Gujarat High Court

Paschim Gujarat Vij Company Limited vs Heirs Of Decd Jayaben Nagjibhai Solanki on 20 December, 2023

Author: Gita Gopi

Bench: Gita Gopi

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     C/SA/116/2019                               JUDGMENT DATED: 20/12/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/SECOND APPEAL NO. 116 of 2019
                                   With
                CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
                                    In
                      R/SECOND APPEAL NO. 116 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                PASCHIM GUJARAT VIJ COMPANY LIMITED
                                Versus
               HEIRS OF DECD JAYABEN NAGJIBHAI SOLANKI
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Appearance:
MR DIPAK R DAVE(1232) for the Appellant(s) No. 1,2,3,4
for the Respondent(s) No. 1.1,1.2,1.3,1.4
GOVERNMENT PLEADER for the Respondent(s) No. 2
MR. VISHAL P THAKKER(7079) for the Respondent(s) No. 1.1,1.2,1.3,1.4
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                             Date : 20/12/2023

                            ORAL JUDGMENT

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1. The challenge has been given by

preferring the present appeal under section 100

of the Civil Procedure Code (for short 'CPC') to

the judgment dated 26.11.2018 by learned

Additional District Judge, Bhavnagar at Mahuva in

Regular Civil Appeal No.04 of 2018, which

confirmed the judgment and order dated 23.08.2017

passed by learned Principal Senior Civil Judge,

Mahuva in Special Civil Suit No.28 of 2017. The

present appellants were the original defendants.

2. The present respondents as the

original plaintiffs before the trial Court, had

preferred Special Civil Suit No.205 of 2012,

which came to be renumbered as Special Civil suit

No.28 of 2017, inter alia claiming compensation

of Rs.5,50,000/-, owing to electrocution. The

facts urged were that deceased Jayaben, wife of

plaintiff no.1 and mother of plaintiff nos.2 to

4, was working in the agriculture field on

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05.05.2012, situated at the sim of village

Mathavada, where it is contended that, one live

electric wire fell upon her from the pole and she

died on the spot. It is alleged that incident

occurred due to negligence on part of the

defendants in maintaining electric line.

2.1 While the appellants as defendants had

pleaded that the deceased got electrocuted by

touching fuses, which was in the private box in

the farm of plaintiffs. While taking out fuse,

the incident had taken place in the private

premises, from private wiring of the plaintiffs

and not because of any negligence on part of the

defendants.

2.2 The learned learned Principal Senior

Civil Judge, Mahuva after considering the

pleadings, evidence, relevant propositions of

law, vide judgment and order dated 23.08.2017 in

Special Civil Suit No.28 of 2017, held the

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defendants guilty of negligence in maintaining

the electric wire. Held to be a case of

electrocuation, thus, ordered defendants to pay

Rs.4,88,000/- as compensation to the plaintiffs

at the rate of 9% per annum, for the death of

Jayaben.

3. Mr. Dipak R.Dave, learned advocate for

the appellants, original defendants, submitted

that the orders passed by the both the courts are

contrary to law and facts of the case, hence,

liable to be quashed and set aside. Advocate Mr.

Dave stated that both the courts have failed to

appreciate that incident took place at the

private premise i.e. at the 'Wadi' of the

plaintiffs while taking out fuse of the private

wiring. Mr. Dave submitted that the both the

courts have erred in not appreciating that the

alleged wire was actually cut after the incident,

and, therefore, the said breaking of wire ought

not to have been held, to be the negligence of

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the appellants.

3.1 Advocate Mr. Dipak Dave further

submitted that both the courts have failed to

rely upon the report of electrical inspector, who

is a government officer, which according to the

learned advocate, clears that incident took place

at the private premise from the private wiring of

the plaintiffs, thus, appellant could not be held

liable for the death.

3.2 Advocate Mr. Dave submitted that looking

to the Rojkam made by the officers of the

appellants and the statement of witnesses, it is

very clear that deceased Jayaben got electric

shock and to save her, people who had gathered

from the surrounding, to cut the electricity

flow, cut the wire from the second pole, thus, it

has been established that the alleged incident

took place earlier and the wire found in the

field was in fact cut by the people, thus,

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submitted that the courts below ought to have

believed the case of the appellants.

