IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 7447 of 1995 For Approval and Signature: Hon'ble MR.JUSTICE J.M.PANCHAL and sd/- MR.JUSTICE M.C.PATEL sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? Yes 2. To be referred to the Reporter or not? Yes 3. Whether Their Lordships wish to see the fair copy of the judgement? No 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? No 5. Whether it is to be circulated to the Civil Judge? No -------------------------------------------------------------- JASUBEN WD/O DEVCHANDBHAI PARMAR Versus GEB -------------------------------------------------------------- Appearance: MS SK VISHEN for Petitioners MS LILU K BHAYA for Respondent No. 1 MR JV JAPEE for Respondent No. 2 -------------------------------------------------------------- CORAM : MR.JUSTICE J.M.PANCHAL and MR.JUSTICE M.C.PATEL Date of decision:30/09/98 ORAL JUDGEMENT (Per J.M. Panchal,J.): In this appeal, which is filed under Section 96 of the Code of Civil Procedure, 1908, the appellants have challenged judgment and decree dated August 31, 1995 rendered by the learned Civil Judge (S.D.), Himatnagar, in Special Civil Suit No.95 of 1992 by which suit filed by the appellants claiming compensation of Rs.3,00,000/for accidental death of deceased Devchandbhai N. Parmar, is dismissed. Deceased Devchandbhai, a resident of village Vansdol, Tal. Idar, had secured first class in the Certificate Course in Wiremen Apprentice conducted by Technical Examinations Board, Gujarat State. Thereafter he had cleared examination for wiremen held by Government of Gujarat and was awarded wireman's certificate on December 24, 1980. He had also obtained certificate dated April 10, 1981 issued by Institute of Trade Engineering which is recognised by Government for having completed prescribed course in thoery and practice of Electric Motor Rewinding. In pursuance of a contract of apprenticeship, the deceased was engaged as a full term apprentice lineman for a period of three years by Gujarat Electricity Board on the terms and conditions mentioned in communication dated September 30, 1987. The apprenticeship of the deceased was to be over on September 30, 1990. An electric repairing work was required to be carried out at Sumitra Ceramics, Motipura, Himatnagar, particularly to change the punctured drop out of double pole structure and for that purpose on August 21,1990, the deceased was instructed to go to the Sumitra Ceramics with Supervisor, Mr.Prahladbhai Virchandbhai Patel. After reaching the premises of Sumitra Ceramics, Mr.Prahladbhai, who was discharging duties as Supervisor of Gujarat Electricity Board, instructed the deceased to do the repairing work only after the Supervisor got the electricity supply snapped. The Supervisor went to the Octroi Naka to inform the concerned employee of Gujarat Electricity Board on phone to disconnect the electricity supply and returning to the place where deceased was standing near double pole structure, he informed the deceased that the electricity supply was disconnected and he was at liberty to carry out the repair work. Relying upon the say of the Supervisor, the deceased climbed up the pole and started rectifying the fault. However, suddenly the deceased received electric shock and sustained injuries. The Supervisor climbed up the pole and brought down the deceased. Thereafter, the deceased was removed to the Civil Hospital, Himatnagar. However, during the treatment the deceased succumbed to injuries on August 27, 1990. According to the appellants, who are dependents and heirs of deceased Devchandbhai, the deceased died of electrocution because of negligence on the part of Supervisor Prahladbhai. It was the case of the appellants that but for the wrong instructions given by the Supervisor, the deceased would not have climbed up the pole, nor would have started doing the repairing work and would have received electric shock. Under the circumstances, the appellants instituted Special Civil Suit No.95 of 1992 in the Court of learned Civil Judge (S.D.), Himatnagar and claimed damages of Rs.3,00,000/-. It may be stated that the appellants had filed appropriate application seeking permission of the Court to file suit as indigent persons. The said application was allowed and the appellants were permitted to institute suit as indigent persons. The Gujarat Electircity Board, which was impleaded as defendant No.1, contested suit by filing written statement at Exh.42 and controverted the averments made in the plaint. In the written statement it was mentioned that the deceased himself was negligent in not checking as to whether the electricity supply was disconnected or not and therefore suit was liable to be dismissed. It was claimed therein that before climbing up the pole, the deceased had not put on rubber shoes, gloves, etc. supplied