SANTHA Vs. SECRETARY, KERALA STATE ELECTRICITY BOARD

JUDGEMENT

(1.) Sivaraman was a ticket checker in a bus. On 11/10/1998, when the bus reached a stop at Pulikkakadavu, a broken electric line was lying across the road, seeing it as an obstruction Sivaraman alighted from the bus and tried to clear the way for his bus by removing the electric line. According to the version of the defendant-Kerala State Electricity Board (hereinafter referred to as, the "Board"), line was snapped due to the fall of cadjan leaves from a coconut tree standing in the property of St.Clara Homes. Sivaraman came into contact with the live wire while attempting to remove the same and consequently became the victim. PW3 a passenger in the bus testifies that Sivarman's attempt was only to remove the obstruction. On the facts of the case, it appears that there is no much dispute on the incident or cause of death. The suit was filed by the widow and minor children of deceased Sivaraman. The trial court declined full compensation based on contributory negligence of Sivaraman. The Board maintains the stand that it is on account of negligence of Sivaraman the incident occurred and, therefore, they pray that they may be exonerated from any liability. Challenging the decree and judgement, the plaintiffs filed R.F.A.No.616/04. The defendants also filed an appeal aggrieved by the decree awarding compensation, before the District Court, Trichur. This Court, as per the order on I.A.No.4471/2009 dated 21/12/2009 in R.F.A.No.616/2004 withdrew the above appeal and transferred to this Court to be heard along with the appeal filed by the plaintiffs.

(2.) Heard learned counsel for both the parties.

(3.) In these appeals we are called upon to decide a novel question on comparative negligence. The court below termed the act on the part of deceased Sivaraman as contributory negligence. Contributory negligence proceeds from the injured person's actual awareness of risk and failure to take precautions for his own safety. Learned counsel for the plaintiffs argues, with reference to Rule 91 of the Indian Electricity Rules, 1956 (for short, the "Rules") that electricity is hazardous and dangerous substance and, breach of mandatory statutory provision like Rule 91 of the Rules entails in absolute liability of the defendants and no plea of defence is available to exonerate from the said liability. Rule 91 of the Rules enjoins on the Board duty to ensure safety and protective measures, in case overhead line breaks. Rule 91 provides as follows: