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Judgment
K.K. Sasidharan, J.—Even after eighteen years of the death of the breadwinner of their family by electrocution, the legal representatives of
the deceased are still in Court to justify the compensation decree passed by the trial Court way back in the year 1997.
This appeal is directed against the judgment and decree dated 28.08.1997 in O.S. No. 4213/1996 on the file of the learned VII Additional
Judge, City Civil Court, Chennai.
The parties to the appeal would be referred to as plaintiffs and defendants.
The plaint was originally filed before the High Court, in its original civil jurisdiction in C.S. No. 920/1993. The suit was subsequently transferred
to the City Civil Court and it was renumbered as O.S. No. 4213/1996.
Background Facts:
In the plaint in O.S. No. 4213/1996, plaintiffs contended inter-alia thus:
(a) The first plaintiff is the wife and plaintiffs 2 and 3 are the children of deceased Rajendran. The deceased was a hale and healthy person. He was
doing business in textiles. Plaintiffs were residing along with the said Rajendran at Salavanpet, Vellore. The deceased Rajendran used to purchase
readymade garments and other fabrics from whole sale shops at Madras, carry them to Vellore and sell to customers at various places in and
around Vellore. The deceased Rajendran was contributing a sum of Rs. 2,200/- to the family every month. The second plaintiff was studying in
UKG and the third plaintiff was studying in LKG at Vellore during the untimely death of Rajendran.
b) Deceased Rajendran went to Madras on 12.08.1991 and he purchased two head loads of variety of garments and fabrics and was proceeding
to board bus bound to Vellore near LIC bus stop at Mount Road, Madras. While proceeding so to the bus stop at about 20.15 hours, he was
electrocuted and he died instantaneously. Electrocution was on account of the negligence of the Electricity Board.
c) The third defendant had carried out repair work during the day time on 12.08.1991 on the electric cable running underground by digging a ditch
in front of the pavement of L.I.C. Building at Mount Road. The third defendant had left the electric cable underneath uncovered, rather not
concealed properly and caused leakage of electric current. Knowing well that it is a busy area and people will walk on the platform along the road
side, the third defendant failed to provide safety to the public and did not provide any fence or guard around the repair site. Therefore, it was only
on account of the negligent act of the third defendant, the incident had happened and hence the defendants are jointly and severally liable to
compensate the plaintiffs.
d) The incident was reported to the Anna Salai Police and a case in Cr. No. 1900/91 was registered.
e) The deceased Rajendran was only thirty years at the time of his death. He was the sole breadwinner of the family. The first plaintiff is quite
young and she had lost her life partner. She also lost her enjoyment of life and had to live the life of widow for the rest of her life. Plaintiffs 2 and 3
have lost their dutiful father at their early childhood and they have to remain without any care, protection and financial help from their father for the
rest of their life. Due to the death of Rajendran, the plaintiffs were constrained to shift their residence to Madras. The education of the plaintiffs 2
and 3 were also hampered during the academic year 1991-1992. The first defendant was constrained to work as maid servant for the purpose of
feeding the children. Plaintiffs quantified the loss on account of the death of Rajendran at Rs. 5,50,000/- and accordingly, they prayed for a decree
directing the defendants to pay a sum of Rs. 5,50,000/- with interest and cost.
The suit was resisted by the defendants by filing written statement.
In the written statement, the first defendant denied the allegation of negligence on the part of the Electricity Board in the incident.
The third defendant filed his written statement denying the allegations and averments as contained in the plaint. The substantial contention in the
written statement would read thus:
a) The incident was not due to the fault of the Electricity Board. There are two cables running in the said place of accident, one cable for the street
lights, which are maintained by the Madras Corporation and another cable to cater to supply electricity to the consumers, maintained by the
Electricity Department. From the available records, it is seen that the underground electricity cable belonging to and maintained by the Tamil Nadu
Electricity Board was healthy at that point of time and therefore, the accident had not occurred due to the fault of the Electricity Board.
b) The third defendant has not carried out any repair work on 12.08.1991 on the electric cable running underground belonging to the Electricity
Board in front of LIC building.
c) The electricity board was not liable to pay compensation.
