Andhra Pradesh High Court - Amravati
The Superintendent Of Police vs Gummadi Mariyamma on 4 October, 2024
1
APHC010473972007
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3369]
(Special Original Jurisdiction)
FRIDAY, THE FOURTH DAY OF OCTOBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO
SECOND APPEAL NO: 311/2007
Between:
The Superintendent Of Police and Others ...APPELLANT(S)
AND
Gummadi Mariyamma and Others ...RESPONDENT(S)
Counsel for the Appellant(S):
1. GP FOR ARBITRATION
Counsel for the Respondent(S):
1. P MURALI KRISHNA PRASAD
The Court made the following JUDGMENT:
1. This Second Appeal was filed by the Appellants/Respondents
Appellants/Respondents under
Section 100 of the Code of Civil Procedure, 1908 (for short, 'C.P.C.') against
the Judgment and decree, dated 16.10.2006 passed in A.S.No.152
152 of 2006 on
the file of learned Principal District Judge, West Godavari at Eluru (for short,
'the 1st Appellate Court')
ourt') reversing the Judgment
Judgment and decree, dated
08.11.2005 passed in O.S. No.37
No. of 2004
4 on the file of learned Additional
Senior Civil Judge, Eluru (for short 'the trial Court').
2. The Respondents/Appellants are the Plaintiffs
Plaintiffs, who initiated the suit in
O.S.No.37 of 2004 for damages of Rs.3,00,000/-
Rs.3,00,000/ along with costs.
costs The
Appellants/Respondents are the Defendants in the said suit.
3. The parties to the Appeal are referred to as they are arrayed in
O.S.No.37 of 2004.
4. In the plaint, it is averred that Gummadi Narayanarao (hereinafter
referred to as 'the deceased'), the 1st Plaintiff's husband, the 2nd and 3rd
Plaintiffs' father, and the 4th Plaintiff's son, tragically passed away on
14.08.2003 at the age of 48. The Station House Officer of Dwaraka Tirumala
Police Station and his staff were cleaning their station premises. They planned
to erect an iron pole for the National Flag hoisting the following day. They
engaged the deceased as a labourer for this task. At approximately 4:30 PM
on that day, while the iron pole was being lifted to be installed, it came into
contact with high-voltage electrical lines, causing an electric shock that
rendered the deceased unconscious. Despite the proximity of a public health
centre, merely 20 yards away, the Defendants did not take the victim there or
inform the Plaintiffs of the incident. Instead, they transported him in a jeep to
the Government Headquarters Hospital in Eluru while keeping the situation
secret from the Plaintiffs. At around 10:30 PM on the same day, the
Defendants informed the Plaintiffs and handed over the deceased's body. The
Plaintiffs reported the matter to the higher authorities in the Police Department
seeking compensation, but there was no response. It is stated that the
deceased was in good health and could have earned Rs.100/- per day as a
labourer for at least the next ten years. Based on this, the Plaintiffs have
calculated the compensation at Rs.3,00,000/-.
5. The 1st Defendant filed a written statement, which the 2nd Defendant
adopted, refuted the plaint averments, contending that Gummadi Narayanarao
was never hired as a coolie, as the police station had its staff for the required
tasks, and no contract existed between the parties. The deceased, who was
mentally unstable, accompanied villagers to the police station for an inquiry.
During this time, as a constable was erecting an iron pole, the deceased
suddenly rushed towards him, causing the pole to contact live electrical wires.
While the constable, wearing shoes, suffered a minor shock, the deceased,
barefoot, received a fatal shock.The Defendants immediately sought medical
help, but as the local doctor was unavailable, they shifted the deceased to a
hospital in Eluru, where he passed away en route. The Defendants requested
dismissal of the suit with exemplary costs.
6. Based on the above pleadings in O.S.No.37 of 2004, the trial Court
framed the following issues:
1) Whether the Plaintiffs are entitled to compensation as prayed for?
2) To what relief?
7. During the trial, P.W.1 was examined and marked Exs.A.1 to A.8 on
behalf of the Plaintiffs. Conversely, on behalf of the Defendants, D.W.1 was
examined, and no documents were marked.
