Karnataka

Chitradurga

CC/220/2018

Marakka W/o Shivanna - Complainant(s)

Versus

Assistant Executive Engineer,Bescom - Opp.Party(s)

Sri.Parthalinga

28 Feb 2019

ORDER

 

COMPLAINT FILED ON:13/11/2018

DISPOSED      ON:28/02/2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

C.C.NO:220/2018

 

DATED: 28^th FEBRUARY 2019

PRESENT :-     SRI.T.N.SREENIVASAIAH :   PRESIDENT                                     B.A., LL.B.,

                        SMT. JYOTHI RADHESH JEMBAGI

BSc.,MBA., DHA.,                LADY MEMBER

                       

……COMPLAINANT/S	1. Marakka W/o Shivanna, Age: 58 Years,   2. Shivanna S/o Marappa, Age: 66 years,   3. Rekha. R, W/o Basavaraj @ Basavarajppa, Age: 26 Years.   All r/o Chikkappanahalli village, Madanayakanahalli Hobli, Chitradurga Taluk and District.   (Reptd., By Sri. Parthalingappa, Advocate)
V/S
…..OPPOSITE PARTIES	1. The Assistant Executive Engineer, BESCOM, Chitradurga.   2. The Executive Engineer, BESCOM, Behind DC Office, Chitradurga.   3. Smt. Leelavathi, W/o Murugendrappa, Age: Major, Mallapura, Chitradurg.   (Reptd., By Sri.T.K. Chandrashekara Rao, Advocate for OP No.1 and 2 and Sri.M. Govinda Reddy, Advocate for OP No.3)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OPs to pay Rs.20,00,000/- under all heads with interest at the rate of 18% p.a and such other reliefs.  

2.      The brief facts of the case of the above complainants are that, they are the LRs of deceased Basavaraja @ Basavarajppa, who is husband and son of complainants respectively.  The said Basavaraj was doing painting work during his life time and the entirely family is depending upon his income.  The deceased Basavaraja @ Basavarajppa was regularly doing painting work and used to earn Rs.20,000/- p.m excluding expenses and the entire amount was given to the hands of complainant No.1 to look after the family necessity.  Due to the death of deceased Basavarajppa, the entire family has been thrown to road since he is the bread earner of the family as there is no other earning member in the family.  It is further submitted that, on 13.04.2018 at about 1-00 PM the deceased Basavarajppa was doing painting work in OP No.3’s house at Mallapura village, Chitradurga Taluk and when he was doing painting work, the electric live wire went on the house of OP No.3 were fallen and came in contact to the deceased Basavarajppa and electrocuted and died at the spot as the electric live wire have not been properly installed by the OP No.1 and 2 to the electric poles.  The deceased Basavarajppa was taken to Government Hospital, Chitradurga and conducted PM and after the PM, the dead body was given to the hands of complainant No.1 and the complainant No.1 brought the dead body to her native place and funeralised as per the customs of their religion and after that, the complainants have conducted Vykunta Samaradhane of deceased Basavarajppa by incurring Rs.50,000/- towards Vykunta Samaradhane and Rs.20,000/- towards transportation of dead body from Mallapura to Government Hospital and again from Chitradurga to their native place.  The above incident has been occurred due to the negligence and deficiency of service on the part of OP No.1 and 2 since they have not taken necessary steps in covering the electric live wire which was going through the house of OP No.3, since for electric live wires everything and every material has to be removed under the said live wire, since it is having a high designated voltage since it is having a powerful transmission of electric power from live wire.  Due to the negligence act of OP No.1 and 2, the said Basavarajppa was died due to electrical burnings.  The OP No.1 and have made deficiency in service in not installing the said electric live wire correctly which was going above the house of OP No.3 and they have neglected their duty in installing the electric wire by covering it by the proper precautions and for the negligence act of the OP No.1 and 2, the said Basavarajppa has lost his life.  After the incident, the complainant visited the OP No.1 and 2 office for compensation, but they have given one or the other reasons, but finally on 03.10.2018 the OP No.1 and 2 have refused to pay the compensation to the complainants.  The Chitradurga Rural Police have registered a UDR No.0008/2018 u/Sec.174 of Cr.P.C.  The cause of action for this complaint arose on 13.04.2018, the date on which the incident has been occurred and on 03.10.2018 the subsequent date on which the complainants have visited the OP No.1 and 2 and they refused to pay the compensation, which is within the jurisdiction of this Forum and hence, prayed for allow the complaint.