Issues before the trial Court:
The learned Trial Judge on the basis of the pleadings, framed the following issues:
Is it true that an accident occurred on 12.08.1991 ? If so, did it happen due to the negligence of the defendants ?
Is the negligence of the deceased responsible for the accident ?
Did the death occur due to the fault in the electric cables belonging to the Electricity Department?
Is it true that the defendants 3 and 4 did not carry out any repair work ?
Is 2nd defendant responsible for the accident for the negligence of the 4th defendant ?
Are the plaintiffs entitled to compensation ? If so to what extent ?
To what other relief the parties are entitled to ?
Before the trial Court, P.W.s 1 to 3 were examined on the side of plaintiffs and Exs.P-1 to P-8 were marked. D.W.s 1 and 2 were examined
on the side of defendants and Exs.D-1 to D-6 were marked.
Judgment of the Trial Judge:
The learned Trial Judge on the basis of the evidence of PW-1, arrived at the factual finding that the deceased Rajendran was earning about Rs.
4,000/- per month and he used to contribute Rs. 2,200/- per month to the family. The learned Trial Judge disbelieved the version given by the
defendants and arrived at a categorical finding that the accident was only due to the negligence of the Electricity Board. The trial Court found that
the deceased would have lived upto 50 years and taking into account his age and business prospects, fixed the contribution at Rs. 2000/- and a
sum of Rs. 5,50,000/- was directed to be paid as compensation. It is the said judgment and decree which is impugned in the first appeal.
Submissions:
The learned Counsel appearing for the defendants contended that there was no evidence adduced before the trial Court in support of the
contention that the incident was only on account of the negligence of the third defendant. The learned Counsel also contended that there was no
evidence before the trial Court to arrive at a factual finding that the deceased was contributing a sum of Rs. 2,000/- to the family.
The learned Counsel for the plaintiffs supported the judgment of the trial Court. The learned Counsel further contended that the trial Court has
not expressly denied payment of interest and as such, the plaintiffs are entitled to get interest for the decree amount u/s 34 of the Civil Procedure
Code. According to the learned Counsel, the appeal being continuation of the original proceeding, this Court is empowered to grant interest for the
decree amount for the period from the date of the plaint to the date of decree as well as subsequent interest.
Issue in this appeal:
The following points arise for consideration in the first appeal:
(a) Whether the incident was on account of the negligence of the defendants ?
(b) Whether the plaintiffs are entitled to claim compensation; if so, the quantum to which they are entitled to ?
(c) Whether the plaintiffs are entitled for interest on the decree amount ?
Discussion:
Plaintiffs have examined three witnesses to substantiate their contention both with regard to negligence as well as to show the basis for their
claim.
The first plaintiff was examined as PW-1 and during her evidence, she categorically stated that her husband was a cloth merchant and he used
to purchase cloth from Chennai and was engaged in retail sale at Vellore and nearby places. According to PW-1, the incident was only on account
of the negligence of the defendants and as such, they are liable to pay compensation. As per the evidence of PW-1, the deceased Rajendran was
earning Rs. 4,000/- per month and he used to contribute Rs. 2,000/- to the family.
PW-3 was employed as a watchman in the LIC Building. He was an eye witness to the incident. PW-3 was also the author of Ex.A-4, First
Information Report registered in Cr. No. 1900/1991. In his evidence before the trial Court, PW-3 clearly admitted that there was rain from 7.30
p.m. onwards on 12.08.1991 and there was stagnation of water near the bus stop. The deceased was going through a place where the water was
stagnated and he contracted a live wire and died instantaneously. According to PW-3, there was power leakage at that point of time. The evidence
of PW-3 remain unchallenged. In fact, even while he was cross examined, he confirmed the fact that cable work was done on that particular day.
