Andhra Pradesh

Nellore

CC/23/2014

Vullipayala Radaiah - Complainant(s)

Versus

1.Assistant Engineer Operation A.P.S.P.D.C.L - Opp.Party(s)

M.D.Rahimkhan

27 Aug 2015

ORDER

Date of Filing     :01-04-2014

                                                                                                Date of Disposal:27-08-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Thursday, this the  27^th day of  August, 2015

 

PRESENT: Sri M. Subbarayudu Naidu, B.Com.,B.L.,LL.M.,President(FAC) & Member                             

                   Sri N.S. Kumara Swamy, B.Sc.,LL.B., Member.

 

C.C.No.23/2014

Vullipayala Radaiah,

S/o.Subbaramaiah, Hindu, Aged about 65 years,

Chillamanuchenu Village, Near Meda Sunith Reddy,

Ozili Mandal, S.P.S.R.Nellore District.                                             ..… Complainant 

                                                                           Vs.

1.	Assistant Engineer, Operation, A.P.S.P.D.C.L., Ozili Village & Mandal, Nellore District.
2.	The Superintending Engineer (Operation), A.P.S.P.D.C.L., Dargamitta, Nellore.                                     ..…Opposite parties

                                                              .  

This complaint coming on 21-08-2015 before us for hearing in the presence of                Sri Md. Rahimkhan, advocate for the complainant and  Sri K.  Padmanabhaiah,   advocate for the opposite parties  and having stood over for consideration till this day and this Forum made the following:

 

ORDER

(ORDER BY  Sri N.S. KUMARA SWAMY, MEMBER)

 

The brief averments of the complaint are that the complainant  is  eakingout  his livelihood by  grazing sheeps while returning, the complainant sheeps after grazing on                    03-11-2012, the sheeps were moving and touched the electrical pole stay wire in which high voltage current passed near  Meda Suneel Kumar Reddy fields  and  consequent on that the sheeps were died due to electrical shock.  The 1^st opposite party visited the spot immediately on report by the complainant and promised to provide compensation.  The veterinary assistant surgeon, Veternary Dispensary, Ozili also visited the spot and issued certificate ascertaining the death of shops due to electrical shocks.  The complainant further alleged that the legal bounden duty of opposite party to see that electrical poles and wires are in good condition with proper check and without any hazardous  to the lives of humanbeings.  The complainant approached the opposite parties to pay compensation for their gross negligence but the opposite parties were postponed on some pretext or the other.  On account of death of sheeps the complainant and their family members suffers a lot of mental agony and also a financial loss  and food also.  Hence, they are liable to pay the value of said 10 sheeps of Rs.1,50,000/- besides compensation.  Hence, the complaint  seeking relief as prayed  for in the complaint.

 

            2.         The 2^nd O.P. filed adoption memo adopts the counter filed by the 1^st O.P. as his own counter.

 

            3.         On the other hand, opposite party resisted the complaint except admitting that of ten sheeps died due to electrocution.  Further, contended that due to heavy gale, rain and thunder bolts  on 03-11-2012 at about 4-35 p.m. and due to heavy wends the electrical wire which are passed near Meda Suneel Reddy fields were cut and fall down on the stay wire.  During the said time, the ten sheeps were passing on that side  touched the stay wire and died due to electrocution.  Further contended that the Assistant Divisional Engineer, Naidupet submitted proposal for compensation without First Information Report to the Divisional Engineer and after scrutiny the Divisional Engineer returned the proposal for want of First Information Report which is an crucial document and mandatory for the payment of compensation and the same was informed  to the complainant on 02-07-2013.  There is no negligence and deficiency of service on the part of opposite parties as the incident occurred due to Act of God only.  Hence, the complaint may be dismissed with costs.

 

            4.         On behalf of  the complainant, Deposition Affidavit of the complainant is filed as P.W.1 and documents Exs.A1 to A4 marked and on behalf of opposite parties, Proof Affidavit of R.W.1 is filed and no documents marked on their behalf.  Heard the learned counsel for the complainant and also on opposite parties. 

 

5.         The point for determination would be for consideration is :

 

1. Whether there  is deficiency in the service committed by the opposite parties, if so and whether the complainant is entitled  for the claim made in the complaint?”

2)          To what result?

