Gujarat High Court
Geb Now (Pashchim Gujarat Vij Company ... vs Heirs Of Decd.Chandrad Bhagabhai ... on 25 April, 2025
NEUTRAL CITATION
C/FA/3113/2004 JUDGMENT DATED: 25/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3113 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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Approved for Reporting Yes No
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GEB NOW (PASHCHIM GUJARAT VIJ COMPANY LTD) & ORS.
Versus
HEIRS OF DECD.CHANDRAD BHAGABHAI NANABHAI & ORS.
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Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1,2,3
MR AMAR D MITHANI(484) for the Defendant(s) No.
1.1,1.2,1.3,1.4,1.5
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 25/04/2025
ORAL JUDGMENT
1. The present appeal is filed under Section 96 of the Code
of Civil Procedure, 1908 (hereinafter referred to as the
"Code") at the instance of the original defendants Electricity
Board being aggrieved and dissatisfied with the impugned
judgment and decree dated 29.01.2004 passed by the learned
5th Joint Civil Judge (S.D.), Junagadh in Special Civil Suit
No.165 of 2001 (hereinafter referred to as the "impugned
judgment and award"). By the said judgment and award, the
learned Judge has partly allowed the suit preferred by the
present respondents- heirs and legal representatives of the
deceased victim awarding compensation of an amount of
Rs.3,52,000/- along with interest at the rate of 9% p.a. from
the date of filing of the suit till its realization.
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2. The brief facts giving rise to the present appeal as
emerging from record are as under:
2.1. On 30.08.1999 the deceased -Baghabhai Nanabhai
residing at Kenedipur, Tal: Mendarda, Dist. Junagadh had
gone to his field, which is jointly owned with his brother,
known as "Nanivadivalu" situated at revenue survey no.76/1-A
admeasurign 12 acres-09 gunthas. The electricity connection
has been obtained by the father of the said Baghabhai
Nanabhai, which was having 7.5 horsepower and was mainly
used for extracting water with the help of electric motor. It is
the case of the claimants that at around 8.30 hours when the
deceased had put on the starter to operate electric motor, the
deceased had received accidental electric shock and on the
spot he expired. The original claimants include the applicant
no.1 who is the widow of the deceased and applicant nos.2 to
5 who are their children. The claim petition was filed seeking
compensation of an amount of Rs.6 lakhs with interest and
costs to be realized from the original defendants viz. Gujarat
Electricity Board and erring officer which include the
Executive Engineer and Deputy Engineer of the defendant
board. Before the trial Court the original claimants had
contended that the because of gross negligence on the part of
the defendants in not maintaining the electricity line the
incident had taken place which has resulted into untimely
death of the deceased Baghabhai Nanabhai and therefore, the
aforesaid amount was to be realized from the defendants. It
was also contended that the deceased used to earn monthly
amount of Rs.3000/- by doing agriculturist activities. The date
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of birth of the deceased was claimed to be 25.12.1952. It was
also contended that accidental case was reported with the
concerned police station and postmortem of the deceased was
performed at a Government Hospital. The inquest panchnama
was also carried out during the aforesaid investigation,
whereby, the injuries marks received because of the electric
shock in the left hand of the deceased was noticed. Even in
the panchnama drawn, it is reported that because of the
electrocution, deceased had expired. The legal notice dated
13.03.2000 was addressed to the original defendants and
since no response was received from the defendants, the
cause of action arose for the applicants being heirs and legal
representative of the deceased to seek compensation.
2.2. Noticing the aforesaid case of the original claimants, the
summons were issued upon the original defendants, which has
been duly served. The defendants have entered their
appearance through their lawyers and written statement was
filed at Exh.10. Though they have denied the averments made
in the plaint, they have accepted the fact that the deceased
had expired due to electric shock, however they have
specifically denied their liability by disowning their
negligency. It was specifically contended that because of the
defaulting wire at the premises of the deceased, the accident
had taken place. It was pointed out that main starter in which
the fuse was attached, was installed in an iron box and the
liability of the defendants board would be to the extent of
service line which extends to the fuse and thereafter any
default in the wiring emerging from the fuse would be of the
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consumer. It was also contended that the incident which had
taken place because of the faulty wiring emerging from the
fuse and therefore, the defendants board was not negligent
and was not liable to pay any compensation. The defendants
board had disputed the inquest panchnama and panchnama of
the site as carried out during the course of accidental
investigation. It was also pointed out that a detailed reply was
addressed by the board to the legal notice, denying their
liability to pay compensation or any amount of interest or
costs.
2.3. Looking to the aforesaid pleadings of the respective
parties, the trial Court proceeded to frame issue at Exh.11,
which reads as under:
(1). Whether the plaintiffs prove that the officer
of the defendants were negligent which had
resulted into the death of the father of the
plaintiffs -Baghabhai Nanabhai due to electric
shock on 30.08.1999 at around 8.30 hours in the
night?
