Karnataka

Chitradurga

CC/243/2019

Smt. Lakshmi W/o Basavaraj - Complainant(s)

Versus

Rajanna S/o Kariyappa - Opp.Party(s)

Sri.K.R.Rangaswamy

16 Sep 2019

ORDER

COMPLAINT FILED ON:12/03/2019

DISPOSED      ON:22/10/2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

CC.NO:243/2019

DATED: 22^nd   October 2019

PRESENT :-     Smt. C.M.Chanchala.                     …. President

                           B.A.L.,,LL.B.,                 

                            

                        SRI. SHIVAKUMAR.K.N    :              MEMBER

                     M.Com., LL.B.,

 

……COMPLAINANT/S	Smt.Lakshmi W/o Basavaraj aged about 22 years. Smt.Chithamma w/o Thimappa aged about 50 years. Thimappa s/o Late Ajjappa aged about 70 years. All are agriculturists/o H.Gollarahatti, Huligere Village, Kadur taluk, Chikmangalore District. (Rep by Sri.K.R.Rangaswamy,   Advocate)
V/S
…..OPPOSITE PARTY	Rajanna S/o Kariyappa aged about 50 years, Agriculturist, R/o Madakere village, Hosadurga Taluk, Chitradurga Dist. (Rep by Sri. N.Thippeswamy ,Advocate OP.1) The Asst.Executive Engineer,BESCOM R/o Madadakere village,Hosadurga Taluk,Chitradurga District. (Rep Op-2 by T.K. Chandrashekara Rao,   Advocate)

Pronounced on 22^nd of October 2019  .

Written by C.M.Chanchala, President.

 

 

 

ORDERS

 

1.   This is a complaint of alleged deficiency of service filed under section 12 of the Consumer Protection Act,1986 by Smt.Lakshmi and others the Complainants against the Opposite party (for short ‘OPs’ ) praying to award Rs. 15,00,000/- towards compensation and other relifes  - etc.

The complaint:-

2.   The brief facts of the complaint are that the deceased Basavaraju was the husband of  1^st complainant and son of complainants No.2 and 3. On 26-08-2018  at about 11-a.m when Basavaraj had been to bring grass to sheep on the land of OP No.1 electric wire touched to the Basavaraj & due to electric shock he died in the spot. In this regard criminal case is also registered in crime no 402/2018 before Hosadurga P.S w/S 3 04 (a) IP& 135 of Indian electricity against OP-1. And postmortem also conducted. As deceased Basavaraj died due to negligence of  OP- 1 and 2 the present complaint is brought for compensation of Rs . 15,00,000/-.

3.     After hearing on admission the complaint was admitted and  notice were ordered to be issued to the OPs  to file its written versions under section 13(2) of the Consumer Protection Act,1986 (  in short “the Act) . The OP 1 and 2 have appeared through their counsels and filed written version.

Defense:-

4. OP-1 filed his written version by contending that there is no relation between him and the complainants as defined under C.P Act. Further as he acquitted in criminal case filed against him, he is not liable to pay a compensation, hence he prayed for dismiss the complaint against him.

5.  OP 2 filed written version by contending that OP-1 has un authorizedily and illegally  drawn electrical wire on the fencing wire of his pump set, that wire skinned and touched the fencing wire and when Basavaraj came into contact to the fencing wire he received electric shock and died Hence OP 1 is purely responsible and liable to pay compensation. On this ground it prays for dismiss the complaint against them.

Evidence :

6.      The complainant got himself examined as PW-1 by filing his affidavit as a part of examination in chief and also got Ex.A-1 to A-13 marked and closed the evidence.

7.   OP-1 got himself examined as RW-1 by filing his affidavit as a part of examination in chief, no documents have marked on his behalf.  On behalf of OP 2 one H.Thirupathi naik got himself examined as RW-2 by filing his  affidavit as a part of examination in chief and though he has produced documents, they have not marked as exhibits.

Arguments:

8.      We have heard the complainant as well as counsel of OP-2 and perused the written arguments filed by both side advocates.  

