Complaint is filed on 20-04-2009
Compliant disposed on 12-4-2010
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
::AT:: KARIMNAGAR
PRESENT: HON’BLE SRI K. DEVI PRASAD, B.Sc., LL.B., PRESIDENT
SMT. E. LAXMI, M.A.,LL.M.,PGDCA (CONSUMER AWARENESS), MEMBER
MONDAY, THE TWELTH DAY OF APRIL, TWO THOUSAND TEN
CONSUMER COMPLAINT NO. 73 OF 2009
Between:
Boda Prakash Reddy, S/o. Malla Reddy, Age 40 years, Occ: Agrl., R/o. Haripuram village, Mutharam (Manthani) Mandal Karimnagar district.
… Complainant
AND
- Indrasena Reddy, S/o. Not Known, Age 50 years, Occ: Dealer, M/s. Jyothi Electricals, Engineering, Sales and Services, Jyothi Complex, High Way Road, Peddapally, Karimnagar – 505 172.
- M/s. Aquasub Engineering Unit-IV, Nehru Colony, J.N. Palayam, K. Vandamadri Post, Coimbathore, Tamil Nadu State, Rep. by its Manager/Owner.
- M/s. Aquasub Engineering, 16 & 16-A, B.H.E.L. Colony, Rasulpura, Secunderabad – 500 003 Rep. by its Manager.
…Opposite Party No.1 to 3
This complaint is coming up before us for final hearing on 10-3-2010, in the presence of Sri T. Pranab Kumar and P. Mahender, Advocates for complainant and Sri K. Krishna Rao, Advocate for opposite party no.1 to 3, and on perusing the material papers on record, and having stood over for consideration this day, the Forum passed the following:
:: ORDER::
1. This complaint is filed U/s. 12 of C.P. Act 1986 praying this Forum to direct the opposite parties to pay Rs.3,50,000/- along with the cost of Current Motor Rs.8,500/-, the cost of Accessories Rs.3,997/- with interest and costs to the complainant.
2. The brief averments of the complaint are that the complainant purchased TEXMO 0.5 HP Submersible Pump Set JPT 3-10 S.No. 629341 for an amount of Rs.8,500/- vide cash bill no.364 Dt: 12.3.2008 and Accessories for an amount of Rs.3,997/- vide cash bill no.419 Dt: 12.3.2008 from opposite party no.1 with warranty card. The complainant summoned a local private electrician by name Muniganti Ramana Chary for its erection. On 4.7.2008 while he was carrying on the work of erection of current motor and after fitment while it was being run on trial, due to manufacturing defect, the power passed to the body of the motor and the said electrician Ramana Chary received severe electric shock and he died on the spot. The complainant who was assisting the said mechanic also received mild shock but luckily survived. The Police, Mutharam (Manthani) have registered a case in Cr.No.42 of 2007 under Section 174 Cr.P.C. on 4.7.2008 on the complaint lodged with Policy by the wife of the deceased Muniganti Laxmi. The Doctor of Govt. Hospital, Godavarikhani who conducted autopsy over the dead body of Ramana Chary also opined that the death of the deceased was due to Cardio Respiratory arrest due to electrocution.
3. The death of Ramana Chary caused due to defect in electric motor manufactured by opposite party no.2 & 3 which was sold by opposite party no.1 to the complainant. Hence the complainant requested the opposite parties to compensate the legal heirs of the deceased, but they did not respond. Therefore, the complainant paid compensation to the family members of the deceased. The complainant is put to severe mental agony beside financial loss for the purchase of Current Motor, Accessories and the compensation paid to the family members of the deceased. The complainant waited in vain for the response from opposite parties. But there is no response from the opposite parties. Hence, the complainant got issued Legal Notice to opposite parties. On 16.10.2008, the opposite party no.1 got issued reply notice disowning the responsibility. Hence, filed this complaint.
