Smt. Ramagani Ammal @ Aminthagani Ammal vs The Tamil Nadu Electricity Board

E. Padmanabhan, J.—The unsuccessful and unfortunate plaintiff in O.S. No. 6633/86 on the file of the III Asst. Judge, City Civil Court,

Madras, is the appellant in this appeal. The plaintiff instituted the suit claiming compensation of Rs. 99,000/- being the damages caused consequent

to the death of her husband by electrocution due to the negligence on the part of the Electricity Board and its officials. The trial Court dismissed the

suit. Hence the present appeal. Heard Mr. K.P. Gopalakrishnan, learned counsel appearing for the appellant and Mr. V. Rengabashyam, learned

counsel appearing for the respondents. For convenience, the parties will be referred as arrayed before the Court below.

The plaintiff and her husband, Rajamani Nadar, were residing at Injambakkam. The plaintiff''s husband is running a general stores and on an

average he was making Rs. 30/- per day and they have been living happily. Though the plaintiff''s husband is aged about 60 years, he was very

hale and healthy and looking after the business himself besides going for purchase.

According to the plaintiff, on 31.12.1984, the plaintiffs husband as usual got up early in the morning around 5.00 a.m. and went out to attend

nature''s call. On the main road when the plaintiffs husband was proceeding, he was electrocuted and he died on the spot. According to the

plaintiff, the electrocution was solely due to the negligence on the part of the defendant Board and its officials as the electric wire which got

snapped, dropped and as a result of that, the deceased was electrocuted while he was proceeding on the main road. Though the plaintiff had

estimated the damages at Rs. 4,34,000/- she had restricted her claim to Rs. 99,000/-. The plaintiff had instituted the suit as an indigent person.

The defendants 1 and 2 filed a common written statement pleading that the deceased Rajamani was more than 60 years old, that he was not

hale and healthy, that he was suffering from illness, that he lost his hearing power, that he lost his vision partly and that he was not earning Rs. 30/-

per day as claimed. Even if the plaintiffs husband was running a betel nut shop his earnings would not exceed Rs. 5/- per day.

The defendants further pleaded that on 31.12.1984, at the early hours there was heavy rain and wind and due to the heavy rain and wind, one

conductor got snapped and fell on the ground. The villagers were aware of the snapping of the wire and seemed to have cautioned all people not

to go near the snapped wire. This defendant, on enquiry, learnt that when the plaintiff''s late husband was trying to cross the live wire, the villagers

shouted at him not to cross the live wire. But due to loss of hearing and eye sight, the plaintiffs husband could not hear the warning made by the

villagers and came in contact with the suspended conductor and got electrocuted.

It is further pleaded by the defendants that the defendant Board was not negligent and the electrocution was due to the negligence on the part of

the plaintiffs husband. The defendant-Board is not responsible for the accident and the Board is not liable to pay the damages claimed by the

plaintiff. The accident had occurred due to heavy rain and gale during that period and the village is directly exposed to the Bay of Bengal. The

claim regarding the income of Rs. 30/- per day and the compensation claimed are excessive and exorbitant .The alleged accident had occurred

only due to the negligence on the part of the plaintiffs late husband and hence the Board is not liable.

Before the Court below, the plaintiff examined P.W.1, while the defendants have examined D.W.1. The plaintiff marked Exs.A-1 and B-2. The

trial Court dismissed the suit claim by its judgment and decree dated 23.7.89. Being aggrieved, the present appeal has been preferred by the

plaintiff.

The points that arise for consideration are:-

1) Whether the death of the plaintiff''s husband by electrocution is due to the negligence on the part of the defendant-Electricity Board?

2) Whether the plaintiff is entitled to damages for the death of her husband caused by electrocution? If so to what amount?

3) To what relief the plaintiff is entitled to

On a perusal of the judgment of the Court below, this Court finds that the Court below had neither considered the evidence nor the plea nor it

had applied the correct principles of law in deciding the issue of negligence on the part of the defendant-Electricity Board with respect to the

maintenance of overhead electrical lines.

It could be straightway pointed out that it is not the case of the defendant nor it had been established that there were unprecedented heavy rain

or gale or storm on the date of the accident which had caused the snapping of the overhead line. It is not the case of the defendant that snapping of

conductor is an act of God or it is beyond the control of the defendant-Electricity Board. Even according to the evidence of D.W.I., wind and rain

was only normal and it was not abnormal or extraordinary so as to cause snapping of the overhead electrical conductor/line. The evidence of

