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HIGH COURT OF TRIPURA

AGARTALA

RFA 25 of 2017

1. The Tripura State Electricity Corporation Limited,

represented by the Chairman-cum-Managing Director,

Bidyut Bhawan, Banamalipur, B.K. Road, Banamalipur, Agartala

P.S. East Agartala, District- West Tripura

2. The Senior Manager (Electrical),

Tripura State Electricity Corporation Limited, Chawmanu Sub-Division,

P.O. – Chawmanu, P.S. Chawmanu, District- Dhalai, Tripura

....Defendant-Appellants

VERSUS

1. Smt. Hemamala Tripura,

wife of Sri Uttam Tripura, resident of Krishnarai Royaja Para,

P.O.- Chawmanu, P.S. Chawmanu, District- Dhalai, Tripura

at present residing at: Jirania, P.S. Jirania, District- West Tripura

2. Sri Uttam Tripura,

son of Sri Nabin Kumar Tripura, resident of Krishnarai Royaja Para,

P.O.- Chawmanu, P.S. Chawmanu, District- Dhalai, Tripura

at present residing at: Jirania, P.S. Jirania, District- West Tripura

... Plaintiff-Respondents

For Defendant-Appellant (s ) : Ms. S. Debgupta, Advocate

For Plaintiff-Respondent (s) : Mr. P.S. Roy, Advocate

Date of hearing & delivery

of Judgment & Order : 06.07.2020

Whether fit for reporting : Yes

HON’BLE MR. JUSTICE ARINDAM LODH

JUDGMENT & ORDER

1. Heard Ms. S. Debgupta, learned counsel appearing for the defendant-

appellants (here-in-after referred to as the appellants), Tripura State Electricity

Corporation Limited (for short TSECL). Also heard Mr. P.S. Roy, learned counsel

appearing for the plaintiff-respondents (here-in-after referred to as the plaintiffs).

2. The pleaded case of the plaintiffs and the appellants, TSECL, as narrated by

the learned trial court, is as follows:

(i) The case of the plaintiffs is that due to negligence of maintenance of

the electrical wire by the defendant-appellants, the appellants herein, one

broke live electric wire was hanging from top of electric post and was

touching the ground of road at Nizachandra Karbari Para under

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Chawmanu PS. On 27.09.14 at about 06:30 am when Majesh Tripura,

the son of the plaintiffs, was going towards his school at that time

suddenly he came in contact with the said live torn electric wire and got

electrocuted and fell down on the road. Immediately, some local people

who had seen the incident and sent said Majesh Tripura to the nearest

Chowmanu Primary Hospital on 27.09.14 by a vehicle, wherein after

examination, the attending doctor of the hospital declared said Majesh

Tripura as dead. Accordingly, postmortem was held on 27.09.14 and, the

doctor opined that said Majesh Tripura died due to cardiac arrest

resulting from such electrocution which is accidental in nature.

According to the plaintiffs, the accident of electrocution and death of the

victim Majesh Tripura occurred due to gross negligence and

carelessness of the electrical staffs. According to the plaintiffs, though

the local people informed the same to the local electric office to remove

and repair the torn live wire but the electrical staffs did not pay any heed

to the request of the local people. According to the plaintiffs, if the

electrical staffs had removed the torn live electric wire in proper time,

then the son of the plaintiffs would not have died but, the electrical staffs

according to the plaintiffs were so careless and negligent in their duties

resulting which the said accident took place. According to the plaintiffs

after the occurrence of the accident and after getting information of the

electrocution and death of the victim Sri Majesh Tripura, the electrical

staffs came to the spot and removed the torn live electric wire

immediately. Based on the above facts on 27.09.14, Sri Uttam Tripura,

the father of the deceased lodged an FIR at Chawmanu PS which has

been registered as Chawmanu PS case No. 1-201/14 under section 174 of

Cr.P.C. According to the plaintiffs, the victim Majesh Tripura was nine

years old at the time of his death. He was a brilliant student and his

ambition was to become a doctor in future. He was very hard working

boy and sincere and he used to look after the business affairs of a poultry

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farm and used to assist his parents i.e. the plaintiffs in running the

