Gujarat High Court
Gujarat Electricity Board vs Kantilal Hansrajbhai Kansagra on 25 February, 2021
Bench: A. P. Thaker
C/FA/3297/1997 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3297 of 1997
With
CIVIL APPLICATION NO. 1 of 1997
In R/FIRST APPEAL NO. 3297 of 1997
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GUJARAT ELECTRICITY BOARD & 1 other(s)
Versus
KANTILAL HANSRAJBHAI KANSAGRA
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Appearance:
DELETED(20) for the Appellant(s) No. 1,2
MS LILU K BHAYA(1705) for the Appellant(s) No. 1,2
MR CC KAMDAR(390) for the Defendant(s) No. 1
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CORAM: HONOURABLE DR. JUSTICE A. P. THAKER
Date : 25/02/2021
ORAL JUDGMENT
1. The present appeal has been preferred by erstwhile Gujarat
Electricity Board against the judgment and decree dated
21.6.1997 passed in Special Civil Suit No. 133/1992 by the
C/FA/3297/1997 JUDGMENT
learned Third Joint Civil Judge (SD), Junagadh by which the
present appellant has been directed to pay the compensation
of Rs.7,27,000/ with interest at 15% per annum with costs.
2. The appellant has submitted that the impugned judgment
and decree is contrary to the law, facts and evidence on
record. It is also contended that the learned trial Court ought
to have appreciated the fact that admittedly the wire was not
in broken condition and therefore, no liability can be fastened
upon the appellant board. It is also contended that the
learned trial Court ought to have appreciated that the
plaintiff himself had tried to touch the electric wire and
therefore, due to his own negligence the aforesaid incident
occurred. It is further contended that even nature of injuries
throw the light on truth that aforesaid incident had occurred
while plaintiff was trying to touch the electric wire.. It is also
contended that the learned trial Court ought to have
appreciated the fact that electric current had passed through
the palm of both the hands of the plaintiff which shows that
he himself had tried to hold the wire, which has resulted into
unfortunate incident. According to the appellantoriginal
defendant, as per the admission of the plaintiff himself, the
wire was passing at the distance of 8 ft. from the terrace wall
and therefore, also defendant cannot be held liable for the
aforesaid incident.
2.1 It is also contended that the learned trial Court has
committed error in awarding the compensation amount and
C/FA/3297/1997 JUDGMENT
has failed to take into consideration the fact that at the time
of incident the plaintiff was studying in Standard VIII and
looking to the tender age of the plaintiff, the compensation
granted is absolutely on very higher side. It is also contended
that the learned trial Court has materially erred in awarding
Rs.10,000/ towards the medical treatment since no reliable
cogent evidence was ever produced by the plaintiff as well as
erred in awarding Rs.10,000/ towards transporation without
any documentary evidence thereof. It is further contended
that the award of Rs.10,000/ toward special diet is also
without any evidence on record and the amount of
Rs.4,22,000/ towards loss of earning is also without any
basis. It is further held that the amount of Rs.1,50,000/
towards loss of amenities, pain, shock and sufferings and
accepting the yearly loss of Rs.24,000/ is also not proper on
the part of the learned trial Court. It is also contended that
the learned trial Court has erred in not deducting amount
towards personal expenses of the plaintiff and has also erred
in granting Rs.1,25,000/ towards attendants expenses for
future. It is alleged that appreciation of evidence by the
learned trial Court is erroneous and, therefore, the impugned
judgment and decree be setaside.
3. Heard Ms. Lilu Bhaya, learned advocate for the appellant
through videoconferencing. None has appeared for
respondent original plaintiff.
