IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE B. VEERAPPA REGULAR SECOND APPEAL NO.239 OF 2012 C/W REGULAR SECOND APPEAL NO.463 OF 2013 IN RSA NO.239/2012 BETWEEN:
B.C. Bommegowda, Major S/o Chowdayya M/s. Jayalakshmi Electricals Beloor Village, Kothathi Hobli, Beloor Post, Mandya District – 571 401. ... Appellant (By Sri.H.C.Shivaramu, Advocate) AND:
1. Smt. Lakshmamma, W/o late Ramalingaiah, Aged about 45 years.
2. Raghu, S/o. late Ramalingaiah, Aged about 30 years.
3. Ravi S/o. late Ramalingaiah, Aged about 45 years.
All 1 to 3 are residents of Haniyambadi Village, Kottatti Hobli, Mandya Taluk – 571 401.
4. The Secretary K.E.B. Kaveri Bhavan K.G. Road, Bengaluru – 560 002.
5. The Executive Engineer, (Electrical) K.E.B, Mandya Section, Mandya, Now CESC, Mandya Division, Mandya – 571 401.
6. Assistant Executive Engineer, (Electrical) K.E.B, Mandya Section, Mandya, Now CESC, Rural Sub-Division-2, Mandya – 571 401. … Respondents (By Sri.L.Raja, Advocate for R1 to R3; Sri.H.V.Devaraju, Advocate for R5 to R6; R4 Served but unrepresented) This RSA is filed under Section 100 of CPC against the judgment and decree dated 11.11.2011 passed in R.A.No.140/2009 on the file of the Additional District and Sessions Judge, Mandya, dismissing the appeal and upholding the judgment and decree dated 25.08.2009 passed in O.S.No.211/2002 on the file of the Principal Civil Judge (Sr.Dn) Mandya.
IN RSA NO.463/2013 BETWEEN:
1. The Executive Engineer (Ele.,) Chamundeshwari Electricity Supply Corporation, (CESC), Mandya Division, Mandya, Formerly KEB, Mandya-571 401.
2. Assistant Executive Engineer (Ele.,) Chamundeshwari Electricity Supply Corporation (CESC), Rural Sub-Division-2, Mandya, Formerly KEB, Mandya Section, Mandya – 571 401. …Appellants (By Sri. H.V.Devaraju, Advocate) AND:
1. Smt.Lakshmamma, W/o late Sri. Ramalingaiah, Aged about 45 years.
2. Sri. Raghu, S/o. late Sri. Ramalingaiah, Aged about 30 years.
3. Sri. Ravi S/o. late Sri. Ramalingaiah, Aged about 45 years.
All are residents of Haniambadi Village, Kothathi Hobli, Mandya Taluk – 571 401.
4. B.C.Bommegwoda S/o Sri. Chowdaiah, Major in age, M/s. Jayalakshmi Electricals Beluru Village and Post, Kothathi Hobli, Mandya Taluk – 571 401.
Mandya District. …Respondents (By Sri. L. Raja, Advocate for R1 to R3; Sri.H.C.Shivaramu, Advocate for R4) This RSA is filed under Section 100 of CPC against the judgment and decree dated 11.11.2011 passed in R.A.No.139/2009 on the file of the Additional District and Sessions Judge, Mandya, dismissing the appeal and confirming the judgment and decree dated 25.08.2009 passed in O.S.No.211/2002 on the file of the Principal Civil Judge (Sr.Dn) Mandya.
These RSAs coming on for Admission, this day, the Court delivered the following:
JUDGMENT These two appeals are filed by Electrical Contractor, who is defendant No.4 and the Executive Engineer and the Assistant Executive Engineer, who are defendant Nos.2 and 3 before the trial Court against the concurrent judgment and decree passed by the Lower Appellate Court dated 11.11.2011 made in R.A. Nos.132/2009 and 140/2009 on the file of the Additional District and Sessions Judge, Mandya confirming the judgment and decree of the trial Court dated 25.08.2009 made in O.S. No.211/2002 on the file of the Principal Civil Judge (Sr. Dn.), Mandya, where the suit was decreed for recovery of damages of Rs.3,00,000/- with interest @ 6% p.a. from the date of suit till realization of the same and Court costs from the defendants Corporation and defendant No.4 to an extent of 50% each. Further, defendant Nos.1 to 3 jointly and severally are directed to deposit 50% of damages with interest within a period of one month.
