JUDGMENT : MARY JOSEPH, J. 1. The appeal on hand arose from judgment dated 30.11.2000 of Subordinate Judge's Court, Thodupuzha (for short ‘the trial court’) in O.S. No. 112 of 1997. O.S. No. 112 of 1997 was a suit filed by the appellant as plaintiffs claiming damages for the death of Mr. Baby due to electrocution at Vazhithala. The trial court dismissed the suit and directed the parties to suffer their respective costs. The sole defendant in the suit, the Kerala State Electricity Board was also directed to take a lenient view to grant some ex-gratia payment to the plaintiffs in the matter. Aggrieved by the denial of compensation, the 2nd plaintiff, who is the son of the deceased alone is now before this Court in the appeal on hand. The wife of the deceased did not join her son to file appeal against the judgment of the trial court declining compensation and therefore was arrayed as 2nd respondent in the appeal. The appellant is represented by Sri. Manoj R. Nair, the 1st respondent, the Kerala State Electricity Board, by Sri. B. Pramod, the Standing Counsel and the 2nd respondent, by Sri. P.K. Padmakumar. The respective counsel for the appellant and the 1st respondent were heard. 2. The learned counsel for the appellant has contended that though the principle of Res Ipsa Locquitor is applicable in the case on hand, the trial court failed to consider that. According to him, the evidence adduced by the plaintiffs have been appreciated by the trial court in it's wrong perspective and thereby, the judgment under challenge was passed. The learned counsel has sought for a reappraisal of the evidence adduced by the plaintiffs in the case on hand in the light of the dictums laid down by the Division Bench of this Court in Vava K.K. and Others vs. Kerala State Electricity Board and Others, 2014 (2) KHC 372 : 2014 (2) KLT 499 , E.V. Joseph vs. Kerala State Electricity Board and Another, 2013 (2) KLJ 584 and Varghese vs. Kerala State Electricity Board, 2013 (2) KLT 67 . 3. On the contrary, the learned Standing Counsel for the 1st respondent has contended that the trial court cannot be said to be at fault in it's appreciation of the evidence on record and exonerating the K.S.E.B from liability to compensate the appellant. 3. On the contrary, the learned Standing Counsel for the 1st respondent has contended that the trial court cannot be said to be at fault in it's appreciation of the evidence on record and exonerating the K.S.E.B from liability to compensate the appellant. The learned counsel has also drawn the attention of this Court to the relevant aspects brought in evidence supportive of his contention, the relevant provisions of the Indian Electricity Rules, 1956 (for short ‘the Rules’) (as amended upto 25th November, 2000) and the dictum in Santha and Others vs. Secretary and Others, 2014 (1) KHC 723 : 2014 (1) KLT 1038 to rest his contention that K.S.E.B cannot be mulcted with responsibility for the incident and liability to pay compensation. 4. Before adverting to the rival contentions raised from the bar, this Court finds it fundamental to have an understanding of the facts of the case that led to the claim for compensation and therefore is summarised hereunder. For the sake of convenience, the parties to this appeal are referred to hereinafter as the plaintiffs and the defendant. 09.05.1996 was the fatal day on which the husband of the 1st plaintiff, who is also the father of the 2nd plaintiff succumbed to death following burn injuries sustained due to electrocution from 11 K.V line and fatal injury on his head, when thrown down due to the electric shock. Deceased was working then under a contractor named Mr. Kunjachan, who was engaged in the construction of a culvert in Vazhithala-Koothattukulam old road. While he was tying iron rods together for the purpose of concreting slabs, an iron rod lifted by him came in contact with the 11 K.V. line passing overhead and he was thrown down. His head hit on a slab lying at the work site and sustained serious head injury. He was taken to Mary Matha Hospital, Vazhithala and therefrom transported to District Hospital, Karikode for better management. During the course of treatment there, he succumbed to the fatal injuries sustained by him. 5. It is averred in the plaint that the 11 K.V. line is a high tension electric line drawn overhead the area, not in conformity to the rules existed then. The required height and distance were not maintained by K.S.E.B while drawing the line. During the course of treatment there, he succumbed to the fatal injuries sustained by him. 5. It is averred in the plaint that the 11 K.V. line is a high tension electric line drawn overhead the area, not in conformity to the rules existed then. The required height and distance were not maintained by K.S.E.B while drawing the line. Therefore, the incident was averred as occurred due to negligent drawing of the high tension electric line by the K.S.E.B. According to the plaintiffs if due care and reasonable caution had been exercised, the incident in question could have been averted. The victim was aged 35 years at the relevant time, healthy and had engagements daily with Rs. 175/- as daily wages. The plaintiffs were depending on his earnings for their livelihood and due to his death, their entire dreams have been shattered and they were put to difficulties. The treatment involved huge expenditure. Expenses had also been incurred to meet the funeral and incidental expenses. The pain suffered by the deceased on account of the injuries sustained was also high. The wife of the deceased, who is the 1st plaintiff was aged 31 years and the 2nd plaintiff, the only son, was aged 12 years at the relevant time of the incident. The death of the victim has caused loss of love and affection and mental pain and shock to them. Accordingly, the suit was filed seeking for a compensation of Rs. 2,50,000/- from the defendants. Interest at the rate of 12% per annum from the date of death of the victim till the date of realisation of the compensation was also sought by them. 6. Accordingly, the suit was filed seeking for a compensation of Rs. 2,50,000/- from the defendants. Interest at the rate of 12% per annum from the date of death of the victim till the date of realisation of the compensation was also sought by them. 6. The defendant in his written statement, denied the averments in the plaint in toto and contended that the deceased was a workman engaged by a contractor to do the construction work of a culvert at Vazhithala-Koothattukulam old road, that the incident was occurred during the course of his employment as such, that the proper recourse for the plaintiffs to get compensation is to prefer an application before the Employees' Compensation Court under the provisions of the Employees' Compensation Act, 1923, that the contractor under whom the deceased was engaged for the work then and State of Kerala being necessary parties to the suit, for their non-juncture in the suit, the suit is liable to be defeated for non-jointer of necessary parties, that the results of enquiry conducted by K.S.E.B informs that the accident was occurred while being engaged in the construction work of culvert, that the work was done for the Block Development Office, Thodupuzha, a Department of Government, that the victim was electrocuted not