4. Ms. Lilu Bhaya, learned advocate for the appellant has
C/FA/3297/1997 JUDGMENT
vehemently submitted the same facts which are narrated in
the Memo and she has submitted that the case of
electrocution of the plaintiff who was minor and as per the
evidence made available by the defendant appellant, the
incident has happened due to negligence on the part of the
plaintiff. She has also contended that considering the
deposition of eyewitness as well as the panchnama, it clearly
appears that the plaintiff has touched the electric wire
passing over the terrace and due to his negligence he was
electrocuted and his hands were amputated. She has also
submitted that even if it is presumed that there was some
negligence on the part of the defendant in maintaining the
wire in that case also the amount awarded by the learned
trial Court on various counts is excessive. She has also
contended that personal income of Rs.1500/ should have
been taken into consideration and out of that 1/3rd for his
personal expenses ought to have been deducted. She has
further contended that the amount for attendance charges is
also not reasonable as well as the amount for Pain, shock and
sufferings and other amounts is excessive. She has also
submitted that lines were passing since many years and the
construction below the wire is illegal one and, therefore also,
no liability could be fastened on the Electricity Company. She
has prayed to allow the present Appeal by setting aside the
impugned judgment and decree of the trial Court.
5. To appreciate the issue involved in the present Appeal, it is
necessary to narrate the facts of the case in brief:
C/FA/3297/1997 JUDGMENT
5.1 The case of the plaintiff is that when he was 12 years aged,
he was studying in StandardVIII and was helping his parents
in agricultural work. It is also alleged that before filing of the
Suit, there was electric line passing over the road as well as
above the house of his father and they had become loose. It is
also alleged that on 2.5.1990 when he was standing on the
terrace there was shortcircuit and the electrical wire fell on
him and due to that he got electric shock, which resulted in
falling of the plaintiff from the terrace and he sustained
serious injuries thereof. It is alleged that he was shifted to
Keshod Government Hospital and as he has sustained serious
injuries, he was shifted to Junagadh Government Hospital
and thereafter he was shifted to Civil Hospital, Ahmedabad
and he was under treatment for long time as indoor patient
and even at the time of filing of the suit, he was under
treatment. It is further case of the plaintiff that due to
electrocution the entire left hand has been amputated and
right hand has been amputated from elbow. It is alleged that
due to the said incident, there is also injuries caused to other
parts of his body and he is not able to maintain himself and
he will need an attendant permanently for his entire life. It is
also alleged that the incident happened due to fault on the
part of the Electricity Company. It is also alleged that the
income of the plaintiff could be considered as Rs.25,000/ per
annum and for the entire period it would come to Rs.10
Lakhs. He has also claimed Rs.2 Lakh for medical treatment
as well as for mental trauma and Rs.6,60,000/ for
C/FA/3297/1997 JUDGMENT
permanent attendant, in all Rs.18,60,000/ but he has
restricted his claim to Rs.15 Lakhs along with interest at the
rate of 12% thereon from the date of filing of the suit.
6. The defendant has resisted the suit by filing the Written
Statement at Exh23 wherein it has denied all the averments
made by the plaintiff and has submitted that the electricity
line was being taken care of by the Officers of the Board and
the public road is passing from southern side of the house of
the plaintiff and 11 KV line is passing since 1989 and before
being made operative, inspection was carried out. It has
denied the fact that the said line was passing near the house
of the plaintiff. It is also contended that the said 11 KV
electric line is far away from the terrace of the house of the
plaintiff and it is also at a much height from the terrace. It is
alleged that the minor plaintiff has right to touch the said
wire by noninsulating material and due to that he got
electroculated and suffered injuries. It has denied its liability
to pay any amount of compensation to the minor plaintiff as
there was no negligence on the part of the Electricity
Company. Rather, it has alleged that the incident has
happened due to action on the part of the minor plaintiff.
7. On the basis of the pleadings of the parties, the trial Court
has framed following issues:
(1) Whether pltf. proves that the accidental injury of Minor
Kantilal was caused due to short circuit as alleged?
(2) Whether pltf. is entitled for the compensation with
C/FA/3297/1997 JUDGMENT
interest as alleged?
(3) To whom court fee is required to be recovered as suit is
filed as an indigent person?
(4) What order and decree?