4. Opposite party no.3 filed counter affidavit denying all the allegation made in the complaint except purchase of Current Motor from opposite party no.1. Further submitted that if really there is any manufacturing defect in the current motor purchased by the complainant from the shop of opposite party no.1, he ought to have produce the said current motor before the opposite party no.1 first reported or called for service of opposite party no.1. But the complainant did not chosen for the same. In answer to the allegation made by the complainant, the opposite party no.3 submitted that due to manufacturing defect only the electric power was passed to the body of current motor and later electric shock to the deceased. In fact the entire body of the submersible pump sits completely in the water bore well, as such touching the body does not arise. Therefore, there is no defect or deficiency of service on the part of opposite parties. Hence, prayed this Forum dismiss the complaint with exemplary costs.
5. Opposite party no.1 & 2 filed Memo adopting the counter filed opposite party no.3.
6. The complainant and the opposite party no.3 filed their Proof Affidavits reiterating the contents made in the complaint and counter. The documents filed by the complainant are marked as Ex.A1 to A14.
7. Ex.A1 is the Reply notice issued by opposite party no.1 Dt: 16.10.2008. Ex.A2 is the original bill no.364 of Submersible Pump Set Dt: 12.3.2008 issued by opposite party no.1. Ex.A3 is the Carbon copy of bill no.364. Ex.A4 is the original bill no.419 of Accessories Dt: 12.3.2008. Ex.A5 is the carbon copy of bill no.419. Ex.A6 is the attested copy of F.I.R. Dt: 4.7.2008. Ex.A7 is the attested copy of complaint addressed to S.I. Mutharam Police Station Dt: 4.7.2008. Ex.A8 is the attested copy of Inquest Report Dt: 4.7.2008. Ex.A9 is the Postmortem Examination Report Dt: 30.7.2008. Ex.A10 is the attested copy of letter No.42/Cr/N3/2008 from S.I. of Police, Police Station, Mutharam addressed to the Executive Magistrate and Thahsildar, Mutharam. Ex.A11 & A12 are Paper clippings of Andhra Jyothi and Sakshi News Papers Dt: 5.7.2008 showing the death of Ramana Chary. Ex.A13 is the original Manual with Warranty. Ex.A14 is the original receipt for Rs.2,05,000/- executed on stamp paper Dt: 20.10.2008 from the wife of deceased.
8. The documents filed on behalf of opposite parties are marked as Ex.B1 to B5. Ex.B1 and A13 are one and the same documents. Ex.B2 is the copy of Legal Notice issued by counsel for complainant Dt: 29.9.2008. Ex.B3 and A1 (attested copy) are one and the same documents. Ex.B4 and B5 are the Xerox copies of Ex.A2 and A4.
9. The point for consideration is whether there is any deficiency of service on the part of opposite parties, if so, to what relief the complainant is entitled?
10. The complainant who is the purchaser of Electrical Motor Submersible Pump Set. He availed the service of one electrician of his village by name Ramana Chary for installation of the same to his well at his house of the complainant on 4.7.2008. The case of the complainant is that while said Ramana Chary who carried the work of erection of current motor and after fitment while it was being run on trial due to the manufacturing defect the power passed to the body of the motor and said electrician G.Ramana Chary while attending to his work of fitment received severe electric shock and died. The complainant who was assisting the electrician also received mild electric shock, but luckily survived. It is further claim of the complainant that he had to pay Rs.2,05,000/- as compensation to the family of Ramana Chary and document was also exhibited to this effect by the wife and family members of Ramana Chary. This compensation amount, he was forced to pay as the death of Ramana Chary occurred due to shock due to the defect in the Pump Set. Therefore, the complainant claimed an amount of Rs.3,50,000/- which includes the payment made to the family of Ramana Chary, the cost of the current motor and the accessories along with interest of 18% and also costs.
11. The opposite party denied the claim on the ground that the deceased Ramana Chary is not consumer and therefore, the complaint is not maintainable before this Forum as no damage is caused to the complainant directly by the opposite parties.
