[1] The present appeal has been preferred by the appellant – original defendant challenging the impugned judgment and order rendered in Special Civil Suit No.4 of 1997 dated 30th April 1998 by the 3rd Joint Civil Judge (S.D.), Panchmahal at Godhra on the grounds stated in the appeal inter alia that the Court below has appreciated the material evidence on record. It is contended that the Court below has failed to appreciate that the evidence of the Deputy Executive Engineer, in his deposition at Ex.29, stated that at about 4.00 p.m., they have inspected the scene of occurrence and there was specific report at Ex.30 regarding the inspection of electric pole carried out. It is, therefore, contended that the Court below has committed an error in appreciating the issue regarding the negligence of the appellants, has not been properly discussed nor any evidence has been adduced by the respondents to support the case of the negligence of the appellants. It is also contended that the Court below has failed to appreciate that the deceased was doing the agricultural work and there is no evidence and erroneously applied multiplier of 20 which is contrary to accept the norms. It is contended that the deceased was young and there is no evidence still calculating minimum wages as arrived at regarding the income is on higher side.
[2] Heard learned advocate for the appellants and learned advocate for the respondent.
[3] In view of the submissions made in detailed referring to the material evidence on record, the contention with regard to the negligence which has been raised, is required to be considered. From the discussion in the judgment and order referring to the material evidence, it cannot be said that the findings arrived at, is erroneous. The panchnama produced at Ex.14 clearly establishes that the electric wires were passing, where the deceased was working and it supports and corroborates the evidence with other witnesses including the deposition of Shardaben widow of Govindbhai Vankar at Ex.16. Even if the deposition of Engineer, who is examined by the appellants, is considered at Ex.29, it is evident that earthing pole was in the field of the deceased. Though he has stated that there was no leakage, the fact remains that as per the panchnama, there was a electric pole and earthing wires at the place could have caused such an incident. Therefore, the cause of death as stated in the postmortem is cardiac arrest due to electric shock. It is also required to be mentioned that the helper who has made the actual testing has also been examined by the appellant and he has stated that he came to know subsequently that while committing the theft of the electricity, the accident has occurred that means it is only a heresay. In view of the detailed discussions with regard to the findings and the material evidence on record, the findings regarding negligence does not call for any interference as it cannot be said to be erroneous.
[4] Another facet of arguments referring to the quantum that without any evidence, the income has been taken on minimum wages, is on higher side, also cannot be believed and the wage has been considered. At the same time, it is well accepted that in evidence is permissible to make assumption of such peculiarly loss and, therefore, the income of the deceased which has been taken based on Minimum Wages Act at the rate of Rs.45/- per day cannot be said to be erroneous or on higher side. At the same time, as rightly submitted by learned advocate for the appellant that the multiplier of 20 which has been adopted, as the deceased was about 25 years is on higher side in light of the judgment of the Hon'ble Apex Court in the case of Sharla Varma Vs. Delhi Transport Corporation, reported in (2009) 6 SCC 121. However, as it could not have much bearing the same is not discussed. While considering the damages, the income is considered. However, 1/3rd deduction is not made, which is normally made as the deceased would have spent some amount on his own. Therefore, to that extent, the dependency benefits would stand reduced. Therefore, out of the total amount of Rs.3,50,000/-, 1/3rd is required to be deducted towards personal expenses and dependency benefits i.e. Rs.1,08,000/- [Rs.3,50,000 – Rs.1,08,000/-, the dependency benefits would come to Rs.2,16,000/-. Further the amount of Rs.25,000/- can be added towards the pain and suffering, though it has been submitted by learned advocate for the appellants that same would also not be available as it was a case of instantaneous death, however, in the facts of the case, the same is not disturbed.
[5] Therefore, from the material evidence on record and rival submissions, the impugned judgment and order does not call for any interference on the aspect of negligence or quantum, except to the extent of deduction of 1/3rd share which has not been made. Therefore, as discussed above, the total amount of compensation accordingly stands reduced to Rs.2,16,000/- + Rs.25,000/- = Rs.2,71,000/-.
[6] In the result, the present appeal stands partly allowed to the aforesaid extent. The impugned judgment and order passed by the learned 3rd Joint Civil Judge (S.D.), Panchmahal at Godhra dated 30th April 1998 in Special Civil Suit No.4/1997 is hereby modified to the aforesaid extent that instead of Rs.3,50,000/-, the respondent would be entitled to receive compensation to the tune of Rs.2,71,000/- along with the interest at the rate of 12% from the date of suit till realization. The amount which has been deposited as per the order of the trial Court and invested in Fixed Deposit in any Nationalized Bank shall be permitted to withdraw on usual terms subject to deduction, if any. The excess amount, if any, shall be refunded to the appellant on usual terms and conditions.
[ RAJESH H. SHUKLA, J. ] vijay