There was not even a suggestion to PW-3 that he was not a witness to the incident. From the evidence of PW-3, it is clear that the defendants
have undertaken certain maintenance works in the place on 12.08.1991 and they have not closed the area and the pit was not covered and as
such, there was stagnation of water in the said pit, which was the cause for electrocution. The case put forward by the defendants to the effect that
there was no cable work on 12.08.1991 was diluted on account of the unchallenged evidence of PW-3.
On the side of the defendants, DW-1, who was working as Line Inspector was examined. He has also produced Ex.R-1 - Movement
Register. Evidence tendered by DW-1 was disbelieved by the Court on account of its discrepancy on material aspects. The evidence given by
PW-3 in the absence of any other contra evidence on the side of the defendants leads to the possible conclusion that the defendants were negligent
enough in maintaining the service cables which was the sole reason for the incident. Therefore, the issue of negligence on the part of the defendants
was clearly established.
The Electricity Board being the suppliers of electricity are expected to maintain the supply system in a sound condition. Great care and
attention are expected from the Electricity Board in maintaining live wire and other electrical system engaged in the transmission of electricity.
When an incident happens involving electricity line, inference can surely be drawn that there has been an element of carelessness on the part of the
Electricity Board in maintaining the supply line. The burden of proof in such cases is clearly on the Board that they have taken all reasonable care in
maintaining the transmission lines. Common man has no control over the electrical system and the transmission line and as such, in the event of any
untoward incident involving the transmission cable, onus is heavy on the Electricity Department to absolve themselves from the charge of
negligence.
The learned Trial Judge considered the issue in-extenso and arrived at a factual finding that the accident was only on account of the negligence
of the respondents. On a consideration of the entire materials, I am in full agreement with the finding recorded by the learned Trial Judge.
Accordingly, it is held that the incident was only due to the negligence of the Electricity Board in maintaining the Electricity line. Accordingly, the
first point is answered against the defendants.
The next question is in respect of the claim of damages as well as quantum. PW-1 in her evidence has categorically stated that the deceased
was self employed. In the ordinary course of his business, he used to purchase clothes from Chennai and after bringing the same to Vellore, he has
been engaged in retail sale in and around Vellore. According to PW-1, the deceased was earning Rs. 4,000/- per month and he was contributing a
sum of Rs. 2,000 to the family. On account of the untimely death of deceased Rajendran, the first plaintiff lost her companionship and plaintiffs 2
and 3 have lost the love and affection of their father. Though the defendants denied their liability generally there was nothing either in the pleadings
or in the evidence of D.Ws.1 and 2 challenging the income earned by the deceased. In fact, there was not even a denial in the written statement
filed by the third defendant about the total income earned by the deceased as well as his contribution to the family. Age of the deceased was also
not in dispute. Post mortem report marked as Ex.A-5 and Inquest Report marked as Ex.A-6 were taken as the basis for fixing the age at 30. The
learned Trial Judge also observed that neither the income nor the age of the deceased was challenged by the defendants. Accordingly, the learned
Trial Judge fixed the age at 30 and taking into account the fact that the deceased would have lived up to 50 years, the learned Trial Judge fixed the
monthly contribution at Rs. 2000 and arrived at a finding that the amount claimed was reasonable and accordingly, a sum of Rs. 5,50,000/- was
granted as compensation.
It would be appropriate to quote the observation of the Supreme Court in R.K. Malik and Another Vs. Kiran Pal and Others, , which reads
thus:
While quantifying and arriving at a figure for ""loss of expectation of life"", the Court have to keep in mind that this figure is not to be calculated
for the prospective loss or further pecuniary benefits that has been awarded under another head i.e. pecuniary loss. The compensation payable
under this head is for loss of life and not loss of future pecuniary prospects. Under this head, compensation is paid for termination of life, which
results in constant pain and suffering. This pain and suffering does not depend upon the financial position of the victim or the claimant but rather on
the capacity and the ability of the deceased to provide happiness to the claimant. This compensation is paid for loss of prospective happiness
which the claimant/ victim would have enjoyed had the child not been died at the tender age.
The deceased was aged 30 years at the time of his death and the learned Trial Judge fixed the contribution at Rs. 2,000 per month. The fact
that the deceased was employed as cloth merchant was not denied.
It is true that there are no clear guidelines in cases like this to arrive at the quantum. However, in the sister enactments like Motor Vehicles Act,
there are approved methods for determining the compensation in accident cases. Section 163A of the Motor Vehicles Act contains a structured
formula for payment of compensation.
The second schedule to the Motor Vehicles Act, 1988 provides that for the purpose of computing the income of those who had no actual
income prior to the accident, a notional income of Rs. 15,000/- per annum should be taken as the basis. In the case on hand, on account of the
textile business, the deceased would have earned a minimum sum of Rs. 3,000/- per month.
Though the learned Judge has granted a sum of Rs. 5,50,000/- as compensation, no details were furnished in the judgment as to how the said
amount was assessed. Even according to PW-1, the monthly contribution from the deceased to the family was only a sum of Rs. 2,000/-. The
learned Trial Judge has observed that considering the age of the deceased and the average life expectancy of an Indian citizen, the amount claimed
by the plaintiffs appears to be reasonable. However, compensation cannot be granted in the way in which it was granted by the learned Trial
Judge. The trial Court should assess the compensation by taking into account the income of the deceased, and the monthly contribution to the
family and an ultimate figure should be arrived at after applying the appropriate multiplier. However, no such course was adopted by the learned
Trial Judge.
The structured formula as found u/s 163A of the Motor Vehicles Act, has to be taken in this case for the purpose of arriving at the amount of
compensation. The income of the deceased is notionally fixed at Rs. 3,000/- per month. He would have incurred a sum of Rs. 1,000/- towards his
personal expenses. Therefore, the balance would be a sum of Rs. 2,000/- per month and the said amount represents the contribution to the family.
If the said sum of Rs. 2,000/- is multiplied by 12, it would be Rs. 24,000/- per annum. Since the deceased was only 30 years at the time of death
and a sum of Rs. 3,000/- alone is taken as the total income even though it was contended by the plaintiffs that the monthly income of the deceased
was Rs. 4,000/- per month, maximum multiplier of 18 has to be taken in this case. Therefore, if the yearly contribution is multiplied by18, it would
be Rs. 4,32,000/-.
Plaintiffs are also entitled for other conventional benefits. The first plaintiff lost her husband at the age of 28 years. Therefore, she is entitled to
receive reasonable amount by way of loss of consortium. Accordingly, a sum of Rs. 25,000/- is awarded on the said account.
Plaintiffs 2 and 3 were only 6 and 5 years respectively at the time of their father''s death. They have lost the love and affection of their father as
well as his care and custody. Therefore, plaintiffs 2 and 3 are entitled to a reasonable compensation on the said account which is quantified at Rs.
25,000/- each. Plaintiffs are also awarded a sum of Rs. 5,000/- as funeral expenses and a sum of Rs. 5,000/- for the purpose of transportation
from Chennai to Vellore.
Accordingly, a sum of Rs. 5,17,000/- is awarded as compensation in modification of the decree granted by the learned Trial Judge for a sum
of Rs. 5,50,000/-. The second point is answered accordingly.
Though the learned Trial Judge has granted a sum of Rs. 5,50,000/- as compensation, no amount was granted by way of interest. Section 34
of CPC provides for payment of interest. It is true that discretion rests with the trial Court to grant future interest in a particular matter. However,
such discretion has to be exercised judiciously and in accordance with settled legal principles. In the case on hand, the learned Trial Judge has not
expressly denied the payment of interest.