3.3 Mr. Dipak Dave, learned advocate further

stated that the learned courts have not

considered the statement recorded by the

officials of G.E.B., only on the ground that the

deponent of statement has not been examined. The

report of the electrical inspector below Exh.59

was also not believed. Mr. Dave stated that

electrical inspector was party to the

proceedings, and therefore non-examining the said

person cannot be held to be fatal to the case of

the defendants.

3.4 Further, referring to assessment of

compensation, Advocate Mr. Dave stated that the

learned trial Court has erred in holding that

deceased was earning Rs.2,500/- per month without

any proof, and assessment is merely on assumption

and presumption, and, therefore submitted that

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quantification of compensation is unreasonable

and unjust.

4. Per contra, Mr. Vishal P.Thakker,

learned advocate for the respondents, original

plaintiffs, submitted that the learned trial

Court has rightly considered and appreciated the

pleadings and evidence, to hold that the

defendants have failed to prove their defence,

which came to be confirmed by the appellate

Court, hence, urged that there is no reason to

interfere with the findings. Advocate Mr.

Thakker, submitted that in fact there is no

substantial question of law, to be examined and

the proposed question would have no legal

strength in absence of the oral evidence of the

author of report to prove the same, more

particularly when the author is the party

defendant to the suit.

4.1 Advocate Mr. Thakker submitted that on

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the day of incident i.e. on 05.05.2012, eye

witness Mr. Karamshibhai reported the incident

before the police, wherein he specifically stated

about wire having fallen on Jayaben, and, thus

after two days the said eye witness had no reason

to give a different statement before any officer

of the appellants.

4.2 Advocate Mr. Thakker further stated that

as per inquest panchnama and P.M. note, the

deceased was injured between neck and left

shoulder as well as from right arm just above

wrist; while, deceased had not sustained any

injury on her fingers of any hand, which shows

that if she had sustained injuries, while

touching the fuse to fix it, she would have

received injuries on her finger and hand.

5. Having heard both the sides and perusing

the record, it could be noted that the main

contention raised by Advocate Mr. Dipak Dave was

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that, both the Courts, the court of first

jurisdiction and the appellate court have not

considered the report of the Deputy Chief

Electrical Inspector dated 03.07.2012. Mr. Dave

suggested that as per the report, on 05.05.2012,

they were informed about the accident, and on

07.05.2012, the local inspection was done.

5.1 The report notes that the Customer

Connection No.81024/05191/9 was in the name of

Hirabbhai Keshavbhai Solanki for 5 horsepower

agricultural connection of 63 K.V.A. with

agriculture Transformer Center Location

No.MAN/CHO/166L-018/DT-016, connected from the

last Cement Pole No.51-08-06. The report also

observed that on the date of incident and the

time, the victim was inserting Kit-Kat fuse to

start the motor on the well and during that

process accidentally her hand touched the live

phase stud of the fuse, and therefore had the

electric shock of L.T. Power, and had fallen near

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the electricity meter board. The report observes

that after the incident, immediately at the place

Karamshibhai had come, the victim at that time

was lying on the ground near the meter box and

the starter, which was near the well. Thus, the

report notes that to disconnect the victim from

the effect of electric current, the wire which

was connected to the pole by the P.G.V.C.L., was

cut to stop the power flow. It was urged by

Advocate Mr. Dave to note and consider the report

to conclude that P.G.V.C.L. was not liable for

the accident, and that accident has occurred

because of open Kit-Kat fuse stud which was the

agricultural connection of the victim.

6. In context to the argument so raised, it

is pertinent to note that though the Chief

Electrical Inspector had been made party -

defendant no.5, the said report had never been

adduced in evidence, nor any oral deposition had

been given by the person, who had given the

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report dated 03.07.2012, nor any witness had been

examined on behalf of the defendant no.5.

7. The substantial question of law,

proposed to be raised by the appellants are as

follows:

(a) When the documentary evidence on the

record more particularly evidence of independent

witness i.e. report of Electrical Inspector

clearly spells out that incident has not taken

place because of falling of live wire, whether

the courts below were justified in holding the

defendants negligent?

(b) When the appellants have successfully

proved before the courts below by adducing

sufficient documentary and oral evidence to show

that the incident has taken place in private

premise and from the private wiring of the

plaintiffs, whether the courts below could have

fastened the appellants with the liability for

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alleged negligence?

(c) Whether the courts below are justified

in awarding Rs.04,88,000/- to the plaintiffs?

8. The trial Court, while allowing Special

Civil Suit No.28 of 2017 on 23.08.2017, had

granted compensation of Rs.4,88,000/- with 9% per

interest from the date of suit till realization.

