Smt. Siddagangamma vs Superintendent Engineer
2022 Latest Caselaw 10453 Kant

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                                                      RSA No. 2498 of 2018


                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 07TH DAY OF JULY, 2022

                                             BEFORE

                         THE HON'BLE MR JUSTICE RAVI V HOSMANI

                      REGULAR SECOND APPEAL NO. 2498 OF 2018 (RES)

                 BETWEEN:

                 1.     SMT. SIDDAGANGAMMA
                        W/O LATE RANGANATH
                        AGED ABOUT 28 YEARS

                 2.     RAKESH
                        S/O LATE RANGANATH
                        AGED ABOUT 13 YEARS

                 3.     RAKSHITHA
                        D/O LATE RANGANATH
                        AGED ABOUT 11 YEARS

                 4.     RAMESH
                        D/O LATE RANGANATH
                        AGED ABOUT 5 YEARS

                 5.     ERANNA
                        S/O LATE BHEEMABOVI
                        AGED ABOUT 63 YEARS

                 6.     SMT. GANGAMMA
Digitally signed by     W/O ERANNA
VEENA KUMARI B
                        AGED ABOUT 58 YEARS
Location: High
Court of Karnataka
                        APPELLANT NOs.2 TO 4
                        ARE BEING MINOR REP BY THE
                        APPELLANT NO.1 HEREIN
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                                        RSA No. 2498 of 2018


       ALL APPELLANTS ARE PRESENTLY
       RESIDENTS OF IN
       FRONT OF SRIDEVI COLLEGE
       SIRA ROAD
       TUMKURU-572 101.


       ALL ARE PERMANENTLY
       R/A TAGGIHALLI VILLAGE
       RATHNASANDRA POST
       KASABA HOBLI, SIRA TALUK
       TUMAKURU DISTRICT-572 137.
                                                   ...APPELLANTS

[BY SRI GIRISH B BALADARE, ADVOCATE (PH)]

AND:

SUPERINTENDENT ENGINEER
BESCOM, O AND M CIRCLE
OLD KOTHITHOPU ROAD
TUMAKURU
TUMAKURU DISTRICT-572 101.
                                                   ...RESPONDENT

[BY SRI H.V.DEVARAJU, ADVOCATE (PH)]

       THIS R.S.A IS FILED UNDER SECTION 100 OF CPC., 1908
AGAINST THE JUDGMENT AND DECREE DATED 25.06.2018 PASSED
IN R.A.NO.142/2017, ON THE FILE OF THE VI ADDL. DISTRICT AND
SESSIONS    JUDGE,   TUMAKURU   ALLOWING     THE   APPEAL   AND
MODIFYING    THE   JUDGMENT   AND   DECREE   DATED   03.03.2017
PASSED IN O.S.NO.43/2015 ON THE FILE OF THE PRL.SENIOR CIVIL
JUDGE AND CJM., TUMAKURU.


       THIS RSA COMING ON FOR ADMISSION THIS DAY, COURT
DELIVERED THE FOLLOWING:
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                                               RSA No. 2498 of 2018


                              JUDGMENT

Challenging impugned judgment and decree dated

25.06.2018 passed in R.A.No.142/2017 by VI Addl. District &

Sessions Judge, Tumakuru, by modifying judgment and decree

dated 03.03.2017 passed in O.S.No.43/2015 by Prl. Senior Civil

Judge & CJM, Tumakuru, this second appeal is filed by

appellants.

2. Appellants were plaintiffs no.1 to 6 in suit and

respondents no.1 to 6 in first appeal. Whereas, respondent was

defendant in suit and appellant in first appeal. For sake of

convenience, parties shall hereinafter be referred to as per

their ranks in trial Court.

3. O.S.No.43/2015 was filed by plaintiffs claiming

compensation on account of death of Ranganath due to

electrocution. It was their case that plaintiff no.1 is wife,

plaintiffs no.2 to 4 are children and plaintiffs no.5 and 6 are

parents of deceased Ranganath. It was averred in plaint that

deceased was working as tenant under Bommegowda. While he

was working in fields on 29.08.2009 at about 4.30 p.m., he

came in contact with live electric wire lying in middle of paddy

RSA No. 2498 of 2018

crop and due to electrocution, died at spot. Thereafter father of

deceased lodged complaint with Sira police. Case was

registered in UDR No.29/2009 against defendant and submitted

final report. It was their case that death was on account of

negligence of defendant, as defendant was bound to take

precaution and maintain livewires in good condition. It was

stated in plaint that defendant has paid `1,00,000/- to plaintiff

towards cremation, transportation and other expenses and

assured that they will give more compensation, but in vain. It

was their case that deceased was sole bread earning member

of family, due to his untimely death they were put to misery.

