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2014 DIGILAW 236 (KER)

General Manager, B. S. N. L. v. Stella Johny

2014-03-12

A.MUHAMED MUSTAQUE, THOTTATHIL B.RADHAKRISHNAN

body2014
JUDGMENT : THOTTATHIL B. RADHAKRISHNAN, J. 1. This appeal is against a decree for damages on account of a fatal accident. BSNL, which was impleaded as the 6th defendant during the course of the suit from which this appeal arises, is the appellant. 2. Johny had a telephone connection in his shop. He reported some fault in that telephone to the Telecoms department. Defendants 1 to 3 were deputed by the department to look into Johny's complaint. While repairs were being carried out, Johny died of electrocution. His widow and children sued for damages on account of the loss caused by Johny's death. They arrayed the three persons who went to carry out the repairs, the Telecoms department and KSE Board as defendants. Later, BSNL was impleaded as the successor of the Telecoms department, to be saddled with liability, if any, qua that defendant. Considering the documentary and oral evidence on record, the court below granted a decree for damages as against BSNL. Hence this appeal by it. 3. The learned counsel for BSNL argued that no fault could be fastened on BSNL or the persons deputed by it or the Telecoms department to carry out the repair works, particularly when the 11 KV electricity line drawn over and above the telephone line would have led to the incident and even if there was some accidental link between the electricity line and the telephone line during the course of the repair works carried out by defendants 1 to 3, the safety measures of the KSE Board, not having appropriately operated, liability, if any, should be apportioned between KSE Board and BSNL. He also argued that Johny had contributed to the accident by forcing himself into activities, not due and expected of him as he, going by the pleadings in the plaint, was holding one end of a wire. He also criticised the quantification on damages on the issue of application of the multiplier. 4. Supporting the impugned decree, the learned counsel for the plaintiffs argued that the material legal evidence on record cannot be profitably impeached by the defendants. It is also argued that the inter se dispute, if any, between BSNL and KSE Board is no ground to deny the plaintiffs, the decree as granted by the court below. The learned counsel appearing for the KSE Board supported the exoneration of his client by the court of first instance. It is also argued that the inter se dispute, if any, between BSNL and KSE Board is no ground to deny the plaintiffs, the decree as granted by the court below. The learned counsel appearing for the KSE Board supported the exoneration of his client by the court of first instance. 5. Defendants 1 to 3 were either permanent employees or mazdoors under Telecoms department at the relevant time. They were authorised by that department to carry out the repair works. They, therefore, had the authority to prohibit Johny from touching any instrument or line which was being repaired. None of them tendered evidence that Johny did not abide by any restriction or instruction at the instance of any among them as against Johny touching the line or equipments. In fact, their version as witnesses before the court were made admitting the presence of Johny in the scene of occurrence. May be, this is one way of attempting to recuse themselves from the responsibility. But, such evidence by those witnesses rule out any contributory negligence by Johny. 6. The fact that defendants 1 to 3 were in the scene of occurrence only on account of them being deputed by Telecoms department to rectify the defect in the telephone installation in the premises of Johny is not in dispute. If that were so, it is a matter exclusively within the domain of that establishment and those defendants to explain as to how Johny got electrocuted, particularly when they had no case of any other electrical instrument having been dealt with or involved in the relevant incident and point of time. This conclusion as to the liability to prove is conclusive. 7. The aforesaid is also decisive in the light of evidence of PW2, the Electrical Inspector, a statutory authority in terms of the provisions of the Electricity Act, 1910, who had drawn up Ext. X1 report. Section 33 of that Act enjoins, inter-alia, that if any accident occurs in connection with, among other things, the supply or use of energy in or in connection with any part of electric supply lines or other works, such accident shall be brought to the notice of the Electrical Inspector. X1 report. Section 33 of that Act enjoins, inter-alia, that if any accident occurs in connection with, among other things, the supply or use of energy in or in connection with any part of electric supply lines or other works, such accident shall be brought to the notice of the Electrical Inspector. Sub-section 2 of that section provides that the Electrical Inspector has the duty and authority to enquire and report as to the cause of any accident affecting the safety of public, which may have been occasioned by, or in connection with, generation, transmission, supply or use of energy or as to the manner in, and extent to, which the provisions of the Electricity Act and any licence or rules there under, so far as those provisions affect the safety of any