Consumer Complaint No.194 of 2016
Date of filing: 08.11.2016 Date of disposal: 31.7.2017
Complainant: Molla Sahamatullaa, S/o. Late Molla Muzibar Rahaman, vill: Nabinagar, PO: Mahachanda, under Khetia Gram Panchayet, PS. & Dist: Burdwan.
-V E R S U S-
Opposite Party: 1. Station Manager, C.C.C., Bhatar Electric Supply, W. B. S. E. D. C. L., PO. & PS: Bhatar, Dist: Burdwan.
2. Divisional Manager, Burdwan Urban Division, W. B. S. E. D. C. L., Power House Complex, Burdwan – 713 101.
3. Deputy Director, Animal Resource Development and Parishad Officer, Purta Bhavan, 6th Floor, Sadarghat, Burdwan – 713 103.
Present: Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Pappu Gupta.
Appeared for the Opposite Party No. 1&2: Ld. Advocate, Biswanath Gupta.
Appeared for the Opposite Party No. 3: None (ex parte)
J U D G E M E N T
This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as due to lack of care, caution and deficient service of the OPs he had lost his one cow out of some cows, which are kept at his house for the purpose of earning his livelihood by means of self employment as he is engaged in milk production/supply.
The brief fact of the case of the Complainant is that on 12.06.2015 his cows with other cows of the village while on grazing in the grass field two milch cows came in contact with nearby naked live electric wire from high voltage pole (11000V), which fell down on the ground resulting immediate death of two milch cows on spot due to electrocution. Upon receipt of the incident the Complainant along with other villagers rushed on the spot at once. The Complainant is the owner of one Gir cow and the other cows belong to the brother of the Complainant. Being the owner of other victim cow the brother of the Complainant reported the incident to Burdwan Police Station on 12.06.2015 requesting them to conduct an enquiry to this effect. This letter was subsequently forwarded to the V.O. ABACH, Kurhmun by Block Livestock Development Officer, Burdwan-1 Block, BLDO, and Block-1 for Post Mortem examination to ascertain the cause of death. Post Mortem of both cows was conducted by the Veterinary Officer, ABAHC, Kurhmun, Burdwan-1 on the field of Natungram village on 12.06.2015 and it was ascertained that due to electrocution cows died. It is stated in the PM report that this cow was pregnant at the time death having fetus of approximately six months. On 15.03.2016 the brother of the Complainant submitted the relevant papers, post mortem report and the photographs of the deceased cows to the OP-2 for compensation in accordance with the reasonable cost of his cow. By issuing letter the OP-2 intimated the Complainant that the Divisional Manager (Rural) has sanctioned a sum of Rs.24,000/- towards payment of compensation for death of his cow as assessed by the OP-3, the Deputy Director, Animal Resource Development & Parishad Officer, Burdwan. The Block Livestock Development Officer, Burdwan in his letter dated 29.09.2016 certified that productivity of milk of the cow is 8 kgs daily being a ‘Gir’ classified cow and assessed the present price of the cow is for Rs.24,000/-. The Prodhan of Kshetia Gram Panchayet had certified on 30.09.2016 that the cow was giving 2 kgs of milk and assessed the present price of the cow is for Rs.60,000/- assessing milk productivity. The family of the Complainant is solely dependent on the milk and supply of the same and due to sudden death of his one Gir cow the Complainant and his family members are facing serious financial crisis. The OP-3- Deputy Director, Animal Resource Development Officer had not been assessed the amount of compensation properly since he did not consider the cost of milk of the said cow. According to the Complainant the cost of milk is for Rs.400/- i.e.Rs.50/-x8. It is stated by the Complainant that the power transmission and/or distribution company is duty bound to ensure the safety and security of the persons, animals and property. It cannot allow loose, exposed wire causing damage to the life and property and any violation in this respect will certainly attract payment of compensation. In the instant complaint the OP-1 and 2 have miserably failed to provide safe and secured services for which the cow of the Complainant died due to electrocution and for this reason the OPs cannot avoid their responsibility and under obligation to make payment of adequate compensation. The compensation amount as sanctioned by the Divisional Manager is not at all justified and proper so, in this respect the report of the Prodhan of the concerned Gram Panchayet should be considered. As his grievance have not been redressed by the OPs before coming to this Ld. Forum, hence having no alternative the Complainant has approached before this ld. Forum by filing this complaint praying for direction upon the OP-1 and 2 to make payment of Rs.60,000/- towards the cost and compensation of the deceased cow due to electrocution, Rs.2,02,800/- towards the cost of milk for 507days for the period from 12.06.2015 till filing of this complaint dated 31.10.2016, Rs.10,000/- towards cost of harassment and mental agony and litigation cost of Rs.3,000/- to him.