The plaintiffs, being husband of deceased and

three minors children, with father as the legal

representative and guardian, had prayed for

compensation, contending that on 05.05.2012,

Jayaben Nagjibhai Solanki, who was working in the

field at noon time, was watering the field, at

that time, the live wire, overhead crossing the

field fell upon her, and because of the

negligence of the defendants, she died, as was

electrocuted.

8.1 Defendant No.5 - Chief Electrical

Inspector filed the written statement, while

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defendant nos.2 to 4 were ordered to be proceeded

ex parte. The defendant no.1 had produced the

reply at Exh.10. Denying the case of the

plaintiff, the defendants contended that the

death was owing to negligence of the deceased

stating that during the process of fixing the

fuse, which contained three fuse, mounted near

the well, and because of electric shock, she

died.

8.2 The issues were framed by the trial

Court below Exh.12, as under:

(1) Issue No.1: Whether the plaintiffs

prove that due to negligent act of the

defendants wife of plaintiff No.1 and

mother of plaintiff No.2 to 4 Jayaben met

with an accident and died as a result of

electrocution?

(2) Issue No.2: Whether the plaintiffs

prove that they are entitled to get

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Rs.5,50,000/- from the defendants as

alleged?

(3) Issue No.3: Whether the defendants

prove that they are not liable to pay any

compensation?

(4) Issue No.4: Whether the defendants

prove that suit is not filed within the

limitation?

(5) Issue No.5: Whether the plaintiff is

entitled to get interest ? If yes, at what

rate?

(6) Issue No.6: What is found due?

(7) Issue No.7: What order and decree?

8.3 The trial Court answering issue no.1 in

affirmative and issue no.2 partly in affirmative,

allowed the compensation of Rs.4,88,000/-.

8.4 During the trial, plaintiffs in support

of their case produced affidavit of evidence vide

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Exh.17, inquest panchnama at Exh.20, police yadi

at Exh.21 and p.m. note at Exh.22; while Exh.23

is the death certificate of Jayaben. The birth

certificates from Exh.24 to 26 reflects plaintiff

nos.2 to 4 as minors.

8.5 Prior to the suit, the plaintiffs had

issued legal notice to defendants, in support the

postal slip and acknowledgment were produced at

Exh.27 to 29. The defendants' reply to the notice

was produced during the trial at Exh.30. As per

the plaintiff, when Jayaben suddenly made a loud

cry, Karamsinbhai, who was watering the

neighbouring field rushed to the place of

incident, who had corroborated the case of the

police, that wire of electric line near the well

had fallen on Jayaben. Police was informed by

Karamsinhbhai. The F.I.R. has been produced at

Exh.17. Karamshibhai as Complainant states that

with a stick, he had removed the wire from the

body of Jayaben. The witness - Karamshibhai was

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examined at Exh.37. Learned trial Court has

observed, that the evidence of both witnesses are

corroborative in nature and nothing substantial

could be brought on record during the cross

examination.

8.6 From the side of defendants, Deputy

Engineer Paragbhai Jitendrabhai Modi examined

himself at Exh.50. The learned trial Court

observed his deposition, to note that such facts

are not pleaded in the written statement. In his

deposition, he has brought new facts stating that

Karamsinbhai had released Jayaben from the

electric current, by tapping, had cut the wire

from second pole, which was located in the field.

The learned trial Court categorically observed

that such kind of facts have not been pleaded and

therefore had observed that it cannot be admitted

in the evidence.

8.7 The defendants had produced documentary

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evidence from Exh.53 to 55. The rojnama of the

place of incident at Exh.53 was produced, the

trial Court observed that Rojnama, notes no

contrary facts, than stated in the written

statement or oral evidence of the defendant. The

Rojnama refers, one wire of L.T. line from second

pole with tapping, was cut at the distance of one

foot and the another end of the wire was on the

land in the 'Juwar' crop. The learned trial Court

specifically observed that no such pleading has

been raised, and therefore it cannot be admitted

in evidence.

9. The challenge was given to the judgment

by filing an appeal before the Second Additional

District Judge, Bhavnagar at Mahuva as Regular

Civil Appeal No.04 of 2018. The appellate Court

raised the points for determination, which are as

under:

Point No.1: Whether Ld. Trial Court has

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committed any error or illegality to hold

that due to negligent act of defendants

deceased Jayaben met with such accident and

died as a result of electrocution?

