Complaint is filed on 13-4-2009
Compliant disposed on 5-1-2011
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
SRI. K. CHANDRA MOHAN RAO, B.Com., LL.B., MEMBER
WEDNESDAY, THE FIFTH DAY OF JANUARY, TWO THOUSAND ELEVEN
CONSUMER COMPLAINT NO. 70 OF 2009
Between:
Nalla Lakpathi, S/o. Yellaiah, age 18 years, Occ: Student, R/o. Mallapur village and mandal of Karimnagar district.
… Complainant
AND
- The Chairman and Managing Director, A.P. Transco, Hyderabad.
- The Chief Engineer, A.P. Transco, Warangal.
- The Superintending Engineer, A.P. Transco, Karimnagar.
- The Divisional Engineer, A.P. Transco, Jagtial.
- The Asst. Engineer, A.P. Transco, Mallapur village and mandal of Karimnagar distroct.
- Nalla Yellaiah, S/o. Balaiah, Age 51 years, Occ: NIL, R/o. Mallapur village and mandal of Karimnagar district.
. …Opposite Parties
This complaint is coming up before us for final hearing on 27-12-2010, in the presence of Sri G.Srinivas Goud and R. Shashidhar, Advocates for complainant and Sri B.Venkateshwar and H.Chakradhar and M.A. Dastagirikhan and K. Sampath Reddy, Advocates for opposite party no.1 to 5. The opposite party no.6 remained exparte, 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 under Section 12 of C.P.Act 1986 praying this Forum to direct the opposite party no.1 to no.5 to pay a sum of Rs.5,00,000/- with interest towards compensation to complainant and costs of legal proceedings.
2. The brief averments of the complaint are that the complainant is consumer of opposite parties vide Service Connection No.634 at Mallapur Village and Mandal of Karimnagar district. On 23.8.2003 at about 5.30 P.M. while the complainant’s mother went to S.C. Colony beside Transformer to see her buffalo which was touched by the earth wire of the current pole, she tried to remove the said earth wire, but suddenly she also got electrocution from that wire, as a result the mother of the complainant and the buffalo died on the spot due to electrocution. Prior to the accident, the people of the said colony had given a complaint to opposite party no.4 several times to arrange Gun Insulation to avoid electrocution. But the opposite parties did not take any steps.
3. On the complaint given by the complainant’s father the Police of P.S. Mallapur registered a case in Cr.No.105/2003 on 24.8.2003. The deceased was aged 38 years and was hale and healthy at the time of her death. She was agriculturist by profession was having 3 acres of land. She used to earn average of Rs.60,000/- to Rs.80,000/- by selling milk from rearing 10 she-buffaloes. Due to death of deceased the complainant lost love and affection of his mother in her younger age and opposite party no.6, the husband of the deceased who is suffering with Paralysis lost his companion. Had the opposite parties taken any preventive measures on the complaint given by the people of S.C. Colony, the accident would not have occurred and complainant would have lived at least 40 more years and would have earned lakhs of rupees. Thereafter the complainant and his father submitted several representations to opposite parties demanding compensation, but the opposite parties postponing the same on one pretext or the other. Hence, the complainant got issued Legal Notice to opposite party no.1 to no.5 on 27.12.2008 through his counsel. Even after receiving the Legal Notice the opposite parties neither replied nor paid the compensation. Therefore, the complainant filed this complaint.
4. Opposite party no.1 to no.4 adopted the counter affidavit filed by opposite party no.5.
5. Opposite party no.5 filed counter affidavit of it’s Asst. Engineer (OP) APNPDCL denying the averments made in the complaint and submitted that the complainant is the consumer of opposite parties only to the extent of house service connection but the accident said to have been taken place at the transformer i.e. outskirts which is prohibited area of the village. Hence, there is no relation existing between the complainant and organization as consumer-supplier. No outsider other than the employees and field force of the opposite party is permitted to work or touch the transformer. More over, the transformer and the electric lines are in tact and in good working condition. Thus the deceased is totally responsible for the negligent coming into contact with the transformer which is kept in the middle of the pole and her consequent death for which the opposite parties cannot be made responsible. The complaint filed under C.P. Act is not maintainable as there is no deficiency of service on the part of opposite parties. This is a case of contributory negligence which could be proved only if a regular trial is conducted and as such this Forum has not jurisdiction to entertain and try this case. Hence, prayed this Forum to dismiss the claim of the complainant with costs.
