1. These two appeals are directed against the common judgment rendered by the Civil Judge (S.D.), Broach in Special Civil Suit No. 56 of 1974 and Special Civil Suit No. 56 of 1974 on 30.10.1975. The facts which gave rise to these two appeals may be stated as under:
On 24.10.1973 on the foot-track between village Rundha and Kabirgaon two young boys Chandrasinh and Dalsukhbhai expired because while passing on that foot track they came in contact with an electric live wire. The parents of Chandrasinh filed Special Civil Suit No. 55 of 1974 against the respondent-Gujarat Electricity Board and claimed a sum of Rs. 50,000/- as compensation. The widow of Dalsukhbhai and minor children of Dalsukhbhai and the parents of Dalsukhbhai filed Special Civil Suit No. 56 of 1974 and they claimed a sum of Rs. 67,340/-. Both the suits were heard together and the evidence was recorded in Special Suit No. 55 of 1974 and ultimately the learned Civil Judge (S.D.), Broach dismissed both the suits. The dismissal of these suits is challenged by filing these two appeals.
2. The learned advocate, Mr, Desai took us through the relevant evidence and also the important part of the judgment. The learned Civil Judge while discussing the evidence gave importance to some of the contradictions which appeared in the evidence of the witnesses and he totally neglected the evidence led on behalf of the plaintiffs and came to the conclusion that negligence of the respondent-Gujarat Electricity Board was not established. Having gone through the evidence it clearly appears to us that an erroneous approach was made to the entire evidence. There was ample evidence on record by which one can come to the conclusion that the electric live wire was on the foot-track and admittedly Dalsukhbhai and Chandrasinh did pass through that foot track as they were proceeding towards Kabirgaon. On that very day Police Patel of Chikhi made a report to the Taluka Development Officer. In that report which in Exh. 35 it is clearly stated that the labourers of village Rundha were going to Kabirgaon for labour work and at that time near Tokri Khari electric live wire was lying broken and two persons by name Dalsukhbhai and Chandrasinh expired on the spot because of the electric current. The Taluka Development Officer also made a report to the District Development Officer which was produced at Exh. 27. In that report it was stated that he having received the information had gone to the spot and he had found the electric wire lying on the road near Tokri Khari. It is also stated that Chandrasinh and Dalsukhbhai while passing on that road tried to put aside that wire because it was obstructing the way and they immediately expired on the spot because electric current was passing from that wire. He recommended to the District Development Office that the panchayat should at least pay a sum of Rs. 250/- to the members of the family of each one of the deceased. Similar recommendation was made to the District Development Officer by Taluka Development Officer, Valia which is produced at Exh. 28. Thereafter there is panchnama Exh. 35 which is prepared on the same day, i.e., on 24.104973. In that panchnama it is clearly stated that on the place of the incident electric wire which was broken was lying there. At that place there were two khokra trees and the electric wire had broken on the trees and thereafter it had come down on the road. In panchnama Exh. 53 which is prepared on the next day and which is signed by four persons it is stated that the electric wire was lying on the road. Thereafter there is a report of the Engineer of the respondent which is produced at Exh. 60 in which also it is stated that the top face conductor was broken near the pole. It is also stated that, the conductor had become weak. Thereafter in that report there is an inference and by the inference it is stated that the incumbent must have tried to touch the conductor while crossing this part and hence the accident would have occurred. Now therefore, from the documentary evidence on record it was clear that while Dalsukhbhai and Chandrasinh were proceeding towards Kabirgaon from village Rundha they were walking on the foot track and they expired because of an electric wire which was lying on that foot track. We may here mention that in the written statement it was suggested by way of defence that the electric wire might have broken because of the wind and may be on the tree and the boys must have climbed the tree and, therefore, the incident must have occurred. We may here mention that it was early morning and there is evidence on record which goes to show that they were going for labour work and they had to reach in time at a place where they were expected to work. Further the trees were not fruit trees and one would not be tempted to climb the tree which had no fruit. Under these circumstances the suggestion is such which cannot be accepted and there is ample evidence also on record by which one can come to an independent conclusion that this incident occurred while two boys were walking on the foot track and they had not even touched the tree.
3. Witness Amarsinh Exh. 44 who is the father of deceased Chandrasinh in his evidence, clearly stated that the incident occurred in the early morning and as soon as he heard about the incident he went on the spot and he saw that his son was lying on the road and there was one electric wire adjacent near to his son. He also stated that at a distance of one hand away from his son he saw Dalsukhbhai Madhya lying on the road. Both persons were lying dead. He being the villager went to the extent of saying that when he saw the electric wire he saw the current passing from the wire. That may or may not be true and in cross-examination the only question asked in regard to this aspect was that he had not touched electric wire which was lying. The fact that the two persons were lying dead and the fact that the electric wire was lying on that particular place could not be disputed.