12. The learned counsel for the complainant contends that though the complainant is not directly affected, he has to forego the amount and suffered mental agony for the death of Ramana Chary who sustained shock while fitting electric motor. The learned counsel cited two decisions in support of his contention. In the first decision National Consumer Disputes Redressal Commission in a case reported in 1825 (NS) National Consumer and SC on Consumer cases 1986-96 the case was that a complaint was filed by one Dr.B.S.Sidhu who is a publisher of daily News Paper in the name and style “Hak Parast”. He was availing the facility of United News of India (UNI) for receiving fresh news item daily and for that purpose installed a Teleprinter Machine on due payment to them and to the Post & Telegraphic Department. There was some trouble on 20.7.1989 there was a News Item published in Hak Parast highlighting the procession taken out by telephone consumer of Khaital against the Sub Divisional Officer and Jr.Engineer wherein slogans are raised against the corruption in the Department and demands were made to maintain telephone services in proper condition.
13. In the cited case, the complainant case was that the Telephone Department intentionally disconnected the Teleprinter lines and the working of Teleprinter was disturbed causing loss to the complainant and a complaint was lodged immediately. The officials rebuked him and told that the defects in line would continue till they learnt a lesson for publishing defamatory news. A complaint was filed by the editor. The opposite party took objection that the complainant had no locus standy to file the complaint because the application for providing Teleprinter Circuit and the contract was between the Post & Telegraphic Department and UNI and the application for the closure of the Circuit was also made by UNI and also the complainant was bound to ask for arbitration as the case comes under Indian Telegraphic Act and the Consumer Forum had no locus standy to entertain the complaint.
14. The State Commission, Haryana repelled both the preliminarily objections raised by the Department and it was held that Teleprinter services which were enjoyed by the complainant therein had suffered from serious deficiencies and faults in the efficient performance thereof.
15. The Hon’ble National Commission held that the consumer of Tele communication services are entitled to seek relief from the Consumer Forums under C.P. Act. 1986 inspite of the provision contains in Sec “B” of the Indian Telegraphic Act (i.e. with regard to arbitration clause). With regard to the 2nd objection about maintainability of the complaint on the ground that the complainant therein was not consumer, the National Commission held that “after giving detailed reasons, the State Commission had over ruled that preliminary objection as according to them the complainant was a beneficiary, failing within the definition of a “consumer” as he availed the services (i.e. teleprinter services) with the approval of the original hirer (i.e. uni0. We need not repeat the reasons adopted by the State Commission while repelling this preliminary objection as we fully agree with them”.
16. Another authority cited by the learned counsel in 1928 (NS) National Commission & SC ON Consumer Cases 1986-96,
Wherein a minor boy was treated in Spring Meadows Hospital and by the Senior Consultant Pediatrician as the boy was suffering from typhoid and accordingly some medicines were prescribed which includes injection, “Lariago” which was to be administered intravenously to the minor patient. The Nurse of hospital administered the injection to the minor boy and the minor boy immediately on being administering injection collapsed while still in the lap of his mother. There after the minor boy and the minor child was kept on device called manual respiratory though the child kept alive on the manual ventilator the condition of the child did not show any improvement. The patient, minor boy was admitted in the All India Institute of Medical Sciences and the doctors examined him and found that the child is critical and even if he would survive he would like in only vegetative state as irreparable damage had been caused to his brain and there was no chance of survive of the damaged patient. The parents of the minor boy filed complaint claiming damage to the tune of Rs.28,00,000/-. The Insurance Company (Ops) denied the claim, raised objections with regard to the negligence on the part of doctors and the nurse but the Commission on the question of negligence of services held that there was a clear dereliction of duty on the part of the nurse and also doctor and accordingly awarded compensation of Rs.12.5 lakhs to the parents of minor by in addition to it Rs.5,00,000/- compensation to be paid to the parents of the minor child. The Insurance Company issued the Medical Establishment Professional Negligence Errors and Omissions Insurance Policy. Therefore, the Insurance Company was bound to pay Rs.12.5 lakhs apart from this amount Rs.5,00,000/- to the parents of the minor parents. The matter was then carried on to the Hon’ble Supreme Court, it was contended that already the compensation is awarded to the minor child and the minor child is only the consumer but not the parents. And the award of compensation to the parents to a tune of Rs.5.00,000/- is beyond the competence of the Commission. On this question the Hon’ble Supreme Court after receiving Sec 2 (1) (d) (i) and (ii) in para no.11 held that “In the said clause a consumer would mean a person who hires or avails of any services and includes any beneficiary of such services other than the person who hires or avails of the services. When a young child is taken to a hospital by his parents and the child is treated by the doctor, the parents would come within the definition of consumer having hired the services and the young child would also become a consumer under the inclusive definition being a beneficiary of such services. The definition clause being wide enough to include not only the person who hires the services but also the beneficiary of such services which beneficiary is other than the person who hires the services, the conclusion is irresistible that both the parents of the child as well as the child would be consumer within the meaning of Section 2 (1) (d) (ii) of the Act and as such can claim compensation under the Act”.