2. Brief facts of the present cases are that plaintiff No.1 is the widow and plaintiff Nos.2 and 3 are children of deceased, who filed a suit in O.S. No.211/2002 for recovery of damages against defendants contending that on 06.04.1997, as per the direction of defendant No.4.- B.C. Bommegowda, son of Chowdaiah, the deceased Ramalingaiah along with other four workers had gone to Dodda Garudanahalli Village to provide electricity facility to the borewell, which belongs to one Siddegowda, son of Kullegowda. At about 12 o’ clock, deceased Ramalingaiah climbed an electricity pole. When he was connecting wires to provide electricity, suddenly the wires became alive. As a result, Ramalingaiah died due to electrocution. The autopsy was done on 07.04.1997. The Plaintiffs have spent Rs.20,000/- towards funeral and obsequies ceremony. It was further contended that defendant Nos.1 to 4 have not provided proper protection against the live wires. There was negligence on their part in not taking essential safety and precaution. The death of Ramalingaiah has occurred solely due to utter negligence of the defendants. The plaintiffs being the widow and children of deceased Ramalingaiah were depending upon the income of the said Ramalingaiah.
3. It was further contended that the deceased was doing lineman work at the rate of Rs.150/- to Rs.200/- per day as wages under defendant No.4. At the time of death, the deceased was aged about 35 years and he was hale and healthy. It was further contended that Electrical accident was intimated to Basaralu Police Station. The police visited the spot, drawn inquest panchanama and sent the dead body for post mortem examination. The defendants were also intimated through legal notice dated 29.09.1997, to compensate the plaintiffs for loss of death of deceased Ramalingaiah, but they have not paid any compensation to the plaintiffs. Defendant No.1 is the Corporation constituted under the Indian Electricity Act, which is providing and looking after the electricity in and around the State. Defendant Nos.2 and 3 are working under defendant No.1. Defendant No.4 is a Contractor working under other defendants. The cause of action for the plaintiffs arose on 06.04.1997 and 29.09.1997. Since the defendants failed to pay the compensation despite of repeated request of the plaintiffs, the plaintiffs filed the suit for the relief sought for.
4. Defendant No.2 on his behalf and on behalf of defendant Nos.1 and 3 filed written statement and resisted the averments made in the plaint including the electrocution of deceased Ramalingaiah. It was contended by the defendants that defendant Nos.1 to 3 are no way liable for any damage on account of the death of deceased Ramalingaiah even though it is proved that his death is on account of electrocution. At the time of death, as per the plaintiffs, the deceased was working under defendant No.4 and the death of Ramalingaiah has taken place during the course of his employment under defendant No.4. It was further contended that the claim of the plaintiffs to be exclusively tried before the Commissioners for Workmen Compensation and this Court has no jurisdiction and sought for dismissal of the suit.
5. Defendant No.4 – the Electrical Contractor under defendant Nos.1 to 3 filed written statement and denied the entire plaint averments including the death of deceased Ramalingaiah due to electrocution, he working as a lineman and also entire averments of the plaint. It was specifically contended that the suit of the plaintiffs was barred by limitation and sought for dismissal of the suit.
6. Based on the aforesaid pleadings, the trial Court framed the following issues:
“1. Whether the plaintiff proves that on 06.04.1997 as per the directions of the 4th defendant, when the deceased Ramalingaiah connecting the wires provide electricity, deceased Ramalingaiah electrocuted due to the negligence of defendants?
2. Whether the plaintiff further proves that deceased Ramalingaiah had on income of Rs.150-200 per day and they are depending upon his income?
3. Whether 2nd defendant proves defendants 1 to 3 have not liable to the death of the deceased?
4. Whether this Court has no jurisdiction to try the suit?
5. Whether the suit is barred by time?
6. Whether plaintiffs are entitled for suit claim?
7. What decree or order?”
7. In order to substantiate the case of the plaintiffs, plaintiff No.1 wife of deceased Ramalingaiah i.e., Smt. Lakshmamma got examined as PW.1 and two witnesses namely Sri. M. Basavaiah and Sri. Nagaraju were examined as PWs.2 and 3 and seven documents were marked as Ex.P.1 to Ex.P.7. On the other hand, defendant No.4 himself stepped into the witness box and was examined as DW.2 and defendant No.3-Officer, namely, K.N. Shivakumar stepped into the box and was examined as DW.1 and they have not produced any documents.
8. The trial Court considering both oral and documentary evidence has recorded a finding that plaintiffs have proved that on 06.04.1997, as per the directions issued by defendant No.4-Electrical Contractor, the deceased was connecting the wires to provide electricity to the borewell. At that time, he was electrocuted due to the negligence on the part of defendant Nos.1 to 4 and also proved that deceased Ramalingaiah used to earn Rs.150- 200/- per day and defendant No.2 failed to prove that defendant Nos.1 to 3 are not liable for the death of deceased Ramalingaiah and also failed to prove that the trial Court had no jurisdiction to try the claim of the plaintiffs and failed to prove that the said suit was barred by limitation and hence, plaintiffs were entitled for recovery of damages. Accordingly, the trial Court by judgment and decree dated 25.08.2009 decreed the suit in part for recovery of damages of Rs.3,00,000/- from the date of suit till realization of the same and defendants - Corporation and defendant No.4 shall pay 50% of damages/compensation with interest at the rate of 6% p.a. within a period of one month.
