Date of Filing – 09.09.2015
Date of Hearing – 10.01.2017
PER HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The assail in this appeal under Section 15 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is to the Judgement/Final Order dated 11.08.2015 made by the District Consumer Disputes Redressal Forum, Nadia at Krishnagar (in short, Ld. District Forum) is at the behest of the Opposite Parties in Consumer Complaint No. 88/2014. By its order, the Ld. District Forum allowed the consumer complaint under Section 12 of the Act with a direction upon the Appellant no.1 i.e. Station Manger, WBSEDCL, Krishnagar, Nadia to pay Rs.5,000/- as compensation and Rs.1,000/- as litigation cost aggregating Rs.6,000/- to the Respondent herein by sending a Bank Draft within 15 days, in default the amount shall carry an interest @ 8% p.a. from 16th day till its realisation.
The Respondent herein being Complainant lodged the complaint asserting that the OP no.1gave electricity connection to the OP no.3 through an open line/wire which was hanging over the house of the Complainant for which he has made several requests to OP no.1 for removal of the same from the year 2012 but it yielded no response. On 30.03.2014, the said open damaged service line got fired at about 12:15 P.M. and inspite of lodging complaint, the men of Op nos. 1 & 2 came to the spot at about 03:45 P.M. after a lapse of more than three hours which signifies deficiency in services on the part of them. Hence, the Respondent approached the Ld. District Forum with prayer for certain reliefs, viz – (a) to pay compensation of Rs.4,00,000/-; (b) for negligence and damages of Rs.3,00,000/- etc.
The Appellant nos. 1 & 2 herein being OP nos. 1 & 2 by filing a joint written version have stated that the service connection to the Complainant Sri Anup Gangopadhyay and OP no.3 Sri Shakti Prasad Ganguly were provided on 30.07.2005 and 22.04.1984 respectively. However, later on the Complainant has constructed new building at the vacant place through which service connection was given without informing them. It has also been specifically stated that regarding the property in question, one Partition Suit amongst all the Co-sharers including the Complainant and OP no.3 is pending. The OPs have asserted that no such incident has happened due to negligence on the part of them and as such the petition of complaint should be rejected.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the consumer complaint with several directions upon the OP no.1, as indicated above, which prompted the OP nos. 1 & 2 to approach this Commission with the present appeal.
We have heard Mr. Alok Mukhopadhyay, Ld. Advocate for the Appellants as well as Mr. Hirak Sinha, Ld. Advocate for the Respondent. None appears for Pro-Respondent no.2/OP no.3 to contest the same. We have also scrutinised the materials on record.
Having heard the Ld. Advocates appearing for the contesting parties and on going through the materials on record, it would reveal that the Respondent no.1 and Respondent no.2 are co-sharers in respect of the property through which the service connection in the house of them was given by the Electricity Board. In fact, the service connection in the house of Respondent was installed on 22.04.1984. At the time of such connection, the service was taken through the vacant place and at the relevant time, there was no building at that place. Subsequently, the Respondent no.1 constructed a new building. There is no document whatsoever to show that at the time of construction of the new building in the said place, Respondent no.1 has ever requested the licensing authority to remove the line from that place to some other place so that it may not be a hazardous or dangerous for their lives.
The incident of fire which were broken out on 30.03.2014 at 12:15 P.M. was really a serious one and fortunately, due to intervention of the local people, the said fire was doused. The Ld. District Forum has observed –
“We further hold from the analysis of the evidence of documentary and oral that OP no.1 was not sincere enough to change the direction of live electrical wire. It is only with the direction of the Hon’ble High Court and with the interference of D.M., the electrical line was shifted from the residential premises of the Complainant”. The Ld. District Forum also proceeded to observe – “ The Complainant had contributory negligence on his part to construct a room keeping the line wire inside passing through two walls of the dwelling room. Thus, the Complainant invited the risk of electrocution”.
Needless to say, Complainant is a ‘consumer’ of WBSEDCL in accordance with the provisions of Section 2(1)(d) of the Act. However, in order to attribute liability upon the licensing authority, deficiency on the part of them must be proved by the Complainant. The word ‘deficiency’ has been defined in Section 2(1)(g) of the Act which provides –
“deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner or performance which is required to be maintained by or under any law for the time being inforce or has been under taken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.
The materials on record clearly suggest that a dispute between the two consumers i.e. Respondent nos. 1 & 2 (who are brothers in relation) is going on and a Partition Suit between them and other co-sharers is pending and the Respondent no.1 in his complaint before the Ld. District Forum was quite silent in mentioning the same. The materials on record also suggest that the service connection in the house of Respondent no.2 was effected on 22.04.1984 and the service connection in the house of Respondent no.1 was given on 30.07.2015. In fact, the Respondent no.1 has constructed a one storied building later in front of his elder brother’s house. At the time of making such instruction, the Respondent no.1 did not inform the licensing authority for shifting of the line in order to save him from any perilous incident. In any case, God has saved the Respondent no.1 and his wife from the fire. Therefore, the Ld. District Forum has rightly observed that the Respondent no.1 has contributed to the alleged incident of fire that had taken place on 30.03.2014.
In that perspective, there was hardly any reason on the part of the Ld. District Forum to award compensation and costs upon the OP no.1/Appellant no.1as according to Ld. District Forum, Respondent no.1 has himself contributed the same. In case of contributory negligence, question of deficiency as prescribed by the legislature in its wisdom in Section 2(1)(g) of the Act would not be attracted in the facts and circumstances of the case.
The complaint lodged by the Respondent no.1 before the Ld. Chief Judicial Magistrate, Nadia under Section 156(3) of Criminal Procedure Code is altogether a different issue. If any man of the licensing authority misbehaved or abused the wife of the Respondent no.1, certainly the law will take its own course but for that reason, no blame can be given to the Appellants. The licensing authority on the basis of order of Hon’ble High Court in a Writ Petition being No.12577(W) of 2014 shifted the service line of electricity with the intervention of the D.M., Nadia and as such no problem is now existed in respect of such hazardous service wire lying through the house of the Respondent no.1. The Ld. District Forum in the impugned order has failed to give any reason showing deficiency on the part of the OP nos. 1 & 2.
Therefore, after giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties and on evaluation of materials on record, we are of the view that the impugned order not being passed in accordance with the actual facts of the case and law, it should be interfered with. As a result, the appeal should be allowed and consequently, the impugned Judgement/Final Order is liable to be set aside.
For the reasons aforesaid, the appeal is allowed on contest but without any order as to costs.
The impugned Judgement/Final Order is hereby set aside.
Consequently, the CC/88/2014 stands dismissed.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Nadia at Krishnagar for information.