Point No.2: Whether Ld. Trial Court

committed any error or illegality in

holding that the claimants are entitled to

get compensation as Rs.4,88,000/- from the

defendants?

Point No.3: If there are any reason to

interfere with the judgment and decree

passed by Ld. Trial Court in Spl. C.S.

No.28/2017?

Point No.4: What order?

9.1 Answering the points in negative, the

appellate Court had observed that deceased

Jayaben sustained injury, and the death was due

to electrocution. The plaintiff had come with a

specific plea that the incident had occurred due

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to live electric wire having fallen down, because

of the negligence on the part of defendants.

While the defendants came up with specific

defence that at the time of accident the deceased

was trying to fix the fuse and thus sustained

injuries due to her own negligence. The plaintiff

no.1 evidence was recorded at Exh.17, which was

observed to be corroborated by witness -

Karamshibhai at Exh.37, who was the eye witness

to the incident. Karamsinhbhai in his deposition

had stated that the live wire had fallen on

Jayaben.

9.2 The plaintiff to support the details of

incident had also examined the Investigating

Officer Shri C.J. Nimawat, on oath, at Exh.45,

who had in his deposition, stated about the

investigation as well as about the panchnama. The

police in his deposition stated that on

05.05.2012, he was given the investigation of the

accidental death Entry No.14/2. He was given

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inquest panchnama and dying declaration form.

Thereafter he conducted the panchnama of the

place of incident on 06.05.2012.The relevant

document Exh. 18, 20 and 21 were given to him for

investigation.

9.3 Exh.19, the panchnama, was referred by

the police witness, he stated of a electric pole

beside a small room, and there were wires

attached. He had secured the Postmortem Note,

Exh.22, during investigation, which concludes the

death because of electric shock.

9.4 In cross examination, he affirmed that

the Jaanvajog Application (information

application) was written under the instruction of

Karamshibhai Nanjibhai Solanki, who had showed

him the place of incident, noted in the

panchnama.

9.5 The witness was confronted with the

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panchnama Exh.19, to affirm, that red colour

fiber box, was found having light motor fuse, and

the witness states that incident had taken place

beside it. The witness further affirms while

observing the place, that there is a box in a

closed condition and a electric pole is beside

the room having the box; and electric wires were

found attached to the poles. The witness affirmed

that no live broken wire was found at the place

as informed by Karamsinhbhai.

9.6 While about defendants' witness, Mr.

Paragji Jitendra Modi, at Exh.15, an affidavit

was perused. The appellate Judge notes that the

affidavit states of spot visit, about the

statement of Karamshibhai, spot rojkam and report

submitted by Mr. Parmar and also about the other

investigation and report, to plead that there was

no negligence on the part of the defendants.

Certain documents were produced at Mark 31/1 to

35/3 and 47/1 to 47/4, which were not found to be

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acceptable as evidence, noting that witness has

no personal knowledge about the incident, and the

oral evidence of the witness was not direct in

accordance to section 60 of the Evidence Act. The

facts stated by the witness was contrary and not

pleaded in the written statement. The written

statement did not plead of any spot inspection,

or statement of Karamshibhai or of spot Rojkam,

nor of any alleged fact of Karamshibhai cutting

the wire by tapping to save Jayaben. The oral

evidence of the defendants was not supported by

the pleadings.

9.7 The appellate Court also noted that the

eye witness Karamshibhai had specifically denied

of any of his such statement recorded by

defendants. It has also been noted, that the

original statement, stated to be recorded of

Karamshibhai, was not produced on record. The

glaring fact, which was noted by the trial Court,

had also been considered by the appellate Judge

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that on the date of incident dated 05.05.2012,

eye witness Karamshibhai had reported the

incident before the police, wherein he had

specifically stated that live wire had fallen on

Jayaben, and, therefore it was noted that there

was no reason for Karamshibhai to give a

different statement before the officer of the

defendants about the incident.

9.8 The important fact as was noted by the

appellate Judge, in accordance to the inquest

panchnama and p.m notes, that the deceased was

injured on her body part, between neck and the

left shoulder as well as in right arm just above

the wrist. The deceased had not sustained any

injury on her fingers of the hands, which was

observed to clarify that, had she sustained the

injury while fixing the fuse, then injury would

be at her fingers, and the injuries would not

have been possible on the neck. The appellate

Court, therefore found the evidence produced by

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the defendants in the form of oral evidence, and

the statement of Karamshibhai as claimed to be

his, and the spot rojkam not sufficient and

believable to prove the defence.