business. According to the plaintiffs the monthly income of their

deceased son, Majesh Tripura was about Rs. 5,000/- and they were

dependent upon their deceased son. Since the plaintiffs were suffering

from various ailments so the business of the poultry farm used to be

supervised by their deceased son. Accordingly, the plaintiffs demanded a

sum of Rs. 5,00,000/- only as compensation for the death of their son

which caused due to negligence and carelessness on the part of the

appellants alongwith 15% interest from the date of the accident till

realization of the awarded compensation money. The plaintiffs also

claimed Rs. 50,000/- only for funeral expenses and shradhya ceremony.

For loss of love and affection, the plaintiffs claimed Rs. 1,00,000/- only.

The plaintiffs have also served Advocate notice upon the appellants on

03.07.15 but the appellants did not give any response to the said notice.

So, finding no other alternative, the plaintiffs have filed this suit for

getting compensation of Rs. 5,00,000/- along with 15% interest.

(ii) Per contra, appellants, being defendant-opposite parties No. 3

and 4 contested the case by filing written statement whereas as per

record the defendant-opposite parties No. 1 and 2 did not contest the

case. The appellants had denied all the assertions made by the plaintiffs

in their plaint. According to the appellants the suit filed by the plaintiffs

is not maintainable and the suit is bad for mis-joinder and non-joinder

of the parties. According to the appellants, TSECL is a company

registered under the Companies Act. A company has got legal and

separate entity. So company is a necessary party in the suit, but, in the

present suit TSECL has not been made party for which the suit is bad

for non-joinder of parties. According to the appellants, since TSECL is

a company registered under the Companies Act, the State of Tripura

and the Secretary, Department of Power are not the necessary parties

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in any claim or suit filed against the TSECL. So, according to the

appellants the suit is also bad for misjoinder of parties. According to

the appellants, the present suit has been filed beyond the jurisdiction of

the learned Court as because the alleged accident / incident took place

under the Dhalai District and the instant suit has been filed before the

Civil Judge (Senior Division) Court No.4, West Tripura, Agartala, so,

the suit filed by the plaintiffs for getting the compensation is not

maintainable due to lack of jurisdiction. According to the appellants,

there is no allegation in the instant suit by the plaintiffs that due to

actionable wrong on the part of the appellants, the son of the plaintiffs

had died, which is mandatory as per section 1(A) of the Fatal Accident

Act. Since the plaintiffs filed the suit under Section 1(A) of the Fatal

Accident Act, hence in absence of actionable wrong on the part of the

appellants any claim of the plaintiffs’ is not entertainable as per the

provisions of law. The appellants also denied the age of the deceased

since the age of the deceased has not been proved by submitting school

certificate. According to the appellants, as per the FIR and other police

report as well as internal report of the Sr. Manager and report of the

Electrical Inspector, the age of the deceased was seven years at the time

of the alleged accident. The appellants also denied the assertion made

by the plaintiffs that the deceased had monthly income of Rs. 5,000/-

and the occupation was poultry farm, as because, according to the

appellants, a boy of seven years cannot run a poultry farm. So,

according to the appellants the statement regarding the profession and

income of the deceased are false and fabricated and hence those

statements cannot be considered by the court. According to the

appellants, the assertion made by the plaintiffs that there was serious

negligence and carelessness on the part of the appellants and due to

negligence of maintenance of the torn live electric wire by the

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appellants, the deceased was electrocuted and died, are not correct and

strongly denied by appellants. According to the appellants, there was no

negligence and carelessness on their part. Moreover, there is no

actionable wrong for the alleged accident and no such allegation has

been brought by the plaintiffs though the instant suit has been filed

under the provision of section 1(A) of the Fatal Accident Act. According

to the appellants they are not responsible for the alleged accident and

also not liable for making any compensation, as claimed by the

plaintiffs in this suit. According to the appellants, since they are not

responsible for the alleged accident, the suit of the plaintiffs is liable to

be dismissed without any consideration.

