For the Appellant                 Ms. Ritika Srivastava, Advocate with

                                        Authority letter   

For the Respondents            Mr. Pawan Kumar Ray, Advocate with

                                        Mr. Samarth Agrawal, Advocate   

ORDER

PER MR SUBHASH CHANDRA

1.      This First Appeal under section 19 of the Consumer Protection Act, 1986 challenges the order dated 31.07.2019 in Complaint no.79 of 2013 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (in short, ‘the State Commission’), partly allowing the complaint and directing the Opposite Parties (Appellant and Respondent No.2 herein) jointly to pay ₹60 lakh within 45 days of the receipt of this order on a fifty-fifty basis along with ₹5,000/- as cost to the Complainant and, in default with simple interest @ 8% per annum holding them liable for deficiency in service in having caused electrocution to Respondent no.1 on account of which his hands were amputated resulting in 70% permanent disability.

2.     The facts, in brief, are that Respondent no.1 who was a second year B Tech student of Respondent No.2 College of Engineering and Technology met with an electrocution accident on 24.07.2012 at                    09.00 p.m. due to a 33 KV High Tension Wire passing over a mango tree near the college canteen due to electromagnetic field of this HT wire when Respondent no.1 was holding an iron rod under the tree.  Respondent no.1 was provided medical assistance at nearby Dental College and thereafter at Sushrut Institute of Plastic Surgery Super Speciality Hospital, Burns and Trauma Center, Lucknow on 25.07.2012.  However, both his arms were amputated below the elbow resulting in 70% permanent disability.  Appellant/Opposite Party no.1 paid ₹25,000/- to the Specialist Hospital and Respondent no.2 paid ₹75,000/- as an                     ex-gratia apart from ₹83,700/- collected by way of public contribution as compensation to Respondent no.1.

3.     Respondent no.1 approached the State Commission seeking relief of compensation of ₹96,36,568/- under the following heads:

1. ₹10,00,000/- for injuries and permanent disability;
2. ₹10,00,000/- for mental pain and suffering;
3. ₹8,00,000/- for loss of normal enjoyment and amenities of life;
4. ₹7,00,000/- for loss of social status, domestic and normal family work and disfiguration;
5. ₹8,00,000/- for medical expenses from the date of accident uptill now;
6. ₹12,00,000/- for future medical expenses
7. ₹18,33,568/- for prosthetic bilateral hands (₹9,16,784/- per prosthesis) Make Ottobock
8. ₹6,00,000/- for maintenance and replacement cost of prosthesis hand;
9. ₹5,00,000/- for special diet and attendant charges
10. ₹12,00,000/- for loss of future prospects and income

4.     The appeal was decided by the State Commission vide order dated 31.07.2019 on contest.

5.     We have heard the learned counsel for the parties and perused the material on record.

6.     Learned counsel appearing on behalf of the Appellant contended that an enquiry/ investigation was ordered by the Director of Electrical Safety, Government of Uttar Pradesh, Lucknow.  It was contended that under the Electricity Act, in the case of partial disability the maximum compensation permissible was ₹1.00 lakh as per the extant orders of the Electrical Department.  According to the Appellant, there was no privity of contract between it and the Respondent no.1 and that he was only entitled for compensation under the relevant rules of the department.

7.     Learned counsel appearing on behalf of the Engineering College (respondent no.2) admitted that Respondent no.1 was a second year student of B Tech residing in its Hostel, but denied that there was any negligence on its behalf since he used a metal stick for plucking mangoes voluntarily.  It was stated that the over-head electric line was passing through the college prior to the commencement of the college and that              no request for shifting the electrical line had been made by it.  The height of overhead wire was 8 mtrs and was in accordance with the parameters of electrical rules.  It was contended that Respondent no.1 was not a consumer under section 2(1)(d ) of the Act as per the judgment of this Commission in the case of Superintending Engineer (Electrical) Mescom and Others vs Krishan Pujari and Others, IV (2011) CPJ 530 (NC) and Dakshini Haryana Bijli Vitran Nigam Limited and Others vs Bhagwan Das, Ved Prakash, Prem Kumar, III (2014) CPJ 223 (NC).