4. Witness Madhia, father of Dalsukhbhai in his evidence stated that he had also gone to the site and he had also seen electric wire quite near to his son.
5. Witness Gokalbhai Desai Exh. 52 was examined on behalf of the plaintiff. He at the relevant time was sarpanch of Chikhli gram panchayat. In his evidence he stated that the distance between his house and the place of the incident was about one furlong. According to him he had seen two passersby lying on the ground. According to him one of the two persons had wire rolled over his body while the other person was lying in such a way that the wire was not touching him. According to him he had reached the place of the incident within about 7 or 8 minutes. We may here mention that the witness Amarsinh Uga Exh. 44 and Madhia Exh. 46 did not say that one of the persons was lying in such a way that the wire was not touching and the other person was lying in such a way that the wire rolled over his body. The learned Civil Judge unfortunately gave too much importance to this particular contradiction which occurred in the evidence of Gokalbhai Exh. 52. The evidence was consistent and that consistency is overlooked and, therefore, a wrong conclusion has been reached. The conclusive evidence on record was that the two persons had started from village Rundha and they were proceeding to village Kabirgaon for the purpose of labour work. They were lying on the foot track and at that particular place on the road there was electric wire and these two persons had died because of the electric current. These facts were such which could not be disputed.
6. Another witness is Naran Exh. 54. According to him he was leading the gang of labourers for the purpose of working and he was also going to village Kabirgaon. According to him two persons were going ahead and he was at a distance 50 ft. In cross-examination he stated that the labourers were to commence work in the early morning while he was to commence work at about 10-00 a.m. The learned Civil Judge here heavily came down on this witness and he came to the conclusion that this witness either could not have witnessed the incident because he was 50 ft. away or he would not have been present because he was to join duty at 10-00 a.m. It was forgotten that it was his duty to take the labourers and, therefore, he was most likely to accompany them. He had no reason to support the evidence of the plaintiffs. If he was at a distance of 50 ft. he would be the first person to reach the place of the incident immediately after the incident and he did see the two persons lying dead and the electric wire lying at the particular place.
7. Now on behalf of defendant No. 1, Dalsukhbhai Patel is examined at Exh. 58. He is Executive Engineer working in Gujarat Electricity Board, He explained in his evidence as to what short circuit would mean and how the person would die because of short circuit. According to him in the event of short circuit current will continue to flow in wire for about 45 minutes. He had to admit that the condition of the wire had become weak but he added that it may be the result due to fault on line and also due to short circuit. Another witness examined on behalf of the defendant is one Shantilal Chimanlal Shah at Exh. 61 who was working as Deputy Engineer. According to him he had inspected the site on 26.10.1973 and he had made the report Exh. 60 which we have already discussed. According to him there was storm in Chikhli during the night on 23.10.1973. However, he stated that at Chikhli no complaint was received. In cross-examination he had to admit that the line in question was checked before the monsoon. He immediately thereafter stated that the board maintains a register to note the date of checking and rectification work on the line. That register was not produced. If line was checked before the monsoon here was a month of October which comes immediately after monsoon. According to him R.R. Prajapati was a helper who had informed him about the incident from R.R. Prajapati and the defendant chose not to examine him. Even this witness admitted that he had learnt from Prajapati that the conductor was resting on the tree and its end was lying on the ground. He further stated that he had inquired in the matter and he recorded the statement of Police Patel and also his helper Prajapati whom the defendant chose not to examine.
8. Thus the evidence was complete to show that the line was defective, the wire had become loose, it was hanging on the tree and ultimately touching the foot track from which the persons have got to pass. There is nothing to show on which date wire was checked. They might have checked the wire if the evidence of the defendant is believed, in the month of May, 1973. Therefore, there was no checking during the monsoon or after the monsoon. If this was the situation the evidence itself would show that Gujarat Electricity Board was negligent. There was a duty cast by Indian Electricity Rules, 1956 and we may only refer to two rules. Rule 29(1) reads as under:
29. Construction, installation, protection, operation and maintenance of electric supply lines and apparatus.--(1) All labric supply lines and apparatus shall be sufficient in power and size and of sufficient mechanical strength for the work they may be required to do, and so far as is practicable, shall be constructed, installed, protected, worked and maintained in accordance with the standards of the Indian Standards Institution so as to prevent danger.