D.W.1 examined by the defendant on the other hand would show that even long after snapping of the overhead line, fusing which would normally

have blown automatically on the snapping of electric overhead conductor falling on the ground and getting contact with earth, in this case the fusing

mechanism did not operate and it was not functional. The evidence of D.W.1 would show that the defendant- Electricity Board had not maintained

the fuse mechanism properly and had it been maintained properly, the death of the deceased would have been avoided as fuse would have blown

off automatically on the snapped electric overhead conductor falling on ground which is wet. There is no evidence, which has been let in on the part

of the defendant-Electricity Board or its subordinates had taken necessary precautions in maintaining the overhead lines as well as maintaining the

fuse mechanism for the area. Not even one word had been whispered by D.W.1 to show that Electricity Board had taken necessary precautionary

measures or attended to the overhead lines or maintained the fusing mechanism by attending to it regularly. It is not as if at the time when the

deceased came out of his house and went outside to answer nature''s call, being early morning, there could not be many on the road to caution by

raising voice. It is admitted by D.W.1 that previous day also there was rain and despite that the Electricity Board''s wiremen or others have not

taken steps to check or maintain the overhead lines, which is required of them.

Exs. A-1 and A-2 produced by the plaintiff would show that the deceased died due to electrocution instantaneously. Exs. B-1 and B-2

produced by the defendants also would show that the deceased died due to electrocution. P.W.1 the plaintiff, had deposed that her husband went

to the tea shop around 5.30 a.m. and he died due to electrocution.

D.W.2 was the Asst. Engineer employed in the defendant - Electricity Board and he was incharge of Palawakkam Section on 31.12.1984.

The overhead electric line got snapped and the tripped wire was in contact with the ground. Around 6.00 a.m., the overhead line snapped and as a

result of which the deceased was electrocuted. The police investigated the matter after registering FIR. Neither the lineman nor the wiremen have

complained about the snapping of the overhead line and only from the public he came to know of the same. D.W.1 also admitted that on the

particular day excepting a particular Section of the overhead line, no other line in the area got snapped. It is admitted by D.W.1 that had the

lineman done his duty on that day the accident would not have occurred and he would have immediately attended. No lineman was available.

D.W.1 also admitted that no tree had fallen on the overhead line due to rain or wind causing snapping of the overhead line. Ex. A-2, namely, the

death report would show that the deceased died due to electrocution. Ex.A-3 is the death extract of the deceased.

As seen from Ex.B-1 which is a correspondence between Junior Engineer, MES (''D'' South) to Asst. Divisional Engineer, Adayar, on

31.12.1984 around 5.30 a.m., corroded overhead line conductor snapping might have been caused due to the corroded conduction since the

place is very close to the sea. The snapping of the particular Section of the wire, as seen from Ex.B-1, is due to non-maintenance of the wire or

non-replacing of the conductor which was corroded due to its proximity to the seashore. Had the defendant Electricity Board inspected the

overhead lines and undertaken maintenance of the line, they would have noticed the corrosion of the overhead lines and taken steps to replace the

same as and when required. The defendant''s Board and its subordinates also knew that the area is close to the seashore. Corrosion is a

phenomenon which is well known to Electricity Board. That being so, it is incumbent on the part of the defendant-Electricity Board to have

replaced the wire at regular intervals and having allowed the wire to corrode to a larger extent and having failed to replace the corroded overhead

line regularly and maintain the overhead lines in the standard required. Hence, it is obvious that the defendant-Board had been negligent in

maintaining the overhead line and the corroded overhead line got snapped on the particular day. This snapping was only at one point.

D.W.1 has also admitted that when once an overhead line gets snapped due to any cause and it falls to the ground which is wet, consequently

the fusing mechanism should go off immediately. In this case, the fusing system did not function at all and therefore the main road was turned into an

electric field. There was none on the road to caution the deceased. D.W.1 had not even stated that there were number of persons on the road at

the early hours when the deceased was proceeding on the main road. It is admitted by D.W.1 that there were rains and the earth was wet and

damp. That being so, the live electrical overhead wire when it got snapped, the entire locality gets electrified and anyone coming in contact meets

with immediate death. This is what has happened in this case as seen from the evidence of D.W.1

The entire approach of the Court below cannot be sustained as falling of wire is not expected and when the wire gets snapped as a matter of

routine, it would show that the defendant-Electricity Board had failed to maintain the overhead lines in the manner it is required to be maintained.

The defendant-Board had also not taken due care in maintaining the overhead lines and Ex.B-1 would show that the overhead line is corroded and

such overhead corroded line had not been replaced regularly. This would show the negligence in maintenance of the overhead line in the locality.