8.     On behalf of Respondent no.1 it was contended that the incident was on account of negligence of the appellant and the Respondent no.2 which had jointly failed to ensure adherence to the requirement of safety standards and there was negligence on their part since neither the HT electrical wire was relocated from the college itself nor was adequate action taken to provide for safety.  It was contended that it was evident from the enquiry report of the electrical department that the Appellant been indicted and that the department was culpable for the incident and therefore, there was due negligence on their part.  According to Respondent no.1, he had suffered permanent disability while he wanted to become an engineer and having a good future prospect having been a bright student and therefore, his career earnings had been restricted on account of this incident.  It was contended that the explanation given by the Appellant that he could have still been able to conclude his education was incorrect as he would have required prosthetic implant which were costly and beyond his reach.  It was therefore, prayed that the compensation awarded by the State Commission be allowed.

9.     The impugned order has held that:

            The significant question is that despite the fact undisputed high voltage overhead line passing through school complex, whether opposite parties made proper arrangements for safety of students from this high voltage overhead line.

According to version of Opposite Party No.2 construction of school was raised later on while high voltage overhead line was present since earlier merely on this ground opposite Party No.2 cannot be set free from the responsibility of safety of students of school from High Voltage Overhead Line.

Complainant has filed attested copy of inspection report pertaining to investigation arranged by the Director, Electrical Safety, Government of Uttar Pradesh, Lucknow. This fact is lying recorded in this inquiry report that according to Sections 29, 82A of the Indian Electricity Rules 156 Madhyanchal Vidyut Vitran Nigam Ltd., Ses-First, Lucknow, should have cleared line by cutting branches of mango tree and at the time of construction of Surya College, 33 K.V. A Line should been shifted from College Complex. Canteen has been constructed just under 33 K.V.A Lines. 33 K.V.A. Lines are going from College Complex in very dangerous manner. Therefore, under the joint efforts Madhayanchal Vidyut Vitran Nigam Ltd., Ses-First to prepare estimate of line shifting and college administration to make payment of shifting charges and line be shifted away from the college complex or in place of overhead line supply be arranged through underground cables. If Madhyanchal Vidyut Vitran Nigam Ltd., Ses-first & College Administration had shifted line in time, then this would have not occurred. Therefore, officers of Madhyanchal Vidyut Vitran Nigam Ltd, Ses-First and college administration are jointly responsible for this incident.

Opposite Party No.1 School did not adduce any evidence that they should have made efforts for safety from high voltage overhead line passing from the school complex, even to the extent that canteen has been constructed just under high voltage overhead line and despite the fact mango tree exists, displaying any hoarding concerning with any warning, was not ensured. Thus, it is evident that opposite parties are jointly responsible for the stated incident. Accordingly, they committed deficiency in services. Naturally complainant is entitled to get compensation from opposite parties.

10.   The State Commission has proceeded to assess the compensation payable to the complainant and has held as under:

As far as the question of assessing loss is concerned, opposite party no.1 has filed an application to this effect that opposite party no.1 paid ₹25,000/- to O P Chaudhary Hospital, Lucknow for doctors against expenses of hospital. ₹75,000/- were paid from the institution management and ₹83,700/- were paid having made deductions from the salary of employees. Thus, opposite party has paid total ₹1,83,700/-. In addition to this, Department of Electricity paid ₹70,000/-. Thus about ₹2,50,000/- have already paid to complainant.

