Gujarat High Court
Mansuba Desarubhai Jesar vs Deputy Executive on 10 July, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
C/FA/4575/2008 JUDGMENT DATED: 10/07/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4575 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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MANSUBA DESARUBHAI JESAR & 3 other(s)
Versus
DEPUTY EXECUTIVE & 2 other(s)
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Appearance:
MR VICKY B MEHTA(5422) for the Appellant(s) No. 1,2,3,4
MS RV ACHARYA(1124) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE DIVYESH A. JOSHI
Date : 10/07/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE DIVYESH A. JOSHI) Page 1 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023 C/FA/4575/2008 JUDGMENT DATED: 10/07/2023
1. In this case, the deceased came in contact with the live wire and met with the death due to electrocution, therefore, legal heirs of the deceased filed suit of tort for getting the amount of compensation from the respondent authorities. Notice was issued by the Honourable Court and the respondents appeared and raised their objections about the maintainability of the suit and denied the claim. Both the parties have laid evidence before the Court below and after considering and appreciating the evidence available on record, learned 3rd Additional Senior Civil Judge, Bhavnagar, has dismissed the suit on 11.01.2008.
2. Being dissatisfied and aggrieved with the said judgment and award passed in Special Civil Suit No.156 of 2003, present First Appeal is filed by the legal heirs of the deceased by raising manifold grounds. Notice issued by this Court in present appeal is duly served upon the respondent and learned advocate, Ms.R.V.Acharya appears on behalf of the respondent electricity Board.
3. The facts of the case are narrated in nutshell as under:-
3.1 On 04.09.2002, the deceased was returning back along with one Jinabhai Vaghabhai Gohil, who were interstate brother, after finishing their agriculture work from the field. At that time, suddenly, they heard screaming from Manjuben Shivabhai Gohil, who was caught in electric shock and current was passing through her body. Therefore, the deceased along with Jinabhai ran to save Manjuben and during this process of Page 1 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023 C/FA/4575/2008 JUDGMENT DATED: 10/07/2023 saving Manjuben, deceased also caught shock and fell on the ground. Thereafter, he was taken to Mansinghji Hospital for treatment, where he was declared 'dead'. Admittedly, the accident happened due to sudden fall of electric wire, which is maintained by the respondent-department and the deceased died while trying to save Manjuben. That, the deceased was the only bread earner of the family and was earning Rs.3 to 3.5 lakh per annum.
3.2 In pursuance of aforesaid incident, the appellants preferred Special Civil Suit No.156/2003 to get compensation of Rs.25 Lakhs on account of sad demise of the deceased, due to negligence of the opponent department in not checking and maintaining their electric wires, which can take away lives of people.
3.3 It is also stated that another Jinabhai Vaghabhai Gohil, who along with deceased, tried to save Manjuben had also died in the said incident due to electric shock. That, the legal heirs of said Jinabhai Vaghabhai Gohil also preferred Special Civil Suit No.218/2003 before learned 8th Additional Senior Civil Judge to get compensation of Rs.13 lakhs on the same ground as mentioned by the present appellants in Special Civil Suit No.156/2003. That, learned 8th Additional Senior Civil Judge by his order dated 31.12.2007 was pleased to award the compensation of Rs.3,19,000/- by partly allowing the suit and the said compensation was ordered to be paid along with the interest @ 8% per annum by the respondents and the said Suit was decreed accordingly.Page 2 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023
C/FA/4575/2008 JUDGMENT DATED: 10/07/2023 3.4 It is also the case of the appellants that said Jinabhai Vaghabhai Gohil also died on account of sudden shock and that the deceased also died in the said incident on account of sudden shock and both of them were trying to save Manjuben. It is stated that though the facts and circumstances leading to death of said Jinabhai Vaghabhai Gohil and the deceased were the same, learned Civil Judge decreed one suit filed by the legal heirs of said Jinabhai Vaghabhai Gohil and dismissed another suit filed by present appellants, legal heirs of the deceased.
3.5 It is also stated that though the facts leading to filing of the suit by present appellants were similar, learned 3 rd Additional Senior Civil Judge, Bhavanagar, by his order dated 11.01.2008 was pleased to dismiss the suit filed by present appellants. Being aggrieved and dissatisfied with the judgment and award dated 11.01.2008 passed in Special Civil Suit No.156/2003 by learned 3rd Additional Senior Civil Judge, Bhavnagar, the appellants have filed present appeal.
4. Learned advocate, Mr.Vicky Mehta appearing for the appellants has submitted that the judgment and order passed by the Court below is capricious, erroneous and against the principles of law, and it is required to be quashed and set aside. Learned advocate, Mr.Mehta has submitted that at the time of appreciating the evidence, learned Judge has conveniently discarded certain evidence available on record and given importance to the evidence which is less important in the eye of law and, by doing so, learned Judge has Page 3 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023 C/FA/4575/2008 JUDGMENT DATED: 10/07/2023 committed grave error which is required to be rectified by this Honourable Court by allowing present First Appeal.
4.1 Learned advocate, Mr.Mehta has submitted that entire sequence of events is to be seen in toto and from the evidence available on record, it is found that one live wire fell from the electric pole and one Manjuben Shivabhai Gohil come in contact with said live-wire and due to which she sustained burn injuries on her palm and she started screaming to save her life. Upon hearing her shouts, the deceased and one Jinabhhi went to the spot to save Manjuben. With the help of the stick, they tried to save Manjuben, however, in the process, body of Jinabhai and the deceased came in contact with live wire. As the current was passing through said wire, they sustained injuries and ultimately succumbed to it. Thereafter, immediately people have gathered at the place of incident and the electric supply was disconnected and they were taken to the hospital for the purpose of treatment but before they could reach the hospital, deceased had already passed away. In short, in the incident, Manjuben has sustained burn injuries on her palm and Jinabhai passed away and the deceased also lost his life. This fact is undisputed and admitted by all the parties.
4.2 Learned advocate, Mr.Mehta also submitted that legal heirs of the deceased Jinabhai filed a suit of tort to recover the amount of compensation from the respondent Board. After considering the evidence available on record, learned Judge has allowed the suit filed by the heirs of Jinabhai. He has submitted that though the facts of the present case are similar Page 4 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023 C/FA/4575/2008 JUDGMENT DATED: 10/07/2023 to that of Jinabhai, learned Judge has dismissed the suit filed by present appellants. It is observed by the learned Judge that by coming in contact with live wire Manjuben has sustained injuries and it was seen by the deceased, then also he tried to save her life along with Jinabhai and they came in contact with the live wire. Accordingly, it is observed that though the deceased was knowing fully well about the live wire and the current passing through it, they have tried to save Manjuben and this action on the part of the deceased was considered as negligence on his part. It is found that in view of the above, the electric Board cannot be saddled with the liability to pay the amount of compensation. It is found by the learned Judge that with open eyes, the deceased had gone to save a person from live wire and this action on the part of the deceased was a mistake and due to his negligence such accident has occurred and, therefore, legal heirs of the deceased are not entitled to get any compensation due to his negligence.
4.3 Learned advocate, Mr.Vicky Mehta has further submitted that the reasons assigned by the learned Judge are not palatable and believable that certain unscrupulous villagers used to apply hook on the live wire to commit theft of electricity and due to such activities at regular interval the wire was damaged and it ultimately fell down. It is found by learned Judge that there was no fault on the part of the electricity Board and by placing reliance upon the principle of law of tort, liability cannot be fastened on the head of the electricity Board.
