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(12) The report Ex.DW-7/1 states that the wall facing the North West side of the spinning Mill Mayur Syntax Ltd which bounded the railing department, cement godown and store collapsed between 4 and4.30 P.M. on 146.82 Extensive damage resulted to the huge structure separating the roof of the railing department, cement godown and the store section which was behind the wall resulting in killing of three lives and several injured. Approximately 215 feet of wall out of 232 feet came downsuddenly. The wall which came down was 12 feet high at one end and28 feet high at the other end. Certain photographs of the collapsed wall were also taken. The report states that certain eye witnesses bad informedMr. Jasubhai that lightening accompanied by loud noise had struck the wall at point marked 'A' on the drawings. The nature of the construction of the wall has been given in the report. It is stated to be a masonary wall constructed in cement mortar I : 6. The report rules out the collapse of the wall on account of the severe wind, for the primary reason that the other structure of the building and none of the other factories in the Industrial Estate did not suffer any damage and by process of elimination of the othercauses, comes to the conclusion, that lightening must have bit the wall resulting in its collapse.

(13) DW-7 admitted in his cross examination that collapsed wall was not shown in the original designs sent to the defendant and stated that the wall must have been constructed after the project was complete. The witness admitted that had the wall not collapsed the damage would not have been taken place. It was further stated by the witness that no part of the building for which his firm bad prepared the design and which was constructed under their supervision got damaged because of lightening. The wall up to the height of I I feet 6 inch had been constructed in accordance with the design prepared by the firm of which DW-7 was a partner. The wall over and above 14 feet 6 inches was constructed layer on and the later added portion had collapsed. The witness could not give risk factor against lightening in respect of small and medium size factories, workshop and laboratories.However, it was admitted that the risk factor, in so far as masonary wall which had collapsed, was normally cent per cent because mason is nonconductor of electricity while the risk factor against lightening fur huge structure like the factory premises of the defendant was around 10%. It was also admitted that no safeguard against lightening in so far as wall which had collapsed was provided.

(16) Learned counsel for the defendant contended that the collapsed wall was designed and constructed under the supervision of the firm of architects of which Jasubhai was a partner and that Jasubhai had deliberately made a false statement. I do not agree. There is no evidence on record to support this contention. It was open to the defendant to produce evidence in the nature of the plans etc. to show that the collapsed wall was part of the designs prepared by the firm of Jasubhai or constructed under the supervision of the said firm. No such evidence was produced. If the oral testimony ofJasubhai is to be discarded, as contended on behalf of the defendant, then the report Ex.DW-7/1 has also to be discarded. If that be so, there will be no evidence on record in support of the plea of the defendant that lightening had struck the wall. It is not possible to place reliance on the report and ignore oral testimony of its author.

(17) The heavy burden on the shoulders of the defendant to establish plea of act of God cannot be said to have been discharged only by saying that other parts of the building did not collapse. It is not proved on records to what was the nature of construction of the other part of the building which had not collapsed. The design of the portion which had not collapsed had been prepared by M/s. Size on Consulting Engineers of which Jasubhai was a partner. This construction was supervised by said firm of Engineers and had only l0/o risk factor against lightening. Who had prepared thedesign of the collapsed wall ? When was it constructed ? What Precautions were taken ? There is no evidence, clearly the defendant has failed to produce material and best evidence. Admittedly the collapse of the wall had resulted in serious and grave injuries to the plaintiff and the defendant can only be absolved of its liability of damages on proof of its plea of vis major or Act of God.