Liability of electricity company for statutory violation

As regards liability, I find substance in the contention of Mr. Mehta, appearing on behalf of the Insurance Company that the entire negligence is of the Electricity Company. It appears from the evidence adduced on behalf of the Electricity Company that there has been a violation of the statutory height to be maintained by keeping such live wire within 13 ft. of the ground level. In view of such fact, the driver of the truck did not commit any mistake by parking it under the presumption that the hanging wire was at least not a live wire. There being an admitted violation of the statutory rules at the instance of the Electricity Company in keeping such a live wire, in my opinion, the entire liability should fall upon the Electricity Company.

Gujarat High Court

SHANKARBHAI MOTIBHAI PRAJAPATI & ANR.,

HEIRS & LEGAL
REPRESENTATIVES OF JIGNESH SHANKARBHAI

Versus

ISHWARBHAI GANGARAMBHAI & ORS.





CORAM:

HONOURABLE
THE CHIEF JUSTICE

MR.
BHASKAR BHATTACHARYA



Date : 15/02/2013



Citation;2014(2) ALL MR(JOURNAL) 20

1. This

appeal is at the instance of the claimants in a proceeding under section 166 of the Motor Vehicles Act and is directed against an award dated 15th

January 2007 passed by the Chairman, Motor Accident Claims Tribunal [Main], Bhavnagar in MACP No. 1069 of 1997 thereby partly allowing the application for compensation and awarding a sum of Rs.1,03,000/- as compensation.

2. It appears that the claimants, parents of the victim aged 12 years, filed the aforesaid application for compensation of Rs.2,00,000/- under the following circumstances:

2.1 The

accident occurred on 5th August 1997 at about 1.45 PM on the Kumbhar-para road near Bhalgamda Gate, Limdi. The deceased, Jignesh, was playing cricket and during the play, the ball went on the cabin of truck no. GRT 5923 which was lying stationary on the side of the road below the electric line laid by Paschim Gujarat Vij Company Limited [the Electricity Company, hereafter]. Jignesh climbed upon the stationary truck for picking up the ball and while throwing the ball, he touched the electric wire passing above the truck; as a result, he sustained burn injuries all over the body and died after 7 days in the hospital. According to the claimants, the accident occurred due to negligent parking on the part of the driver of the truck as well as on the part of the Electricity Company by not maintaining the height of the electric line as required under the law.

2.2 Thus, the parents of the deceased boy filed the claim petition against the owner of the truck, the insurer of the truck as well as the Electricity Company.

3. The Insurance Company denied the case of the claimants, and according to it, at the time of the accident, the truck was kept stationary as per the traffic rules, and it was the deceased who climbed up and went on the cabin of truck and came in contact with the live electric wire in the process of throwing the cricket ball. Therefore, according to the Insurance Company, the Electricity Company was wholly liable as the height of electric line was below the stipulated height.

4. The Electricity Company filed written statement thereby denying that at the place of the accident, the electric line was kept below the required height as per the rules and asserting that it was not in a loose condition and that the electric line was properly maintained. According to the Electricity Company, the driver of the truck, on which the deceased climbed, should be held liable.

5. The learned Tribunal below, on consideration of the materials on record, came to the conclusion that the owner of the truck and the Electricity Company were equally responsible, and, as such, passed an award thereby holding both the parties to be equally liable to pay the compensation.

6. The

Tribunal found that the notional income of the victim should be considered to be Rs.15,000/- per annum

and after deducting 2/3rd there from towards personal expenses came to the conclusion that the claimants being parents were entitled to only Rs.5000/- per annum, and applying thereto a multiplier of 15, awarded a sum of Rs.75,000/- under the head of dependency benefit. The Tribunal further awarded a sum of Rs.10,000/- towards loss of expectation of life, Rs.3000/- towards funeral expenses, Rs.10,000/- towards pain, shock and suffering and Rs.5000/- towards medical treatment and transportation and thus, awarded a total compensation of Rs.1,03,000/-.

7. Being dissatisfied, the claimants have filed the present appeal for enhancement of the compensation.

8. The Insurance Company has preferred Cross Objection No. 15 of 2010 contending that the Tribunal erred in holding the driver of the truck was equally responsible in causing the accident. It is their case that at the relevant time, the truck was lying in a parked condition, and hence, there was no question of the accident having been caused due to use of the vehicle. According to them, the accident was caused due to sole negligence of the deceased who climbed on the top of the stationary truck to retrieve his cricket ball and in the process of trying to throw the ball, touched the live wire. In such circumstances, it is the case of the Insurance Company, that the Tribunal even did not have any jurisdiction to entertain and try the claim petition.

9. I have heard Ms. Amrita Ajmera, the learned advocate appearing on behalf of the appellants, Mr. Ajay Mehta, the learned advocate appearing on behalf of the Insurance Company and Mr. M.D. Rana, the learned advocate appearing on behalf of the Electricity Company.

