DATE OF FILING : 4.10.2013

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the  22nd  day of  February,  2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT. ASAMOL. P    MEMBER

CC NO.325/2013

Between

Complainants       :  1.   Joshy Thomas, S/o. Thomas,

     Mundackal House,

     Anchiri, Alakkodu,

     Thodupuzha, Idukki. 

2.  Thomas Abraham, S/o. Abraham,

     Mundackal House,

     Anchiri, Alakkodu,

     Thodupuzha, Idukki. 

    (Both by Adv:  Shiji Joseph)

And

Opposite Parties                                          :   1.  Shaji K.H.,

       Kandathinkarayil House,

       Kanjiramattam P.O.,

       Thodupuzha, Idukki. 

       (By Advs:  Saju Paul

Sijimon K. Augustine)

  2.  Litto P. John, S/o. John,

       Puthenpurayil House,

       Thodupuzha, Idukki.

  3.  Manoj P.G., S/o. Gopalapillai,

       Pazhamppillil House,

       Kanjiramattam, Thodupuzha, Idukki.

       (Both by Advs: M.M. Thomas,

Arun Jose Thomas & Selvam K.B) 

   4.  The Secretary,

         Kerala State Electricity Board,

        Vydyuthi Bhavan,

        Thiruvananthapuram.

        (By Adv: Lissy M.M.)

  5.  The Assistant Engineer, 

       Kerala State Electricity Board,

       Electrical Section, Thodupuzha,

       Idukki.

       (By Advs: P.T. Mathew 

& Lissy M.M.)

 

(cont....2)

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6.  Executive Engineer,

     Kerala State Electricity Board,

     Electrical Section, Thodupuzha,

     Idukki.

     (By Adv: Lissy M.M.)

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

 

Case of the complainant is that :

 

1. The 1st complainant is the son of 2nd complainant.  The 1st opposite party was the prior owner of a cable TV network, from whom the 2nd complainant took cable TV connection.  On 5.6.2012, the 1st opposite party sold the cable TV network to the 2nd and 3rd opposite parties and now they are conducting and operating the above said cable TV network in the name and style as Mitra Communication.  While so, on 10.6.2012, at 7 pm, the elder son of the 1st complainant in an attempt to disconnect the cable connection from the television, get electric shock from the cable wire and on the way to hospital, he died.  The postmortem report of the boy revealed that the person died due to electric shock.  Afterwards, the 1st opposite party filed a complaint before the Electrical Inspector and on examination in the building where the cable TV connection is fixed, the Electrical Inspector found that the death was occurred due to the defective cable connection.    The Inspector further found that, the cable TV connection is installed without an Alternative Current power block unit.  Without having any such precautions for the safety of human life, the cable TV connection was installed by the 1st opposite party and that was the reason for electrocution resultant death of the son of 1st complainant.  The complainants further stated that  the accident was the sole result of the defective cable connection by the opposite parties 1 to 3.  Hence  the opposite parties 1 to 3 are jointly and severally liable to pay compensation for the death of Rony due to the defeciency in service on the part of the opposite parties.

 

2. Complainant further averred that the died Rony was a graduate student and was very healthy and extra brilliant.  Due to his untimely

(cont....3)

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 death, the complainants and their family are in deep sorrow and pain.  Eventhough the mental sufferings of the parents and close relatives of the died Rony cannot be compensated in terms of money, complainants claim Rs.15 lakhs as compensation for the loss of love and affection of the deceased and also claim Rs.5 lakhs for the mental agony.  Hence the complainants approached the Forums for getting the above said reliefs from the opposite parties.

