Gujarat High Court
Kajuben @ Shebanu W/O Gani ... vs Chairman Gujarat Electricity ... on 3 February, 2023
Bench: Nikhil S. Kariel
C/FA/2161/2002 JUDGMENT DATED: 03/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2161 of 2002
With
R/FIRST APPEAL NO. 139 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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KAJUBEN @ SHEBANU W/O GANI FAKIRMAMAD SAMEJA & 7 other(s)
Versus
CHAIRMAN GUJARAT ELECTRICITY BOARD
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Appearance:
In FA No.2161 of 2002:
MR JAYESH A DAVE(253) for the Appellant(s) No. 1,2,3,4,5,6,7,8
MS R V ACHARYA for Respondent No.1
In FA 139 of 2003:
MS R V ACHARYA for Appellant
MR JAYESH A DAVE(253) and MR YASH MOHTA for the respondents
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C/FA/2161/2002 JUDGMENT DATED: 03/02/2023
CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 03/02/2023
ORAL JUDGMENT
1. Heard learned Advocate Mr.Jayesh Dave for the appellants and learned
Advocate Ms.R V Acharya for respondent Board in First Appeal
No.2161 of 2002 and learned Advocate Ms.R V Acharya for the
appellant Board and learned Advocate Mr.Jayesh Dave appearing with
learned Advocate Mr.Yash Mohta for the respondents in First Appeal
No.139 of 2003.
2. The appeals call into question the common judgement and order passed
by the learned Civil Judge, Sr. Division, Anjar-Kutch dated 12.2.2002 in
Special Civil Suit No.18 of 1999 and whereas, both the appeals are
heard together by this Court.
3. Brief facts leading to filing of the present appeals being that the Special
Civil Suit No.18 of 1999 had been filed by the original plaintiffs -
appellants of First Appeal No.2161 of 2002 inter alia for compensation/
damage of Rs.9,00,000/- from the defendant Board - respondent herein,
in connection with the demise of the husband of the appellant No.1 and
father of appellants No.2 to 8 on account of suffering electric shock. The
defendant, at the relevant point of time, was the Electricity Board
responsible for supplying electricity to the entire State of Gujarat.
3.1. The case of the original plaintiffs being that on the faithful day
i.e. on 29.6.1998, the husband of the plaintiff No.1 Mr.Gani
Fakirmamad Sameja had gone to the terrace of his home and he
came in contact with a live wires and whereas upon shouting for
help, the plaintiff No.1 had also rushed to the spot and in trying to
C/FA/2161/2002 JUDGMENT DATED: 03/02/2023
save her husband, she had also sustained injuries. Both the plaintiff
No.1 and her husband were taken to the hospital, where the husband
of the plaintiff No.1was declared dead, whereas the plaintiff No.1
was given treatment for electric shock. It was the case of the
plaintiffs before the learned Trial Court that the husband of the
plaintiff No.1 had expired on account of the negligence of the
original defendant, more particularly according to the plaintiffs, her
late husband of the original plaintiff had died on account of receiving
electric shock from the electric line passing over the terrace of their
home, which electric shock was on account of lack of maintenance
by the defendant. It appears that the plaintiffs' side had relied upon
the testimonies of plaintiff No.1 Kajuben @ Sherbanu at Exh.46, of
one Sharifaben, who was neighbour of the plaintiffs at Exh.51, and
of one Kiritbhai Sampat at Exh.52, who was the employer of the
deceased husband of the plaintiff No.1. The defendant's side had
relied upon the testimonies of one Arvind Kumar Kalavadiya, who
was working as Deputy Engineer with the Gujarat Electricity Board
at Exh.58, of one Kasigar Gusai, who was working as Line Inspector
with GEB at Exh.62 and testimony of one Mavjibhai Suvera, who
was working as an Assistant Lineman with the defendant Board at
Exh.61.