due to any fault of K.S.E.B but due to coming into contact of an iron rod lifted negligently by him, with the 11 K.V line lying overhead and that the 11 K.V line was originally drawn at a height as directed by the Indian Electricity Rules (for short, 'the Rules') to be maintained from the road. The incident was occurred at a paddy field and in view of the construction work of culvert undertaken there, the level of the area there, was raised, thereby the clearance of the line with the road was reduced, that no information was given from the Block Development Office functioning under the Government about the construction work carried on there for K.S.E.B to be vigilant about the reduction of the clearance level between the road and the electric line due to the raising of the ground level there, that the incident was occurred due to lack of vigilance and supervision on the part of the authorities who had entrusted the construction work of the culvert and that for the reasons, K.S.E.B cannot be mulcted with liability to compensate the plaintiffs for the death of the victim. The claims of plaintiffs regarding the age, daily wages and the quantum of compensation were also disputed in the written statement. Based on the contentions of the rival parties to the litigation, the trial court has raised the following issues:- “1. Whether the plaintiffs are entitled to get damages from defendants as prayed for? 2. What is the quantum of damages? 3. Reliefs and costs?” 7. To facilitate adjudication of the above issues, the parties to the litigation had adduced evidence. The plaintiffs had examined PW-s 1 to 4 and got Exts.A1 to A4 and Ext.X1 marked in evidence. On the side of the defendant, the Assistant Engineer attached to Electrical Major Section, Thodupuzha tendered evidence as DW-1 and Exts.D1 and D2 were marked. The trial court appreciated the above evidence and answered the issues in the negative against the plaintiffs and thus declined to pass a decree in their favour. Accordingly, the 2nd plaintiff is now before this Court in the captioned appeal. 8. In the backdrop of the contentions raised by the respective counsel for the plaintiffs and the defendant before this Court, it is incumbent upon this Court to find out from the evidence on record, whether the trial court was erred while appreciating the evidence against the plaintiffs and declining to pass the decree. To be convinced of, this Court has examined the oral evidence tendered by the witnesses of the plaintiffs. PW-1 is none other than the 1st plaintiff, the wife of the deceased. To be convinced of, this Court has examined the oral evidence tendered by the witnesses of the plaintiffs. PW-1 is none other than the 1st plaintiff, the wife of the deceased. In the proof affidavit filed before the trial court, in lieu of chief examination, she has sworn strictly in tune with her pleadings in the plaint. She has deposed in categoric terms that the 11 K.V line at the place of incident was lying overhead maintaining only a distance lower than the required distance as prescribed by the Rules and her husband was electrocuted when the iron rod lifted by him struck against it. According to her the 11 K.V line was maintaining only a clearance of 4.36 meters from the road level and while being thrown down after electrocution, his head hit against the concrete slab lying on the road and sustained fatal injury there. He was transported to hospital and while undergoing treatment at Taluk Hospital, Thodupuzha, he succumbed to the injuries. Though she was not an ocular witness of the incident, she has categorically stated that the rod lifted by her husband has only a length of 4.36 meters. She has also deposed precisely about the age of her husband, the daily wage earned by him, his life expectancy and expenses incurred by her for transportation and treatment. During cross examination, she has stated that she had been to the place where construction work of the culvert was carried out, but pleaded to have lack of knowledge about keeping slab for concreting at a higher level. She has also gone to the extent of stating that the work undertaken by her husband has three stages and the incident was occurred when it reached the third stage. She has also stated that apart from her husband, none else had sustained electrocution in similar incidents. According to her, she has no acquaintance about permission obtained by the contractor of her husband from K.S.E.B prior to commencement of the work. She has denied categorically the negligence of the K.S.E.B as well as the contractor. But it is pertinent to note that she failed to adduce any documentary evidence to establish her claims regarding the age, daily wages and other aspects relevant for an assessment of compensation. 9. PW-2 is none other than the Electrical Inspector of Idukki. She has denied categorically the negligence of the K.S.E.B as well as the contractor. But it is pertinent to note that she failed to adduce any documentary evidence to establish her claims regarding the age, daily wages and other aspects relevant for an assessment of compensation. 9. PW-2 is none other than the Electrical Inspector of Idukki. Pursuant to a direction issued by the trial court, the file containing the reports of enquiry conducted at the instance of K.S.E.B relating to the incident was produced by him and got marked in evidence as Ext.X1. A report which states about the cause of the incident exposed in the enquiry held following the incident is incorporated in Ext.X1. According to PW-2, as reported in Ext.X1 the 11 K.V line was passing overhead the place of incident maintaining only a clearance of approximately 4.6 meters above the road level. According to him, as per the Rules and regulations of K.S.E.B, the 11 K.V line must maintain a clearance of 6.09 meters from the ground level. It was submitted by him on the basis of the report that though the 11 K.V line was lying at a low altitude at the place of incident, steps have not been taken by K.S.E.B to maintain the statutory clearance. During cross examination, he proceeded to state that at the relevant time when the construction work of the culvert was commenced, the required clearance level was maintained by the K.S.EB and only when the road level was raised in the construction work clearance distance was reduced. He has also stated that without obtaining prior permission from K.S.E.B, the construction work shall not be carried out by contractors. According to him, there is total want of evidence in the case on hand to show that prior permission was obtained either by the contractor or by the local authority (Block Development Office) on behalf of whom the work was performed there. He has stated on the basis of Ext.X1 that victim was electrocuted due to negligent lifting of an iron rod. He was made to clarify in re-examination by the plaintiffs that the officials of the K.S.EB are supposed to conduct periodical inspections on electric lines drawn by them, once in three months. 10. PW-3 is the P.W.D. contractor under whom the victim was engaged for the construction work of culvert at the relevant time. He was made to clarify in re-examination by the plaintiffs that the officials of the K.S.EB are supposed to conduct periodical inspections on electric lines drawn by them, once in three months. 