6. The complainant filed his Proof Affidavit reiterating the averments made in the complaint and filed documents which are marked as Ex.A1 to A18. Ex.A1 is the attested copy of F.I.R in Cr.No.105/2003 P.S., Mallapur Dt: 24.8.2003. Ex.A2 is the attested copy of Inquest Report Dt: 24.8.2003. Ex.A3 is the attested copy of Postmortem Report Dt: 24.8.2003.Ex.A4 is the demanded bill issued by opposite parties Dt: 14.11.2006. Ex.A5 is the photo copy of S.S.C. Memo of complainant. Ex.A6 is the original Valuation Certificate of She-buffalo issued by the Asst. Veterinary officer Dt: 24.8.2003. Ex.A7 is the office copy of Legal Notice issued by counsel for complainant Dt: 27.12.2008 addressed to opposite parties. Ex.A8 to A12 are the postal receipts. Ex.A13 to A17 are the postal acknowledgement cards. Ex.A18 is the photo copy of Abstract of opposite parties Dt: 11.08.2007.
7. The opposite parties did not choose to file any document on behalf of them.
8. The point for consideration is whether there is any deficiency of service on the part of opposite parties, if so, what relief can be awarded to the complainant?
9. A perusal of the records and documents reveal that the complainant’s
mother Smt.Nalla Chinna Raju W/o. Yellaiah on touching the buffalo which was close to the transformer got electric shock and died on account of electrocution on 23.8.2003. The buffalo also died simultaneously. Later a case was registered with PS Mallapur vide Cr.No.105 of 2003 on 24.8.2003, Inquest and Autopsy was conducted by Medical Officer, Metpally, and the cause of death was mentioned in PME Report Ex.A3 as shock due to electrocution. In the FIR also it was mentioned that the deceased died due to Electric Shock.
10. The complainant demanded compensation from opposite party no.1 on account of death of his mother and she-buffalo by virtue of being their consumer under Electricity Consumer No.634 at Mallapur village, alleging that the death was caused by the sheer negligence on the part of opposite party no.1 to no.5 in protecting the transformer with gun insulation.
11. The complainant submits that prior to the accident an application was given to opposite party no.4 for taking measures to provide due protection around the transformer but nothing was done as a preventive action which lead to the death of the complainant’s mother depriving the complainant of mother’s love and care at the age of 12 years (Date of Birth is 6.12.1999).
12. But the opposite party no.1 to no.5 did not grant any compensation. Subsequently the complainant issued Legal Notice to opposite party no.1 to no.5 on 27.12.2008 through its counsel demanding compensation of Rs.5,00,000/- but it went un-responded nor was any compensation granted.
13. As a last resort the complainant filed this complaint on 13.4.2009 praying for relief.
14. In their counter/affidavits the opposite party no.1 to no.5 denied all the allegations and disowned their liability to pay compensation to the complainant on the ground that the incident occurred in the outskirts of the village and there is no relation between the complainant and their organization, no nexus between the offence and death of the deceased. Opposite party no.1 to no.5 further submitted that the transformer was placed in an area which was a restricted and prohibited area and so no negligence can be attributed to opposite party no.1 to no.5. They submitted further that the deceased negligently came into contact with the transformer which was kept in the middle of the pole and for her consequent death opposite party no.1 to no.5 cannot be made responsible. They further added that the transformer was kept at a place which is generally not within the reach of the persons and guarded well as such they came into contact of the deceased and her buffalo and their death which attributable only to their negligence for which opposite party no.1 to no.5 cannot be made responsible. They submitted further that the transformer and the electric lines were intact and in good condition and denied the allegation of deficiency of service.
15. Further opposite party no.1 to no.5 referred to the Police investigation in which it was concluded that the death was accidental and opposite parties were not faulted and the case was closed U/s 174 of Cr.P.C. Based on this opposite party no.1 to no.5 disowned their liability.
16. Opposite party no.1 to no.5 further contended that the age of the deceased was mentioned wrongly as more than 45 and that the deceased was house wife and not working or earning as submitted in the complaint. Opposite party no.1 to no.5 contended that the claim was excessive and exorbitant and not commensurate with facts. Opposite party no.1 to no.5 further referred to the Legal Notice issued by the complainant and refutes the contents as without truth and admits that no compensation was paid. In the end opposite party no.1 to no.5 submitted that there is no proper cause of action for the reasons mentioned above and so pray for dismissal of this complaint against them.