Therefore, plaintiffs filed present suit against defendant for

compensation.

4. On issuance of suit summons, defendant appeared

entrance and denied plaint averments. It contended that suit

was not maintainable. It was further contended that after

receiving `1,00,000/-, plaintiffs gave undertaking that they

would not approach Civil Court for higher compensation. It was

also contended that neither owner of land nor any other villager

informed defendant about incident. It was further contended

that Investigating officer gave report stating that death was

RSA No. 2498 of 2018

accidental, therefore they were not entitled for compensation.

There was delay of 5-6 years in filing suit. Hence sought for

dismissal of suit as barred by limitation.

5. Based on pleadings, trial Court framed following issues:

1. Whether the plaintiffs prove that they are the legal representatives of deceased Ranganath?

             2.   Whether     the  plaintiffs prove  that
                  Ranganath died due to negligence on the
                  part of defendant?

3. Whether the plaintiffs prove that they are entitled for the damages as contended?

4. Whether the plaintiffs are entitled for the relief claimed?

5. What order or decree the parties entitled for?

6. To establish their case, plaintiff no.5 was examined

as PW.1 and got marked Exhibits P1 to P6. On behalf of

defendant, Superintendent Engineer, BESCOM was examined

himself as DW.1, but did not choose to adduce documentary

evidence.

7. Thereafter trial Court on consideration of evidence on

record, answered issue nos.1 to 4 in affirmative and issue no.5

by decreeing suit of plaintiffs and awarded total compensation

RSA No. 2498 of 2018

of `13,00,000/- and excluding `1,00,000/- already paid by

defendant, `12,00,000/- with interest at 6% p.a. from date of

suit till realisation.

8. Assailing same, defendant filed R.A.No.142/2017 on

several grounds. It was contended that impugned judgment

and decree passed by trial Court was opposed to law and facts

of case. It erred in answering issues in favour of plaintiff and

decreeing suit. It was contended that along with appeal,

I.A.No.5 was also filed for condonation of delay. Therefore,

sought for allowing appeal.

9. Though plaintiffs entered appearance in first appeal,

they did not file objections to said application.

10. On perusal of evidence and entire records, first

appellate Court framed following points for consideration:

1. Whether there is sufficient cause to condone delay in filing this appeal?

2. Whether the impugned judgment and decree of the trial Court is erroneous?

3. Whether the impugned judgment & decree of the trial Court warrants interference by this Court?

4. What order or decree?

RSA No. 2498 of 2018

11. After consideration of material on record and re-

appreciation of evidence, first appellate Court answered points

no.1 to 4 in affirmative and answered point no.5 by modifying

judgment and decree passed by trial Court reducing total

compensation to `6,94,000/- and directing defendant to pay

`5,94,000/- excluding `Rs.1,00,000/- already paid by

defendant, with interest at 6% p.a.

12. Aggrieved by same, plaintiffs have preferred this

second appeal.

13. Sri Girish B Baladare, learned counsel for

plaintiffs/appellants submitted that impugned judgment and

decree passed by first appellate Court was contrary to law and

evidence on record. It was submitted that trial Court on due

consideration of evidence on record had held that death of

Ranganath was due to electrocution, of which strict liability

was attributable against defendant as it was required to

maintain live-wires in safe state. Trial Court had also

determined compensation by considering annual income of

deceased at `1,00,000/-, which would be at rate of `8,333/-

per month. Same would be justified considering that deceased

RSA No. 2498 of 2018

was an able bodied person, aged 35 years. It had rightly

applied principles evolved for computing compensation in motor

accident claim cases and decreed suit awarding total

compensation of `13,00,000/-.

14. Without proper justification, first appellate Court

considered income of deceased at `150/- per day i.e., `4,500/-

per month and without adding future prospectus reduced

compensation to `6,94,000/-. Learned counsel further

submitted that even award under conventional heads called for

interference. Learned counsel proposed following substantial

question of law:

"Whether first appellate Court was justified in reducing compensation awarded by trial Court?"

