Paschim Gujarat Vij Company ... vs L H Of Decd. Odhavjibhai @ Odhabhai ...
2023 Latest Caselaw 3708 Guj

      C/SA/146/2023                              ORDER DATED: 01/05/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/SECOND APPEAL NO. 146 of 2023
                                  With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2023
                   In R/SECOND APPEAL NO. 146 of 2023
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              PASCHIM GUJARAT VIJ COMPANY LIMITED
                             Versus
     L H OF DECD. ODHAVJIBHAI @ ODHABHAI GOBARBHAI SHIYAL
==========================================================
Appearance:
MR VIRAL J DAVE(5751) for the Appellant(s) No. 1,2,3,4
for the Respondent(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6
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 CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                            Date : 01/05/2023

                             ORAL ORDER

1. Present Second Appeal has been preferred by the appellants - original appellants / defendants against the concurrent findings of the learned courts below arising out of the suit for compensation for the death of deceased Odhabhai Shiyal, who died due to electric shock.

2. Factual matrix of the case is as under: 2.1. The respondents - original plaintiffs are the heirs and legal representatives of deceased Odhabhai Shiyal. The original plaintiff No.1 is the widow of the deceased, original plaintiff nos.2 to 4 are the children of the deceased and plaintiff Nos.5 and 6 are parents of the deceased.

2.2. It is the case of the plaintiffs that the plaintiffs are residing in a hut in their agricultural and electric pole is installed by the appellants near the house of the plaintiffs and electric line is passing through the agricultural field of

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the plaintiffs and for the said facility, the appellants Company has installed electric poles or and transformer and it is the duty of the appellant company to have regular maintenance, checking and take care of the electric line.

2.3. It is the case of the plaintiffs that earthing wire is installed from the top of the electric pole to the earth, however, the said wire was open and not covered or coated and the said wire was open. At the time of incident, there was rain and moisture in the land and the earthing wire came in contact with the electric wire, due to which the deceased has received electric shock on 17/7/2010 on account of touch of the electric wire, and due to electric shock, the deceased who was aged 34 years died. It is the case of the plaintiffs that the incident of electric shock to the deceased shows that the appellants used the goods of inferior quality and failed to do regular supervision and repairing of the electric line. It is the case of the plaintiffs that the death of the deceased has been caused due to the negligence on the part of the appellants - original defendants and hence the appellants are liable to pay compensation for the death of the deceased.

2.3. The plaintiffs filed Regular Civil Suit No.226 of 2014 claiming compensation of Rs.5,00,000/- for the death of the deceased. In the said suit, after conducting full fledged trial and considering the oral as well as documentary evidence, the learned Principal District Judge, Sayla partly allowed the suit and directed the appellants herein - original defendants to pay compensation of Rs.3,00,000/- with

C/SA/146/2023 ORDER DATED: 01/05/2023

interest at the rate of 7% from the date of institution of the suit till realization. The trial court also directed to deposit the said amount within a period of three months.

2.4. Against the aforesaid judgement and decree passed by the trial court, the original defendants preferred Regular Civil Appeal No.5 of 2021 in the District Court, which was transferred to the learned 4th Additional District Judge, Limbdi, District Surendranagar, who after hearing both the sides and considering the evidence on record, rejected the said appeal preferred by the appellants herein and confirmed the judgement and decree passed by the trial court, against concurrent findings of facts recorded by both the courts below, the appellants herein - original defendants have preferred the present Second Appeal.

3. Heard Mr.V.J. Dave, learned advocate for the appellants at length.

4. I have examined the findings of both the courts on the issue raised in the suit. Upon examination of the judgement and order of both the courts below, no infirmity, illegality, perversity or impropriety is pointed out in the concurrent findings of the facts rendered by the courts below by Mr.Vyas, learned advocate. Not only that, the learned advocate for the appellants is unable to show to this court any finding recorded by the learned courts is without any evidence or there is any illegality in the findings.

5. Considering the totality of the facts and circumstances

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and material on record, this court does not find any error or law in the concurrent findings of the learned courts below. In exercise of powers under section 100 of the Code of Civil Procedure, jurisdiction is confined to substantial question of law only. Here in this case, no substantial question of law has been raised so as to enable this Court to admit the present appeal.

6. The scope of Second Appeal under section 100 is limited. Second Appeal is competent only if it involves, at the stage of admission, substantial question of law. High Court can interfere with the concurrent findings of fact, if the findings are perverse but the perversity should be apparent on the face of record.

7. Here in this appeal, the question of law raised cannot be said to be substantial question of law and there are question of law but not the substantial question of law.

8. In the case of Easwari Versus Parvathi and others,. reported in (2014) 15 SCC 255, it is held that High Court can entertain a Second Appeal on a substantial question of law and it has absolutely no jurisdiction to entertain the Second Appeal on the ground of erroneous findings of fact, however, gross error seems to be looked into. High Court can interfere in the concurrent findings of facts in the Second Appeal if the appellate court has not properly appreciated the evidence on record.

9. In the case of Samina Khatun, AIR 1995 Gauhati

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104, also it is held that High Court can only entertain Second Appeal only on substantial question of law. High Court has absolutely no jurisdiction to entertain Second Appeal on the ground of erroneous findings of fact.

10. As laid down in the case of State of Haryana Versus Khalsa Motors Limited, reported in (1990) 4 SCC 659, on the basis of evidence on record it is held that the trial court and first appellate court has given concurrent findings of facts and the High Court cannot reverse the said findings under ordinary circumstances.

