BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Friday the 31stday of October , 2008
C.C.No. 157/07
Between:
- Boggula Marenna, S/o. Pedda Lakshmanna,
H.No.47/131, Budhawarapeta, Kurnool.
- Boggula Akkamma, W/o. Boggula Marenna,
H.No.47/131, Budhawarpeta, Kurnool. … Complainants
Versus
Kurnool Municipal Corporation, Represented by its Municipal Commissioner,
Kurnool. … Opposite party
This complaint is coming on this day for orders in the presence of Sri.M.Sivaji Rao, Advocate, for the complainant, and Sri.D.Yella Reddy, Advocate, for the opposite party and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No.157/07
1. This case of the complainant is filed U/S 11 and 12 of C.P.Act seeking direction on the opposite party to pay Rs.8 lakhs as compensation and damages for mental agony and cost of this case
alleging the deficiency of services of the opposite party in maintaining the safety of the public latrines on account of which the demise of Paul. Raju @ Rajendra – minor son of the complainant occurred on 24-4-2006 due to fall of said Raju into septic tank of public latrine situated opposite to Bala Bharathi School in Bhudhawarpet, Kurnool Municipality when the said boy went there for attending calls of nature , and as the opposite party kept quite silent at the legal notice dated 10-06-2006 of the complainant demanding compensation for demise of his son at the negligence of the opposite party in ensuring safety to users of the public latrine this case originated.
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant the opposite party caused its appearance through its counsel and contested the case denying any liability filling a written version .
3. The written version of the opposite party besides questioning the justness and maintainability of the complainants case and strict proof of the complaint averments and the status of consumer and tax payer to the complainant , allege that the house taxes were collected non for maintaining the public latrines but for general use water drainage public lighting and conservancy and so any deficiency on its part in the demise of the complainants son as the place of septic tank is not the place for attending calls of nature to anybody and for accidental death of the complainants son ought to have applied Government for ex-gratia and not to the opposite party and there being any justifiable basis for the amount of compensation claimed and the nature of the enquiry being involving the examination of lot of evidence and documents as in civil cases questions the jurisdiction of this forum for entertaining the case and so seeks dismissal of the complaint with cost.
4. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A9 and the sworn affidavit of the complainant and his third party , the opposite party side has taken mere reliance on the sworn affidavit of the opposite party in substantiation of its defence.
5. Hence , the point for consideration is whether the complainant has made out any deficiency of the opposite party and there by the latters liability to his claim.
6. While the Ex.A1 – certificate of death issued by the opposite parties Health Officer envisaging the demise of Bogaala Paul Raju on 25-4-2006 in Government General Hospital, Kurnool and the said deceased son of complainant No.1 the paper clippings in Ex.A3 and A4 pertaining to Andhra Bhoomi and Vaartha dated 26-4-2006 and 25-4-2006 respectively and they envisaged the demise of said deceased Raju on account of substandard construction of the cover of septic tank . The Ex.A5 FIR in Cr.No.51/06 of III town police station , Kurnool registered U/S 174 Cr. P.C. at the complaint of deceased boys mother alleging her son went to attend calls of nature and on the commotion of neighbors they learnt as to her son falling into Municipal Septic Latrine tank and the said boy died by the time he was removed from septic latrine tank. The Ex.A6 - inquest held by police as to the demise of said Paul Raju also holds that the said demise of the said deceased as accidental due to felling into septic tank basing on the final report of the police in Ex.A8 and post mortem report in Ex.A9 . From all the above material it is clear that the said deceased boy who his son of complainants died due to his fall into septic latrines tank due to substandardness of the cover of said septic tank and the said public latrine and its septic tank pits were under the maintenance of the opposite party for the beneficial enjoyment of its public .
7. While Section 296 of A.P. Municipal Corporation Act vests in the Municipal Commissioner the construction , maintenance of cleansing of drains , Section 316 of said Act says that all drains and cess pools to be properly covered and ventilated whether belong to corporation or not empowering the commissioner for causing written notice requiring the owner of any drain to provide such trap and covers etc., as would be provided and applied to drain or cess pools belonging to corporation , and Sec.292 of the said Act casts on the Commissioner the power of construction repairs etc., of the drains . Therefore it is remaining clear that the commissioner of the municipality has to see the proper implementation , maintenance and repairs of all the things relating to drain including their proper covering for the beneficial enjoyment and utility of the public of its municipality . Any negligence in discharge of said statutory obligations it will be viewed with very seriousness as amounts to extreme deficiency in service in not discharging obligatory functions relating to the public health , sanitation , safety irrespective of the fact whether any tax , fees is paid as all the potential users / beneficiaries are consumers provided such functions are statutory and obligatory and its expenses are met from public fund , exchequer , consolidator fund as is held by the Hon’ble Delhi State Consumer Disputes Redressal Commission in Rakesh Dhawan and other Vs. Union of India and others reported in III ( 2008) CPJ 135 .