3.2. The learned Trial Court, after having considered the testimonies
of the witnesses named herein above, and also considering the
panchnama, which had been recorded by the police during the course
of investigation into the accidental death of the husband of the
plaintiff No.1, had come to a conclusion that the death of the
husband of the plaintiff No.1 had occurred on account of electric
shock, since he came into contact with a live wire. The learned Trial
Court had, thereafter, applying formula as applicable in Motor
C/FA/2161/2002 JUDGMENT DATED: 03/02/2023
Accident Claim Cases, had awarded an amount of Rs.3,00,000/- with
interest at the rate of 6% per annum to the plaintiffs.
3.3. The plaintiffs, being aggrieved by non-grant of a total amount of
damages as claimed i.e. Rs.9,00,000/-, have challenged the
impugned judgement and order by way of filing First Appeal
No.2161 of 2002, whereas the defendant, being aggrieved by the
findings that the death of the husband of the plaintiff No.1 was on
account of electric shock and consequent award of damages, has
challenged the same judgement and order vide First Appeal No.139
of 2003.
4. Learned Advocate Mr.Jayesh Dave appearing on behalf of the appellants
in First Appeal No.2161 of 2002 i.e. the original plaintiffs, would
submit that the learned Trial Court, having come to a conclusion that the
death of the husband of the plaintiff No.1 had occurred on account of
electric shock, ought to have awarded the entire amount as has been
prayed for. Learned Advocate Mr.Dave would further specifically draw
the attention of this Court to the findings of the learned Trial Court as
regards the employment and earning of the deceased husband of the
original plaintiff No.1. Learned Advocate Mr.Dave would submit that
though the learned Trial Court has noted that witness Kiritbhai Sampat
had been examined by the plaintiffs, yet in the final part of the decision,
the learned Trial Court has observed that the plaintiffs have not
examined a single independent witness to show that late Gani
Fakirmamad Sameja was earning Rs.4,000/- per month. Learned
Advocate Mr.Dave would take the Court through the testimony of the
above referred Kiritbhai who was, as per the testimony, owner of the
truck, which was being driven by the deceased Gani Fakirmamad
Sameja. In his testimony, the said witness had stated that the husband of
C/FA/2161/2002 JUDGMENT DATED: 03/02/2023
the plaintiff No.1 was employed by him as driver of his truck. The said
witness had also stated that he was paying a salary of Rs.4,000/- per
month to the deceased and whereas he used to pay him extra Rs.50/- per
night in case of any overnight journey. The said testimony has not been
dislodged in cross-examination as would be evident from a perusal of
Exh.52. Learned Advocate Mr.Dave would submit that in spite of the
said testimony, which had been noted by the learned Trial Court in the
preceding paragraphs, yet in the conclusion the learned Trial Court
having observed that the plaintiffs have not examined any single
independent witness as regards the employment of the deceased, was an
error apparent, which would require interference. Learned Advocate
Mr.Dave would further submit in this regard that since the learned Trial
Court did not consider the testimony of Kiritbhai i.e. employer of the
deceased husband of the plaintiff No.1, the learned Trial Court had
considered the earning of the deceased at Rs.2,000/- per month in spite
of the fact that the plaintiffs had contended that the deceased was
earning Rs.4,000/- per month and the same had been confirmed by
witness Kiritbhai as above. Learned Advocate Mr.Dave would also
draw the attention of this Court to the calculation arrived at by the
learned Trial Court. Learned Advocate Mr.Dave would submit that
while the deceased was aged 35 years at that time, yet instead of
applying multiplier of 16, which should be applicable considering the
age of the deceased, yet the learned Civil Court had used the multiplier
of 12. Learned Advocate would submit that the learned Civil Court had
also awarded an amount of Rs.12,000/- for after-death ceremonies and
mental shock and whereas, that too, was on the lower side, according to
the learned Advocate Mr.Dave. Learned Advocate Mr.Dave would
further submit that the plaintiffs had claimed interest at the rate of 24%
p.a., whereas the learned Trial Court has granted interest at the rate of
6% p.a., only, and whereas the learned Advocate would submit that
C/FA/2161/2002 JUDGMENT DATED: 03/02/2023
interference as regards the said aspect also may be required.
