Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member
This appeal takes an exception to an order dated 30/06/2010 passed in consumer complaint no.146/2009, Kamal Shridhar Sawant v/s. Bharat Sanchar Nigam Limited through its General Manager and another; passed by District Consumer Disputes Redressal Forum, Ratnagiri (‘forum’ in short). It is a case of respondent/complainant-Kamal that she resides along with her mother at village Karjuve Madvanewadi, Taluka Sangameshwar, District Ratnagiri.
Energy connection since from the year 1995 and telephone connection since from the year 2002 is taken to the said house, which stands in the name of her mother Sumitra Sawant. On 21/11/2007 around 1.30 a.m. she tried to lift the receiver of telephone instrument since it was ringing in between midnight to about 1.30 a.m., she was electroculated as a result of which her fingers of the right palm and the hand till wrist got burnt. Ultimately, till the wrist her right hand was required to be amputed. She had initially received treatment at Cottage Hospital at Sangameshwar and, thereafter, was shifted to CivilHospital, Ratnagiri and then to J.J.Hospital at Mumbai from where she was discharged on 05/03/2008. A police complaint was also made and enquiry was also made by the Telephone Department officer as well as Electricity department. Alleging deficiency in service on the part of telephone department as well as Electricity department for not maintaining the telephone and electric lines properly, a consumer complaint was filed on 03/11/2009. It was partly allowed and Bharat Sanchar Nigam Limited, Ratnagiri (hereinafter referred as ‘BSNL’) directed to pay compensation of `2,35,600/- with interest @ 9% p.a. w.e.f. from the date of filing of the complaint. In addition to it `10,000/- were also awarded as compensation for mental torture. Feeling aggrieved thereby, BSNL through its General Manager preferred this appeal.
Heard both the parties. Perused the record.
In the instant case, admittedly, from her own statement, the complainant cannot be held as ‘consumer’ either in relation with the service provided by BSNL or by the Maharashtra State Electricity Distribution Co. Her mother Sumitra is a consumer. Complainant Kamal cannot be held even as a beneficial consumer. This particular aspect while entertaining this consumer complaint erroneously considered by the forum and, thus, arrived at a wrong conclusion.
Even if for the sake of argument, this consumer complaint is held as maintainable, the forum principally relied upon the observations of the Electric Inspector Faizulali Mehboob Mulla whose affidavit dated 12/05/2010 is on record. We find this piece of evidence and the other evidence on record is misread by the forum.
Certain undisputed facts are that the service line of a telephone instrument installed at the house of Sumitra Sawant viz., from the point of telephone box (Rosette box) to instrument was found intact. The telephone connection wire upto the Rosette box was found damaged. Said telephone connection line came to the house of Sumitra Sawant from the house of neighbourer one Mr.Nalavade where the DP Box of telephone was installed. It is not disputed that said telephone line from the house of Nalavade to the house of Sumitra Sawant is an insulated cable and not an open wire. It is alleged that said cable which passed from the 11 kv high tension line of the Electric department perhaps got came in touch with the high voltage electricity line due to wind and/or as perhaps coconut tree long leaf (zaval) failed on the line. It is further alleged that since such telephone line came in contact with the electric line, there was a short circuit current which passed through the body of injured complainant Kamal when she lifted the receiver of the telephone instrument and got electroculated. It emerges as an undisputed fact and which is also established from the affidavits of BSNL lineman Shivaji Manku Angre and Junior Telecom officer Yogesh Bhalchandra Bhongale that telephone instrument itself is made of the material from which the electricity does not pass (or conducted). Similarly, if the electricity is passed from the Rosette box, which is a protective device for the instrument of telephone and then further from the body of complainant Kamal, who was standing on the ground so as to complete the electric circuit as a result of which complainant Kamal got electroculated, then in that case Rosette box’s safety device would have made operational or could have operated and if at all before such safety device could operate, current passed through the body of Kamal (which we find not possible since what she lifted is only the receiver of the telephone instrument which is non conductive of any electricity) and the electric current circuit is complete as stated earlier, then there would have been some damage to the Rosette box as well as to the service line from Rosette box to the telephone instrument and the instrument also would have damaged in such circumstances. Therefore, these possibilities not being ruled out from the evidence on record, it cannot be said that complainant Kamal had got electroculated since only because she had lifted the receiver of the telephone instrument to prevent continuous ringing bell from the instrument. Inference drawn on hypothetical basis in the light of the above referred facts by the complainant as well as by the Electric Inspector Faizulali Mulla cannot be said as believable and acceptable. Electric inspector has further ignored the fact that from the house of Nalavade to the house of Sumitra Sawant, the telephone connection was given by properly insulted wire. Therefore, what other safety precautions need to have been taken before giving such telephone connection by BSNL is required to be made clear, particularly, in light of the affidavit of BSNL official Yogesh Bhongale. It is pertinent to note that since 2002 when the telephone connection was given, till 2007 when the incident occurred, there was no mishap because of such telephone connection given to the house of Sumitra Sawant. It is also pertinent to note that a week before the mishap, lineman Shivaji Aangre whose affidavit is on record, got examined this telephone connection and the service line and found everything is in order.