by the Board, nor had attempted to ascertain as to whether the electricity supply was disconnected by using a piece of insulated wire and thus the deceased himself being negligent, the suit should be dismissed. It was emphasised in the written statement that in view of the provisions of Section 16 of the Apprentices Act, 1961, read with Section 19(2) of the Workmens' Compensation Act, 1923, the Civil Court had no jurisdiction to try the suit and therefore, the appellants were not entitled to reliefs claimed in the plaint. It was also stated that the suit was barred by limitation and therefore the appellants were not entitled to receive any damages. It is relevant to note that though Supervisor Mr.Prahladbhai Virchandbhai Patel was impleaded as defendant No.2 in the suit, no written statement was filed by him controverting the averments made in the plaint. Having regard to the pleadings of the parties, necessary issues for determination were raised by the learned Judge at Exh.21. In support of the averments made in the plaint, Jashiben Devchandbhai Parmar, widow of the deceased, examined herself at Exh.26. Another witness, Ganeshbhai Bababhai Pranami, was also examined by the appellants at Exh.52 in support of their case pleaded in the plaint. He had recorded statement of deceased Devchandbhai during the course of investigation of Entry No.157/90 which was report of the accident in question. The said witness produced statement of deceased, recorded by him, at Exh.53. On behalf of the respondent No.1, one Mr.Manilal Girdharbhai Patel, who was then discharging duties as Deputy Engineer in G.E.B. Office, situated at Prantij, was examined at Exh.80. On consideration of oral and documentary evidence led by the parties, the learned Judge held that the Supervisor Mr.Prahladbhai was not negligent in performing his duties. The learned Judge deduced that the Civil Court had jurisdiction to try the suit and the suit was not barred by period of limitation. The learned Judge further held that the accident had taken place because of negligence and carelessness of the deceased himself and therefore, the suit was liable to be dismissed. In view of above-referred to conclusions, the learned Judge dismissed the suit by judgment and decree dated August 31, 1995, giving rise to the present appeal. Ms.Sangeeta K. Vishen, learned Counsel for the appellants, has taken us through the entire evidence on record. Learned Counsel for the appellants submitted that it was the duty of the Supervisor to ascertain whether electricity supply was disconnected or not and as the deceased had climbed up the pole on instructions of the Supervisor, the learned Judge was not justified in holding that the supervisor was not negligent in performing his duties. It was claimed that the evidence on record clearly shows that Supervisor Prahladbhai had gone to the Octroi Naka to inform the concerned employee of Gujarat Electricity Board to snap the electricity supply and after coming back, had informed the deceased that the supply was disconnected and the deceased was at liberty to carry out the repair work and therefore it ought to have been held that deceased died only because of negligence on the part of the Supervisor and deceased was not careless at all in performing his duties. What was highlighted by the learned Counsel by the appellants was that there is no positive evidence on record indicating that either earlier or on the date of accident, the deceased was given rubber shoes or gloves or insulated wire as claimed by G.E.B. in the written statement and therefore the finding recorded by the learned Judge that the accident took place only due to carelessness of the deceased deserves to be set aside. Elaborating the aspect of negligence, learned Counsel submitted that the statement of deceased Devchandbhai, which should be treated as his dying declaration, read with the evidence of Deputy Engineer examined by the Board, clearly establishes that there was sheer negligence on the part of Supervisor before instructing the deceased to repair the line and therefore the appeal deserves to be allowed. Learned Counsel for the appellants stressed that Section 16 of the Apprentices Act, 1961 does not bar jurisdiction of Civil Court to try the suit and therefore the finding recorded by the learned Judge that Civil Court has jurisdiction to try the suit should be upheld. On the aspect of damages, it was claimed that but for the accident, the deceased would have completed the training course successfully within three months of the accident and in all probability would have been employed with the G.E. Board as a regular employee and therefore the damages claimed by the appellants being reasonable, should be awarded to them. Ms. Lilu K. Bhaya, learned Counsel for the respondent