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Nirmala Thirunavakkarasu Vs. Tamil Nadu Electricity Board - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.S. No. 566 of 1979
Judge
Reported inAIR1984Mad201
ActsElectricity Act, 1910 - Sections 37; Electricity Rules, 1956 - Rule 91
AppellantNirmala Thirunavakkarasu
RespondentTamil Nadu Electricity Board
Appellant AdvocateP. Seshadri, Adv.
Respondent AdvocateS. Ramalingam, Adv.
Cases ReferredNance v. British Columbia Electric Railway Co. Ltd..
Excerpt:
.....clearly shows that the deceased had fallen down at the spot where he came into contact with the live wire, and that he was continuing to be in contact with the live wire until he was removed with the help of a rope. 8. it is then urged that the breaking of the bead of pin insulator was a mechanical failure and the defendants are not liable therefore. the defence of mechanical failure is therefore untenable. 9. lastly the failure on the part- of the defendants to provide the device for rendering the line electrically harmless in 6se it breaks. in many cases, however, a perfect compensation is hardly possible and would even be unjust. (1942) ac 601, already referred to, lord russel of killowen stated the law thus -the general rule which has always prevailed in regard to the assessment..........heavy rain, thunder, lightning and wind, the head of pin insulation in the cross arm broke and the live wire slipped from the cross arm and was hanging on the right side of the cart track little above the ground. the' deceased was then driving a bullock cart which was carrying the paddy thrashing machine. this cart was preceded by' another bullock cart carrying paddy harvested on that day. there was, another cart following the cart of the deceased. the bull yoked on the right side of the first cart made a huge try out, as it came into contact with the live wire. the driver of that bullock cart fell down. on seeing this the deceased stopped his cart and went near the first cart to see what was happening when he came into contact with the live wire line and -was thrown off. he appears to.....
Judgment:
ORDER

1. This is a suit for damages for loss of life.

2. The first plaintiff is the widow and plaintiffs 2 and 3 are the sons of late Thirunavukkarasu. The third plaintiff is the posthumous son of.late Thirunavukkarasu, who died on 20-10-1978 under tragic circumstances. The said Thirunavukkarasu owned a farm and a farm house at Sernmedu village -Coimbatore taluk. High tension wires of 440 watts were running over the farm and the cart track in the form. On 20-10-1978 at about 7.45 p. m. when the deceased ThirunaIvukkarasu was in the farm house, he beard a strange cry of the bulls drawing the bullock cart and he immediately rushed out of the farm house to find out what was happen ing. As' he was so running he traded upon the high tension wire which had snapped and fallen over the farm and the cart track therein and was instantaneously struck dead by electrocution. The accident was due entirely to the negligence of the defendants, who are the State Electricity Board and the Pykara Electricity System. The high tension wires which are very dangerous to lives and properties do not snap and fall down. The fact that the wire had snapped and fallen down proves the negligence of the defendants in their proper maintenance. No precaution had been taken to see that in the event of wire snapping and falling down, there should be automatic disconnection of supply, of electric energy. No elementary precaution of periodical inspection of wires to ensure and satisfy that there is no reason able likelihood of the wires snapping and failing down has been taken by the defendants. Therefore, this is it clear case of reships liqueur. This tragic incident has completely shattered the first plaintiff in the prime of her life. She had a son at the time and was also pregnant. She was delivered of a posthumous child on 20-5-1979. The.defendants on account of whose negligence this accident has occurred are liable to pay compensation to the plaintiffs. The deceased was at the time of the accident was only 36 years old. He was bale and hearty and was suffering from no ailment. He would have normally lived up to 65 years of age. He was at the timeout his death employed as an Assistant Professor in the Coimbatore Agricultural College on a scale of Rs. 700-40-110050-1600 plus dearness allowance of Rs. 85. He was actually drawing Rs. 958 on 1-101979. If he had served for ten more, years he would have been normally promoted as Associate Professor in the College in the scale of Rs. 1200-50-1800-60-1900. In another ten years he would have been promoted as Professor in the college in the scale of pay of Rs. 1500-60-1800-100-2000-125/225W. He would have in the total period of service earned a salary of Rs. 5,05,488. He would have been entitled to the death-semiretirement gratuity of 16-1/2 months of pay limited to Rs. 30,000. He would also be getting a pension of Rs. 784 which he would have drawn at least up to the age of 65. Allowing for an expenditure of Rs. 2,000,00 on the part of the deceased, the plaintiffs would be entitled to a sum of Rs. 3,00,000' and the suit is laid to recover the same with subsequent interest and costs.

3. The first defendant. Tamil Nadu Electiicity Board, has filed a written statement the allegations in the plaint and acceptant the written statement filed by the second defendant.

4. The second defendant Pykara Electricity System represented by its Supexintending Engineer has filed a separate written statement. According to the second defendant, there were heavy -rains in the area from the beginning of'Sept. till the end of Oct, 1978 and on 20-104978 their, was heavy rain, thunder and lightning followed by heavy wind. Because of the heavy rain, thunder, lightning and wind, the head of pin insulation in the cross Arm broke and the live wire slipped from the cross arm and was hanging on the right side of the cart track little above the ground. The' deceased was then driving a bullock cart which was carrying the paddy thrashing machine. this cart was preceded by' another bullock cart carrying paddy harvested on that day. There was, another cart following the cart of the deceased. The bull yoked on the right side of the first cart made a huge try out, as it came into contact with the live wire. The driver of that bullock cart fell down. On seeing this the deceased stopped his cart and went near the first cart to see what was happening when he came into contact with the live wire line and -was thrown off. He appears to have fallen on the right side wheel of the cart and his bead bit the iron rim of the said wheel and he sustained bleeding bead injuries. Attempts have been made to pull him from the place. where he fell, but, because of the shock felt by them the others removed him with a rope. No intimation was however given to the police and no postmortem was conducted. According to this defendant, the deceased appears to have died of skull injuries. It is denied that there was any negligence on the part of this defendant. There was periodical inspection of the lines by. the wiremen. The department used to take periodical checking of installations very often especially in the rainy season. There was therefore no default or negligence on the part of the department. The slipping of the wire was due entirely to the heavy rain followed by thunder, lightning and heavy wind. The accident was therefore due to reasons beyond the control of the defendant and is due to the act of God or viz major. The deceased was also careless in that he had gone to the right side of the track near the edge of the cart track where the wire was hanging and came into contact with it. It is denied that the defendant did not take the elementary care and precaution in laying the wires and in periodically checking the same. In fact, it is not a high tension wire. It is only a low or medium tension wire. This defendant has also put the plaintiffs to strict proof regarding the age and income of the deceased. The claim of compensation made by the plaintiff is imaginary and without legal basis. The plaintiff is not entitled to the death-cum-retirement gratuity of Rs. 30,000/-. The claim for pension for seven years is untenable. The plaintiffs have not also disclosed the amount received by the first plaintiff from the Insurance Company and Family Benefit Scheme etc. According to the defendants, the plaintiffs are 'also receiving family pension and this has been suppressed. This defendant therefore prayed for dismissal of the suit with costs.

1. On the above pleadings the following issues, as recast arise for consideration. Whether the late Thirunavukkarasu died due to electrocution?

2. Whether the accident was due to the, negligence of the defendants?

3. Whether the accident was caused by viz. major?

4. Whether the plaintiffs are entitled to claim damages and if so, at what amount?

5. To what relief are the plaintiffs entitled ?

Issues Nos. I to 3 : The first plaintiff who is the widow of late Thirunavukkarasu has examined herself was P. W. 1. P. W. 2 is one of the farm servants of late Thirunavukw karasu. It transpires from their evidence that the late Thirunavukkarasu owned a farm in Semmedu village and there was a farm house therein. There is also a motor pump set to which electric energy is transmitted by overhead live wires running across the farm. On 20-10-1978 there was harvest of paddy crops in the deceased's farm and the deceased was present in the farm from 10 a.m. After harvest was over in the evening, the paddy harvested were loaded in two carts and the thrashing machine in another cart. As these three carts were going along the cart track in the farm, the right side bullock of the first cart gave out a loud cry. One of the overhead electric live wires, which had snapped and fallen down, came into contact with the bullock which raised the alarm. On hearing the alarm the deceased ran towards the spot to ascertain the cause of this strange alarm *ben he treaded upon the live wire and fell down. P. W. 2, the far servant. with the help of another farm servant by name Cbinniyappitn tried to pull the deceased but they sustained electric shock. They therefore used a rope and pulled away the deceased from the wire. They tried to give him some water but found him dead. A phone message was given to the deceased's house at Coimbatore from where a car came and took the body of the deceased to his house. At about .10.45 p.m. P. W. 3 Dr. Rajendran, who is the family doctor of the deceased examined the body of the deceased and found on the outersight of the right thigh a burnt scar about 5 cms. in length and a rupture of the skin on the back of the head about 3 cms. In the opinion of P. W. 3 the deceased had died of electrocution. P. W. 4, the Sub-Inspector of Police, conducted inquest over the body of the deceased on 21-10-1978 under Ext. P 6 carbon copy of the inquest report. The verdict of the Panchayatdars wais that the deceased died due to electrocution. There is hardly any doubt that the deceased came into contact with the overhead live wire, which has snapped and fallen down across the farm and the cart track in the farm and has died of electrocution.

