[1.0] Present Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC”) has been preferred by the appellant herein – original defendant – Electricity Company to quash and set aside the impugned judgment and decree dated 25.09.1997 passed by the learned trial Court – learned Civil Judge (S.D.), Navsari in Special Civil Suit No.4 of 1993 as well as the impugned judgment and order dated 30.08.2008 passed by the learned lower Appellate Court – learned Additional District Judge, 2nd Fast Track Court, Navsari in Regular Civil Appeal No.27 of 2005 by which the learned Appellate Court has dismissed the said Appeal preferred by the appellant herein – original defendant No.4 confirming the judgment and decree passed by the learned trial Court directing the appellant to pay a total sum of Rs.2,02,000/ to the plaintiffs by way of compensation for the death of the son of the original plaintiffs who was at the relevant time aged 22 years. [2.0] That the original plaintiff instituted Special Civil Suit No.4 of 1993 against the appellant and others claiming compensation of Rs.4,60,000/ submitting that their son aged 22 years old who was doing job of diamond cutting had died due to electrocution. It was the case on behalf of the plaintiffs that their son has died due to electric shock with live wires. The suit was resisted by the defendants by filing the written statement at Exh.20 (even after framing of issues at Exh.13). It was denied that the deceased died due to negligence of the defendant Board and due to electric shock. On appreciation of evidence the learned trial Court held the defendants responsible and liable to pay the compensation for the death of the son of the plaintiffs and considering the income of the deceased at Rs.1500/ per month and deducting 1/3rd for his personal expenditure considering the datum figure at Rs.1000/ per month and applying multiplier of 16 and adding Rs.10,000/ towards loss of estate, the learned trial Court decreed the suit and directed the appellant herein – original defendant No.4 to pay a total sum of Rs.2,02,000/ to the plaintiffs with running interest at the rate of 12% p.a. from the date of filing of suit till realization.
[2.1] Feeling aggrieved and dissatisfied with the impugned judgment and decree dated 25.09.1997 passed by the learned Civil Judge (S.D.), Navsari in Special Civil Suit No.4 of 1993, the appellant herein preferred First Appeal before this Court, however, in view of the change in law the same came to be transferred to District Court, Navsari which was renumbered as Regular Civil Appeal No.27 of 2005 and by impugned judgment and order, the learned Appellate Court has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court decreeing the suit and directing the appellant to pay a total sum of Rs.2,02,000/ with 12% interest to the plaintiffs.
[2.2] Feeling aggrieved and dissatisfied with the impugned judgment and decree passed by both the Courts below, the appellant herein – original defendant has preferred the present Second Appeal under Section 100 of the CPC.
[3.0] Ms. R.V. Acharya, learned advocate appearing on behalf of the appellant herein – original defendant No.4 has vehemently submitted that both the Courts below have materially held the defendants – more particularly appellant herein – defendant No.4 negligent due to which the deceased died. It is submitted that while holding the negligence on the part of the defendants, the learned trial Court has not properly appreciated the evidence on record. It is further submitted by Ms. Acharya, learned advocate appearing on behalf of the appellant that even the learned trial Court has materially erred in considering the income of the deceased at Rs.1500/ in absence of any other documentary evidence. She has also requested to consider to reduce the rate of interest. No other submissions have been made.
[4.0] Heard Ms. Acharya, learned advocate appearing on behalf of the appellant – original defendant No.4 and considered the impugned judgment and order / decree passed by both the Courts below. At the outset it is required to be noted that there are concurrent findings of fact given by both the Courts below holding the appellant herein – original defendant No.4 negligent due to which the deceased – son of the plaintiffs died due to electric shock due to live wires which were found to be on the road / field. The said finding of fact given by both the Courts below are on appreciation of evidence which are not required to be interfered by this Court in exercise of powers under Section 100 of the CPC. Even otherwise the aforesaid can be said to be a question of fact and it cannot be disputed that unless and until any substantial question of law is raised, the Second Appeal is not required to be entertained. Under the circumstances, when there are concurrent findings of fact given by both the Courts below holding the appellant – original defendant No.4 negligent the same is not required to be interfered by this Court in exercise of powers under Section 100 of the CPC.
[5.0] Now, so far as the contention on behalf of the appellant that both the Courts below have materially erred in considering the income of of the deceased at Rs.1500/ per month in absence of any documentary evidence is concerned, it is required to be noted that even considering the minimum wages which the deceased would have got which can be more than Rs.3000/ per month to consider the income of the deceased at Rs.1500/ per month cannot be said to be on higher side and/or so arbitrary. It is required to be noted that as such after deducting 1/3rd amount for the personal expenditure of the deceased, the plaintiffs are awarded the compensation considering the datum figure at Rs.1000/ per month only. Considering the age of the deceased i.e. 22 years, the learned trial Court has rightly applied the multiplier of 16 and has rightly awarded the compensation at Rs.2,02,000/ which is not required to be interfered by this Court in exercise of powers under Section 100 of the CPC even in the facts and circumstances of the case and considering the fact that even Electricity Board is also charging more than 20 to 24% on delayed payment charges from the consumer awarding 12% of interest cannot be said to be in anyway erroneous which calls for interference of this Court in exercise of powers under Section 100 of the CPC.
[6.0] In view of the above and for the reasons stated above, present Second Appeal In view of the above, present Second Appeal fails and the same deserves to be dismissed and is, accordingly, dismissed. No costs. And the same deserves to be dismissed and is, accordingly, dismissed.
CIVIL APPLICATION NO.7930 OF 2012 In view of dismissal of main Second Appeal, Civil Application No.7930 of 2012 also deserves to be dismissed and is, accordingly, dismissed.
Sd/ (M.R. Shah, J.) menon