 

3. Upon notice, opposite parties entered appearance and filed detailed reply version.  In their version 1st opposite party contended that, the 1st opposite party was owned a cable TV network in the name and style 'S.S. Communication' till 19.3.2012.  On 19.3.2012, due to the financial problem, 1st opposite party transferred the cable TV network to one T.S. Rajan and one Salilan and thereafter they sold it to the opposite parties 2 and 3.  After 19.3.2012, this opposite party is having no connection with the cable TV network.  At the time of conducting this cable TV network, the opposite party complied all the safety precautions stipulated by the Electrical Inspector and after due inspection and verification and after satisfying all their safety formalities, the Electrical Inspector, Idukki sanctioned to conduct the said cable TV network through vide order No.B1-54/2011/Ell dated 8.6.2011 for a period of one year, that is, till 5.6.2012.  1st opposite party further contended that, till the date of transfer of the cable TV network, this opposite party complied all the safety formalities perfectly with proper care and caution.  Moreover, the complainants have no consumer relation with this opposite party and hence this opposite party is not liable to pay compensation for the alleged death.

 

4. In their reply version, 2nd and 3rd opposite parties contended that, the 2nd complainant is having no locus standi to file this complaint, since he is not the legal heir of the deceased Rony.  No consideration was received by these opposite parties from the 1st complainant or his deceased son and no service was provided to them by these opposite parties and hence this complaint is not maintainable herein.  Opposite parties further contended that there is no chance for getting electric shock from the cable connection as alleged and the possibility of electric shock from the cable TV is high in case of fault of the TV set having cable connection.  It is learnt that the TV set of one neighbour of the 2nd complainant had been 

       (cont...4)

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faulty on 10.6.2012, the date of incident and hence it is clear that the accident had not happened due to the fault of the cable TV connection, provided to the 2nd complainant.  Moreover, if there was any such fault, the accident would have happened much earlier and also to other consumers having cable TV connection.  Opposite party further contended that, if the reason of the accident was due to the non-installation of AC power block unit, all the cable TV consumers would have suffered the same fate of the deceased.  All the necessary precautions had been provided to the alleged cable TV connection.  Further no such an accident reported and these opposite parties never received any complaint from any of their consumers and these opposite parties have provided adequate protection for the cable wire from shock.  Hence these opposite parties are not liable to pay any compensation and the complaint is liable to be dismissed.

 

5. During the course of trial, the opposite parties 1 and 2 filed a petition for amending the complaint and impleading the Electricity Board authorities as additional opposite parties 4 to 6.  After recording the objection from the part of complainants and 1st  opposite party, petition allowed and the Electricity Board authorities were impleaded as additional opposite parties 4 to 6.  Upon receipt of notices, additional opposite parties 4 to 6 entered appearance and filed detailed reply version.  In their version, opposite parties 4 to 6 contended that, the complainants do not come within the meaning of consumer as defined in the Consumer Protection Act, since electrocution cases does not come within the jurisdiction of this Forum.  The report from the Electrical Inspector confirms that the electrocution and consequent death of the Rony was happened due to the negligence from the part of the cable TV operators, that is, opposite parties 1 to 3.  Opposite parties further contended that as per Regulation 44 of the Terms and conditions of Supply 2005, stipulate that, “unless otherwise agreed to, the point of commencement of supply shall be at the (1) incoming terminal of the cut out installed by the owner in case of low tension supply (2) outgoing terminal of Board's control switch gear in case of High Tension / Extra High Tension supply”.  From the above, it can be seen that, the distribution licence, the responsibility of these opposite parties ends at the incoming terminal of the cut out installed by the customer.  As per Section 177 of the Act, the yardstick to be followed for ensuring the safety in the supply of electrical energy is the Regulations to 

(cont....5)

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be formulated by the Central Electrical Authority, relating to safety and Electric Supply 2010.  The accident occurred from the installation within the premises, which is beyond the cut out point and it is the responsibility of the consumer to ensure safety within the area of his limit.

 

