A.P. State Electricity Board and anr. Vs. Y. Venu Kumar and ors. - Court Judgment

P.S. Narayana, J.

1. ASMP No. 365 of 2006 is filed by the petitioners-appellants-defendants to set aside the order of the dismissal for default made by this Court on 2-2-2006 in A.S.No. 826 of 1998. In the light of the reasons, which had been specified in the affidavit filed in support of the said application, this Court is satisfied that non-prosecution of the appeal on the relevant date was due to bona fide reasons as explained in the affidavit. In view of the same, ASMP No. 365 of 2006 is hereby ordered and the appeal is restored to file.

AS No. 826 of 1998 and Cross-Objections

2. The defendants in OS No. 19 of 1996 on the file of Senior Civil Judge, Avanigadda, aggrieved by the judgment and decree made on 29-1-1998 had preferred this appeal. The 1st respondent, who was acting as guardian of respondents 2 and 3 in the appeal, was discharged from guardianship by order dated 4-12-2003 in CMP No. 28120 of 2003 and respondents 2 and 3 were declared as majors. It is needless to say that the respondents are the plaintiffs in the suit aforesaid. Respondents-plaintiffs aggrieved by that portion of the judgment and decree negativing a portion of compensation had preferred cross-objections as indigent persons and filed CMP No. 13564 of 1998 praying for permission to prosecute the cross-objections as indigent persons, which had been ordered by this Court on 1-11-1999. The parties hereinafter would be referred to as plaintiffs and defendants for the purpose of convenience.

3. The suit itself was instituted by the plaintiffs as indigent persons claiming for recovery of Rs. 2,39,808/- from the defendants as compensation for the death of Y. Veera Raghavaiah due to electrocution on the evening of 2-12-1991 in his field. The defendants resisted the same. PWs. 1 to 3 and DWs. 1 and 2 were examined and Exs.Al to A15 were marked and ultimately the learned Judge decreed the suit with proportionate costs for recovery of Rs. 1,54,749/-, with interest at 12% per annum from the date of suit till the date of realization on the aforesaid amount. As already referred to supra, aggrieved by the said judgment and decree, the defendants preferred the appeal and aggrieved by negativing a portion of the relief, the plaintiffs also preferred cross-objections.

Contentions of Sri V. Ajay Kumar

4. Sri V. Ajay Kumar, the learned Standing Counsel representing the appellants-defendants made the following submissions :

The learned Counsel maintained that the age of the deceased at the time of the death had not been established and atleast the Doctor was not examined and even otherwise the principles to be followed in fixing the compensation or for arriving at certain quantum of compensation also had not been properly followed in the present case. The learned Counsel also would maintain that the death of the deceased is natural and the same is (vis major) Act of God and hence it cannot be said that the death occurred due to the negligence on the part of the appellants-defendants. The learned Counsel also would comment that on facts it can be inferred that the death occurred, was due to contributory negligence on the part of the deceased and hence decreeing the suit itself is bad in law. While further elaborating the submissions, the learned Counsel would maintain that though the plea of limitation had not been specifically taken by virtue of Section 3 of the Limitation Act, 1963, the said ground can be raised and the Court is duty bound to go into the question of limitation as well. The learned Counsel placed strong reliance on Article 82 of the Limitation Act, 1963 and would contend that in the light of the same, the suit is barred by limitation.

Contentions of Sri T.S. Anand

5. Sri T.S. Anand, the learned Counsel representing the respondents-plaintiffs made the following submissions :

The learned Counsel had drawn the attention of this Court to the grounds raised in the cross-objections and would maintain that in the light of the facts and circumstances, the plaintiffs are entitled to the total relief as prayed for and granting relief to a portion of the amount and negativing the rest is not justifiable inasmuch as this is a case of death. The learned Counsel also had pointed out to the oral evidence available on record and would comment that in the light of the oral evidence and also the documentary evidence Exs. A1 to A15, the learned Judge recorded proper reasons. The evidence of DWs. 1 and 2 is more or less general in nature, which may not help the defendants in any way. While further elaborating the submissions the learned Counsel would maintain that even if the principles to be followed while fixing the quantum of compensation under Motor Accidents Claims and the like, the compensation already granted can be said to be on lower side only and the plaintiffs are entitled for some more amount. On the question of limitation the learned Counsel would comment that neither Article 82 nor Article 72 of the Limitation Act, 1963 would be applicable, but the present suit would be governed by Article 113 of the Limitation Act, 1963. As the period of limitation being three years, the suit is well within limitation. However, the Counsel would contend that this plea was not taken in the written statement and atleast in the grounds of appeal. The learned Counsel placed reliance on M.P. Electricity Board and Ors. v. Kalkan 2004 (3) CCC 38 (M.P), State of Punjab v. Ms. Modern Cultivators : [1964]8SCR273 , East Punjab Privince (State of Punjab) v. Modern Cultivators, Ladwa Plaintiff , State of Andhra Pradesh v. Challa Ramakrishna Reddy and Ors. AIR 2000 SC 2083 and Notified Area Committee, Kothagudem v. Vannala Babu : 2003(4)ALD790 , on the aspect of fixation of quantum of compensation. The Counsel also placed reliance on the decision in M. Bheemavva v. APSEB, Vidyut Soudha Bhavan 1997 (6) ALD 217.