9. Aggrieved by the said judgment and decree of the trial Court, defendant Nos.1 to 3 and defendant No.4 filed two separate appeals in R.A. Nos.132/2009 and 140/2009 before the Additional District and Sessions Judge, Mandya. The District and Sessions Judge, Mandya after following the procedure as contemplated under Order 41 Rule 31 of CPC framed the points for determination and after considering both oral and documentary evidence on record, by the impugned judgment and award dated 11.11.2011 dismissed both the appeals and confirmed the judgment and decree passed by the trial Court.
10. Being aggrieved by the concurrent findings of the facts recorded by the Courts below did not deter the appellants from preferring these appeals as a last ditch attempt.
11. I have heard the learned counsel for the parties to the lis.
12. Sri. H.C. Shivaramu, learned counsel appearing for the appellant in RSA No.239/2012 vehemently contended that the impugned judgment and decree passed by the Courts below granting damages of Rs.3,00,000/- with 6% interest per annum is without any basis and it cannot be sustained. He would further contend that defendant No.4 is an Electrical Contractor under Defendant Nos.1 to 3 and in the written statement, it has been specifically contended that the deceased Ramalingaiah was not working under him and no issues were framed, the burden of proving which was put on defendant No.4 by the trial Court and the trial Court thereby proceeded to pass the impugned judgment and decree, which cannot be sustained.
13. He would further contend that the suit filed by the plaintiffs for the relief of damages was barred by limitation and even if, Ramalingaiah had gone to provide electric connection on the say of defendant No.4, defendant No.4 cannot be held liable, until such direction was an official binding directions. In the absence of official directions, question of directions by defendant No.4 directing the Ramalingaiah to repair the line would not arise. He would further contend that there is no piece of paper/evidence that defendant Nos.1 to 3 had entrusted the work to defendant No.4 for providing electric connection to the borewell of Siddegowda. In the absence of the same, the contention of the plaintiffs cannot be accepted and the impugned judgment and decree granting the damages is contrary to material on record. Therefore, he sought to allow the appeal.
14. Sri. H.V. Devaraju, learned counsel appearing for the appellants in RSA No.463/2013 contended that the impugned judgment and decree passed by the trial Court confirmed by the judgment and decree of the lower appellate Court is without application of mind, which cannot be sustained. He would further contend that both the Courts below erred in fixing the responsibility on defendant Nos.1 to 3 even though defendant No.1 is no way concerned with the electrocution alleged to have been occurred as alleged in the plaint. He further contended that the very suit filed by the plaintiffs for damages is not maintainable. If at all the claimants claimed the damages, they have to approach only under the Provisions of Section 22 of the Employees Compensation Act, 1923. He would further contend that the Lower Appellate Court without discussing the evidence available on record simply came to the conclusion that the suit filed by the plaintiffs is maintainable.
15. He further contended that the Appellate Court, though there is no admission on the part of the defendants as to the alleged electrocution, has proceeded holding that the deceased died due to the electrocution on account of the sudden switch on and sudden flow of electricity. The said finding is opposed to evidence on record, perverse, arbitrary and illegal and liable to be set aside. He further contended that the Lower Appellate Court has not reassessed the entire material on record and simply confirmed the judgment and decree of the trial Court without considering both oral and documentary evidence.
16. He further contended that Lower Appellate Court being fact finding Court has not independently recorded any finding and failed to notice that the relationship of employer and employee has to be decided only under the Workmen Compensation Act and not by the Civil Court. He further submitted that the impugned judgment and decree and fixing 50% of the responsibility for payment of compensation with 6% interest per annum to defendant Nos.1 to 3 on one hand and defendant No.4 on the another hand is erroneous, contrary to law and sought to allow the appeal.
17. Per contra, Sri. L. Raja, learned counsel appearing for respondent Nos.1 to 3/plaintiffs sought to justify the impugned judgment and decree passed by the trial Court and contended that the negligence on the part of the defendant Nos.1 to 4 has been proved and due to the negligence on the part of defendant Nos.1 to 4, the deceased died at the age of 35 years. Both oral and documentary evidence clearly depicts that there is negligence on the part of defendant Nos.1 to 4. Therefore, the suit is maintainable. The Courts below have rightly awarded the damages/compensation of Rs.3,00,000/- directing defendant Nos.1 to 3 and defendant No.4 to pay 50% each and the same is in accordance with law. He further contended that though the trial Court has come to the conclusion that the plaintiffs are entitled to Rs.4,32,000/-, based on the claim made in the plaint, the trial Court restricted the damages to Rs.3,00,000/- and the plaintiffs have not filed appeal against the restriction made by the trial Court. Therefore, he sought to dismiss the appeals.