3. On the basis of the aforesaid facts, the learned court had framed the

following issues:

(i) Whether the suit is maintainable in its present form and nature?

(ii) Whether there is any cause of action for filing of the suit by the

plaintiffs?

(iii) Whether the accident of electrocution caused death of Majesh

Tripura on 07.09.14?

(iv) Whether the said accident of electrocution occurred due to gross

negligence and carelessness of the defendants?

(v) Whether the plaintiff is entitled to get the relief as prayed for?

(vi) What are the relief the plaintiff is entitled to?

4. During trial, the plaintiffs had adduced two witnesses, as PW-1, namely,

Smt. Hemamala Tripura and, PW-2, namely, Sri Chan Mohan Tripura. They have

introduced some documents.

5. It transpires from the records that despite enough opportunities given to the

TSECL, they did not adduce any evidence.

6. The main argument of Ms. Debgupta, learned counsel appearing for the

appellants is that, the learned trial court has wrongly quantified the compensation

due to the death of the son of the plaintiff-parents. The learned counsel disputed

the fact that the parents of the deceased were the cultivators and they had a poultry

farm. She further disputed that the son, being aged about 7/9 years would have

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been in a position to assist his parents to cultivate the land and to run the poultry

farm. Lastly, Ms. Debgupta, learned counsel has submitted that the judgment

passed by the learned trial court is erroneous and is liable to be quashed.

According to her, learned court ought not to have fixed the notional income of the

deceased at Rs. 30,000/- per annum.

7. On the other hand, Mr. PS Roy, learned counsel appearing for the plaintiffs,

who claimed Rs. 5 lakh due to the death of their son has submitted that he has

adduced evidence to substantiate the pleading that the deceased son of the

plaintiffs used to assist them in cultivation and running the poultry farm. Learned

counsel has relied upon the judgment of the Hon’ble Supreme Court in Kishan

Gopal and another vs. Lala and others reported in 2013 ACJ 2594, wherein the

Supreme Court has considered the notional income at Rs. 30,000/- per annum.

Accordingly, the learned counsel appearing for the plaintiffs has defended the

judgment and decree passed by the learned trial court.

8. I have given my thoughtful consideration to the evidence on record and the

findings returned by the learned trial court while rendering the judgment.

9. It is revealed from the evidence, as adduced by the plaintiffs, that two

witnesses, namely, PW-1 and PW-2 in their deposition have stated that the

deceased son of the plaintiffs used to help and assist them to cultivate their land

and also assist them in their day to day activities required to run the poultry farm.

Further, they deposed that the deceased son used to earn Rs. 5,000/- per month.

10. On the other hand, the appellant-TSECL, did not come forward to

controvert the evidence, as led by the plaintiffs in regard to the fact that the

deceased son of the plaintiffs was not in a position to assist the plaintiffs to

cultivate the land and to run the poultry farm. The appellant also has failed to

adduce any evidence to show that the income of the deceased son of the plaintiffs

was not Rs. 5,000/- per month. The accident out of electrocution was not disputed

by the appellants.

11. Ms. Debgupta, learned counsel for the appellants has strenuously urged that

under Section 163-A of the Motor Vehicles Act, notional income for compensation

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to those persons who have no income prior to accident is guided by clause (6) of

the said provision, which states as under:

“6. Notional income for compensation to those who had no income prior to accident:

xxx xxx xxx

(a) Non-earning persons- Rs. 15,000 p.a”

According to Ms. Debgupta, learned counsel, the learned trial Judge has

committed error of law while awarding compensation in favour of the plaintiffs in

regard to fixation of notional income @ Rs. 30,000/- per annum

13. In view of this submission of the learned counsel for the appellant, I have

perused the judgment of the Hon’ble Supreme Court passed in Kishan Gopal

(supra), which observed thus:

“ 18. ………. For this purpose, it would be necessary for us to refer to Second

Schedule under Section 163-A of the M.V. Act, at clause No.6 which refers to

notional income for compensation to those persons who had no income prior to

accident. The relevant portion of clause No.6 states as under:

“6. Notional income for compensation to those who had no income prior to accident:

xxx xxx xxx

(a) Non-earning persons - Rs.15,000/- p.a.”

