Gujarat High Court
Niratben Wd/O Decd. Bhavabhai Alias ... vs State Of Gujarat on 17 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2170 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
No
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NIRATBEN WD/O DECD. BHAVABHAI ALIAS BHAVABHAI DEVSHIBHAI &
ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES for
the Appellant(s) No. 4
MS. ALKA B VANIYA(6945) for the Appellant(s) No. 2
PETITION DISPOSED OF for the Appellant(s) No. 1,4.2,4.3,4.4
UNSERVED EXPIRED (N) for the Appellant(s) No. 3,4.1
DELETED for the Defendant(s) No. 3
MS ROSHNI PATEL AGP for the Defendant(s) No. 1
MS SEJAL K MANDAVIA(436) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 17/09/2025
ORAL JUDGMENT
1. Present appeal under Section 96 of the Civil Procedure Code,
1908 is filed by the appellants - original plaintiffs against the
judgment and order dated 25.03.2003 passed by the learned Judge,
Court No.15, Ahmedabad [hereinafter be referred to as "the trial
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Court"] in Civil Suit No. 111 of 1989 whereby the trial Court dismissed
the suit.
2. Brief facts of the present case are that one Bhanubhai
Devsibhai Katudia, who was husband of original plaintiff No.1, father
of original plaintiff No.2 and son of original plaintiff Nos.3 and 4, was
working as a Mason with original defendant No.3. That defendant No.2
is the District Panchayat, who had given contract to construct a
building to original defendant No.3 and defendant No.1 is the State
Government and according to the plaintiffs, the defendant No.3 was
carrying the work under the supervision of defendants No.1 and 2 and
gave instruction to defendant No.3.
2.1 That defendant No.3 had arranged for residence of the workers
and all were residing on ground floor of the building which was under
construction. On 19.07.1984 at about 7.00 p.m., the construction of a
slab was completed and, thereafter, suddenly the same was collapsed
at about 8.00 p.m. and said Bhanubhai along with other co-workers
sustained injuries, due to which Bhanubhai died on the spot.
2.2 That in view of the aforesaid, the legal heirs of deceased
Bhanubhai had preferred the aforesaid civil suit before the trial Court,
which came to be dismissed. The suit was contested by the
defendants by filing their written statement.
2.3 The trial Court, after considering the pleading of both the sides,
framed the following issues at Exhibit 21.
(1) Whether the plaintiff proves that the death of Bhanubhai
occurred on account of irresponsible conduct and negligence
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of the defendants?
(2) Whether the suit is maintainable at law?
(3) Whether the deceased was in employment of the defendant
no.3?
(4) Whether the defendants prove the agreement amongst
themselves as averred in the written statement?
(5) Whether the plaintiff is entitled to the relief as sought for?
From whom?
(6) What order and award?
2.4 The trial Court has answered the aforesaid issues accordingly.
3. It is the contention on the part of the appellants that the trial
Court has failed to appreciate the fact that the accident occurred due
to falling down the slab and along with other co-workers, the
deceased was sustained injury and he died. However, such fact has
not considered by the trial Court while dismissing the suit only on the
ground that the plaintiffs have failed to prove the factum of the
incident and failed to establish the liability and negligence on the part
of defendants No.2 and 3.
4. Heard Ms.Alka Vaniya, learned counsel for the appellant/s,
Ms.Sejal Mandavia, learned counsel for respondent No.2 - District
Panchayat and Ms.Roshni Patel, learned Assistant Government
Pleader for respondent No.1 - State of Gujarat at length. Perused the
material placed on record.
5. Ms.Vaniya, learned counsel for the appellant/s has submitted
the same facts which are narrated in the memo of appeal and has
submitted that the trial Court has, while appreciating the evidence on
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record, committed serious error of facts and law in disbelieving the
fact that the deceased was working as Mason and when he was
undertaking the masonry work, the unfortunate incident took place,
due to which he died. She has submitted that the trial Court has
dismissed the suit and declined the compensation / damage on the
ground that the plaintiffs have failed to prove the factum of the case
and failed to produce documentary evidence. She has submitted that
the trial Court has disbelieved the fact that the deceased was working
as labourer and appointed by defendant No.3 on relying upon the
report of Kharod Committee appointed by the State of Gujarat, who
considered the deceased as trespasser and he was no authorized to
reach the place where the incident occurred and he was not legally
appointed as labourer by defendant No.3. She has submitted that the
trial Court has completely ignored the fact that the notice issued to
the Panchayat by the plaintiffs and supported the oral evidence. She
has submitted that the plaintiffs have produced the relevant
documentary evidence before the trial Court to prove their case, but
because of the report of the Kharot Committee that the deceased was
not engaged by defendant No.3 and, therefore, he was unauthorized
person and found as trespasser, the suit came to be dismissed. She
has submitted that the trial Court has committed an error of facts and
law in passing the judgment and order and hence, the interference is
required to be called for by this Court and the appeal deserves to be
allowed and the judgment and order deserves to be quashed and set
aside.
5.1 Ms.Vaniya, learned counsel for the appellants has submitted
that originally suit was filed by the wife, children and parents, out of
which now only one son namely Sanjay @ Shivabhai S/o. Bhavabhai
Devsibhai was minor at the relevant time, intended to proceed with
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the matter and is only the person. She submitted that the amount of
compensation be paid only to Sanjay @ Shivabhai S/o. Bhavabhai
Devsibhai.
6. Per contra, Ms.Mandavia, learned counsel for respondent No.2
has supported the impugned judgment and order passed by the trial
Court and submitted that the finding recorded by the trial Court is just
and proper and no interference is required to be called for. She has
submitted that the State has appointed the Kharot Committee to
examine the veracity and factum of the incident, for which, the
Committee found that the deceased was not engaged by defendant
No.3 and he was a trespasser and during the work, he sustained the
injury, who was not a labourer. She has submitted that the trial Court
has rightly considered the fact that defendants No.2 and 3 were not
held guilty and liable to pay compensation / damage and there is no
any illegality and perversity in the finding recorded by the trial Court.
She has submitted that during the pendency of the suit, defendant
No.3 expired and, therefore, the trial Court has abated the suit qua
defendant No.3, which fact is observed by the trial Court while
recording the finding. She has submitted that in absence of necessary
party, the suit was not maintainable as defendant No.3 is the person
with whom the deceased was working as a labourer and the plaintiffs
have not joined the legal heirs of defendant No.3 nor his firm was
made party to the proceedings and, therefore, the trial Court has
rightly passed the judgment and order and there is no any illegality
and infirmity in the judgment and order. She has submitted that the
appeal being meritless deserves to be dismissed.
7. It is submitted that though the State of Gujarat has joined as
party respondent, however, the same is being formal party as the
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building contract was given by respondents No.2 and 3 and, therefore,
the State Authority is not able to give answer as it is not aware with
the facts.
8. It appears from the record that deceased was working as
labourer and while he was on duty at that time, he sustained injury
and his presence was found there and there is no question that
whether the deceased was trespasser and finding recorded by the
trial Court merely relying upon the report is not just and proper and in
absence of defendant No.3, the trial Court, without giving any
opportunity to the appellants and relying upon the report of Kharot
Committee, has disbelieved the case of the appellants. It also appears
from the record that along with other persons, the deceased
sustained serious injury in the incident in question and, therefore, it
cannot be said that the deceased was trespasser and on the basis of
the report, the trial Court has dismissed the suit and under such
circumstances, the finding recorded by the trial Court is illegal and
unjust. The said fact was proved by the original plaintiffs by producing
relevant documentary evidence. It is an undisputed fact that the
accident occurred due to collapsed the slab, for which, the deceased
died. The postmortem report supported the case of the appellants
along with other documentary evidence including FIR, inquest
panchnama etc, however, the trial Court has ignored all these
evidence on the ground that during the inquiry the Kharot Committee
appointed by the State, who found that the deceased was trespasser.
Such report of the Committee was not part of the proceedings and no
opportunity has been given to the appellants to meet with the
contention and without there being any adjudication, the trial Court
has disbelieved the facts pleaded by the appellants that the deceased
was working as labourer and during the course of his duty, he
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sustained injury on account of the accident and dismissed the suit
only on the ground of report of the Committee. In view of the above, I
am of the opinion that the trial Court has committed serious error of
facts and law in passing the impugned judgment and order. The trial
Court, on one hand, has believed that the Taluka Development Officer
has given ex gratia compensation to the appellant - wife meaning
thereby that the deceased is the affected person and on the ground of
the report of the Kharot Committee, treated the deceased as
trespasser and relying upon such report, the trial Court has dismissed
the suit, which is not just and proper and, hence there is contrary
finding recorded by the trial Court. Under such circumstances, I am of
the opinion that the appeal being meritless deserves to be dismissed
and the judgment and order deserves to be quashed and set aside.
9. In view of the above facts, the appeal is allowed. The impugned
judgment and order dated 25.03.2003 passed by the learned Judge,
Court No.15, Ahmedabad in Civil Suit No. 111 of 1989 is quashed and
set aside. If the amount of compensation is not deposited then the
same shall be deposited by respondent No.2 before the concerned
trial Court within a period of eight weeks from the date of receipt of
the copy of this order. The respondent No.2 - District Panchayat is
directed to pay the compensation to the tune of Rs.75,000/- to
appellant - Sanjay @ Shivabhai S/o. Bhavabhai Devsibhai after
verification of his bank details through RTGS / NEFT. Registry is
directed to transmit back the record and proceedings to the
concerned Court forthwith. Pending civil application/s shall stand
disposed of accordingly.
(HEMANT M. PRACHCHHAK,J)
V.R. PANCHAL