17. Their lordships further held that “in other words, the learned counsel urged that clause (d) of Section 14 may not be interpreted enabling the Commission to award compensation both to the minor child and his parents. We see absolutely no force in the aforesaid contention in as much as the Commission would be entitled to award compensation under clause (d) to a consumer for any loss or injury suffered by such consumer due to the negligence of the opposite party. If the parents of the child having hired the services of the hospital are consumer within the meaning of Section 2 (1) (d) (ii) and the child also is consumer being a beneficiary of such services hired by his parents in the inclusive definition in Section 2 (1) (d) of the Act, the Commission will be fully justified in awarding compensation to both of them for the injury each one of them has sustained”.
18. In the present case after the tragic incident of death of Ramana Chary a criminal case was registered and FIR was issued. There after the Police got conducted Inquest over the dead body of the deceased and got Postmortem of the dead body conducted. There after the complainant issued a Legal Notice to the opposite parties intimating about the death of Ramana Chary on account of the shock suffered by him with the electric pump set which was supplied by the opposite parties. The complainant has filed bill in proof of purchase of electric Submersible Pump Set and also the accessories. Through the notice the complainant demanded the opposite parties to pay compensation for the death of Ramana Chary and replace the motor pump set. On behalf of opposite parties, opposite party no.1 got issued reply notice through their counsel that denying the allegations made in the notice that the Pump Set was faulty and there was no deficiency/manufacturing defect as alleged by the complainant. Hence, they are not responsible for whatever allegations and consequences mentioned therein in the notice. And the complainant himself is sole responsible for lodging a false claim.
19. Perusal of the notice and reply notice show absolutely there is no denial from the opposite parties about the purchase of Pump Set by the complainant. On the other hand opposite parties have also filed the copy of receipts pertaining receipts issued in respect of purchase of Submersible Pump Set. It is TEXMO 0.5 HP Submersible Pump Set and costs of Rs.8,500/-. Apart from this bill, bill issued for Rs.3,997/- showing the accessories of the Pump Set is filed. The criminal case record i.e. F.I.R., the complaint copy and Inquest Panchanama, and the Postmortem Examination report have been filed in proof of the death of Ramana Chary.
20. The complainant claimed the compensation on the plea that the family members of deceased Ramana Chary raised dispute for payment of compensation for the death of Ramana Chary. There was settlement by the elders in which it was decided that he should pay Rs.2,00,000/- to the wife and family members of deceased Ramana Chary and accordingly he paid the same. In support of his plea the complainant filed Ex.A14, the non-judicial stamp paper executed by the wife and family members of Ramana Chary acknowledging the receipt of Rs.2,05,000/- from the complainant. There is another non-judicial stamp paper which is Dt: 4.7.2008, the recitals of which show that on 4.7.2008 an amount of Rs.1,00,000/- was paid by the complainant to the wife and family members of the deceased as there was settlement for Rs.2,00,000/- and on that day Rs.1,00,000/- was received by the wife and family members of deceased. Though this document is not marked, the recitals show that on 4-7-2008 there was settlement. No evidence is brought on record by the opposite parties contradicting the document Ex.A14 and the plea of complainant. Thus it is clear from this document Ex.A14 that Rs.2,05,000/- was received by the wife and family members of the deceased towards the compensation for the death of Ramana Chary which occurred due to shock while attending the electric Pump Set working at the well of the complainant.
