A.K.Mehta President

1        The complainant Sh. Rajneesh Bhardwaj filed the present complaint under Section 12 and 13 of the Consumer Protection Act (herein after called as 'the Act') against Punjab State Power Corporation Limited Earlier Punjab State Electricity Board through its Chairman, the Mall, Patiala (Opposite Party) on the allegations of deficiency  in service, unfair trade practice and malpractice with further prayer to direct the opposite party to pay Rs. 5,00,000/- for damage to the property and total loss of T.V. L.C.D, washing machine and other electric and electronic gadgets, electric wires of the house besides physical loss to the child relative Master Shresht Chaudhary and Rs. 15,00,000/- as compensation and restricts the total relief to the extent of Rs. 19,99,999/-.

2        The case of the complainant in brief is that complainant has an electric connection No. A22HG710039w in the name of previous owner for domestic use of the complainant and as such complainant is consumer and beneficiary as defined in the ‘Act’ and is competent to file the present complaint in this Forum; that High Tension Electric wires were passing over the house of the complainant and opposite party      was requested many times to shift the same as the wires were grave danger to the life and property of the complainant and his family but the opposite party did nothing to remove the wires; that  unfortunately on 22.11.2014 at about 14.15 Hours, a heavy blast took place from the High Tension Electric wires passing over the house of the complainant which caused heavy damage to the property and electric and electronic gadgets in the house and a child relative of the complainant also got badly electrocuted and is still battling with his life and is admitted in Amandeep Hospital Amritsar; that complainant immediately intimated to the opposite party-complaint office regarding the incident and D.D.R. was lodged and was communicated to the opposite party; that the blast occurred from the High Tension Electric wires of the opposite party which caused  loss to the building and other electric gadgets and also to electric wires of the house and physical loss to Shresht Chaudhary, but the complainant restricted the said loss to Rs. 5,00,000/- only for the purpose of present complaint; that act of the opposite party in not removing and not properly up-keeping the High Tension Electric wires  passing over the house of the complainant and putting the life and property of the complainant in grave risk amounts to deficiency in service, unfair trade practice and malpractice and it caused lot of mental trauma, agony and harassment for which the opposite party is liable to pay compensation of Rs. 15,00,000/- to the complainant; that complainant requested the opposite party to pay compensation but with no effect which compelled the complainant to file the present complaint.

3        After formal admission of the complaint, notice was issued to Opposite Party  and Opposite Party appeared through counsel and filed written version contesting the complaint on the preliminary objections that the complaint is not maintainable in the present form as this Forum has no jurisdiction to try and adjudicate the matter in dispute and only
Civil Court has the jurisdiction to try this case as it is matter of evidence that the complainant has violated the instructions contained in the electricity rules while constructing his building under High Tension Electric wires passing over the house and even no objection certificate was obtained by the complainant from Punjab State Power Corporation Limited and from concerned authority of M.C.A before raising the construction of the building and even complainant has given affidavit to the opposite party, where he has stated that there is no fault on the part of the opposite party and even the Punjab Govt. has given sufficient amount as compensation to the parents of the child and as such, the complaint of the complainant is liable to be dismissed and that no cause of action has arisen to the complainant against the opposite party. On merits, it was admitted that the electric connection in dispute is running in the name of Raja Ram. It was also admitted that a High Tension Electric wires of 132 KV/132000 volts is passing above the house of the complainant but it is denied if complainant requested the opposite party to remove these wires as alleged by him because infact these wires are in existence since 1970 much before the construction of the building of the complainant and even the complainant did not get N.O.C. from the opposite party-Punjab State Power Corporation Limited and from the M.C.A. before raising construction of the building as required by the Punjab State Power Corporation Limited and Municipal Corporation Amritsar so if any construction is made by the complainant under High Tension Electric wires, he has violated the electric rules and as such, if any incident has occurred due to these  wires to the building of the complainant then in that case, complainant himself is responsible for the same and not the opposite party; that the distance of the wires and roof of the house of the complainant should be 6.1 Meters as per Section 80.2 (C) of the electricity rules but in the present case distance of the roof of the house of the complainant and wires is only 2.27 meters which is against the instructions of Punjab State powers Corporation Limited rules and as such these facts prove that complainant has violated the rules of electricity board/corporation before completion of the building. It was admitted that on 22.11.2014 an incident took place due to touching of China Dor of kite being flied by a child on the roof of the complainant and  due to touching of that China Dor, a heavy blast occurred and child was injured but the complainant/ owner of the building has given an affidavit to the opposite party that there is no fault on the part of any employee of the Punjab State Power Corporation Limited and Punjab Govt. has also given sufficient compensation to the parents of the child and as opposite party is not liable to pay any more compensation to the complainant and complainant is misleading and misstating the actual truth to the Forum and as such complaint is liable to be dismissed.  It was denied if any damage was caused to the property of the complainant due to said blast because the complainant has not given any intimation to the opposite party regarding any loss to his building before filing the present complaint and now the complainant is misleading and misstating the actual truth only to get the compensation from the opposite party. All other allegations mentioned in the complaint were denied being wrong and incorrect and prayer was made for dismissal of the complaint with costs.  

4          Sufficient opportunities were granted to the parties to lead evidence in order to prove their respective case. The ld. counsel for the complainant tendered in to evidence the affidavit of complainant Ex. C-1 alongwith documents Ex. C-2 to C-23 and closed the evidence and thereafter Ld. Counsel for the Opposite Parties tendered in to evidence, affidavit of Jaspal Singh SDO OP1 alongwith documents Ex. OP2, Ex. OP3 and closed the evidence.

5        We have heard the Ld. Counsel for parties and also gone through the evidence and documents produced by the parties.

6        Ld. counsel for the complainant contended that High Tension Electric wires are passing over complainant’s house and his nephew had come to his house who was present at the roof of his house and a kite was passing over the house and nephew of the complainant caught the string (Dor) of the Kite and kite fell on the wires and due to this reason, a blast took place in the wires which caused extensive damage to the house of complainant and also to the articles like T.V., L.C.D, washing machine etc. and also caused damage to the wiring of the house and piping of the house and nephew of the complainant was also electrocuted and suffered many injuries and burns and was taken to hospital. He contended that complainant went to police and filed an application for registration of Rapat and Rapat Ex. C-4 was registered on the complaint of complainant and intimation of this incident was also given to Chief Engineer which is proved on the file as Ex. C-3. He contended that an electric connection is running in the house of complainant and bill of the same is Ex. C-2. He contended that complainant has also proved house tax receipts of the house Ex. C-5 and C-6 and photographs showing damage caused to the house of the complainant is proved on the file as Ex. C-7 to C-20. He contended that nephew of complainant was admitted in the hospital and treatment receipt is proved on the file as Ex. C-21 which contains 115 pages. He contended that amount about Rs. 14,00,000/- was spent on the treatment of nephew of the complainant and bills are proved on the file. He contended that the electric gadgets costing about Rs. 3,00,000/- were also damaged in the incident and the total expenses suffered by the complainant is to the extent of Rs.  17,52,400/-. He contended that the opposite party has admitted incident but contended that the house has not been constructed in accordance with rules because electric connection has been issued to the complainant which is always issued if all the rules of electricity department has been complied  by the applicant and house was also legally constructed and was under assessment of house tax. He contended that incident occurred due to poor maintenance of transmission lines and it shows the deficiency in service on the part of the opposite party and as such opposite party is liable to pay the damages but opposite party refused to pay the damages which caused harassment and mental agony to the complainant and as such complaint is required to be allowed and complainant is entitled to damages, compensation and litigation expenses as mentioned in the complaint. He supported his arguments with case titled The Chairman & Managing Director A.P. Transco. & Others-Petitioner Vs Bhimeswara Swamy & Others-Respondents 2015(1) Consumer Law today page 505, case titled Ankush & Others-Petitioners Vs Superintending Engineer & ORS-Respondents 2016(1) Consumer Protection Judgment page 383, case titled and case titled Executive Engineer, Electricity Distribution Division & Ors-Petitioners Vs Budhdhan-Respondent 2009(1) Consumer Protection Cases  Page 30.

7        Ld. counsel for the opposite party contended that the complaint is not maintainable in the Consumer Forum as Consumer Forum has no jurisdiction to try and decide the matter as only Civil Court has jurisdiction to try this case because evidence is to be led in this case which requires cross examination etc. which is not permissible in Consumer Forum and as such complaint cannot be decided by summery procedure. He supported his arguments with case titled U.P. State Electricity Board & Ors-Appellants Vs Sheo Bharoshe-Respondent 2000(2) Consumer Protection Judgments page 322. He further contended that High Tension Electric wires  132 KV/132000 volts is passing over the house of complainant but complainant never requested the opposite party to remove these wires because the wires are existing at the site since 1970 i.e. much before the construction of the house by the complainant and even the complainant has not obtained any N.O.C. from opposite party or M.C.A. before raising the construction of the house. He contended that the complainant has constructed the house against the electricity rules as the distance between the house of the complainant and wires is less than prescribed distance and complainant has violated the rules and is not entitled to any compensation. Ld. counsel for the opposite party admitted incident but contended that the incident occurred due to negligence of the child who was flying kite on the roof of the house of the complainant and kite touched the transmission lines and due to this reason, heavy blast took place and child was also injured and as such there was no fault on the part of the opposite party and complainant has also given affidavit and certificate to this effect which is also proved on the file as Ex. OP-2 and affidavit is also given by Raj Kumar resident of the adjoining house who also witnessed the occurrence and it  all shows that there was no negligence, deficiency in service on the part of the opposite party and as such the complaint is totally false and frivolous and is liable to be dismissed with costs.

