Madhuben Wd/O Kantilal Somabhai vs Torrent Power Ltd
2023 Latest Caselaw 6119 Guj

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      C/FA/1341/2004                              JUDGMENT DATED: 21/08/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1341 of 2004


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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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 ?                           No

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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              MADHUBEN WD/O KANTILAL SOMABHAI & 2 other(s)
                               Versus
                        TORRENT POWER LTD.
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Appearance:
MR DHARMESH V SHAH(1050) for the Appellant(s) No. 1,2,3
MR SALIL M THAKORE(5821) for the Defendant(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 21/08/2023
                              ORAL JUDGMENT

1. Heard learned Advocate Dharmesh Shah on behalf of the appellants,

learned Advocate Mr. Salil M. Thakore with learned Advocate Mr. Nihal

Thakkar on behalf of the respondent.

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2. By way of this appeal, the appellants - original plaintiffs challenge

judgment and order passed by the learned City Civil Court, Ahmedabad in

Civil Suit No. 6298 of 1994, dated 21.04.2003, whereby the suit preferred by

the plaintiffs for compensation has been rejected.

3. It would appear that the appellants-plaintiffs had filed the suit for

compensation on account of death of husband of appellant No.1 and father

of appellants No. 2 and 3. It was the case of the appellants in the suit that

on 23.07.1994, the husband of the appellant No.1 and father of the

appellants No. 2 and 3 namely Kantilal Somabhai Vankar had returned from

his job and while he was hanging his shirt which was wet with perspiration

on an iron wire tied in front of his house, he got electrocuted and the

appellant No.1 having rushed to save her husband also got an electric shock

and it was upon a neighbour who had with the use of a wooden stick

broken the wire, but by the time, the husband of the appellant No.1 had

expired.

3.1 The appellants had filed the suit inter alia alleging that it was the

responsibility of the respondent-Company which has maintained the electric

wires and failure on account of which, had resulted in electric current

passing through the wire tied for drying cloths, and therefore damages and

compensation were sought for. It is mentioned in the suit that originally a

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legal notice had been issued by the plaintiffs and whereas since the

defendant-Company had not responded to the legal notice, therefore the

suit had been filed inter alia seeking for compensation at the rate of

Rs.2,50,000/-.

3.2 It appears that the defendant-Electricity Company in its written

statement had contested the allegation of negligence and had submitted that

the Electricity Company is only required to maintain the electric wires upto

a particular stage and whereas the leakage of electricity was not on account

of any negligence on the part of the Company and whereas it has been inter

alia contended that the leakage of electricity current was from the electricity

connection given in a neighbouring house and whereas the defendant-

Company was not required to maintain the same, and therefore no

negligence could be attributed to the defendant.

3.3 It appears that during the course of trial, the plaintiff and an eye

witness to the incident had deposed in favour of the plaintiffs' case, whereas

two Officers of the Electricity Company had deposed in favour of the

defendant-Electricity Company. It appears that after the trial, the learned

City Civil Court vide judgment and order dated 21.04.2003 had dismissed

the suit with no order as to costs. The said decision has been assailed before

this Court in the present appeal.

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4. Learned Advocate Mr. Dharmesh Shah for the appellants would

submit that the learned Civil Court had committed grave error in dismissing

the suit preferred by the appellants-plaintiffs for compensation. It is

submitted by the learned Advocate that the deceased had expired upon

receiving electric shock while hanging his wet shirt on an iron wire which

was tied for hanging of cloths and whereas the said wire was tied on the

Verandah of the house of the appellants. It is submitted by the learned

Advocate that while the respondent-Company had contended that it was on

account of leakage of electric current from the connection given in a

neighbouring house, according to the learned Advocate, the current had

leaked from an equipment known as Calico-T. It is submitted by learned

Advocate for the appellants that it is on account of fault from the said

instrument that the electric current had reached the wire which was tied for

drying cloths and whereas it is on account of the fact that there was a fault

in the Calico-T that such an incident had happened which had ultimately

resulted led to the demise of the husband of the appellant No.1 and father

of the appellants No. 2 and 3. Learned Advocate would submit that the

learned Civil Court having not appreciated this crucial aspect, this Court

may interfere and set aside the impugned decision while directing grant of

compensation.

5. This appeal is vehemently contested by learned Advocate Mr. Salil

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Thakore with learned Advocate Mr. Nihal Thakkar for the respondent-

Electricity Company. Learned Advocate Mr. Thakore would submit that

upon being informed about the incident, initially an electrician attached with

the respondent-Company had reached the spot within 10 minutes and he

had prima facie given an opinion that there was no fault in the wiring of the

Company and the fault was in the wiring of the house of an adjacent

neighbour. Learned Advocate would submit that the said electrician had

deposed for the respondent-Company in the trial and stating as above and

his deposition could not be dislodged by this plaintiffs in their cross-

examination.