9.9 Mark 35/1 to 35/3 and 47/1 to 47/4 were

observed as of not original and no reason has

been given for non-production of the original,

thus, the appellate Judge considered that the

ingredients of section 65 of Evidence Act were

not fulfilled. While in connection to Mark 47/1

to 47/4, it was concluded that the maker/executor

of such documents were not examined and the

contents of the documents were also not proved;

thus, it was concluded that evidence produced on

behalf of defendants were not sufficient to prove

their case.

9.10 Both the courts have dealt in detail to

examine the facts in issue. The evidences

produced were appreciated. Referring to the

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provisions of the Evidence Act, the factum of the

non-production of the originals, with no effort

to prove the document on record has been rightly

appreciated by both the courts. The defendant

no.1 has tried to exaggerate the incident without

any pleading in the written statement. The oral

evidence of defendant no.1 were found contrary to

the pleading. Both the courts have rightly not

relied upon the evidence of defendant no.1, since

the document relied upon had to be proved

according to the Evidence Act and the oral

deposition, as a rule should be consistent to the

pleadings.

10. In context of "principle of strict

liability", the Hon'ble Supreme Court in case of

Paschim Gujarat Vij Co. Ltd Vs. Heirs of

Chandraikaben Harpalsinh, reported in AIR 2017

Gujarat 177, held that the concept of strict

liability assumes its different dimension that

the liability is strict once the accident has

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occurred and in any case the onus is on the

licensee who is obliged to take precaution at the

time of installation and maintenance of line to

see that no accident occurs or the chances are

minimized. It was observed that, the submissions

which have been made, referring to the aspect of

negligence has a reference to the negligence in

Law of Torts where a person could show that

reasonable precautions were taken. However, once

the "principle of strict liability" is

attributed, the liability would be inferred

irrespective of the fact that whether the

precautions were taken or not.

10.1 In case of H.S.E.B And Others Vs. Ram

Nath And Others, reported in (2004) 5 SCC 793,

the Hon'ble Apex Court held that the appellants

are carrying on a business which is inherently

dangerous. If a person were to come into contact

with a high-tension wire, he is bound to receive

serious injury and/or die. As they are carrying

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on a business which is inherently dangerous, the

appellants would have to ensure that no injury

results from their activities.

11. The "principle of strict liability"

would be applicable to the Electricity Company,

as they are dealing with inherently dangerous

business. Sections 63 and 68 of the Indian

Electricity Act, 2003 deals with provisions

relating to safety in electricity supply and also

provides for overhead lines, which has been dealt

with in section 68.

11.1 The evidence, as proposed to be read

during the trial was not appreciated by the trial

Court since the originals were not on record nor

were they adduced in evidence. Since the

documents of the defendants were on record as

Mark 35/1 to 35/3 and 47/1 to 47/4, the

appellants would have no scope to move the

appellate Court under Order 41 Rule 27 of the

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C.P.C. for production of additional evidence in

appellate Court. The appellate Judge has given

his reasons as to why such documents marked

during the trial should not be read in evidence.

12. The plaintiff by way of his own

deposition and evidence of the eye witness, Mr.

Karamshibhai, who had first seen the deceased at

the place of incident and by deposition of the

police, who had investigated the incident, has

proved the case by providing sufficient evidence

on record. While the evidence of defendant no.1

was not found in accordance to the pleadings, and

further the report of the Deputy Chief Electrical

Inspector dated 03.07.2012 had not been proved on

record. The witness, who had prepared the said

report was not examined. Thus, without any

evidence on record to support the contents of the

report of the electrical inspector, it cannot be

believed. Merely because report is of the

electrical inspector, who is a government

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official, cannot be ipso facto read in evidence.

The investigation by the electricity company has

not been proved, while the plaintiffs have proved

the investigation made by the police. It is

alleged that, the incident had taken place at the

private premises from the private wiring of the

plaintiffs. The appellants have miserably failed

to prove their case before the trial Court. The

concurrent finding of facts arrived by both the

Courts cannot be considered to be perverse or

erroneous. The substantial question of law as

proposed to be appreciated are only referring to

the aspect of appreciation of evidence, which

both the courts have rightly considered not to

read in evidence, as the report was not proved in

accordance to the provisions of law of evidence.