8. After completing the trial and hearing the arguments of both sides, the
trial Court dismissed the suit.
9. Aggrieved by the Judgment and decree in O.S.No.37 of 2004, the
Plaintiffs filed A.S.No.152 of 2006 before the 1 st Appellate Court. The 1st
Appellate Court, on scrutiny of oral and documentary evidence adduced on
behalf of both sides, had partly decreed the Appeal by its Judgment,
dt.16.10.2006, for Rs.1,50,000/- with proportionate costs and interest at 12%
per annum from the date of suit till the date of realization. Aggrieved by the 1st
Appellate Court's decree and Judgment passed in A.S.No.152 of 2006, the
Appellants/Respondents preferred the present Second Appeal.
10. I heard the Government Pleader for Arbitration represent the
Appellants/Defendants, but none represent the Respondents/Plaintiffs.
11. The learned counsel for the Appellants / Respondents / Defendants
asserts that the deceased was not employed as a coolie, and therefore, the
Appellants have no contractual obligation to pay damages. There is no
evidence to substantiate that the deceased was engaged as a coolie or that
he sustained electric shock due to the Appellants' negligence. On the
contrary, they took all reasonable steps to save the deceased's life on
humanitarian grounds, even though he was not working as a coolie at the
police station. The deceased was mentally unstable and did not contribute
financially to his family, resulting in no financial loss to his dependents. The 1 st
Appellate Court failed to properly evaluate the evidence and arrived at an
erroneous conclusion by holding that the Appellants were responsible for the
death.
12. Despite being granted several adjournments, no representation has
been made on behalf of the Respondents 1 to 4 / Appellants / Plaintiffs.
Therefore, the matter is deemed to have been heard on behalf of the
Respondents.
13. Based on the Appellants' contentions, the Second Appeal is admitted
on the following substantial questions of law:
1. If the State/Government of Andhra Pradesh represented by
District Collector as required under Order XXVII of C.P.C., is
not made party to the suit, can Plaintiffs maintain the suit for
recovery of damages for the death of a person due to
electrocution? and
2. If the answer to the first question is negative, can the
Plaintiffs be entitled to apply to Order I Rule 10(2) C.P.C., to
implead the State/Government of Andhra Pradesh
represented by the District Collector at the stage of Second
Appeal to cure the defect?
14. This Second Appeal has been heard on the aforesaid substantial
question of law given the said finding of the learned 1 st Appellate Court.
15. The relationship between the Plaintiffs and the deceased is undisputed.
The 1st Plaintiff is the wife, Plaintiffs 2 and 3 are the children, and the 4th
Plaintiff is the mother of the deceased. The Plaintiffs contend that the
deceased died due to an electric shock. The 1st Plaintiff testified as PW.1.
However, both the trial Court as well as the 1st Appellate Court noted that she
was not an eye witness to the incident in question. Although the trial Court
ultimately dismissed the suit, it acknowledged in paragraph No.12 of its
Judgment that "the undipusted fact remained that electric shock caused death
of Narayana Rao (deceased)".
16. The Defendants examined DW.1 (K. Devid Raju), who testified that
while their constable was erecting an electrical pole, the deceased, reportedly
insane, ran towards that constable and pushed him. It caused the iron pole to
come into contact with electrical lines, resulting in an electrical shock. The
Defendants specifically claim that they did not engage the deceased as a
coolie. However, DW.1 admitted to lacking personal knowledge of the
incident. Notably, the constable who was present at the time of the incident
was not called to testify on behalf of the Defendants. There appears to be no
adequate explanation for this omission, especially since the constable was
present at the time of the incident. DW.1 also did not indicate that other
witnesses were present during the incident. Given that the incident occurred in
the presence of both the constable and the deceased, the Defendants should
have called the constable to testify in support of their case.
17. The trial Court noted that the electrical lines of the electricity department
are visibly located in the open area surrounding the Defendant's police station.
