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2017 DIGILAW 943 (GUJ)

Paschim Gujarat Vij Co. Ltd. v. Chandraikaben Harpalsinh

2017-05-02

RAJESH H.SHUKLA

body2017
JUDGMENT : Rajesh H. Shukla, J. 1. The present Second Appeal is filed by the Appellants/Original Defendants under Section 100 of the Code of Civil Procedure being aggrieved with the impugned judgment and order in Regular Civil Appeal No. 9 of 2016 by the learned Additional District Judge, Surandranagar dated 7.5.2016 confirming the impugned judgment and order in Regular Civil Suit No. 140 of 2014 [Old Special Civil Suit No. 15 of 2010] by the learned Principal Civil Judge, Surendranagar dated 18.4.2015 posing the substantial question of law as follows: "1. Whether both the courts below erred in not considering statutory provisions in regard to the liability of the accident? 2. Whether both the courts below erred in not appreciating the provisions of the Electricity Act and provisions of Supply Code? 3. Whether both the courts below were justified in not considering at all documentary evidence produced at Exh. 35?" 2. The background of the facts as discussed and narrated in the judgment of both the courts briefly summarized are that the wife of Original Plaintiff No. 1 and the mother of the Original Plaintiff Nos. 2 and 3 deceased Chandrikaben died on 29.11.2006 when she was spreading the clothes at her house on a wire due to electrocution. The house of the Plaintiff is situated in Mafatia Para. The deceased after washing the clothes was spreading it on a wire which was tied with one angle. However, with the iron angle there was one pipe fitted from which the wire of the Appellant was passing to the meter, and therefore, when she tried to spread the wet clothes, the current passed and the deceased died on the spot due to electrocution. Therefore, the suit came to be filed by the Respondents/Original Plaintiffs, which was allowed after examining the material and evidence on record. The first appellate court also confirmed the judgment and therefore the present Second Appeal is filed by the Appellants/Original Defendants - Electric Company posing the question of law as stated above. 3. Learned Advocate Shri S.P. Hasurkar for the Appellants referred to the R&P and both the judgments. The first appellate court also confirmed the judgment and therefore the present Second Appeal is filed by the Appellants/Original Defendants - Electric Company posing the question of law as stated above. 3. Learned Advocate Shri S.P. Hasurkar for the Appellants referred to the R&P and both the judgments. Learned Advocate Shri S.P. Hasurkar pointedly referred to paragraph 10 and 11 of the judgment of the lower appellate court to support his contention that there was a electric pole where the wire was passing to the main service wire which was fitted with the angle and as the pipe was fitted with the angle, the clothes could not have been spread on a wire fitted with the angle. He submitted that the wire for spreading the clothes could not have been connected with the angle which was near to the pipe through which the wire was passing to the meter. Learned Advocate Shri S.P. Hasurkar therefore tried to submit that it was her own negligence. Learned Advocate Shri S.P. Hasurkar referred to the Exh. 35 to support his contention on the aspect of negligence and submitted that both the courts have not considered the same. Learned Advocate Shri S.P. Hasurkar submitted that the pipe from which the wire is passing, they are not required to touch the same and if the angle, which is fitted for such pipe, should have been left and should not have been used for any other purpose. Learned Advocate Shri Hasurker submitted that if any such wire is joined resulting in accident, the Appellants cannot be held liable for any negligence. He submitted that both the courts below have failed to consider the aspect of negligence and the liability of the Appellants. He therefore submitted that there are rules and regulations for the supply like Supply Code and the statutory provisions are required to be followed, and if, there is any breach committed by the consumer, it would be at his own peril. 4. Learned Advocate Shri Prakash H. Upadhyay for the Respondents/Original Plaintiffs referred to Exh. 5, the report of the committee, the report and the material and evidence relied upon by him. 4. Learned Advocate Shri Prakash H. Upadhyay for the Respondents/Original Plaintiffs referred to Exh. 5, the report of the committee, the report and the material and evidence relied upon by him. Learned Advocate Shri Upadhyay submitted that the consumer like the Respondents/Original Plaintiffs would be using their own house for spreading the clothes and the angle which is fitted with the wall for the purpose of hanging such wire for the clothes, could not be said to be any instrument or property of the electric company. If the wire from the pole to the premises is taken, it is there obligation to see that it is kept in such a safe manner with the pipe covering the wire that it may not result in any accident. Learned Advocate Shri Upadhyay therefore submitted that the courts below have discussed the aspect of negligence and the obligation of the licensee Company for proper installation and maintenance of their own line. Learned Advocate Shri Upadhyay submitted that as a licensee they are under the obligation to take precaution to avoid any such incident and could not attribute any negligence to the consumer like the Respondents/Original Plaintiffs. Learned Advocate Shri Upadhyay submitted that there was another case also, were the Appellants have not challenged the same and have accepted the judgment, and therefore cannot take such a stand in the present Second Appeal. Learned Advocate Shri Upadhyay submitted that the concurrent findings of fact may not be disturbed under Section 100 of the Code of Civil Procedure. He submitted that there are no substantial questions of law which can be said to have been involved, and therefore, the present Second Appeal may not be entertained. 5. In view of the rival submissions, it is required to be considered whether the present Second Appeal deserve consideration. 6. The submissions have been made by learned Advocate Shri S.P. Hasurkar referring to the judgment of both the courts below and also the material and evidence particularly Exh. 35 to support his contention about the negligence. Therefore, the moot question is whether any negligence could be attributed to the deceased and whether any such contentions could be entertained to avoid the liability for the incident and the compensation as a result thereof. The aspect of negligence has been considered by both the courts below. 35 to support his contention about the negligence. Therefore, the moot question is whether any negligence could be attributed to the deceased and whether any such contentions could be entertained to avoid the liability for the incident and the compensation as a result thereof. The aspect of negligence has been considered by both the courts below. Though the submissions have been made by learned Advocate Shri S.P. Hasurkar that from the pole the wire was brought to the premises which was passing from a pipe to the meter and that the pipe was fitted with the angle. Therefore the wire for spreading the clothes could not have been fitted with the angle and therefore it is the negligence of the consumer, is thoroughly misconceived. The installation and maintenance is the responsibility and obligation of the licensee like the Appellants herein. When the line is taken from the pole right up to the premises, it is their obligation to see that it is in such a manner covered and the wire is fitted with the pipe that it does not result in any accident and it is safe. These precautions are required to be taken by the supplier as they have installed the line and they have to maintain the line. There is a periodical supervision and when there is a checking for the meter, the representative would also visit the premises. Therefore the submission that because the wire for spreading the clothes was attached to the angle, it was the main cause for the accident and attributed the negligence to the consumer, is misconceived. The trial court has referred to and relied upon the judgment of the Hon'ble Apex Court in case of M.P. Electricity Board v. Shailkumar and ors, reported in (2002) 2 SCC 162 and made the observations which has been quoted referring to the "principal of strict liability". The concept of strict liability assumes its different dimension that the liability is strict once the accident has occurred and in any case the onus is on the licensee who is obliged to take precaution at the time of installation and maintenance of line to see that no accident occurs or the chances are minimized. Therefore the submissions which have been made referring to the aspect of negligence has a reference to the negligence in Law of Torts where a person could show that reasonable precautions were taken. Therefore the submissions which have been made referring to the aspect of negligence has a reference to the negligence in Law of Torts where a person could show that reasonable precautions were taken. However, once the "principal of strict liability" is attributed, the liability would be incurred irrespective of the fact that whether the precautions were taken or not. It is in these circumstances, the concurrent findings of facts arrived at by both the courts below cannot be said to be perverse or erroneous. The substantial questions of law posed as stated above are only referring to the aspect of appreciation of evidence. The first question refers to the statutory provision in regard to liability of accident which again is vague as there are specific rules qua the Electricity Supply Rules and the Electricity Supply Code, which again referred to the statutory provisions and the obligation of the licensee to take precaution for installation and maintenance of such line. The reference and reliance on Exh. 35 would not justify any such submission which are sought to be made by learned Advocate Shri S.P. Hasurkar for the Appellants. Therefore it can hardly be said that there is any substantial question of law is involved. 7. The Hon'ble Apex Court has laid down the broad guidelines with regard to scope of exercise of discretion under Section 100 of the Code of Civil Procedure after the amendment in the year 1976. A word of caution has been expressed that normally the High Court would not interfere with the concurrent findings unless there is any substantial question of law is involved. As discussed, as there is no substantial question of law which can be said to have been involved and the findings of facts on appreciation of material and evidence cannot be said to be erroneous or perverse, it therefore does not call for any exercise of discretion under Section 100 of the Code of Civil Procedure in the present Second Appeal. Accordingly, the present Second Appeal deserve to be dismissed and accordingly stands dismissed. Civil Application accordingly stands disposed of. Notice is discharged. R&P be sent back to the trial court forthwith.