Further, it is revealed from the evidence on record, particularly, from the evidence of Inspector Faizulali Mulla that on that night entire Telephone Exchange at village Karjuve failed but reason thereof is not made known. Apart from that according to Electric Inspector Faizulali Mulla when the electric transmission line came in contact with foreign body (in the instant case it is suspected to be a telephone line), a tripping was noted at 1.05 a.m., 1.08 a.m. and 1.12 a.m. According to the complainant and her mother Sumitra, the incident when the complainant Kamal got electroculated occurred at 1.30 a.m. At that time there was no tripping noted. Therefore, theory of telephone wire passing under the 11 k.v. electric wire near the house of Nalavade and which resulted in passing of an electric current through telephone instrument and which is said to be a cause of electroculation of complainant Kamal, cannot be held as true. It may be pointed out that it was a night time particularly, around midnight, complainant woke up after hearing continuous noise from the telephone instrument for about 1½ hour and then most probably in the darkness itself approached to the telephone instrument or place where the telephone instrument was kept. Since the telephone instrument is of electric non-conductive material, mere lifting of telephone receiver cannot give electric shock or electroculation to complainant Kamal. So the probability of her touching some part of live electric wire cannot be ruled out, since the electric supply at the house of Sumitra Sawant remained undisturbed on that night. Therefore, alleged theory of getting electroculated on lifting the receiver of telephone instrument cannot be safely accepted.
Apart from that as earlier pointed out, complainant Kamal is not a consumer, since the telephone connection stands in the name of her mother. She being one of the members of the household even if using the telephone it will not make her a consumer or beneficial consumer within the meaning of Consumer Protection Act, 1986 (Act for brevity). She cannot be a consumer in relation to the telephone instrument installed at the house of Sumitra Sawant. The service line is from the Rosette box to the telephone instrument. Earlier cable connecting said Rosette box to the DP Box is a telephone line giving connectivity or in other words a transmission line. The mishap even according to the Electric inspector occurred due to touching of said transmission line with the electric line near transformer near the house of Nalavade. Under the circumstances, in respect of such transmission line, Sumitra Sawant in whose name telephone connection stands cannot be a consumer. For this purpose, ratio decidendi of this Commission’s earlier decision in the matter of Maharashtra State Electricity Distribution Co.Ltd. v/s. Babulal K. Gandhi(In Appeal nos.227 & 228/2007) dated 10/03/2010 can be safely relied upon.
Thus, we find that forum did not appreciate the facts and evidence on record properly and arrived at a wrong conclusion. Impugned order cannot be supported with. Holding accordingly, we pass the following order:-
ORDER
Appeal is allowed.
Impugned order dated 30/06/2010 as against the appellant stands set aside. In the result, consumer complaint no.146/2009 stands dismissed.
In the given circumstances both the parties bear their own costs.
Copies of the order be furnished to the parties.
Pronounced on 8th July, 2011.