6. Opposite party further contended that, in the present case, the Electrical Inspector conducted enquiry as per Section (2)(a) of Section 161 of the said Act and found that the accident happened due to the electric shock through the cable TV line.  In the report, he noticed that AC power block was not seen installed with the cable conductor.  AC power block is an important electric equipment which functions as a block, when the AC voltage flows in dangerous level.  One Biju Thomas got electric shock in the same morning and the inhabitants of the nearby locality also got electric shock from the cable conductor extended by opposite parties 2 and 3.  On examination, Electrical Inspector found that AC power block were not installed in their houses, one Rabheek M.A., the technician of the cable TV company of the opposite parties 2 and 3 deposed to the Electrical Inspector that several complaints were reported from that area to him of getting electric shock from cable TV conductor.  The report concluded that opposite parties 2 and 3 are responsible for the incident as they failed to ensure adequate safety measures, while providing the cable TV connection.  In the above said circumstances, these opposite parties are in no way responsible for the incident.  After amending the complaint and incorporating additional opposite parties, the opposite parties 1 to 3 filed amended reply version.  In their amended reply version, 1st opposite party further contended that, the amended part of the complaint, that due to the shock occurred, deceased did not fell unconscious and that, it was found that the disconnected cable was held by the deceased and his hand was holding the disconnected cable was shivering due to the passing of electricity through the body of Rony was also false and hence denied.

 

6. Second and 3rd opposite parties in their version to the para 3(a) of the amended complaint had stated that this opposite parties had took possession of the cable TV network from 1st opposite party was on 5.6.2013.  Before that all the business relationship to this cable TV network are handled by the 1st opposite party.  At the time of purchase, 1st opposite party made them believe that all the required licences are with 

(cont....6)

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them and all the safety measures are complied as per the norms of authority.  But no such licence and certificates are handed over to these opposite parties till now.  On believing the words of the 1st opposite party, opposite parties 2 and 3 happened to purchase this net work.  Moreover, after getting the licence from the postal authorities, sanction is to be obtained from KSEB.  The 1st opposite party had taken 16 connection from 

KSEB along with power units.  But no certificate and sanction letters are handed over by the 1st  opposite party to the opposite parties 2 and 3.  

 

The oral testimony of the complainant and witness were taken.  Johny Thomas, H. Dilip Kumar, Rtd. Electrical Inspector, one Thomas, one Biju Thomas and one Tomy Thomas were examines as PWs1 to 5 respectively.  The documents such as cable TV network monthly subscription card marked as Ext.P1.  Copy of case records of Thodupuzha Police Station in crime No.1318/12 is marked as Ext.P2.  Copy of agreement dated 5.6.2012 is marked as Ext.P3.  Copy of postmortem report of Rony is marked as Ext.P4.  Copy of inquest report is marked as Ext.P5.  Enquiry report of Electrical Inspector is marked as Ext.P6.  Copy of Education qualification certificate of the deceased Rony is marked as Ext.P7.  

 

From the opposite parties side, 1st opposite party Shaji K.H, one T.S. Rajan and 3rd opposite party Manoj P.G were examined as DWs1 to 3.  Documents produced by the opposite parties.  Copy of proceedings of the Electrical Inspector, Idukki is marked as Ext.R1, copy of agreement dated 19.3.2012 is marked as Ext.R2, copy of agreement dated 5.6.12 (already marked as Ext.P2) marked as Ext.R3.  (Exts.R3 and R2 agreements are repeatedly marked as Exts.R4 and R5 by mistake).  

 

Heard both sides.

 

The points that arose for consideration are : (1) Whether the complaint is maintainable against the opposite parties 2 and 3 as they contended ?  (2) Whether there is any deficiency in service happened from the part of the opposite parties 1 to 5 ?  (3)  Whether the complainants are entitled to get damages and compensation as prayed for ?

 

     (cont....7)

-  7  -

The POINT :-  We have heard the learned counsels of both the parties and had gone through the evidence on record.  Before going to the depth of the evidence of the complainant, we decided to consider the 1st issue regarding the maintainability of this complaint as challenged by the 2nd and 3rd opposite parties.  The main issue raised by 2nd and 3rd opposite parties in this regard was that, the 2nd complainant has no locus standi to file this complaint in connection with the death of Rony, since he is not a legal heir of the deceased Rony.  Moreover, the opposite parties in the Interim Application pointed out that there is no consumer relationship between these opposite parties and the 1st complainant or his deceased son.  No consideration was received from the 1st complainant or his deceased son and hence no service was provided to them by these opposite parties or erstwhile cable operators.