It pointed out that the fact another constable (named Papaiah) suffered an
electric shock, as indicated in the Newspaper publication (Ex.A.3), casts doubt
on the Plaintiffs' claim that the deceased was engaged as a coolie by the
Police. However, this reasoning lacks legal validity. The mere occurrence of
injuries to one constable does not make it improbable for another individual to
sustain injuries from an electric shock. Furthermore, the Defendants were
obligated to explain the presence of the deceased in the open area of the
Police station premises.
18. In this context, the 1st Appellate Court carefully considered the evidence
presented, mainly referring to Ex.A.1, a photostat copy of F.I.R. The 1 st
Appellate Court noted that according to the F.I.R., the deceased was present
when the constable was lifting the pole. During this process, when the
constable sustained an electric shock, the deceased pushed him, resulting in
both sustaining severe shock. The 1st Appellate Court further noted that the
F.I.R., indicated that Narayana Rao and the constable were lifting the pole,
which made contact with the high-voltage wires. The 1st Appellate Court
concluded that if the deceased was not engaged as a coolie, he should not
have been near the constable. It observed negligence on the part of the
constable, who, aware that the wires were at a height of 10 feet and posed a
danger, allowed the deceased to assist without cautioning him. Furthermore,
the 1st Appellate Court emphasised that the constable had a responsibility to
caution the deceased, a stranger at the police station, for assistance. This
negligence was deemed civil in nature, justifying the Plaintiffs' claim for
damages. Moreover, the 1st Appellate Court also pointed out the obligation of
the Station House Officer to inform the deceased's family members about the
incident and his hospitalisation at the Government Hospital in Eluru. The
failure to communicate these important details to the family or village elders,
remaining silent until 10.30 PM, was viewed as gross negligence on the part
of the Defendants.
19. The 1st Appellate Court highlighted that DW.1's testimony indicated that
only Narayana Rao assisted the constable in lifting the pole, suggesting he
was engaged as a labourer. The Defendants contended that the deceased
was insane and had followed other villagers for an inquiry. However, they did
not take steps to examine those villagers. DW.1 also conceded that he had no
evidence to support the claim of the deceased's insanity. Furthermore, the
written statement did not mention the name of the constable involved in
erecting the pole at the time of the incident. The 1st Appellate Court
determined that the deceased's death was a result of the Defendants'
negligence, particularly noting their failure to inform the family until 10:30 PM,
a finding supported by the evidence presented. The trial Court erroneously
concluded that the Plaintiffs failed to prove the earnings of the deceased and
failed to establish how his death caused financial disaster for them. The
incident itself speaks volumes about the miseries suffered by the Plaintiffs-
Respondents. Maxim res ipsa loquitur is fully attracted to the facts of this
case. It is a settled principle of law that civil cases are to be decided on the
basis of preponderance of probability and evidence.
20. The 1st Appellate Court, upon evaluating the evidence, concluded that
the Defendants acknowledged the death of the deceased resulting from an
electrical shock while a constable was erecting a pole on their premises. The
1st Appellate Court emphasised that the Police have a duty to protect the lives
of persons visiting their premises, necessitating a high level of caution, which
was lacking in this case, indicating apparent negligence on the part of the
Defendants. Furthermore, the 1st Appellate Court noted that even if an insane
person enters the police station, it is the bounden duty of the authorities to
prevent any unfortunate incidents and ensure the safety of persons within their
premises.
21. After evaluating the evidence, the 1st Appellate Court rightly
concludedthat Ex.A.7 demonstrated the Defendants' negligence, which
resulted in the deceased's death from electric shock on their premises. The 1 st
Appellate Court noted that the contents of the notice should be interpreted in
both letter and spirit. The Defendants did not contest the suit on the basis of
maintainability of the notice under section 80 of C.P.C. However, without any
basis in the pleadings, the trial Court dismissed the suit, claiming that no such
notice had been provided, a finding not supported by the pleadings. The 1 st
Appellate Court also relied on the decision reported in AIR 1969 KERALA
280, noting that the benefit of notice under section 80 C.P.C., exclusively
applies to the Government and its officers. In the present case, the
Superintendent of Police and the Station House Officer, named in Ex.A.7, fall
within this category. Furthermore, the 1st Appellate Court referenced the
precedent outlined in AIR 1978 Andhra Weekly Reporter 533, which
establishes that the requirement for a notice under section 80 of the C.P.C.,
may be waived. The 1st Appellate Court also noted that this waiver can be
initiated by the party for whom the provision is intended to confer benefit.
