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2014 DIGILAW 587 (KAR)

Executive Engineer O and M Division-2 v. Pramod

2014-06-13

A.V.CHANDRASHEKARA

body2014
Judgment A.V. Chandrashekara, J. 1. This is an appeal filed by the defendants of an original Suit bearing O.S. No. 11/2010, under Section 100 of C.P.C. challenging the judgment passed against them for recovery of compensation in regard to the death of one Basavaraj due to electrocution. Respondents herein are the plaintiffs No. 1 to 3 in the said suit. Parties will be referred to as plaintiffs and defendants as per their ranking given in the trial Court. 2. Suit filed for the relief of recovery of compensation in regard to the death due to electrocution of Basavaraj was decreed on 23.04.2010 granting compensation of Rs. 4,00,000/- with interest @ 12% per annum. Against the said considered judgment and decree, a Regular Appeal was filed by the defendants before the Court of Prl. Senior Civil Judge at Ranebennur in R.A. No. 52/2010. The said appeal has been dismissed by a considered judgment dated 22.02.2011. But while dismissing the said appeal, learned Judge of the first appellate Court has enhanced the compensation from Rs. 4,00,000/- as awarded by the trial Court to Rs. 6,16,000/- with interest to be payable at the rate of 6% per annum from the date of the suit till its complete realization. Further, the plaintiffs have been directed to pay requisite Court Fee as per law in respect of additional compensation awarded by the First Appellate Court. It is these judgments, which are called in question on various grounds as set out in the appeal memo. 3. Facts leading to the filing of the suit by the plaintiff in O.S. No. 11/2010 are as follows: One Basavaraj was the son of 3rd plaintiff, 2nd plaintiff is the legally wedded wife of said Basavaraj. 1st plaintiff is the minor son of Basavaraj. Plaintiffs were living with Basavaraj and the said Basavaraj was the only earning member in the family. He was an agriculturist and was also earning his income by vending milk. On 26.04.2009 at about 7.30 AM he went on his motorcycle to bring fodder for his bullock cart. When he reached a place near Halemath of Irani village, he came in contact with a live electric wire and as a result of the same he was electrocuted and died on the spot due to high voltage. On 26.04.2009 at about 7.30 AM he went on his motorcycle to bring fodder for his bullock cart. When he reached a place near Halemath of Irani village, he came in contact with a live electric wire and as a result of the same he was electrocuted and died on the spot due to high voltage. According to the plaintiff, the death of Basavaraj took place mainly due to negligence on the part of the defendant in maintaining the electrical wireline. A criminal case was registered filed in Crime No. 12/2009 before the Ranebennur Rural Police Station. The Doctor who conducted the Postmortem on the dead body of the deceased has opined that the death was due to electrocution. A suit was filed claiming compensation of Rs. 4,00,000/- on the ground that defendants were responsible for the death in not properly maintaining the electric wire and transmission of the same. 4. The respondents appeared before the Court and filed detailed written statement. According to them, the death is due to the very negligence of plaintiff-Basavaraj himself and hence, they are liable to pay any compensation. With these pleadings, they had prayed for dismissal of the suit. 5. On the basis of the above pleadings, following issues came to be filed by the trial Court. ISSUES 1. Whether the plaintiff proves that because of the negligent act of the defendants the father of the plaintiff Basavaraj died and defendants are liable to pay damages of Rs. 4,00,000/- with 18% interest till realization? 2. Whether the plaintiffs are entitled for relief? 3. Whether the defendant proves that suit is not maintainable for non-joinder of necessary parties? 4. Whether the defendants prove that they are not liable to pay any damages? 5. What order or decree? 6. 2nd defendant is examined as P.W. 1 and two witnesses have been examined on behalf of plaintiffs. 