18. In view of the rival contentions urged by the learned counsel for the parties, the following substantial questions of law that arise for consideration in the present appeals are:-
“1. Whether the Courts below were justified in awarding the compensation of Rs.3,00,000/- to the plaintiffs, who are wife and children of the deceased Ramalingaiah, who died due to electrocution on account of negligence on the part of respondent Nos.1 to 4?
2. Were the Courts below justified in awarding interest 6% p.a. from the date of the Mis. Petition No.197/1997 filed on 22.10.1997 in the facts and circumstances of the case?”
19. It is the specific case of the plaintiffs before the trial Court that the defendant Nos.1 to 3, who are providing electricity and defendant No.4 was Electrical Contractor under defendant Nos.1 to 3. On the directions issued by defendant No.4, deceased climbed the electricity pole to provide electricity and when he was connecting the wires to provide electricity, suddenly the said wires became alive. As a result, the deceased Ramalingaiah electrocuted and died on 06.04.1997. He was earning Rs.150-200/- per day as daily wages from the employment under defendant No.4.
20. The plaintiff No.1-wife of the deceased Lakshmamma examined as PW.1 stated in her examination-in-chief that her husband was working as a Lineman under defendant No.4 on daily wage of Rs.150/-
to 200/- per day. Though she has stated that her husband was working under defendant No.4, she has not produced any evidence before the Court below. She denied the suggestion that Ramalingaiah had no nexus with defendant No.4. But her oral evidence of the fact is that the deceased Ramalingaiah was working under defendant No.4 has remained unshaken.
21. PW.2 – M. Basavaiah had given evidence that deceased Ramalingaiah was working under defendant No.4 on daily wage basis. He was also cross-examined and he admitted that he did not see any documents to show that the deceased Ramalingaiah was working under defendant No.4. He stuck his version, although tested in the cross- examination, at length that Ramalingaiah was doing electrical work on his experience under defendant No.4. The evidence of PW.2 that the deceased Ramalingaiah was working under defendant No.4 has remained unshaken.
22. PW.3 – Nagaraju also corroborated the evidence of PW.1 and 2 and he has admitted that he does not know whether Ramalingaiah had undertaken any training in electrical work and he did not see any document. The categorical evidence of PW.1 to 3 that the deceased Ramalingaiah was working under Defendant has remained unshaken even though they were cross-examined by defendants.
23. Defendant No.4 examined as DW.2 and he has stated that he does not know deceased Ramalingaiah and the plaintiffs. At any point of time, deceased Ramalingaiah never worked under him and he had no nexus to said Ramalingaiah. In the cross-examination, DW.2 admitted that he has received summons from the Court in the suit. Indisputably, the summons of defendant No.4 in the suit which was served on DW.2, the description as described in the cause title of the present plaintiffs has been made. Defendant No.4 has further admitted that he has been doing contract business from 1997 and his name is entered in defendants’ Corporation Contractor list at Mandya and he was allotted the electrical work from Assistant Executive Engineer, Mandya but he has not produced any documents like workers attendance register, wages register and other documents including for having carried electrical works, which were entrusted by defendant Nos.1 to 3 Corporation. Defendant No.4, who is a contractor under defendants’ Corporation should have produced relevant registers, at the relevant point of time. But he has not produced the same to prove that there is no relationship between him and the deceased Ramalingaiah. The fact remains that the deceased Ramalingaiah died due to the electrocution on a fateful day at the instance of defendant No.4. If the deceased Ramalingaiah really had not worked under defendant No.4 as alleged, what prevented defendant No.4 to produce registers maintained by him as electrical contractor working under defendant Nos.1 to 3 from 1997 is not forthcoming. It is not in dispute that the plaintiffs before filing the suit have issued legal notice as per Ex.P.4(a) to defendant No.4 which was returned with shara “unexecuted” on the ground that defendant No.4 was not residing in the village. But very strangely has received summons from the Court at the very same address, which was described in the registered post.
24. The material document at Ex.P.6 - the inquest panchanama drawn by the Basaralu Police clearly evidences that the deceased Ramalingaiah died due to electrocution in the electrical pole. The Inquest panchanama also contains the statement of panchas. The Panchas have stated that deceased Ramalingaiah had gone for electrical work of Siddegowda, Belur Village to discharge the work under defendant No.4 has to be accepted. The material on record clearly depicts that panchas made statements before the police, at the time of inquest panchanama, which is also substantive evidence as per the dictum of this Court in the case of Savithribai Vs.
Doddappa reported in 1981 ACJ 422. Evidence of PWs.1 to 3 abundantly establish that deceased Ramalingaiah had gone to discharge the electrical work under defendant No.4 at electrical pole at that time, he was electrocuted. Thus, both oral and documentary evidence on record clearly depicts that deceased was doing electrical work under defendant No.4 as on the date of electrocution. Ex.P.7 Post Mortem Report establishes that Ramalingaiah died due to electrocution on 06.04.1997 at 12 o’ clock at Doddagarudanahalli Village. Thus, the death of Ramalingaiah is due to electrical accident, which is abundantly proved before the Court.