The evidence of D.W.1 and Ex.B-1 would show that electrocution of the deceased had been caused by the negligence on the part of the

defendant as the defendants were negligent and did not maintain the overhead lines properly and they also did not maintain fusing mechanism and

this failure would demonstrate the negligence on the part of the defendant. A Division Bench of this Court in T. Gajalakshmi Thayumanavar &

another v. The Secretary, Public Works Department, Government of Tamil Nadu, Madras-9, 2) The Chairman, Tamil Nadu Electricity Board,

Electricity Avenue, 300, Anna Salai, Madras-2, 3) The Chief Engineer, Tamil Nadu Electricity Board, Electricity Avenue, 300, Anna Salai

Madras-2, reported in 1997 (1) LW 75 S.N. held thus:-

On an appraisal of the evidence of P.W.S 1 to 3 and R.W.1 it is manifest that the Electricity Hoard had not maintained the fuse mechanism

properly and had it been maintained properly, the death of Suryaprakash could have been avoided as the fuse would have been blown off

automatically on the snapped electric overhead conductor falling on him and getting earthed through his body when he was lying on the ground. We

are unable to accept the contention of the learned counsel for the Electricity Board that if respondents 2 and 3 had taken the necessary precautions

and that the death of Suryaprakash by electrocution could not have occurred due to the snapping wire falling on him.

Following the above Division Bench judgment, this Court holds that the defendant-Electricity Board is negligent and it is liable for the electrocution

of the deceased.

The pleas of negligence, much less contributory negligence cannot be sustained nor it had been established, as the deceased did not know the

presence of live wire on the main road. It is not as if the deceased had ventured to walk over the live wire with knowledge. In Hotukuri

Bheemavva & others v. Andhra Pradesh State Electricity Board reported in 1998 AIHC 1279 (A.P.), it has been held that death due to contact

with live snapped wire, when established, the burden of proof in case of such a nature rests on the electricity board to prove that there was no

negligence on its part and burden was not on the plaintiff to prove negligence. In that context, it has been held thus:-

The question for consideration is whether the defendants can be made liable for the same on the ground of negligence. In K.S.E.B. v. Kamalakshy

Amma (supra) a Division Bench of the Kerala High Court held that where it is proved that a pedestrian was electrocuted from a live wire handing

down from an electric post, there is a presumption of feet that there was lack of proper care on the part of those in the management of control of

the power supply system at the particular place. It was held that the maxim res IPSA loquitur applies to such a case and the onus of proof shifts

from the plaintiffs to the defendants. It was further held that Section 114of the Evidence Act gives a wide discretion to the Court to draw

presumptions of fact. In that case the Division Bench of the Kerala High Court referred to the following observations made in the leading case of

Scott v. London and St. Katherine Docks Co. (1865) 3 H & C 596):

where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things

does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the

defendants, that the accident arose from want of care.

It is thus clear from the decided cases that the burden of proof in a case of this nature rests on the defendant to prove that there was no negligence

on its part but not on the plaintiff to prove negligence. The lower Court, however, proceeded on the footing that the burden of proof lies on the

plaintiffs and it also drew an adverse inference against the plaintiffs for not examining any of the other toddy tappers who allegedly accompanied

the deceased on that fateful day. I am of the view that this error committed by the lower Court has vitiated its judgment. The admission of P.W.1

that on the date of the accident her husband and other toddy tapers numbering about 12 left the village on cycles cannot be taken to mean that all

of them proceeded in the same direction or that any other person was in the company of the deceased at the time of the accident and witnessed the

same. So no adverse inference can be drawn against the plaintiffs for not examining the other toddy tappers. It is clearly established from the facts

of the case that the deceased died clue to electrocution by coming into contact with a live wire which snapped and which was lying either on the

ground or on the fence nearby. No other person witnessed the accident. Under these circumstances, the burden squarely lies on the defendants to

prove that they had taken all care to maintain the electric lines properly to prevent the occurrence of such accidents. The evidence on record

shows that there was some rain during the previous night and the ground at the scene of the accident was slushy. But there is nothing on record to

show that there was any violent cyclone or strong gales. In any case, rain and wind is a normal occurrence which can be easily foreseen and it is all

the more the duty of the defendants to take every precaution to prevent such; occurrences in the rainy season. The defendants miserably failed to

discharge the burden of proof which clearly lay on them in this behalf.

This Court respectfully agrees with the above legal position.

Negligence is established when the respondent-Electricity Board failed in its duty to take reasonable care with respect to the maintenance of

overhead lines and replacement of corroded conductors from time to time as well as its failure to maintain the fusing system. The concept of duty,

its reasonableness, the standard of care required in the present case had not been exercised by the respondent-Electricity Board. Had the

Electricity Board maintained the overhead lines and in particular the conductors, which gets corroded due to its exposure to sea breeze and the

fuse mechanism, it is incumbent on the part of the respondent-Board to have taken reasonable care with respect to the maintenance of line and

replacement of conductors before the corroded line gets snapped. The very fact that the corroded overhead line snapped would establish that

there had been negligence and the respondent-Board had failed to take reasonable care. This fact is admitted by the very respondents in their

correspondence, Ex.B-2. The expression ''Negligence'' has been defined by Winfield as:-

''Negligence'' as a tort is the breach of a legal duty to take care which results the State or an individual. For this submission advanced with

plausibility it appears necessary to determine how wide or narrow is the ambit of negligence in realm of torts. Can it be strictly compartmentalised?

