(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. This appeal was initially filed by the Gujarat Electricity Board. After its bifurcation into different regional electricity companies, is being pursued by the Paschim Gujarat Vij Company Ltd. (“PGVCL” for short). Appeal is directed against the judgment and decree dated 30th September, 2002 passed by the learned Civil Judge (S.D.) Gondal in Special Civil Suit No.
153 of 1995. The appellant No.1 Company and its officers were the original defendants. Present respondent was the original plaintiff.
2. The plaintiff filed the said suit seeking recovery of Rs.10,31,591.00 towards damages from the defendants. Case of the plaintiff was that on 13.5.1995, truck bearing No. GRP-4691 belonging to the plaintiff was traveling from village Piplej to Navagadh carrying 83 bundles of cloth for delivery. As per the plaintiff, the truck was being driven with due care and caution by its driver. When the truck reached near village Piplej, at which time, the live electric wires of the appellant No.1 Company which were hanging over the road came in contact with the truck which caused spark in the electric line. Goods of the plaintiff caught fire and were substantially destroyed. Out of 83 bundles, 70 were totally burnt. On account of such damage to the goods, the plaintiff who had responsibility of delivering goods to the respective parties had to pay damages to them, total of which came to approximately Rs.10,31,591.00. On the premise that the damage to the goods being carried in the truck resulted on account of negligence on the part of the electricity company, plaintiff filed the above mentioned suit seeking recovery of Rs.10,31,591.00 along with interest at the rate of 18 per cent per annum.
3. The plaintiff alleged that the over hanging electric wires were not maintained in proper condition. There were no guarding sleaves on such wires. Further, those wires were lose and, therefore, sagging from the middle. It was, therefore, the case of the plaintiff that had the electricity company maintained its live electric wires crossing public road in proper condition, accident would not have taken place. In short, case of the plaintiff was that on account of negligence on the part of the electricity company and its officers, plaintiff suffered the damages which should be reimbursed.
4. The defendants filed written statement and denied their liability. It was contended that the wires were maintained in proper condition. In particular,it was stated that the wires were not loose and there was no sagging at the center, as suggested. It was also contended that there was no requirement of providing guarding sleaves over such wires.
5. Before the trial court, the plaintiff examined himself at Exh. 45. Plaintiff also examined witness Ramesh Dwarkadas at Exh. 68 who happened to be the Manager of the plaintiff's firm at the relevant time. The plaintiff produced documentary evidence in the form of bills, receipts etc. to show the payments made by the plaintiff after the goods were destroyed in the fire.
6. The electricity company examined one witness Bachubhai Raghavjibhai, Junior Engineer of the electricity company at Exh.148. He also produced the statement of the driver of the truck who was driving the truck at the time of accident recorded by the officers of the electricity company. Rojkam drawn by the officers of the Gujarat Electricity Board regarding incident was produced at Exh.62.
7. The trial court framed following issues for its consideration at Exh. 17 :
(1) Whether the plaintiff is doing its transport business under the name and style of M/s. Royal Transport Company?
(2) Whether the plaintiff proves to have obtained truck No. GRP-4961 owned by Babu Hari Vankar for transport business?
(3) Whether the plaintiff proves that on dtd. 13.05.95, 83 bales of Malmal cloth were loaded from piplage to Navagadh?
(4) Whether the plaintiff proves that while Truck No. GRP-4691 had taken turn from the highway towards the Kachcha road, the live electric wire of the G.E.B. Had touched the bales loaded in the truck and caused spark, as a result of which 70 Malmal bales were totally burnt and destroyed?
(5) Whether the plaintiff proves the said bales were of different customers and plaintiff had to pay damages of Rs.1,31,951/- to each customers described in plaint para-7?
(6) Whether the plaintiff proves that due to carelessness and negligence of the defendants, live electric wire between the electric poles were hanging very low, therefore, the above incident took place?
(7) Whether the plaintiff proves carelessness and negligence of defendant?
(8) Whether the defendants are liable to pay the damage to plaintiff, if yes, what amount?
(9) Whether the plaintiff is entitled to charge interest on the suit amount at the rate of 18% per annum?
(10) What order and decree ?