5. The contention put forward by the defendants is that the deceased as soon as he came into contact with the live wire was thrown off and he fell on the right side wheel. of the cart and his head hit the iron rim of the said wheel, and be died as a result of the head injuries sustained thereby. There is hardly any evidence to sustain this contention. The rupture of the skins on the back of the head of the deceased is evidently due to the fall on the ground and not due to hitting against the iron rim of the wheel and the injury on the head itself is not of a serious nature. The story trotted out in the written statement that the deceased was thrown off on coming into contact with the live wire is belied by the further averment in the written statement of the second defendant that the deceased had been pulled from the place where he fell by others and because of the shock felt by them, they removed him with a rope. This clearly shows that the deceased had fallen down at the spot where he came into contact with the live wire, and that he was continuing to be in contact with the live wire until he was removed with the help of a rope. There is therefore no question of his having been thrown off. I have therefore no hesitation in holding that the deceased had come into contact with the live wire and died of electrocution. ,

6. Overhead electric wires carrying heavy load of electric energy are highly dangerous and if any human being or animal comes into contact with the same, the consequences are fatal. Hence, great care and cautionary expected of the Electricity Board in laying, installing and maintaining overhead wires and generally these wires do not snap and fall down. If therefore such a thing hap. pens, a prima facie inference can be drawn, that there has been carelessness or negligence on the part of the Electricity Board in transmitting electric energy or in maintainifig- the transmission lines. The Electricity Board has also to take precaution against dangers of, live wires snapping and falling down under unforeseen circumstances by providing for automatic disconnection of supply of electric energy. Rule 91 of the Indian Electricity Rules, 1956 provides that every overhead line which is not covered with insulating material and which is erected over any part 'of. A' street or other public Place Or any factory or mine or on any consumer's premises shall, be protected with a device approved by the Inspector for tendering the line electrically harmless in case it breaks. If the precaution under this rule is taken, the line in case it breaks would become dead and harmless. The fact that the overhead line in the deceased's farm after it snapped and' fell down continued to be alive and did not become harmless shows that the necessary precaution had not been taken. This is therefore a case of liquors. and the burden is on the defendants to show that there had been no negligence or carelessness on their part in the installation and maintenance of the transmission lines over the deceases farm that Say had taken necessary precautions against dangers of live wires snapping and failing down and that the accident in the, instant case was due to factors beyond their control. In the absence of any such proof, it must be held that the accident happened because of fix negligence of the defendants.

7. The contention put forward in the written statement of the defendants is that in, the month of October, 1978 when this accident took place, there were, heavy rains in the area and on 20-10-1978 when this tragedy happened, there was heavy rain followed by thunder and lightning and heavy wind as a result of which the head of pin insulator in the cross arm broke and gave way resulting in the wire snapping and falling down., The accident, according to the defendants, was therefore due to an act of God or viz major. P. Ws. I and 2 have I the suggestion that there were incessant rains during that season or that. There was very heavy rain followed by thunder and Sale at the time of the accident on 20-10-1978. On that day there had been harvest -of the paddy crops from the morning till evening fact negatives the contention that there were rains on that day. According to P. W. 2, one of the farm servants of the deceased, thru, were some drizzling in the evening and nothing more. 1). W. I is the Assistant Engineer, Electricity Board .' having his office at Somanur. He speaks of heavy rains followed by then and lightning in the month of October 1978, but, admits that he had no personal knowledge of the weather condition in the scene village on the day of the accident, for, he lives several miles away. Hence. the contention of the defendants that because of hostile weather the head of Pin insulator broke and gave way resulting in the live wire snapping and falling down and the accident was an act of God is unsubstantiated.