The aforesaid clause of the Second Schedule to Section 163-A of the M.V.

Act, is considered by this Court in the case of Lata Wadhwa v. State of Bihar [2001

ACJ 1735 (SC)], while examining the tortuous liability of the tort-feasor has

examined the criteria for awarding compensation for death of children in accident

between age group of 10 to 15 years and held in the above case that the

compensation shall be awarded taking the contribution of the children to the family

at Rs.12,000/- p.a. and multiplier 11 has been applied taking the age of the father

and then under the conventional heads the compensation of Rs.25,000/- was

awarded. Thus, a total sum of Rs.1,57,000/- was awarded in that case. After noting

the submission made on behalf of TISCO in the said case that the compensation

determined for the children of all age groups could be double as in its view the

determination made was grossly inadequate and the observation was further made

that loss of children is irrecoupable and no amount of money could compensate the

parents. Having regard to the environment from which the children referred to in

that case were brought up, their parents being reasonably well-placed officials of

TISCO, it was directed that the compensation amount for the children between the

age group of 5 to 10 years should be three times. In other words, it should be Rs.1.5

lakhs to which under the conventional heads a sum of Rs.50,000/- should be added

and thus total amount in each case would be Rs.2 lakhs. Further, in the case referred

to supra it has observed that in so far as the children of age group between 10 to 15

years are concerned, they are all students of Class VI to Class X and are children of

employees of TISCO and one of the children was employed in the Company in the

said case having regard to the fact the contribution of the deceased child was taken

Rs.12,000/- p.a. appears to be on the lower side and held that the contribution of

such children should be Rs.24,000/- p.a. In our considered view, the aforesaid legal

principle laid down in Lata Wadhwa's case with all fours is applicable to the facts

and circumstances of the case in hand having regard to the fact that the deceased

was 10 years' old, who was assisting the appellants in their agricultural occupation

which is an undisputed fact. We have also considered the fact that the rupee value

has come down drastically from the year 1994, when the notional income of the non-

earning member prior to the date of accident was fixed at Rs.15,000/-. Further, the

deceased boy, had he been alive would have certainly contributed substantially to

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the family of the appellants by working hard. In view of the aforesaid reasons, it

would be just and reasonable for us to take his notional income at Rs.30,000/- and

further taking the young age of the parents, namely the mother who was about 36

years old, at the time of accident, by applying the legal principles laid down in the

case of Sarla Verma v. Delhi Transport Corporation[2009 ACJ 1298 (SC)], the

multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x 15 = 4,50,000 and

50,000/- under conventional heads towards loss of love and affection, funeral

expenses, last rites as held in Kerala State Road Trans. Corpn. v. Susamma

Thomas[1994 ACJ 1 (SC)], which is referred to in Lata Wadhwa's case and the said

amount under the conventional heads is awarded even in relation to the death of

children between 10 to 15 years old. In this case also we award Rs.50,000/- under

conventional heads. In our view, for the aforesaid reasons the said amount would be

fair, just and reasonable compensation to be awarded in favour of the appellants.

The said amount will carry interest at the rate of 9% p.a. by applying the law laid

down in the case of Municipal Corporation of Delhi v. Association of Victims of

Uphaar Tragedy[2012 ACJ 48 (SC)], for the reason that the Insurance Company has

been contesting the claim of the appellants from 1992-2013 without settling their

legitimate claim for nearly about 21 years, if the Insurance Company had awarded

and paid just and reasonable compensation to the appellants the same could have

been either invested or kept in the fixed deposit, then the amount could have earned

five times more than what is awarded today in this appeal. Therefore, awarding 9%

interest on the compensation awarded in favour of the appellants is legally

justified”.

14. It is the responsibility and liability of the appellant-TSECL to take due care

to avert any sort of accident out of electrocution and to undertake all possible

safety measures so that there is no wastage of electric energy. If they are found

negligent to preserve such noble act in the present days, they will be definitely

liable under the law of Torts for the injuries suffered by any person irrespective of

the nature of negligence.

