Chhattisgarh State Power Distribution Company Limited Vs Ku. Seema Kosle

For Applicants	:	Mr. Varun Sharma, Advocate
For Non-applicant No.1	:	Mr. Ankur Diwan, Advocate and
		Mr. Vikhyat Arora, Advocate
For State/Non-applicant No.2	:	Mr. Atanu Ghosh, Dy.G.A.
Appearing as Amicus Curiae	:	Mr. Sumesh Bajaj, Advocate
Date of Hearing	:	11.09.2024
Date of Judgment	:	08.10.2024

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Hon'ble Shri Justice Rakesh Mohan Pandey CAV JUDGMENT

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1) In the present case, the applicants/defendants have challenged the judgment and decree passed by the learned First Additional District Judge, Mungeli (C.G.) in Civil Suit No.2B/2019 dated 11.12.2023 whereby the civil suit filed by the plaintiff under Section 1-A of the Fatal

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Accidents Act, 1855 was allowed and compensation of Rs.17,51,319/was awarded in favour of the plaintiff.

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2) In the present case, notices were issued to the plaintiff and defendant No. 3. The counsel appearing for the plaintiff raised an objection to the effect that the civil revision against the judgment and decree passed by the learned First Additional District Judge, Mungeli (C.G.) in a regular civil revision is not maintainable and an appeal would lie according to the provisions of Section 96 read with Order 41 of CPC.

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3) The facts of the present case are that the plaintiff filed a civil suit before the learned Trial Court inter alia on the ground that on 25.07.2017 at about 12 at noon when the plaintiff was carrying water, she came in contact with 11KV wire hanging there and sustained grievous injuries on account of electrocution. It is further pleaded that she was taken to the Government hospital from where she was referred to Mahadev Hospital and thereafter to BTRC Hospital. The treating doctors amputated her left hand. It is pleaded that due to the negligent act of the Electricity Department i.e. defendants No. 1 & 2, she lost her left hand and thus, she claimed compensation to the tune of Rs.20,00,000/with interest @ 18% per annum.

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4) Defendants No. 1 & 2 filed a written statement and denied the plaint averments. It was stated that the plaintiff was provided free treatment under the Chief Minister Health Insurance Scheme and she herself was negligent. It is also stated that she did not approach the authorities to get the ex-gratia amount. Learned Trial Court framed issues with regard to negligence and quantum of compensation. The parties led evidence

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and judgment was passed on 11.12.2023 whereby defendants No. 1 & 2 were held liable to pay compensation to the tune of Rs.17,51,319/with interest @ 9% per annum from the date of filing of suit i.e. on 24.04.2019.

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5) Defendants No.1 & 2 have preferred this civil revision challenging therein the judgment and decree passed by the learned Trial Court.

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6) Mr. Sharma, the learned counsel appearing for defendants No.1 & 2 argued that where the statute does not provide any provision for filing an appeal, in such a situation, no appeal can be filed taking resort to general principles. He further submitted that when no appeal lies in the absence of any statutory provision then the remedy would be revision under Section 115 of the CPC. He also submitted that in the Fatal Accidents Act, 1855 (for short ‘the Act of 1855’), there is no provision for appeal or revision. It is argued that the Act of 1855 provides for compensation to the families for loss occasioned by the death of a person and present is a case of injury (amputation of left hand) therefore, the civil suit was not maintainable and therefore, the appeal is also not filed challenging the judgment and decree. He further argued that according to the provisions of the Act of 1855, it is apparent that the Act of 1855 only covers death cases and there is no scope of compensation for injuries, thus the representatives of the deceased can maintain a claim under the Act of 1855. He also argued that the civil suit is maintainable against such judgment and decree. He further contended that according to the provisions of Section 96 of the CPC, an appeal would lie from every decree passed by any Court exercising

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original jurisdiction. He also contended that the Act of 1855 is a special Act and the concerned Court does not exercise original jurisdiction, therefore, no appeal would lie.

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7) In support of his submissions, he placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Sadhana Lodh Vs. National Insurance Co. Ltd. and another, 2003 (3) SCC 524, wherein in para 6, the Hon’ble Supreme Court held that even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. It is further held that if the filing of revision is also barred, the petition under Article 227 of the Constitution of India would lie. Para 6 reads thus:-

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“6.The right of appeal is a statutory right and where the law provides remedy by filing an appeal on limited grounds, the grounds of challenge cannot be enlarged by filing a petition under Article 226/227 of the Constitution on the premise that the insurer has limited grounds available for challenging the award given by the Tribunal. Section 149(2) of the Act limits the insurer to file an appeal on those enumerated grounds and the appeal being a product of the statute it is not open to an insurer to take any plea other than those provided under Section 149(2) of the Act (see National Insurance Co. Ltd, Chandigarh vs. Nicolletta Rohtagi and others 2002(7) SCC 456). This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 of CPC has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution.