(11) Whether the defendants prove their case as per its written statement para 20 and 21 particularly against the plaintiff?
(12) Whether the defendants prove its contentions as per Exh. 20 written statement?
8. On the basis of the evidence produced before it, the trial court decided such issues in the following manner:
1. In the affirmative.
2. In the affirmative.
3. In the affirmative.
4. In the affirmative.
5. In the affirmative.
6. Partly in the affirmative.
7. Partly in the affirmative.
8. In the affirmative and as per final order.
9. As per final order.
10. As per final order.
11. Partly in the affirmative.
12. Partly in the affirmative.
9. With respect to cause of fire being the spark over the goods being carried in the truck coming into contact with the over hanging electric wires resulting into short circuit, there was virtually no any dispute. Before the trial court, however, two issues which were hotly contested between the parties were the question of negligence attributable to the electricity company and with respect to the damage suffered by the plaintiff.
10. Regarding negligence, the learned Judge noticed that in the panchanama drawn by the police authority, it was indicated that the electricity wires carried no guards. He also concluded that due to carelessness and negligence on the part of the defendants, live electric wires were hanging very low and, therefore, incident in question took place. While saying so, the learned trial Judge also formed opinion that such incident could have been avoided had the driver been sufficiently careful. The learned Judge was of the opinion that if the driver found that the wires were hanging very low, he should have taken proper care. Resultantly, the learned Judge attributed 70 per cent negligence to the electricity company and 30 per cent negligence to the driver of the truck.
11. With respect to the damage suffered by the plaintiff, the learned Judge accepted the version of the plaintiff and held that the plaintiff proved that he had paid sum of Rs.10,31,591.00 to various merchants for the goods the plaintiff was carrying in the truck on the fateful day. Apportioning 70 per cent thereof to the negligence attributable to the electricity company, the trial court held that the plaintiff was entitled to a decree of Rs.7,01,137.00 together with interest at the rate of 9 % per cent per annum from the date of the suit till realization.
12. Appearing for the appellants, learned Advocate Ms. Lilu K. Bhaya vehemently contended that the learned Judge committed an error attributing negligence to the electricity company and its officers. She submitted that there was sufficient evidence on record to suggest that the electric wires were maintained in proper condition, that the height of such wires was not less than 18 ft. which was statutorily required to be maintained. In short, only reason for cause of incident should be attributed to the truck of the plaintiffs carrying excess goods and thus, having height of more than 18 ft.
The learned counsel submitted that the trial court committed serious error in attributing negligence to the electricity company without any evidence or discussion.
The learned counsel submitted that there is no requirement that the electricity company must provide guarding sleaves on such electricity wires and in absence of such requirement, failure to do so cannot be termed as negligence.
The counsel further submitted that even with respect to quantification of damage, trial court committed serious error. Plaintiff had not produced any evidence to establish the value of the goods being carried and extent of damage.
13. On the other hand, learned Counsel Mr. Gandhi for the original plaintiffs supported the impugned judgment and decree contending that the learned trial Judge, on the basis of the evidence on record, correctly held that the electricity company and its officers were negligent in maintaining electric wires. Evidence on record would suggest that the wires were loose and were not maintained at the minimum height of 18 ft. from the ground.
The learned counsel for the plaintiff submitted that the trial court has committed error in attributing even 30 per cent negligence to the driver of the truck. Such contributory negligence should be deleted. Full decree in terms of the claim made should be passed.
The learned counsel further submitted that the plaintiff had produced documentary evidence of the quantifying and value of the goods being carried and all the payments plaintiff had to make to various parties on account of destruction of such goods.
14. Having heard the learned counsel for the parties and having perused the evidence on record, we may reiterate that with respect to the incident in question, of fire having taken place, causing some damage to the goods being carried in the truck of the plaintiff and that such fire having taken place on account of short circuit in over hanging electric wires touching the vehicle, there is no serious dispute. What is seriously disputed is that who was responsible for causing such incident.