21 exhibits have been got marked on his behalf. Kantesh is examined as D.W. 1 and no documents have been got marked on behalf of defendants. Ultimately issues No. 1 and 2 have been answered affirmative in part and issues No. 3 and 4 have been answered in the negative. Consequently, suit came to be decreed directing the defendants to pay a sum of Rs. 4,00,000/- as compensation with interest @12% per annum from the date of filing of the suit till realization. Ultimately issues No. 1 and 2 have been answered affirmative in part and issues No. 3 and 4 have been answered in the negative. Consequently, suit came to be decreed directing the defendants to pay a sum of Rs. 4,00,000/- as compensation with interest @12% per annum from the date of filing of the suit till realization. Against the said judgment and decree, an appeal was filed by the defendants before the Court of Prl. Senior Civil Judge at Ranebennur in R.A. No. 52/2010 under Section 96 of C.P.C. Several grounds have been urged in the appeal memo. 7. After hearing the learned counsel appearing for the parties and after perusing the records, learned Judge of the first Appellate Court has dismissed the appeal. But while dismissing the appeal, the learned Judge has enhanced the compensation of the trial Court from Rs. 4,00,000/- to Rs. 6,16,000/- and has directed the plaintiff to pay requisite Court Fee on the additional compensation awarded by the first Appellate Court. Hence, these judgments are called in question before this Court. Several grounds have been urged in the appeal memo and following are the substantial questions of law proposed in the appeal memo. 1. Whether suo-moto enhancement of damages by the First Appellate Court is within jurisdiction and justifiable? 2. Whether the First Appellate Court having dismissed the appeal is right in law in enhancing the damages though no counter claim is filed and no Court Fee paid? 3. Whether the First Appellate Court was right in law in dealing with the suit for damages as though it was a motor vehicle claim petition? 4. Whether the trial Court is justified in decreeing the suit though there is no negligence on the part of the appellants? 8. Learned counsel for the appellant has argued at length contending that the First Appellate Court could not have enhanced the compensation from Rs. 4,00,000/- to Rs. 6,16,000/- more particularly, when plaintiffs had neither filed an appeal nor cross objection under Order 41 Rule 22 of C.P.C. It is contended that the judgment of the first Appellate Court does not disclose the power under which the compensation has been enhanced. It is further argued that the principles applicable for assessing compensation in motor accident claims cannot be made applicable to assess the compensation in a case like this which is based on tortious liability. It is further argued that the principles applicable for assessing compensation in motor accident claims cannot be made applicable to assess the compensation in a case like this which is based on tortious liability. Perused the judgments of both the Courts. 9. The fact that Basavaraj died due to electrocution is not in dispute. The judgment of the first Appellate Court would disclose that Basavaraj was an agriculturist and was vending milk since he was rearing cows. The judgment of the trial Court would disclose that Basavaraj had gone near Halemath of Irani village on his motor vehicle at 7.30 a.m. on 26.04.2009 and came into contact with a live electric wire. He died there on the spot because of high voltage. Of course, P.W. 1 was not present. It is in this regard, P.Ws. 2 an 3 have been examined and the factum of death of Basavaraj due to electrocution is forthcoming from the opinion of the Doctor who conducted the postmortem. Apart from, police have registered case in Crime No. 12/2009 for negligence in maintaining the electric line by the defendant. 10. The principles of strict liability as enunciated in Reylands Vs. Fletcher has been made applicable in the present case. The responsibility of the persons in properly maintaining the transmission line is very heavy. The fact that Basavaraj died as a result of electrocution is not in dispute. The said electrocution was due to falling of the live electric wire on his head at about 7.30 a.m. on the fateful day. Though the defendants have taken up a stand in the written statement that Basavaraj went near the electric pole and attempted to climb the same and therefore came in contact with the same is not probabilised in any manner. The learned Judge of the trial Court has assessed the entire evidence in regard to the cause of death on the touchstone of intrinsic probabilities and the same has been upheld by the first Appellate Court. Hence, this Court does not find any reason to interfere with the factual finding in regard to the negligence of the defendants in managing the electric wire line. The Electricity Board cannot absolve liability on grounds that accident took place due to illegal act on part of victim in trying to draw power from mainline unauthorisedly when once the death is to be in the context of functioning of Board. The Electricity Board cannot absolve liability on grounds that accident took place due to illegal act on part of victim in trying to draw power from mainline unauthorisedly when once the death is to be in the context of functioning of Board. Principle of strict liability applies and Board is bound to compensate the claimants is the law reiterated by this Court in the case of Borawwa W/o. Mallappa Guggari and Anr. V. Karnataka Power Transmission Corporation Ltd., and Ors as reported in 2007 (2) AIR Kar. R 6. 