Gujarat High Court
(Gujarat Electricity Board) (Now ... vs Meghavi Rajendrakumar Shukla on 2 May, 2017
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/FA/883/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
FIRST APPEAL NO. 883 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
================================================================
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 ?
================================================================
(GUJARAT ELECTRICITY BOARD) (NOW DAKSHIN GUJARAT VIJ CO.LTD
SACHIN (RURAL) DIVISION,....Appellant(s)
Versus
MEGHAVI RAJENDRAKUMAR SHUKLA....Defendant(s)
================================================================
Appearance:
MR DIPAK R DAVE, ADVOCATE for the Appellant(s) No. 1
MR P A MEHD, ADVOCATE for the Defendant(s) No. 1
================================================================
CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 2/05/2017
ORAL JUDGMENT
Page 1 of 14
HC-NIC Page 1 of 14 Created On Wed Aug 16 13:41:44 IST 2017 C/FA/883/2004 JUDGMENT
1. The present First Appeal is filed by the Appellant (erstwhile Gujarat Electricity Board) [now Dakshin Gujarat Vij Co. Ltd.] under Section 96 of the Code of Civil Procedure being aggrieved with the impugned judgment and order in Special Civil Suit No. 234 of 1999 by the learned 3rd Joint Civil Judge (SD), Surat dated 31.3.2003, partly allowing the Suit for damages, on the grounds stated in the memo of the First Appeal.
2. It is contended that the court below has failed to consider the important aspect that the owner and contractor of Yadav Ni Chawl (the premises) had started construction of a building, and during construction, the incident had occurred, and therefore, the owner and contractor were also responsible for the incident. It is also contended that the owner and contractor had failed to comply with the rules and regulations and also getting the necessary permission for shifting the lines. It is therefore contended that the liability could not be saddled with the Appellant - Electricity Board for the incident. It is contended that the conclusion is arrived at by the court below that the Appellant - Electricity Board had the knowledge about the construction and had not shifted the High Tension Line ("HTL"), and therefore, it was the duty of the Appellant - Electricity Board to shift the HTL and to stop the Page 2 of 14 HC-NIC Page 2 of 14 Created On Wed Aug 16 13:41:44 IST 2017 C/FA/883/2004 JUDGMENT construction, which has not been fulfilled, resulting in accident, and therefore, it is the liability of the Appellant - Electricity Board.
3. Heard learned Advocate Shri Dipak R. Dave for the Appellant / Original Defendant and learned Advocate Shri P.A.Medh for the Respondent / Original Plaintiff.
4. Learned Advocate Shri Dipak R. Dave for the Appellant submitted that the Suit was bad for non-joinder and mis-joinder of the parties as the contractor was not made a party. Learned Advocate Shri Dave has referred to the judgment and also the Indian Electricity Rules and submitted that as per these Rules, the HTL was required to be shifted. However, there is no requisition made by the contractor requesting for such shifting of line and therefore the incident had occurred for which the Appellant - Electricity Board cannot be held liable. Learned Advocate Shri Dave submitted that the observations made in the judgment in paragraph 24 that the board for caution was not placed by the Board and therefore the Electricity Board may not be held liable.
5. Learned Advocate Shri P.A.Medh for the Respondent / Original Plaintiff referred to the R&P, the judgment and deposition of the witnesses to contend that it is the primary responsibility of the Appellant - Electricity Board and the HTL is required to be maintained with insulating material which is admittedly not found, Page 3 of 14 HC-NIC Page 3 of 14 Created On Wed Aug 16 13:41:44 IST 2017 C/FA/883/2004 JUDGMENT and therefore, the Appellant Electricity Board cannot escape the liability. He submitted that the aspect of construction by the contractor making some construction with permission or without permission is altogether a different issue. Learned Advocate Shri Medh submitted that to maintain the HTL wire is the duty of the licensee like the Appellant - Electricity Board, and if the wires are open and without insulation, which results in an accident, the Appellant - Electricity Board cannot take shelter of such excuse. He submitted that if the construction was without any approval or unauthorized construction, it should have taken the necessary steps. Learned Advocate Shri Medh submitted that the burden of proof would be on the Board as it is a case of Res ipsa loquitur when the HTL wire has fallen on a person resulting in the death for which she had no role and she is the victim of the negligence. Therefore, learned Advocate Shri Medh submitted that the Appellant - Electricity Bard should have taken care and precaution, and if it is proved that in spite of taking the precautions, the accident has occurred, then perhaps they may try to justify. Learned Advocate Shri Medh referred to and relied upon the judgment of 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:
Page 4 of 14
HC-NIC Page 4 of 14 Created On Wed Aug 16 13:41:44 IST 2017 C/FA/883/2004 JUDGMENT "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 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."
6. Learned Advocate Shri Medh submitted that assuming that there was a fault on part of the contractor or the owner of the building, the liability could be apportioned, and to that extent, the liability of the Appellant - Electricity Board would remain restricted, and therefore, such a contention based on non-joinder and mis-joinder of the party is misconceived. Learned Advocate Shri Medh Page 5 of 14 HC-NIC Page 5 of 14 Created On Wed Aug 16 13:41:44 IST 2017 C/FA/883/2004 JUDGMENT submitted that the Indian Electricity Act obliges the licensee to install and maintain the lines which is the sole responsibility of the licensee, and therefore it is immaterial whether the contractor is joined as a party or not. Learned Advocate Shri Medh emphasized the observations made paragraph 7 in the judgment of the Hon'ble Apex Court in case of M.P. Electricity Board v. Shail Kumar (supra). Learned Advocate Shri Medh had also referred to the observations made in paragraph 13 and 16 of the judgment wherein it has been observed:
"Merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding the live wire lying on the road."
7. Learned Advocate Shri Medh therefore submitted that it is the exclusive responsibility of the licensee Company like the Appellant
- Electricity Board which cannot wriggle out the liability on such a ground.
8. In rejoinder, learned Advocate Shri Dipak Dave for the Appellant - Electricity Board has referred to the judgment of the Hon'ble Apex Court in case of M.P. Electricity Board v. Shail Kumar (supra) and submitted that it is not applicable qua the facts as the construction in the present case is made unauthorizedly without the Page 6 of 14 HC-NIC Page 6 of 14 Created On Wed Aug 16 13:41:44 IST 2017 C/FA/883/2004 JUDGMENT knowledge of the Appellant - Electricity Board, and therefore, it would not have any application. The submission made by learned Advocate Shri Dipak Dave with regard to the 'burden of proof' is misconceived as the construction was made without the knowledge of the Appellant - Electricity Board, and therefore, the observations have been made regarding the knowledge on the basis of presumption. Learned Advocate Shri Dave therefore submitted that the present Appeal may be allowed.
9. In view of the rival submissions, it is required to be considered whether the present Appeal deserve consideration.
10. As could be seen from the background of the facts, the building over which the HTL of the Appellant - Electricity Board was passing was just two to three feet away from the terrace of the building. Therefore the Respondent / Original Plaintiff came in contact with the live wire as the left hand touched the wire resulting in the accident. It is required to be stated that the aspect of negligence over which the issue has been joined by the Appellant - Electricity Board with the findings, require a closer scrutiny on the basis of the evidence. The evidence of the witnesses that the HTL live wire was just two to three feet away from the terrace of the building itself would suggest about the manner in which the HTL is kept. Assuming that the building had Page 7 of 14 HC-NIC Page 7 of 14 Created On Wed Aug 16 13:41:44 IST 2017 C/FA/883/2004 JUDGMENT come up unauthorizedly and there was some alternation without required permission, even then, HTL is required to be regularly checked and it would have been noticed by the officers and the servants of the Appellant Board that it is too close to the terrace of the building where anyone could touch. Even apart from actual physical touch to the HTL, when the energy is passing, will have some effect, and therefore, it was obligatory on part of the officers of the Appellant - Electricity Board to take precautionary measure. The liability of the contractor or the nature of construction may be a separate issue. However, the line and the maintenance of the line is an exclusive function of the licensee like the Appellant - Electricity Board. They could have also at least taken some steps when in their checking it would have been noticed that such a HTL is too close to a building which is not permissible.
11.The another facet of the submission regarding non-joinder or mis- joinder is also misconceived inasmuch as even if it is assumed that there was a case of joint tortfeasor where the liability could be apportioned even though in that case the accident of liability of the Appellant - Electricity Board would stand restricted as per the apportionment. Therefore, it cannot be said that the court below has committed any error.
12.Therefore, once the aspect of negligence is proved with reference Page 8 of 14 HC-NIC Page 8 of 14 Created On Wed Aug 16 13:41:44 IST 2017 C/FA/883/2004 JUDGMENT to the statutory application under the Indian Electricity Act and the Indian Electricity Rules, which provide for the obligation on part of the Appellant - Electricity Board to look after and maintain such line. Indian Electricity Rules 1950 particularly Rule 50(1)(f), 91 and Rule 82 provide for the procedure for prior intimation with regard to the erection or alteration of the building which is required to be considered. As discussed above the Appellant - Electricity Board having failed to notice that the HTL is so close to the building, cannot take a stand that it was the negligence of the inhabitant of the building to avoid any such accident.