Significantly, the Defendants failed to assert that the suit lacked maintainability
due to the absence of notice under section 80 of C.P.C. Moreover, there were
no objections raised in the written statement regarding the validity of the
notice issued on behalf of the Plaintiffs.
22. The learned trial Court noted that the cause title of the case does not
include the State of Andhra Pradesh as a party and fails to indicate that the
District Collector represents the State Government. The trial Court concluded
that the suit was invalid due to the lack of a notice under Section 80 of C.P.C.,
and for not naming the appropriate party in the suit.
23. At this juncture, it is essential to highlight that the Defendants did not
assert a plea claiming that the suit was flawed due to the non-joinder of the
State Government, represented by the District Collector, as a party. The
incident in question occurred within the premises of the police station, where
the Plaintiffs have included both the Superintendent of Police and the Station
House Officer as parties to the proceedings. Even assuming that the District
Collector was to be made a party, the trial would still proceed under the
direction of the police officers, with the Government Pleader representing the
Defendants. Notably, the Government Pleader has already conducted the trial
proceedings on behalf of the Defendants.
24. In the case Kondaviti Francis V. M.Ludramma and others 1 , the
composite High Court of Andhra Pradesh observed that:
"It is an established and expected principle that pleadings form the
foundation of the case, and the parties are bound by the pleadings.
They cannot travel beyond the pleadings or set up a new case that is
not propounded in the pleadings, and any amount of evidence
contrary to the pleadings cannot be looked into (AIR 1987 SC 2179).
2000(3) ALT 433
25. The rationale behind this principle is to ensure that all issues are
presented and resolved at the trial level, thereby promoting judicial efficiency
and reducing unnecessary delays in the legal process.
26. According to established legal principles, Appellate Courts are reluctant
to consider objections not articulated during the trial phase. This hesitance is
primarily rooted in the potential for protracted delays and escalated litigation
costs, as well as the risk of shifting the focus from the trial Court's role to that
of the Appellate Court. In the present case, however, the trial Court
determined that the suit was flawed due to the non-joinder of necessary
parties, even though the Defendants did not raise such objections in their
written statement. This oversight undermines the trial Court's conclusion and
raises pertinent concerns regarding the integrity of procedural fairness.
27. The object and purpose of pleadings and issues is to ensure that the
litigants come to trial with all issues clearly defined and to prevent cases from
being expanded or grounds from being shifted during trial. Its object is also to
ensure that each side is fully aware of the questions that are likely to be raised
or considered so that they may have an opportunity to place the relevant
evidence appropriate to the issues before the Court for its consideration. This
Court has repeatedly held that the pleadings are meant to give to each side
intimation of the case of the other so that it may be met, to enable courts to
determine what is really at issue between the parties and to prevent any
deviation from the course which litigation on particular causes must take.
28. The Court can only make out a case if pleaded. The Court should
confine its decision to the question raised in pleadings. Nor can it grant a relief
that is not claimed and does not flow from the facts and the cause of action
alleged in the plaint.
29. Order 1 Rule 10 C.P.C., enables the Court to add any person as a party
at any stage of the proceedings if the person whose presence before the
Court is necessary to allow the Court to effectively and completely adjudicate
upon and settle all the questions involved in the suit. Avoidance of multiplicity
of proceedings is also one of the objects of the said provision in the Code.
