BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: HYDERABAD.
F.A.No.863/2013 in C.C.No.73/2012,District Forum, Khammam.
Between:
Marikanti Ramulu S/o.late Kistaiah
R/o.Kamalapuram village,
Mudigonda Mandal
Khammam District. ..Appellant/
complainant
And
- The Assistant Executive Engineer
Northern Power Distribution Company of A.P. Ltd.,
Mudigonda Mandal, Khammam District 507 158.
- The Superintending Engineer/Operation,
Northern Power Distribution Company of A.P. Ltd.,
Mamillagudem, Khammam-507 001.
- The Managing Director
Northern Power Distribution Company of A.P. Ltd.,
Hanamkonda-506 004, Warangal District. Respondents/
Counsel for the Appellant: M/s. P.Raghavendra Rao.
Counsel for the Respondents: (M/s P.Vinod Kumar)
QUORUM: HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA, PRESIDENT.
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
AND
SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER.
TUESDAY, THE FIFTH DAY OF AUGUST,
TWO THOUSAND FOURTEEN
Oral Order ( Per Hon’ble Sri Justice GopalakrishnaTamada, President.)
***
The unsuccessful complainant is the appellant and this appeal is directed against the orders dated 20-8-2013 in C.C.No.73/2012 on the file of District Forum, Khammam whereby the District Forum dismissed the complaint.
The brief facts that led to the filing of the complaint are that the complainant is the father of M.Kishore Kumar, who died on account of electrocution. The complainant alleges that the said electrocution was solely on account of negligence on the part of the electricity department i.e. opposite parties. The opposite parties agreed to pay an amount of Rs.1 lakh towards ex-gratia and the said amount was paid. Despite the said payment of ex-gratia, the complainant being not content with the said amount, approached the District Forum and filed the present complaint claiming a total compensation of Rs.6 lakhs with interest on account of death of his son (herein after called the deceased).
The said complaint was resisted by the opposite parties stating that the accident occurred due to technical fault and not due to their negligence, however, they offered to pay ex-gratia of Rs.1,00,000/- and the complainant gave an undertaking that he will not approach any court while receiving the amount of Rs.1 lakh towards ex-gratia and in those circumstances submitted that the complainant was precluded from approaching the District Forum.
After considering the entire material on record i.e. Exs.A1 to A8 marked on behalf of the appellant/complainant and Exs.B1 to B7 marked on behalf of the opposite parties, the District Forum dismissed the complaint on the ground that the said undertaking given by the complainant and marked as Ex.B5 clearly comes in the way of the complainant claiming any compensation.
As stated supra, the said order is under challenge before us.
The learned counsel for the appellant/complainant submitted that payment of ex-gratia has nothing to do with the payment of compensation etc., and the Fora can definitely entertain the complaint like this as and when the death was unusual. He further relied on Section 28 of the Contract Act and contended that Section 28 of the Contract Act, clearly states that an undertaking like the one which was marked as Ex.B5 cannot be acted upon for payment of compensation etc.,
The learned counsel for the respondents, Mr.A.Jayaraju, opposed the said submissions stating that the District Forum was justified in dismissing the complaint for the reason that the appellant/complainant had entered into an agreement while receiving the ex-gratia and in those circumstances, he cannot again turn round and claim compensation and file the complaint.
Section 28 of the Contract Act postulates as under:
28. [Every agreement,—
(a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or
(b) which extinguishes the rights of any party thereto, or discharges any party thereto from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent.]
Savings of contract to refer to arbitration dispute that may arise.—
Exception 1.—This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.
Suits barred by such contracts.—When such a contract has been made, a suit may be brought for its specific performance, and if a suit, other than for such specific performance, or for the recovery of the amount so awarded, is brought by one party to such contract against any other such party, in respect of any subject which they have so agreed to refer, the existence of such contract shall be a bar to the suit.
Saving of contract to refer questions that have already arisen.—Exception 2.—Nor shall this section render illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration.
Agreements void for uncertainty.
Further we are of the considered view that payment of ex-gratia is on account of unusual death of the deceased and the said payment in our considered view cannot come in the way of courts directing payment of compensation etc.,
We rely on the judgement reported in M.P. Electricity Board Vs. Shail Kumar reported in 2002 (2) ALD 4 (SC) opined :
“It is an admitted fact that the responsibility to supply electric energy in the particular was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into if the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the Board that somebody committed mischief by siphoning such energy of his private property and that the electrocution was from such diverted line. It is the look out of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps.”
It was further observed:
“Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risk exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability case on such person is known, in law, as “strict liability”.
It differs from the liability which arises on account of the negligence or fault in this way i.e., the concept of negligence comprehends that the foreseeable hard could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.”
and the Hon’ble National Commission in REVISION PETITION NO. 3457 OF 2009 in Divisional Engineer (Operations) and another v. Smt. Bujamma and others dated 26-2-2013 wherein it was held that the Petitioners are service providers, to whom deceased had paid for sanction and installation of the electricity connection including wiring, and it was, therefore, their responsibility to ensure that it was properly maintained and kept in a good condition so that it does not snap and also in F.A.No.58/2008 dated 02/04/2013 held thatwe are in agreement with the finding of the State Commission that the death of Respondent No.1’s husband occurred because of his accidentally touching a stay wire which was not properly insulated, for which the Appellant-Nigam are clearly responsible since they are required to ensure that such installations are properly and securely maintained so that there are no safety hazards to consumers/public.
From the above judgements and pleadings it is clear that the deceased a graduate and prosecuting further studies in M.B.A. and is aged 23 years and in those circumstances, we are of the view that a person who has bright future has lost his life and the complainant who is sufficiently old and would have depended on the deceased has lost their valuable support on account of the sudden death of the deceased. The District Forum has not taken these facts into consideration while dismissing the complaint and in those circumstances, we are of the considered view that the appellant/complainant is to be compensated.
Accordingly we allow this appeal and award an amount of Rs.3,00,000/- in addition to Rs. 1,00,000/- granted towards ex-gratia and we direct the respondents to pay the said amount of Rs.3,00,000/- with interest at 9% p.a. from the date of death i.e. 29-11-2010 till the date of realization within a period of four weeks from the date of receipt of this order. There shall be no order as to costs.
Sd/-PRESIDENT.
Sd/-MEMBER.
Sd/-MEMBER.
JM Dt.05-8-2014.