8        The incident is admitted in this case. The contention of the complainant is that incident occurred due to deficiency in service and negligence on the part of the opposite party  in which his nephew suffered extensive injuries and required hospitalization in which heavy  amount was spent for treatment and house was also extensively damaged and about Rs. 5 Lacs was spent on its repair and as such the opposite party is liable to pay expenses because incident occurred due to deficiency in service on the part of the opposite party where as contention of opposite party is that there was no deficiency in service on the part of the opposite party nor there was any negligence on the part of the opposite party and incident occurred due to fault on the part of nephew of the complainant who was flying kite which fell on the transmission lines and  when he pulled the kite, blast took place in the transmission lines which caused injury to the nephew of the complainant and damage to the house but there was no negligence and deficiency in service on the part of the opposite party and as such opposite party is not liable to pay any damages and complaint is liable to be dismissed with costs.

9        After going through the pleadings of the parties, evidence and documents produced on the file by the parties this Forum is of the considered view that complainant has failed to prove the deficiency in service and negligence on the part of the opposite party. Rather the evidence shows that the incident occurred due to negligence on the part of nephew of the complainant who pulled the kite which was entangled in the transmission lines and due to this reason, blast took place in Transmission lines which caused injuries to the nephew of the complainant and damages to his house. Under the Consumer Protection Act, it is the prime duty of the complainant  to prove that there was deficiency in service on the part of the opposite party due to which reason, injuries were caused to the nephew of the complainant and damages to the house of the complainant occurred. The complainant proved a copy of D.D.R. Ex. C-4 registered regarding this incident in which it is mentioned that his nephew aged about 13 years was on visit to his house and was present on the roof of the house when a kite with string (Dor) passed near him and when he tried to pull  the same, a blast took place from the High Tension Electric wires which caused injuries to the nephew of complainant and damages to his house. As such it is clear that the blast did not take place due to any negligence and fault on the part of the opposite party nor there was any deficiency in service on the part of the opposite party because there is no allegation that blast took place in the Transmission Lines due to any fault in it. Moreover opposite party has proved a certificate/ affidavit given by complainant himself stating therein that no official or officer of the opposite party is liable for the incident. Moreover an independent person namely Raj Kumar who also witnessed the occurrence has also given an affidavit stating there in that no official or officer of the opposite party is responsible or liable for the incident and it clinches the issue and shows that there was no negligence and deficiency in service on the part of the opposite party. A certificate is also proved by the opposite party which shows that the distance between the house and Transmission Lines should be 6.1 meter whereas the distance of the house of the complainant and transmission line was 2.27 meter. The facts of the cases referred by the Ld. counsel for the complainant are quite distinguishable from the facts of the case in hand because in all referred cases transmission line fell or broke due to poor maintenance of the transmission line and caused the injuries or damage whereas there is no such allegations in the case in hand. Rather the case of the complainant is that the incident occurred when a kite fell on the transmission line and string(dor) was pulled by the nephew of the complainant which caused the blast, otherwise also, a consumer Forum is to decide the cases in summary way on the basis of evidence and documents proved on the file by the parties as no witness is normally examined or cross examined before the Consumer Forum. Otherwise the evidence and documents produced on the file particularly the affidavits/certificate  of the complainant and Raj Kumar referred above clearly shows that there was no deficiency in service or negligence on the part of the opposite party. The complainant has alleged in the complaint that he asked and requested the Opposite Party many times to shift the high tension electric wires, but the Opposite Party  did not shift the wires, but the complainant has not produced copy of any application or any other evidence  on the file to show that he requested the Opposite Party  to shift the high tension electric wires or he protested when the high tension electric wires were being erected after the construction of his house, and it shows that the allegation of the complainant to this effect is without any force.    As such complainant has failed to prove on the file that incident occurred due to deficiency in service and negligence on the part of the opposite party which caused  damage to  the house and injuries to the nephew of the complainant and as such the complainant is not entitled to recover any compensation under the complaint.