Thottathil B.Radhakrishnan, J. 1.The third defendant and the plaintiffs have filed these appeals.
2.The Kerala State Electricity Board, its Chairman and the third defendant were sued for damages on account of the electrocution of Raveendran Nair, the predecessor-in-interest of the plaintiffs and the fourth defendant. The court below granted a decree as against the third defendant. He is, therefore, in appeal. The plaintiffs are in appeal against the refusal of decree as against the KSE Board.
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3.The learned counsel for the third defendant argued that applying the doctrine of strict liability as enunciated in the precedents laid down by the Hon'ble Supreme Court of India in M.P.Electricity Board v. Shail Kumari [(2002) 2 SCC 162] and H.S.E.B. v. Ram Nath [(2004) 5 SCC 793], the liability was entirely on the KSE Board to ensure that the lines are maintained with due vertical clearances and horizontal clearances as provided by the prescriptions contained in the Indian Electricity Act, 1910, for short, the "Act" and the Indian Electricity Rules, 1956, for short, the "Rules". It was accordingly argued that the material evidence on record, including Ext.X1 report by the Electrical Inspector, pointedly show that the KSE Board and the officers under it had failed to discharge their statutory obligations and hence, they are liable to satisfy the decree. The learned counsel also argued that the quantum of damages fixed is excessive.
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4.On behalf of the plaintiffs, apart from supporting the decree as it stands, including as regards the quantum of damages, their learned counsel argued that notwithstanding the liability of the third defendant, the court below ought to have passed a joint and several decree as against the KSE Board as well. It was argued that the liability based on the doctrine of strict liability, as noted above, does not get wiped out and there was no ground to exonerate the KSE Board and its officials from liability.
5.KSE Board's learned counsel argued that Ext.X1 report of the Electrical Inspector, who is a statutory authority under the Act and the Rules, clearly shows that the situation was on account of the third defendant raising the height of his compound wall and then providing grills on top of it, the painting of which was being done by Raveendran Nair at the point of time of the incident that resulted in his electrocution. The AS484/96 & 229/03 -: 4 :- enquiry by the Electrical Inspector by making local inspection and interacting with the relevant persons in the locality revealed that the accident was on account of the third defendant not having taken precautionary measures, including by intimating the KSE Board to off the lines while such work was being carried out. The learned counsel thus argued that the court below was justified in relying on Rule 82 of the Rules which enjoined that the existing compound wall could not have been raised without prior intimation to the Board authorities as enjoined by that rule. KSE Board, therefore, pleaded that the appeal as against it be dismissed.
6.D.W.1 is the Assistant Engineer of the KSE Board. He gave evidence that the third defendant had not given any intimation or obtained permission in connection with the erection of the ornamental fittings on top of his compound wall and that the electricity line was in place through the AS484/96 & 229/03 -: 5 :- alignment for the previous more than thirty years. His cross examination only tends to show that he had to warn the people in third defendant's home that the work should not be carried out without further permission; yet no further request was made even before proceeding with the work. There is no contra evidence. Neither the third defendant nor any one on his behalf has tendered any evidence.
7.Rule 82(1) of the Rules provides, inter alia, that if at any time subsequent to the erection of an overhead line (whether covered with insulating material or bare), any person proposes to erect a new building or structure or to carry out any other type of work, whether permanent or temporary, or to make in or upon any building or structure, any permanent or temporary addition or alteration, he and the contractor whom he employs to carry out such work shall, if such work would result in contravention of any of the provisions of rule 77, 79 or 80, give notice in writing of AS484/96 & 229/03 -: 6 :- his intention to the supplier and to the Inspector and shall furnish therewith a scale drawing showing the proposed building, proposed alteration etc. The procedure to be followed on receipt of such notice is enjoined by sub-rules 2 onwards of Rule 82. Rule 77 provides for clearance above ground of the lowest conductor and enjoins that no conductor of an overhead line, including service lines, erected across a street shall at any part thereof be at a height of less than those prescribed therein. Rule 79 deals with clearances from buildings of low and medium voltage lines and service lines. Rule 80 deals with clearances from buildings of high and extra-high voltage lines. Therefore, if any erection, addition or alteration to any existing building or structure is likely to lead to violation of the vertical or horizontal clearances as prescribed by rule 77, 79 or 80, any person carrying out such activity has the statutory obligation to give the statutory notice in terms of sub-rule 1 of Rule 82 of the Rules. AS484/96 & 229/03 -: 7 :- The same principle applies even to a new structure. When the third defendant is shown to have not issued any notice in writing in terms of Rule 82, he cannot claim the protection of having not caused the accident by merely passing of the blame to the KSE Board on the doctrine of strict liability. The testimony of D.W.1 that the line was running for at least thirty years prior to the accident is not controverted by any evidence by or on behalf of the third defendant. As rightly noted by the court below, the evidence of D.W.1 that before erecting modification to the existing compound wall, third defendant had not preferred any notice as envisaged under Rule 82 of the Rules, is also not contradicted by any evidence by him or on his behalf. Going by the sub-rule 1 of Rule 82, what is required is to give a notice in writing. There is no evidence of tendering such notice. Obviously therefore, the decision of the court below that the third defendant is liable for the decree cannot but be upheld.