10. PW-3 is the P.W.D. contractor under whom the victim was engaged for the construction work of culvert at the relevant time. According to him, the construction work of culvert in Vazhithala- Koothattukulam road was undertaken by him and on 09.05.1996 while the work is being carried out, a workman under him was electrocuted and died. The work undertaken was widening of the old culvert, which was situated in the road since 25 years. According to him, the 11 K.V. line was passing overhead the said culvert and was lying at a clearance lower than that was required to be maintained by the statute. In cross examination, he also went to the extent of stating that even at the time when the work of the culvert was commenced the 11 K.V line was lying there without the statutory clearance level being maintained, but his version lost credence in view of his statement following that he had never been to the site, except on the date of incident. Credence is lost when he continued to state that he had been to the place of work prior to the commencement of the work and failed to notice the level of 11 K.V line then. Nevertheless, he denied when confronted by the opposite side that the height of 11 K.V. line was reduced due to raising of the level of the road during construction work of culvert. Admittedly, the construction work of culvert was entrusted to him from Block Development Office, Thodupuzha. The payment of daily wage of Rs. 175/- to the victim for his engagement in the construction work is admitted by him but denied to have maintained any materials to establish that. 11. PW-4 is none other than a co-worker of the victim. According to him, the victim was engaged alongwith him on the fateful day for the concrete work of the slab. According to him, while the work is being done, the victim got slipped on rising up and thereby the iron rod in his hand came in contact with the 11 K.V. line, lying overhead. In the impact, he was thrown down on a concrete slab lying there. According to him, while the work is being done, the victim got slipped on rising up and thereby the iron rod in his hand came in contact with the 11 K.V. line, lying overhead. In the impact, he was thrown down on a concrete slab lying there. He was rushed to hospital, but succumbed to injuries during the course of treatment. According to him, the 11 K.V. line has maintained only short clearance from the road level and the iron rod lifted by the victim was 10 feet long. During cross examination, he has stated that the level of the culvert has been raised during the construction work and iron rods were placed over that for concreting slabs. He has reiterated in cross examination that the victim got slipped while rising up with the iron rod and thus it hit on the 11 K.V line. 12. An enquiry into the documentary evidence on record is also made by this Court. Ext.A1 is the First Information Report, Ext.A2 is the post-mortem certificate, Ext.A3 is the scene mahazar and Ext.A4 is the Final Report. Ext.X1 is the file relating to the incident maintained by K.S.E.B and a report dated 13.11.2000 of the Electrical Inspector is incorporated, therein. 13. It is pertinent to look into the evidence of the defence to find out in what manner they had succeeded in controverting the claim of the plaintiff. As already stated two witnesses were examined as DW1 and DW2. DW1 is the Assistant Engineer who was associated with Electrical Major Section, Thodupuzha, in the year 1996. According to him, the 11 K.V line passing through Vazhithala was within their jurisdiction. He was put to notice of the incident and thereupon went to the spot to prepare the site mahazar marked in the case on hand as Ext.B1. According to him, the incident was occurred at the site where construction work of culvert was going on and the work undertaken was widening and lengthening of the already existing culvert. As part of the work, the length and breadth of the culvert were increased respectively to 3.8 and 3.3 meters. According to him, the 11 K.V line was drawn overhead the place of incident in the year 1980 maintaining a clearance of 8 meters from the ground level and that was maintained till the commencement of the work. As part of the work, the length and breadth of the culvert were increased respectively to 3.8 and 3.3 meters. According to him, the 11 K.V line was drawn overhead the place of incident in the year 1980 maintaining a clearance of 8 meters from the ground level and that was maintained till the commencement of the work. With the progress of the construction work there, the level of the road has risen up and thereby clearance level maintained was lowered. According to him, the culvert was constructed at a height of 2.7 meters from the road level and the slab was placed over that. He had also spoken that prior permission from K.S.E.B was not obtained for the work and it was understood that the rod when lifted came into contact with the 11 KV line. According to him, the victim as well as the contractors and officials of K.S.E.B were negligent and can be taken to have contributed to the incident and therefore, the entire liability cannot be mulcted with K.S.E.B. It is evidenced from Ext.B2 got marked in evidence by the defendant that the 11 K.V line was insured as contemplated under Rule 44(1) of the Rules. During cross examination, he has stated about his presence at the relevant time of inspection of the spot by the Electrical Inspector and preparation of the report. When he was confronted with the statement in Ext.X1 that due to raising of level of the road, the claim of the plaintiff was defeated, he has gone to the extent of stating that the report was not seen by him. He did not also re-collect any measurement of clearance level done by the Electrical Inspector. According to him, it is incumbent on the K.S.E.B to conduct inspection and maintenance of the lines drawn once in three months and it was also done. He denied the suggestion that for about 2 years, statutory clearance was not done. The suggestion that the accident was occurred due to his negligence, was also denied by him. Ext.B1 is the site mahazar and Ext.B2 is the report of incident. Ext.B1 was prepared by Assistant Engineer of Electrical Major Section, Thodupuzha (DW1). He denied the suggestion that for about 2 years, statutory clearance was not done. The suggestion that the accident was occurred due to his negligence, was also denied by him. Ext.B1 is the site mahazar and Ext.B2 is the report of incident. Ext.B1 was prepared by Assistant Engineer of Electrical Major Section, Thodupuzha (DW1). It is reported in Ext.B1 that prior to the commencement of the construction work of culvert, the 11 K.V line, which was passing overhead the spot of incident had maintained a clearance of 8 meters from the road and that was lowered due to raising of the level of the road during construction work. The Assistant Engineer has also reported after examination of the iron rod about the sparking marks noted by him on both ends. He has also verified the tripping records of 11 K.V line passing through the spot and reported that tripping was not occurred there at any point of time. He has also noted from Ext.B1 that apart from the incident which culminated in the death of the victim, other similar incidents were not reported therefrom. Ext.B2 is the report of incident prepared by the Assistant Engineer, Electrical Major Section, Thodupuzha under Rule 44A of the Rules. It was reported that the victim had sustained injury on his head and low back. The death of the victim was reported as suspected due to electric shock while working. 