8. It is then urged that the breaking of the bead of pin insulator was a mechanical failure and the defendants are not liable therefore. Such a defense will be available to-the defendants if they are able to establish that there had been proper maintenance of the transmission lines by periodical inspection and checking of the installations, that the bead of pin insulator was in a sound condition at the time of the last in section and its breaking was unforeseen. No such evidence is forthcoming. It is elicited from D. W. the Assistant. Engineer, that it is only the wireman who goes and checks the wires periodically and he has not been examined. Nor has the, report submitted by the wireman for periodical inspection and checking of transmission lines been produced into Court. The defence of mechanical failure is therefore untenable.

9. Lastly the failure on the part- of the defendants to provide the device for rendering the line electrically harmless in 6se it breaks.- as laid down in R. 91 (1) of the Indian Electricity Rules, is a grave dereliction of statutory obligation and amounts to gross negligence. , In the instant case, the overhead wire did not become harmless even after quenching the life of the deceased and his body had to be removed with the help of a non-conductor of electric energy.

10. On a consideration of all the aforesaid facts and circumstances. I hold 1 that the deceased Tihirunavukkarasu died of electrocution and that the accident was due to the negligence of the defendants and was not caused by viz major. All these issues are found in favour of the plaintiffs. Issue No. 4: As the deceased has died as a result of the negligence of the defendants, they are bound to pay compensation to the plaintiffs for the loss suffered by them. Now to the quantum of compensation. The amount of money as reparation for the results of tortious conduct for which the law holds the wrong doer responsible is determined by applying as far as possible the general principle of destitution in interim. In many cases, however, a perfect compensation is hardly possible and would even be unjust. The Court in doing justice between the parties considers the general rules its to damages with some liberality and does not apply them rigidly. And. thus. the damages ire in difficult case normally limited to al sum which can in the circumstances be considered as a reasonable amount of compensation. Courts should not also in such cases allow a calamity to turn into a windfall. In ascertaining the pecuniary loss caused- to the dependants, it must be borne in mind that these damages are not to be given as solution for the loss of a soil or daughter. wife or husband, father or mother, not on sympathetic or sentimental consideration but only with reference to pecuniary loss. As, observed by Lord Wright in Davis v. Powel. ( 1942) AC 601 -

'It is a hard matter of pound, shilling and pence.'

The mode of assessment of pecuniary loss suffered by the defendants is a baffling one. It is beset with certain difficulties and depends on many imponderables. It is to be calculated with reference to a reasonable expectation of pecuniary benefit from the continuance of the life of the deceased. in Franklin v. 'the South-East Railway Co.. (1858) 157 ER 448 : 3 H N 211, Pollock C. B. observed-

'We do not say that it was necessary that actual benefit should have been derived, a reasonable expectation is enough.'

In Davis v. Powel. (1942) AC 601, already referred to, Lord Russel of Killowen stated the law thus -

'The general rule which has always prevailed in regard to the assessment of damages under the Fatal Accidents Act is well settled, viz., that any benefit accruing to a dependant by reason of the relevant death must be taken into account. Under those acts the balance or loss and gain to a dependant by the death must be ascertained.'

Lord Wright stated the law on the point thus at page 611 -

'The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible to money value. In assessing the damages all circumstances which may be legitimately placed in diminution of the damages must be considered.'

In Gobald Motor Service Ltd. v. Veluswami, - : [1962]1SCR929 . Subba Rao. J. ( as he then was), referred to the same principle restated with force and clarity by Viscount Simon in Nance v. British Columbia Electric Railway Co. Ltd.. (1951) AC 601 and observed thus:-

'At first the deceased man's expectation of life has to be estimated having regard to his age. bodily health the possibility deprecator determination of his, life by her accidents

Secondly, the amount required for the future provision of his wife shall be estimated having regard to the amounts he used to spend on her during his lifetime and other circumstances-,

Thirdly. the estimated annual sum is Multiplied by the number of years of the man's estimated span of life, and the, said amounts must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death:

Fourthly, further deduction must be made for the benefit according to the widow from the acceleration of her interest in his estate; and

Fifthly, further amounts have to be deducted for the possibility of the wife dying earlier if-the husband had lived the full span of life, and it should also be taken into account that there is the possibility of the widow remarrying much to the improvement of her financial position. It would be seen from the said mode of estimation. that many imponderables enter into the causation. Therefore, the actual extent of the pecuniary loss to the respondents may depend upon data which cannot be ascertained accurately but must necessarily' be an estimate. or even partly a conjecture. Shortly stated. the general principle is that the pecuniary loss can be ascertained only by balancing on the on4; hand and the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage, which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependant, by the death must be ascertained.'

Bearing these principles in mind, I shall now proceed to consider the quantum of compensation payable to the plaintiffs herein.

11. The deceased Thirunavukkarasu was born on 5-6-1942, and he was 36' years' old at the time of his death. P. W. 3 Dr. Rajendran was his family physician and according to him, the deceased did not suffer from any major ailment. The deceased's father died when he was 75 years' old and the deceased's mother is still alive. We can therefore safely conclude that the deceased would have lived up to 65 years of age as claimed in the plaint.

12. The deceased wants a holder of M.Sc, degree in Agriculture and was serving as an Assistant Professor in the Tamil Nadu Agricultural University at Coimbatore in the scale of pay of Rs. 700-40-1100-50-1600. At the time of his death his salary was Rs 1,150/- plus Rs. 85/. as dearness allowance, as is seen from Ext. P1 communication received from the Tamil Nadu Agricultural University, Coimbatore. The deceased's promotional post is that of an Associate Professor of Agronomy in the scale of pay of Rs. 1200-50-1300-60-1900 plus usual allowances. According to the averment in the plaint, his next promotional post is that of Professor in the scale of pay of Rupees 1500-60-1800-10-2000-125/-2500. The age of retirement is 58 and tile deceased had 22 years of service. His salary at the time of his death was Rs. 1,150/- and in about 9 years he would have reached the maximum of Rs. 1,600/-. Even after he would have had 13 years of service. Even if he gets promotion as Associate Professor after reaching the maximum in the time scale as Assistant Professor, if not earlier, be would be reaching the maximum scale of pay of Rs. 1,900/, as Associate Professor in 5 years. He would still be having another 8 years of service and there is every. possibility of his becoming the Professor and reaching the maximum salary of Rupees 2,500/- per month. It may also be pointed out that the Salary include dearness, house rent and other allowances. Taking all these factors into consideration I fix the average monthly remuneration which includes salary and alowances of the deceased at Rs. 1,800/- during the remaining 22 years of service. As already conceded by the learned counsel for the defendants, one-third of the same may go in for the, eXpenses of the deceased and two-third for the family. The monthly dependency of the plaintiffs may be taken as Rs. 1,200/- during 22years' period of service of the deceased, had he been live. We have to deduct from this amount of monthly dependency the sum of Rs. 333/- received by the plaintiffs as pension. So. the net monthly dependency will come to Rs. 867/-. The -total for 22 years comes to Rs. 2,28,888. The deceased would have retired at the age of 58 and his pension may work out at Rs. 784/-, as claimed in the plaint. Two-third of the pension will come to . Rs. 523/-.. Deducting the family pension of Its. 333/- the net monthly for the period of seven years inuring which the deceased would have lived after retirement comes to Rs. 190/. per month. The total for 7 years comes to R& 15,9601-. All. told, the plaintiffs' dependency comes to Rs. 2,29.888/- plus Rupees 15,960/. - Rs. 2,44,848.

13. The deceased Thirunavukkarasu at the time of his rdtirement would have been elnable to the maximum deatb-cum-reftirement gratuity of Rs. 30,000/. Out of this amount, two-third must go to the dependants, i. e., Rs. 20,000/-. The total. dependency will therefore come to its. 2,44,848 plus Rs. 20,000 i. e., Rs. 2,64,848.

14. It is admitted by the first plaintiff as P. W. I that she had received- a sum of Rs. 10,000/- under the Family Benefit Schemll subsequent to the suit and a sum of Rs. 2OOO/- from the Insurance Company. These amounts have to be deducted. The net dependency will therefore come to Rs. 2,64,848-12,000 i.e. Rs. 2,52,M Allowing for the lumpsum. payment, it will be just and reasonable to award compensation in the sum of Rs. 2,50,000. The, issue is found accordingly.

15. Issue No. 5: In the result, the suit is decreed for Rs. 2.50,000, with subsequent interest at six per cent per annum thereon from the date of the plaint till payment and proportionate costs.

16. Order accordingly.


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