15. In the case of S.K. Shangring Lamkang and anr. Vs. State of Manipur

and ors. reported in AIR 2008 Gauhati 46 that death that occurred due to

electrocution and live wire getting snapped and falling on the road which occurred

to any person, in such a case, electricity board is liable to pay compensation on the

principle of strict liability. The defence taken that is the exception to the said rule

of strict liability being an act of God that is due to lightning and stroke or storm

and not due to negligence of Electricity Board will not be available to the

electricity board.

16. In the instant case, the plaintiffs have been able to prove that the death of

their son occurred due to coming in contact with live torn electric wires on his way

to school on 27.09.2014 at about 6.30 am and, due to such contact with the live

torn electric wires, the victim was electrocuted, fell down and died due to cardiac

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arrest. Thus, it is clear that the death of the victim occurred out of electrocution

due to gross negligence and carelessness of the appellant-TSECL in maintaining

the torn live electric wires across the road. It is noticed that the learned trial judge

referring to the case of Kishan Gopal (supra) has observed thus:

“I find that the deceased victim was aged 10 years was assisting his father in his

agricultural work. Both the father and mother are aged 36 years. The Apex Court

taking into consideration all aspects of the case, assessed the notional income of the

deceased at Rs. 30,000/- per annum adopted a multiplier of 15 and awarded Rs.

4,50,000/- + Rs. 50,000/- under conventional heads towards loss of love and

affection, funeral expenses etc., the total amount of compensation was awarded

came to Rs. 5,00,000/-.

In the present case also, the deceased was aged 7 years and was admittedly

a student. Under the circumstances, I will not see why a notional income of Rs.

30,000/- should not also be fixed in the case of the deceased herein. The notional

income of the deceased is, therefore, fixed at Rs. 30,000/- per annum. Applying a

multiplier of 15 it comes to Rs. 30,000/- x 15 = Rs. 4,50,000/- to which shall be

added a sum of Rs. 40,000/- for loss of expectation of life and another sum of Rs.

10,000/- for funeral expenses. Therefore, the total amount of compensation

payable to the victim comes to Rs. 5,00,000/-. The interest payable to the victim

shall be 9 per cent per annum from the date of filing of the claim petition.

So, issue No. (v) is decided in the light of the above observation”.

17. I do not find any wrong in the said finding of the learned trial Judge.

Accordingly, the instant appeal is bereft of any merit and, is accordingly

dismissed.

18. Before parting with the record, I could not resist myself to express my

agony as well as anxiety that the responsible Officers of TSECL are found to be

apathetic in discharging their obligations towards the department. They have

forgotten that they are engaged in a coveted job and they have the responsibility

and liability towards the society by way of saving valuable energy. Furthermore,

they are also under the obligation to look after the interest of the department from

which they are earning their livelihood and maintaining their family. In many

cases, I find that the Officers of TSECL donot discharge their duty and are not

taking up the matters seriously. They donot inquire into the matter. For example, in

the instant case, the Officers who were posted at that place at the relevant time

could inquire as to whether the plaintiffs were having any land to cultivate or they

have any poultry farm and adduce the same in course of evidence to controvert the

claim of the plaintiffs. They also could procure the date of birth to prove the exact

age of the deceased son of the plaintiffs at the time of occurrence but, they failed

to discharge their liability and responsibility. The reason for such observation

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made by me is that the management from now onward should look into the matter

and issue necessary instruction or guideline to do the needful as observed here-in-

above as well as other instructions to combat such problem of the Corporation. It is

further requested that the management should definitely assist their engaged

Counsel for adducing evidence in each and every cases to protect the interest of the

Corporation as well as the public exchequer.

19. With the above observation and direction, the instant appeal stands

dismissed and the judgment and decree passed by the learned Civil Judge (Senior

Division) Court no. 4, West Tripura, Agartala is affirmed and upheld.

Send down the LCRs forthwith.

JUDGE

Saikat