14. Ext.X1, as already stated is the file maintained by K.S.E.B in relation to the incident. It incorporates a detailed report prepared by the Electrical Inspector, Idukki, where the 11 K.V line was reported as passing at a height of 4.6 meters from the slab wherein the iron rods were spread for concrete work. It is also reported that the incident was occurred while an iron rod having a length of 10 feet (approximately two meters) was lifted by the victim for the purpose of spreading over the slab. The report concluded by stating that due to the head injuries sustained by him in the fall after electrocution, he was transported to the hospital and there he succumbed to injuries. The victim was also stated negligent while lifting the iron rod and thus responsible for causing the incident. The report concluded by stating that due to the head injuries sustained by him in the fall after electrocution, he was transported to the hospital and there he succumbed to injuries. The victim was also stated negligent while lifting the iron rod and thus responsible for causing the incident. The statement of the officials of K.S.E.B that originally when the 11 K.V line was drawn, the height as directed by the Rules was maintained and in view of reduction in height due to raising of the level of road that the incident was occurred was reported to have merits. According to him, despite the reduction in clearance, the officials of K.S.E.B has failed to do anything to restore the statutory clearance level. He has stated categorically in the context that Rules 77 and 82(1) of the Rules have been violated by K.S.E.B and thereby the incident was caused. 15. From the above discussion about the evidence on hand, it is found that PW-4 alone had the occasion to witness the incident. As already stated, PW-1 is the wife of the victim who was not available at the place of occurrence when her husband was electrocuted. PW-2 is the Electrical Inspector, who visited the spot after the incident only to prepare a report about it after holding an enquiry. PW-3, the Contractor, has also no claim that he was available at the spot of incident. DW1 and DW2 were also person not available at the spot at the time of incident and witness the same. Therefore, apart from PW-4, other witnesses have only hearsay about the incident. 16. In the above context, the evidence of PW-4 requires more scrutiny. According to him, Mr. Baby slipped while lifting an iron rod and fell on a slab and that impacted hitting of his head there and sustaining injuries. According to him, the iron rods were placed over the culvert, the height of which was raised in the construction work. Therefore, it has come out that while lifting the iron rod, the victim got slipped and fell and in the course, the iron rod carried by him caused to hit on the 11 K.V line. According to PW-4, the iron rod was having a length of 10 feet. Ext.A2 is the certificate of postmortem examination, marked in evidence by the plaintiffs. The cause of death is reported therein as electrocution. According to PW-4, the iron rod was having a length of 10 feet. Ext.A2 is the certificate of postmortem examination, marked in evidence by the plaintiffs. The cause of death is reported therein as electrocution. Therefore, on the basis of the oral evidence of PW-4 and Ext.A2, it can be stated without a tinge of doubt that the death of the victim was resulted from electrocution, caused while the victim was engaged in the construction work of culvert at Vazhithala-Koothattukulam old road. 17. Then the question comes whether the incident that caused the death of the victim was resulted due to negligence of K.S.E.B, the 1st respondent herein. PW-1, the wife of the victim, though not available at the spot at the relevant time has stated that the 11 K.V line was drawn only after maintaining a clearance of 4.36 meters from the road level and the incident which caused the death of her husband was occurred due to fault of K.S.E.B to maintain the statutory clearance level or in other words, due to negligence of K.S.E.B. PW-4 did not say anything about negligence of K.S.E.B. Even then, PW-3, the P.W.D Contractor, under whom the victim was employed at the relevant time has spoken about negligence of K.S.E.B as the cause of the incident. He has visited the place only after the incident and has stated that the lie of the 11 K.V line was at a lower level. He had no acquaintance about lie of the 11 K.V line prior to the commencement of the construction work by him. Therefore, evidence of PW-3 will not help the plaintiffs in any manner to establish that K.S.E.B was negligent. PW-2 is the Electrical Inspector of Idukki. Ext.X1 Report was prepared by him following a direction issued from the court. He has gone to the extent of stating that the prior permission of K.S.E.B is required for carrying out contract work of the nature and that permission was not obtained either by the Block Development Officer or by the Contractor (PW-3). He has reported in Ext.X1 that the incident which caused the death of the victim was occurred due to lifting up of an iron rod during the course of concrete work in a careless and negligent manner. He has reported in Ext.X1 that the incident which caused the death of the victim was occurred due to lifting up of an iron rod during the course of concrete work in a careless and negligent manner. It was also got clarified by K.S.E.B from him during cross examination that it's officials are obliged to conduct periodical inspection of 11 K.V line, drawn by them, once in three months. It is pertinent to note from his statement that the inspection required to be conducted by the officials of K.S.E.B once in three months have been held by them and maintenance of faults if any, noticed have been done by them. The evidence dealt with as above is highly inadequate to reach a conclusion that the incident in question was due to negligence of K.S.E.B. The evidence as discussed above is also inadequate to arrive at a conclusion that the negligence of the victim had resulted in the incident. 18. In the above context, it is relevant to have a look at the decisions cited by the learned counsel for plaintiffs. A scrutiny of the dictums paved way to consider, whether strict liability as laid down in John Rylands and Jehu Horrocks vs. Thomas Fletcher, (1868) LR 3 HL 330 can be extended in the context on hand to favour the plaintiffs. The learned counsel for the appellant has canvassed vehementally for mulcting K.S.E.B with strict liability. Therefore, the decisions are required to be dealt with elaborately to arrive at a conclusion on that line. 19. A Division Bench of this Court in Varghese's case supra has laid the dictum as follows: “12. We have looked into the matter through another angle also, for considering whether the defendant is liable for damages, even where there is lack of evidence to prove any negligence on the part of the defendant. Despite the continuing dominance of fault liability, our law of torts does contain limited principles of strict liability with regard to personal injuries. Some of these are of common law origin and the rest like damages in cases of personal injuries on account of electricity supply, nuclear installations, environmental pollution, fire, gas, explosions, oil, noxious fumes, vibrations etc.. have been the creation of modern statutes. 