6. Heard the Counsel for both sides.

7. In the light of the rival contentions advanced by both the Counsel the following points arise for consideration :

(1) Whether the findings recorded by the learned Judge while granting compensation for recovery of Rs. 1,54,749/- from the defendants to be confirmed or to be disturbed in any way in the facts and circumstances of the case.

(2) Whether the findings recorded by the learned Judge in relation to the granting interest at 12% per annum from the date of suit till the date of realization is to be confirmed or to be disturbed in the facts and circumstances of the case.

(3) Whether the suit claim can be said to be bared by limitation as contended by the Counsel for appellants.

(4) Whether the cross-objections filed by respondents-plaintiffs to be allowed in the facts and circumstances of the case.

(5) If so, to what relief, the parties would entitled to.

Point Nos. 1, 2 and 4 :

8. The plaintiffs filed the suit as indigent persons. Originally the suit was filed as OP No. 152 of 1993 on the file of Subordinate Judge, Machilipatnam, which was renumbered as OP No. 72 of 1995 on the file of Subordinate Judge, Avanigadda and subsequently the same was numbered as OS No. 19 of 1996. The suit was filed for recovery of Rs. 2,39,808/-, from the defendants as compensation for the death of one Veera Raghaviah due to electrocution on the evening of 2-12-1991 in his fields. It was pleaded that on that day he had been to the fields to obtain fodder to the cattle and the live wire which was snapped from the conductor was lying on the crop and when he touched it, he was electrocuted and died on the spot. On the next morning the Lineman noticed it and he gave a report to the police, which was registered as Crime No. 85 of 1991 on the file of Challapalli Police Station under Section 174 of the Code of Criminal Procedure, marked as Ex.A2. During the course of investigation, the dead body of Veera Raghaviah was examined in postmortem and inquest and the reason for the death was recorded as shock due to contact with electric service. The same was marked as Ex. All and the inquest report was marked as Ex.A12. The first plaintiff is the widow and plaintiffs 2 and 3 are the minor children and subsequently they were declared as majors by order dated 4-12-2003. In the light of the fact that Veera Raghaviah died due to electrocution and the same was occurred due to the negligence on the part of the defendants, the following amounts were claimed :

1. Rs. 2,000/- as special damages (for funeral etc)

2. Rs. 10,000/- loss of consortium to the first petitioner.

3. Rs. 10,000/- for the loss of love and affection to the plaintiffs 2 and 3.

4. Rs. 10,000/- for loss of expectation of life of deceased.

5. Rs. 10,000/- for pain and suffering of the deceased.

6. Rs. 1,50,000/- was claimed towards loss of dependency to the petitioners.

The plaintiffs also claimed interest at 12% per annum from 2-12-1991 and claimed the same rate even after the suit is filed.

9. The 2nd defendant filed written statement taking a specific plea that the deceased was negligent in touching the live wire. He was suffering from Cataract and therefore due to his poor vision the deceased might have touched the live wire. It was also further pleaded that since it is a low tension line, whenever the snapping was occurred, the service will not be tripped off like the case of HT Lines and hence the Department had no knowledge of snapping of conductor wire at the field of the deceased. Several other facts had been narrated and ultimately the specific stand was taken that the Department was not negligent at all. It was also pleaded that the plaintiffs filed a Consumer Dispute before the District Consumer Forum, but had not pressed the same and hence they claimed the compensation again in the civil suit since their claim is barred by res judicata. On the respective pleadings, the following issues and additional issues were framed :

1. Whether the death of Sri Veeraraghavaiah by electrocution is caused dye to the negligence of 2nd defendant ?

2. If so, what is the amount of damages that can be awarded to the plaintiffs ?

3. Whether the suit is barred by res judicata, in view of dismissal of petition before District Consumer Forum ?

4. To what relief ?

Additional issue

1. Whether the suit is in time ?

10. It is not in serious controversy that the cause of death of Veera Raghaviah was due to electrocution. The stand taken by defendants-department is that Veera Raghaviah himself had touched the live wire and it was due to his negligent act or due to poor vision. The admitted fact is that the land in which the live wire which was snapped from the conductor was lying belonged to the deceased and the deceased could not have visualized the presence of such live wire or should have been careful and cautious to avoid of such danger if any. Hence it cannot be said that he was negligent in any way. Therefore the stand taken by the defendants that the deceased was negligent pales into insignificance.