13. Reliance is placed by learned Advocate Shri Dipak Dave on Rule 82 of the Indian Electricity Rules with regard to the erection of or alteration to buildings, structures, flood banks and elevation of roads contending that the notice in writing is required to be given. Therefore, as the notice was not given of any such construction or alteration, the Appellant - Electricity Board had no knowledge and therefore could not be held liable is misconceived. Rule 82 of the Indian Electricity Rules provide for the procedure for the prior intimation with regard to the erection or alteration of the building.
14.The person in the building would naturally use the terrace and if the live wire of HTL is so close then anybody could touch the wire Page 9 of 14 HC-NIC Page 9 of 14 Created On Wed Aug 16 13:41:44 IST 2017 C/FA/883/2004 JUDGMENT resulting in an accident. It is not open for the Appellant - Electricity Board to contend about the contributory negligence having failed to take the necessary steps which it was obliged under the Indian Electricity Act read with the Indian Electricity Rules.
15. It is required to be stated that the reliance placed on the judgment of the Hon'ble Apex Court in case of M.P.Electricity Board v. Shail Kumari reported in 2002 (1) Supreme Today, Supreme Court of India 98 has considered the similar contention relying on the rule of strict liability in case of Rylands v. Fletcher, reported in (1868) LR 3 HC 330 and the same has been reiterated as stated above.
16. Moreover, as observed in a judgment of the Hon'ble Apex Court in case of M.P. Electricity Board v. Shail Kumar (supra), from which the reliance has been placed by learned Advocate Shri P.A.Mehd for the Respondent, it has referred to the aspect of strict liability and once the maintenance of line is an exclusive function like the Appellant - Electricity Board, the submission on the aspect of negligence of the Respondent victim are misconceived. It has been observed in a judgment in case of Madhya Pradesh Electricity Board vs Shail Kumari And Ors. reported in AIR 2002 SC 551 (1):
Page 10 of 14
HC-NIC Page 10 of 14 Created On Wed Aug 16 13:41:44 IST 2017 C/FA/883/2004 JUDGMENT "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."
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;
Page 11 of 14
HC-NIC Page 11 of 14 Created On Wed Aug 16 13:41:44 IST 2017
C/FA/883/2004 JUDGMENT
"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."
17. Further, a useful reference can be made to the judgment of the Hon'ble Apex Court in a judgment in case of M.C.Mehta and anr. v. Union of India and ors. reported in AIR 1987 SC 1086 (1) where the Hon'ble Apex Court has referred to the principle of strict liability as laid down in Rylands v. Fletcher which has developed Page 12 of 14 HC-NIC Page 12 of 14 Created On Wed Aug 16 13:41:44 IST 2017 C/FA/883/2004 JUDGMENT in England and therefore recognized in India also. In fact the observations have been made that it is necessary to construct the new principle of liability to deal with the situation which arise on account of industrialization. Therefore, the submissions which have been made are misconceived.
18. Therefore once the aspect of negligence has been considered and found to be just and proper, the other relevant aspect is regarding the quantum of compensation. It is evident that the Respondent / Original Plaintiff received injuries and her left hand was burnt for which she was removed to the hospital at Surat and was given emergency treatment after she was admitted as an indoor patient and she had to undergo the operation / surgery and thereafter the left palm was amputated. The Respondent / Original Plaintiff is the minor girl who had a future, which is affected with amputation. It will not only affect her chances of marriage prospects but she may have to depend on others for many things and she will have to always take help of others. Therefore, though as a minor she may not have any income for the purpose of assessment of compensation, notional income could be taken and the court below take a notional income of Rs.15,000/- and disability is taken at 60% and the amount has been awarded for this permanent disablement and also the award has been made for other sufferings Page 13 of 14 HC-NIC Page 13 of 14 Created On Wed Aug 16 13:41:44 IST 2017 C/FA/883/2004 JUDGMENT like disfigurement etc. Therefore, in light of the findings and conclusion arrived at by the court below, it cannot be said to be erroneous which would call for any interference and the present Appeal deserve to be dismissed and accordingly stands dismissed. ` (RAJESH H.SHUKLA, J.) JNW Page 14 of 14 HC-NIC Page 14 of 14 Created On Wed Aug 16 13:41:44 IST 2017