 

For solving this issue, we perused the pleadings of the complainant as well as the deposition of PW1, the 1st complainant.  On going through these evidences, we convinced that the deceased Rony is the grandson of 2nd complainant and he was resided with his paternal grand father, the 2nd complainant for looking after him.  He is the beneficiary of all the amenities of that house including the cable TV connection, which is installed by his grand father, the 2nd complainant.

 

As per Section 2 of the Consumer Protection Act, the Consumer means, “ any person who hires or avails any service for consideration which has paid or partly paid …... including any beneficiary of service.”  In this case, the 2nd complainant who availed a service for consideration and the deceased Rony was the beneficiary of that service, who was used the service with the approval of his grandfather, the 2nd complainant.  Hence this issue is found in favour of the complainant.

 

The other issues are considered together for the sake of brevity and convenience.  For finding a solution to this issues, we considered the deposition of witness and the records produced by both parties.  On going through the deposition of PW1, the 1st complainant, PW2, the Electrical Inspector and PW4, one Biju who was present at the time of incident, alongwith the Ext.P6, Electrical Inspection report, we can see that the Rony died due to the Electrocution from the cable wire.  This fact is 

  (cont....8)

-  8  -

admitted by the 3rd opposite party in their reply version as “there is the possibility of shock, if any TV set in the network is defective.”  It is also an admitted fact that the AC power block was not installed in the cable connection in question.  It is mandated in condition 2 in Ext.R1, proceeding of the Electrical Inspector, Idukki, that AC power block has to be installed in each connection in the cable network run by the opposite parties.  The deposition of DW3, 3rd opposite party also confirms this matter.

 

From the evidence on record and the deposition of witness, it is revealed that, the death of  Rony is due to electrocution from the cable TV.  To counter this point, the opposite parties 1 to 3 argued that, if there was any such fault on the cable TV connection, the accident would have happened much earlier and also other consumers having cable TV connection.  This version of the 2nd and 3rd opposite parties cannot be admissible at all, because the accident may happen or may not, depends upon the fate of the people.  It is not mandatory that, if a line is having leakage of power supply, it will affect the entire connection of the locality.  At the same time, some of the local inhabitants given statement before the Electrical Inspector on his enquiry in this matter, the nearby houses having the same cable TV connection affected mild shock and it is timely informed to the 2nd and 3rd opposite parties.  This fact was not denied by the 2nd and 3rd opposite parties.  Moreover, none of the opposite parties has not took any effort to challenge the Ext.P6 Electrical Inspector's report.  This report is dead against the contention of opposite parties 1 to 3.  Opposite parties 1 to 3 are miserably failed to adduce any evidence to counter the points which is specifically discussed in Ext.P6.  

 

The crucial point in this matter is actually who is responsible and liable for the mishap happened on 10.6.2012.  Whether 1st opposite party or opposite parties 2 and 3?  For solving this issue or for finding a just and proper decision in this matter, we, the Forum perused the agreement, which produced by both the parties for establishing the actual liability.  On going through Exts.P3 and R2 agreements, we can see that Ext.R2 agreement was created on 19.3.2012 between the 1st opposite party Shaji K.H as one part and one T.S. Rajan and Salilan on the other part.  As per this agreement, Shaji K.H decided to sell his cable TV network to the other 

(cont....9)