3.      After service of notice, OP No.1 and 2 appeared through Sri. T.K. Chandrashekara Rao, Advocate and filed version and OP No.3 appeared through Sri. M. Govinda Reddy, Advocate and filed version. 

OP No.1 and 2 have taken a contention that, the electrical lines which were passing through the house of OP No.3 were perfectly maintained in good condition by OP No.1 and 2.  The same was drawn long back and perfectly maintained.  The OP No.3 has constructed the house below the electric line which was drawn earlier to construction of new house.  The OP No.3 without getting permission from OP No.1 and 2 has constructed the house under the electric lines.  As per Section 82 of Indian Electricity Rules 1956 and Electricity Act 2003, the OP No.3 is bound to get permission from OP No.1 and 2 before constructing the house under the existing lines which were drawn earlier to construction of the house and it is mandatory on the part of OP No.3 to obtain permission from OP No.1 and 2 before constructing the house near or under the existing electrical line.  The OP No.3 has violated the conditions of Municipal License of Chitradurga Municipality and also Chitradurga Town Planning Authority.  As a result of violation of Electricity Rules and Act and also Municipal License of Chitradurga Municipality and Town Planning Authority resulted in electrocution and caused death of said Basavarajppa who was employed by OP No.3 for painting work of newly constructed house.  The duty of OP No.3 is to give instructions to the deceased Basavarajppa to be careful while painting on the terrace of the new house, but failed to give proper instructions to deceased Basavarajppa and hence, the OP No.3 is responsible for this incident.  If the deceased acted carefully while doing the painting work under the electrical line passing over the house, the accident could not have been happened.  Hence, the OP No.3 and deceased Basavarajppa are solely responsible for this unfortunate incident.  The OP No.1 and 2 have perfectly maintained the electrical line in good condition and there was no complaint from the locality regarding the electric lines and therefore, there is no negligence on their part.  It is further submitted that, the illegal construction of the new house by OP No.3 under electrical lines without permission of OP No.1 and 2 as per Section 82 of Indian Electricity Rules 1956 and Electricity Act 2003 and also negligent act of the deceased Basavarajppa lead to this fatal incident.  The OP No.3 has constructed a new house under the electrical lines which were drawn earlier for the public purpose of giving electric connection to the consumers of the area as per rules and the same has been perfectly maintained and there were no complaints from the consumers of the area.  Subsequent to the existing electrical line, OP No.3 has constructed the new house under the electrical lines without the knowledge and permission of OP No.1 and 2 as contemplated under Section 82 of Indian Electricity Rules 1956 and Indian Electricity Act 2003, it is mandatory under the above rules to obtain written permission from OP No.1 and 2 before constructing the new house or alteration etc.  The OP No.3 has violated the electricity rules and hence, the OP No.3 is responsible to the fatal incident and liable to pay compensation.  It is submitted that, the report of Executive Engineer (Ele) BESCOM, Chitradurga dated 13.04.2018, report of OP No.1 dated 24.04.2018, report of Superintendent Engineer (Ele), dated 09.07.2018, statement of Assistant Executive Engineer O & M, Chitradurga dated 17.04.2018, statement of P.S. Murigendrappa S/o Siddappa, lineman, O and M, Chitradurga and statement of N.T. Murigendrappa S/o Thipperudrappa and statement of Rekha W/o Basavaraj and statement of villagers and statement of P. Suneel Kumar S/o Pennaiah and sketch of the accident spot and UDR report No.0008/2018 and Police complaint given by Rekha. R dated 14.04.2018 and also mahazar dated 14.04.2018 and report of Electrical Inspectorate dated 05.06.2018 reveal that the OP No.3 constructed the new house by violating the Electricity Act and Rules and also Municipal License and Town Planning, Chitradurga and hence, OP No.3 is solely responsible for this incident and liable to pay the compensation.  It is submitted that, the complainant is not a consumer of OP No.1 and 2 and this dispute is a complicated matter requires elaborate evidence and documents of civil nature and the same is exclusively triable by Civil Court and therefore prayed for dismissal of the complaint as the prayer made by the complainant is baseless, imaginary and without authority of law.       

