GUJARAT ELECTRICITY BOARD Vs. SHABANA ABBASBHAI KURESHI

JUDGEMENT

(1.) This Second Appeal under section 100 of the Code of Civil Procedure, 1908 (for short "the Code") has been filed by the Gujarat Electricity Board (for short "the Board") aggrieved by concurrent findings as original defendants in Special Civil Suit No.271 of 2000 by judgment and decree dated 21.08.2004 passed by the learned Civil Judge (S.D.), Mehsana. The respondent-plaintiff succeeded inasmuch as the appellants were directed to pay compensation of Rs. 2,20,000/- alongwith interest at the rate of 18% p.a. The Board preferred an appeal against the said judgment and decree, initially before this Court being First Appeal No.871 of 2005. By an order dated 22.03.2007, in view of the amendment of the Gujarat Civil Court Act, 2005, the appeal was remanded to the District Court at Mehsana. The appellate Court by its judgment and order dated 15.04.2014 confirmed the judgment and decree passed against the Board. Hence, this Second Appeal.

(2.) By an order dated 17.10.2015, the appeal was admitted on the following substantial questions of law"-

(3.) The facts in brief giving rise to this appeal are as under:- 3. 1 The respondent was the original plaintiff who was residing with her father in Haidari-Chowk, Mehsana. On 15.01.1995, while she was standing on terrace and flying kite, she came in contact with the appellant's-Board's live wire and suffered electrocution. She was shifted to the Civil Hospital at Mehsana. In absence of proper medical attention at the Hospital at Mehsana, she was shifted to a private hospital of one Dr. G.K. Patel, Orthopedic Surgeon. Shri Patel advised amputation of her arm. The minor Shabana therefore, was shifted by her father to Rajasthan Hospital, Ahmedabad. Shabana had to undergo two surgeries. Her finger of the right arm and the left leg were amputated. She underwent hospitalization for about 14 days which resulted in expenditure of about Rs. 15,000/- to Rs. 20,000/-. She was again hospitalized at the hospital of Dr.G.K. Patel for a period of one month, where her right arm was amputated. With these facts, she filed present suit claiming that she had undergone medical treatment; that she was studying in standard 12 and as a result of such accident, she could undertake her education; that she suffered permanent disability. In the suit, she therefore, claimed compensation of Rs. 3 lacs. 3. 2 The appellant-Board filed written statement Exh. 17. It was the case of the Board that the feeder line was passing towards the society much before the society came into existence. The board also in its defence contended that the balcony of the house was constructed without permission of the Mehsana Nagarpalika and therefore, it was an encroachment. Had the plaintiff paid charges to the Board, live wire over the terrace could have been shifted. The trial Court framed issues at Exh. 19. 3. 3 The issues regarding whether Shabana suffered electrical shock as a result of negligence and whether she was entitled to compensation, were answered in favour of the plaintiff. It was clear from the testimony of Abbasbhai Mohmmadbhai Kureshi, father of the respondent-plaintiff that on the date of the accident, Shabana was 12 years old. Certificates at Exhs.33, 34 and 35 were produced by Dr.G.K. Patel, Orthopedic Surgeon, showing nature of injuries. 3. 4 Shabana herself deposed on oath at Exh.97 and testified that on 15.01.1995 while she was flying kite at the terrace, she went to block No.44 and was electrocuted from the live wire of the Board. She was admitted to the Civil Hospital, Mehsana and then to Dr.G.K. Patel's hospital and subsequently to Rajasthan Hospital. She could appear for her 12th standard examination. 3. 5 Thereafter, Dr. Gunvatbhai Kantilal Patel was examined as plaintiff witness No.3 at Exh.101. From his testimony, it is revealed that he operated Shabana and amputated her toes and left leg. Certificate at Exhs. 33, 34 and 35 confirmed the nature of injuries and also confirmed to have issued such certificates. According to him, she had suffered permanent disability as a result of amputation of leg and 10% disability in the right hand. 3. 6 Electrical Inspector Jagtarsinh Gurudayalsinh Karela was plaintiff witness No.4 whose deposition was recorded at Exh.106. The Electrical Inspector who prepared a report and produced the same at Exh.107. The Board examined one Somabhai Karshanbhai, Executive Engineer at Exh.119. 3. 7 Based on the documentary evidence produced by the respective parties, the trial Court observed that the Board had committed breach of Rule 29 of the Indian Electricity Rules, 1956 (for short "the Rules). Based on the report of Electrical Inspector, who had visited the site, the trial Court observed that the construction was illegal. Certificates of the Medical Officer produced at Exh.33 suggest that Shabana had suffered burn injuries, she was admitted to the hospital and X-rays were carried out, which revealed that she had suffered pain and shock and had been handicapped as a result of the injuries. Based on the evidence, the trial Court found that the defendants had failed to prove that the balcony was constructed illegally. 3. 8 With regard to the claim of compensation under the head of pain, shock and suffering, the trial Court paid Rs. 25,000/- and also the same amount towards medical expenses. As far as future loss of income is concerned, taking the notional income at Rs. 15,000/-, an amount of Rs. 1,50,000/- was computed under the said head. Accordingly, the trial Court partly allowed the suit, directing the appellant-Board to pay Rs. 2,20,000/- to the respondent-original plaintiff herein. The Court, further ordered the Board to pay interest at the rate of 18% p.a. from the date of the suit i.e. 03.07.2000 till the realization of the amount. 3. 9 The Board carried the matter in appeal. On remand, as referred hereinabove, the appellate Court on re-appreciation of evidence and the reasonings of the trial Court, observed that primary medical certificates were produced at Exhs. 33, 34 and 35 together with various prescriptions written by doctors at Exhs. 36 to 59 and the certificate of the indoor patient at Exh. 60. Reports were produced at Exhs. 62 to 86. The testimony of Shabana at Exh. 97 clearly supported the narration of the incident as made out in the plaint. Para 16 of the judgment of the appellate Court reads as under:-