person, have been complied with. Sub-section 3 of Section 33 provides that the Electrical Inspector shall have all the powers of a Civil Court under the Code of Civil Procedure for the purposes enumerated in that Sub-section. Therefore, the fact finding enquiry by the Electrical Inspector in terms of statutory provisions noted above is not confined to inspection of the installations of the KSE Board or equipments which are allegedly involved in an electrical accident. It necessarily stretches to provide room to reach at the cause of an accident. This is our enunciation of the laws on this point. On to the evidence, Ext.X1 report by PW2, the Electrical Inspector, is categoric that there was no violation of any of the statutory rules by the KSE Board and the enquiry made by PW2 clearly shows that the incident was a result of acts, omissions or commissions at the hands of defendants 1 to 3 who were acting under the control of the Telecom department. PW2 has, in Ext.X1 report, clearly reported that the accident is attributable to defendants 1 to 3 and hence, to BSNL and not to the KSE Board establishment. 8. PW2 has, in Ext.X1 report, clearly reported that the accident is attributable to defendants 1 to 3 and hence, to BSNL and not to the KSE Board establishment. 8. Though the learned counsel for the BSNL has pointed out the provisions in Rule 91 of the Indian Electricity Rules, 1956, which enjoins that the licensee of electrical energy shall protect the over-head lines with device approved by the Inspector for rendering the line electrically harmless in case it breaks, there is no credible legal evidence on record, whereby BSNL had shown to the satisfaction of the court below that KSE Board had not provided such device to break the circuit in the event of an accident. We may here note that KSE Board did not bother to contest the matter or tender evidence. But, that does not take away the liability of BSNL. Having regard to the nature of the legal evidence on record and the totality of the facts and circumstances; if at all BSNL had any allegation against the KSE Board, it ought to have pleaded and proved it to the satisfaction of the court below. Without that having been done, it is impermissible for the BSNL to plead that any component of the liability be fastened on KSE Board. 9. The proved fact is that Johny wanted his telephone to be repaired; three persons were sent by the Telecoms department for that purpose; Johny died of electrocution while those persons were carrying out the repairs; the transaction happened under the control of the Telecoms department and the three persons deputed by it. The situation speaks for itself. Applying the doctrine of res ipsa loquitur, the fact of the matter remains that the incident occurred while defendants 1 to 3 were carrying out the rectification works under the control of BSNL in the premises of the deceased. Therefore, negligence has to be inferred unless there are indicative evidence to the contrary. If there is a dispute between BSNL and KSE Board as to who is at fault, in the format of the facts of the case in hand, BSNL had to show that electrical energy had flown into the BSNL line as a result of negligence attributable to KSE Board or its officials in maintaining its electric supply lines. If there is a dispute between BSNL and KSE Board as to who is at fault, in the format of the facts of the case in hand, BSNL had to show that electrical energy had flown into the BSNL line as a result of negligence attributable to KSE Board or its officials in maintaining its electric supply lines. The burden of proof in that regard was necessarily on BSNL at the stage where the evidence in the case stood closed. 10. For the aforesaid reasons, we do not find our way to disturb the findings of court below on the question of negligence. 11. As regards the quantum of compensation, the court below has noticed the fact that Johny was 32 years old at the time of his death. The evidence of his widow was accepted to hold that he was able-bodied, was doing business as an agent of Malayala Manorama Publications and used to work in his own estate and was getting monthly income of around Rs.4,500/-. His date of birth stood proved by his SSLC records. The postmortem certificate also showed that the body was moderately built and nourished. DW3, i.e., first defendant, himself had given evidence that he knew that deceased Johny had grocery business, though he did not know the income of the deceased. Taking all these into consideration, the court below concluded that Johny would have an income of Rs.18,000/- and applying 17 as multiplier, the dependency was fixed at Rs.3,06,000/- following Madhuri Rawat and others v. Yogamber Singh Rawat and another (2006 ACJ-45) and Santhi and others v. Awadh Narayan Jaiswal and others (2006 ACJ-1211). The court below awarded Rs.25,000/- each to plaintiffs 1, 2 and 3 on account of loss of consortium; loss of love, affection, care, protection and also on account of mental agony. The court below thus concluded that the total amount of Rs.3,08,000/- is due with interest as granted thereof. The damages awarded by the court below is, in no measure, exorbitant warranting interference in an appeal under Section 96 of the Code of Civil Procedure. 12. For the aforesaid reasons, this appeal fails. In the result, this appeal is dismissed with costs to the plaintiffs.