5.1 Learned Advocate Mr. Thakore would further submit that the

Electrical Inspector had also visited the place of the incident on the very day

and whereas upon inspection, he did not find any fault in the wiring of the

respondent-Company and whereas it was found that there was a fault in the

connection given to a neighbouring house from where electric current was

leaking and on account of which the incident had happened. Learned

Advocate would submit that even the said Electrical Inspector had deposed

as such and whereas even the said deposition could not be dislodged in the

cross-examination. Learned Advocate would submit that the second

testimony of the Electrical Inspector, who is an independent authority not

connected with the respondent-Company and whereas such person

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confirming that the accident did not take place on account of negligence of

the Company, has been relied upon by the learned Civil Court and whereas

the learned Advocate would submit that this Court may not interfere in the

appeal.

6. Heard learned Advocates for the respective parties who have not

submitted anything else and perused the record and proceedings.

7. Considering the submissions made by learned Advocates for the

parties, the following questions arise for consideration of this Court.

(1) Whether the impugned judgment and order is required to be interfered with ?

        (2)      What order?


7.1     My answers to the issues framed hereinabove are as follows:

        (1)      In Negative.

        (2)      As per final order.

8. It would appear that the learned Trail Court had framed the following issues :

1. Whether the plaintiffs prove that the deceased died due to

electrocution?

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2. Whether the plaintiffs are entitled for the damages? If yes,

what amount?

2(a) Whether the defendant proves that the deceased was

electrocuted due to fault in the private wiring of consumer

No.599204?

3. What order and decree?

8.1 The issues were answered by the Trial Court are as follows :

1. In affirmative.

2. In negative.

        2(a)     In affirmative.

        3.       As per final order.

9. The reasons for coming to the conclusion on the issue No.1 i.e.

whether the impugned judgment and order is required to be interfered with,

are as follows :

Issue No.1 :

10. It would appear that before the learned Trial Court, the plaintiff had

argued on the basis of the principal of 'res ipsa loquitur' and also on such

basis had contended that the electricity current which had reached the wire

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tied for drying cloths, was on account of lack of maintenance by the

Company. It would appear that while the learned Trial Court had accepted

that the husband of the plaintiff No.1 and father of the plaintiffs No. 2 and

3, had expired on account of electrocution, yet, the learned Trial Court had

considering the deposition of the Electrical Inspector had observed that the

defendant-Company was not liable for the accident. It would appear upon a

conjoint reading of the judgment in question as well as the depositions of

the witnesses that the plaintiffs and the deceased were residing in a row-

house consisting of 21 houses and the roofs of the houses were covered by

iron sheets which were connected to each other. It would also appear that

the wire tied for drying cloths, on the Verandah of the house of the

plaintiffs was tied to a pillar and whereas the wire was also touching with the

roof. From the deposition of the Electrical Inspector it appears that he had

conducted a Meggar Test from which it was established that there were

three houses having faulty wiring from which electricity was leaking and the

fault was within the private wiring. The Electrical Inspector had also tested

the wiring of the respondent-Company and whereas he did not find any

fault in such wiring. The Electrical Inspector had also testified that there

was a fault in the wiring of the 5th house from the house of the plaintiffs

and whereas it would appear that there was a wooden electric box inside the

said premises which had been filled with mud and dust and upon termites

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having eaten the wood and the mud inside the box was wet which had

resulted in short circuit and the short circuit was from the earthing wire

which was touching the iron roof of the houses and whereas the electricity

current had passed and had also reached the iron wire tied for hanging

cloths by the appellant. It would appear that such testimony of the Electrical

Inspector who is an independent authority, could not be dislodged in cross-

examination. It also appears that relying upon the testimony of the Electrical

Inspector and also having considered the decisions relied upon by the

learned Advocate for the plaintiffs, the learned Trial Court had come to a

conclusion that the plaintiffs could not established negligence on the part of

the defendant-Company, and therefore the suit consequently had been

dismissed.

11. As observed hereinabove, having gone through the impugned

decision of the learned Trial Court as well as the testimony of the Electrical

Inspector who has testified, as noted by this Court as above, and also

perusing the testimony given by the electrician of the respondent-Company,

both which could not be dislodged, this Court does not find any reason to

interfere with the impugned decision passed by the learned Trial Court.

12. It also requires to be mentioned that the emphasis of submission of

the learned Advocate for the appellants before this Court was about

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electricity current leaking from an instrument called Calico-T and whereas it

would appear that no evidence whatsoever had been led before the learned

Trial Court in support of such a contention. It also does not appear that the

appellant has produced any material whatsoever in support of such a

contention even without taking permission of this Court under Order 41

Rule 27 of the Code of Civil Procedure. It also appears that except for a

question put to the electrician in cross-examination as regards possibility of

leakage from the Calico-T, no other reference to the said instrument is

found in the record of the suit as well as in the present appeal. Considering

the same, as noted hereinabove this Court does not find any error

whatsoever committed by the learned Trail Court which requires any

interference, hence the issue No.1 is answered accordingly.

Issue No.2 :

13. Having regard to the answer to issue No.1 as noted hereinabove, the

present appeal fails and is hereby dismissed. Registry to transmit the record

and proceedings back to the learned Trial Court.

(NIKHIL S. KARIEL,J) BDSONGARA