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He further placed reliance upon the judgment passed by the Hon’ble Supreme Court in the matter of Commissioner of Income Tax, Chandigarh V. Pearl Mech, Engg and Foundry Works P. Ltd.,

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2004 (4) SCC 597 where the term “jurisdiction” has been dealt with in para 6:-

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“6.The word "jurisdiction" implies the Court or Tribunal with judicial power to hear and determine a cause, and such Tribunal cannot exist except by authority of law. Jurisdiction always emanates directly and immediately from the law; it is a power which nobody on whom the law has not conferred it can exercise. In other words, "jurisdiction" has reference to the power of the Court or Tribunal over the subject matter, over the res or property in contest, and to the authority of the court to render the judgment or decree it assumes to make.

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The word “jurisdiction” means the judicial power of the Tribunal to hear and determine a cause. The jurisdiction always originates directly and immediately from the law. The power cannot be exercised unless it is conferred by law.

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8) Mr. Sharma also placed reliance on the judgment passed by the Hon’ble Supreme Court in the matter of Newtech Promoters & Developers (P) Ltd. Vs. State of Uttar Pradesh and others, 2021 (18) SCC 1 wherein it is held that if the statute does not provide for filing of any appeal then no appeal can be filed taking resort to general principles. Para 135 reads thus:-

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“135. It is indeed the right of appeal which is a creature of the statute, without a statutory provision, creating such a right the person aggrieved is not entitled to file the appeal. It is neither an absolute right nor an ingredient of natural justice, the principles of which must be followed in all judicial and quasi judicial litigation and it is always be circumscribed with the conditions of grant. At the given time, it is open for the legislature in its wisdom to enact a law that no appeal shall lie or it may lie on fulfillment of pre condition, if any, against the order passed by the Authority in question.”

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9) Mr. Diwan, the learned counsel appearing for the plaintiff/Non-applicant No.1 would oppose the submissions made by Mr. Sharma. He submitted that a suit was filed claiming therein compensation according to the provisions of the Act of 1855 before the Additional District Judge, Mungeli and a regular Civil Suit No.2B/2019 was registered. He further submitted that the civil suit was tried, issues were framed, the parties led their evidence and thereafter, judgment and decree was passed. He further submitted that as there is no provision of appeal in the Act of 1855 but at the same time, a judgment and decree was passed, therefore, the same would be appealable according to the provisions of Section 96 of the CPC.

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10) Mr. Bajaj, the learned Amicus Curiae would refer to the Preamble and Sections 1A, 2 and 3 of the Act of 1855 which provide for “suit”, “suit for damages”, “plaintiff” and “plaint”, respectively. He further submitted that the learned Court below has tried the suit as a money suit for damages and a decree has also been drawn accordingly. Thus, by all necessary implications, the provisions of the Code of Civil Procedure get attracted and come into play. He also argued that a revision under Section 115 of the CPC would lie only in a case where no appeal lies. He further referred to the judgment passed by the Hon’ble Supreme Court in the matter of Terapalli Dyvasahata Kumar Vs. S.M. Kantha Raju (dead) Thr. Lrs., reported in AIR 2017 SC 4055 (relying on 1947 SCC Online Privy Council 53) and the matter of Secretary of State V. Hindustan Cooperative Insurance Societies Ltd., AIR 1931 Privy Council 149

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and would submit that where a dispute arises under a Special statute and no remedy is provided then the provisions of the General Statutes would be applicable more so when the special statute is not itself a complete code. He further contended that as the judgment and decree was passed by the trial Court, therefore, it can be challenged by way of filing a regular first appeal under Section 96 of CPC. It is also contended that the issue of jurisdiction, and maintainability of the claim case before the Court below can very well be agitated by filing a first appeal.

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11) In the matter of R.M.A.R.A. Adaikappa Chettiar V. Ra.

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Chandrasekhara Thevar, 1947 (74) I.A. 264 , the Privy Council held that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto, and an appeal lies, if authorized by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal. The relevant para is reproduced herein below:-

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“The same view was expressed by their Lordships of the Privy Council in R.M.A.R.A. Adaikappa Chettiar v. Ra. Chandrasekhara Thevar (1947) 74 I.A. 264, wherein it was said :-

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"Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies if authorized by such rules, notwithstanding that the legal right claimed arises under a special statute which does not, in terms confer a right of appeal."