11. Learned counsel for the appellant has strenuously argued about the enhancement of compensation by the First Appellate Court in spite of dismissing the appeal. What is argued is that the First Appellate Court has not expressed any reasons as to the power under which it has enhanced the compensation. It is to be seen that the trial Court has not made any specific assessment as to why it has granted Rs. 4,00,000/- only as compensation. Admittedly, the approximate age of the deceased was 35 years at the time of incident. The fact that he was an agriculturist is not seriously disputed. The fact that he was rearing few cows and was earning money by vending milk to the milk Society is borne out of documentary evidence. What exactly was the income of deceased Basavaraj per month is not forthcoming. In a case like this, the Court will have to assess the same on the basis of broad preponderance of probabilities. 12. Admittedly, Basavaraj had a motor cycle of his own. The approximate value of the motor cycle is from Rs. 40,000/- to Rs. 50,000/-. Unless he was financially sound, he could not have owned a motor vehicle. The fact that Basavaraj owned certain lands having inherited from his father is also forthcoming from record of rights marked as Exs. P18 to 20. Ex. P21 is a certificate issued by Venkateshwara Milk dairy stating that Basavaraj was supplying milk to their Society on an average of 10 liters in the morning and 8 liters in the evening everyday. Taking into consideration the over all circumstances of the case, the First Appellate Court has come to the conclusion that the probable income of the deceased was Rs. 4,000/- per month. In fact this exercise should have been made by the trial Court. Taking into consideration the over all circumstances of the case, the First Appellate Court has come to the conclusion that the probable income of the deceased was Rs. 4,000/- per month. In fact this exercise should have been made by the trial Court. In the light of the trial Court having not made any such exercise to assess the compensation and compensation being awarded as global compensation, the learned Judge of the First Appellate Court has assessed the approximate of income. 13. The learned Judge of the trial Court has relied upon a decision of Madhya Pradesh High Court, in which, Rs. 4,34,000/- has been awarded as compensation arising out of the death of a person due to electrocution. What were the facts of the case dealt with by the Madhya Pradesh do not find place in the judgment of the trial Court. Learned Judge of the First Appellate Court has applied the principles applicable to assessment of compensation in Motor Accident Claims Cases relating to death due to negligence. The principles enunciated by the Sarla Varma Vs. Delhi Transport Corporation reported in (2009) 6 SCC 121 have been relied upon. The multiplier applicable to a person aged about 35 years is 16' and that has been made applicable in the present case. Probable income of the deceased is assessed at Rs. 4,000/- per month and the same is neither exorbitant nor excessive. A sum of Rs. 10,000/- has been awarded towards consortium and a sum of Rs. 10,000/- is awarded towards funeral expenses. Under the head of loss of love and affection, Rs. 20,000/- has been awarded since 1st plaintiff has lost his father at a very tender age. These amounts which has been awarded by the First Appellate Court under the conventional heads cannot be found fault with. In this view of the matter, the First Appellate Court is justified in assessing the compensation at Rs. 6,16,000/- after deducting Rs. 1,000/- per month towards the personal expenses of the deceased. 14. Insofar as the application of principles relating to the assessment of compensation in motor accident claims cases, to the case on hand is concerned, it useful to refer to a Division Bench Decision of the High Court of Madras rendered in the case of S. Dhanaveni and others V. State of Tamil Nadu and others reported in 1999 ACJ 728 is relevant. In respect of death arising out of electrocution due to the negligence of the Electricity Board, dependency was assessed at Rs. 1,500/- per month by adopting multiplier 12'. Even loss of consortium and loss of estate have been awarded in the said case. Even in the case of Borawwa w/o. Mallappa Guggari and Anr. Vs. Karnataka Power Transmission Corporation Ltd., reported in 2007 (2) AIR(Kar)(R) 6 referred to supra, same principles are applied to assess the compensation in respect of death due to electrocution. Hence, the method adopted by the learned First Appellate Court in assessing the compensation based on the principles applicable to the assessment of compensation in motor accident cannot be found fault with. 15. The crucial point that arises in this case is as to whether the First Appellate Court is really justified in enhancing compensation from Rs. 4,00,000/- to Rs. 6,16,000/- without there being any regular appeal under Section 96 of C.P.C. or cross objection under Order 41 Rule 22 of C.P.C. As rightly pointed by the learned Counsel for the appellant, the learned Judge of the First Appellate Court has not made any discussion about the power under which such compensation is enhanced in spite of appeal being dismissed. But, we cannot forget the solitary provision found under Order 41 Rule 33 of C.P.C. 33. Power of Court of Appeal The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection (and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees): 16. In the decision of Pannalal Vs. State of Bombay reported in AIR 1963 SC 1516 the Hon'ble Supreme Court has exhaustively dealt with Rule 33 of Order 41 of C.P.C. and the relevant discussion found in paragraphs 12 and 14 are as follows: 12. In the decision of Pannalal Vs. State of Bombay reported in AIR 1963 SC 1516 the Hon'ble Supreme Court has exhaustively dealt with Rule 33 of Order 41 of C.P.C. and the relevant discussion found in paragraphs 12 and 14 are as follows: 12. Even a bare reading of Order 41, rule 33 is sufficient to convince any one that the wide wording, was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondent as "the case may require." In the present case, if there was no impediment in law the High Court could therefore, though allowing the appeal of the State by dismissing the plaintiffs suits against it, give the plaintiff a decree against any or all the other defendants who were parties to the appeal as respondents. While the very words of the section make this position abundantly clear the illustration puts the position beyond argument. 14. The whole argument is based on the assumption that the plaintiff could by filing a cross-objection under O. 41, R. 22, Civil Procedure Code, have challenged the Trial Court's decree in so far as it dismissed the suits against the defendants other than the State. We are not, at present advised, prepared to agree that if a party who could have filed a cross-objection under O. 41 R. 22 of the Code of Civil procedure has not done so, the appeal Court can under no circumstances give him relief under the provisions of O. 41, R. 33 of the Code. It is, however, not necessary for us to discuss the question further as, in our opinion, the assumption made by the High Court that the plaintiff could have filed a cross-objection is not justified. 17. Similarly in the case of Giani Ram Vs. Ramjilal reported in AIR 1969 SC 1144 , the Hon'ble Supreme Court held that even if the respondent did not file any appeal from the decree of the trial Court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge. 18. Ramjilal reported in AIR 1969 SC 1144 , the Hon'ble Supreme Court held that even if the respondent did not file any appeal from the decree of the trial Court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge. 18. A Division Bench in the case of Patel Chandrappa and another v. Hanumanthappa and others reported in 1990 (3) KLJ 264 has held that it is the duty of the appellate Court to grant relief to the parties if in law they are entitled to a share in the suit schedule property. In the case of Delhi Electric Supply Undertaking v. Basanti Devi reported in AIR 2000 SC 43 , the Hon'ble Supreme Court, referring to the earlier decision in Mahant Dhangir Vs. Madan Mohan reported in AIR 1988 SC 54 , has held that power under Rule 33 empowers a Civil Court to determine any question not only between the appellant and respondent, but also between the respondent and co-respondents. The appellate Court can pass any decree or order, which ought to have been passed in the circumstances of the case. It is further clarified that the words 'as the case may require', used in Rule 33 order 41 of C.P.C. have been put in wide to enable the appellate Court to pass any decree in order to meet the ends of justice. The only caveat added in the said judgment is that the parties before the lower Appellate Court must be parties before the Appellate Court and that question raised must properly arise out of the judgment of the lower Court. 