(2). Whether the plaintiffs prove that because
of the electrical accident the compensation of an
amount of Rs.6 lakhs and damages as pleaded in
the plaint are entitled to recover from the
defendants?
(3). What relief the plaintiffs is entitled to ?
(4). What order and decree ?
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2.4. Upon overall appreciation of the evidence brought on
record, in light of the submissions made by the learned
advocates for the respective parties, the trial Court has
proceeded to decide the aforesaid issues no. 1 to 3 together.
The trial Court has agreed with the submissions of the
plaintiffs that it is the defendant board who is responsible for
maintaining the service line of electricity wire, right from the
electric pole to the fuse installed with the starter in the field
of the deceased. The trial Court has noticed that even from
the evidence of the officers of the defendant Board, it has
transpired that insulation of the blue coloured wire had melt
and aforesaid wire came in contact with the iron box and
when the deceased attempted to operate electric motor by
touching the starter, he got electrocuted. The trial Court has
noticed that in case if the officers of the electricity Board had
regularly visited the installation and had followed the
maintenance, the aforesaid incident could have been avoided.
In absence of the aforesaid care being taken by the
responsible officers of the defendant Board considering the
provision of the Indian Fatal Accident Act, 1985 read with
Electricity Supply Act, 1948, the defendants were negligent
and were therefore, held liable to pay compensation towards
untimely death of the deceased. Apart from the aforesaid
findings, the trial Court has not entertained the defence of the
defendant Board by discarding their evidence in the nature of
inspection report of the Electrical Inspector by noting that the
accident had taken place on 30.08.1999, whereas, it has
clearly transpired on record from the evidence of the
Electrical Inspector that he visited the place on 23.09.1999
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which is almost after a delay of 25 to 26 days of the
occurrence of the incident. The trial Court has also refused to
consider the evidence brought on record at Exh.61 which is
panchnama of the accident site drawn by the Deputy Engineer
of the defendant Board inasmuch as the panch who has signed
across the said panchnama viz. Bhabhulubhai Sumarabhai has
conceded in his evidence that the contents of the panchnama
were not read to him by the officer of the defendant Board. In
such circumstances, in absence of any cogent evidence being
brought on record, the trial Court has refused to entertain the
defence about the faulty wire raised by the defendant Board
as well as case put forward of absence of earthing.
3. Submissions of Ms. Lilu K. Bhaya, learned advocate on
behalf of the Appellants :
3.1 It is submitted that the present appeal is essentially
confined to the issue of negligence of the board and its
officers and if the Court is not convinced on the issue of
negligence then the board is not disputing about the
determination of the amount of compensation. She has
straightaway invited my attention to the Panchangam drawn
by the Deputy Engineer produced on record at EXH. 41 , the
sketch prepared by the Deputy Engineer of the site of
accident, produced on record at EXH. 53 and 54. She
submitted that the aforesaid exercise was carried out by the
Deputy Engineer immediately within a few hours of
occurrence of the accident being reported. She had invited my
attention to the fact that the aforesaid panchnama was drawn
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in presence of a witness named Valkubhai Matrabhai, whose
statement has also been recorded on the spot and is produced
on record at EXH. 52. The reference was also made to an
electrical accidental report entered upon by the Deputy
Engineer on the same day viz. 31.08.99 and is produced on
record at EXH. 62. She had further referred to the evidence of
the witness Manshukhlal Mavjibhai, the Deputy Engineer in
charge at relevant time who is examined at EXH. 51.
According to her the cumulative analysis of the aforesaid
evidence clearly goes to establish that the accident had taken
place because of exposure of blue coloured wire which had
come in contact with the iron box whereby the deceased when
came in contact with the iron box got electrocuted. According
to her, it is also evident from this evidence that the wire inside
the iron box was exposed and not the service wire. She has
therefore submitted that any fault in the internal wiring of the
cable inside iron box does not fall within the ambit of the
board or it's officers, and in fact the very fact that such box
could only opened with the aid of keys in custody of the
owner, indicates that the responsibility lied on the consumer
and not the board to maintain such wires inside iron box.
3.2 Ms. Bhaya had further invited my attention to the findings
and reasons assigned by the trial court in regard to the issue
of negligence. She has submitted that though the trial court
has observed that the evidence of the electrical inspector does
not draw specific conclusion to establish the negligence of the
defendant board however, merely on presumption has arrived
at finding that the service line wire inside the iron box was
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damaged which had resulted in an accident. She has
reiterated her submissions to emphasis on the fact that
maintenance of wire inside iron box was not responsibility of
the board or it's officer, as according to her, their duty to take
care of the wire is confined only to the service line extended
from electric pole to the outside of the iron box inside which
the fuse and starter installed.