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8.Now, the question is whether the KSE Board, with its statutory duties under the Act and the Rules and because it deals with the dangerous substance
- electricity - can be held to be at fault applying the doctrine of strict liability as enjoined by the laid down in Shail Kumari (supra) Ram Nath (supra). The doctrine of strict liability to the extent dealt with in Shail Kumari (supra) was in the backdrop of facts where the Electricity Board tried to push off its liability by pleading that the electrocution in that case was due to the clandestine pilferage committed by a stranger, unauthorisedly siphoning the electric energy from the supply line. The Apex Court noted that control and supervision of the electricity line in terms of the provisions of the Electricity (Supply) Act, 1948 and Rules did not provide room for the licensee to extend any such defence. In Ram Nath (supra), the issue arose in the context of a child being electrocuted while atop a building where it AS484/96 & 229/03 -: 9 :- lived. The plea of the Electricity Board was that the construction was unauthorised and the licensee could not therefore be mulcted with any liability. The Apex Court held that if the licensee had found that unauthorised constructions have been put up close to their wires, it is their duty to ensure that such construction is got demolished by moving the appropriate authorities and if necessary, by moving a court of law. Otherwise, they would take the consequences of their inaction. If there are complaints that these wires are drooping and almost touching houses, they have to ensure that the required distance is kept between the houses and the wires, even though the houses be unauthorised. This is how the law was developed through the aforesaid precedents. In that view of the matter, if electricity overhead line was in position for at least thirty years before the third defendant put up his building, the proximity between such line and the compound wall is a matter which has to be presumed to have been AS484/96 & 229/03 -: 10 :- within the knowledge of the officer of the Electricity Board having control over the supply lines in that area. This is how the power and duty of inspection and supervision provided for by the Act and Rules have to be understood. Shail Kumari was rendered quoting the Privy Council in Quebec Rly., Light, Heat and Power Co. Ltd. v. Vandry [1920 AC 662] that the company supplying electricity is liable for the damage without proof that they had been negligent and even the defence that the cables were disrupted on account of a violent wind and high-tension current found its way through the low-tension cable into the premises of the respondents was not held to be a justifiable defence. It was thus concluded that merely because illegal act could be attributed to a stranger, that is not enough to absolve the liability of the Board regarding the live wire lying on the road. We may now note that in Ext.X1 report, the Electrical Inspector says that the 11 KV line along the Pallikkara-Purakkad panchayat road where the accident was caused was not AS484/96 & 229/03 -: 11 :- keeping statutory clearance from the road level itself. The top part of the compound wall owned by the third defendant was keeping hardly one(1) metre clearance from the live 11 KV line at the time of accident as against the minimum statutory clearance of 3.7 metres. This serious lapse was the main cause of the accident. While the Electrical Inspector says that the third defendant would have taken action so as to shift or reinstall the 11 KV line even at the time of modification of the compound wall, the fact of the matter remains that nothing prevented the Board authorities to compel the third defendant to do so under the teeth of statutory compulsions even by proceeding with appropriate authorities to pull down third defendant's structure if it was built without the sanction of the Board authorities and without proper notice in terms of Rule 82 of the Rules noted above. In this view of the matter, it cannot be held that the KSE Board is exonerated from its liability which is fastened on it by the doctrine of strict AS484/96 & 229/03 -: 12 :- liability. The plaintiffs are, therefore, entitled to a decree as against defendants 1 and 2 as well.
9.On the basis of the evidence on record, we are also satisfied that KSE Board and its officials on the one hand and the third defendant on the other are equally liable for the tort that has led to this litigation. The tortious liability arising thereby is enforceable by the plaintiffs jointly and severally against the KSE Board and the third defendant. As joint tort-feasors, they are liable to contribute in equal proportion. The wrongs committed by the third defendant, when weighed against those attributed to KSE Board and its officials would maintain the scales of justice holding them equally liable. Therefore, as between the KSE Board and the third defendant, the damages payable are liable to be shared in the equal proportion.
10.We have also examined the legal evidence on AS484/96 & 229/03 -: 13 :- record and the material findings on the question of quantum of damages. We are satisfied that the decree for Rs.1,79,000/- is not excessive or as having been granted without due legal evidence on record. Therefore, we find no ground to interfere on that count.
In the result:
i.A.S.No.484 of 1996 is allowed in part and A.S.No.229 of 2003 is allowed vacating the impugned decree and judgment.
ii.The plaintiffs are granted a decree for recovery of damages of an amount of Rs.1,79,000/- with interest at the rate of 9% per annum from the date of suit till realisation with costs of the suit from defendants 1 and 3 jointly and severally, and costs of A.S.No.229 of 2003 to be shared equally by defendants AS484/96 & 229/03 -: 14 :- 1 and 3.
iii.Defendants 1 and 3 will be entitled to contribution from each other to the extent of one half of the amount covered by the decree in favour of the plaintiffs upon satisfaction by any among them. That can also be enforced in execution of this appellate decree.
I.A.No.3576 of 2010 in C.M.P.No.4311 of 1996 pleading in the affidavit filed in support of that petition, among other things, that certain remittances have been made in satisfaction of the impugned decree pursuant to the interlocutory orders issued by this Court. It is ordered that such questions can be considered in the course of AS484/96 & 229/03 -: 15 :- execution, discharge and satisfaction of the decree granted hereby and shall be without prejudice to the right of the plaintiffs to execute this decree as against defendants 1 and 3 jointly and severally in terms of clause ii above and such reconciliation of the liabilities as between defendants 1 and 3 shall not stand in the way of the enforcement of the decree in favour of the plaintiffs in terms of clause ii above.
Sd/-
Thottathil B. Radhakrishnan Judge Sd/-
P.Bhavadasan Judge Sha/
-true copy-
PS to Judge.
AS484/96 & 229/03 -: 16 :- "No court fee shall be leviable or recovered in relation to this appeal from the plaintiffs" vide order dated 3.3.2017 in A.S.229/2003.
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Registrar (Judicial) AS484/96 & 229/03 -: 17 :- Thottathil B.Radhakrishnan & P.Bhavadasan, JJ.
= = = = = = = = = = = = = = = = = A.S.Nos.484 of 1996-A & 229 of 2003-C = = = = = = = = = = = = = = = = = Judgment 7th August, 2013