11. The evidence of PWs. 1 to 3 had been dealt with at length. The evidence of D.Ws. 1 and 2 is more or less general in nature. Ex. Al is the death extract, Ex.A2 is the complaint petition issued by Additional Assistant Engineer, Operators, APSEB. Exs.A3 to A7 are the photos and negatives. Ex.A9 is the office copy of registered notice dated 16-3-1992. Ex.A10 is the reply notice, Ex.A11 is the report of post-mortem, Ex.A12 is the certified copy of the inquest report, Ex.A13 is the certified copy of the complaint given by 2nd defendant, Ex.A14 is the certified copy of FIR in Cr.No. 85/1991 and Ex.A15 is the complaint CD No. 10/1994 on the file of District Forum, Krishna. Reliance also was placed in M. Bheemavva's case (supra), wherein the learned Judge while dealing with the compensation for the death caused to the deceased by coming into contact with a live wire and the claim made by the widow, mother and minor son of the deceased against the Electricity Board observed at Para 15, which reads thus-

In assessing the quantum of damages, the principles adopted by the Courts for determination of compensation to be awarded in fatal accident cases under the Motor Vehicles Act, 1988, can be adopted in the instant case. The deceased was aged 25 years at the time of his death and it is clearly established from the evidence of PWs.2 and 3 and the accounts of the Toddy Tappers Co-operative Society which are marked as Exs.A3 to 6 that the total earnings of the deceased was to the tune of Rs. 16,800/- per annum. The lower Court also accepted the same and found that the total income of the deceased was to the tune of Rs. 16,800/- per annum. His family consisted of himself, his wife, his mother and one minor son i.e., three adults and one child. As per the decision of the Supreme Court in UP. State Road Transport Corpn. v. Trilok Chandra : (1996)4SCC362 , the family of the deceased consists of 7 units at the rate of two units for adult and one unit for child. Deducting two units for the deceased, the rest of the family members, who are dependent on him comprise five units. The pecuniary loss suffered by the plaintiffs on account of the death of the deceased can be arrived at by deducting the amount which must have been normally spent by the deceased for his personal expenses from his total earnings. Since the total number of units is 7, 2/7th of the total income can be deducted towards the personal expenses of the deceased and the remaining 5/7th of the total earnings can be taken as his contribution to his family members which is also known as 'the annual dependency'. It comes to Rs. 12,000/- per annum i.e., 5/7 x 16,800. This can be taken as the annual loss to the dependants. This has to be multiplied by the appropriate multiplier to assess the compensation under the head of loss of dependency'. Though the appropriate multiplier is 18 in the case of a person who died at the age of 25, since the plaintiffs have claimed loss of earnings for 15 years only, the multiplier can be adopted as 15 in the instant case. On this basis the compensation payable to the plaintiffs under the head of 'loss of dependency' comes to 15 x Rs. 12,000/- = Rs. 1,80,000/-. Adding the sum of Rs. 25,000/-, which was claimed as special damages towards pain and suffering, loss of consortium etc., the total compensation payable to the plaintiffs will come to Rs. 2,05,000/-.

12. Submissions were made by both the Counsel relating to quantum of compensation. The Counsel for appellants claiming that the same was not calculated in accordance with law and the same is on higher side whereas the Counsel for respondents otherwise contending that the plaintiffs are entitled for some more amount than what had been granted by the learned Judge.

13. It appears that the plaintiffs approached the District Consumer Forum, but had not prosecuted the said litigation evidently in the light of the suit which had been instituted before a competent civil Court. Hence the said aspect may not come in the way of the plaintiffs in claiming the compensation. The learned Judge in fact had referred to Bhagwan Das v.Md. Arif 1987 ACJ 1052 and followed the table of multiplier and the principles in relation to the fixation of quantum of compensation. The age of the deceased had been taken into consideration as '44' and the multiplier had been applied and after detailed discussion while answering issue No. 2 at Para 9 he arrived at the conclusion that the plaintiffs are entitled to the compensation of Rs. 1,54,749/-. It is needless to say that the learned Judge also exercised the discretion and granted interest at 12% per annum from the date of suit till realization on the aforesaid amount and the decree was made with proportionate costs. In the light of the reasons recorded by the learned Judge and since all the factors had been taken into consideration, it cannot be said that the findings recorded by the learned Judge are in any way unjust. Hence the submissions made by the learned Counsel representing the respondents-plaintiffs that they are entitled for some more compensation also cannot be accepted. The findings recorded by the learned Judge in relation to the fixation of quantum of compensation by way of damages and also interest are hereby confirmed. It is needless to say that the grounds raised in the cross-objections are also liable to be rejected.