The petition of complaint have been contested by the OP-1 and 2 by filing conjoint written version stating that in view of the provision of the Section 161(1) & (2) of the Electricity Act, 2003, (1) that if any accident occurs in connection with the generation, transmission, distribution supply of use of electricity in or in connection with, any part of the electric lines or electrical plant of any person and accident results or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person shall give notice of the occurrence and of any such loss or injury actually caused by the accident, in such form and within such time as may be prescribed, to the Electrical Inspector or such other person as aforesaid and to such other authorities as the Appropriate Government may be general or special order direct . (2) The Appropriate Government may, if it thinks fit, require any Electrical Inspector, or any other person appointed by it in this behalf, to enquire and report (a) as to the cause of any accident affecting the safety of the public which may have been occasioned by or in connection with, the generation, transmission, distribution supply or use of electricity, or (b) as to the manner in, and extend to, which the provisions of this Act or Rules and Regulations made thereunder or of any license, so far as those provisions affect the safety of any person have been complied with. But in the instant complaint no immediate intimation was given to the OPs regarding the alleged accident and the Complainant lodged a complaint on 12.06.2015 before the Block Live Stock Development Officer, Burdwan and the copy of the same was received by the office of the OP-2 on 15.03.2016. No complaint was registered on the date of death of the cow i.e. on 12.06.2015. But after receipt of the complaint an inspection was conducted, but no abnormality was observed in the spot of death. According to the OPs the compensation as assessed by the OP-3 is justified and correct and they are ready to pay the same to the Complainant, but he is not agreed with the said amount and being dissatisfied with the said amount this complaint has been initiated by him. The OPs have contended that the Complainant is not at all a consumer in respect of death of his cow due to electrocution and the OPs being not service providers in the instant complaint, the complaint cannot be tried by this Ld. Forum as it is not a consumer dispute. The OPs have further mentioned that in view of the provision of the Electricity Act, Rules and Regulations if there is any dispute regarding payment of damages due to electrocution, if any, that should be ventilated before the Regulatory Commission or before the authority or person empowered by the said Act. So as there is alternative and appropriate Forum for redressal of the grievance, this Ld. Forum has no authority to adjudicate this complaint. Prayer is made by the OPs for dismissal of the complaint with cost.
During filing of this complaint the Complainant has filed several documents in support of his contention by way of firisty. The OPs have filed written notes of argument with a copy to the Complainant. The OPs have filed the photocopy of the Section 161 of the Electricity Act, 2003 and the Ld. Counsel for the Complainant has placed his reliance on some rulings.
We have carefully perused the record; papers, documents, Ruling submitted by the Complainant and the written notes of argument and the relevant Section of the Electricity Act as relied on and filed by the OPs and heard argument at length advanced by the Ld. Counsel for the parties. It is seen by us that there are some admitted facts in the case in hand i.e. Complainant’s cow died due to electrocution on 12.06.2015 while it was grazing in the open field, electrocution caused from the electrical wire which was installed to provide connection to a submersible line, after the death of the cow the Complainant lodged a general diary with Burdwan Police Station, obtained photography of the dead cow, post mortem was done by the Block Animal Health Centre, post mortem report reveals that the death was caused due to severe nervous shock owing to paralysis of vital medullary centres due to electrocution, the Complainant approached to the office of the Block Live Stock Development Officer at Burdwanr and prayed for arranging compensation, the officer of the Department by issuing a letter assessed the compensation/market value of the said cow to the tune of Rs.24,000/- on 29.09.2016, the Prodhan of Khetia Gram Panchayet by issuing a certificate dated 23.09.2016 had certified that the market value of the deceased cow is for Rs.60,000/-, several written correspondences were made by the Complainant with the OPs, but to no effect. The allegation of the Complainant is that due to lack of care and caution of the OPs his cow died due to electrocution and for this reason he is very much entitled to get compensation from the OPs as per the certificate issued by the Prodhan of the concerned Gram Panchayet. According to the Complainant as his grievance had not been redressed by the OPs, hence by filing this complaint the Complainant has prayed for certain reliefs.
On the other hand, the contention of the OPs is that the Complainant’s case does not come within the ambit of the Consumer Forum and the complaint being not a consumer complaint, cannot be tried by the Ld. Forum. Further case of the OPs is that as there is alternative machinery in the Electricity Act for redressal of his grievance, the Complainant is under the obligation to approach before the appropriate authority as per the said Act. Moreover the Complainant did not bother to intimate the accident of his cow due to electrocution to their Department in writing, so that they could not take any initiative. According to the OPs the complaint being devoid of any merit is liable to be dismissed with cost. It is further submitted by the OP-1 & 2 that as per assessment of the OP-3 they are ready to pay a sum of Rs.24,000/- towards compensation of the dead cow, but the Complainant being not agree with the said amount has filed this complaint and according to the OPs the Complainant is not entitled to get more amount than the assessed amount.