OP No.3 submitted that, the OP No.3 is the owner of site and constructed the new house in her site at Mallapura village, Chitradurga Taluk.  The OP No.1 and 2 have drawn electrical lines near the site of OP No.3.  At the time of construction of the new house, the OP No.3 approached the OP No.1 and 2 and gave petition for removal of and shifting of the lines, they agreed for removal and shifting the electrical lines, but they did not receive the petition and also not removed and shifted the electrical lines.   Thereafter, OP No.3 completed her house carefully.  It is submitted that, on 13.04.2018 at about 1-00 P.M the deceased Basavarajppa was doing painting work in the house of OP No.3.  At the time of working the deceased Basavarajppa was shocked in electrical wire.  Immediately, he was shifted to Government Hospital, Chitradurga for treatment, but unfortunately he was died.  The above incident has been occurred due to negligence and deficiency in service on the part of OP No.1 and 2.  After the death of said Basavarajppa, the OP No.1 and 2 have removed and shifted the electrical lines at the house of OP No.3.  If the OP No.1 and 2 have taken necessary steps earlier to the said untoward incident would not occurred.  Due to negligence of OP No.1 and 2, the said Basavarajppa was died due to electrical shock and therefore, the OP No.1 and 2 are liable to pay the compensation to the complainants.  After the incident, the complainant No.3 approached the OP No.3 for compensation. After the negotiations, the complainant No.3 on behalf of all claimants received a sum of Rs.4,00,000/- from OP No.3 as a compensation in presence of villagers and witnesses on 14.04.2018 and on the same day, she had executed a consent deed/bond in favour of the OP No.3.  The OP No.3 has already paid the agreed compensation to complainant No.3 and hence, the complaint is liable to be dismissed.

4.      The complainant No.3 has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-3 were got marked and closed their side.  On behalf of OP No.1 and 2 one Sri. M.S. Prabhakar, the Assistant Executive Engineer(Ele) O & M Sub-Division, CSD, BESCOM, Chitradurga and Sri. K.B. Sunil Kumar, Assistant Executive Engineer(Ele) O & M, BESCOM, Chitradurga have examined as DW-1 and DW-2 by filing affidavit and Smt. Leelavathi, the OP No.3 has examined as DW-3 by filing affidavit evidence and the documents Ex.B-1 to B-15 were got marked. 

5.      Arguments heard.

6.      Now the points that arise for our consideration for decision of above complaints are that;

 

1. Whether the complainant proves that, OP No.1 and 2 have failed to take safety measures and thereby the deceased Basavaraj @ Basavarajappa  came in contact with the electric line on 13.04.2018 at about 1-00 PM and died at the spot and thereby OPs have committed deficiency of service and entitled for the relief as prayed for?

              (2) What order?

          7.      Our findings on the above points are as follows:-

                    Point No.1:- Partly in affirmative.

                    Point No.2:- As per final order.