Point No. 3

14. The question of limitation was in fact argued even before the trial Court. However, before this Court, submissions at length were made that Article 82 of the Limitation Act, 1963 would be applicable. Article 72 of the Limitation Act, 1963 reads as hereunder :

_______________________________________________________________

Description of suit Period of limitation Time from which

Period begins

to run

_______________________________________________________________

For compensation for One year When the act or

doing or for omission takes

omitting to do an act place

alleged to be

in pursuance of any

enactment in force for

the time being in the

territories to which

this Act extends.

_______________________________________________________________

Article 82 of the Limitation Act reads as hereunder :

_______________________________________________________________

Description of suit Period of limitation Time from which

Period begins

to run

_______________________________________________________________

By executors, admini- Two years The date of the

strators or represen- death of the

tatives under the person killed.

Indian Fatal Accidents

Act, 1855 (13 of 1855).

_______________________________________________________________

Article 113 of the Limitation Act reads as hereunder :

_______________________________________________________________

Description of suit Period of limitation Time from which

Period begins

to run

_______________________________________________________________

Any suit for which Three years When the right

no period of to sue accrues

limitation is

provided elsewhere

in this Schedule.

_______________________________________________________________

15. In M.P. Electricity Board case (supra) following the decisions in State of Punjab case (supra) and East Punjab Province case (supra) it was held that where the plaintiff suffered injuries due to fall of electric pole on his body filed suit claiming compensation and the plea of defendant was that the same would be governed by Article 72 of the Limitation Act and the limitation prescribed was only one year and as the suit was filed three years after the incident, the same was barred by limitation. The trial Court dealing with the same as preliminary issue, held that the suit did not fall under Article 72 of the Limitation Act, 1963 and since there was no other Article governing the suit for compensation, the suit was governed by Article 113 of the Limitation Act, 1963. The said order was challenged in the revision, but the Court came to the conclusion that the trial Court was right in holding that the suit was within limitation. Reliance also was placed in a decision of the Apex Court in State of Andhra Pradesh v. Challa Ramakrishna Reddy case (supra), wherein the Apex Court had dealt with the applicability of Article 72 or Article 113 of the Limitation Act, 1963 in relation to the claim of compensation of the death of the father of the claimant due to bomb blast in jail. The Apex Court observed at Paras 15 and 16 as hereunder :

It would thus be seen from the above that the deceased as also Challa Ramakrishna Reddy who apprehended danger to their lives, complained to the police and requested for adequate police guards being deployed at the jail, but their requests were not heeded to and true to their apprehension, a bomb was thrown at them which caused the death of Challa Chinnappa Reddy and injuries to Challa Ramakrishna Reddy (PW.1). In this process, one of the three persons, who was sleeping near the jail, was also killed. The Police Sub-Inspector was also in conspiracy and it was for this reason that in spite of their requests, adequate security guards were not provided. Even the normal strength of the guards who should be on duty at night was not provided and only two Constables, instead of none, have were put on duty. Since the Sub-Inspector of Police himself was in conspiracy, the act in not providing adequate security at the jail cannot be treated to be an act or omission in pursuance of a statutory duty, namely, Rule 48 of the Madras Prison Rules, referred to by the High Court. Moreover, the action was wholly mala fide and, therefore, there was no question of the provisions of Article 72 being invoked to defeat the claim of the respondents as the protection of shorter period of limitation, contemplated by that Article, is available only in respect of hona fides acts.

In our opinion, the High Court in the circumstances of this case, was justified in not applying the provisions of Article 72 and invoking the provisions of Article 113 (the residuary Article) to hold that the suit was within limitation.

Reliance also was placed on the Division Bench decision of this Court in Notified Area Committee, Kothagudem case (supra), which no doubt is a matter concerned with demolition of building and claim of damages and the same was decided in the context of Section 369 of A.P. Municipalities Act, 1965. Be that as it may, on the careful scrutiny of the language employed both in Articles 72 and 82 of the Limitation Act, 1963, when a suit is based on the strength of the negligent act of electrocution and the resultant death thereof, a suit of such nature where compensation is claimed cannot be said to fall either under Article 72 or Article 82 of the Limitation Act, 1963, but the same is governed by only Article 113 of the Limitation Act, 1963, since Articles 72 and 82 aforesaid govern the cases which are specified thereunder, they cannot be extended or they cannot be made applicable to the other cases where suits are based on the negligent acts and claim of compensation. Hence, viewed from any angle this Court is of the considered opinion that the learned trial Judge arrived at a correct conclusion even on the question of limitation and the said finding also need not be disturbed.

Point No. 5

16. In the light of the findings recorded above, both the appeal and the cross-objections are bound to fail and accordingly the same shall be dismissed. Inasmuch as both the parties have been fighting this litigation, the parties have to bear their own costs in this appeal.