9.      The points that arise for our determination are ;

1. Whether the complainant proves that deficiency of service on the part of opponents?

2. Whether the complainant proves that he is entitled for the relief sought?

3. What order?

10.    Our finding on the above points are as under;

          Point No.1: In the Affirmative

          Point No2: In the Affirmative

          Point No3: As per final order,

Discussion and Reasoning:

Point No.1 and 2:

 

11.    It is admitted facts that the husband of the 1^st complainant and son of complainants no 2 & 3 died due to electrocution on 26/08/2018 at 11:00 am in the land belonging to OP-1. It is also admitted facts that in this regard criminal case is also registered in crime no 402/2018 before Hosadurga P.S w/S 3 04 (a) IP& 135 of Indian electricity against OP-1.

12. The Comp alleged that when Basavaraj had been to bring grass to sheep on the land of OP 1,  electric wire touched to Basavaraj & due to electric shock he died on the spot. As the OP-2 failed to maintain the electric wire properly its also liable to pay compensation with OP-1.

13.  Ex-A1 is the FIR shows that Basavaraj was died due to electrocution. Statement of all the witness, Mahazer, Sketch and Postmortem report show that Basavaraj died due to Electrocution.

14.  The OP 1 contended that there is no relationship between him and the complaint under C.P Act further as he acquitted in criminal case filed against him,he is not liable to pay a compensation.

15.   To prove the above contention OP-1 have not produced any documents such as copy of judgment passed in the criminal case. it is not the case of OP-1 that the death of Basavaraju caused not due to unathosized and illegal electricity drawn by him. OP-1 has not produced any documents to prove that he has authorizedly and legally drawn electricity to his pump set. All the documents produced by the complainant as well as OP-2 shows that when Basavaraj had been to bring grass to sheep on the land of OP 1,  electric wire touched to Basavaraj & due to electric shock he died on the spot and said electric wire drawn by OP-1 unathosized and illegally.  Acquitted in criminal case is not of round for deny his liability.

16.  The OP 2 contended that OP-1 has un unathosized and illegal drawn electrical wire on the fencing wire of his pump set, that wire skinned and touched the fencing wire and when Basavaraj came in contact to the fencing wire he received electric shock and died. Hence they are not liable to pay any compensation. But the OP-2 did not explain why they have not followed the duty cost on then as per Rule 91 of the Indian Electricity Rules, 1956 and not noticed the theft of electricity until the death of Basvaraju .   

17.  On perusal of this documents it found that the death of the deceased has been caused due to electrocution.

18.  It is clear that Rule 91 of the Indian Electricity Rules, 1956 stipulates that every overhead electric line erected over any part of a street or other public place or any factory or mine or any consumer's premises shall be protected with a device approved by the Inspector for rendering the line electrically harmless in case it breaks. It is seen that the electrocution had occurred only in the open place of the village and a poor man and his dependents were made victims.

19.  It is seen that the mandatory safety measures stipulated under Rule 91 of the Indian Electricity Rules, 1956 were not complied with by the OP-2, which had caused the death of Basavaraju.

20.  Maintenance of electricity live wire is the prime duty of the electricity authorities. Even observing the theft of electricity and taking action against him is also the duty attached to the electricity authorities coming under the maintenance of the live electric wire. The same has not been done. That itself indicates that the OP-2 negligent in their own action in discharging their statutory duty. If the death of the deceased due to electrocution is admitted and there is negligence on the part of the OP-2 in maintaining the live electric wire, taking into consideration the analogy of negligence discussed supra and relying upon the judgments of this Court as well as the apex Court in Nirmala Nayak (supra), Executive Engineer, CESU v. Hema Sethi (supra), M.S.Grewal (supra) and Jacob Mathew (supra), it can safely be held that the death caused to the deceased was due to negligence on the part of the electricity authorities.

21.  The documents produced by the OP-2  nothing to do with the case of the complainants as it is the admitted fact that the death of the deceased has been caused due to electrocution.  As the deceased has died as a result of the negligence of the OP No.2, they are bound to pay compensation to the complainants for the loss suffered by them.