15. From Rule 77 of the Indian Electricity Rules, 1956, it emerges that the electricity company was required to maintain minimum height of 5.8 meters for low and medium voltage lines from the ground of overhead line in question. Sub Rule (1) of Rule 77 of the said Rules provides as under:
“77. Clearance above ground of the lowest conductor.- (1) No conductor of an overhead line, including the service lines, erected across a street shall at any part thereof be at a height of less than
(a) for low and medium voltage lines. 5.8 meters
(b) for high voltage lines 6.1 meters”
16. It is not in dispute that the line in question was low voltage line and, therefore, clause (a) of sub-rule (1) of Rule 77 of the said Rules would apply.It is in this context that the parties to these proceedings have referred to the height of electric wires at 18 ft. from the ground.
17. The fact that the electricity wires were connected to two poles on either side of the road at the height of 18 ft. from the ground has come on record in various forms. In the panchanama Exh. 47 drawn by the police authorities, this aspect clearly emerges. Even in the rojkam Exh. 62 drawn by the officer of the electricity company, this aspect has come on record. It is, however, the case of the plaintiff that at the time when the incident took place, wires were in loose condition and, therefore, at the center, they had come down considerably on account of sagging. However, there is no such evidence on record to establish this allegation. To recall, the plaintiff did not examine the driver who was driving the truck at the time of accident. The plaintiff himself obviously would have no personal knowledge about condition of such wires at the time of incident. He in fact stated in his deposition at Exh. 45 that he came to know about the wires being low, later on. Significantly, statement of the driver was recorded by the officer of the electricity company soon after the incident. In his statement Exh. 63, he nowhere stated that the incident took place because over hanging electric wires were loose. Primarily, it was the duty of the plaintiff to establish before the court the allegation that the incident took place on account of wires not being maintained in proper condition due to which height, clearance at the center was less than 18 ft. The plaintiff failed to prove this vital fact. The learned Judge of the trial court came to the conclusion that it is clearly established by the plaintiff that due to carelessness and negligence of the defendants, live wires of electricity were hanging very low and, therefore, above incident took place. To our mind, there was simply no evidence to enable the trial court to come to such a conclusion. The learned Judge has not discussed any evidence which would support this conclusion. He gave no reasons to come to such a finding. To our opinion, such a finding was simply not supported by any evidence on record. In fact, there was evidence to the contrary. The Electricity Co. had through oral and documentary evidence established that the wires were maintained in proper condition. As noted earlier, it was the duty of the plaintiff to establish that the incident took place on account of negligence on the part of the electricity company in maintaining its wires. Plaintiff failed to discharge such duty. Additionally, the plaintiff in his cross examination at Exh. 45 stated that his Manager, had gone to the police station to inform about the incident in question on the same day. The manager in his intimation to the police authority did not indicate about such low hanging wires. The manager had also entered into witness box but did not throw any further light in this respect. The driver of the vehicle was not examined.
18. As per the Rules, the electricity company had responsibility to maintain height of the wires at minimum 18 ft. from the ground, and no further. The plaintiff failed to prove that the Electricity Co. did not maintain such wires at proper height. Trial Court held Electricity Co. negligent in doing do without any evidence whatsoever. Further, the requirement of providing guarding sleaves on such wires was never established. Neither before the trial Court, nor before us, any Rule or Regulation was produced, providing for such requirement.
19. In view of our finding that no negligence could be attributed to the electricity company, entire decree drawn by the trial court must fail.In that view of the matter, question of extent of damage to the guards becomes inconsequential. Despite which, we have examined this aspect also. With respect to the question of extent of damage suffered by the plaintiff, we are of the opinion that the plaintiff has failed to establish that 70 out of 83 bundles of clothes were completely destroyed. Plaintiff only produced certain receipts of alleged payments made to different parties. Recipients of payments have not been examined. It is not clear, for what purpose, such payments were made. In fact, receipts indicated payments made for fabric received. It is not possible to link such payments to the goods carried in the truck of the plaintiff which could not be delivered on account of destruction in the fire.
20. In the result, the judgment and decree passed by the learned Civil Judge (S.D.) Gondal in Special Civil Suit No. 153 of 1995 dated 30th September, 2002 is reversed. Appeal is allowed with costs. Suit of the plaintiff stands dismissed. Appeal is disposed of accordingly. R&P be transmitted to the trial court.
(Akil Kureshi,J.) (C.L. Soni,J.) an vyas