Rule 50(1)(f) reads as under:
50. Supply and use of energy.--(1) The energy shall not be supplied, transformed, converted or used for continued to be supplied, transformed, converted or used unless the following provisions are observed:
Thus there is a statutory duty fastened upon Gujarat Electricity Board to see that the live wires are not so exposed as to cause danger and they are expected to take adequate precautions. Now, therefore, in such a situation it was for the defendant to show that they did take adequate precautions. There is no evidence led on behalf of the defendant to show that any precautions were ever taken immediately after the storm or during the monsoon season or immediately after monsoon season.
9. We may refer to Privy Council case reported in Quebec Railway, Light, Heat and Power Company Limited v. Vandry 1920 A.C. 662. That was a case where article 1054 of the civil code of quebec was considered. The facts found were as under:
The appellant company, acting under statutory powers, had erected along a road in Quebec two overhead cables for the distribution of electric current at tensions of 2200 volts and 108 volts respectively, and they supplied current at 108 volts to the respondents' premises. A violent wind (not amounting to force majeure) tore a branch from a tree growing about 28 feet away from the cables, and drove it against them. In consequence the cables were broken down, and the high-tension current found its way along the low-tension into the respondents premises, and caused a fire.
It was held as under:
that the appellants were liable for the damage without proof that they had been negligent, since they had failed to establish that they could not have prevented the escape of the electric current; further that the appellants" statutory powers afforded no defence, since the escape of the current was not necessarily incident to the exercise of those powers.
We may here reproduce Articles 1053 and 1054 of the Civil Code of Quebec:
Art. 1053. Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.
Art. 1054. He is responsible not only for the damage caused by his own fault, but also for that caused by the fault of persons under his control and by things which he has under his care (sous sa garde).
The father, or, after his decease, the mother, is responsible for the damage caused by their minor children;.
Tutors are responsible in like manner for their pupils;.
Curators or others having the legal custody of insane persons, for the damage done by the latter;.
Schoolmasters are artisans, for the damage caused by their pupils or apprentices while under their care.
The responsibility attaches in the above cases (is responsabilite eidessus a liev) only when the person subject to it fails to establish that he was unable to prevent the act (le fait) which has caused the damage.
Masters or employees are responsible for the damage caused by their servants and workmen in the performance of the work for which they are employed.
Now, therefore, the principle in this country is not different. Wherever the person is negligent he is responsible sot only for the damage caused by his own fault but also by; the fault of the persons under his control. Now therefore, here in this country also as soon as it is shown that there was damage which could be attributed to negligence it is sufficient if any officer of Gujarat Electricity Board was held to be negligent. It is not necessary to point out a finger at a particular person.
10. We may also refer to Halsbury's Law of England, Fourth Edition, Volume 34. Paragraphs 35 and 36 read as under:
35, Nature of Duty.--The performance of dangerous work and the possession, use or supply of dangerous things impose a duty to take special precautions. There is no legal classification of work or things as dangerous or not dangerous. Danger is a matter of degree and every activity is fraught with some possible element of danger to others. The law in all cases exacts a degree of care commensurate with the risk created, and the more dangerous the act the greater the care that must be taken in performing it. However, the liability of the person on whom the duty is imposed is not absolute: it arises only where there is some element of negligence on his part.
36, Duty to take special precautions.--Work or articles which have been held to call for special precautions include the launching of a ship, the use of a traction engine, fire works, firearms, a soldering lamp, a calor gas cylinder, explosives and surgical treatment. Operations connected with the handling of petroleum and the distribution of gas and electricity also call for special precautions and are in addition subject to statutory provisions for safety. Persons who leave dangerous things where they are likely to be used or affected by others, and particularly by young persons, are responsible if the interference should reasonably have been foreseen and results in injury.
Therefore, special precautions are required to be taken while handling operations connected with electricity and those precautions are in addition and subject to the statutory provisions for safety. Now, therefore, Gujarat Electricity Board as respondent No. 4 was bound to show that they had taken all care which was necessary for the purpose of handling the electric live wires while they were passing from a particular area.
11. The learned advocate Mr. Modi tried to submit that this is not a case where the principle of ses ipsa loquitur will apply. We have already stated that there is ample evidence to show that the electric live wire was on the foot track where the persons are normally expected to walk. This act itself is an art of negligence. Now, therefore, the defendant had to establish that it was not their fault that the wire was lying at that particular place. They were expected further to establish that as soon as they came to know about the storm or as soon as they came to know about the electric live wire lying at a particular place, precautions were required to be taken to see that no person walks on that foot track, and a board cautioned with red flag was put at that place. In paragraph 57 of Halsbury's Law of England, Fourth Edition, Volume 34, it is clearly stated as under:
However, where the thing which causes the accidents is shown to be under the management of the defendant or his employees, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.