5. On the other hand, learned Advocate Ms.Acharya appearing for the
appellant Board in First Appeal No.139 of 2003 has assailed the
impugned judgement and order, more particularly by submitting that
there was nothing on record to show that the deceased had died on
account of electric shock, more particularly on account of negligence of
the Board. Learned Advocate would rely upon the testimony of one
Mavjibhai Suvera at Exh.61, and would submit that the said person has
been named by the Investigating Officer in the panchnama drawn in the
accidental case filed and whereas learned Advocate would submit that in
his testimony, the said witness has clearly stated that he was neither
present at the time of panchnama, nor was he aware about the deceased
having expired on account of receiving electric shock. Learned
Advocate would further rely upon the testimony of one Arvind Kumar
Kalavadiya at Exh.58, who would submit that the Board was never
informed about any accident, which has resulted into the death of the
husband of the plaintiff No.1, more particularly the accident on account
of receiving electric shock. Learned Advocate would further submit that
even the said witness has denied that Mavjibhai Suvera was present at
the time of panchnama. Learned Advocate Ms.Acharya would further
rely upon the testimony of one Kasigar Gusai at Exh.62, who would
inter alia submit that the Board did not have any information about any
such accident resulting in any loss of life. Learned Advocate
Ms.Acharya would submit that the situation, as coming out from the
testimonies, being that the Board had no intimation about the demise of
the husband of the plaintiff No.1 on account of the electric shock
suffered by the deceased and though there was a mention of an
employee of the Board being present at the stage of panchnama, yet the
same had been denied by the concerned employee, which testimony
C/FA/2161/2002 JUDGMENT DATED: 03/02/2023
could not be dislodged. Learned Advocate Ms.Acharya would submit
that since there was no material to show that the deceased had died on
account of electric shock, learned Civil Court had gravely erred in
coming to a conclusion as allayed and consequently learned Civil Court
had also committed a grave error in awarding an amount of
Rs.3,00,000/- to the plaintiffs. Under such circumstances, learned
Advocate Ms.Acharya would request this Court to set aside the
impugned judgement and order and would further request that
consequently, the First Appeal preferred by the original plaintiffs also
may be rejected by this Court.
6. In rejoinder, learned Advocate Mr.Dave would draw the attention of this
Court to the panchnama, which had been drawn by the police at
Exh.50, more particularly panchnama having been referred to by the
learned Trial Court in the impugned decision. Learned Advocate
Mr.Dave would submit that in the panchnama the fact of the employee
of the Board i.e. witness Mavjibhai Suvera being present is clearly
coming out. Learned Advocate would submit that such being the case
any subsequent denial may not enure in favour of the Board. Learned
Advocate would further draw the attention of this Court to the post
mortem report, which is at Exh.48, whereas the cause of death as
mentioned in the report is heart failure on account of electric shock.
Learned Advocate would submit that the said PM report being on record
and though the Medical officer had not been examined by either of the
parties, but at the same time, the PM report, which has gone
unchallenged, could be treated as a basis by this Court for holding that
the deceased husband of the plaintiff No.1 had indeed died on account of
electric shock. Thus submitting, learned Advocate would request this
Court to modify the impugned judgement and order by granting the total
amount as prayed for by the plaintiffs in the Special Civil Suit and
C/FA/2161/2002 JUDGMENT DATED: 03/02/2023
whereas learned Advocate Mr.Dave would request this Court to reject
the First Appeal preferred by the Board.
7. Heard learned Advocates for the respective parties and examined the
record and proceedings, as well as the impugned decision.
8. In the considered opinion of this Court, the following issues arise for
decision of this Court:-
(1) Whether the plaintiffs have proved that the deceased had
expired on account of receiving electric shock;
(2) Whether the learned Civil Court had committed any error
in believing as above;
(3) Whether the learned Civil Court had committed any error
in granting the amount of compensation, more particularly the
learned Civil Court not having granted the compensation/damages as
requested for by the plaintiffs; and
(4) What would be the final relief entitled to by the parties ?
9. My answers are as follows:-
(1) In affirmative
(2) In affirmative
(3) Partly in affirmative, and
(4) As per the final order.
C/FA/2161/2002 JUDGMENT DATED: 03/02/2023
10. The discussion and reasoning leading to the conclusions are as
below:-
10.1. Issue No.1 and 2:- The plaintiffs have relied upon the
testimonies of the plaintiff No.1 i.e. wife of the deceased and one
Sharifaben to prove that the deceased had died on account of
receiving electric shock. It appears that in her testimony, the
plaintiff No.1 had stated that on the fateful day, while she was
cooking for the family, she had heard screams of her husband from
the terrace and when she rushed to the spot she had seen her husband
having fallen with the electric wires entwined around his body. The
plaintiff No.1 had further stated that she had tried to help her
husband and whereas since she received electric shock, she had also
fallen down and became unconscious. The plaintiff No.1 further
stated that when she had reached the terrace, she had seen her
neighbour Sharifabai, who had also reached the terrace on hearing
the screams of her husband. She had also stated that she as well as
her husband had been taken to the hospital by Sharifabai. The said
testimony of the plaintiff No.1 could not be dislodged by the Board
during her cross-examination, more particularly the plaintiffs having
confirmed about the presence of Sharifabai and the fact of plaintiff
No.1 also falling down unconscious on account of receiving electric
shock in the cross-examination.
10.2. In her testimony, witness Sherifabai very clearly says that upon
hearing the screams, she had rushed to the terrace where she had
seen the deceased having fallen down, with wires entwined around
his body. The said witness would also submit that the plaintiff No.1
had also rushed to the terrace and had tried to save her husband and
had received electric shock in the said process. Even the testimony
C/FA/2161/2002 JUDGMENT DATED: 03/02/2023
of the said witness could not be dislodged during the cross-
examination, more particularly the said witness having clearly stated
in her cross-examination that the deceased was lying on the terrace
when she reached there and whereas she also says that there were
wires lying on the terrace and wires, which had fallen from the
terrace, which were lying on the ground. She also clearly confirms
that the length of the wire was quite long, as long as the length of the
Court room, in which the examination had taken place. Considering
the said testimony, it would appear that the plaintiffs' side had led
the evidence to show that the deceased had received electric shock
and whereas the testimony of the said witness could not be dislodged
by the defendant in the Civil Suit.
10.3. It would further appear that though the defendant's side had led
the evidence by requiring its concerned officer/employee to step into
the witness box, but the fact remains that the respondent Board did
not have any material whatsoever to disprove the testimony of the
plaintiff No.1 and her witness. It would be required to be noted here
that while employee of the GEB Mavjibhai at Exh.61 states that he
was not present at the time of panchnama, but in the considered
opinion of this Court, since the panchnama itself appears to be
slightly vague and since panchas were not examined, therefore,
nothing further would turn upon the panchnama. Consequently,
nothing further would turn upon the testimony of Mavjibhai. As
regards the testimony of witness Arvind Kumar Kalavadiya, while
the said witness inter alia states that there was employee present
during the panchnama drawn by the police as noted herein above,
nothing would turn on the panchnama. The said witness further
testifies that if an electric line falls down the entire electric supply
gets disconnected and fuses would also get burned and the same
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would be intimated to the Board and the Board would be required to
file a complaint, no complaint having been filed at the relevant point
of time.