30. In Vadde Narayana Reddy V. Mandal Revenue Officer and Ors.2, the
composite High Court of Andhra Pradesh held that:
3. The learned Counsel for the petitioner submits that the lower Court
was not having jurisdiction to implead the Collector when the plea of the
Mandal Revenue Officer was to implead him. At the most, even if the
impleadment petition was to be allowed, only the Mandal Revenue
Officer could be impleaded, not the Collector. I cannot accede to this
contention. No constraints can be placed on the powers of the Court to
implead a party, and ultimately, it is the Court that has to consider who
the necessary and proper party is so that effectual adjudication is made
to bind the parties. Even if an application is made to implead a particular
person or officer as a party, the Court is not precluded from exercising
its mind to find out whether such a person or officer is a necessary or
proper party and, if not, whether any other person or officer could be
added as parties.
31. In Khaja Abdul V. Mahabub Saheb, the composite High Court of
Andhra Pradesh held that the expression "settle all the questions involved in
the suit" used in Order 1, Rule 10(2) C.P.C., is susceptive of a liberal and wide
interpretation to take in the final adjudication of all the questions pertaining to
the subject-matter thereof..... The crucial test for the addition or otherwise of a
particular party as Defendant or Plaintiff is whether the presence of such party
is necessary or at least proper, without whom there can be no effective and
final adjudication of all issues involved in the suit with regard to the same
subject matter. It was also held that the intendment and object of this provision
is to invest the Court with ample power and jurisdiction to strike out the name
of any party improperly joined or to add any person who ought to have been
joined or whose presence is necessary to enable the Court effectually and
completely to adjudicate upon and settle all the questions involved in the suit.
In other words, the jurisdiction is vested in the Court to add a party, provided
MANU/AP/0432/1995
his presence is necessary to wholly and effectually adjudicate upon and settle
all the questions involved in the suit.
32. This Court views that the trial Court erroneously deemed the suit
defective due to the non-joinder of necessary parties. By invoking the
provisions of Order 1, Rule 10 of C.P.C., the trial court had the authority to
take appropriate steps to implead the District Collector as a party to the
proceedings. However, it failed to do so, despite the absence of such an
objection from the Defendants. Furthermore, the trial Court neglected to
consider the case's critical circumstances. Notably, the deceased had
attempted to assist a police constable by lifting a pole and intervening to
rescue him, only to come into contact with high-voltage electrical lines, which
resulted in an electric shock that rendered him unconscious. The trial Court's
dismissal of the suit, without acknowledging these factual nuances or
recognising that the Defendants did not raise this issue in their written
statement, reflects a significant oversight.
33. In United Bank of India vs Naresh Kumar and Ors. 3, the Hon'ble
Supreme Court held that:
9. In cases like the present, where suits are instituted or defended on
behalf of a public corporation, public interest should not be permitted to
be defeated on a mere technicality. Procedural defects which do not go
to the root of the matter should not be permitted to defeat a just cause.
There is sufficient power in the Courts, under the C.P.C., to ensure that
injustice is not done to any party who has a just cause as far as
possible; a substantive right should not be allowed to be defeated on
account of a procedural irregularity which is curable.
34. The failure of a party to object when it had a right to do so before the
trial Court constitutes a waiver of the right to object and precludes him from
exercising the said right in the appellate Court. Such waiver or estoppel may
arise from mere silence or inaction or from inconsistent conduct or statement
or from admission, concession, consent or acquiescence or from acceptance
MANU/SC/0002/1997
of the benefits of a ruling of the trial Court or its Judgment or decree or from
an error which the party itself invited.
35. Concerning the substantial question of law, suffice it to say that
Defendants had raised no such objection in the written statement and is thus
precluded from raising this contention as has been held in (1) Kerala
Transport Company V. Apollo Cables Private Ltd.4, (2) Auto Trade and
TransportV.National Insurance Company 5 , and (3) Lucky Forwarding
AgencyV. Smt. Binder Devi6.
36. The learned 1st Appellate Court has differed from the said finding of the
learned trial Court. The impugned Judgment and decree of the trial Court is,
thus, perverse and vitiated due to the irrelevant consideration.
37. After a thorough evaluation of the evidence, this Court is inclined to
uphold the 1st Appellate Court's finding that the deceased died while working
as a coolie alongside the constable. The 1st Appellate Court considered that
the deceased likely earned not less than Rs.50/- per day, estimating his
monthly income at Rs.1,500/- per month. Consequently, the 1st Appellate
Court awarded the compensation at Rs.1,50,000/-.