17. The learned counsel for the complainant filed a citation of Hon’ble National Commission in RP No.2142 of 2008 in which – live high tension wire fell on deceased when victim was sitting in front of verandah of Gram Panchayat Office – Forum below holding petitioner – opposite party negligent and deficient in maintaining high tension wires – awarded compensation of Rs.2,50,000/- in favour of parents of deceased.
In RP Hon’ble National Commission held that the deceased was consumer as Village Panchayat was using electricity for its office and street lights and paid for same. Villagers paid tax to Village Panchayat and power consumption charges to petitioner’s company and hence they were consumers. No reason to interfere with the orders of the Forum below.
18. Where villagers paid for power consumption charges to Electricity Company they would be consumers for supply and maintenance of high tension wire meant for supply of power in village. In another case of FA no.256/2007 the Hon’ble State Commission upheld the orders of District Forum, Karimnagar awarding compensation of Rs.2,50,000/- to the complainant for the death of the deceased due to electrocution caused by a live wire hanging below a normal height. It affirmed that the deceased was the consumer and that the electricity company was liable for not taking precautionary action to prevent measures.
Hon’ble Supreme Court in MP Electricity Board Vs Shail Kumar reported in 2002 (II) ALD-4 (SC) opined that “at any rate if any live wire got snapped and fell on the public road the electric current there on should automatically have been disrupted, authorities manning such dangerous commodities for extra duty to chalk out measures to prevent such measures”. 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”.
19. 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”.
20. In the light of the aforesaid judgments/authorities we hold the opposite party no.1 to no.5 negligent and deficient in service towards the complainant under the doctrine of strict liability upheld by Apex Court as per Electricity Act 1910 in FA No.256/2007 against the CD No.418/2003.
21. We find the contentions of the opposite party no.1 to no.5 as ill founded and repellable. Merely because no case was booked by Police against the opposite party no.1 to no.5 it cannot be construed that they are not liable for payment of compensation in view of the fact that opposite parties did not take steps to prevent such incidents by Gun Insulation.
22. Here in the instant case had the opposite party no.1 to no.5 taken precautionary measures to protect the area surrounding transformer with gun insulation the tragic mishap would have been averted. Because of their fragrant negligence only the buffalo came into electric contact with the transformer and the power percolated to the complainant’s mother on touching the buffalo and as a result both died causing great loss to the complainant. Especially the loss of mother’s love and care to the young complainant who was 12 years old at the time of mishop is immeasurable.
23. In the result the complaint is allowed in part and the opposite party no.1 to no.5 are directed to pay a sum of Rs.2,00,000/- towards compensation for damages and mental agony with interest @ 9% P.A. from the date of filing the complaint i.e. 13.4.2009 till the date of realization and Rs.1,000/- as costs jointly and severally within one month from the date of receipt of this order. The complainant and opposite party no.6 who is the father of the complainant are entitled to receive the above said amount in equal shares.
Dictated to Stenographer (DUR) and transcribed by her, after correction the orders pronounced by us in the open court this the 5th day of January, 2011.
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MEMBER MEMBER PRESIDENT
NO ORAL EVIDENCE HAS BEEN ADDUCED ON EITHER SIDE
FOR COMPLAINANT:
Ex.A1 is the attested copy of F.I.R in Cr.No.105/2003 P.S., Mallapur Dt: 24.8.2003.
Ex.A2 is the attested copy of Inquest Report Dt: 24.8.2003.
Ex.A3 is the attested copy of Postmortem Report Dt: 24.8.2003.
Ex.A4 is the demanded bill issued by opposite parties Dt: 14.11.2006.
Ex.A5 is the photo copy of S.S.C. Memo of complainant.
Ex.A6 is the original Valuation Certificate of She-buffalo issued by the Asst. Veterinary officer Dt: 24.8.2003.
Ex.A7 is the office copy of Legal Notice issued by counsel for complainant Dt: 27.12.2008 addressed to opposite parties.
Ex.A8 to A12 are the postal receipts.
Ex.A13 to A17 are the postal acknowledgement cards.
Ex.A18 is the photo copy of Abstract of opposite parties Dt: 11.08.2007.
FOR OPPOSITE PARTIES: -NIL-
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MEMBER MEMBER PRESIDENT