No.1, submitted that the G.E. Board had deposited a sum of Rs.31,000/- with the Commissioner, Workmen's Compensation Act, 1923 and as the said amount was withdrawn by the appellants during the pendency of the appeal, the suit filed by the appellants was not maintainable. It was claimed that Section 16 of the Apprentices Act, 1961 read with Section 19(2) of the Workmen's Compensation Act, 1923 bars the jurisdiction of civil Court to try suit of the nature filed by the appellants and therefore dismissal of the suit by the learned trial Judge should not be interfered with in the present appeal. It was stressed on behalf of the Board that before actually starting work of repairing, the deceased had not taken steps to ascertain whether electricity supply was disconnected or not by using an insulated wire and thus there being complete negligence on the part of the deceased, the suit was rightly dismissed by the trial Court. It was asserted that while doing the repairing work, the deceased had neither put on rubber shoes nor gloves supplied by the G.E.B. and therefore the deceased himself being negligent, the appellants were not entitled to any damages. In the alternative, it was pleaded by the learned Counsel for the respondent No.1 that at the time of accident, the deceased was getting stipend of Rs.390/- per month and therefore the damages claimed on the basis that the deceased would have been employed with the Board on completion of training course being erroneous, the compensation as claimed by the appellants should not be awarded. So far as point of jurisdiction of civil Court to try the suit is concerned, Section 16 of the Apprentices Act, 1961 provides that if personal injury is caused to an apprentice by accident, arising out of and in the course of his training as an apprentice, hie employer shall be liable to pay compensation which shall be determined and paid, so far as may be, in accordance with the provisions of the Workmen's Compensation Act, 1923, subject to the modifications specified in the Schedule. The Schedule appended to Apprentices Act, 1961 reads as under:- "THE SCHEDULE (See Section 16) Modifications in the Workmen's Compensation Act, 1923 in its application to apprentices under the Apprentices Act, 1961.- In the Workmen's Compensation Act, 1923- (1) in section 2,- (a) for clause (e), substitute- (e) "employer" means an employer as defined in the Apprentices Act, 1961, who has engaged one or more apprentices; (b) omit clause (k); (c) for clause (m), substitute- (m) "wages means the stipend payable to an apprentice section 13(1) of the Apprentices Act,1961; (d) for clause (n), substitute- (n) "workman" means any person who is engaged as an apprentice as defined in the Apprentices Act,1961, and who in the course of his apprenticeship training is employed in any such capacity as is specified in Schedule II; (2) omit section 12; (3) omit section 15; (4) omit the proviso to section 21(1); (5) omit the words "or a registered Trade Union" in section 24; (6) omit clause (d) in section 30(1); (7) omit clause (vi),(xi),(xiii),(xvii),(xviii), (xx),(xxii),(xxiv),(xxv) and (xxxii) in Schedule II." On analysis of Section 16, it becomes evident that if an apprentice receives personal injury by accident arising out of and in the course of his training as an apprentice, his employer is liable to pay compensation. The compensation has to be determined in accordance with the provisions of Workmen's Compensation Act, 1923. It is also required to be paid in accordance with the proivisions of the Workmen's Compensation Act, 1923. Section 16 of the Apprentices Act, 1961 cannot be construed as excluding jurisdiction of civil court to try a suit for damages, which may be filed on the basis of tortious act of the employer or some persons for whose act or default he is responsible. At this stage, it would be advantageous to notice the provisions of Section 3 sub-section (5) of the Workmen's Compensation Act, 1923, which are as under:- "3.(5) Nothing herein contained shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted in a Civil Court a suit for damages in respect of the injury against the employer or any other person; and no suit for damages shall be maintained by a workman in any court of law in respect of any injury-- (a) if he has instituted a claim to compensation in respect of the injury before a Commissioner;or (b) if an agreement has been come to between the workman and his employer providing for the payment of compensation in respect of the injury in accordance with the provisions of this act." A bare look at the provisions of sub-section (5) of Section 3 of the Workmen's Compensation Act, makes it apparent that suit for damages will not be maintainable by a workman in any Court in respect of an injury, if he has instituted a claim to compensation