10.4. As against the same, witness Kasigar Gusai, who was working as
Line Inspector inter alia in his testimony has stated that the entire
record of the Board as regards the said area had been destroyed
during the earth-quake (the earth-quake which had occurred on
26.1.2001). Thus, it would appear that though the witness, Deputy
Engineer at Exh.58 had stated about no complaint being filed at the
relevant point of time trying to draw an inference that no such
incident had occurred, yet since at the relevant point of time, there
was no record available with the GEB - defendant, therefore, the
testimony of the said Deputy Engineer cannot be believed, more
particularly since the said witness did not have any material
whatsoever to substantiate the contention that there was no complaint
filed by the Board at the relevant point of time. It also requires to be
noted that the Board at the relevant point of time did not have any
documentary evidence, to deny either the incident having taken place
or any complaint having been filed by the Board even internally with
regard to the said incident. Under the circumstances, in the
considered opinion of this Court, the Board could not dislodge the
testimony of the plaintiff No.1, nor could the Board independently
produce any evidence, which would be contrary to the evidence led
by the plaintiffs. Under such circumstances, in the considered
opinion of this Court, issues No.1 and 2 i.e. whether the plaintiffs
prove that the deceased Gani Fakirmamad Sameja died on account of
receiving electric shock and whether the learned Civil Court had
committed any error in coming to such conclusion, are required to be
held in affirmative.
C/FA/2161/2002 JUDGMENT DATED: 03/02/2023
10.5. At this stage, it would also be required to be mentioned that at
Exh.48, the plaintiffs had produced the post mortem of the deceased
and whereas the post mortem states very clearly that the deceased
had expired due to cardiac arrest on account of electric shock, but
since the doctor, who had conducted the post mortem, had not been
examined and since the Court, having noted herein above, would not
be required to go into these aspects, the evidence as found in the post
mortem report has not been relied upon.
10.6. Issue No.3 :- Insofar as the said issue is concerned, it appears
that while the learned Civil Court had come to a conclusion that the
deceased had died on account of electric shock suffered due to the
live wire, which had fallen upon him, and whereas to grant damages/
compensation, the learned Civil Court appears to have adopted the
formula as adopted in Motor Accident Claim cases. Learned Civil
Court inter alia observed that though the plaintiffs have stated that
the deceased was earning Rs.4,000/- per month, yet the plaintiffs
have not led any evidence and not examined any witness to prove the
same. It appears that the learned Civil Court had committed a factual
error on this aspect, more particularly since the plaintiffs had
examined one Kirit Sampat at Exh.52, who had inter alia stated that
he was the owner of a truck and whereas the deceased was employed
by him as driver of the truck and that the deceased was being paid
Rs.4,000/- per month by the said person. Though certain questions
appear to have been paused to the said owner of the truck in cross-
examination, but the fact of the deceased being employed by the said
person or the deceased receiving around Rs.4,000/- per month as
salary could not be dislodged by the respondent Board. In any case,
as noted herein above, in view of the fact that witness Kirit Sampat
being the employer had been examined by the plaintiffs, who had
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confirmed about the employment and salary received by the
deceased, the finding that no witness has been examined by the
plaintiffs with regard to the employment and earning of the deceased
is an apparent factual error. This Court also finds that considering
the age of the deceased i.e. 35 years, the learned Civil Court while
adopting the formula being adopted in MACP cases ought to have
applied multiplier of 16, instead of multiplier of 12. Learned Civil
Court also appears to have erred in granting Rs.12,000/-, under the
head of 'ceremonies and mental shock' considering the fact that the
deceased was survived by eight persons, more particularly plaintiff
No.1 being the wife, and plaintiffs No.2 to 8 being the children.
10.7. Having observed as above, in the considered opinion of this
Court, issue No.3 needs to held in part affirmative, more particularly
since it appears that the impugned judgement and order would
require modification with regard to the calculation upon the
compensation.