38. There is no specific method of computing the compensation provided
under the Electricity Act, and the rules framed there for death due to
electrocution. However, as the death has been caused due to negligence in
erecting the pole, it would be appropriate to apply the method as provided for
in the Motor Vehicle Act for computation.
39. In the public interest litigation for compensation and justice to persons
who died and were injured in TISCOs function on 3.3.89 in Jamshedpur by
sudden fire, the Supreme Court appointed Justice Y.V.Chandrachud to assess
and report; Report gave after about 7 years; Claimants contending that
AIR 1986 KERALA 219
AIR 1998 MADHYA PRADESH 147
AIR 2003 MADHYA PRADESH 261
system of the multiplier in assessing compensation is not proper and
considering the report and three decisions of Andhra Pradesh High Court, the
Hon'ble Apex Court in Lata Wadhwa & Ors. V. State of Bihar & Ors. 7 ,
observed that:
The manner of arriving at the damages is to ascertain the net
income of the deceased available for the support of himself and
his dependants and to deduct from that place such part of his
income as the deceased was accustomed to spend upon
himself, as regards both self-maintenance and pleasure and to
ascertain what part of his net income the deceased was
accustomed to spend for the benefit of the dependants. It
should be capitalised by multiplying it by a figure representing
the proper number of years purchased. It was also stated that
much of the calculation necessarily remains in the realm of
hypothesis. In that region, arithmetic is a good servant but a
bad master since there are so often many imponderables.
The Hon'ble Apex Further observed that:
........the multiplier method is of universal application. It is
being accepted and adopted in India by courts, including the
Supreme Court, and as such, it would be necessary to apply
the said method to determine the quantum of compensation.
40. Considering the parameters indicated in the Judgment and as schedule
II of the Motor Vehicle Act pertains to fatal accidents, this Court is inclined to
apply schedule-II (U/sec.163-A of Motor Vehicle Act, 1988) to assess the
compensation.
41. By the plaint, the deceased's age was indicated as 48 years as of the
date of the incident, which is undisputed. This Court concludes that 1/3 rd of the
deceased's earnings should be deducted for personal and living expenses.
After the deduction of 1/3rd of the earnings as observed above, the deceased's
monthly earnings would amount to Rs.1,000/-.
42. To evaluate the loss of earnings, this Court views that a multiplier of '13'
is appropriate for calculating compensation. Thus, the loss of dependency is
determined to be Rs.1,56,000/- (Rs.1,000/- x 12 x 13).
2001 ACJ 1735
43. In light of the facts of the case, it is beyond any doubt that the
compensation amount fixed by the 1st Appellate Court is just and reasonable.
44. This Court discerns no perversity in the Judgment rendered by the
learned 1st Appellate Court. The findings and reasoning provided by the 1 st
Appellate Court are consistent with established legal principles. The 1st
Appellate Court meticulously reviewed all the evidence available on record.
Consequently, the Judgment of the learned 1st Appellate Court is upheld. The
Second Appeal lacks merits in its entirety.
45. The substantial questions of law presented in this Second Appeal are,
accordingly, answered in the affirmative and the Judgment and decree of the
learned 1st Appellate Court are hereby confirmed. In these circumstances,
finding no such questions that require consideration in the Second Appeal,
which is a much less substantial question of law as pointed out for the
Appellants, this Second Appeal has to be dismissed.
46. As a consequence, this Second Appeal is dismissed without costs.
The Judgment dated 16.10.2006 of learned Principal District Judge, West
Godavari District at Eluru, in A.S. No.152 of 2006, stands confirmed.
As a sequel, pending miscellaneous applications, if any, shall stand
closed.
_____________________________
JUSTICE T. MALLIKARJUNA RAO
Date: 04.10.2024
SAK
THE HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
SECOND APPEAL NO. 311 OF 2007
Date: 04.10.2024
SAK