8. On the basis of the evidence led by both the sides and after
hearing both the sides, the learned trial Court has answered
the aforesaid issues as under:
(1) In affirmative.
(2) In the affirmative.
(3) Affirmative. It has held that it is liability of the plaintiff.
(4) As per final order.
9. Now, ultimately the trial Court has passed decree to the tune
of Rs.7,27,000/ along with interest at the rate of 15% per
annum from the date of decree till realisation and thereafter
with costs. It has also directed to deduct the Court fees from
the aforesaid amount and also directed that out of the
remaining amount, 70% be placed in Fixed Deposit in the
name of the minor Plaintiff in a nationalised bank for 5 & 1/2
years and 30% thereof to be paid in cash.
10. The following points arise for determination in present
Appeal:
(1) Whether the trial Court has committed serious error of
facts and law in awarding the compensation to the tune
of Rs.7,27,000/ along with interest at the rate of 15%
p.a. from the date of suit till final realisation?
C/FA/3297/1997 JUDGMENT
(2) What order and decree?
11. My findings on the aforesaid Points, for the reasons given
below, are as under:
(1) In Affirmative.
(2) As per final order.
REASONS
12. On perusal of the material placed on record, it is crystal clear
that the injured minor Kantilal Hansrajbhai Kansagra has
been examined at Exh54. The Plaintiff side has produced
documentary evidence which consist of Janva Jog Entry at
Exh30, Copy of the Panchnama at Exh31, Medical Papers
from Exh32 to 50, and whereas the defendant side has
examined Ravjibhai Chhaganbhai Chavda at Exh59 and has
produced the documentary evidence in the nature of
statement of the eyewitness at Exh51, copy of Police
panchnama at Exh52, copy of letter for inspection at Exh53
along with technical data, a copy of departmental panchnama
at Exh63, detailed investigation report at Exh64, Form of
Electricity reporting electrical accident at Exh65 along with
Map thereof at Exh66. On perusal of the entire evidence on
record, there is no dispute regarding the fact that minor
plaintiff got electrocuted and due to that he fell from the
terrace and his left hand is entirely amputated and right hand
was amputated up to elbow. It is not in dispute that due to
C/FA/3297/1997 JUDGMENT
electric shock he will not be able to carry out any type of
work as his hand are amputated. The only point is regarding
contribution of the minor child for the said electrocution. The
case of the defendant is that the electric wire of 11 KV was
passing over the terrace and near the house of the plaintiff.
This fact itself suggest that over head electric line of 11 KV
was very much in height from the terrace of the plaintiff's
house. As per the inspection report including the photograph
of the departmental panchnama as well as filing of the
appeal, it clearly appears that the height of the 11 KV electric
line was almost 8 to 10 feet away from the terrace of the
house. Under this circumstances, the minor child cannot
touch the said electric wire. This version of the defendant in
Written Statement that the minor has touched the 11 KV
electric wire is not believable at all. Even otherwise, the
factum of electrocution of the plaintiff is not disputed.
13. Now, admittedly when electrocution to the minor is not in
dispute, the only question remains is regarding the
determination of the compensation. In this respect, the trial
Court has considered the amount on the basis of income at
the rate of Rs.2,000/ per month i.e. Rs.24,000/ yearly with
multiplier 18 amounting to Rs.4,22,000/ as loss of earning.
The Appellant herein has heavily disputed this amount. Now,
admittedly at the relevant time the plaintiff was minor and he
was Studying in StandardVIII and he was, as stated in his
deposition, assisting his parents in agricultural work.