15. On other hand, Sri. H.V. Devaraju, learned counsel

for defendant - Corporation supported impugned judgment and

decree and opposed appeal. It was submitted that instant case

was not arising out of provisions of Motor Vehicles Act.

Therefore application of principles for awarding compensation

under said Act could not be invoked for claims under strict

liability. In instant case, plaintiffs did not lead any evidence to

RSA No. 2498 of 2018

establish monthly income of deceased. He further submitted

that incident occurred on 29.08.2009. Therefore, monthly

income of `8,333/- for said period would be exorbitant. Even

award under conventional heads was also opposed.

16. From above submission, occurrence of incident on

29.08.2009 leading to death of Ranganath due to electrocution

is not in dispute. Trial Court decreed suit by holding that

defendant was liable to pay compensation on tortuous liability.

It calculated compensation by adopting principles for

computation as applicable in motor accident claims, while

decreeing suit for `13,00,000/-. Aggrieved by said award,

defendant filed appeal, which was allowed in part and

compensation was reduced to `6,94,000/-. However, finding of

strict liability of defendant was confirmed. Against said

judgment and decree, only original plaintiffs have filed appeal.

Therefore, finding of trial Court regarding liability of defendant

to pay compensation attained finality.

17. Only substantial question of law that would be

available for consideration in this appeal is, whether principles

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RSA No. 2498 of 2018

applied by first appellate Court for reducing compensation are

in accordance with law?

18. Both trial Court as well as first appellate Court while

passing impugned judgment and decree have held that in case

of death due to electrocution by live-wire, rule of strict liability

would be applicable. Insofar as principles of assessing

compensation, a Division Bench of this Court in its judgment

dated 17.02.2020 in RFA No.493/2019, (Executive Engineer,

Electrical and Another Vs. Smt. D.C.Bhagya and another),

has held that method of assessing compensation in Motor

accident claims would be applicable. This method is being

consistently applied. Hence, substantial question of law is

negative.

19. Admittedly, incident occurred on 29.08.2009. As on

date of death, deceased Ranganath was aged 35 years. For

year 2009, this Court is consistently considering monthly

income to be at `5,000/- in motor vehicle cases. Hon'ble

Supreme Court in National Insurance Company Ltd., Vs.

Pranay Sethi & Others1, has held that there should be an

1 AIR 2017 SC 5157

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RSA No. 2498 of 2018

addition of 40% to monthly income of deceased, since he was

aged below 40 years and was in private service. Plaintiff no.5 is

father. There is no evidence led to establish that he was unable

to maintain himself and dependent on income of deceased. In

absence of specific evidence to establish dependency, father

cannot be treated as dependent on son. Hence, there would be

five dependents. As per decision of Hon'ble Supreme Court in

Sarla Varma & Others Vs. Delhi Transport Corporation

and Another2, deduction towards personal expenses of

deceased would be 1/4th. Proper multiplier corresponding to

age of deceased would be '16'. Thus, computation would be as

follows:

`5000 + 40%(FP) - 1/4th X 12 X 16 = `10,08,000/-

As per Pranay Sethi's case (supra), plaintiffs would also

be entitled to compensation under conventional heads i.e., loss

of consortium at `40,000/- to each of plaintiffs, `15,000/-

towards loss of estate and `15,000/- towards funeral expenses.

Therefore, total compensation would be :

`10,08,000/- + `2,00,000/-(`40,000/-X5) + `15,000/-+ `15,000/- = `12,38,000/-.

2009 (6) SCC 121

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RSA No. 2498 of 2018

20. Plaintiffs admitted receipt of Rs.1,00,000/- from

defendant towards ex-gratia. Both Courts had deducted this

amount from total compensation. Same also requires to be

deducted from total compensation. After deduction, plaintiffs

would be entitled to `11,38,000/-. Hence, I pass following:

ORDER

Appeal is allowed in part with costs.

Plaintiffs/appellants are held entitled for compensation of

`11,38,000/- with interest at 6% per annum from date of suit

till realisation from defendant.

Upon deposit plaintiff no.6 shall be entitled for lumpsum

amount of `2,00,000/-. Remaining amount is to be shared by

plaintiffs no.1 to 4 equally.

Sd/-

JUDGE

Psg*