Karnataka High Court
The Mangalore Electricity vs Sri Kamaleshappa on 18 February, 2022
Bench: M.I.Arun
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE M.I.ARUN
R.F.A. NO. 1835 OF 2019 (DAMAGES)
BETWEEN:
1. THE MANGALORE ELECTRICITY SUPPLY
COMPANY LIMITED, MANGALURU
CORPORATE OFFICE
REP. BY ITS MANAGING
DIRECTOR, MANGALORE ELECTRICITY
SUPPLY COMPANY LIMITED
MANGALURU, PARADIGM PLAZA
A.B.SHETTY CIRCLE
MANGALURU - 575 001
2. THE EXECUTIVE ENGINEER
THE MANGALORE ELECTRICITY SUPPLY
COMPANY LIMITED, MANGALURU
O & M., DIVISION, SHIKARIPURA
SHIVAMOGGA DISTRICT
... APPELLANTS
(BY SRI.PRASHANT PANDIT T., ADV.)
AND:
1. SRI.KAMALESHAPPA
S/O NINGAPPA
AGED ABOUT 48 YEARS
OCC: AGRICULTURE
R/O HITTAL VILLAGE
2
SHIKARIPURA TALUK
SHIVAMOGGA DISTRICT
2. SMT. LALITHAMMA
W/O KAMALESHAPPA
AGED ABOUT 43 YEARS
OCC: HOUSE WIFE
R.O HITTAL VILLAGE
SHIKARIPURA TALUK
SHIVAMOGGA DISTRICT
3. THE KARNATAKA POWER
TRANSMISSION CORPORATION
LIMITED, BENGALURU CORPORATE
OFFICE REP. BY ITS CHAIRMAN-CUM-
MANAGING DIRECTOR KARNATAKA
POWER TRANSMISSION
CORPORATION LIMITED
CAUVERI BHAVAN
K.G.ROAD, BENGALURU - 560 009
4. THE DEPUTY COMMISSIONER
SHIVAMOGGA DISTRICT
SHIVAMOGGA ... RESPONDENTS
(BY SRI.SRIKANTH PATIL K., ADV. FOR R-1 AND R2;
SRI. H. V. DEVARAJU, ADV. FOR R3;
SRI. RAMESH GOWDA A., AGA FOR R4)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF THE CODE OF CIVIL PROCEDURE AGAINST
THE JUDGMENT AND DECREE DATED 05.04.2019 PASSED
IN OS.NO.24/2016 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JMFC, SHIKARIPURA PARTLY DECREEING THE
SUIT FOR DAMAGES.
3
THIS REGULAR FIRST APPEAL COMING ON FOR
ORDERS, THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE DELIVERED THE FOLLOWING:
JUDGMENT
Aggrieved by the judgment and decree dated
05.04.2019 in O.S.No.24/2016 by the Senior Civil Judge
and JMFC, Shikaripura, defendant Nos.2 and 3 have filed
this appeal.
2. Though the matter is listed for hearing on I.A.,
with the consent of parties, the matter is taken up for Final
Disposal.
3. For the sake of convenience parties are referred
to as per their status before the trial Court.
4. The unfortunate facts of the case are that one
Nitesh aged about 25 years, who was the only son of the
plaintiffs was working in an Areca Nut Garden belonging to
one Hucharayappa, came in contact with live high tension
wire which was passing above the said land and was
electrocuted and died. The case of the plaintiffs is that the
death of their son happened when he was plucking Areca
Nut from Areca Nut tree and due to wind, the high tension
wire got in contact with him. It is their specific contention
that the said wire was in a sagging, dilapidated, damaged
and dangerous condition. It is contended that defendant
No.2 which is the company bestowed with the
responsibility of maintaining the said wire had not
maintained it properly and the death happened due to the
negligence of defendant No.2. It is further contended that
deceased was aged about 25 years old at the time of the
accident and that he was an Agriculturist and was also
doing Horticulture and Animal Husbandry. For the tortious
act on part of defendant No.2 - Company, the plaintiffs
claimed damages of Rs.10,00,000/-.
5. Per contra, defendant Nos.2 and 3 filed written
statement and contested the case. It is contended that
there was no negligence on the part of the defendant No.2
- Company. The deceased was using an aluminum stick to
pluck areca nuts and same got in contact with the live
wire, there was electrocution and he died. The reason for
the death is alleged on the deceased himself.
6. Based on the pleadings, the trial Court has
framed the following issues:-
1. "Whether the plaintiffs prove that Late Nithesh
died due to gross negligence and tortuous acts of
the defendants as pleaded in the plaint?
2. Whether the plaintiffs prove that they are entitled
for the compensation of Rs.10,00,000/- with
interest at the rate of 18% p.a. from the
defendants as claimed in the plaint?
3. Whether the plaintiffs are entitled for the relief as
claimed?
4. What order or decree?"
7. The plaintiffs to prove their case examined two
witnesses as P.Ws.1 and 2 and got marked Exs.P.1 to 17.