10. Ms.

Ajmera, the learned advocate appearing on behalf of the appellants, strenuously contended before me that the amount of compensation was wrongly assessed by the Tribunal below by deducting 2/3rd from the notional income of the deceased. According to Ms. Ajmera, the mother of the victim being the real claimant according to law, the appropriate multiplier should be 16.

11. Mr. Mehta, the learned advocate appearing on behalf of the Insurance Company, has, on the other hand opposed the aforesaid contention of Ms. Ajmera and contended that there was negligence on the part of the victim and the Electricity Company and there was no negligence on the part of the truck driver. He submitted that the Insurance Company having preferred a Cross Objection, the same is required to be allowed by holding that the accident occurred due to joint negligence of the deceased boy and the Electricity Company and there was no negligence of the driver and/or the owner of the truck.

12. Mr. Rana, the learned advocate appearing on behalf of the Electricity Company has, however, supported the order impugned and has fairly contended that the Electricity Company not having preferred any appeal against the award impugned, he cannot pray for reduction of the amount or for holding that the Insurance Company is solely liable to satisfy the award.

13. Therefore,

one of the questions that arises for determination in this appeal is whether in the facts of the present case, the learned Tribunal was justified in deducting 2/3rd towards the personal expenses of the deceased. Another question that arises for determination is whether the Tribunal was justified in holding the owner of the truck and the Electricity Company equally responsible and liable to pay the compensation. Lastly, whether the Tribunal has jurisdiction to entertain the claim-petition is also a question to be considered.

14. After

hearing the learned counsel for the parties and after going through the materials on record, I find that accident having occurred after the coming into operation of Section 163.A of the Act, the notional income of the deceased can be safely taken to be Rs.15,000/- per annum.

15. The mother being aged 40 years and the only heir and legal representative of the deceased, in my opinion, multiplier of at least 16 should be appropriate.

16. Further,

having regard to the fact that the boy was aged 12 years old, there was no justification for deduction of more than 1/3rd from the notional income. Thus, deducting personal expenses of Rs.5000/- being 1/3rd from the notional income of Rs.15,000/- and applying a multiplier of 16, the mother of the victim is entitled to get Rs.1,60,000/- under the head of dependency loss. I am also of the opinion that at least Rs.20,000/- should be awarded to the mother for loss of expectation of life of her son and Rs.20,000/- for pain, shock and sufferings. I, thus, award the following amounts:

Rs.1,60,000-00 Future dependency loss

Rs.0,20,000-00 Loss of expectation of life

Rs.0,20,000-00 Pain, shock and sufferings

Rs.0,03,000-00 Funeral expenses

Rs.0,05,000-00 Medical treatment & transportation

Rs.2,08,000-00 Total

17. Thus, the total amount works out to Rs.2,08,000-00, which I propose to reduce to Rs.2,00,000-00 as claimed in the application.

18. As regards liability, I find substance in the contention of Mr. Mehta, appearing on behalf of the Insurance Company that the entire negligence is of the Electricity Company. It appears from the evidence adduced on behalf of the Electricity Company that there has been a violation of the statutory height to be maintained by keeping such live wire within 13 ft. of the ground level. In view of such fact, the driver of the truck did not commit any mistake by parking it under the presumption that the hanging wire was at least not a live wire. There being an admitted violation of the statutory rules at the instance of the Electricity Company in keeping such a live wire, in my opinion, the entire liability should fall upon the Electricity Company.

19. Since

the truck in question is involved in the accident upon which the victim climbed, the proceedings under section 166 of the MV Act is very much maintainable. The Claims Tribunal constituted under the Motor Vehicles Act is entitled to maintain an application where other agencies than a motor vehicle is also contributing to causing the accident. [See GUJARAT STATE ROAD TRANSPORT CORPORATION V. UNION OF INDIA & ORS. reported in 1987(1)

GLH 344].

In the case before me, but for the parking of the stationary vehicle, the accident could not have occurred. Similarly, the Electricity Company s negligence is the sole cause and, therefore, the Tribunal is also entitled to adjudicate the liability between the owner of the vehicle and the Electricity Company when the fatal accident occurred by the use of a motor vehicle in a public place.

20. I,

therefore, allow both the appeal and the Cross Objections by awarding a sum of Rs.2 lakh with 12% interest per annum

from the date of filing of the application till 31st December 1999 and at the rate of 9% from 1st January 2000 till realization, and hold the Electricity Company wholly liable to pay the compensation. The Electricity Company is directed to deposit the entire awarded amount before the Tribunal within two months from today. The amount, if any, deposited by the Insurance Company be forthwith refunded to them, with accrued interest, if any. It is needless to mention that the amount paid in the proceedings under section 140 of the Act, if any, should be adjusted towards the aforesaid amount and if the same was deposited by the Insurance Company, it should be also refunded to them.

21. The appeal and the Cross Objections are allowed accordingly. No order as to costs.

(BHASKAR BHATTACHARYA, CJ.)

mathew

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