13. Some of these are of common law origin and the rest like damages in cases of personal injuries on account of electricity supply, nuclear installations, environmental pollution, fire, gas, explosions, oil, noxious fumes, vibrations etc.. have been the creation of modern statutes. 13. The usual question that arises in cases of common risks, which are left to the law of negligence that, “whose fault was it that this accident occurred”? should be substituted with the question “whose risk was it that this accident might occur?” in cases of strict liability for extra ordinary or unusual risks.” 20. The dictum in Kunjan Raghavan vs. Kerala State Electricity Board, 2010 (4) KLT 914 was relied on by the court and it being relevant is extracted hereunder: “21. The question is whether the electric line has maintained with statutory clearance as required in terms of the relevant laws. The Board is the authority to have the best evidence. There is no evidence in this regard by the Board. This is a case of no evidence in defence. Not only that, the Board is a licensee dealing with electrical energy, which is hazardous. Board is the sole licensee having monopoly operation with the support of statutory provisions. Statutory rights are coupled with statutory duties. The duties and responsibilities of licensees stand to charge the Board and its officers of such liabilities as would fall within the principle of strict liability as laid down by the Apex Court in H.S.E.B. vs. Ram Nath, (2004) 5 SCC 793 and M.P. Electricity Board vs. Shail Kumar, 2002 (1) KLT 480 (SC) : 2002) 2 SCC 162.” 21. The Division Bench was considering a case wherein the plaintiffs have failed to adduce adequate evidence to prove negligence on the part of defendants to sustain a claim for compensation from them. The court has raised the following questions for consideration: “1. Should that be the fate of human beings, visited with the misfortune of being electrocuted on coming into contact with electrical energy either, through the lines, the posts or towers supplying the lines carrying electrical energy under the control of the licensee? 2. Can the licensee in control of supply management of an extra-hazardous business of supplying of electricity, through un-insulated power lines, be permitted, to wriggle out of its strict liability to compensate the kith and kin of the electrocuted?” 22. 2. Can the licensee in control of supply management of an extra-hazardous business of supplying of electricity, through un-insulated power lines, be permitted, to wriggle out of its strict liability to compensate the kith and kin of the electrocuted?” 22. Now, the question of concern is whether negligence is attributable to the deceased. The only witness who has spoken about negligence of the deceased is PW-2. He was the Electric Inspector, Idukki, who has prepared Ext X1 as directed by the court. He had not witnessed the incident but, has conducted a post incident enquiry. He has stated categorically that an iron rod was lifted by the victim negligently and thus caused the incident to occur. He has also reported that in Ext.X1. In that backdrop, the version of PW-4, the coworker and the only ocular witness of incident is relevant. According to him, the breadth and length of culvert was increased and the iron rods were spread over that for concreting the slabs. According to him, while lifting an iron rod for spreading over the culvert, it got slipped and caused to hit against the 11 K.V line lying overhead and thereby electrocuted. According to him, the iron rod was 10 feet long and the 11 K.V line was lying without maintaining statutorily envisaged clearance level. 23. According to him after electrocution, though hurried to the hospital the victim succumbed to death during the course of treatment. It is pertinent to note from the oral evidence tendered by PW-2 that he has not uttered a word about negligence of defendant. 24. PW-3 was the PW-D Contractor under whom PW-4 was engaged for the renovation work of a 25 year old culvert. He was not an ocular witness but, according to him the 11 K.V line was lying at a level lower than the statutory clearance level even at the time when the work was commenced. But, he has deviated from that stand on the next moment to say that at the time of his visit of the spot prior to the commencement of construction work, the lie of the line was not noticed by him. The said inconsistency is sufficient to view the version of the witness without credence. But, he has deviated from that stand on the next moment to say that at the time of his visit of the spot prior to the commencement of construction work, the lie of the line was not noticed by him. The said inconsistency is sufficient to view the version of the witness without credence. But, when he was not confronted on his categoric version that the clearnce of 11 K.V. line from the road level was not lowered due to the construction work of culvert there. Therefore, it can safely be gathered that the construction work of the culvert has not impacted to in the reduction or lowering of the lie of the electric line or in other words, the statutory clearance level. 25. The report of DW1 on negligent lifting of iron rod by the victim as the cause of the incident is totally unreliable firstly for it's hearsay nature. The source wherefrom that information was gathered is also not stated in the report. The reason secondly for not placing credence on Ext.X1 is it's lack of corroboration with any other evidence. Therefore, cogent and relevant evidence is strictly lacking to take a view that the incident which culminated in the victim's death was caused due to his own negligence. 26. The death of the victim due to electrocution from 11 K.V line is a reality which factum was also conceded by the defendant. The negligence of K.S.E.B or the victim even-though a crucial aspect, decisive of plaintiffs' entitlement to receive compensation for the loss suffered due to death of the victim, a conclusion on it is difficult to arrive, for want of cogent evidence. Plaintiffs include a hapless lady and a minor boy who respectively lost the husband and father who was the resource of their maintenance and existence. The stand of K.S.E.B that for failure of the local authority for whose favour the construction work was done at the spot and PW-3, the Contractor who caused it to be done to inform them in advance, they must be exonerated from liability to compensate, will only place the plaintiffs to an un-safer pedestal. 27. The stand of K.S.E.B that for failure of the local authority for whose favour the construction work was done at the spot and PW-3, the Contractor who caused it to be done to inform them in advance, they must be exonerated from liability to compensate, will only place the plaintiffs to an un-safer pedestal. 27. According to the defendant, the Indian Electricity Rules, 1956 (as amended up to 25th November 2000) in its chapter VIII provides for the kind of materials to be used and the manner in which those are to be used while drawing overhead lines, underground cables and Generating stations. Rules 77 to 80 provide for the clearance to be maintained while drawing high voltage lines overhead across street, crossing a tramway or trolley bus route, over buildings of low and medium voltage lines and high and extra high voltage lines. 28. It is made clear from the evidence that the construction work of culvert was undertaken in a street and the line drawn overhead there was 11 K.V line. The provision relevant for application in the context being Sub-Rule (3) of Rule 77 is extracted hereunder: “77. Clearance above ground of the lowest conductor:- (1) xx xx xx (2) xx xx xx (3) No conductor of an overhead line, including service lines, erected elsewhere than along or across any street shall be at a height less than:- (a) for low, medium and high voltages lines upto and including 11,0000 volts, if bare. 4.6 meters (b) for low, medium and high voltage lines upto and including 11,000 volts, if insulated 4.0 meters (c) for high voltage lines above 11,000 volts 5.2 meters.” 29. There is total want of evidence to discern that 11 K.V line drawn at the spot was 'bare' or insulated one. If the 11 K.V line drawn therein is bare, the clearance to be maintained is 4.6 meters and if insulated, 4.0 meters. 30. Rule 82 provides for the safeguards to be taken by a person who proposes to erect a building, or structure or flood bank or to raise any road level or to carryout any other type of work upon those and therefore is extracted hereunder: “82. 30. Rule 82 provides for the safeguards to be taken by a person who proposes to erect a building, or structure or flood bank or to raise any road level or to carryout any other type of work upon those and therefore is extracted hereunder: “82. Erection of or alteration to buildings, structures, flood banks and elevation of roads - (1) If at any time subsequent to the erection of an overhead line (whether covered with insulating material or bare), any person proposes to erect a new building or structure or flood bank or to raise any road level or to carry out any other type of work whether permanent or temporary or to make in or upon any building, or structure or flood bank or road, any permanent or temporary addition or alteration, he and the contractor when he employs to carry out the erection, addition or alteration, shall if such work, building, structure, flood bank, road or additions and alterations, thereto, would, during or after the construction result in contravention of any of the provisions of rule 77, 79 or 80, give notice in writing of his intention to the supplier and to the Inspector and shall furnish therewith a scale drawing showing the proposed building, structure, flood bank, road, any addition or alteration and scaffolding required during the construction. (2)(a) On receipt of the notice referred to in Sub Rule (1) or otherwise, the supplier shall examine whether the line under reference was lawfully laid and whether the person was liable to pay the cost of alteration and if so, send a notice without undue delay, to such person together with an estimate of the cost of the expenditure likely to be incurred to so alter the overhead line and require him to deposit, within 30 days of the receipt of the notice with the supplier, the amount of the estimated cost. (b) If the person referred to in Sub-Rule (1) disputes the suppliers estimated cost of alteration of the overhead line or even the responsibility to pay such cost the dispute may be referred to the Inspector by either of the parties whereupon the same shall be decided by the Inspector. (b) If the person referred to in Sub-Rule (1) disputes the suppliers estimated cost of alteration of the overhead line or even the responsibility to pay such cost the dispute may be referred to the Inspector by either of the parties whereupon the same shall be decided by the Inspector. (3) No work upon such building, structure, flood bank, road and addition or alteration thereto shall be commenced or continued until the Inspector has certified that the provisions of rule 77, 79 or 80 are not likely to be contravened either during or after the aforesaid construction: Provided that the Inspector may, if he is satisfied that the overhead line has been so guarded as to secure the protection of persons or property from injury, or risk of injury, permit the work to be executed prior to the alteration of the overhead line or in the case of temporary addition or alteration, without alteration of the overhead line. (4) On receipt of the deposit, the supplier shall alter the overhead line within one month of the date of deposit or within such longer period as the Inspector may allow and ensure that it shall not contravene the provisions of rule 77, 79 or 80 either during or after such construction. (5) In the absence of an agreement to the contrary between the parties concerned, the cost of such alteration of the overhead line laid down shall be estimated on the following basis, namely:- (a) the cost of additional material used on the alteration giving due credit for the depreciated cost of the material which would be available from the existing line. (b) the wages of Labour employed in affecting the alteration. (c) supervision charges to the extent of 15 per cent of the wages mentioned in clause (b). (d) any charges incurred by the supplier in complying with the provisions of section 16 of the Act in respect of such alterations. (6) Where the estimated cost of the alteration of the overhead line is not deposited the supplier shall be considered as an aggrieved party for the purpose of this rule.” 31. (d) any charges incurred by the supplier in complying with the provisions of section 16 of the Act in respect of such alterations. (6) Where the estimated cost of the alteration of the overhead line is not deposited the supplier shall be considered as an aggrieved party for the purpose of this rule.” 31. Rule 82 was cited by the standing counsel for K.S.E.B to contend that there was failure on the part of Block Development Officer and the Contractor to give notice in writing to K.S.E.B about the proposed construction underneath the line informing the likelihood of the work being carried out, to contravene Rules 77, 79 or 80 of the Rules and obligation to deposit within 30 days of receipt of notice, the estimated cost of expenditure likely to be incurred to alter the overhead line. It is urged by the learned standing counsel that in the absence of a case for the plaintiffs or the Contractor that notice alongwith the estimated costs for alteration of 11 K.V line have been given to K.S.E.B, it cannot be mulcted with liability to compensate the petitioners for the death of the victim happened for no fault of them. It is canvassed in that context that liability cannot be fastened on them by applying the principles of strict liability. 32. The evidence adduced by the defendant assumed relevance in the context. Ext. B1 is the Site Mahazar prepared by the Assistant Engineer, Electrical Major Section, Thodupuzha on 11.05.1996. As per the recitals therein, the work undertaken was lengthening and widening of an old culvert situated in Moolampuzha-Muttuchira road and a worker named Baby, suffered electrocution when an iron rod lifted by him hit on the 11 K.V line lying overhead. It was also stated in the Mahazar that prior to the commencement of the work of culvert, the 11 K.V line has maintained clearance of 8 meters from the ground level and when the level of the road was raised during the construction work of culvert, clearance level was reduced and the work undertaken was never reported to the office of K.S.E.B to obtain permission. It was reported therein after verifying the tripping records of the 11 K.V line drawn there that tripping was not reported as occurred recently. The recitals also make it clear that the work was entrusted to PW-3 from Block Development Office. 33. It was reported therein after verifying the tripping records of the 11 K.V line drawn there that tripping was not reported as occurred recently. The recitals also make it clear that the work was entrusted to PW-3 from Block Development Office. 33. The Assistant Engineer, who had prepared Ext.B1 was examined as DW1. Though he had stated that the 11 K.V line passing overhead at the place of incident has maintained a clearance of 8 metres, he has no claim that any measurement was done to be convinced of. 34. According to him, the K.S.E.B is bound to inspect the line periodically, once in three months and it was done also. DW1 has also not produced the relevant records maintained at his office to establish the type of 11 K.V line (bare or insulated) drawn and the clearance level maintained originally when it was drawn. The K.S.E.B being the custodian of the materials to expose those relevant aspects, if failed to produce those, how the poor hapless and aggrieved survivors of the deceased could be burdened with, blamed for non-discharge of the burden and to deny compensation consequently. 35. As per Sub-Rule (3) of Rule 77 the required clearance level while drawing a bare 11 K.V line, is 4.6 meters and an insulated one is 4.0 meters. PW-2 has reported in Ext.X1 and deposed during examination in court that the 11 K.V line is passing at a height of 4.6 metres from the road level at the place of incident. According to him the place of incident being a street, the required statutory clearance for 11 K.V line is 6.09 metres from the road level. He has also reported in Ext.X1 that the Board has not done anything to restore the 11 K.V line lying low at the place of incident back to normal to maintain the statutory clearance level. He has also stated categorically that the road and the culvert are lying at the same level. In cross examination he has gone to the extent of stating that due to raising of the level of the road at the site of construction, the clearance level was reduced. 36. He has also stated categorically that the road and the culvert are lying at the same level. In cross examination he has gone to the extent of stating that due to raising of the level of the road at the site of construction, the clearance level was reduced. 36. The actual clearance maintained by 11 K.V line as on date of occurrence was not measured by K.S.E.B. PW-2 who was deputed to report on the incident and who has prepared Ext.X1 has no case that the clearance at the relevant time was measured. The factum that the available clearance level at the relevant time was not measured is clear from Ext.X1 Report, where also the height reported is approximate. To what height the iron rod was lifted by the victim is not known. None of the witnesses have a definite say on that. If the stand of PW-2 that inspection, once in 3 months was conducted by the officials of K.S.E.B, even if taken for granted, the doubtful circumstances still remain, howcome the construction work carried out at the spot, which according to them caused the clearance level to be lowered than the originally maintained statutory level, escaped their notice. Had there been inspection by the officials at the line drawn once in three months, as stated by PW-2, the construction work undertaken without permission could have been restrained by them and measures undertaken to get the clearance level mandated by the Rules, maintained. 37. PW-3 is the Contractor who had been engaged by Block Development Office to do the construction work at the spot and those aspects were not disputed by the defendant. According to PW-3, the work undertaken by him is widening and lengthening of an existing culvert situated in Moolampuzha-Muttuchira road. PW-3 has no case that the road level was raised as part of the construction work. PW-2 during examination in chief has also not spoken about lifting of the road level. He has spoken in that line only during cross examination. From the version of DW1 also it is clear that the width and length of the culvert alone was increased in the work. Therefore, reduction of clearance level is unlikely to happen. 38. According to DW1, neither the Block Development Officer nor the Contractor has obtained prior permission for the conduct of the construction work of culvert. From the version of DW1 also it is clear that the width and length of the culvert alone was increased in the work. Therefore, reduction of clearance level is unlikely to happen. 38. According to DW1, neither the Block Development Officer nor the Contractor has obtained prior permission for the conduct of the construction work of culvert. As per Rule 82 notice is required to be given to K.S.E.B only when there is likelihood of the proposed construction work to result in contravention of Rules 77, 79 and 80. There is absolute want of evidence to show that the construction work undertaken was likely to violate Rules 77, 79 or 80. Only when cogent evidence is available to establish that the road level was raised during the construction work of culvert, then alone it can be said that the Rules supra have been contravened. 39. Since the work undertaken was spoken by PW-3 and PW-2 as widening and lengthening of the culvert, absolutely no scope was there for raising the road level. According to DW1 the approximate clearance level maintained as on date of commencement of work was 8 metres. According to PW-4, the iron rod lifted by the victim had a length of 10 feet. None of the witnesses of the plaintiffs has spoken that the iron rod was lifted by the victim from a level higher than the road level. Defendants have not adduced any evidence to controvert the version of PW-4 that the iron rod lifted has only a length of 10 feet. In the circumstances, the version of DW1 that 11 K.V line has an approximate clearance of 4.6 metres at the time of incident cannot be believed at all for the reason that if the distance pleaded by them was there, an iron rod of 10 feet length touching the line is improbable. In the absence of cogent evidence, the presumption possibly be inferred was that the 11 K.V line was not maintaining even the approximate clearance of 4.6 metres as spoken by K.S.E.B. 40. Admittedly, the concrete work was performed within the jurisdiction of Electrical Major Section, Thodupuzha. The circumstances pointedly speak the factum that the K.S.E.B was negligent in exercising it's vigilance within the domain of their jurisdiction. Admittedly, the concrete work was performed within the jurisdiction of Electrical Major Section, Thodupuzha. The circumstances pointedly speak the factum that the K.S.E.B was negligent in exercising it's vigilance within the domain of their jurisdiction. Had some caution been exercised in the construction work which was undertaken without obtaining permission from them, which was only liable to commence after obtaining permission, the incident could have been averted. If the work undertaken was one liable to reduce the clearance level canvassed by K.S.E.B as maintained, measures must have been made by it to restore it. K.S.E.B being the licensee dealing with electrical energy, a hazardous substances, it must not have allowed it to pass through high voltage lines at the risk of human beings. K.S.E.B is the best authority and custodian of materials, to evidence that clearance level of 8.1 meters was maintained at the spot as claimed by them prior to commencement of contract work. When they failed to do so, versions of officials without anything to base, are only to be discarded. 