25. The material on record clearly depicts that defendant No.4 is a licensed Electrical Contractor and defendant Nos.1 to 3 are Electrical Power Corporation. Defendant Nos.1 to 3 being a Corporation, which has control over transmission and supply of electricity are responsible to take all safety and precautionary measure to avoid hazardous or dangers to the life of the property. The defendants owing aforementioned responsibility failed to take care, provide protection and safety measures at the time of electrical work did by deceased Ramalingaiah. On the instruction given by defendant No.4 – licensed contractor under defendant Nos.1 to 3, Dw.1 has stated that subsequently, he came to his office and spoke on the records available in the file, which noway helps the Court to hold that there is negligence on the part of Ramalingaiah for the electrical accident. The material on record clearly depicts that defendant Nos.1 to 3 being officers of the Department and defendant No.4 being electrical contractor under defendant Nos.1 to 3 have not taken any precautions thereby, resulted the electrocution of the deceased Ramalingaiah.
26. Insofar as the contention of the learned counsel for the appellants that the suit is not maintainable and plaintiffs have to approach the Commissioner for Workmen Compensation cannot be accepted for the reasons that the plaintiffs specifically alleged the negligence against the defendants for the death of Ramalingaiah in the electrical accident. When the actionable negligence is attributed against all the defendants, such a plea cannot be decided by the Commissioner for Workman Compensation under the Provisions of Workman Compensation Act, 1923. When there is no provision to adjudicate the aforesaid claim of the plaintiffs under the said provisions, it cannot be said that the Civil Court has no jurisdiction to take cognizance of the suit and to adjudicate the same. When the jurisdiction of Civil Court is not expressly or implicitly barred under the Workman Compensation Act to determine the claim of the plaintiffs, the same cannot be accepted. Plaintiffs have claimed damages on the basis of the actionable negligence on the part of the defendants and therefore, the said contention cannot be accepted. It is further contended that the application filed by the plaintiffs seeking permission to sue them as indigent persons on 22.10.1997 in respect of the impugned electrical accident occurred on 06.04.1997 and defendants have not pointed out any provision which bar the suit on the ground of limitation. The suit for damages based on the negligence, which was filed within a span of six months or within one year. Therefore, suit was filed within the time.
27. In view of the aforesaid facts, it is clear that actionable negligence on the part of the defendants is proved from both oral and documentary evidence. The Trial Court while deciding the loss of dependency to the plaintiffs being wife and children and they are depending upon the income of the defendants and loss of dependency to be ascertained from the prevailing principles laid down by the Apex Court in the case of Sarla Verma Vs. Delhi Transport Corporation and another reported in 2009 ACJ 1298 and the trial Court came to the conclusion that the deceased was earning Rs.150-200/- per day and accordingly, has taken the notional income of deceased being unskilled labourer at Rs.3,000/- per month after deducting 1/3rd towards his personal expenses, the loss of dependency would be:
Rs. 2000 x 12 x 17 = 4,08,000/-
Accordingly, Rs.10,000/- towards consortium, Rs.10,000/- towards loss of estate and Rs.4,000/- towards funeral expenses were awarded.
28. The trial Court, in all Rs.4,32,000/- was assessed as damages. But based on the plaint averments, the claimants in their prayer claimed Rs.3,00,000/-, the trial Court has restricted the claim and awarded damages only to Rs.3,00,000/- though plaintiffs were entitled to Rs.4,32,000/-.
29. The Lower Appellate Court on re-appreciation of the entire material on record, under Order 41 Rule 31 of CPC, framed the following points for determination:
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2. ªÉÄîä£À«zÁgÀgÀÄ ªÀÄÈvÀ£À ¸Á«UÉ F ªÉÄîä£À«zÁgÀgÀÄ dªÀ¨ÁÝgÀgÀÄ CAvÀ PɼÀ£ÁåAiÀiÁ®AiÀÄ ¤tð¬Ä¹gÀĪÀÅzÀÄ PÁ£ÀƤUÀÆ ªÀÄvÀÄÛ ¸ÁPÀë åzsÁgÀPÀÆÌ «gÀÄzÀÞªÁVzÉ CAvÀ gÀÄdĪÁvÀÄ ¥Àr¹zÁÝgÉAiÉÄÃ?
3. ªÉÄîä£À« ¸ÀASÉå: 140/2009gÀ°è£À ªÉÄîä£À«zÁgÀ PɼÀ£ÁåAiÀiÁ®AiÀĪÀÅ ªÀÄÈvÀ¤UÀÆ ªÀÄvÀÄÛ F ¥æÀwªÁ¢UÀÆ PÁ£ÀÆ£ÀħzÀÞªÁzÀ PÉ®¸ÀzÀ ¸ÀA§AzsÀ«vÀÄÛ PÁgÀt CªÀ£À DPÀ¹äPÀ ¸Á«UÀÆ F ¥æÀwªÁ¢ PÀÆqÁ PÁgÀt CAvÀ wêÀiÁð¤¹zÀÄÝ, PÁ£ÀƤUÀÆ ªÀÄvÀÄÛ ¸ÁPÀë åzsÁgÀPÀÆÌ «gÀÄzÀÞªÁVzÉ CAvÀ gÀÄdĪÁvÀÄ ¥Àr¹zÁÝgÉAiÉÄÃ?