in respect of the injury before a Commissioner under the provisions of Workmen's Compensation Act, 1923. It is true that the appellant had deposited a sum of Rs.31,000/- with the Commissioner, Workmen's Compensation Act, 1923 and the said amount was withdrawn by the appellants during the pendency of the appeal. However, deposit of the amount by the respondents with Commissioner or withdrawal of the said amount by the appellants cannot be interpreted to mean as institution of a claim to compensation by the appellants in respect of the injuries sustained by the deceased before a Commissioner under the provisions of the Workmen's Compensation Act, 1923 so as to bar suit for damages in Civil Court. Where death gives rise to a claim for compensation under the common law as well as Workmen's Compensation Act, the party entitled to compensation can claim compensation under either of the laws but not under both. The words "may claim" make it clear that the option is left to the person entitled to compensation to choose whether he would seek the remedy available under the common law or the Workmen's Compensation Act. It is, therefore, obvious that if he has exercised his option and has chosen one of the two remedies available to him he would be entitled to compensation under the chosen remedy only. But merely because the appellants had received compensation deposited by the respondents suo motu to discharge obligation under the statute, it cannot be said that the appellants had exhausted their option to claim compensation under the Workmen's Compensation Act and were therefore debarred from claiming compensation under the common law. The words "may claim" clearly indicate that the option is with the person entitled to compensation and that option cannot be taken away by the act of a third party discharging his obligation under the Workmen's Compensation Act. The appellants could not have prevented the respondent No.1 Board from discharging its obligation under the statute of depositing the amount as requirede by Section 4 of the Workmen's Compensation Act. In order to negative the claim made under the common law, it must be shown that the person entitled to compensation had made a claim for compensation under the Workmen's Compensation Act. Deposit of compensation money by a third party in discharge of his obligation under the Workmen's Compensation Act can never be tantamount to the option being exercised by the person entitled to compensation. Moreover, the test for the purpose of determining whether a suit for damages on the ground of personal negligence or wilful act of the employer or of some persons for whose act or default he is responsible is barred would be whether the Commissioner working under the Workmen's Compensation Act would have jurisdiction to entertain and grant relief in case of a claim for compensation or damages arising out of the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible. Learned Counsel for the respondents submitted that in view of the provisions of Section 19(2) of the Workmen's Compensation Act, 1923, the jurisdiction of the civil Court to try the suit is ousted. In our view, there is no substance in this contention and it cannot be said that the civil court had no jurisdiction to try the suit which was filed by the appelants for damages. It cannot be said that the Commissioner can adjudicate upon the question of the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible and grant relief. The Commissioner will be concerned only with the question whether the injury caused to the workman by the accident arose out of and in the course of his employment and to what amount of compensation the workman will be entitled. The Civil Court functioning under the general law and the Commissioner working under the Workmen's Compensation Act have to operate in totally different and distinct fields and have to give their decisions on totally different considerations. The liability contemplated by Workmen's Compensation Act for payment of compensation to a workman, who has either died or has received injuries during the course of his employement, is a liability of an absolute nature while the liability for damages which a civil court functioning under the general law has to take into account is the liability which is based on tort. The liability which a civil court is supposed to take into account is fault-based liability which involves the consideration of the question whether the alleged tortfeasor has committed any act of negligence. The Commissioner working under the Workmen's Compensation Act for the purpose of fixation of liability is not expected to go into the question whether the injury or death of a workman during the course of his employment is the result of any negligence on the part of anybody else. Therefore, the