Undisputedly, at the time of stated incident age of complainant was about 20 years and he happened to be student of B.Tech Second Year. If he minimum projected income of complainant is deemed at ₹ 30,000/- per month and it be deemed that he would spend 1/3 of his income on his personal expenses, then remaining amount may be deemed ₹20,000/- per month i.e. ₹2,40,000/- per annum. On multiplying it by 18 this amount will come at ₹35,20,000/-. Undisputedly, physical disability of complainant has been certified by Chief Medical Officer at 70%. Therefore, in the light of percentage of physical disability of complainant, this loss may be deemed at ₹24,64,000/- Complainant has claimed ₹10.00 in the head of physical disability, ₹10 lakh in the head of mental pains ₹8.00 lakh in the head of deprival of enjoyment of life, ₹7.00 lakh in the head of lowering down social status, ₹8.00 lakh medical treatment expenditure and ₹12.00 lakh medical expenses to be incurred, ₹18,33,538/-against the price of both artificial hands of Auto Bock Company and ₹6.00 lakh for maintenance & change of these hands, ₹5.00 lakh in the head of special diet and attendant charges and                  ₹ 12.00 lakh in the head of loss of future income. Undisputedly, complainant has remained student of B.Tech, therefore, it would be justifiable to make available facility of artificial hands of the best quality to complainant. While adding all the heads shown by complainant, wherein, above-assessed probable monetary loss would also include, in our view it would be appropriate to allow ₹60,00,000/- (Rupees Sixty lakh only) to complainant as compensation. Opposite parties would be liable to pay this amount equally. Complaint is entitled to be allowed partially.

11.   The impugned order has been prayed to be set aside by the Appellant on the ground that the State Commission, while partly allowing the case, ought to have appreciated that the complaint case filed by Respondent no.1 against the Appellant was not maintainable as the Complainant/Respondent no.1 has neither availed any service from the Appellant or paid any consideration or promised to pay any consideration and thus Respondent no.1 does not come within the scope and ambit of the Consumer Protection Act.  It has also stated that Respondent no.1 had filed case no.49274/24/48/2014/OC before the National Human Rights Commission and case no.23072(32)/2014-15.  It was also contended that the Appellant herein has already paid a sum of ₹70,000/- to Respondent no.1 on 28.06.2015 through cheque on humanitarian grounds.  It was therefore, argued that the State Commission had erroneously allowed the complaint filed by Respondent no.1 herein partly.

12.   From the foregoing, it is evident that Respondent No.1 met with an unfortunate electrocution on account of the acts of omissions and commissions by the Appellant and the Respondent No.2 which have been rightly held by the State Commission to constitute an act of ‘deficiency in service’ for which they have been severally and jointly held responsible and directed to compensate Respondent No.1 as per the directions in the order.  The contention of the Appellant that it had no privity of contract with the Respondent No.1 cannot be accepted since it constitutes an issue of not merely an individual’s rights as a consumer but also the larger issue of public safety.  In any case, the internal enquiry conducted by the Electrical Department has clearly owned up to the liability for the incident.  Respondent No.2, in whose care and supervision Appellant No.1 was at the time of incident as a student of the college owned by it, was also obliged to ensure his safety from such an untoward incident by taking necessary safety steps while running the Engineering College.  For these reasons, the Appellant and the Respondent No.2 cannot be absolved of their liabilities for any reason, least of all the hyper technical issues of privity of contract and compensation rules of the Department.  The  compensation already provided and the compensation paid by way of contribution of the staff of the college is noteworthy, however, compared to the loss of earning capacity of Respondent No.1 it is far too miniscule to be considered reasonable or adequate.

13.   We do not find any reason that warrants interference in the impugned order.  The Appeal is dismissed and the order of the State Commission is upheld with the direction that the Appellant and the Respondent No.2 shall comply with the directions of the State Commission within eight weeks, failing which the applicable rate of interest on the amounts payable will be simple interest @ 10% p.a. instead of 8% as awarded by the State Commission, from the date of filing of the Complaint till full and final payment.

14.    Pending IAs, if any, stand disposed of with this order.