4. ªÉÄîä£À«zÁgÀgÀÄ PɼÀ£ÁåAiÀiÁ®AiÀÄzÀ wÃ¥ÀÄð ªÀÄvÀÄÛ rQæ zÁªÉAiÀÄ WÀl£É ªÀÄvÀÄÛ ¸ÀAzÀ¨sÀðUÀ½UÉ ºÁUÀÆ PÁ£ÀÆ£ÀÄ ªÀÄvÀÄÛ ¸ÁPÀë åzsÁgÀPÀÆÌ ªÀåwjPÀÛªÁVzÀÄÝ PÁgÀt CzÀ£ÀÄß §¢Vj¹ zÁªÉAiÀÄ£ÀÄß ªÀeÁ ªÀiÁqÀ¨ÉÃPÉAzÀÄ gÀÄdĪÁvÀÄ ¥Àr¹zÁÝgÉAiÉÄÃ?
5. AiÀiÁªÀ DzÉñÀ?”
30. The Lower Appellate Court considering both oral and documentary evidence on record, recorded a finding that the appellants failed to prove that the Civil Court had no jurisdiction to entertain the suit for damages and has not made out any ground to interfere with the judgment and decree passed by the trial Court. The Lower Appellate Court further recorded the averments of the written statement filed by defendant No.4 at para 5, which is stated as under:
“Admittedly that the deceased died due to electrocution on account of sudden switch on, sudden flow of electricity. It is not explained which of the officer switched off the electricity on whose request and for what purposes. If any work on behalf of the defendants is being carried out all such precautions are taken care of while the work is going on. Therefore, if the alleged electrification of pump set of Siddegowda S/o Kalegowda, if really is carried out the same will be done by the Contractors as far as information available that no such request is forwarded by the 4th defendant if really he is contractor.”
Therefore, it clearly indicates that the deceased died due to the electrocution on account of negligence on the part of the defendants.
31. The Lower Appellate Court further recorded the findings at para 27, 28, 29 and 30, which reads as under:
“27. ªÀÄÈvÀ£ÀÄ C¥ÀWÁvÀ¢AzÀ ªÉÄÃ¯É ºÉýzÀ ¢£ÁAPÀ, ¸ÀªÀÄAiÀÄ ªÀÄvÀÄÛ ¸ÀܼÀzÀ°è ªÀÄÈvÀ¥ÀlÖ J£ÀÄߪÀÅzÀÄ ¤«ðªÁzÀ. ªÀÄÈvÀ£À ¸ÁªÀÅ AiÀiÁgÀ CeÁUÀgÀÄPÀvɬÄAzÀ D¬ÄvÀÄ ºÁUÀÆ AiÀiÁgÀÄ ¥ÀjºÁgÀ PÉÆqÀ®Ä ¨sÁzÀ¹ÜPÉ G¼ÀîªÀgÀÄ J£ÀÄߪÀÅzÀÄ MAzÀÄ CqÀPÀªÁVgÀĪÀ ¥æÀ±Éß. EzÀPÉÌ GvÀÛgÀ ¤ÃrzÀ £ÀAvÀgÀ AiÀiÁgÀÄ ¥ÀjºÁgÀ PÉÆqÀ¨ÉÃPÀÄ J£ÀÄߪÀ CA±À wêÀiÁð£ÀªÁUÀÄvÀÛzÉ. vÀzÀ£ÀAvÀgÀ JµÀÄÖ ªÉÆvÀÛzÀ ¥ÀjºÁgÀªÀ£ÀÄß PÉÆqÀ¨ÉÃPÀÄ J£ÀÄߪÀÅzÀ£ÀÄß wêÀiÁð¤¸À¨ÉÃPÁUÀÄvÀÛzÉ.
28. PɼÀ£ÁåAiÀÄ®AiÀĪÀÅ JµÀÄÖ ªÉÆvÀÛzÀ ¥ÀjºÁgÀªÀ£ÀÄß PÉÆqÀ¨ÉÃPÀÄ CAvÀ wêÀiÁð¤¹zÀÄÝ F ªÉÄîä£À«AiÀÄ°è AiÀiÁªÀÅzÉà jÃw CzÀ£ÀÄß UÀA©üÃgÀªÁV ¥æÀ²ß¹®è. D §UÉÎ AiÀiÁªÀÅzÉà «±ÉõÀ ªÁzÀ ªÀÄAr¹®è PÉ®£ÁåAiÀiÁ®AiÀĪÀÅ JµÀÄÖ ¥ÀjºÁgÀ §gÀ¨ÉÃPÀÄ CAvÁ ºÉý ªÁ¢AiÀÄgÀÄ PÉýzÀ ªÉÆvÀÛzÀ ¥ÀjºÁgÀªÀ£ÀÄß PÉÆnÖzÉ. PÁgÀt ¥ÀjºÁgÀ PÉÆqÀ®Ä AiÀiÁgÀ CeÁUÀgÀÆPÀvɬÄAzÀ WÀl£É D¬ÄvÀÄ AiÀiÁgÀÄ ¨ÁzÀå¸ÀÜgÀÄ J£ÀÄߪÀÅzÀ£ÀÄß ªÀiÁvæÀ ªÄÉ Ã®ä£«À AiÄÀ ° UÀA©Ãü gÀªÁV ¥Àæ²ß¹zÁÝgÉ.
29. PɼÀ£ÁåAiÀÄ®AiÀĪÀÅ ªÁ¢AiÀÄÄ zÁªÉAiÀÄ°è ºÉýzÀ CA±ÀUÀ¼À£ÀÄß ªÀiËTPÀ ¸ÁPÀë å¢AzÀ ªÀÄÈvÀ 4£Éà ¥æÀwªÁ¢AiÀÄ CtwAiÀÄ ªÉÄÃgÉUÉ PÉ®¸À ªÀiÁqÀ®Ä ºÉÆÃVzÀÝ JAzÀÄ gÀÄdĪÁvÀÄ ¥Àr¹zÁÝgÉ CAvÀ ºÉýzÁÝgÉ. 4£Éà ¥æÀwªÁ¢AiÀÄ UÀÄgÀÄw£À §UÉÎ EgÀĪÀ «ªÁzÀªÀ£ÀÄß PɼÀ£ÁåAiÀÄ®AiÀĪÀÅ ªÁ¢AiÀÄgÀÄ ªÀÄvÀÄÛ 4£Éà ¥æÀwªÁ¢AiÀÄ ¸ÁPÀë åªÀ£ÀÄß ¥ÀjUÀt¹ 4£Éà ¥æÀwªÁ¢AiÀÄÄ ªÀÄÈvÀ¤UÉ PÁªÀÄUÁj PÉ®¸À ªÀ»¹zÀÝ J£ÀÄߪÀÅzÀ£ÀÄß ªÁ¢ gÀÄdĪÁvÀÄ ¥Àr¹zÁÝ£É CAvÀ ºÉýzÉ. CzÉà jÃw 4£Éà ¥æÀwªÁ¢ 1997 jAzÀ ¥æÀwªÁ¢-2 ªÀÄvÀÄæ 3 gÀ CrAiÀÄ°è «zÀÄåvï UÀÄwÛUÉzÁgÀ£ÁV £ÉÆÃAzÁ¬Ä¸À®ànÖzÁÝ£É CAvÀ gÀÄdĪÁvÀÄ DVzÉ CAvÀ ºÉýzÉ.
30. 4£Éà ¥æÀwªÁ¢ ¥æÀwªÁzÀ ¥ÀvæÀzÀ°è ¤¢ðµÀÖªÁV C®èUÀ¼ÉAiÀÄĪÀÅzÉãÉAzÀgÉ ªÁzÀ¥ÀvæÀzÀ CA±ÀUÀ¼À£ÀÄß ªÀiÁvæÀ. CzÀPÉÌ ¥ÀÆgÀPÀªÁV gÀPÀëuÁvÀäPÀ ªÁzÀ K£ÀÄ J£ÀÄߪÀÅzÀ£ÀÄß ºÉý®è. PÁgÀt PɼÀ £ÁåAiÀÄ®AiÀĪÀÅ ªÀÄÈvÀ£ÀÄ 4£Éà ¥æÀwªÁ¢ PÉÊ PɼÀUÉ PÀÆ° PÉ®¸À ªÀiÁqÀÄwÛÃzÀÝ J£ÀÄߪÀÅzÀ£ÀÄß wêÀiÁð¤¹zÀÄÝ PÁ£ÀƤUÉ ¸ÁPÀë åzsÀgÀUÀ½UÉ C£ÀÄUÀÄtªÁV CAvÀ PÀAqÀħgÀÄvÀÛzÉ. CzÉà jÃw 4£Éà ¥æÀwªÁ¢ UÀÄgÀÄw£À §UÉÎ ¸ÀºÀ PɼÀ £ÁåAiÀÄ®AiÀĪÀÅ DvÀ£Éà ªÀÄÈvÀ¤UÉ PÉ®¸À ªÀiÁqÀ®Ä Ctw PÉÆnÖzÀÝ J£ÀÄߪÀ ¸ÁPÀë åzsÁgÀzÀ DzsÁgÀzÀ ªÉÄÃ¯É wêÀiÁð¤¹zÉ. 4£Éà ¥æÀwªÁ¢UÉ ªÁ¢AiÀÄgÀÄ PÀ¼ÀÄ»¹zÀ w¼ÀĪÀ½PÉ ¥ÀvæÀ ¤¦.1 DvÀ¤UÉ eÁjAiÀiÁUÀzÃÉ ªÁ¥À¸ÀÄì §A¢zÀÄÝ DzÀgÉ £ÁåAiÀÄ®AiÀĪÀÅ PÀ¼ÀÄ»¹zÀ ¸ÀªÀÄ£ïì 4£Éà ¥æÀwªÁ¢UÉ eÁjAiÀiÁVzÀÝjAzÀ 4£Éà ¥æÀwªÁ¢ ªÁ¢ ºÉýzÀ UÀÄwÛUÉzÁgÀ CAvÀ wêÀiÁð¤¹gÀĪÀÅzÀÄ £ÁåAiÉÆÃavÀªÁVzÉ. ªÀÄÈvÀ£ÀÄ «zÀÄåvï C¥ÀWÁvÀ¢AzÀ ªÀÄÈvÀ ¥ÀlÖ CAvÀ ±ÀªÀvÀ¤SÁ ªÀgÀ¢ ¤¦.6 ªÀÄvÀÄÛ ±ÀªÁ¥ÀAZÀ£ÁªÉÄ ¤¦.7 gÀ°è£À ¸ÁPÀë åzsÁgÀUÀ½AzÀ PÀAqÀħgÀÄvÀÛzÉ.”
And dismissed the appeal.
32. Both the Courts below based on the oral and documentary evidence on record have concurrently held that the plaintiffs proved that the deceased Ramalingaiah died due to the electrocution on 06.04.1997 due to the negligence on the part of the defendants and he was working on the direction issued by defendant No.4, who is electrical contractor under defendant Nos.1 to 3 and had not taken any precaution to avoid such electrocution which resulted the death of Ramalingaiah at the age of 35 years. The Courts below concurrently held that defendant No.4 failed to prove that defendant Nos.1 to 3 are not liable for the death of the deceased and Civil Court has no jurisdiction or suit is barred by limitation. Such a finding of the fact recorded by the courts below based on the oral and documentary evidence cannot be reinvestigated by this Court by exercising the power under Section 100 of CPC. It is also not in dispute that deceased was aged about 35 years at the time of electrical accident. The trial Court taking into consideration the law laid down by the Hon’ble Supreme Court in the case of Sarla Verma stated supra has taken notional income of deceased at Rs.3,000/- p.m.
and after deducting 1/3rd towards his personal expenses, Rs.2,000/- has been taken.
2000 x 17 x 12 = 4,08,000 + 10,000 + 10,000 + 4,000 = 4,32,000/-
33. In all Rs.4,32,000/- ought to have been awarded as damages to the plaintiffs. But taking into consideration the claim made in the plaint at Rs.3 lakhs, the trial Court restricted the compensation and awarded Rs.3,00,000/- as damages. Admittedly, the plaintiffs have not filed any appeal against the said finding that the restriction of claim made in the plaint. For the reasons stated supra, the first substantial question of law has to be answered in affirmative holding that the Courts below justified in awarding compensation/damages of Rs.3,00,000/- to the plaintiffs – wife and children of the deceased.
34. It is also not in dispute that the plaintiffs filed suit as indigent persons by filing Mis. No.197/1997 on 22.10.1997 and in the year 2002, ultimately by the leave of the Court Mis. No.197/1997 was converted into the suit in O.S. No.211/2002 on 11.11.2002. Taking into consideration, the surrounding facts and circumstances of the case and length of the time spent, this Court is of the considered opinion that the plaintiffs are entitled to damages as awarded by the Courts below at Rs.3,00,000/- with interest @ 6% p.a. from the date of the suit i.e., on 11.11.2002 and not from the original Mis. No.197/1997 filed and accordingly, the second substantial question of law is answered in negative holding that the courts below is not justified awarding interest at 6% p.a. from the date Mis. Petition filed, but the plaintiffs are entitled to the compensation/damages of Rs.3,00,000/- (Rupees Three Lakhs only) with 6% interest from 11.11.2002.
35. Accordingly, the appeals are allowed in part.
Only to that extent, the impugned judgment and decree passed by the trial Court, confirmed by the Lower appellate Court is hereby modified. The plaintiffs are entitled for recovery of damages/compensation of Rs.3,00,000/- with interest @ 6% p.a. from 11.11.2002 till realization and defendant Nos.1 to 3 shall pay 50% of the damages/compensation with 6% interest per annum and remaining 50% with 6% interest by defendant No.4. The defendants shall pay the said amount within a period of six months from the date of receipt of certified copy of this judgment and decree.
Ordered accordingly.
Sd/- JUDGE MBM