This complaint is coming on for final hearing before us in the presence of Sri K.Venu Gopal, Advocate for the complainant and Sri P.Venu Gopal Rao, Advocate for opposite parties and having stood over for consideration, the Forum made the following:-

O   R   D   E   R

          This is a complaint filed under Section 12 of Consumer Protection Act seeking the relief to direct the O.Ps. to pay a sum of Rs.10 lakhs towards compensation for sustaining injuries and to pay interest @ 12%p.a., from the date of accident till the date of realization and to award cost on the following averments.

          On 18-11-2012 at about 3 P.M. the complainant has taken his cattle for grazing near Garavalasa village.  Since the high tension electrical wires hanging at a low level the same touched the left shoulder of the complainant upon which he sustained burn injuries and was taken to government hospital, Parvathipuram for treatment and from there he was taken to KGH, Visakhapatnam for better treatment.  The complainant was treated as inpatient from 18-11-2012 to 29-12-2012 and his left hand and left leg were amputated and he has incurred an amount of Rs.1 Lakh for medicines, treatment and extra nourishment.  As on the date of accident the complainant was hale and healthy and was earning Rs.200/- per day.  Since the men of O.Ps. were negligent in maintaining the live electrical wires and equipment the above said accident took place.

          The complainant got issued a notice dt.21-2-2013 calling upon the O.Ps. to pay compensation amount but of no avail.  Since the O.Ps. did not maintain the live electrical wires in proper condition there is any amount of dereliction of duties and as there is deficiency of service on their part the complainant filed the complaint for the above said reliefs.

          The 3^rd O.P. filed counter and the same was adopted by O.Ps. 1 and 2.  In the counter the O.Ps. have traversed the material allegations made in the complaint and have averred that the department officials have made detailed enquiries which reveal that while the injured was trying to go to other side of the transformer he had negligently caught the HT bushing of the DTR which is on the plinth and sustained burn injuries and was thrown away.

          It is averred that due to the negligence of the injured, the accident was occurred.  Since the O.Ps. are not negligent in maintaining the live electrical wires and transformer, there is no deficiency of service on their part and as the accident was occurred due to the negligence of the complainant himself the O.Ps. are not liable to pay any compensation to him.  It is averred that no notice was served on the electrical inspector as contemplated under the Electricity Act and as there are no bonafides in the complaint the same is liable to be dismissed.

In support of complainant’s case, the evidence affidavit of P.W.1 is filed and Ex.A.1 to A.7 are marked.  On behalf of O.P.s the evidence affidavit of R.W.1 is filed. Perused the material placed on record and heard the counsel for respective parties.

Now the point for consideration is whether the complainants are entitled to get the compensation as prayed for ?

The learned advocate for the complainant has contended that on               18-11-2012 at about 3 P.M. while the complainant took his cattle for grazing he came in contact with live electrical wire as it was passing in low height and sustained burn injuries and as the O.Ps. were in dereliction of their duties they are liable to pay compensation to the complainant.  As against the above said contention the learned advocate for the O.Ps. has contended that the men of O.Ps. were not in dereliction of duties and as the complainant himself was negligent he came in contact with live electrical wire and as there is no deficiency of service on the part of O.Ps. the complaint is liable to be dismissed.

The material placed on record clearly reveals that there was an accident and in the said accident the complainant sustained burn injuries and his left hand and left leg were amputated.  In the counter filed by the respondents they have taken a plea that their department officials have made detailed enquiries with regard to the accident and in the enquiry it was revealed that while the injured was trying to go to other side of the transformer he was negligently caught the HT bushing of the DTR which is on the plinth and got himself electrocuted and was thrown away as reported by the villagers of the Kallikota.  For the reasons best known, the O.Ps. did not disclose the names of the officials who made enquiries in this case.

Similarly they did not disclose about the names of the villagers with whom the officials enquired about the cause of mishap.  The enquiring officer is a material witness to this case.  It is well settled that if the material witness is kept back, not only an adverse inference U/s 114 illustration (g) can be drawn but it casts serious reflection on the fairness of the trial.  Similarly, where a party does not produce documents it will clearly show that a certain fact should not be found in his favour, and accordingly an adverse inference may be drawn against him that the evidence if produced would have gone against him.

Coming to case on hand the O.Ps. did not examine the enquiring officer and did not file the report submitted by him in this case.  Hence an inference can be drawn that in case the said enquiring officer is examined and his report is filed into Forum it will go against them.

The learned advocate for O.Ps. has contended that the complainant did not produce the medical record to prove as to the nature of injuries is sustained and what is the cause for the accident. As against the said contention the learned counsel for complainant has contended that he has filed certain documents along with complaint and got summoned the medical record from KGH which is marked as Ex.A.6 and when the said documents are taken into consideration it would clearly reveal that the complainant sustained burn injuries as he came into contact with live electrical wire.  As seen from medical record filed into court it clearly reveals that after the incident the complainant was shifted to Government Hospital, Parvathipuram and from there he was taken to KGH and was treated as inpatient for considerable length of time as his left hand and left leg below the knee were amputated.

The learned advocate for O.Ps. has contended that the complainant did not give any report to the police immediately after the incident as he was at fault and was the cause for the accident and as he did not lodge any report against the O.P. and as he filed the complaint to have a wrongful gain, the same merits no consideration and is liable to be dismissed.  The evidence on record reveals that no report was lodged with police immediately after the incident.

In a decision in New India Assurance Company Limited Vs. Jatinder Kumar Sharma II (2013) CPJ 486

Wherein it is held: Merely because FIR was not lodged regarding accident and complainant was not admitted for medical treatment immediately, it cannot be inferred that complainant did not sustain any injury on account of accident.

Coming to case on hand there is ample medical evidence to show that the complainant sustained electrical burn injuries and was treated as inpatient as the left hand and left leg were amputated.  Hence, in view of the principles laid down in the decision cited supra for not registering FIR with police it cannot be said that the complainant did not sustain injuries in the above said accident.

The learned advocate for O.Ps. has contended that the complainant was negligent in going to other side of the transformer and as he negligently caught the HT bushing of the DTR which is on the plinth he sustained burn injuries and as the O.Ps. are not responsible for the above said incident, they are not liable to pay any compensation.

In a decision in AJMER VIDYUT VITRAN NIGAM LTD., Vs. PARTHU & ANR., I (2013) CPJ 159

Wherein it is held:-  Supplier of electricity is under statutory obligation to maintain all of its lines and equipments, etc., in such condition so as to ensure that no one comes into direct contact of such lines or equipments resulting into mishap.

          In a decision in AIR 1920 PC 181 QUEBEC RAILWAY, LIGHT HEAT AND POWER COMPANY LTD., Vs. VANDRY & OTHERSX  “that the company supplying the electricity is liable for the damage without proof that they had been negligent even the defence that the cables were disrupted on account of violent wind and high tension current found its way through the low tension cable into the premises of the respondents was held to be not a justifiable defence.  Thus, merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding the live wire lying on the road”.

In a decision reported :-  The Honourable Supreme Court of India in the case between Madhya Pradesh Electricity Board Versus Shail Kumar and others (2002 (2) ALD 4 (SC) as reported in Supreme Court full reports in C.A.No.180 of 2002 decided on the 11^th day of January, 2002 it was observed and held in Para 7 and 8:

PARA 7:-     It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the board and if the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into, the primary liability to compensate the sufferer is that of the suppliers of the electric energy.  Further observation is that so long as the voltage of electricity transmitted through the wires is potentially of dangers 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 of 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 there on should automatically have been disrupted.  Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps.

PARA 8:-  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  cast 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 concepts of negligence comprehends that the foreseeable harm 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.

As seen from the principles laid down in the decisions cited supra a person undertaking an activity involving hazardous or risk exposure to human life, is liable under law of torts to compensate for the injuries suffered by any other person irrespective of negligence or carelessness on the part of the Managers of such undertakings.  The complainant herein has succeeded in proving his case by placing both oral and documentary evidence.  Though the O.Ps. herein have taken a plea that the complainant himself was negligent in touching the DT bushing of DTR no cogent evidence is adduced to prove the said fact.  Hence in the above said facts and circumstances we are of considered opinion that the men of O.Ps. were in dereliction of their duties and as there is deficiency in service rendered by them in maintaining the equipments they are liable to pay compensation to the complainant.

Now, the point for consideration is whether the complainant is entitled to get Rs.10 Lakhs as compensation from the O.Ps.

As per complainant he was hale and healthy and was earning Rs.200/- per day by doing manual work.  Except making mere allegation no cogent evidence is let in to prove the said fact.  As the complainant was hale and healthy he must be doing some work to earn his bread.  Since cogent evidence is not forth coming to believe the actual avocation and earnings of the complainant,  we would like to accept his annual income at Rs.35,000/-.

As per the contents of complaint the complainant was aged about 42 years.  Hence the appropriate multiplier is fixed at 15.  As per Ex.A.1 disability certificate the percentage of disability is assessed at 47%.  By applying the multiplier method the loss of income for the remaining span of life works out to Rs.2,46,750/- which is rounded of to Rs.2,47,000/- (Rupees two lakhs forty seven thousand only) ( Rs.35,000 X 15 with disability at 47%).  Since the complainant was made to rush to the O.Ps. to get the compensation, he must have suffered mental agony and physical discomfort.  Hence, we deem it fit to award a sum of Rs.5,000/- (Rupees five thousand only) towards mental agony and physical discomfort.

In the result, the complaint is partly allowed directing the O.Ps. to pay a sum of Rs.2,52,000/- (Rupees two lakhs and fifty two thousand only) with costs of Rs.2,000/- (Rupees two thousand only) which includes the advocate fee of Rs.500/-.  The O.Ps. are directed to pay the above said sum within one month from the date of this order.

Dictated to the Typist, transcribed by her, corrected by me and pronounced by us in the open Forum, this the 11^th day of April, 2014.

Member                                                           President   

CC. 24 of 2013

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

     For P.W.1                                                                  For R.W.1

DOCUMENTS MARKED.

For complainant:-

1. Ex.A.1 Original copy of disability certificate dt.27-12-2012.
2. Ex.A.2 xerox copy of KGH O.P. ticket
3. Ex.A.3 copy of Photograh
4. Ex.A.4 Lawyer ntotice dt.21-2-2013
5. Ex.A.5 Prescription of medicines
6. Ex.A.6 Case Sheet of the patient in I.P.No.43194
7. Ex.A.7 Attested copy of Accident Register

For O.P:  NIL

                                                                                                President.