<br /> 25th SEPTEMBER 2008<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1244/2007<br /> <br /> <br /> COMPLAINANTS <br /> 1. Shri. Vibin Baby,<br /> Aged 19 years,<br /> Son of Baby K.K.,<br /> Keezhoor House,<br /> Peroor Village,<br /> Kottayam,<br /> Kerala.<br /> <br /> 2. Shri. K.K. Baby,<br /> Aged 47 years,<br /> Son of late K.C. Kurien,<br /> Keezhoor House,<br /> Peroor Village,<br /> Kottayam,<br /> Kerala. <br /> <br /> <br /> Advocate (Laila. T. Ollapally)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. Bangalore Institute of Nursing<br /> (Represented by its Secretary)<br /> Poornima Education Trust,<br /> No. 5, B.C. 302, 3rd Block,<br /> HRBR Layout,<br /> Bangalore – 560 043.<br /> <br /> <br /> 2. Poornima Education Trust (Regd),<br /> (Represented by its <br /> Managing Trustee)<br /> No. 19/7, Karthik Complex,<br /> Dinnur Main Road, R.T. Nagar,<br /> Bangalore – 560 032.<br /> <br /> <br /> 3. Dr. Ramani Pooranesan,<br /> (President of Poornima Educational Trust)<br /> Poornima Education Trust (Regd).,<br /> No. 19/7, Karthik Complex,<br /> Dinnur Main Road, R.T. Nagar,<br /> Bangalore – 560 032.<br /> <br /> <br /> 4. Mr. C. Subramani,<br /> (Secretary of Poornima Educational Trust)<br /> Poornima Education Trust (Regd).,<br /> No. 19/7, Karthik Complex,<br /> Dinnur Main Road, R.T. Nagar,<br /> Bangalore – 560 032.<br /> <br /> Advocate (S.R. Hegde)<br /> <br /> <br /> 5. Mrs. Padmavathi. S.,<br /> No. 23/1, Bore Bank Road,<br /> Benson Road,<br /> Bangalore – 560 046.<br /> <br /> Advocate (I. Tharanath Poojary)<br /> <br /> <br /> 6. BESCOM,<br /> (Represented by its Managing Director)<br /> Cauvery Bhavan, K.R. Circle,<br /> Bangalore – 560 009.<br /> <br /> <br /> 7. Assistant Executive <br /> Engineer (EL), BESCOM,<br /> E-5 Sub Division,<br /> Lazar Road,<br /> Bangalore – 560 005.<br /> <br /> Advocate for OP.6 & 7<br /> (S.R. Shiva Prakash)<br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to pay a compensation of Rs.19,95,377.72 and for such other reliefs on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant No.1 is the son of complainant No.2. He was admitted to the OP.1 institute of nursing on 25.07.2005 for the first year diploma course in general nursing and midwifery for the year 2005-06 and had paid a sum of Rs.46,000/- as the tuition fees for the first year. Complainant No.1 has also become the ward of college hostel by paying an amount of Rs.8,000/-. OP.1 institute of nursing is run by OP.2, 3 and 4. OP.5 is the owner of the building, OP.6 and 7 are BESCOM. Now it is the case of the complainant that on 27.11.2005 he returned to the hostel from college in the evening and went up to terrace to collect the clothes which he had put for drying. He left his clothes in his room and again went to balcony of the first floor to have tea. It was usual practice of the hostel students to have tea in the balcony. Complainant No.1 along with a group of other hostel students was having tea, at that time the complainant No.1 had leaned against the iron grill of the balcony, suddenly he felt a severe electric shock and fell unconscious. <br /> <br /> 2. There was an accident of electrocution. His friends rushed him to Victoria Hospital. He has sustained high voltage electrical burns. The diagnosis was 22% live electric burn, II & III degree burns over left and left thigh and the area of accident on the body had turned blackish. It is a case of the complainant No.1 that due to this accident he has become disabled and handicapped, requiring assistance for his day today need. OP.1 and 2 did not give any assistance and only visited him on the next day after the accident in the hospital. With the help of his friends and relatives he got discharged from the hospital and reached Kochi by air to get admitted in the specialist hospital in Kerala at Kochi. His parents live in Kottayam 50 kms. away from Kochi. His father complainant No.2 is a tile layer in Kottayam, his mother is a housewife. It is contended due to the carelessness and negligence of the OP’s complainant suffered a severe injury, that too for no fault of his. Thus complainant felt the deficiency in service on the part of the OP. Under the circumstances they are advised to file this complaint and sought for the relief accordingly. <br /> <br /> 3. On appearance OP’s filed their version OP.1, 2 and 3 have adopted the version filed by OP.4. While sympathizing with the unfortunate condition of the complainant No.1 to OP.4 contended that the complaint is totally misconceived, belated, after thought one and the same is not maintainable. There is no deficiency in service on the part of the OP’s. The complainant sustained injury due to his own carelessness by leaning on the live wires. It is further contended that the distance between hostel building and the electrical wires at the time of incident, as well as now, is as about 4 feet from the balcony. They are existing for decades even prior to the OP’s taking the building on lease to be used as a hostel to accommodate students. It is further contended that they made arrangements to shift the complainant No.1 to the hospital by spending a sum of Rs.3,000/-. It is further contended that after the preliminary enquiry OP came to know that the complainant was depressed and trying to avoid the company of other inmates. OP sent a cheque for a sum of Rs.50,000/- dated 01.12.2005 on the humanitarian ground to assist the complainant towards the treatment. OP has disputed averments made in the para.3 of the complaint, which attributes that the accident occurred because there were no barricades or warning signs indicating danger etc. There is no deficiency in service on the part of the OP.1 to 4, hence they are not liable to pay any compensation as prayed. Among these grounds, OP.1 to 4 prayed for the dismissal of the complaint. <br /> <br /> 4. OP.5 who is the owner of the building admits that the building has been let out to the opponents for being used as a hostel. In most of her contention she adopted the version of the BESCOM. She has supported the stand taken by BESCOM. She states that the high tension wires run at a safe distance of more that 1.5 mtrs as provided in the Indian Electricity Rules. It is further contended that OP.5 is not the provider of any service to the complainant nor the complainant was under the care of OP.5. The premise was flawless and had all the reasonable safe guards for a prudent dweller. OP.5 also states that complainant has not availed any services as contemplated. So there is no force in alleging the deficiency in service, as such she is also not liable to pay any compensation. <br /> <br /> 5. OP.6 and 7 submit in their version that they have not received any complaint with regard to this incident expect there being a communication by the Police Inspector on 17.02.2006 and they have given a suitable reply to the Sub-Inspector on 01.03.2006, stating that on the said date there was no complaint registered. They also submit that if at all there is any accident as alleged in the complaint or muchless any disturbance or interference to the supply of power via 11 KV line the feeder transformer trips and power supply will be disconnected to the said feeder by the breaker tripping at the supply station itself and for the same reason as stated above if any disturbance or accident with 440 volts line the MCB in the feeder trips and the power supply disconnects. Hence the question of complainant No.1 encountering with the accident is doubtful and there is no question of complainant suffering grievous injuries by electrocution. OP.6 and 7 also submit that if at all there is any such accident or incident the same would have occurred due the carelessness and negligence of the victim himself OP’s are not liable for such accident, hence prays for the dismissal of the complaint.<br /> <br /> 6. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP’s have also filed the respective affidavit evidence and produced the documents. At the request of the litigating parties a Court Commissioner was appointed, he has submitted the report. Then the arguments were heard.<br /> <br /> 7. Thereafter this Forum was pleased to dismiss the complaint vide its order dated 15.11.2007. Being aggrieved by the said impugned order complainants have preferred an appeal before the Hon’ble Karnataka State Consumer Disputes Redressal Commission at Appeal No. 2497/07. The said appeal came to be allowed vide order dated 29.04.2008. The matter is remitted back to this Forum for fresh disposal after due notice to the parties. In pursuance of the said kind orders, notices were issued to the litigating parties. All the parties appeared expect OP.5 and contested the matter. Of course after the remand no such either oral or documentary evidence is produced. <br /> <br /> 8. After going through the averments made in the complaint and the version of the OP’s the following points arise for our consideration in this complaint:<br /> <br /> Point No. 1 :- Whether the complainants have proved the <br /> deficiency in service on the part of the OP’s?<br /> <br /> Point No. 2 :- If so, whether the complainants are entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 9. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order<br /> <br /> <br /> R E A S O N S<br /> <br /> 10. The complainant No.1 who is the student of the OP’s 1 to 4 and a ward of hostel run by the OP’s met with an unfortunate accident. His contention is that on 27.11.2005 at 5.45 p.m. he went to the balcony of the first floor to have a tea and it was usual practice of the hostel students to have tea in the balcony and was having tea in a steel tumbler. The complainant was leaning against the balcony of the hostel building at that time he suffered severe shock and fell unconscious. Thereafter his friends rushed him to the Victoria hospital for treatment. In the said accident complainant sustained severe injuries, he has become disabled and helpless. <br /> <br /> 11. From the contentions of the OP’s.5, 6 & 7 it appears there is controversy with regard to the existence of the high tension wires running parallel to the balcony. It is contended by the OP.5 that the high tension wire run parallel and horizontal at a distance of more than 1.5 meters. These lines are drawn approximately parallel to the terrace level that is above the second floor of the premises. The secondary wires are at the second floor level. There are no wires running parallel to the first floor and the complainant claims the accident occurred at the balcony. With regard to this a commissioner was appointed to measure the distance of the wire from the premises. The commissioner in his report has stated that he has inspected the premises on 04.10.2007 in the presence of the advocate for