21. The complainant who purchased the Pump Set to fix it to his well intended to avail the services of Ramana Chary for fitting Pump Set. Therefore, though the electrician deceased Ramana Chary is not consumer the complainant had to utilize the services of Ramana Chary to fix the pump set to the well. Therefore, since the complainant used the services of Ramana Chary for fixing electricity Pump Set to the well he would come within the definition of consumer. The above two authorities where in publisher of “Hak Parast” a daily paper was also found to have fallen within the definition of consumer and similarly the parents of minor boy were also held to have come within the definition of consumer, the objection of opposite parties that in this case the electrician would not come under the definition of consumer is not sustainable.
22. There is no denial of death of Ramana Chary due to sustaining electric shock while attending to fix the Pump Set to the well. Even after registering the case by the Police the opposite parties never tried to get the Submersible Pump Set which was sold to the complainant by them under bill No.364 Dt: 12.3.2008 under Ex.A2 checked.
23. No evidence is placed before this Forum by the complainant that he has given death intimation of Ramana Chary in writing to the opposite parties informing them that due to electric shock while fitting the Pump Set which was purchased from the opposite parties till the issue of notice dt: 29.9.2008 under Ex.B2. Therefore, the complainant is not entitled for any interest as claimed ofcourse the complainant is lodged to the police about the death of Ramana Chary.
24. In view of the above discussion the complainant is entitled to receive Rs.2,05,000/- which amount as paid under Ex.A14 to the wife and family members of the deceased Ramana Chary, Rs.8,500/- towards the cost of TEXMO 0.5 HP Submersible Pump and Rs.1,000/- towards costs. The opposite Parties are jointly and severally liable to pay the compensation arrived at as above.
25. In the result the complaint is partly allowed directing the opposite parties to pay Rs.2,05,000/-, Rs.8,500/- towards cost of Pump Set and costs of Rs.1,000/- within one month from the date of receipt of this order.
Dictated to Stenographer and transcribed by her, after correction the orders pronounced by us in the open court this the 12th day of April, 2010.
Sd/- Sd/-
MEMBER PRESIDENT
NO ORAL EVIDENCE HAS BEEN ADDUCED ON EITHER SIDE
FOR COMPLAINANT:
Ex.A1 is the Reply notice issued by opposite party no.1 Dt: 16.10.2008.
Ex.A2 is the original bill no.364 of Submersible Pump Set Dt: 12.3.2008 issued by opposite party no.1.
Ex.A3 is the Carbon copy of bill no.364.
Ex.A4 is the original bill no.419 of Accessories Dt: 12.3.2008.
Ex.A5 is the carbon copy of bill no.419.
Ex.A6 is the attested copy of F.I.R. Dt: 4.7.2008.
Ex.A7 is the attested copy of complaint addressed to S.I. Mutharam Police Station Dt: 4.7.2008.
Ex.A8 is the attested copy of Inquest Report Dt: 4.7.2008.
Ex.A9 is the Postmortem Examination Report Dt: 30.7.2008.
Ex.A10 is the attested copy of letter No.42/Cr/N3/2008 from S.I. of Police, Police Station, Mutharam.
Ex.A11 & A12 are Paper clippings of Andhra Jyothi and Sakshi News Papers Dt: 5.7.2008 showing the death of Ramana Chary.
Ex.A13 is the original Manual with Warranty.
Ex.A14 is the original receipt for Rs.2,05,000/- executed on stamp paper Dt: 20.10.2008 from the wife of deceased.
FOR OPPOSITE PARTIES:
Ex.B1 and A13 are one and the same documents.
Ex.B2 is the copy of Legal Notice issued by counsel for complainant Dt: 29.9.2008.
Ex.B3 and A1 (attested copy) are one and the same documents.
Ex.B4 and B5 are the Xerox copies of Ex.A2 and A4.
Sd/- Sd/-
MEMBER PRESIDENT