The core question is as to whether plaintiffs could be awarded interest in the first appeal preferred by the defendants without a cross appeal at
the instance of the plaintiffs.
Payment of interest u/s 34 CPC is a matter of procedure. Such payment is the Rule in money decrees and denial is an exception. In case the
trial Court was of the view that the plaintiffs were not entitled to get interest, there should be a specific finding to that effect. It is true Section 34(2)
CPC provides that when the decree is silent with respect to the payment of further interest on the principal amount from the date of the decree to
the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie.
However that is not the case with respect to interest pendente lite. The principles applicable to future interest u/s 34(2) of CPC cannot be applied
with full vigour to the payment of interest between the date of suit to the date of decree.
Legal position:
In M/s. Jagdish Rai and Brothers Vs. Union of India, , the issue before the Supreme Court was regarding the payment of interest in the
absence of an appeal against non-grant of interest by the aggrieved party. The Supreme Court observed that award of interest u/s 34 is a matter of
procedure and ought to be granted in all cases when there is a decree for money unless there are strong reasons to decline the same. Ultimately,
the Supreme Court granted interest. In the said factual context, the Supreme Court made the following observation:
We are conscious of the fact that the appellant had not preferred any appeal against the order made by the Court of the Sub-Judge which made
the award the decree of the court but did not grant any interest. Even so, the grant of interest being a matter of procedure and the appellant having
made an application before the High Court in that regard, we do not think there is any impediment to grant the same by bringing the decree of the
subordinate court in conformity with law, namely, by awarding appropriate interest.
In Tahazhathe Purayil Sarabi and Others Vs. Union of India (UOI) and Another, , the legal position with regard to payment of interest was
reiterated by the Supreme Court thus:
It is, therefore, clear that the Court, while making a decree for payment of money is entitled to grant interest at the current rate of interest or
contractual rate as it deems reasonable to be paid on the principal sum adjudged to be payable and/or awarded, from the date of claim or from the
date of the Order or decree for recovery of the outstanding dues. There is also hardly any room for doubt that interest may be claimed on any
amount decreed or awarded for the period during which the money was due and yet remained unpaid to the claimants.
The Courts are consistent in their view that normally when a money decree is passed, it is most essential that interest be granted for the period
during which the money was due, but could not be utilized by the person in whose favour an order of recovery of money was passed.
As has been frequently explained by this Court and various High Courts, interest is essentially a compensation payable on account of denial of
the right to utilize the money due, which has been, in fact, utilized by the person withholding the same. Accordingly, payment of interest follows as a
matter of course when a money decree is passed.
....
As we have indicated hereinbefore, when there is no specific provision for grant of interest on any amount due, the Court and even tribunals
have been held to be entitled to award interest in their discretion, under the provisions of Section 3 of the Interest Act and Section 34 of the Civil
Procedure Code.
Since the learned Trial Judge has not dealt with the issue regarding payment of interest and as the proceedings pending before this Court is a
first appeal, which is nothing but continuation of the original proceedings, I am of the view that the plaintiffs are entitled to claim interest as per
Section 34 CPC. Accordingly, in exercise of the statutory powers under Order 41 Rule 33 CPC, defendants are directed to pay interest @ 12%
from the date of suit to the date of decree with subsequent interest @ 9% from the date of decree to the date of payment/deposit. The third point
is thus answered in favour of the plaintiffs.
Disposal:
The judgment and decree of the learned VII Additional Judge, City Civil Court, Chennai, in O.S. No. 4213/1996 dated 28.08.1997 is set
aside in part as indicated in paragraph 30 and modified as shown in paragraph 36.
Defendants are granted eight weeks time to deposit the balance amount. Out of the total amount, the first plaintiff is entitled to a sum of Rs.
3,17,000/- and the plaintiffs 2 and 3 are entitled to Rs. 1 lakh each. Plaintiffs are permitted to withdraw the amount with proportionate interest and
cost.
The appeal is partly allowed to the extent indicated above. No costs.