At the very outset we are to adjudicate as to whether this complaint is maintainable before this Ld. Forum as the OPs have taken the plea that as the alternative machinery has been provided in the Electricity Act for the consumers, they are under obligation to approach before the appropriate authority to settle their disputes and hence in view of the specific provisions in the said Act, the Consumer Forum has no authority to try with this complaint. In this respect we are to say that in view of the Section 3 of the Consumer Protection Act, 1986 this complaint is maintainable before this Ld. Forum as the Consumer forum had been established for providing speedy remedy of the grievances of the consumers. In the Section 3 of the Consumer Protection Act, 1986 it is mentioned that ‘the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.’ Therefore in view of the said Section the case is maintainable before the Consumer Forum/Commission. Moreover in the Electricity Act there is no mentioning that the Consumers should not approach before the Consumer Forum for redressal of their grievance. So as there is no barring provision in the said Act, hence in our view the consumers are at liberty to approach either before the consumer Forum or may take shelter under the provisions of the Electricity Act.
The OPs have taken the plea that the Complainant cannot be termed as consumer. In this regard we are to say that admittedly the cow of the Complainant died due to electrocution while it got touch the live wire and it is further an admitted fact that through that wire energy was supplying to the submersible pump from which the farmers of the locality got service for provide water at their agricultural land. Admittedly no averment is forthcoming from the petition of complaint that this Complainant is one of those farmers who used to enjoy the electric energy through that electric wire. Inspite of this the Complainant is a consumer of the OPs in respect of supply of electric energy being a beneficiary of those consumers who used to pay electric bills for such consumption of electric energy. According to the Consumer protection Act, 1986 the beneficiary also can be termed as ‘Consumer’, who can come under the purview of the definition of ‘Consumer’ as enumerated in the Act. The cow is also the beneficiary of the Complainant and being the owner of the deceased cow the Complainant has filed this complaint. Not only that in case of not a consumer of the OPs, for the sake of argument, in this complaint the Complainant shall be a consumer in view of the judgment passed by the Hon’ble National Commission, reported in IV (2008) CPJ 139 (NC), wherein it has been held that the villagers pay taxes to the village Panchayats and power consumption charges to the electricity company, are consumers and the Complainant being beneficiary to the service provided by the Company entitled to compensation. In the said judgment it has been further observed that the villagers have right for payment of taxes and seeking facilities such as street lights, drainage etc. In view of the abovementioned judgment we are of the view that the deceased cow of the Complainant is beneficiary and being the owner of the cow the Complainant is a consumer and such plea as raised by the OPs have no legs to stand upon.
We have noticed that the OPs nowhere have denied that the death of the cow was not due to electrocution and moreover the post mortem report done by the appropriate authority shows that due to the said reason the Complainant’s cow died while it was grazing in the open field. The contention of the Complainant is that due to lack of care and caution of the OPs he had lost his cow because the electric line and wires in the public places are maintained by the local authorities and in case of any defect or irregularities, the WBSEDCL is only liable to remove the said defects. The Ld. Counsel for the Complainant has mentioned that the OPs have failed to abide by the specific provision of the Section 53 of the Electricity Act, 2003 wherein it is enumerated-
53. Provision relating to the safety and electric supply:-
Authority may, in consultation with the State Government, specify suitable measures for-
- Protecting the public (including the persons engaged in the generation, transmission or distribution or trading) from dangers arising from the generation, transmission or distribution or trading of electricity, or use of electricity supplied or installation, maintenance or use of any electric line or electric plant.
From the aforementioned Section it is revealed that the Authority (herein WBSEDCL) is liable to maintain the electric line or plant. Therefore in view of the above mentioned Section the OPs are duty bound to maintain the electric line and plant, but as the OPs did not bother to inspect the electric line at the specified place, due to such negligence of the OPs the cow of the Complainant died due to electrocution. Therefore the OPs cannot avoid their responsibility which has been provided as per the Electricity Act, 2003. Moreover in the instant complaint the OPs did not mention any contrary pleading or adduce any contrary evidence that they are not negligent and the cow of the Complainant has not been died due to electrocution.