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Again in Secretary of State for India v. Chellikani Rama Rao (1916) ILR 39 Madras 617, when dealing with the case under the Madras Forest Act their Lordships observed as follows :-

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"It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the statute

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just quoted. In their Lordships' opinion this objection is not wellfounded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the country, with regard to whose procedure, orders, and decrees the ordinary rules of the Civil Procedure Code apply."

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Though the facts of the cases laying down the above rule were not exactly similar to the facts of the present case, the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the present case. Section 76 of the Trade Marks Act confers a right of appeal to the High Court and says nothing more about it. That being so, the High Court being seized at such of the appellate jurisdiction conferred by section 76 it has to exercise that jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, his judgment becomes subject to appeal under clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks Act."

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12) In the matter of Hindustan Co-operative Insurance Society Ltd. (supra) , their Lordships held that if the particular Act is itself a complete rule on the subject matter, the expression of that rule would undoubtedly amount to an exception of the subject matter of the rule out of the general Act.

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As the Act of 1855 is not a complete Code though it is a special Act but there is no provision for appeal or revision, therefore, the dispute would be governed by the ordinary rules of procedure.

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13) In the matter of Terapalli Dyvasahata Kumar (supra), the Hon’ble Supreme Court placing reliance on the judgment passed by their Lordships of Privy Council in the matter of Adaikappa Chettiar (supra) held that the principle enunciated therein is one of general application and has an apposite application to the facts and circumstances of the case. It is further held that the High Court being seized at such of the appellate jurisdiction conferred by Section 76, has to exercise that

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jurisdiction in the same manner as it exercises its other appellate jurisdiction and when such jurisdiction is exercised by a single Judge, and his judgment becomes subject to appeal under clause 15 of the Letters Patent there being nothing to the contrary in the Trade Marks

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Act. Relevant para is reproduced herein below:-

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“Lordships are not in agreement with the view of the full bench of the High Court of Madras, The true rule is that where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute, the Courts are governed by the ordinary rules of procedure applicable thereto, and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special Statute which does not in terms confer a right of appealsee Secretary of State for India v. Chelikani Rama Rao (1916) L.R. 43 I.A. 192 : S.C. 18 Bom. L.R. 1007 and Hem Singh v. Basant Das (1936) L.R. 63 I.A. 180 : S.C. 38 Bom. L.R. 479.

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The question therefore to be considered in the present ease is whether a right of appeal from the orders in question was conferred by the Civil Procedure Code. The order of February 9, 1939, was not made in execution proceedings but it was made in a suit, and, in their Lordships' opinion, it amounted to the formal expression of an adjudication which so far as regards the Court expressing it, conclusively determined the rights of the parties with regard to one of the matters in controversy in the suit, namely, whether the judgment-debtor was an agriculturist and entitled therefore to have his debt discharged or reduced under the Act. In their Lordships' opinion the order was a decree within the meaning of Section 2(2) of the Civil Procedure Code and an appeal lay under Section 96 of the Code. That being so the High Court was wrong in entertaining an application in revision, since under Section 115 of the Code there is no jurisdiction in revision where an appeal lies. The order of the High Court setting aside the order of the Subordinate Judge of February 9, 1939, will have to be set aside, but this is not of any practical consequence since the application on which the order was made was redundant. The appeal against the order of July 25, 1938, was rightly entertained. That order related to the execution, discharge or satisfaction of a decree within the meaning of Section 47 of the Code, and an appeal therefore lay under Section 96.”

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14) I have heard learned counsel appearing for the parties and perused the

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documents placed on the record with utmost circumspection.

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15) The plaintiff filed a civil suit under Section 1A of the Act of 1855 claiming therein compensation of Rs.20,00,000/- for wrongful and negligent act on the part of defendants No.1 & 2 as in electrocution, she lost her left hand. Learned Trial Court passed the judgment and decree in the suit and awarded Rs.17,51,319/- as compensation. The suit was tried as a civil suit and it was registered as a regular civil suit. The Preamble of the Act of 1855 reads as under:-

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“Preamble-

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WHEREAS no action or suit is now maintainable in any Court against a person who, by his wrongful act, neglect or default, may have caused the death of another person, and it is often-times right and expedient that the wrong-doer in such case should be answerable in damages for the injury so caused by him.”

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A bare reading of the ‘Preamble’ would show that where no action or suit is maintainable in any Court against a person, in such a situation, against such person who, for his wrongful act, neglect or default, may have caused the death of another person should be answerable in damages for the injury so caused by him.

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The suit would be maintainable if the plaintiff(s) has/have claimed damages on account of the wrongful act, negligence, default or death of another person, thus the contention raised by the learned counsel appearing for defendants No.1 & 2 is misplaced that damages can be claimed in cases of death only.

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16) Section 1A of the Act, 1855 reads as under:-

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“1A. Suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong.-

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Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured and although the death shall have been caused under such circumstances as amount in law to felony or other crime.

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[**** Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any, of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased;

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and in every such action, the court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought, and the amount so recovered, after deducting all costs and expenses, including the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, or any of them, in such shares as the court by its judgment or decree shall direct.

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17) This Section says that whenever the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in such a situation, the suit can be filed for the benefit of the wife, husband, parent, child or person whose death shall have been caused.

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18) This Section makes it clear that the suit can be filed either by the legal representatives of the deceased and at the same time, if death had not ensued, the parties injured may maintain an action and recover damages, therefore, the contention made by Mr. Sharma appears to be misplaced.

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19) Section 2 says that not more than one suit is to be brought. Section 3

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provides that the plaintiff shall deliver particulars etc., meaning thereby the words “suit”, “plaint” and “plaintiff” have been used in the Act of 1855. Further, in the Act of 1855, there is no provision for appeal or revision.

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20) In the matter of Mukund Dewangan Vs. Oriental Insurance Company Limited, 2017(14) SCC 663, the Hon’ble Supreme Court held that the Statute must be read as a whole. The provision of a Section cannot be construed in parts. It is also held that when the words of a statute are clear or unambiguous, the courts are bound to give effect to that meaning irrespective of the consequences. Paras 35 & 36 are reproduced herein below:-

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“35. The conclusion, that the language used by the legislature is plain or ambiguous can only be arrived at by studying the statute as a whole. Every word and expression which the legislature uses have to be given its proper and effective meaning, as the Legislature uses no expression without purpose and meaning. The principle that the statute must be read as a whole is equally applicable to different parts of the same section. The section must be construed as a whole whether or not one of the parts is a saving clause or a proviso. It is not permissible to omit any part of it, the whole section should be read together as held in The State of Bihar v. Hira Lal Kejriwal & Anr., AIR 1960 SC 47.

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36. The author has further observed that the courts strongly lean against a construction which reduces the statutes to a futility as held in M. Pentiah & Ors. v. Muddala Veeramallappa AIR 1961 SC 1107 and Tinsukhia Electric Supply Co. Ltd. v. State of Assam & Ors. (1989) 3 SCC 709. When the words of a statute are clear or unambiguous i.e. they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of the consequences as held in Nelson Motis v. Union of India & Anr. (1992) 4 SCC 711, Gurudevdatta VKSSS Maryadit & Ors. v. State of Maharashtra & Ors., (2001) 4 SCC 534 and Nathi Devi v. Radha Devi Gupta (2005) 2 SCC 271. It is also a settled proposition of law that when the language is plain and unambiguous and admits of only one meaning no question of construction of a statute arises for the Act speaks for itself as held in State of Uttar Pradesh v. Vijay Anand Maharaj AIR 1963 SC 946.

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21) In the matter of Pearl Mech, Engg and Foundry Works P. Ltd.

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(supra) , the Hon’ble Supreme Court has defined the word “jurisdiction”. It is further held that if the power is conferred with the Court or Tribunal, it has to be exercised.

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22) The Hon’ble Supreme Court in the matter of Sadhna Lodh (supra), where against the award passed by the Motor Accidents Claims Tribunal, a writ petition under Article 226/227 of the Constitution of India was filed which was dismissed and against that order, a Letters Patent appeal was preferred before the Division Bench and the same was also dismissed on the ground that the writ petition was not maintainable but the same was allowed overruling the objection, the Hon’ble Supreme Court in that premise held that where a remedy has not been provided for appeal against the order and judgment of the District Judge, the remedy available to the aggrieved person is to file a revision before the High Court and if the revision is barred, the petition under Article 227 of the Constitution of India would lie. But in the present case, the suit was tried, issues were framed and a decree was passed in accordance with Order 2 Rule 2 of CPC, therefore, in the opinion of this Court, the civil revision is not maintainable and a regular appeal would lie according to the provisions of Section 96 of the CPC.

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23) The issue of maintainability is decided accordingly. The Civil Revision is dismissed as not maintainable. However, the applicants would be at liberty to prefer a duly constituted appeal raising all available grounds in that appeal, if so advised.

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(Rakesh Mohan Pandey)

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Judge

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Rekha

Chhattisgarh State Power Distribution Company Limited v. Ku. Seema Kosle

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Chhattisgarh State Power Distribution Company Limited v. Ku. Seema Kosle

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