When the State was found reluctant in discharge of its duties or public responsibility then Was it negligence alone or it was something more or less?

The Apex Court in Jay Laxmi Salt Works (P) Ltd. Vs. State of Gujarat, while considering the expression negligence, held thus:-

11 ''Negligence'' ordinarily means failure to do statutory duty or otherwise giving rise to in damage, undesired by the defendant, to the plaintiff.

Thus its ingredients are--

(a) a legal duty on the part of A towards B to exercise care in such conduct of A as falls within the scope of the duty;

(b) breach of that duty;

(c) consequential damage to B."" According to Dias,

[ Liability in negligence is technically described as arising out of damage caused by the breach of a duty to take care.

These text books thus make it amply clear that the axis around which the law of negligence revolves is duty, duty to take care, duty to take

reasonable care. But concept of duty, its reasonableness, the standard of care required cannot be put in strait-jacket. It cannot be rigidly fixed. The

right of yesterday is duty of today. The more advanced the society becomes the more sensitive it grows to violation of duties by private or even

public functionaries. Law of torts and particularly the branch of negligence is consistently influenced and transformed by social, economic and

political development. The rule of strict liablility developed by English Courts in Raylands v. Fletcher was judicial development of the liability in

keeping with growth of society and necessity to safeguard the interest of a common man against hazardous activities carried on by others on their

own premises even innocently. By conservative standard it could not be termed as negligence as damage arose not by violation of duty. Yet the

law was expanded to achieve the objective of protecting the common man not by narrowing the horizon of legal injury but by widening it. In

Donoghue v. Stevenson the House of Lords held a duty to take care of specific tort in itself. Even improper exercise of power by the authorities

giving rise to damage has been judicially developed and distinction has been drawn between power coupled with duty. Where there is duty the

exercise may not be proper if what is done was not authorised or not done in the bona fide interest of the public. In David Geddis v. Proprietors of

the Bann Reservoir the failure to keep the reservoir clear as a result of blameworthy negligence leading to overflow was held to be liable for

negligence. It was reiterated in Tate and Lyle Industries Ltd. v. Greater London Council. In was held that where public right was interfered with

which resulted in public nuisance the claim for damages was maintainable. The English Courts have extended the principle of strict liability to varied

situations. Thus the distinction arising out of damage due to negligence and even without it rather unintentionally and innocently is a firmly

established branch of law of tort. In Read v. J. Lyons & Co., Ltd. it was observed that damage caused by escape of cattle to another land was a

case of pure trespass constituting a wrong without negligence. Thus negligence is only descriptive of those sum total of activities which may result in

injury or damage to the other side for failure of duty, both legal or due to lack of foresight and may comprise of more than one concept known as

recognised law, intended or unintended.

As regards the quantum of compensation, the plaintiff had claimed that the deceased was making out Rs. 30/- per day in the small shop he was

running. The plaintiff was dependent on the deceased and unless the deceased had earned not less than Rs. 30/- per day, it is impossible for two

persons to live or sustain themselves and it is equally impossible for them to have two meals a day. Even assuming that the deceased was a

labourer, even as per minimum wages notified by the State Government as a coolie, the deceased would be making not less than Rs. 60/ a day.

The claim that the deceased was making Rs. 30/- a day cannot be held to be excessive. Accepting the same, it is clear that the deceased would

have given at least half of it to the family. In other words, the deceased was in a position to contribute Rs. 600/- per month and without Rs. 600/-

the plaintiff would not be in a position to have two meals a day in these days. The deceased admittedly was aged 60 years on the date of death and

it is the evidence of P.W.1 that longevity is the pattern of life in their family. The deceased''s father was alive around 90 years. The longevity of an

individual had now been estimated at 75 years. Giving a concession, the deceased definitely would have lived for another 10 years. In that event,

the deceased would have definitely contributed for the maintenance of the plaintiff at least Rs. 75,000/- during the rest of his life. Even applying an

interest theory, the claim of the plaintiff cannot be held to be excessive as apart from the loss there has been loss of consortium and the plaintiff is

also entitled to other consequential damages.

Taking into consideration the age of the deceased and the age of the plaintiff, their social status and background, their earning and family

membership, this Court awards a sum of Rs. 91,000/- which will be the just compensation on the facts of the case. In the result, the appeal is

allowed and the judgment of the trial Court is set aside and consequently there will be a decree as prayed for directing the defendants to pay

91,000/- (Rupees Ninety one Thousand only) with interest at 9% p.a. from the date of the plaint till the date of realisation. Hence, the appeal is

allowed with costs throughout.