(2013) 298 KLR 843 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA TUESDAY, THE 19TH DAY OF MARCH 2013/28TH PHALGUNA 1934 AS.No. 407 of 1997 (G) ----------------------- AGAINST THE ORDER/JUDGMENT IN OS.111/1990 of SUB COURT, CHERTHALA DATED 18-03-1996 APPELLANT(S)/PLAINTIFF: ------------------------------------ E.V. JOSEPH, RESIDING AT EDACHIRANIKARTHIL, THYKKATTUSSERI VILLAGE, DO PANCHAYAT WARD NO.2. BY ADVS.SRI.V.N.SWAMINATHAN SRI.S.DILEEP RESPONDENT(S)/DEFENDANTS: ----------------------------------------------------- 1. KERALA STATE ELECTRICITY BOARD, REPRSENTED BY ITS SECRETARY, VYDIUTHI BHAVAN, THIRUVANANTHAPURAM. 2. ASST. EXECUTIVE ENGINEER, ELECTRICAL MAJOR SECTION, POOCHAKKAL. R, BY ADV. SRI.G.JANARDHANA KURUP (SC FOR KSEB) R, BY ADV. SRI.A.SUDHI VASUDEVAN, SC, KSEB THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 12-2-13, THE COURT ON 19-03-2013, DELIVERED THE FOLLOWING: [C.R.] THOTTATHIL B. RADHAKRISHNAN & B. KEMAL PASHA, JJ. ----------------------------------------------- A.S. No.407 of 1997 ----------------------------------------------- Dated this the 19th day of March, 2013 Head Note:- Torts – Damages - Strict Liability - Principles of - Injuries sustained by getting electric shock - Even when no negligence is attributed to the defendant in this case, the defendant is liable for damages, based on the principles of strict liability. J U D G M E N T Kemal Pasha, J. The appellant claimed an amount of Rs.3,25,000/- as damages through O.S.111 of 1990 of the Subordinate Judge's court, Cherthala, consequent to the injuries sustained to him on getting electric shock. The Court below has decreed the suit, for an amount of Rs.35,000/- only as compensation to be realized from the respondents/defendants. Dissatisfied with the impugned decree and judgment, the plaintiff has come up in appeal. 2. The case of the appellant is that, an old electric post of the Thycattussery section of the Kerala State Electricity Board (K.S.E.B.) became in a leaning position thereby the electric wire connected with it became swinging and was about to touch the soil surface. On 20.2.1990, the appellant who is a carpenter by profession while going for his works at 8.45 a.m, got electric shock on his left thigh from the swinging electric wire thereby the flesh on his left thigh became seriously burnt and damaged. The condition of the appellant was very serious and at first he was taken to the Government Hospital, Thycattussery from where he was referred to the Taluk Headquarters Hospital, Cherthala, where he had undergone treatment as inpatient for the period up to 18.4.1990. He was subjected to a major surgery and skin grafting. The flesh on his left thigh which became damaged had to be removed, which has ultimately resulted in his becoming partially and permanently disabled. 3. The respondents contended that it was not due to the swinging state of the electric wire the accident had occurred; and that the electric line was in proper condition. According to the respondents, a coconut leaf fell on the single phase service line at 6.45 a.m. on 20.2.1990, thereby the electric wire snapped and the live wire was hanging from the cross arm of the electric post. At about 8.45 a.m. a girl named Kunjumol while going for fetching water came into contact with the live wire and got electric shock. On hearing her cries, the appellant rushed to the spot and tried to detach Kunjumol from the electric line without sufficient protection and thereby he also got electric shock. It was also contended that the amount claimed by the appellant is exorbitant. 4. On the side of the appellant, PWs.1 to 5 were examined before the court below and Ext.A1 was marked. The respondents have not adduced any evidence. The court below has rightly found that the respondents are liable to compensate the appellant. The case of the appellant is that he came into contact with the swinging electric line which was lying just above the ground at the pathway while he was going for his works and thereby he sustained electric shock. The contention of the respondents is that one Kunjumol got electric shock from the electric wire hanging from the arm of the electric post, as it snapped due to the falling of a coconut cadjan, and on hearing her cries the appellant rushed to the spot and tried to detach the said Kunjumol from the live electric wire and thereby the appellant also got electric shock. In either case, it does not make any difference at all regarding the liability of the respondents to compensate the appellant. 5. The principle of strict liability was laid down in the celebrated case of Rylands v. Fletcher (1868) L.R.3H.L.330 that, "if a person brings or accumulates on his land anything which, if it should escape, may cause damage to his neighbours, he does so at his peril. If it does escape and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent damage". Rylands v. Fletcher certainly involves a liability without proof of fault (subject to certain exceptions, most of which, are not recognized or accepted by our jurisprudence through precedents) for personal injuries or loss of life on account of the hazardous business of the defendant. 6. The rule in Rylands v. Fletcher, has resulted in the creation of a category of liability, for damage caused by ultra- hazardous business or activities, which is justified on the basis that the persons carrying them on should bear all the risks associated with them, and not merely those arising from their negligence. In Shiffman v. Order of St. John [(1936) 1 All.E.R. 557], where the plaintiff became injured in Hyde park by a falling flag-pole belonging to the defendants, it was held that the plaintiff would have been entitled to recover damages on the basis of Rylands v. Fletcher even though he neither owned nor occupied the land on which the injury occurred. 7. The rule of strict liability born in Rylands v. Fletcher has been applied in our country by almost all the Civil Courts, High Courts and the Apex Court. In M.P.Electricity Board v. Shail Kumari [2002 (1) KLT 480(SC)] it was held; "It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the board. If the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into it, the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension, the managers of its supply have the added duty to take all safety measures to prevent escape of such energy." It was further held; "Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way ie., the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm, he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions." 8. The Rule in Rylands v. Fletcher was followed with approval by the Apex court in Charan Lal Sahu v. Union of India (1990(1) SCC 613), Gujarath State Road Transport Corporation v. Ramanbhai Prabhatbhai (1987 (3) SCC 234), Kaushnuma Begum v. New India Assurance Co. Ltd. 2001 (2) SCC 9 and M.C.Mehta v. Union of India (1987(1) SCC 395). 9. In M.C.Mehta v. Union of India, the apex court has gone even beyond the rule of strict liability by holding that; "Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands v. Fletcher." 10. In Kunjan Raghavan v. Kerala State Electricity Board (2010 (4) KLT 914), a Division Bench of this court in which one of us, Thottathil B. Radhakrishnan, J, was a member, while speaking for the Bench held; "The question is whether the electric line was maintained with statutory clearance as required in terms of the relevant laws. The Board is the authority to have the best evidence. There is no evidence in this regard by the Board. This is a case of no evidence in defence. Not only that, the Board is a licensee dealing with electrical energy, which is hazardous. Board is the sole licensee having monopoly operation with the support of statutory provisions. Statutory rights are coupled with statutory duties. The duties and responsibilities of licensees stand to charge the Board and its officers of such liabilities as would fall within the principle of strict liability as laid down by the Apex Court in H.S.E.B. v. Ram Nath (2004 (5) SCC 793) and M.P. Electricity Board v. Shail Kumar [(2002) 2 SCC 162]" 11. Even when no negligence is attributed to the defendant in this case, the defendant is liable for damages, based on the principles of strict liability. Now, what remains is the calculation of the quantum of damages. We are satisfied that the quantum arrived at by the court below as compensation to be paid to the appellant, is too meager and it does not reflect the actuals. 12. The appellant was aged 28 at the time of the incident. The fact that the appellant is a carpenter is not in dispute. According to him, he had works everyday and he used to earn an amount of `50 per day over and above his personal expenses during the period of incident. PW2 who was working as the Civil Surgeon at the Taluk Headquarters Hospital, Cherthala has issued Ext.A1 certificate showing the disability of 15% to the appellant. When PW2 was examined, the appellant has challenged the percentage of disability assessed by PW2 as too low, by pointing out that the disability sustained by him will be up to 50%. PW2 has denied the said suggestion and finally agreed that, the total disability at the most can be 20% according to the scale, and not more than that. The appellant was under the treatment of PW2 at the hospital. It has come out that the flesh and muscles from his left thigh was removed and skin grafting had to be done. PW1, Doctor attached to the Thycattussery Government Hospital as on the date of incident has given evidence to the effect that the appellant who was brought on getting electric shock was immediately referred to Government Hospital, Cherthala, as the condition of the appellant was serious. 13. According to appellant who was examined as PW4, he had undergone treatment as inpatient at the hospital for the period from 20.2.1990 to 18.4.1990. Even after the said treatment, he had to continue treatment as outpatient for six to seven months during which period, he could not go for any work. According to him, he used to earn an amount of `50/- per day over and above his personal expenses. It is a fact that a carpenter has to squat for doing his works. According to the appellant, due to the disability sustained to him on account of the incident, he cannot work properly as he was suffering from excruciating pain when he squats. 14. On an evaluation of the evidence adduced by the appellant, the partial and permanent disability which he has sustained, can be considered as 25%. The multiplier can be taken as 18. His monthly earnings can be taken as `1,250/- and therefore, the annual income can be calculated as `15,000/-. By way of compensation towards partial and permanent disability, the appellant is entitled to an amount of `67,500/-. Over and above the same, he is entitled to loss of earnings for five months which amounts to `6,250/-. There was prolonged treatment, and the appellant had to suffer much. An amount of `10,000/- could be a reasonable compensation in this case, for pain and sufferings. An amount of `7,500/- will have to be granted as expenses for treatment. Therefore, the appellant is entitled to realise a total amount of `91,250/- by way of compensation from the respondents. The impugned judgment and decree passed by the court below are liable to be modified to that effect. In the result, this appeal is allowed as follows: (i)The impugned judgment and decree are modified. (ii)The appellant-plaintiff is granted a decree for recovery of `91,250/- with interest at 6% per annum from the date of institution of the suit till payment/recovery, with costs of this appeal and of the suit, charged on, and recoverable from, the assets of the respondents-defendants. It is further decreed that if the liability in terms of the aforesaid is not satisfied by depositing the entire amounts within a period of two months from now, the rate of interest awarded by this decree will stand modified at 12% per annum from the date of institution of the suit till the date of payment/recovery. (iii) In exercise of the power under Order 33 Rule 10 r/w O.44 R. 1, it is ordered that the court fee payable by the plaintiff in this appeal, and in the suit from which this appeal arises, shall be recoverable from the respondent/defendant. THOTTATHIL B. RADHAKRISHNAN JUDGE B. KEMAL PASHA, JUDGE ul/- [True copy] P.S. to Judge. |