complainant and the advocate for the OP’s and the BESCOM Engineer. From the top of the grill the distance between live wire and balcony is 5 feet 1 inch and from the surface of the stair case it is 4 feet 9 inches. <br /> <br /> 12. It is contended by the complainants that OP’s without verifying the said building properly whether it is safe for the students to stay before converting it into a hostel, unmindfully took the said building on rent just about 2-3 months prior to this incident. Of course OP.6 and 7 have much contended that if there is any disturbance in the supply of the power or interference the transformer automatically trips and power supply will be discontinued. According to them on the alleged date of incident no such thing is recorded in their documents and records maintained by them. We do not find any force in the defence of the OP.6 and 7 in that regard because no such evidence is produced.<br /> <br /> 13. The fact that complainant sustained shock and electrocution, thus became almost disabled due to the injury sustained by him in the said accident is not at dispute. We find some force in the contention of the complainant that after this tragic incident the BESCOM must have shifted the said dangerous high tension wires, this possibility cannot be ruled out. The owner of the said building has not taken proper care so also the institution authorities OP.1 to 4 before allowing their students to stay in the said building.<br /> <br /> 14. The photographs and other circumstantial evidence produced by the complainants clearly goes to show that there is a negligence on the part of both OP.1 to 4, the owner of the building OP.5 as well as BESCOM OP.6 and OP.7. If OP’s were little diligent definitely they would have avoided this tragic accident. Neither of OP.1 to 4 took steps to safe guard the interest of inmates of the said hostel nor OP.5. Here we find the deficiency in service. Most of the facts in this case are not at dispute. We do not find any substance in the allegations of the OP’s that this incident occurred due to the carelessness of the complainant No.1 the injured. There appears to be suppression of some truth by the OP’s, which is well within their knowledge. The distance between the high tension wire and the building must be very close at the time when this incident occurred. Subsequently thereto there must be a shifting of the wire. Under such circumstances the Commissioners Report will not come to the aid of the OP’s. In our considered view OP’s have failed to substantiate their defence. There is a prima-facie proof of their negligence. The principles of respisa-loquitur is amply applicable to the facts on hand.<br /> <br /> 15. On the perusal of the records there is a maximum sag about the height, loose running if the said wires and they are not at a safer distance. OP’s cannot take the benefit of some minor discrepancies appearing here and there in the statement recorded by the Police during the course of investigation. There is a proof that BESCOM Department has not taken necessary precaution to prevent the dangers expected of live wires getting sagged or snapped resulting in serious accidents. They should have made provision for automatic disconnection of supply of energy or shielding the same by insulating material. Again no such steps are taken. OP should have foreseen eminent danger in allowing the boys to stay in the said building in front of which high tension wire are very closely running. <br /> <br /> 16. The Electricity Department has not fulfilled its obligation and defaulted in their duty in not providing the safety. If the OP’s were little diligent in taking necessary precaution and preventive measures this tragic incident would not have happened. The fact of accident by itself is sufficient to prove the negligence on the part of the OP’s. For no fault of his, complainant was electrocuted due to passing of electricity from the said high tension wires and practically become handicap. Under such circumstances OP cannot escape their liability.<br /> <br /> 17. The evidence of the complainant which finds full corroboration with the contents of the undisputed documents appears to be very much natural, cogent and consistent. There is nothing to discard the sworn testimony of the complainant. As against this unimpeachable evidence of the complainant, the defence set out by the OP’s appears to be just an eyewash, defence for defence sake, to save their skin out of sin. When OP.1 to 4 paid Rs.50,000/- towards the treatment it speaks to the fact that they are aware of their liability and the mistake. Otherwise there was no reason for them to pay the said amount. Having taken note of the permanent disability suffered by the complainant whose future is sealed, in our view the compensation of Rs.1,50,000/- from OP.1 to 4 and Rs.1,00,000/- from OP.6 and 7 will meet the ends of justice. With these reasons we answer point Nos.1 and 2 accordingly and proceed to pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP.1 to 4 are directed to pay a compensation of Rs.1,50,000/- and OP.6 and 7 Rs.1,00,000/- to the complainant. In view of the nature of dispute no order as to costs. This order is to be complied within 4 weeks from the date of its communication. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 25th day of September 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> p.n.g. <br />