 22.  Now to the quantum of compensation. The amount of money as reparation for the results of tortious conduct for which the law holds the wrong doer responsible is determined by applying as far as possible the general principle of restitution integrum. In many cases, however, a perfect compensation is hardly possible and would even be unjust. The court in doing justice between the parties considers the general rules as to damages with some liberality and does not apply them rigidly, and, thus, the damages are in difficult case normally limited to a sum which can in the circumstances be considered as a reasonable amount of compensation. Courts should not also in such cases allow a calamity to turn into a windfall. In ascertaining the pecuniary loss caused to the dependants, it must be borne in mind that these damages are not to be given as solatium for the loss of a son or daughter, wife or husband, father or mother, not on sympathetic or sentimental consideration, but only with reference to pecuniary loss.

23.  It is also not in much dispute that the husband of the complainant No.1 and son of complainants No.2 and 3 was the only bread-winner of the family. It was held by the Hon'ble Supreme Court in M.P.Electricity Board vs. Shail Kumari and others [2002 (2) SCC 162] that the liability of the Electricity Board under Law of Torts to compensate for the injuries suffered cannot be denied on the basis that the Electricity Board has taken all safety measures since the liability of the Department is strict liability, relying upon the renowned and celebrated case on the issue, viz., Rylands vs,. Fletcher (1868 (3) HL 330 : 1861-73 All ER Rep.1). The Supreme Court has held as follows: "8. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.

24.  It is seen that the mandatory safety measures stipulated under Rule 91 of the Indian Electricity Rules, 1956 were not complied with by the concerned officials of the OP-2, which had caused the death of deceased Basavaraju. Accordingly, we answered these points in the Affirmative.

Point No.3:

25.  In the facts and circumstances discussed above, we passed the following order.

                                                ORDER.

The complaint is partly allowed.

OP-2 is directed to pay Rs. 8,00,000/- to the complainants as compensation for death of Basavaraju within six weeks from the receipt of the copy of this order. OP No.2 also shall pay Rs.20,000/- to the complainants as compensation for deficiency of service and also cost of the proceeding within six weeks from the receipt of the copy of this order.  In case of non-compliance of the order the entire amount shall carry interest @ 10% per annum till its realization.

The present complaint dismissed against OP-1.

The assistant registrar is directed to send free copies of this order to the all the parties free of cost within a week from today.

(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the open court this 22nd  day of October 2019)         MEMBER                                                      PRESIDENT

ANNEXURE

Witness examined for the complainant side:

Complainant- Smt. Lakshmi W/o Late Basavaraj, she has examined-in-chief by filing affidavit as PW1.

Documents marked for the complainant side:

01	Ex-A-1:-	FIR
02	Ex-A-2:-	Complaint
03	Ex-A-3:-	Post-mortem report
04	Ex.A-4	Statement
05	Ex.A-5:-	Swathina patti.
06	Ex.A-6:-	For Government
07	Ex.A-7:-	Swathina Patti.
08	EX-A-8:-	Swathina Patti.
09	EX-A-9:-	Panchaname.
10	Ex-A-10	Post-mortem report
11	Ex-A-11	Charge Sheet.
12	Ex-A-12	Legal notice
13	Ex-A-12(a)	Postal receipt
14	Ex-A-13	Acknowledgement
15	Ex-A-14	Reply notice

Witness examined for the opponents 1:

Nil

Witness examined for the opponents 2:

RW-2:- H. Thirupathi Naik S/o Hobya Nayak.   by filing affidavit evidence.

Documents marked for the opponents 1:

01	Ex-R-1:-	Report of electrical accident
02	Ex-R-2:-	Statement of AEE
03	Ex-R-3:-	Statement of AEE
04	Ex-R-4:-	Police complaint given by ASSt., engineer.
05	Ex-R-5:-	Statement of Venkatesh
06	Ex-R-6:-	Statement of AE
07	Ex-R-7:-	Report of Electrical
08	Ex-R-8:-	FIR
09	Ex-R-9:-	Police complaint
10	Ex-R-10:-	Reply to legal notice
11	Ex-R-11:-	Ack of notice

 

        (C.M.Chanchala  )

                       President.

                                                                                     

 

 

       (Shivakumar K.N)

                                                                                 Member.