suit filed by the respondents was rightly tried by the learned Judge and Civil Court had ample jurisdiction to try the same. Even otherwise, the exclusion of jurisdiction of the civil Court is not to be readily inferred. The jurisdiction of Civil Court to try any such suit is neither expressly barred nor impliedly barred, unless a claim is made by the workman or his dependents under the provisions of Workmen's Compensation Act, 1923. Section 3(5) read with Section 19(2) makes it clear that if a workman institutes the suit for damages in a civil Court he will not be entitled to claim compensation under the Act and vice versa. This prohibition is significant in that in a civil Court a workman can claim compensation beyond the amount which has been specified under the Workmen's Compensation Act, by proving among other things, the extent of not only the loss of his earning capacity but also the actual and probable loss of his earnings. But under the said Act, the amount of compensation that he can claim even when he proves 100 per cent loss of his earning capacity is restricted to that specified in Schedule IV of the Act. Section 3(5) puts a ban on making two separate claims-one before the Commissioner under the Workmen's Compensation Act and another in the civil Court. Duplication of proceedings occasioned by a claim filed under the Workmen's Compensation Act and a claim under common law is intended to be avoided. The sub-section in effect bars double recovery of compensation in respect of an injury by accident arising out of and in the course of employment. An injury gives a cause of action to the employee to sue for damages in the civil Courts, but it is incumbent in such suits to prove the necessary elements for a suit in damages. The Workmen's Compensation Act, on the other hand, provides for a straightway award of fixed compensation to the workman irrespective of the fault or contributory negligence of either party. Alternative remdeies are prescribed because the grounds upon which damages can be obtained in the civil Court against the employers for breach of duty on the part of the person occasioning it or on the part of his agents or servants are different from the compensation payable under the Workmen's Compensation Act. The workman may, as an alternative to claiming compensation under the Act, elect to avail himself of any other remedy against the employer at common law, i.e. in tort for damages for negligence or wilful act of the employer or of some person for whose act or default the employer is responsible. But he cannot have the best of both the worlds and put his employer in double jeopardy. That is why the Workmen's Compensation Act, 1923 protects the employer not only against the double payment but also against double proceedings. Negligence resulting in injury is a distinct act and constitutes different cause of action than the one referred to in Section 3(5) and therefore the workmen or, as the case may be, his dependents, can avail themself of remedy against the employer at common law, i.e. in tort for damages for negligence or for wilful act of the employer or some other person for whose act or default the employer is responsible. The exclusion of jurisdiction of civil Court will be there only if an application is filed for compensation under the provisions of Workmen's Compensation Act, 1923. As no application was filed by the appellants for compensation under the provisions of Workmen's Compensation Act, 1923, it cannot be said that jurisdiction of the civil court was excluded to try the suit filed by them. Therefore, the contention that civil Court had no jurisdiction to try the suit filed by the respondents and therefore the suit should be dismissed cannot be accepted and is hereby rejected. In order to prove that deceased died because of negligence of the Supervisor, the appellants have relied upon statement of the deceased himself, which was recorded on August 21, 1990 by Head Constable Ganeshbhai Bababhai Pranami. Head Constable, Mr.Pranami, has categorically stated in his evidence, which was recorded at Exh.52 that during the course of investigation of Entry No.157/90, he had recorded the statement of deceased Devchandbhai Nathabhai on August 21, 1990 at Civil Hospital, Himatnagar and at the time of recording of the statement, the deceased was fully conscious and fit to make the statement. In the statement, the deceased stated that after reaching double pole structure, the Supervisor had gone to Octroi Naka to inform the concerned employee of G.E. Board on telephone to disconnect the electricity supply and after coming back had informed him that the electricity supply was disconnected and therefore he should change the punctured drop out. The Head Constable, Mr.Pranami, who has proved the statement, has not been