10.8. Issue No.4 :- Considering the discussion as above, since the
fact that the deceased having expired on account of suffering electric
shock has been proved by the plaintiffs and further considering the
fact that certain errors appear to have been committed by the learned
Civil Court in computing compensation/damages, therefore, the said
judgement and order requires appropriate modification. On
considering the testimony of Kirit Sampat read with the testimony of
plaintiff No.1, who had confirmed that the deceased was working as
a truck driver though she was not aware about the details of the
employer, the fact of the deceased earning around Rs.4,000/- per
month at the relevant point of time has to be given due consideration.
At the same time, considering the fact that the deceased would have
C/FA/2161/2002 JUDGMENT DATED: 03/02/2023
spent certain amount upon himself, while the earning capacity of the
deceased being taken as Rs.4,000/- per month, for the purpose of
computing the compensation, in the considered opinion of this Court,
an amount of Rs.3,000/- per month being earned by the deceased,
excluding the amount spent by the deceased upon himself would be a
reasonable amount. Furthermore, as far as the multiplier is
concerned, considering the age of the deceased as 35 years and
having regard to the law laid down by the Hon'ble Apex Court in
case of Sarla Verma v. Delhi Transport Corporation , reported
in (2009) 6 SCC 121 multiplier of 16 is required to be granted.
11. Further as noted herein above, the judgement also requires
appropriate modification with regard to the amount given for after-death
ceremonies as well as shock and sufferings suffered by the plaintiffs. In
view of the above, the following calculation is adopted by this Court:-
Salary of the deceased : Rs.3,000 per month x 12 = Rs.36,000/- p.a.
Multiplier applied is 16. Therefore, Rs.36,000/- x 16 = Rs.5,76,000/-
Under the head of 'After-death-Ceremonies and mental shock' :
Rs.24,000/-
Total : Rs.6,00,000/- (Rs.5,76,000/- + Rs.24,000/-)
12. In the considered opinion of this Court, the total amount as could
be awarded to the plaintiffs at the relevant point of time would be
Rs.6,00,000/- as modified from the amount Rs.3,00,000/- as granted by
the learned Civil Court. Furthermore, as regards the challenge to the
interest, this Court finds that while the plaintiffs have claimed 24% p. a.,
upon the amount of damages, but at the same time, the plaintiffs have
C/FA/2161/2002 JUDGMENT DATED: 03/02/2023
not led any material evidence to show that interest should be granted at
the rate of 24% per annum. Furthermore, considering the enhanced
amount granted by this Court as herein above, and further considering
the fact that the respondent Board is a statutory Company, therefore, in
the considered opinion of this Court, no interference is required to be
done, insofar as awarding of interest at the rate of 6% per annum by the
learned Civil Court is concerned. In this view of the matter, the
following order is passed:-
12.1. The judgement and order passed by the learned Civil Court dated
12.2.2002 is confirmed as regards the finding qua the death of the
husband of the plaintiff being on account of electric shock. The
judgement and order is modified insofar as the awarding of damages/
compensation is concerned, and the plaintiffs would be entitled to
damages/compensation of Rs.6,00,000/-, instead of Rs.3,00,000/- as
awarded by the learned Civil Court. The judgement and order of the
learned Civil Court is modified to that extent. The judgement and
order of the learned Civil Court is not modified as regards the
running rate of interest and whereas, the plaintiffs would be entitled
to interest at the rate of 6% per annum on the enhanced amount of
Rs.3,00,000/- from the date of filing of the Special Civil Suit till the
date of realization, as Rs.3,00,000/- has already been paid to the
plaintiffs as per the award of the learned Civil Court.
12.2. The judgement and order dated 12.2.2002 is modified
accordingly. Decree to be drawn by the Registry in view of the
modification of the order.
13. With these observations and directions, First Appeal No.2161 of
2002 is disposed of as partly allowed.
C/FA/2161/2002 JUDGMENT DATED: 03/02/2023
14. First Appeal No.139 of 2003 is disposed of as rejected.
15. Registry is directed to send back R & P forthwith.
Sd/-
(NIKHIL S. KARIEL,J)
V.V.P. PODUVAL