41. Here is a case that suffers for want of affirmative evidence to show that clearance level was maintained by K.S.E.B while drawing the 11 K.V line, when it was originally drawn at the place of incident. There is no evidence to establish that as part of the construction work of culvert performed there, the road level was raised. In the above circumstances, this Court is constrained to take a view that the clearance contemplated under Sub-Rule (3) of Rule 77 was not maintained at any point of time. The K.S.E.B being the licensee of a hazarduous substance like electricity, which if escapes has a tendency to cause death of living beings and damage to properties, ought not to have maintained it in such a condition so as to result in perils. Situations of similar nature had already been dealt with by Apex Court and held that K.S.E.B can be fastened with strict liability. 42. The Apex Court in H.S.E.B. vs. Ram Nath, 2004 (5) SCC 793 held: “6. The appellants are carrying on a business which is inherently dangerous. If a person were to come into contact with a high-tension wire, he is bound to receive serious injury and or die. As they are carrying on a business which is inherently dangerous, the appellants would have to ensure that no injury results from their activities. The appellants are carrying on a business which is inherently dangerous. If a person were to come into contact with a high-tension wire, he is bound to receive serious injury and or die. As they are carrying on a business which is inherently dangerous, the appellants would have to ensure that no injury results from their activities. If they find that unauthorised constructions have been put up close to their wires it is their duty to ensure that the construction is got demolished by moving the appropriate authorities and if necessary, by moving a court of law. Otherwise, they would take the consequences of their inaction. If there are complaints that these wires are drooping and almost touching houses, they have to ensure that the required distance is kept between the houses and the wires, even though the houses be unauthorised. In this case we do not find any disputed question of fact.” and in M.P. Electricity Board vs. Shail Kumari, 2002 (2) SCC 162 held:- “8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foresseable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as “strict liability”. It differs from the liability which arises on account of the negligence or fault in this way that is the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.” 43. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.” 43. Therefore, even if direct and cogent evidence is lacking in the case on hand to derive a finding on negligence of K.S.E.B in causing the incident, responsibility for the same can be attributed to them for failing to exercise reasonable care and caution in the matter of maintenance of clearance level, based on the principle of strict liability. The responsibility for causing the death of the victim in the case on hand is thus attributed to K.S.E.B and therefore, it is now time to assess the quantum of compensation payable. 44. PW-1 is none other than the wife of the deceased. According to her, the deceased was aged 35 years at the relevant time of his death and was working as a concrete worker under a Contractor. According to her, herself and the only son are the survivors of the deceased. She has also stated that her husband was earning daily wages of Rs. 175/- as on date of incident and being a healthy man, has life expectancy of 50 years more. She had claimed Rs. 4,00,000/- towards loss of income, Rs. 4000/- towards transportation expenses, Rs. 5000/- towards treatment and funeral expenses. Rs. 50,000/- towards pain and sufferings. Rs. 4,00,000/- towards loss of love and affection and Rs. 5,00,000/- towards mental agony caused to her due to death of her husband. Thus Rs. 14,00,000/- was claimed in total as compensation and limited to Rs. 2,50,000/-. 45. It is pertinent to note that the defendant has not cross examined the plaintiff on any of above aspects. At the very same time, it is relevant to notice that no documentary evidence have been let in by the plaintiffs to establish these aspects. PW-3 was the Contractor under whom the deceased was engaged to do the concrete work at the relevant time. He has stated that materials are not available with him to establish the daily wages paid by him to workers under him. 46. The age of the appellant is taken in the above context as 35 years. PW-3 was the Contractor under whom the deceased was engaged to do the concrete work at the relevant time. He has stated that materials are not available with him to establish the daily wages paid by him to workers under him. 46. The age of the appellant is taken in the above context as 35 years. In the absence of supporting materials to establish income, incident being occurred in the year 2000, this Court finds it reasonable to fix Rs. 150/- as daily wages. 20 days is taken as the probable days of work in a month. If 1/3rd of Rs. 150/- is deducted towards personal expenditure of the victim, Rs. 100/- will be the daily contribution made towards family expenditure. 47. Therefore, the monthly income will be Rs. 2000/- (100 x 20) and annual income will be Rs. 24,000/- (2000 x 12). Based on the schedule appended to Motor Vehicle's Act, 1988, 16 is adopted as the multiplier. Thus compensation for dependency is arrived at as Rs. 3,84,000/- (24,000 x 16). Rs. 10,000/- each is awarded under the heads, loss of love and affection, loss of consortium and pain and sufferings. Rs. 5000/- and Rs. 3000/- respectively are also awarded under heads funeral and transportation. Thus Rs. 4,22,000/- (Rupees Four lakh twenty two thousand only) is arrived at as the total compensation payable. Plaintiffs are also entitled to get interest at the rate of 6% p.a. for the sum arrived at as compensation from the date of filing of the suit till the date of realisation and proportionate costs. The appeal was filed as indigent and therefore the appellant is exempted from paying the court fee. The appellant and the 2nd respondent in the appeal on hand (plaintiffs 1 and 2 in the Original Suit) are entitled to get equal share in the compensation found payable. 48. The appeal is allowed as above. The judgment under challenge is set aside and O.S. No. 112/1997 pending on the files of Subordinate Judge's Court, Thodupuzha is decreed as above.