 

            6.         POINT No.1:  This claim arises out of death of 10 sheep said to belong to the complainant  due to electrocution.  According to the complainant, on account of the live wires touching to the pole and electricity passing to the  stay wires, the goats which were grazing  came into contact with the live wires and met with unfortunate death.  Further according to the claimant, the said 10 sheep are worth Rs.1,50,000/-.  The opposite parties failed to pay the damages to the claimant and hence the claim.

 

            7.         The opposite parties no  doubt admit the death of the 10 sheep.  But contended that the claimant has not produced any First Information Report and Post Mortem Certificates issued by the Veterinary  Doctor opining that the said 10 sheep died due to electrocution and therefore they are entitled to disown their liability.

 

            8.         The claimant in order to approach  this Forum seeking compensation, on the ground of deficiency   in service, has to firstly establish that he is a consumer coming within the definition of Sec.2 (i) (d) of the Act.  This claim does not arise from a consumer under the opposite parties.  It is not the claim of the petitioner that he has obtained service connection from the opposite parties and in  that regard he has suffered    any loss due to the act of the opposite parties.  The claimant is a third party who claims that his sheeps died due to electrocution on account of deficiency  of any service.  Therefore under no stretch of imagination, the claimant can  be said to be a consumer within the definition of Sec.2 (i) (d) of the Consumer Protection Act.

 

            9.         In order to substantiate claim for damages, the complainant is relying upon a letter addressed by opposite party No.1 to the Veterinary Doctor, Kasabalendla, certificate issued by the veterinary Assistant Surgeon, Veterinary Dispensary, Ozili and photographs of the scene of incident.  The death of the 10 sheep according to the complainant, is due to accident on account of the rash and negligent act  in not taking care to see that the live wires do not touch the poles and thereby causing the death of any live stock coming into contact with the live wires.  Whenever any death of either human beings or live stock takes place due to electrocution, a complaint has to be lodged with the police.  The police have to register first  information report based on the complaint.  They have to inspect the scene of offence and prepare scene observation report.  After primafacie making sure that the death of the live stock occurred due to electrocution, the  dead animals have to be sent to the Veterinary  Doctor for conducting post mortem examination and obtain P.M.Certificates containing opinion that the death of the sheep occurred due to electrocution.  In the present case no such procedure has been adopted.  Merely because opposite party No.1 addressed a letter to the Veterinary Doctor to conduct P.M. examination over the dead sheep, it cannot be said that the death of the sheep took place due to electrocution.  The Veterinary Assistant Surgeon, Veterinary dispensary, Ozili no doubt issued a death certificate.  For issuing death certificate, the Veterinary Assistant Surgeon should have  independently conducted P.M. examination over the 10  sheep and should have certified that the death of the  sheep occurred due to electrocution.  In the present case, no such P.M. certificate are produced to establish the cause of death of the 10 sheep.  In the absence of P.M.  certificate no value can be attached to the certificate dated 05-11-2012  issued by the Veterinary Assistant Surgeon, Ozili.

 

            10.       The complainant is nextly relying upon the two photos showing the scene of occurrence.  We find two sheep lying dead near the fencing of a field near the land of Meda Sunilkumar.   From a look at the photos, it is clear that there is barbed wire arranged to stone pillars.  It is common in villages, the agriculturist in order to save the crops raised in their lands, arrange fencing with barbed wires.  They also arrange live wires  to such fencing to prevent the wild bores entering into their lands and damage the crop.  The live wires are arranged only with an idea to see that any stray animal if it comes into contact with live wires meets with death.  The  possibility of death of                   10 sheep occurring in that manner due to   rash and negligent act of land  owners cannot  be ruled out.  The Forum has therefore no material document such as  investigation report of the police to establish that the death of the 10 sheep took place due to the act of the God and not due to any live wires having been arranged by owners of the lands.

 

            11.       The claimant claimed an amount of Rs.1,50,000/- as compensation for the death of 10 sheep due to electrocution.  In the entire claim petition and proof affidavit, we do not find any particulars as to whether all the 10 sheep are of same age, stature in height and weight.  There is no material placed with regard to the age of each of  the sheep.  It is not the claim of the claimant that all the sheep are well grown up and all were weighing heavy weight in terms of mutton.  Had the Medical Officer conducted post mortem of each of the goats, the surgeon would have furnished particulars as to whether the sheep are  well nourished, moderately nourished or under  nourished.

 

            12.       The claimant made a claim for compensation at Rs.15,000/- per each sheep.    For  arriving at such value, no material is placed  on records.  Sarpanch of the village is not the competent person with assess the value  of each of the sheep at Rs.10,000/-.