Page 5 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023C/FA/4575/2008 JUDGMENT DATED: 10/07/2023 4.4 Learned advocate, Mr.Vicky Mehta has further submitted that in the emergent situation, action and reaction of the persons would always defer from person to person and there are all possible chances that in different situations different persons would act differently. It is an admitted fact that Manjuben is a relative and neighbour of the deceased and upon seeing her in shock and suffering due to electric shock, as a natural reaction, the deceased has gone to save her life but he himself came in contact with live wire and sustained injuries and ultimately lost his life. He has further submitted that no person would lose his life just to get compensation and intention of the decaesed was to save life of Manjuben from the clutches of the live wire but unfortunately he himself was caught in live wire and lost his life, therefore, the action of the decased cannot be considered as negligent act. At the most, it can be said that the deceased was aware that there is danger to his life, if he goes to save the life of Manjuben even then, he has done the said act. By no stretch of imagination, the act of the deceased can be considered as "negligent act". Mr.Mehta has also submitted that based upon same facts and same set of evidence in another case of deceased Jinabai, the Court has found merit and the electricity company is held liable and directed to pay the amount of compensation.
4.5 Mr.Mehta, learned advocate for the appellants has further submitted that it is the duty of the electricity Board to regularly inspect and verify the quality of the wires and if any part is found to be faulty or defective, the same is required to be corrected by the Board. He has further submitted that even Page 6 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023 C/FA/4575/2008 JUDGMENT DATED: 10/07/2023 if somebody tries to pilferage the electricity by applying the hooks in the live wire, and it is within the knowledge of the Board and its officers, in that situation, it is their duty to initiate appropriate legal action against such persons to curb the threat of pilferage of electricity. He has also submitted that apparently it is the mistake on the part of the officers of the electricity Board in not properly maintaining the electricity wire and, therefore, the incident of snapping of live wire has occurred, due to which two innocent persons have lost their lives aned one lady has sustained severe burn injury, and, therefore, the Board should be held liable to pay compensation. Mr.Mehta has further submitted that considering the above facts this is a fit case wherein indulgence of the Court is required and, considering and appreciating the documentary evidence and material on record, the impugned judgment and order is required to be quashed and set aside by allowing present First Appeal. He has further submitted that the accident has occurred in 2002 and till date the heirs of the deceased have not received any amount of compensation despite the fact that there was clear violation of norms on the part of the electricity Board. He has submitted that the incident might have occurred due to heavy storm in rainy season, as the land was wet and the electric current was passing through the land. He has submitted that there is no eye witness to the incident and only after hearing the screams of all the three persons, other villagers have gathered. He has submitted that the complaint is given by Manjuben, wherein allegations were levelled against the officers of the electricity Board regarding their negligence.
Page 7 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023C/FA/4575/2008 JUDGMENT DATED: 10/07/2023 Learned advocate Mr.Mehta has relied upon the judgment and award passed in another claim petition filed by the heirs of the deceased-Jinabhai and prayed that present First Appeal may be allowed.
5. On the other hand, learned advocate, Ms.R.V.Acharya has supported the impugned judgment and submitted that as soon as the incident has occurred the officers of the Board, disconnected the electricity supply and reached the place of incident. She has further submitted that they have prepared the Inspection Report and said Inspection Report is also placed on record and after putting reliance upon said report, learned Judge has passed the impugned judgment and award. It is an admitted fact that certain unscrupulous villagers used to hook the high tension wire to commit theft of electricity and, due to such illegal activity of pilferage of electricity, the wire got damaged and this incident might have happened. She has further submitted that since the incident has happened during rainy season, there are all possibilities that due to heavy storm the damaged wire might have trapped down from the pole and due to that the incident might have happened. She has further submitted that some days before the incident, the officers of the electricity Board have checked the line and, therefore, it can safely be said that there was no fault on the part of the officers of electricity Board. She has further submitted that Manjuben came in contact with live wire and while trying to save her, Jinabhai also came in contact with the wire and lost his life and, despite knowing this fact the deceased has tried to save them from the electric current with his bear hands and, Page 8 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023 C/FA/4575/2008 JUDGMENT DATED: 10/07/2023 ultimately, he also came in contact with the live wire and succumbed to the injuries. She has also submitted that the deceased was fully aware of the danger due to his action and he has lost his life due to his own mistake. She has further submitted that, therefore, it can be said that there was negligence on the part of the deceased and the learned Judge has not committed any mistake while passing the impugned award. She has also submitted that there was no fault on the part of the officer of the electricity Board and, therefore, they cannot be saddled with the liability to pay compensation. She has submitted that considering the above factual aspects, this is a fit case wherein the impugned judgment and award is required to be maintained by dismissing present First Appeal.