19. In the decision of Oriental Insurance Company Ltd., Vs. Akkayyamma reported in ILR 2009 KAR 24, a Division Bench of this Court has reiterated that the power of the appellate Court, though discretionary, can be exercised in order to render complete justice between the parties. As per the facts of the said case in Akkayyamma's case referred to above, the motor accident claims Tribunal had committed grave error while computing loss of dependency by applying improper method and that was noticed by the Hon'ble High Court in an appeal filed by the Insurance Company. In order to do complete justice to the parties, provisions of Rule 33 of Order 41 have been invoked and a compensation was enhanced from Rs. 7,50,000/- to Rs. In order to do complete justice to the parties, provisions of Rule 33 of Order 41 have been invoked and a compensation was enhanced from Rs. 7,50,000/- to Rs. 10,02,000/-. 20. As rightly pointed out by the learned advocate appearing for the appellant, the learned Judge of the First Appellate Court has not made any reference about the provisions of Rule 33 of Order 41 of C.P.C. whether it is advisable to set aside the judgment passed by the First Appellate Court on the ground of non mentioning the provision of Order 41 Rule 33 of C.P.C. in the judgment of the First Appellate Court is the question. Taking into consideration that a hale and healthy married man died due to electrocution leaving behind him his wife who was hardly aged about 25 years and a son aged about 4 years and mother aged about 55 years, it can be said that the learned Judge has impliedly invoked the provisions of Rule 33 of Order 41 of C.P.C. to do justice by awarding just compensation. 21. Of course the learned Judge has assessed the compensation by applying the principles regarding assessment of compensation in a motor accident claims cases. Taking into consideration that the deceased was hale and healthy and that three persons were dependent upon him and that he was looking after his family by doing agricultural work and vending milk by rearing cows of his own, it can be said that the compensation assessed by the First Appellate Court is in fact on a little lower side. Suffice to state that Judge of the First Appellate Court has taken into consideration all the relevant factors into consideration and has assessed the compensation on the basis of broad preponderance of probabilities. It is not as though the First Appellate Court has no power to do justice between the parties. It is to be observed here that learned Judge has done the right thing by enhancing the compensation though he has not made any specific reference the power vested him under Order 33 Rule 41 of C.P.C. It is to be seen that learned Judge of the First Appellate Court has reduced the interest to be payable from 12% to 6% per annum which is normally awarded in Motor Accident Claims Tribunal relating to death due to negligence. 22. 22. In this view of the matter, this Court does not find any substantial questions of law proposed in the appeal memo to be relevant for consideration. Even otherwise, no substantial question of law arises before this Court for consideration. In this view of the matter, the appeal is liable to be dismissed. 23. A little modification is required insofar as the assessment of compensation is concerned. Though 3rd defendant is a class I heir and entitled for 1/3rd share along with her grand son and daughter-in-law, this Court cannot forget the reality that plaintiffs No. 1 and 2 have a long life to go and therefore, more compensation is to be apportioned in favour of plaintiffs Nos. 1 and 2 and less compensation to 3rd plaintiff. 24. In this view of the matter, a sum of Rs. 50,000/- is apportioned in favour of 3rd defendant. Remaining amount is equally apportioned to the 1st plaintiff and 2nd plaintiff and share of the 1st plaintiff who is a minor will have to be kept in any Nationalised Bank till he attains the age of majority with an liberty for the 2nd plaintiff to draw accrued interest from time to time for his benefit. Insofar as the compensation awarded to the 2nd plaintiff who is the wife of deceased a sum of Rs. 75,000/- will have to be released and the remaining amount will have to be kept in any Nationalised Bank for a period of 10 years with a liberty to draw interest from time to time without any encumbrance. There is no order as to costs.