Considering this fact, the monthly income of Rs.2000/ is on
C/FA/3297/1997 JUDGMENT
higher side. Considering the fact that he was studying in Std
VIII and also helping his father in agricultural work, his
monthly income may be considered to be Rs.1200/ per
month. At the same time, in future his income might be on
higher side. Admittedly, it is settled by catena of decision by
the Supreme Court that even in case of Motor accidents, the
prospective income of a person is required to be added in his
actual income. Therefore, considering the facts and
circumstances of this case, atleast 1/3rd of the aforesaid
amount i.e. Rs.1200/ per month i.e. Rs.400/ per month is
required to be added for arriving at prospective income which
will come to Rs.1600/ per month and yearly it would be
Rs.19,200/. Considering his age, multiplier of 18 needs to be
adopted . On doing so, the amount of loss of earning would
be Rs.3,45,000/ (i.e. Rs.19,200/ x 18). Thus, Rs.3,45,000/
amount could be awarded on the head of loss of earning.
Now, in the present case, the trial Court has awarded
Rs.4,22,000/ on this head. This is a clear error on the part of
the learned trial Court. Hence, the amount of Rs.4,22,000/ is
required to be reduced to Rs.3,45,000/ towards loss of
future income.
14. It is pertinent to note that this is not the case of death of the
victim but it is a case of 100% disability which occurred due
to electrocution and the victim has survived. Therefore, no
amount if required to be deducted for his personal used.
C/FA/3297/1997 JUDGMENT
15. Therefore, regarding the amount granted on various other
heads are as follows:
Rs. 10,000/ Towards treatment and hospital
charges;
Rs. 10,000/ Towards transportation charges;
Rs. 10,000/ Towards Special diet, etc.
Rs.1,25,000/ Towards attendant's charges;
Rs.1,50,000/ Towards Pain, shock and
sufferings, loss of amenities and
enjoyment of life, convenience and
loss of prospect of marriage.
They are just and proper and does not require any
interference.
16. Now regarding the rate of interest is concerned, it is pertinent
to note that the plaintiff in his plaint has claimed the
compensation amount with an interest at 12% per annum.
Whereas the trial Court has granted interest at the rate of
15% per annum. Now, considering the rate of interest
prevailing at the relevant point of time, the interest claimed
as well as granted by the trial Court is on higher side.
Therefore, considering the date of incident, the interest at the
rate of 9% is just and proper. In that view of the matter, the
interest is also required to be reduced as well as the amount
of loss of income is required to be reduced.
C/FA/3297/1997 JUDGMENT
17. In view of the above, the amount of compensation would be
Rs.6,50,000/ as per the following heads:
Rs. 10,000/ Towards treatment and hospital
charges;
Rs. 10,000/ Towards transportation charges;
Rs. 10,000/ Towards Special diet, etc.;
Rs. 3,45,000/ Towards loss of earning;
Rs. 1,25,000/ Towards attendant's charges;
Rs. 1,50,000/ Towards Pain, shock and
sufferings, loss of amenities and
enjoyment of life, convenience and
loss of prospect of marriage.
_____________
Total: Rs.6,50,000/
Therefore, it clearly transpires that the trial court has
committed serious error of facts and law in awarding
Rs.7,27,000/ along with interest at the rate of 15% and
hence I have answered the Point No.1 accordingly.
18. So far as Point No.2 is concerned, in view of the aforesaid
discussion, the present Appeal is liable to be partly allowed.
Therefore, the following final order is passed:
19. The present appeal is partly allowed. The judgment and
decree dated 21.6.1997 passed in Special Civil Suit No.
133/1992 by the learned Third Joint Civil Judge (SD),
Junagadh is hereby quashed and setaside. The appellant
C/FA/3297/1997 JUDGMENT
original defendant is hereby directed to pay Rs.6,50,000/
along with interest at the rate of 9% per annum from the date
of filing of the Suit till realisation thereof with the cost of the
Suit as well as this Appeal to the Respondent original
plaintiff. The amount, if any, deposited by the appellant
defendant before this Court or before the trial Court, be
adjusted towards the aforesaid decretal amount.
20. Decree to be drawn accordingly in this First Appeal. Civil
Application, if any, stands disposed of accordingly.
21. Registry is directed to send a copy of this order along with
copy of the decree as well as R&P to the trial Court.
(DR. A. P. THAKER, J)
SAJ GEORGE