6. Heard learned advocates appearing for the parties and considered the material placed on record. It is not in dispute that the incident in question has occurred on the fateful day and the deceased lost his life due to electric shock while trying to save Manjuben. It is also not in dispute that one another Jinabhai had also lost his life in the same incident and Special Civil Suit No.218 of 2003 filed by heirs of Jinabhai is allowed by the trial Court on 31.12.2007 by awarding compensation of Rs.3,19,000 with 6% interest.
7. The main contention advanced by the Board is that Manjuben came in contact with live wire and while trying to save her, Jinabhai came in contact with the wire and lost his life and, despite seeing this, the deceased tried to save them from the electric current with his bare hands and, ultimately, Page 9 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023 C/FA/4575/2008 JUDGMENT DATED: 10/07/2023 he also came in contact with the live wire and due to electric shock he also died. It is also submitted that the deceased was fully aware of the danger of action and, therefore, it can be said that there was negligence on the part of the deceased. It is also submitted that as soon as the incident has occurred, the officers of the Board, disconnected the electricity supply and reached the place of incident. It is also submitted that some days before the incident, the officers of the electricity Board have checked the line and, there was no fault on the part of the electricity Board. Defence is also taken that certain unscrupulous villagers might have tried to siphon the energy for their own use and the said act of pilferage was done clandestinely without even the notice of the Board; and that the line got damaged because of the hook and, therefore, incident might have happened.
8. At this stage, we may refer to Rule 46 of the Indian Electricity Rules, 1956 which provides that periodical inspection and testing of the installation must have to be done, which reads as under:-
"Where an installation is already connected to the supply system of the supplier, every such installation shall be periodically inspected and tested at intervals not exceeding five years either by the Inspector [or any officer appointed to assist the Inspector] or by the supplier as may be directed by the State Government in this behalf of [in the case of installation belonging to, or under the control of the Central government, and] in the Page 10 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023 C/FA/4575/2008 JUDGMENT DATED: 10/07/2023 case of installation in mines, oilfields and railways by the Central Government."
8.1 In view of above statutory procedure, it is clear that Board has to inspect and test the installation at regular intervals not exceeding five years and that has to be done through Inspector or the supplier as directed by the State Government.
9. We may also refer to the decision of the Apex Court in the case of Madhya Pradesh Electricity Board vs Shail Kumari And Others reported in (2002) 2 SCC 162, the Honourable Apex Court has held as under:-
"7. It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into it the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the Board that somebody committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is the look out of the managers of the supply system to prevent such pilferage by installing Page 11 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023 C/FA/4575/2008 JUDGMENT DATED: 10/07/2023 necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps.
8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.
9. The doctrine of strict liability has its origin in English Common Law when it was propounded in the celebrated case of Rylands v. Fletcher (1868 Law Reports (3) HL 330). Blackburn J., the author of the said rule had observed thus in the said decision:
"The rule of law is that the person who, for his own purpose, brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril; and if he does so he is prima facie answerable for all the damage which is the natural consequence of its escape."
10. There are seven exceptions formulated by means of case law to the doctrine of strict liability. It is unnecessary to Page 12 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023 C/FA/4575/2008 JUDGMENT DATED: 10/07/2023 enumerate those exceptions barring one which is this. "Act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule doe snot apply". (vide Page 535 Winfield on Tort, 15th Edn.)
11. The rule of strict liability has been approved and followed in many subsequent decision in England. A recent decision in recognition of the said doctrine is rendered by the House of Lords in Cambridge Water Co. Ltd. v. Eastern Counties Leather Plc. {1994(1) All England Law Reports (HL) 53}. The said principle gained approval in India, and decisions of the High Courts are a legion to that effect. A Constitution Bench of this Court in Charan Lal Sahu v. Union of India and a Division Bench in Gujarat State Rod Transport Corporation v. Ramanbhai Prabhatbhai had followed with approval the principle in Rylands v. Fletcher. By referring to the above two decisions a two Judge Bench of this Court has reiterated the same principle in Kaushnuma Begum v. New India Assurance Co. Ltd. {2001 (2) SCC 9}.
12. In M.C. Mehta v. Union of India this Court has gone even beyond the rule of strict liability by holding that "where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on any one on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability is not subject to any of the exceptions to the principle of strict liability under the rule in Rylands v. Fletcher."
10. In view of above legal provision, it can be said that it is the duty of the Board to to inspect and test the installation at regular intervals not exceeding five years. Since the respondent Board is involved in supply of electricity, as per aforesaid decision, if the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into Page 13 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023 C/FA/4575/2008 JUDGMENT DATED: 10/07/2023 it the primary liability to compensate the sufferer is that of the supplier of the electric energy. It is also the added duty of the Board to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live. It is no defence on the part of the management of the Board that somebody committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is the look out of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped, the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability".
11. In view of above, the respondent-Board is liable to pay compensation to the heirs of the deceased. In the present case, the deceased was aged about 40 years at the time of incident and was doing agricultural activity. It has come on record that he was the sole earning member of his family and there is not serious dispute to said fact. The appellants have Page 14 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023 C/FA/4575/2008 JUDGMENT DATED: 10/07/2023 claimed compensation of Rs.25 Lakhs, which is denied by the learned trial Court. Considering the fact that heirs of deceased Jinabhai are granted compensation and also considering above legal position, the respondent-Board is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. Therefore, in the present case, the respondent-Board is liable to pay compensation to the heirs of the deceased, who has died due to electric shock suffered by him, while trying to save Manjuben. Since there is no proof of income of the deceased on record, notional income of the deceased is required to be taken into consideration as per Schedule-II attached to Section 163-A of the Motor Vehicles Act 1988, for the purpose of fixing compensation. We are of the view that the notional income is required to be fixed by taking into account the inflation, devaluation of the rupee and cost of living. In view of above, we deem it proper to take Rs.3,000/- per month as income of the deceased and, therefore, it would come to Rs.36,000/- per annum in case of deceased.
12. In view of the above, we deem it appropriate to take notional income of the deceased at Rs.36,000/- (Rupees Thirty Six Thousand only) per annum. Out of this amount, if 1/3rd is deducted towards personal expenses, annual income of the deceased would come to Rs.24,000/-. Since the deceased was aged about 40 years at the time of the incident, multiplier of '15' is applicable, as prescribed in Schedule-II. Therefore, the amount of compensation would come to Rs.3,60,000/- (Rs.24,000/- X 15). The appellants are also entitled to a sum of Page 15 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023 C/FA/4575/2008 JUDGMENT DATED: 10/07/2023 Rs.2,000/- towards funeral expenses and Rs.5,000/- towards loss of consortium. Thus, the appellants are entitled to the following amounts towards compensation:-
(a) Loss of Dependency : Rs. 3,60,000-00
(b) Loss of Consortium : Rs. 5,000-00
(c) Funeral Expenses : Rs. 2,000-00
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Total : Rs. 3,67,000-00
13. Accordingly, the appellants are entitled for a sum of Rs.3,67,000/- (Rupees Three Lacs Sixty Seven Thousand only). It is further directed that the claimants would be entitled to receive the compensation with interest at the rate of 9% per annum from the date of the application till disbursement of the amount. The present respondent-Board is directed to deposit the amount within a period of ten (10) weeks from the date of receipt of writ of the order of this Court.
14. In the result, the appeal is allowed to above extent. The impugned judgment and award dated 11.01.2008 passed in Special Civil Suit No.156/2003 by learned 3 rd Additional Senior Civil Judge, Bhavnagar, is hereby quashed and set aside. No order as to costs. Record & Proceedings, if any, be sent back to the concerned Tribunal.
Sd/-
(ASHUTOSH SHASTRI, J) Sd/-
(DIVYESH A. JOSHI,J) R.S. MALEK Page 16 of 18 Downloaded on : Tue Jul 11 20:41:57 IST 2023