11. In the case of C.Doddanarayana Reddy & Ors. Vs. C. Jayarama Reddy & Ors., reported in (2020) 4 SCC 659, the Hon'ble Apex Court has observed and held as under :-

"25. The question as to whether a substantial question of law arises, has been a subject matter of interpretation by this Court. In the judgment reported as Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan (1999) 6 SCC 343, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under:

"12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is

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limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

13. In Ramanuja Naidu v. V. Kanniah Naidu (1996 3 SCC 392), this Court held:

"It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its 8 (1999) 6 SCC 343 jurisdiction under Section 100 of Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did."

14. In Navaneethammal v. Arjuna Chetty (1996 6 SCC 166), this Court held :

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"Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to re-

place the findings of the lower courts.

... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material."

15. And again in Secy., Taliparamba Education Soci- ety v. Moothedath Mallisseri Illath M.N. (1997 4 SCC 484), this Court held: (SCC p. 486, para 5) "The High Court was grossly in error in trenching upon the appreciation of evidence under Section 100 CPC and recording reverse finding of fact which is impermissible."

26. In a judgment reported as Kondiba Dagadu Kadam v. Savitkibai Sopan Gujar & Ors.9, this Court held that from a given set of circumstances if two inferences are possible then the one drawn

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by the lower appellate court is binding on the High Court. In the said case, the First Appellate Court set aside the judgment of the trial court. It was held that the High Court can interfere if the conclusion drawn by the lower court was erroneous being contrary to mandatory provisions of law applicable or if it is a settled position on the basis of a pronouncement made by the 9 (1999) 3 SCC 722 court or based upon inadmissible evidence or arrived at without evidence. This Court held as under:

"5. It is not within the domain of the High Court to investigate the grounds on which findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court had given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are

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possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the tower appellate court were erroneous being contrary to the mandatory provisions of law applicable of its settled position on the basis of pronouncements made by the apex Court, or was based upon in inadmissible evidence or arrived at without evidence."

27. In another judgment reported as Santosh Hazari v. Purushottam Tiwari, this Court held as under:

"14. A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be substantial, a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the

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case, if answered either way, in so far as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstance of each case whether a question 10 (2001) 3SCC 179 of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

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28. Recently in another judgment reported as State of Rajasthan v. Shiv Dayal11, it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded de hors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:

"When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."

29. The learned High Court has not satisfied the tests laid down in the aforesaid judgements. Both

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the courts, the trial court and the learned First Appellate Court, have examined the School Leaving Certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once, two 11 (2019) 8 SCC 637 courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court.

12. In the recent decision in the Case of Kapil Kumar Vs. Raj Kumar reported in (2022) 10 SCC 281, the Hon'ble Apex Court has observed and held as under :-

"10. At the outset, it is required to be noted that as such there were concurrent findings of facts recorded by the learned trial court as well as the learned first appellate court on execution of pronote by the defendant in favour of the plaintiff. The said findings were on appreciation of entire evidence on record. Therefore, unless the findings recorded by the courts below were found to be perverse, the

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same were not required to be interfered with by the High Court in exercise of powers under section 100 CPC.

11. Even the substantial question of law framed by the High Court cannot be said to be as such a question of law much less substantial question of law. From the impugned judgement and order passed by the High Court, it appears that as such no specific substantial question of law seems to have been framed by the High Court. However, it appears that what was considered by the High Court was whether the plaintiff proves the execution of pronote and the receipt by leading cogent evidence."

13. As per submissions of Mr.Dave, learned advocate for the appellant, the deceased had climbed the electric pole and had been electrocuted and thus, the deceased has died due to his own negligence. However, on perusal of the paper book, it appears that no document in support of this submission has been placed on record regarding negligence of the deceased. As per submission of Mr.Dave, one passer- bye had informed the officers of the Electricity Board regarding act of the deceased. Surprisingly, on perusal of

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the paper book, it appears that no such witness has been examined and the appellant company has only relied upon their rojkam and the report, which cannot sustain in the eye of law. As per the report of the investigating officer regarding accidental death inquiry, it comes from the paper book that there is no evidence in the investigating papers of the investigating officer regarding negligence of the deceased. It has come on record that the incident occurred in the monsoon however, no report is produced on record showing that prior to the monsoon maintenance of the poles and wires was done by the appellant. Merely on the basis of the report of the appellant Electricity Company, it cannot be presumed that there was negligence on the part of the deceased. Learned advocate for the appellant has submitted that the court below has not considered the provisions of the Electricity Company. On perusal of the paper book, it is clear that no such provision of law, any notification or any circular have been placed on record before the trial court or the first appellate court. Under the circumstances, the submissions made by the learned advocate for the appellant are not sustainable. Even otherwise, those submissions cannot be said to be error committed by the courts below which are apparent on the face of the record, or which has resulted into gross injustice to the appellant or out of which any substantial question has arisen.

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14. Under the circumstances, this appeal, as stated above, is devoid of any substantial question of law. Both the courts have rightly decided the issue between the parties in the right perspective. The trial court and the first appellate court has dealt with the plea of negligence on the part of the appellants and came to the conclusion that the deceased has died due to electric shock due to negligence of the defendants. cogent and convincing evidence has been brought on record by the plaintiffs to justify their claim. The appellants - original defendants have failed to prove their case before the appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merits both on facts and law and hence the same is dismissed at admission stage.

On dismissal of the main Second Appeal, the Civil Application No.1 of 2023 for stay stands rejected.

(RAJENDRA M. SAREEN,J) R.H. PARMAR