In view of such stipulation it can be said that in the instant complaint the responsibility is casted upon the WBSEDCL to maintain their lines and wires and to compensate the sufferer. But in the case in hand after the death of the cow the Complainant on several occasions requested the WBSEDCL to compensate him by making payment of the prevalent cost of the cow for Rs.60,000/- as assessed by the Prodhan of concerned Gram Panchayet, but to no effect, rather the OP-2 by issuing a letter had intimated the Complainant that they are ready to pay a sum of Rs.24,000/- towards compensation. Being aggrieved and dissatisfied with such amount and under compelling circumstances the Complainant has to approach before the Court of Law. In our considered view such inaction on the part of the OPs suffers from deficiency in service.
During argument the Ld. Counsel for the OP-1 and 2 has argued that as per the Section 161of the Electricity Act, 2003 the Complainant was under obligation to intimate the incident to the Chief Electrical Inspector, but he did not abide by the said provision, so the OPs have no liability to pay any amount towards compensation as sought for due to death of his cow. The Section 161 reveals as under-
161. Notice of accidents and inquiries-
(1) If any accident occurs in connection with the generation, transmission, distribution supply or use of electricity in or in connection with, any part of the electric lines or electrical plant of any person and the accident results or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person shall give notice of the occurrence and of any such loss or injury actually caused by the accident, in such form and with such time as may be prescribed, to the Electrical Inspector or such person as aforesaid and to such other authorities as the Appropriate Government may by general or special order, direct.
In this respect we are of the opinion that admittedly the Complainant did not inform to the Chief Electrical Inspector as per the Section 161 of the Electricity Act, 2003, but obviously the OPs were intimated by the Complainant about the incident, otherwise compensation could not be assessed to the tune of Rs.24,000/-. If the OPs are inclined to take such plea that the OPs were not properly intimated by the Complainant, then it was the duty of the OPs to reject the application and prayer for compensation as made by the Complainant at the very outset. But without doing so the OPs have assessed the compensation which according to the Complainant is a very meager amount and for enhancement of the said amount to the tune of Rs.60,000/- this complaint is filed. We are also of the view that as the OPs have already processed the application and prayer of the Complainant once, now they cannot take shelter under the said specific Section of the Electricity Act, 2003.
In the instant complaint no case has been made out by the OPs that appropriate precautions were taken in respect of the wires in question and the said line and wire was duly inspected and maintained by the personnel of the OPs on regular basis. Where a live wire is lying on the road/path/open filed and the same did not come within the notice of the WBSEDCL, it cannot be happened. There are salaried employees of WBSEDCL whose duty is to inspect and check the electric line, wire, plant etc situated in the public places, roads, filed etc. But in the case in hand as the said personnel/employees did not perform their duties rightly, and due to their negligence and deficiency in service the cow of the Complainant had to welcome the death. In our view that OPs have failed to discharge their liabilities as per their own Act, which of course denotes the deficiency in service and lack of care on their part.
In the judgment passed by the Hon’ble SCDRC, West Bengal, reliance was placed on another judgment passed by the Hon’ble NCDRC, reported in (2006) II CPJ 245 (NC), wherein same proposition has been held that due to electrocution or damage of plantation due to electrocution, the Board/Company cannot avoid its liability to compensate the loss and damage or the sufferer.
Having regard to the abovementioned judgments we are of the view that the OPs in the instant case cannot take shelter under the Section 161 of the Electricity Act, 2003 that as the intimation was not given to the appropriate person of the WBSEDCL, the Complainant is not entitled to get his claim.
Now we are to adjudicate as to whether the Complainant is entitled to get a sum of Rs.60,000/- as sought for or not. It is seen by us that the Block Livestock Development Officer had already assessed the prevalent price of the cow for Rs.24,000/- and the OP-1 and 2 are also ready to pay the said amount, but the Complainant has claimed a sum of Rs.60,000/- as assessed by the Prodhan of the concerned Gram Panchayet. In our view the certificate issued by the Block Livestock Development Officer assessing the compensation shall carry much weightage than the certificate issued by the said Prodhan. Moreover the certificate issued by the Prodhan is not supported by any affidavit, on the other hand the certificate of the BLDO is a document issued by the Government Officer. Hence the Complainant is under obligation to accept the amount of Rs.24,000/- assessed by the BLDO, Government of West Bengal towards the cost of the deceased cow as compensation. Admittedly though the Ops were ready to pay the said amount to the Complainant, but the Complainant did not agree with the said amount and praying for more amount to the tune of Rs.60,000/- this complaint is filed. But as the Complainant is not entitled to get more amount than the amount as assessed by the BLDO, hence the Complainant is not entitled to get any compensation and litigation cost as prayed for.
Going by the foregoing discussion hence, it is
O r d e r e d
that the Consumer Complaint being No. 194/2016 is dismissed on contest without any cost.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated and corrected by me.
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