4. Submissions of Mr. Amar Mithani on behalf of respondent-
original claimants :
4.1 Mr. Mithani had vehemently objected to aforesaid
submissions of the learned advocate for the appellants. He has
placed heavy reliance on the findings and reasons assigned by
the trial court and has submitted that no error of fact or law is
committed by the trial court which calls for intervention of
this Court. The reliance was placed on the Electrical Inspector
report at EXH. 62 wherein it is mentioned that any part of
service wire had come in contact with the iron box which had
resulted in the incident. While inviting my attention to the
evidence of the widow of the deceased who has entered the
witness box at EXH. 17, the claimants have clearly deposed
before the trial court that the root cause of the incident was
that the wire entering the iron box have exposed because of
friction with the box due to wind. The maintenance of the
service wire was the sole responsibility of the board and its
officers. He had therefore submitted that the trial court upon
overall appreciation of the evidence brought on record by
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respective parties has rightly concluded that the board is
responsible for maintenance of the service line wire up to fuse
to the starter. He had therefore submitted that had it been the
officers taken due care and corrected the exposed wire then
the incident could have been avoided.
4.2 Learned advocate had placed reliance upon the decision of
the Allahabad High Court in the case of Executive Engineer,
Electricity Distribution Division -II Mohaddipur, Gorakhpur vs.
Chairman, Lok Adalat, Gorakhpur and others., reported in
2015 SCC online All 8400. Referring to para-14 , learned
advocate has submitted that where the enterprise is engaged
in hazardous or dangerous activity , the degree of
responsibility of the enterprise is much higher and any default
on the part of the enterprise, it is strictly and absolutely liable
to compensate. He has therefore urged to dismiss the present
appeal.
Analysis :
5. I have learned advocates for the respective parties and
considered their submissions in light of the evidence brought
on record. I have also closely examined the findings and
reasons assigned by the trial court. The respective counsels
have mainly focused on the issue of negligence. Even
otherwise, the question of compensation would arise only
when the issue of negligence is proved by the original
claimants against the defendant board. The trial court has
rightly framed issue no.1 placing burden upon the plaintiff to
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prove their case that because of negligence of the board and
it's officers, the death of their father had occurred due to
electric shock.
Before examining the merits of the case, appropriate
would be to look at the legal position in this regard. The
Hon'ble Supreme Court in the case of Jacob Mathew vs. State
of Punjab (2005) 6 SCC 1 and in the case of Kishorelal vs.
Chairman, Employees State Insurance Corporation, (2007) 4
SCC 579 , has culled out certain tests to establish negligence,
under law of torts. The same reads as under :
(1) The existence of a duty to take care, which is
owed by the defendant to the complainant.
(2) The failure to attain that standard of care,
prescribed by the law, thereby committing, a breach
of such duty
(3) damages, which is both casually connected with
such breach and required by law, has been suffered
by the complainant.
6. Applying the aforesaid test in the facts of the case, in order
to held the defendant board liable towards payment of
compensation, heavy burden lied upon the claimants who
were expected to established beyond reasonable doubt that
the defendant board and it's officers owed duty to take care of
the wiring and the breach on their part to attain such
standard of care in maintaining the wiring which has resulted
into damages to them. Having noted so, looking at the
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controversy raised, the question also arises whether the
defendant board was under duty to take care of wiring inside
the iron box. On close appreciation of the evidence of the
claimant at EXH. 17 and the evidence of the witness of the
claimant at EXH. 40 as against the evidence of the Deputy
Engineer at EXH. 51 and the Electrical Inspector at EXH. 61,
it is noticed that the case of the claimant of exposure of
service line wire at the exit point outside the frame of iron box
has been successfully challenged by the defendant board in
cross examination of witness Bhabhlubhai Sumarbhai
(EXH.40) who has fairly accepted that the insulation of blue
coloured wire was melted and it was moving touching the iron
box from bottom. Again, the Deputy Engineer (EXH. 51) in his
evidence has deposed that the testor showed presence of
electric current on the iron box. The keys of the iron box were
with the owner. The service line was going inside the iron box.
Inside the iron box there were three fuse of 100 amperes
followed by the starter out of which two cables having three
wires were moving towards the motor. Out of these wires the
insulation of blue coloured wire was exposed and when the
aforesaid exposed wire came in contact with the iron box, an
accident had taken place. There was no earthing to the
aforesaid installation. In cross examination, the only questions
which are put to said witness in the form of denial, refusing
friction of wire coming out or entering into the iron box. In my
view, the evidence of the said witness stands corroborated
from the evidence produced on record at EXH. 41, 52 and 54.
The panchnama of the site which is immediately prepared
after a few hours of accident and verified in presence of
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witness Bhabhlubhai Sumarbhai (ExH. 40) , who has admitted
in evidence that the content of the panchnama is what was
read over. The cumulative evaluation of evidence establishes
that the insulation of blue coloured wire was damaged which
came in contact with the iron box. It is also evident from the
close appreciation of aforesaid evidence that the said blue
coloured wire forms part of the three wires of the cable
moving from starter to the motor. Hence, the original
claimants have failed to establish their case that the
infiltration of the electric current was because of damage to
the service line outside the body of the iron box. On the other
hand the defendant board has established that the service line
provides power supply through fuse reaches to the starter and
from starter through two cables goes to the motor. Even the
Electrical Inspector who has been examined by the defendant
board has thrown light on the aforesaid aspect.
7. Having appreciated the evidence, if ones look at the
findings and reasons assigned by the learned Judge, it
transpires from reading of para -15 of the impugned judgment
that the trial court though noted the aforesaid mechanism of
the installation has evaluated the evidence in erroneous
manner by holding that even defendant witness has also
admitted that because of exposure of blue colour wire moving
inside the iron box had got expose due to friction caused by
wind. However , the trial court has ignored the correct
version brought on record wherein it is contended that such
reference of exposed blue wire is in respect of two cables
emerging from the starter and moving out of the iron box
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towards the motor. The trial court has not arrived at specific
finding that such blue coloured exposed wire is part of the
service line. In such circumstances, the original claimants
have failed to prove the negligence of the defendant board.
8. As regards legal contention of strict liability raised by
learned advocate for the respondent by placing reliance upon
decision of the Allahabad High Court in the case of Executive
Engineer (supra) is concerned, there cannot be any dispute as
regards proposition of doctrine of strict liability in case of
enterprise engage in hazardous activities is concerned,
however, the initial burden of proof of negligence rests on the
consumer to demonstrate the negligence of the electricity
company and if the consumer establishes a reasonable
inference of negligence, the burden shifts to the electricity
company to demonstrate that it's took almost caution and care
to avoid accident.
9. Considering the aforesaid evidence and the legal position,
in the opinion of this Court the trial court miserably failed to
evaluate the evidence in right perspective. Further, it would
be appropriate to look at the relevant provisions of the Indian
Electricity Rules, 1956, more particularly Rule 30 :
"30. Service lines and apparatus on consumer's
premises-
(1) The supplier shall ensure that all electric
supply lines, wires, fittings and apparatus
belonging to him or under his control, which
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are on a consumer's premises, are in a safe
condition and in all respects fit for supplying
energy and the supplier shall take due
precautions to avoid danger arising on such
premises from such supply lines, wires, fittings
and apparatus.
(2) Service-lines placed by the supplier on the
premises of a consumer which are underground
or which are accessible shall be so insulated
and protected by the supplier as to be secured
under all ordinary conditions against electrical,
mechanical, chemical or other injury to the
insulation.
(3) The consumer shall, as far as circumstances
permit, take precautions for the safe custody of
the equipment on his premises belonging to the
supplier. (4) The consumer shall also ensure
that the installation under his control is
maintained in a safe condition."
10. The duty to maintain the service line placed by the
electricity company whether underground or made accessible
to the consumer premises, insulated and protected so as to
avoid any injury. At the same time, the consumer is also
directed to take precautions for safe custody of the equipment
on his premises belonging to the supplier. Admittedly, no
findings has been arrived at by the trial court to hold that blue
coloured exposed wire is part of the service line. Also, the trial
court has ignored the evidence brought on record that there
was no earthing maintained in the installation. Taking into
consideration aforesaid circumstances, I am of the
considerate view that the trial court without appreciating
aforesaid provision committed serious error in holding issue
no.1 in affirmative. In the opinion of this court, the plaintiffs
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have failed to prove their case on the touchstone and hallmark
of the tests laid down by the Supreme Court in Jacob Mathew
(supra) and Kishore lal (supra) and thus they are not entitled
for the damages.
11. For the foregoing reasons, the present appeal is allowed.
The impugned judgement and award dated 29.01.2004 ,
passed by the learned 5th Additional Civil Judge, Junagadh in
special civil suit no. 165/ 2001 Is hereby quashed and set
aside. Since the appeal is not entertained, considering the fact
that a part of the amount of compensation to the extent of
15% of the total award amount has already been realised and
interest accrued on the balanced amount, which is invested in
fixed deposit in a Nationalized Bank pending this appeal, been
realised by the claimants, the same may not be recovered,
however, the fixed deposit amount is directed to be refunded
back to the appellant Board through account payee cheque,
after due verification. Let such exercise be undertaken within
a period of four weeks from today. The interim relief if any
stands modified in terms of this order. Records and
proceedings are directed to be sent back to the concerned
Court forthwith.
sd/-
(NISHA M. THAKORE,J)
RATHOD KAUSHIKSINH
