenities is concerned, the compensation of Rs.20,000/- is wholly inadequate. Though the injured was not earning on the date of the incident, it cannot be denied that due to amputation of left fore arm, there will be deduction in his earning capacity when he joins the service and he would not be able to work and earn as a normal person and he bas to suffer the loss of amenities throughout his life. Even if an artificial left fore hand is fixed, the same would leave consequential disability as there will be restriction in the movement as deposed by PW-3 and therefore even if the notional income is taken at Rs.3,000/- p.m., the same comes to Rs.36,000/- per annum and if the disability is taken at 40% and multiplier of 18 is adopted having regard to the age of the injured, the loss of future income would come to Rs.2,59,200/-. The damages awarded towards happiness and loss of amenities which would also include loss of expectation of life at Rs.20,000/- is also on the lower side and the same is enhanced to Rs.30,000/- and therefore the Plaintiff has proved that he is entitled to damages of Rs.3,54,200/- and accordingly we answer the points for determination and pass the following order: Appeal is allowed in part. Damages awarded by the Trial Court is enhanced form Rs.1,10,000/- to Rs.3,54,200/- with interest at 6% p.a. from the date of suit till the date of payment and the judgment and decree passed by the trial Court in all respects remains unaltered. Out of the enhanced compensation, 80% of the damages awarded shall be deposited in any nationalised bank for a period of 6 years in the first instance and balance of 20% shall be distributed to the injured-claimant.