The defendants in support of their case examined two
witnesses as D.Ws.1 and 2 and got marked Exs.D.1 to D.7.
8. Based on the pleadings and evidence let in, the
trial Court has answered the issues in the following
manner:-
Issue No.1: In the Affirmative
Issue No.2: In the Partly Affirmative
Issue No.3: In the Partly Affirmative
Issue No.4: As per the final order for the
following:
Consequently, the trial Court has passed the
following:-
"ORDER
Suit of the plaintiffs is partly decreed with
cost.
The defendants are hereby ordered and
directed to pay a sum of Rs.9,77,200/- with
interest at the rate of 9% p.a. from the date of the
suit till realization.
Draw decree accordingly.
Aggrieved by the same, defendant Nos.2 and 3 have
preferred this appeal.
9. It is contended that the trial Court blindly went
with the version of the plaintiffs and has not taken into
consideration the evidence let in on behalf of the
defendants and same has been disbelieved without any
justifiable reason. It is contended that the accident
happened due to use of an aluminum stick by the
deceased negligently and when it came into contact with
the live wire the electrocution happened and he died.
Reliance is placed on evidence of D.Ws.1 and 2 and also on
Ex.D.2, which is a report of Section Officer, KPTCL and
other exhibits produced by defendant Nos.2 and 3. It is
further contended that even if the Court were to come to
the conclusion that the accident happened due to
negligence on the part of the KPTCL, the trial Court has
awarded a greater sum which is not justifiable and prays
for allowing the appeal.
10. Per contra, plaintiffs' justifies the impugned
judgment and decree and prays for dismissal of the
appeal.
11. It is a categorical statement of PWs-1 and 2
that the high tension wire was not of great height and was
in a sagging, dilapidated, damaged and in dangerous
condition and was not maintained properly by defendant
Nos.2 and 3 and due to high velocity wind, high tension
wire came into contact with the tree on which the
deceased was working, he was electrocuted, fell down and
died. There is no dispute as to the fact the deceased died
due to electrocution. The trial Court has relied upon the
complaint, FIR, Spot Mahazar, Inquest Mahazar, charge
sheet which records the statements of the eye witnesses
and were given to the police at the earliest point of time
and also the evidence let in by the plaintiffs and has
concluded that the wires were in a sagging, dilapidated,
damaged and in dangerous condition and due to high
velocity wind, it came into contact with the tree on which
the deceased was working and he electrocuted and
because of which, he fell to the ground and died.
12. In respect of the evidence let in by the
defendant Nos.2 and 3, the trial Court has disbelieved the
same as concerned officer visited the spot after two days
of the incident and they have come up with the theory of
electrocution happening due to use of an aluminum stick
on the part of the deceased. The trial Court has
specifically observed that the same has not been produced
either before the police or before the Court by anybody
and if the said aluminum stick was lying at the spot when
the spot inspection happened, defendant Nos.2 and 3
would have produced it for their case.
13. Based on the evidence let in, the trial Court has
concluded that the accident has happened due to the
tortious acts of defendant No.2 - Company.
14. Defendant Nos. 2 and 3/appellants are unable
to demonstrate as to why conclusion of the trial Court has
to be disbelieved and reversed in so far as it relates to
negligence on the part of defendant No.2 - Company is
concerned. In my opinion, there is no error on the part of
the trial Court in appreciating the evidence regarding the
same.
15. In respect of calculating the damages in the
absence of actual proof of income on part of the deceased,
the trial Court has taken into consideration that he was an
Agriculturist and also was doing business of Horticulture
and Animal Husbandry and has taken his notional income
at Rs.6,000/- per month. The incident is of the year 2013
and even if he were to be a daily wager, the deceased
would have earned more than that. The trial Court also
has taken the calculation adopted in Motor Vehicle
Accident cases to determine the compensation and has
awarded compensation of Rs.9,77,200/- with interest at
the rate of 9% per annum.
16. Given the fact that incident is of the year 2013
and deceased was aged about 25 years and was gainfully
employed. Even in the absence of actual proof of income,
the compensation arrived at by the trial Court is just fair
and proper and it cannot be faulted with. However, it is
seen that the trial Court has awarded an interest at the
rate of 9% per annum which the learned counsel for the
appellants contend that the same is on the higher side.
Taken into consideration the back interest that is normally
granted, it is deemed appropriate to reduce the interest
awarded at 9% per annum to 6% per annum. Hence, the
following:-
ORDER
Appeal is allowed-in-part.
The compensation of a sum of Rs.9,77,200/-
awarded in favour of the plaintiffs by the trial Court
is upheld.
Interest rate on the said amount at the rate of
9% per annum as awarded by the trial Court is
reduced to 6% per annum from the date of suit till
realization.
Amount in deposit to be released in favour of
the plaintiffs.
No order as to costs.
Sd/-
JUDGE
MH/-