REASONS

8.      Point No.1:-  There is no dispute between the parties that, the deceased Basavaraj @ Basavarajppa was died on 13.04.2018 due to electrocution while he was doing painting work in the house of OP No.3 at Mallapura village, Chitradurga Taluk.  The OP No.3 has obtained permission from the Municipality and other authorities for construction of her house.  OP No.3 has intimated the OP No.1 and 2 to remove and shift the electrical wire which was going through her site, but the OP No.1 and 2 have neglected to remove the same.  It is argued by the complainants that, the deceased Basavaraj @ Basavarajappa was went to do the painting work in the house of OP No.3 as a Coolie.  By that time, he came in contact with the electric wire and died at the spot.  After that, the complainants intimated about the death of Basavaraj @ Basavarajappa to the concerned police.  The concerned Police have registered a UDR case No.0008/2018.  After that, the complainant has filed an application before the OP No.1 and 2 claiming compensation, but the OP No.1 and 2 have repudiated the claim of the complainants stating that, it is purely negligence on the part of OP No.3.  It is argued by the OP No.1 and 2 that, before commencing the construction work of her house and painting work, OP No.3 has not obtained permission from them or from any other authorities.  But as per the version and affidavit filed by the OP No.3 it clearly shows that, the OP No.3 has lodged a petition before the OP No.1 and 2 requesting to remove the electrical wires which were going through the house of OP No.3.  But the OP No.1 and 2 have neglected to remove the same and orally told the complainant that, they will remove the same and to commence the work.  Accordingly, OP No.3 started the construction work and appointed one Sri. Basavaraj @ Basavarajappa, the husband of complainant No.3 to do the painting work and while doing the painting work, the said Basavaraj @ Basavarajappa touched the electrical wires and died at the spot due to electrocution.  The OP No.1 and 2 have taken a contention in their arguments that, the OP No.3 and deceased Basavaraj @ Basavarajappa have made negligence while doing the painting work.  Further it is argued that, the OP No.3 has not obtained any permission from the OP No.1 and 2 before commencement of the construction work of her house.  Now as per the documents produced by the OP No.1 and 2 itself clearly shows that, the OP No.1 and 2 have removed the electrical wires which was going through the house of OP No.3 after the incident took place, it clearly shows that, it is purely a negligence on the part of OP No.1 and 2 i.e., after the death of Basavaraj @ Basavarajappa.  It is pertinent to note that, after the death of husband of complainant No.3, the elders of the villager and well wishers have sit together and compromise the matter between the complainants and OP No.3 and OP No.3 has agreed and paid a sum of Rs.4,00,000/- to the complainants towards compensation on humanitarian grounds though there is no any deficiency of service on the part of OP No.3.  OP No.1 and 2 have neglected and failed to settle the claim of the complainants and they have repudiated the claim stating that, they have not committed any deficiency of service.  The complainants have relied upon documents and those documents are marked as Ex.A-1 to 3, those are FIR, statement of wife of deceased, spot panchanama and PM report.  The Ex.A-4 discloses that, wherein the cause of death of deceased Basavaraj @ Basavarajappa was mentioned as “Death is due to Electrocution”.    

9.   We have gone through the entire documents filed by the complainants and the OPs.  After going through the documents, it clearly shows that, there is no dispute that, the husband of complainant No.3 was died due to electrocution while he was doing painting work in the house of OP No.3.  After the death of deceased Basavaraj @ Basavarajappa, the complainants have lodged a complaint before the concerned Police and the said Police have registered a UDR case No.0008/2018.  After that, the complainant No.3 has claimed compensation before the OP No.1 to 3.  The elders of the village have sit together and compromise the matter between the complainants and OP No.3 and OP No.3 has paid a sum of Rs.4,00,000/- to the complainants though there is no deficiency of service on her part.  But OP No.1 and 2 have refused to pay the compensation to the complainants stating that, they have not committed any deficiency of service.  Before commencement of the construction of her house, she filed a petition before the OP No.1 and 2 and orally requested to remove the electrical wires which were going through her house, but the OP No.1 and 2 have neglected to remove the above said electrical wire.  The cause death of Basavaraj @ Basavarajappa was due to electrocution while he was doing the painting work in the house of OP No.3.  The OP No.1 and 2 have not produced any single document that the OP No.3 has constructed her house against to the terms and conditions of CMC or OP No.1 and 2 have not produced any documents regarding that they have visited the place after the incident and conducted the spot mahazar.  That means OP No1 and 2 agreed that they have made deficiency in service in not covering the live wire which has gone through the house of OP No.3.  Hence, the above said points clearly show that the OP No.1 and 2 have made deficiency in service. 

As per the available citations of CPJ 2010 (NC) 97 (I) in the case of N. Kunchi Babu and another Vs. A.P. Transco Hyderabad and others, the Hon’ble National Commission has held that;

 

“Consumer Protection Act, 1986 – Sections 2(1)(g), 14(1)(d) – electrocution – compensation – enhancement – wires touching balcony of house – child of 14 years age got electrocuted – legs and hands burnt – hand and fingers of both legs removed by doctors – deficiency in service, gross negligence and dereliction of duties alleged – compensation granted by Hon’ble State Commission. 

 

 As per the Citation of 2002 ACJ 526 (SC) in the case of Madhya Pradesh Electricity Board Vs Shail Kumri and others wherein it has been held that;

“Tort – electrocution – a strict liability – compensation – liability of electric board – cyclist riding his cycle in the night was electrocuted when he came in contact with live electric wire lying on the road partially in undated with rain water – electricity board contended that electrocution was due to clandestine supply line was unattended and not taken any precautions towards supply line and that the line got unfastened from the book and fell on the road, stranger is liable – trial court assessed compensation at Rs.4,34,000/- but dismissed the suit on the ground that claimants failed to prove who was liable – High Court mulcted liability on the electricity board – whether the Electricity Board is liable – held yes.  If the energy transmitted causes injury or death of a human being who gets unknowingly trapped into it the primary liability to compensate the sufferer is that of the supplier of electricity energy; merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding live wire lying on the road.”

 

10.    Hence, the above citations of the Hon’ble Apex Court and Hon’ble National Commission are applicable to the case on hand and as per the above cited citations, the OP No.1 and 2 are liable payment of compensation to the complainant.   

11.    Then the main question comes before the Forum is that, what is the quantum has to be paid to the complainants.  As per the recent guidelines of the Hon’ble Supreme Court and also as per the disability notification dated 2001 of Central Government, personal earnings to the deceased and on the basis of the guidelines of the Hon’ble Supreme Court, we would like to take notional income for a earning member is Rs.7,500/- and also future prospectus for the age limit of 30 to 40 is 40% has to be enhanced as per the recent guidelines of Hon’ble Supreme Court in  Sarala Varma’s citation of Hon’ble Supreme Court, then the amount will arrive of Rs.10,500/- p.m including future prospectus and also the age of the deceased is 30 years, the appropriate multiplier will comes to 17.  Then the loss of future income including future prospectus to the claimant will be Rs.10,500 X 12 = 1,26,000/3 = 42,000 X 2 = 84,000  X 17 = Rs.14,28,000/-, is towards loss of dependency and also towards other conventional heads like loss of consortium, loss of love and affection, loss of estate to the parents and also towards funeral and transportation of dead body in total this Forum will award Rs.2,50,000/-, in total the amount to be awarded to the complainants as mentioned below:

Towards loss of dependency	Rs.14,28,000-00
Towards conventional heads	Rs.2,50,000-00
Total	Rs.16,78,000/-

         

12.    The OP No.1 and 2 are being the authority of BESCOM and they have got much responsibility in looking after the life of an human being and they have to take precautionary measures in removing or in covering the live wire which was gone through OP No.3’s house.  But, even in spite of her oral request, the OP No.1 and 2 have not taken precautionary measures to cover the live wire and this was resulted in the death of Basavaraja @ Basavarajappa and  OP No.1 and 2 have made the clear deficiency in service in not taking proper steps to safe guard the public interest and life of an human being which caused a bread earner of a family has been died in the incident and the family has been thrown to the road due to the negligent act of OP No.1 and 2.  Hence, for the said reason the Forum will come to the conclusion that, the OP No. 1 and 2 are solely held liable for payment of compensation to the complainants.    The said amount is to be payable by only OP No.1 and 2 since they are being the competitive authority for BESCOM Department and liability against OP No.3 will not be arrived since, the OP No.3 has already paid a sum of Rs.4,00,000/- towards the death of Basavaraj @ Basavarajappa as humanitarian consideration and the said document has been produced by the OP No.3 counsel and also the same was not denied by the counsel of complainant.  Hence, it shows that the OP No.3 has fulfilled their duty, hence, the case against OP No.3 is not maintainable and hence, the case against OP No.3 is liable to be dismissed.

13.    Towards bifurcation of the amount in awarded amount, this Forum will adjudicate and award to the complainant No.3 is the wife and she is a young and she has to live for number of years and hence, looking into said consideration, she is entitled to get a compensation of Rs.12,78,000/- and complainant No.1 and 2 are the parents of deceased Basavaraja @ Basavarajappa and they are equally entitled for an amount of Rs.2,00,000/- each.    So, in all the complainants are entitled to get for the amount of Rs.16,78,000/-.  Therefore, we come to the conclusion that, there is a deficiency of service on the part of OP No.1 and 2.  Accordingly, this Point No.1 is held as partly affirmative to the complainants.    

  14.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

The complaint filed by the complainant U/s 12 of CP Act 1986 is partly allowed.

It is ordered that, the OP No.1 and 2 are hereby directed to pay a sum of Rs.16,78,000/- to the complainants towards compensation along with interest at the rate of 9% p.a from the date of incident i.e., on 13.04.2018 till realization. 

Out of which, the complainant No.1 and 2 are entitled for a sum of Rs.2,00,000/- each along with interest at the rate of 9% p.a from the date of incident i.e., on 13.04.2018 till realization. 

It is further ordered that, the complainant No.3 is entitled for a sum of Rs.12,78,000/- each along with interest at the rate of 9% p.a from the date of filing of this complaint till realization.

It is further ordered that, the OP No.1 and 2 are hereby directed to pay Rs.10,000/- towards mental agony and Rs.5,000/- towards costs of this proceedings to the complainant No.3.  

The complaint filed as against OP No.3 is hereby dismissed.

It is further ordered that, the OPNo.1 and 2 are hereby directed to comply the above order within 30 days from the date of this order.

 (This order is made with the consent of Member after the correction of the draft on 28/02/2019 and it is pronounced in the open Court after our signatures)         

 

                                     

MEMBER                                                   PRESIDENT

 

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

 

PW-1:  Complainant No.3 by way of affidavit evidence.

 

Witnesses examined on behalf of OPs:

 

DW-1: Sri. M.S. Prabhakar, the Assistant Executive Engineer (Ele) O & M Sub-Division, CSD, BESCOM, Chitradurga by way of affidavit evidence.

 

DW-2: Sri. K.B. Sunil Kumar, Assistant Executive Engineer (Ele) O & M, BESCOM, Chitradurga by way of affidavit evidence.

 

DW-3: Smt. Leelavathi, by way of affidavit evidence.

 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	UDR No.0008/2018
02	Ex-A-2:-	Complaint given by complainant No.3 and spot panchanama
03	Ex-A-3:-	PM report

Documents marked on behalf of OPs:

01	Ex-B-1:-	Report of Executive Engineer (Ele), BESCOM, Chitradurga
02	Ex-B-2:-	Statement of Assistant Executive Engineer (Ele) dated 24.04.2018
03	Ex-B-3:-	Letter dated 09.07.2018 by Superintending Engineer (Ele), BESCOM, Chitradurga
04	Ex-B-4:-	Report of Assistant Engineer (Ele) O & M to Deputy Electrical Inspectorate, Chitradurga
05	Ex-B-5:-	Statement of Murigendrappa
06	Ex-B-6:-	Statement of N.T. Murigendrappa dated 16.04.2018
07	Ex-B-7:-	Statement of complainant No.3
08	Ex-B-8:-	Statement of villager
09	Ex-B-9:-	Statement of P. Sunil Kumar
10	Ex-B-10:-	Sketch of Accident Spot
11	Ex-B-11:-	UDR of Rural Police, Chitradurga
12	Ex-B-12:-	Complaint given by complainant No.3
13	Ex-B-13:-	Mahazar
14	Ex-B-14:-	Report of Electrical Inspectorate, Davanagere dated 05.06.2018

 

 

MEMBER                                                   PRESIDENT

Rhr**