8. The Hon’ble Supreme Court in Gaziabhad Development Authority Vs Balbir Singh reported in 2004 SAR ( civil) 583 SC also holds cases of service rendered by statutory and public authorities as covered under jurisdiction of foras created under the Act and such authorities and liable to compensate for misfeasance in public office such an Act which oppressive or capricious or arbitrarory or negligent provided loss or injury suffered by citizen as term compensation is vide enough to constitute actual loss or expected loss and may extend to compensation for physical , mental or even to notional suffering , insult or injury or loss , and forums are entitled to award not only value of goods or services but also compensation to consumer for injuries suffered by him.
9. The Hon’ble Supreme Court of India in Standard Charted Bank Limited Vs Dr.B.N.Raman reported in III ( 2006) CPJ (SC) holds the activities relating to non sovereign powers of statutory bodies are within the perview of the C.P Act as functions of such statutory bodies are covered under terms service define U/S 2 (1) (O ) of C.P.Act .
10. The Hon’ble Tamilnadu State Consumer Disputes Redressal Commission at Chennai in citizen consumers Civic Action Group Vs Corporation of Chennai and another reported in III ( 2008) CPJ 240 holds deficiency of service of the corporation when the non removal of garbage by the corporation contractor as the corporation pays the contractor engaged for that purpose out of the taxes received from the public and as the corporation is bound to provide said service.
11. From the above decisions what remains clear is that when statutory body fails in discharge of its statutory obligations meant for public sanitation safety etc. any potential user / beneficiary of said service will be a consumer and can seek redressal for such non discharge of statutory obligation if resulted to any kind of injury .
12. In the present case also as there is negligence on the part of the opposite party in properly maintaining the safe coverage of septic tanks with proper lids and on account of said laps the complainants son has fallen into the septic tank and died , the said negligence on the part of the opposite party is amounting to deficiency of service with liability on the opposite party to compensate the loss of said child to the complainants and so there appears every bonafidees in the case of the complainant for ordering a justifiable compensation for loss sustained by the complainant at the negligent attitude of the opposite party.
13. The complainant except alleging a very bright prospective future of his deceased son did not place any such cogent material to find any justification in their claim for compensation of Rs. 8 lakhs . Hence in the circumstances of the case as a negligent maintenance of cover of the septic tank latrine by the opposite party as led to unfortunate demise of the complainants tender aged son who was going for attending calls of nature , an amount of Rs. 5 lakhs appear to be a justifiable compensation to the parents of said deceased. As the opposite party’s deficient and indifferent conduct has not only caused mental agony to the complainants ( parents of the deceased ) but also driven them to the forum for redressal , an amount of Rs.10,000/- and Rs.5,000/- as compensation for mental agony and cost of the case respectively appears to meet the ends of justice .
14. Consequently, the case of the complainant is allowed directing the opposite party to pay to the complainants Rs. 5 lakhs as compensation for demise of the complainants son at the negligent maintenance of the cover of septic latrine tank and Rs.10,000/- as compensation for mental agony and Rs.5,000/- as cost of this case within a month of receipt of this order. In default the supra stated award amount shall be payable by the opposite party to the complainants with 12 % interest p.a from the date of default till realization .
ictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 31st day of October, 208.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Death certificate issued by Kurnool Municipal Corporation,Kurnool.
Ex.A2. Office copy of legal notice dated 10-06-2006 along with
Postal receipt and acknowledgements.
Ex.A3. Andhra Bhoomi Kurnool edition dated 26-04-2006.
Ex.A4. Vartha Kurnool edition dated 25-04-2006.
Ex.A5. FIR in Cr.No.51/2006 of Kurnool III Town PS along with original statement of complainant therein.
Ex.A6. Inquest report in Cr.No.51/06 dated 25/04/2006.
Ex.A7. Proceedings of Mandal Executive Magistrate, Kurnool
dated 12-11-2007.
Ex.A8. Final report of SI police III town to Mandal Executive
Magistrate.
Ex.A9. Post mortem report dated 25-04-2006 .
List of exhibits marked for the opposite parties: Nil
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
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Complainant and Opposite parties
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