The only explanation given by the defendant is that there was storm on the previous night. Even the time is not suggested and it is not suggested asto what they did immediately after the storm.
12. We may also refer to a case of Buckland v. Guild for Gas, Light and Coke Co. (1948)2 All E.R. 1086. This was a case where a child was electrocuted when he was climbing the tree. It was held:
The defendants owed a duty to take reasonable care to avoid acts or omissions which they could reasonably foresee would be likely to injure a person so closely and directly affected by their acts or omissions that the defendants ought to have had such a person in contemplation as being so affected, they should have known that it was dangerous to have high-voltage wires immediately above a tree which could be easily climbed and the foilage of which was so dense that the presence of the wires could not epsily be seen; and, therefore, as the deceased girl was a person whom the defendants ought to have had in contemplation as being directly affected by their failure to take proper precautions, they were guilty of breach of duty amounting to negligence.
13. We may also refer to Halsbury's Laws of England, Fourth Edition, Volume 16. Paragraph 213 runs as under:
213. Compensation for damage by electricity boards. In the exercise of the powers in relation to the execution of works given them by the Electricity (Supply) Acts, 1882 to 1936, or any local enactment applicable to them, electricity boards must cause as little detriment and inconvenience and do as little damage as possible, and must make full compensation to all bodies and persons interested for all damage sustained by them by reason or in consequence of the exercise of those powers, the amount and application of the compensation in case of difference to be determined by arbitral-tion.
Therefore, on oral and documentary evidence which we have discussed we come to a definite conclusion that the defendant-respondent was liable for want of care and negligence.
14. The next question which is required to be considered is what amount is required to be awarded to the plaintiffs in each case. The learned Civil Judge has unfortunately in the alternative not calculated the amount which was required to be awarded in case it was found that the defendant was negligent. This ordinarily would result in remanding the matter for the purpose of determining the amount but in this case it is not necessary to do so because all the evidence which is necessary for that purpose is already on record.
15. So far as Chandrasinh is concerned there is evidence that he was a labourer. He was earning a sum of Rs. 3/- to Rs. 5/- per day. This would mean that he would contribute Rs. 4/- for the family. Assuming that he would work for 25 days in a month, the loss in one month would be Rs. 100/-. The yearly loss would come to Rs. 1,200/-. Looking to the young age the multiplier of 16 is required to be taken. The amount would come to Rs. 19,200/- plus Rs. 5000/- are required to be awarded for loss of expectation of life. The total sum, therefore, comes to Rs. 24,200/- and, therefore, the plaintiffs of Civil Suit No. 55 of 1971 will recover a sum of Rs. 24,200/- from the defendant with running interest at 6% from the date of the filing of the suit till realisation with proportionate costs throughout and the defendant-respondent shall bear their own costs throughout.
16. Coming to the case of Dalsukhbhai, there also the evidence is that he was earning Rs. 3/- to Rs. 5/- per day. However, he was doing agricultural work also at his house. The total yearly income is shown to be Rs. 900/-. Thus his contribution to labour so far as his field is concerned would be Rs. 300/- per year. Now, therefore, looking to the wages that he used to earn would come to Rs. 1,200/- per year. So far as the compensation of the family is concerned, Rs. 300/- are required to be added because he was also doing agricultural work at his place. The total loss, therefore, would come to Rs. -1,500/- per year. The multiplier of 16 is required to be applied and the total would come to Rs. 24,000/-. To that amount a sum of Rs. 5,000/- is required to be added for loss of expectation of life. The total amount comes to Rs. 29,000/. The plaintiffs of Special Civil Suit No. 56 of 1974 would, therefore, recover a sum of Rs. 29,000/- from the defendant with running interest at 6% from the date of filing of the suit till realisation and proportionate costs throughout and the defendant-respondent shall bear their own costs throughout. We may here mention that so far as the plaintiffs in Special Civil Suit No. 56 of 1974 are concerned, a sum of Rs. 9,000/- may be paid to plaintiff Nos. 1 and 2 who are the parents of deceased Dalsukhbhai with proportionate interest and costs. The remaining amount of Rs. 20,000/- may be distributed equally between plaintiff Nos. 3, 4 and 5. So far as the shares of the plaintiff Nos. 4 and 5 are concerned they may be deposited in a fixed deposit account with any nationalised bank for 37 months which may be renewed from time to time till the minors attain majority and interest whenever accrued may be paid to plaintiff No. 3 for maintenance of the minors. The shares of minor-plaintiff Nos. 4 and 5 may be handed over to them when they attain the majority.