 

            13.       Therefore on an average the value of each of the goats can be arrived at Rs.5,000/- and in that way the value of the 10 sheep can be arrived at Rs.50,000/-.  Therefore  the claim for damages at Rs.1,50,000/-  for the  death of 10 sheep is excessive, exorbitant and the same is not based   on any acceptable material.

 

            14.       It may be that the complainant suffered mental agony and financial loss due to the death of 10 sheep because he is deprived of income from the same.  But that is not a ground to grant compensation for mental agony and financial loss.

 

            15.       The complainant relied  upon the following decision reported in 2010 ACK 1340  in the Hon’ble High Court of Madhya Pradesh, Indore Bench between Oriental Insurance Company Limited Vs. Kamil and others wherein the  “Motor  Vehicles Act, 1988, Section 147 (I) (b) (i) – Motor Insurance – Goods vehicle – Tractor-trolley-Liability of insurance company – F.I.R. mentions that deceased who was travelling in tractor-trolley fell down and was run over by its rear wheel-Insurance company relying on F.I.R. seeks to avoid its liability on the plea that there was breach of policy and of law-Witness who had lodged the F.I.R. deposed on oath that deceased was going on foot, he was hit from behind by tractor-trolly; he denied that deceased was travelling in the vehicle and stated that he was not aware as to how this fact was mentioned in F.I.R.-Whether the Tribunal was justified in relying on the deposition of he witness on oath  and mulcting liability on the insurance company-Held:yes, F.I.R. is not a substantive piece of evidence and it cannot be placed on pedestal higher than the statement on oath.

 

Evidence-F.I.R. – Appreciation of – Material contradiction between the contents of F.I.R. and the statement on oath before the Tribunal by the witness who lodged  the F.I.R. – Whether the Tribunal was justified in relying  on the statement-Held:yes; F.I.R. is not a substantive piece of evidence  and cannot be placed on pedestal higher than the statement made before the court.”

                     The above decision placed by the complainant is not applicable in the instant case  as cause of death must be established only by way of F.I.R. and Post Mortem Certificate issued by the competent authorities concerned and  the complainant could not substantiate the claim  by producing any acceptable documentary proof.. Further, he has miserably failed to establish that he is a consumer  within the meaning of Consumer Protection Act.  In the absence of the same, the complainant is not entitled for any reliefs at the hands of this Forum.

 

            16.       For all the aforesaid discussion, we hold that the complainant failed to establish that he is a consumer and also failed to substantiate the  claim made in the complaint.  Accordingly,  point No.1 is answered.

 

            17.       POINT No.2:  In the result, the complaint is dismissed, without costs.

 

Typed to the dictation to the Stenographer, corrected and pronounced by us in the open  Forum, this the  27^th day of  August, 2015.

 

 

                    Sd/-                                                                                         Sd/-

           MEMBER                                                                               PRESIDENT(F.A.C.)

 

                                                APPENDIX OF EVIDENCE

Witnesses Examined for the complainant

P.W.1  -

05-12-2015

Sri Vullipayala Radaiah, S/o.Subbaramaiah, S.P.S.R. Nellore District (Chief Examination filed).

 

Witnesses Examined for the opposite parties

 

R.W.1  -

07-07-2014

Sri Kokku Gopala Krishna, S/o.Late  VEnkatesu, Assistant Engineer, Operation, APSPDCL, Ozili, Nellore District (Proof Affidavit filed)

 

                             EXHIBITS MARKED FOR THE COMPLAINANT

Ex.A1  -	-	Photocopy of letter from opposite party No.1 to the Doctor, Veterinary Hospital, Kasabalendla.
Ex.A2  -	05-11-2012	Photocopy of Death Certificate from Veterinary Assistant Surgeon, Veterinary Dispensary, Ozili.
Ex.A3  -	-	Two photos.
Ex.A4  -	31-07-2014	Certificate from Chillamanuchenu Grama Surpunch, Ozili Mandal.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

-Nil-

                                                                                                                     Id/-

                                                                                                         PRESIDENT(F.A.C.)

Copies to:

1.	Sri Md. Rahimkhan, Advocate, Nellore.
2.	Sri. K. Padmanabhaiah, Advocate, “Sreerama Nilayam”, 1st street, 23/1301, Tekkemitta, Nellore-3.

 

Date when free copy was issued: