Gujarat High Court
Torrent Power Ltd vs Bismillahbibi Wd/O. ... on 4 May, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/FA/4673/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 4673 of 2007
With
CROSS OBJECTION NO. 112 of 2008
In
FIRST APPEAL NO. 4673 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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TORRENT POWER LTD.....Appellant(s)
Versus
BISMILLAHBIBI WD/O. MAHMADMIYAAEHMADMIYA SUMRA &
2....Defendant(s)
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Appearance:
MR KB PUJARA, ADVOCATE for the Appellant(s) No. 1
MR JF MEHTA, ADVOCATE for the Defendant(s) No. 1 - 2
RULE SERVED BY DS for the Defendant(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 4/05/2017
ORAL JUDGMENT
1. The present First Appeal has been preferred by the Appellant / Page 1 of 22 HC-NIC Page 1 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT Original Defendant under Section 96 of the Code of Civil Procedure being aggrieved with the impugned judgment and order in Civil Suit No. 3980 of 1989 passed by the City Civil and Sessions Court, Ahmedabad dated 20.8.2007 on the ground stated in the memo of Appeal inter alia that the trial court has failed to appreciate that there is no fault on part of the Appellant / Original Defendant Company for the death by electrocution. It is also contended that it was the deceased who himself was liable for electrocution as the incident occurred while removing the hanging snapped electrical wire. It is also contended that the court below ought to have appreciated that it is the primary liability of Plaintiff to prove the negligence of the Defendant. It is also contended that the trial court has failed to appreciate the law laid down by the Hon'ble Apex Court in a judgment in case of SDO. Grid Corporation of Orissa Ltd. and Ors. v. Timudu Oram reported in (2005) 6 SCC 156 wherein it has been held that for tortuous liability, the negligence is required to be established by the claimant. Merely because the claimant has suffered would not be sufficient for awarding compensation.
2. Heard learned Counsel Shri K.B.Pujara for the Appellant and learned Counsel Shri J.F.Mehta for the Respondents.
3. Learned Counsel Shri Pujara appearing for the Appellant / Original Page 2 of 22 HC-NIC Page 2 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT Defendant referred to the background of the facts and submitted that on 5.3.1985 in the afternoon when the deceased was passing through the road, an over head line was passing and the accident occurred. Learned Counsel Shri Pujara referred to the background of the facts and submitted that the aspect of negligence has not been appreciated by the court below. He has referred to the written statement Exh.15 and pointedly referred to the contention raised that as the line had tripped at 4:25 pm the Engineer of the Defendant Company was patrolling the said line, and as no fault was found on the line, the line was energized at 4:42 pm. He submitted that at 4:50 pm a message was received from the Chakudia Mahadev area that the conductor was broken and the electrician had visited the site and he rushed the Amraiwadi Sub Station Operator to switch of the said over head line. He therefore submitted that the reasons possible for the said accident are enumerated and strenuously submitted that the mischief by human being is one of the cause like the deceased may have touched the hanging line resulting in the accident. Learned Counsel Shri Pujara submitted that as could be seen from the record and the background of the facts, the deceased himself was also under an obligation to take proper care and the accident would have been avoided if he was not negligent. He therefore submitted that the aspect of Page 3 of 22 HC-NIC Page 3 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT negligence has not been appreciated properly by the court below.
4. Learned Counsel Shri Pujara referred to the deposition of the Engineer of the Appellant / Original Defendant Company at Exh. 45 and emphasized that as stated the shock could have been received while touching the hanging wire. He also referred to the deposition of the officer at Exh.49. Learned Counsel Shri Pujara therefore submitted that there is no evidence regarding negligence of the Appellant / Original Defendant Company. Learned Counsel Shri Pujara submitted that even if the wire was hanging or snapped, the court has not considered that necessary steps were taken for the repair. He again submitted that immediately the instructions were given to stop the line. However, in the meanwhile as the luck would have been, the deceased passed on the road and the hanging wire caused the accident, for which the negligence may not be attributed to the Appellant / Original Defendant Company.
5. Learned Counsel Shri Pujara submitted that there has to be a positive evidence of negligence. In support of this contention, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of SDO. Grid Corporation of Orissa Ltd. and Ors. v. Timudu Oram (supra).
6. Learned Counsel Shri Pujara submitted that the liability is fastened on the Appellant / Original Defendant Company without any Page 4 of 22 HC-NIC Page 4 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT evidence of negligence. He strenuously submitted that there has to be a positive evidence with regard to the negligence of the Appellant / Original Defendant Company before it could be fastened with the liability. Learned Counsel Shri Pujara submitted that merely because the death has occurred, it may not be presumed that there was a negligence on part of the Appellant / Original Defendant Company and it does not justify inference for that without any evidence.
7. Learned Counsel Shri Pujara submitted that in fact even the court below has accepted the contributory negligence of the deceased which would suggest that partly he was negligent. Learned Counsel Shri Pujara submitted that for the purpose of apportionment of liability, there is no evidence or material, on the basis of which, it could be apportioned. Alternatively, learned Counsel Shri Pujara submitted that the negligence could have have been apportioned equally between the Appellant and the deceased.
8. Learned Counsel Shri Pujara referred to the issue with regard to the quantum and submitted that the court may consider the same with regard to the aspect of income.
9. Learned Counsel Shri J.F.Mehta for the Respondents / Original Plaintiffs referred to the background of the facts and the paper - book and submitted that as it is evident, the wire was hanging when Page 5 of 22 HC-NIC Page 5 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT the deceased was passing on the road, it fell resulting in electrocution and death of the deceased. He therefore submitted that the contention which is sought to be raised that the deceased has picked up the wire is misconceived. Learned Counsel Shri Mehta submitted that if the over head line is passing, the liability for maintenance is with the Appellant / Original Defendant Company. It is an admitted fact that the wire fell all of a sudden when the deceased was passing on the road resulting in the accident. He therefore submitted that it is for the Appellant to explain how the wire of the line could fall all of a sudden. He also referred to the Panchnama Exh.19 and submitted that it records that the wire had fallen all of a sudden and had fallen on the deceased and the deceased died due to electrocution. Learned Counsel Shri Mehta submitted that the averments in the complaint are therefore clearly established and would demonstrate the manner in which the accident had occurred. He submitted that in the written statement filed by the Appellant / Original Defendant Company it has been admitted that the live wire was there and the conductor had broken. He submitted that as the supply was not stopped, it resulted in the accident. He emphasized that as stated in the written statement, two officers had patrolled the line at 4:24 hrs. on 5.3.1989, and thereafter, as it is stated, at 4:50 the message was received that the Page 6 of 22 HC-NIC Page 6 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT conductor was broken. He submitted that how the conductor had broken if it was properly maintained is for the Appellant / Original Defendant Company to explain. Learned Counsel Shri Mehta submitted that it is the duty or the obligation of the Appellant / Original Defendant Company who is a licensee under the Indian Electricity Act to maintain the line. He submitted that it is an statutory obligation and the duty is cast upon the licensee which cannot be avoided. Learned Counsel Shri Mehta therefore submitted that as the live wire had fallen on the deceased who was passing on the road would clearly suggest that there could not be any fault on his part. He submitted that the court below has committed an error in holding him liable for contributory negligence. Learned Counsel Shri Mehta submitted that the negligence is not required to be established on principles of strict liability. He submitted that the negligence on part of the Appellant / Original Defendant Company is established that they have failed to maintain the line by taking proper care resulting in sudden breaking of the wire. He submitted that even if the deposition of the two officers of the Appellant / Original Defendant Company are considered, it would establish that the hanging wire had fallen, and therefore, as it is a case of strict liability there is no question of any contributory negligence or apportionment of the Page 7 of 22 HC-NIC Page 7 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT negligence.
10.Learned Counsel Shri Mehta submitted that the maintenance of the line is the statutory duty or the obligation of the Appellant / Original Defendant Company which they have failed and neglected when the hanging wire has fallen on the road on the victim who was passing on the road itself would be sufficient to hold the Appellant liable on principle of strict liability. In support of his contention, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of M.P.Electricity Board v. Shail Kumar and ors. reported in AIR (2002) SC 551 (1) and pointedly referred to the observations made in paragraph 4, 8, 10 and 13 of the judgment. Similarly, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Indian Council for Enviro-Legal Action v. Union of India and ors. reported in AIR 1996 SC 1446 again to emphasize on the aspect of strict liability. He pointedly emphasized the observations made in head note 'D':
"Tort - Negligence - Person carrying on hazardous or inherently dangerous activity - Rule of absolute liability for damage caused laid down in AIR 1987 SC 1086, oleum gas lead case - Is appropriate and bringing."
11.Similarly learned Counsel Shri Mehta referred to and relied upon the judgment of the Hon'ble Apex Court in case of M.C.Mehta and anr. v. Union of India and ors. reported in AIR 1987 SC Page 8 of 22 HC-NIC Page 8 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT 1086 (1). Learned Counsel Shri Mehta submitted that much reliance placed on the judgment of the Hon'ble Apex Court in case of SDO. Grid Corporation of Orissa Ltd. v. Timudu Oram reported in (2005) 6 SCC 156 = AIR 2005 SC 3971 would not be applicable as it was an isolated case. Learned Counsel Shri Mehta also referred to the judgment of the High Court (Coram:
R.D.Kothari,J) reported in 2013 CJ (Guj) 823 in case of Torrent Power Limited v. Runu Gangaram Dakua and ors. and submitted that the judgment of the Hon'ble Apex Court in case of SDO. Grid Corporation of Orissa Ltd. v. Timudu Oram (supra) has been considered. He therefore submitted that even on the aspect of quantum of compensation the assessment is made in most reasonable and probable manner. However, he submitted that the contributory negligence of the deceased may be set aside. He submitted that the income of the deceased is believed to be Rs.1500/-. Out of the same, one third is deducted for personal expenses leaving Rs. 1000/- towards dependency benefit which is just and proper. He therefore submitted that the present Appeal may not be entertained.
12.In rejoinder, learned Counsel Shri K.B.Pujara for the Appellant / Original Defendant Company again referred to the papers and submitted that the written statement refers to the sequence of Page 9 of 22 HC-NIC Page 9 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT events that the officers had visited for inspection and, as it was found in order, it was energized, and immediately thereafter, the accident had occurred. Therefore, he submitted that no fault could be attributed to the Appellant / Original Defendant Company. He emphasized that whether it can be said that the Appellant / Original Defendant was negligent. Learned Counsel Shri Pujara submitted that the principle of strict liability would not mean that the presumption could be made for negligence irrespective of the precaution taken. He therefore submitted that in the facts of the case it would suggest that the care has been taken and therefore the burden would shift on the Respondents / Original Plaintiffs to establish the negligence, and therefore, the judgment of the Hon'ble Apex Court in case of SDO. Grid Corporation of Orissa Ltd. v. Timudu Oram (supra) would apply.
13.Lastly, learned Counsel Shri Pujara submitted that as the trial court has accepted the contributory negligence and the apportionment has been made to the extent of 20% and 80% it is without any basis. The reason does not specify about the apportionment of the liability. He therefore submitted that, at the most, it could have been apportioned equally i.e. 50% and 50% for the Appellant and the deceased. He therefore submitted that the Appeal may be allowed. Similarly, learned Counsel Shri Pujara referred to Exh.17 Page 10 of 22 HC-NIC Page 10 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT issues and submitted that the court below has cast the burden on the Appellant / Original Defendant Company.
14.In view of the rival submissions it is required to be considered whether the present Appeal deserve consideration.
15.As it transpires from the background of the facts and the material and evidence on record, it is not in dispute that the deceased died while passing on a road when the high tension electric wire all of a sudden had fallen and he died due to electrocution. Learned Counsel Shri Pujara appearing for the Appellant / Original Defendant Company referred to the papers at length as recorded herein above with much details to emphasize that the Appellant / Original Defendant Company cannot be saddled with the liability unless the negligence is established. For that purpose, referring to the papers particularly the contention in the written statement he has tried to emphasize that the officers of the Appellant Company patrolled the over head line on 5.3.1989 at 4:25 hrs as the line was tripped. Thereafter, as no fault was found, it was energized. and at 4:50 hrs , a message was received that the conductor was broken and in the meanwhile the accident occurred. Learned Counsel Shri Pujara therefore had tried to say that the fact that the officers had gone for the patrolling to inspect the line and only after proper verification it was energized and therefore the negligence which Page 11 of 22 HC-NIC Page 11 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT has been discussed has to consider that the deceased would have touched the hanging over head line and therefore even the trial court has accepted the contributory negligence. However, these submissions which have been canvassed to emphasize the point that there is no negligence of the Appellant / Original Defendant, require a closer scrutiny on the basis of the facts and material and evidence.
16.It is not in dispute that the over hanging line had fallen all of a sudden as it is evident from the Panchnama Exh.19. It is also clear that as per the provisions of the Indian Electricity Act and the Rules, the licensee like the Appellant / Original Defendant is under the obligation to maintain the line. Therefore to say that the officers have visited the line and after it was found in order it was energized and something has happened, the liability for which should not be saddled with the Appellant / Original Defendant Company, is misconceived. Even as per the written statement, it has been clearly stated that the message was received that the conductor was broken, meaning thereby, something has happened and the conductor had broken and the high tension electric wire had fallen on the road as stated in the panchnama. Therefore, accepting the statements and the contentions at the face value as it is, the fact remains that the officers had patrolled but they had not Page 12 of 22 HC-NIC Page 12 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT been able to find any fault or any defect, otherwise, when they patrolled and inspected the line at 4:25 hrs and at 4:50 hrs, the message was received that the conductor is broken, itself suggest the manner in which the supervision is made. Be that as it may it is not in dispute that the conductor was broken which led to the falling of the over head line on the road when the deceased was passing and he died due to electrocution. Further, the deposition of the officer of the Appellant / Original Defendant Company at Exh.45 make it clear that as the line was tripped they had gone but they had not found any defect and he himself has stated that the conductor was broken. In his deposition at Exh.45 he has stated about the fact that the conductor was broken between the two poles and there was also the earth wire broken. This itself would suggest about the maintenance of the line. Therefore, when the Appellant / Original Defendant Company is under an obligation to maintain the line, it is their liability to see that such incidents are averted or avoided. If any such incident by which suddenly the conductor is broken and the wire has fallen on the road they cannot escape the liability. Therefore, the submission made by learned Counsel Shri Pujara with much emphasis that there has to be negligence found is misconceived even while considering the aspect of negligence apart from the strict liability.
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17. Moreover, as rightly submitted by learned Counsel Shri J.F.Mehta for the Respondents the concept of strict liability would make the aspect of negligence irrelevant inasmuch as the strict liability cast an obligation upon the authority or the entity like the licensee and the Appellant / Original Defendant Company to take proper care to avoid any such mishap. It is the absolute liability while undertaking the maintenance of such lines that no such incident takes place. For whatever reason if such incident had occurred, the liability has to be accepted by the licensee like the Appellant / Original Defendant and the submissions made that unless the negligence is established, the liability cannot be fastened, is misconceived.
18. The Hon'ble Apex Court in case of M.P. Electricity Board v. Shail Kumar reported in AIR 2002 SC 551 and emphasized the observations made in paragraph 7:
"It is an admitted fact that the responsibility to supply elecltric 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 if 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 Page 14 of 22 HC-NIC Page 14 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT 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 of his private property and that the electrocution was from such diverted line. It is the look out the managers of the supply system to prevent such pilferage by installing 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."
19. The Hon'ble Apex Court has also in a judgment in case of Madhya Pradesh Electricity Board vs Shail Kumari And Ors. reported in AIR 2002 SC 551 (1) has made the observations:
"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 Page 15 of 22 HC-NIC Page 15 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT 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."
It is further observed;
"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."
It has been further observed;
"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}.
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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."
20. Moreover, the Hon'ble Apex Court in a judgment in case of Indian Council for Enviro-Legal Action v. Union of India and ors reported in AIR 1996 SC 1446 considering the issue with regard to the hazardous or inherently dangerous activity and the rule of absolute liability for damages as referred to the earlier judgment of the Hon'ble Apex Court in case of M.C.Mehta v. Union of India and ors., reported in AIR 1987 SC 1086 has again referred to the aspect of the strict liability. It has been observed in this judgment in paragraph 31 referring to the principle of strict liability under the rule in case of Reyland v. Fletcher reported in (1868) LR 3 HL 330:
"The liability under this rule is strict and it is no defence that the thing escaped without that person's wilful act, default or neglect or even that he had no knowledge of its existence. This rule laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to Page 17 of 22 HC-NIC Page 17 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT compensate for the damage caused. Of course, this rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority. Vide Halsbury Laws of England, Vol. 45 para 1305. ................................................................................................. We need not feel inhibited by this rule which was evolved in this context of a totally different kind of 843 economy. Law has to grow in order to satisfy the needs of the fast changing society and keep abreast with the economic developments taking place in the country. As new situations arise the law has to be evolved in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms Which would adequately deal with the new problems which arise in a highly industrialised economy. We cannot allow our judicial thinking to be constricted by reference to the law as it prevails in England or for the matter of that in any other foreign country. We no longer need the crutches of a foreign legal order. We are certainly prepared to receive light from whatever source it comes but we have to build up our own jurisprudence and we cannot countenance an argument that merely because the new law does not recognise the rule of strict and absolute liability in cases of hazardous or dangerous liability or the rule as laid down in Rylands v. Fletcher as is developed in England recognises certain limitations and responsibilities. We in India cannot hold our hands back and I venture to evolve a new. principle of liability which English courts have not done. We have to develop our own law and Page 18 of 22 HC-NIC Page 18 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT if we find that it is necessary to construct a new principle of liability to deal with an unusual situation which has arisen and which is likely to arise in future on account of hazardous or inherently dan- gerous industries which are concommitant to an industrial economy, there is no reason why we should hesitate to evolve such principle of liability merely because it has not been so done in England. ..........................................................................We would therefore hold that where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an acci- dent in the operation of such hazardous or inherently dan- gerous activity resulting, for example, in escape of toxic gas the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher (supra)."