-  9 -

parties T.S. Rajan and Salilan for an amount of Rs.49 lakhs.  From the total consideration, Shaji K.H received Rs.10 lakhs as advance.  Further through this exhibit, the Shaji K.H stated that from the date of this agreement, 2nd party is liable to conduct maintenance of the cable TV network.  On going through Ext.R3 agreement, we convinced that this agreement was executed with Shaji K.H on one side and the other side is opposite parties 2 and 3, Litto P. John and Manoj P.G, on 5.6.2012.  As per this agreement, the 1st opposite party Shaji sold his entire cable TV network to the opposite parties 2 and 3 by receiving Rs.49 lakhs as sale consideration.  The 3rd paragraph of this agreement clearly stated that on the same day of this agreement, 1st party relinquished his right and licence upon the cable TV network and handed over all the equipment alongwith cable connection and also stated that “Sn tI_nÄ  Sn.-hn. s\äv hÀ¡v Øm]\w C¶p-ap-X c­WvSmw `mK-¡mÀ Iq«mbn ssIhiw sh¨v \ne-hn-ep-f-fXpw ]pXp-Xmbn sImSp-¡p-¶-Xp-amb IW-£-\p-I-fpsS amk-h-cnbpw aäpw ]ncn-s¨-Sp¯pw kÀÆ kzm-X-{´-y-ambn A\p-`-hn-¨p-sIm-f-fp-¶-Xn\v H¶mw `mK-¡m-c³ CXn-\m ]qÀ®-ambn k½-Xn-¨n-cn-¡p-¶p.  C¶p-ap-X Sn Øm]-\-¯ntem Sn Øm]\w hI km[\ kma-{Kn-I-fntem D]-I-c-W-§-fntem IW-£-\p-I-fntem H¶mw `mK-¡m-c\v bmsXmcp hn[ Ah-Im-Ihpw tNmZ-y-hpw D­m-bn-cn-¡p-¶-X-Ãm-¯-Xp-am-Ip-¶p.  Sn tI_nÄ s\äv hÀ¡v Øm]-\-¯n\v \ne-hn-ep-ff ssek³kp-Ifpw aäv CXc kÀ¡mÀ tcJ-Ifpw cWvS­mw `mK-¡m-cp-sStbm c­WvSmw `mK-¡mÀ \nÀt±-in-¡p-¶-h-cp-sStbm t]cn-te¡v amäp-¶-Xn\pw Bb-Xn\v th­WvSp¶ klmbw  c­WvSmw `mK-¡mÀ¡v sNbvXp-sIm-Sp-¯p-sIm-f-fm-sa¶v k½-Xn-¨n-«p-f-f-Xp-am-Ip-¶p.” The next paragraph of this agreement clearly says that, Sn Øm]\w \mfn-Xp-h-sc-bp-ff FÃm _m²-y-X-IÄ¡pw H¶mw `mK-¡m-c\pw C¶p-ap-X-ep-ff FÃm _m²-y-X-IÄ¡pw c­WvSmw `mK-¡m-c\pw _m²-y-X-s¸-«n-cn-¡p-¶-Xp-am-Ip-¶p As per this Ext.P2 agreement, from 5.6.2012 onwards, the whole authority of the said cable TV network is opposite parties 2 and 3 and the 1st  opposite party transferred all his rights and ownership upon the network to 2nd and 3rd opposite parties by receiving sale consideration of Rs.49 lakhs.  

At this juncture, it is very pertinent to note that, the 2nd and 3rd opposite parties purchased the cable TV network not for a small amount.  Usually, it is very common that, before purchasing such a network having more than thousand connection, by spending a huge amount, the purchaser should verify all the records and all the equipments and the functioning of the cable connection.   We cannot assume that, the 2nd and 3rd opposite

          (cont....10)

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parties purchased this cable connection from 1st opposite party without conducting much enquiry or without perusing its records and the quality of equipments used.  Contrary, contention of the 2nd and 3rd opposite parties that they are not aware that whether the 1st opposite party followed all the procedures of Electrical Inspectorate for conducting cable TV network cannot be deserted.   It is the mandatory duty of the purchaser should verify and should go deep into the rules and regulations of the concerned authority before purchasing such a network connection.  If the purchaser failed to conduct such verification, they are bound to suffer the consequences.  It is an admitted fact that from 5.6.2012 onwards, opposite parties 2 and 3 are the owners of the cable TV network and the change of the name from SB communication to Mitra Communication strengthen this aspect.  The Ext.P3 agreement is admitted by the opposite parties 2 and 3 as per paragraph 4 of this agreement.  After 5.6.2012, the opposite parties 2 and 3 are liable for all the liabilities arising from 5.6.2012 onwards.  It is the bounden duty of the opposite parties 2 and 3 to check each cable TV connection and cure defect, if any from the date of purchase.  Unfortunately, the death of the Rony happened after 5.6.2012 and as per the agreement, opposite parties 2 and 3 are solely liable to answer to it.  No specific cogent and clear evidence is produced by the opposite parties 2 and 3 to convince the Forum that, the 1st opposite party is also having right or ownership upon their cable TV network at the time of accident or 1st opposite party is having same liability of 2nd and 3rd opposite parties after 5.6.2012.  Hence by going through the evidence on record, the Forum is of a considered view that, being the sole proprietors of the cable TV network at the time of accident, opposite parties 2 and 3 are solely liable to compensate the complainant.  The acquitter of 2nd and 3rd opposite parties from the criminal liability by the Chief Judicial Magistrate cannot be a bar for finding liability in this complaint.  In the present case, the opposite parties 2 and 3 are acted negligently and it is a clear case of attributing deficiency in service.