21.Moreover, the Hon'ble Apex Court in a judgment in case of M.C.Mehta & Anr. v. Union of India and Ors. reported in AIR 1987 SC 1086 has further observed:
"The enterprise must be held to be under an obligation to provide that the hazardous or inherently dangerous activity in which it is engaged must be conducted with the highest standards of safety and if any harm results on account of such activity, the enterprise must be absolutely liable to compensate for such harm and it should be no answer to the enterprise to say that it had taken all reasonable care and that the harm occurred without any negligence on its part."Page 19 of 22
HC-NIC Page 19 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT It is required to be mentioned that these observations have been made after considering the judgment of the Hon'ble Apex Court in case of Cambridge Water Co Ltd v. Eastern Counties Leather plc. Reported in 1994 (1) AER 53.
22. The submissions which have been made referring to the judgment of the Hon'ble Apex Court in case of SDO. Grid Corporation of Orissa Ltd. v. Timudu Oram (supra) would not have any application to the facts of the case as it was considered in the petition under Article 226 and therefore the observations have been made and it has been observed that the disputed questions of fact cannot be decided in exercise of jurisdiction under Article 226 and it is in that background the observations have been made which will not have any application as it is an appeal arising from the judgment of the trial court on appreciation of material and evidence.
23.However, one more aspect which require consideration is whether the impugned judgment and order holding the deceased liable for contributory negligence could be sustained in light of the discussion made herein above, both with regard to the negligence and doctrine of strict liability.
As discussed above, the deceased would have no role and could not Page 20 of 22 HC-NIC Page 20 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT be said to be negligent or contributed in the occurrence of incident in any manner, and therefore, the finding of the court below holding the deceased liable for contributory negligence to the extent of 20% cannot be sustained and deserve to be set aside. Further, as submitted by both the learned Counsels, there is no discussion with regard to the aspect of contributory negligence or the apportionment of the liability. It is in this background, the judgment of the court below attributing the contributory negligence to the deceased to the extent of 20% cannot be sustained and deserve to be set aside.
24.The aspect of quantum has been discussed and a very reasonable assessment of the income has b`een taken at Rs.1500/- and after deduction of one third for the personal benefit, the dependency benefit is taken at Rs.1000/- only adopting the multiplier of twelve, which is just and proper. Therefore, taking the dependency benefit at Rs.1000/- per month (i.e. 12 multiplier per annum). Thereafter adopting the multiplier of 12, the total dependency benefit would come to 12 x 12000 i.e. Rs.1,44,000/-. Moreover, the convention amount of Rs.30,000/- which is granted by the court below is maintained. Therefore, under all the heads, the awardable amount of compensation would come to Rs.1,74,000/- which the Appellant / Original Defendant Company is held liable to pay with interest Page 21 of 22 HC-NIC Page 21 of 22 Created On Wed Aug 16 22:20:31 IST 2017 C/FA/4673/2007 JUDGMENT @ 8% from the date of filing of the suit till the realization. The present First Appeal therefore stands dismissed subject to the aforesaid modification for the reasons recorded herein above.
25.The Cross-Objection filed by the Respondents / Original Plaintiffs accordingly stands allowed.
(RAJESH H.SHUKLA, J.) JNW Page 22 of 22 HC-NIC Page 22 of 22 Created On Wed Aug 16 22:20:31 IST 2017