 

In this context, we are referring a judgement of Hon'ble Supreme Court in M.S. Grewal and another Vs. Deepa Chand Sood and others (NCJ 2001 G.L.543).  In this case, the Hon'ble Supreme Court found that, “Negligence in common parlance mean and imply, failure to  exercise due care expected of a reasonable prudent person.  It is a

  (cont....11)

-  11 -

breach of duty and negligence in law ranging from inadvertence to shameful disregard of safety of others.”

 

In this present case, 2nd and 3rd opposite parties failed to exercise due care and caution and violated Ext.R1, the direction of lawful authority to fix AC power block in the cable supply to prevent electrocution.  The dereliction of duty caused death of a young boy.  The omission to do necessary duty, cart by law upon the opposite parties 2 and 3 and opposite parties 2 and 3 are jointly and severally liable to compensate the complainants for the sad demise of Rony.

 

In this case, the  1st complainant's son is the elder child of the family.  As per records, he was a degree student.  The untimely death of the beloved child brought heavy mental sorrow and untold miseries of his family.  Eventhough the gap cannot be filled with money, the sorrowing family is entitled to get some compensation from the people who are behind the scene.  This awarding of compensation is a punishment to them for not repeating such act and also to aware them to be cautious in conducting such type of business.

 

On the basis of the above discussion, the complaint allowed.  Forum directs the opposite parties  2 and 3 to pay Rs.10 lakhs as compensation for the untimely death of the Rony, to the 1st complainant, being the father of the deceased, within 30 days of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default, till its realisation.  The quantum is fixed by considering the age and academic qualification of the deceases.  Eventhough it is not sufficient, we fixed it by considering the nature of business conducted by the opposite parties 2 and 3. 

 

Pronounced in the Open Forum on this the 22nd day of February, 2019

 

Sd/-

   SRI. S. GOPAKUMAR, PRESIDENT

 

Sd/-

SMT. ASAMOL. P., MEMBER

 

(cont....12)

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APPENDIX

Depositions :

On the side of the Complainant :

PW1              -   Joshy Thomas.

PW2              -  H. Dilip Kumar.

PW3              -  Thomas.

PW4              -  Biju Thomas.

PW5              -  Tomy Thomas.

On the side of the Opposite Party :

DW1              -  Shaji K.H.

DW2              -  T.S. Rajan.

DW3              -  Manoj P.G.

Exhibits :

On the side of the Complainant :

Ext.P1            -  cable TV network monthly subscription card 

Ext.P2            -  Copy of case records of Thodupuzha Police Station 

      in crime No.1318/12.  

Ext.P3            -  Copy of agreement dated 5.6.2012.  

Ext.P4            -  Copy of  postmortem report of Rony.  

Ext.P5            -  Copy of inquest report is marked as.  

Ext.P6            -  Enquiry report of Electrical Inspector.  

Ext.P7            -  Copy of Education qualification certificate of the deceased Rony.  

On the side of the Opposite Party :

Ext.R1            -  Copy of proceedings of the Electrical Inspector, Idukki. 

Exts.R2 &R5  - copy of agreement dated 19.3.2012 is marked as  

Exts.R3& R4  - copy of agreement dated 5.6.2012. 

Ext.R6            -  Copy of Judgement in Case No.116/2013 of CJM Court,

       Thodupuzha.

 

 

          Forwarded by Order,

 

 

 

            SENIOR SUPERINTENDENT