Date of Filing – 31.07.2017
Date of Hearing – 24.01.2018
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Complainants to impeach the Final Order/Judgement dated 31.05.2017 passed by the District Consumer Disputes Redressal Forum, Purulia (for short, Ld. District Forum) in Consumer Complaint No. 60/2016. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Appellants under Section 12 of the Act on contest with the direction upon the Opposite Parties/Respondents to pay a compensation of Rs.1,10,000/- and litigation cost of Rs.5,000/- within 45 days otherwise it shall carry interest @7% p.a. from the date of order till its realisation and in case of failure to comply with the same, a fine of Rs.200/- per day till compliance of order in toto.
The Appellants herein being Complainants lodged the complaint before the Ld. District Forum asserting that on 16.08.2013 one Purna Chandra Bauri, father of Appellant Nos. 1 & 2 and husband of Appellant No.3 while in the evening was going on local market from his house, he contacted with snapped life wire of WBSEDCL resulting the death of Purna Chandra due to electrocution. Over the incidence, one case being Manbazar P.S. U.D. Case No.19/13 dated 16.08.2013 under Section 174 Cr. P.C. was started and the dead body was sent to Deben Mahato (Sadar) Hospital, Purulia for post-mortem examination for ascertaining the cause of death. After PM examination, the Autopsy Surgeon has opined that the death was due to electric burn injury (electrocution) ante-mortem and accidental in nature. The appellants have stated that they have claimed compensation from WBSEDCL but it yielded no result. Hence, the appellants being complainants approached the Ld. District Forum with prayer for compensation of Rs.15,00,000/- and litigation cost of Rs.25,000/-.
The Respondent No.4/OP No.4 by filing a written version has stated that complainant is not a ‘consumer’ and as such he is not entitled to any relief from them. It has further been stated that there was no negligence or deficiency on the part of licensing authority and as such the complaint should be dismissed.
After evaluation of the materials on record placed before it including the evidence on affidavit and the other related documents, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the opposite parties, as indicated above. Being dissatisfied with the amount of compensation, the complainants have come up in this Commission with the present appeal.
Ld. Advocate for the Appellants has submitted that the Ld. District Forum has passed the impugned order without considering the fact that the victim was the only earning member and due to his accidental death, the appellants have been suffering serious mental hardship and financial constrained. He has further submitted that the Ld. District Forum has committed a grave error by assessing the notional income of victim at Rs.15,000/- per annum. Referring the decisions reported in 2017 (4) TAC 479 [National Insurance Co. Ltd. – Vs. – Pusau Ram Kurre & Ors.] and another decision reported in 2017 (4) TAC 731 (P&H) [Harjinder Kaur & Ors. – Vs. – Pushpinder Kumar & Ors.], Ld. Advocate for the appellants has submitted that even assuming that the victim was a unskilled labour, his notional income should have been assessed at Rs.3,000/- per month at least and as such the impugned order should be set aside.
Per contra, Ld. Advocate for the respondents has submitted that since the dispute was not a consumer dispute, the Ld. District Forum should have dismissed the complaint. Expanding his submission, Ld. Advocate for the respondents has submitted that the appellants have failed to satisfy how they became consumer under the WBSEDCL and as such the appeal should be dismissed.
I have given due consideration to the submission advanced by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
Undisputedly, the appellants are the legal heirs (being sons and wife) of Purna Chandra Barui, victim of the case. On 16.08.2013 in the evening, the victim was proceeding towards local market from his residence and at that time he got electrocuted by snapped life wire of WBSEDCL which was hanging within two electric poles near his house. The materials on record also indicate that the victim was set free from electrocution by the men and agents of WBSEDCL and the body was sent to Manbazar Rural Hospital where the victim was declared brought dead. Over the alleged untoward incident, one case being Manbazar P.S. UD Case No.19/13 dated 16.08.2013 under Section 174 Cr. P.C. was initiated and the dead body was sent to Purulia Sadar Hospital to ascertain the cause of death of victim. The copy of Post Mortem Report available with the record clearly suggests – “The death was due to electric burn injury (electrocution) ante-mortem and accidental in nature”.
The report given by the SI of Police of Manbazar P.S. with regard to said UD Case clearly indicates that on 16.08.2013 at about 18:10 Hrs. the victim was wrapped with torn running electric wire in front of his house which was fallen from roadside running electric pole as a result of which the victim was expired on the spot.
Now, the question comes whether the appellants can be treated as ‘consumer’. In this regard, it would be pertinent to observe that in a decision reported in (2008) CPJ 139 the Hon’ble National Commission has observed that the villagers pay taxes to Panchayates and power consumption charges to electricity company, are consumers and the complainants being beneficiary to the service provided by the company entitled to compensation. In this regard, it would be recorded here that responsibility to supply electric energy in the particular locality was statutorily conferred on WBSEDCL, if the energy so transmitted causes injury or death human being, who gets unknowingly trapped into if the primary liability to compensate the sufferer is that of the supplier of the electric energy. In other words, it is bounden duty on the part of WBSEDCL to take all safety measures to see that wire snapped would not remain life on the road as users of such road would be under peril. In that view of the matter, the Ld. District Forum was quite justified in holding that there was negligence on the part of OP due to improper maintenance of electric wire and electric pole and the complainants being beneficiary must be categorised as ‘consumer’ as per definition of Section 2(1)(d) of the Act.
Now, the question comes whether the amount of compensation was adequate or not. In assessing the compensation, the Ld. District Forum had applied multiplier method of “11” keeping in view the observation of Hon’ble Supreme Court reported in (2009) 6 SCC 121 [Sarla Verma – Vs. – Delhi Transport Corporations & Ors.] but assess the annual income of Rs.15,000/- per annum and thereby awarded Rs.1,10,000/- after deduction of 1/3rd of the income of the victim had he been alive. Perhaps, the Ld. District Forum passed the order basing upon Schedule-II of Motor Vehicles Act, 1988. The second Schedule was appended in the Act in the year 1994 where notional income of a person having no income was assessed at Rs.15,000/- per annum. Meanwhile, two decades have been passed and on account of gradual price rising in catena of decision it has been held that when there is no income, the income of a person being an unskilled labourer should not be assessed below Rs.3,000/- per month.
Considering the above and relying upon the decisions referred from the Bar on behalf of the appellants in the case of National Insurance Co. Ltd. (supra) and Harjinder Kaur & Ors. (supra), the notional income of victim should be assessed at Rs.3,000/- per month equivalent to Rs.36,000/- per annum. Therefore, after deduction of 1/3rd income from the said amount for personal expenses of the victim had he remained alive, the income comes to Rs.24,000/- and if the said amount is multiplied by ‘11’ as per observation of Ld. District Forum, the amount comes to Rs.2,64,000/- and as such the impugned order should be modified. However, the amount of litigation cost of Rs.5,000/- imposed by the Ld. District Forum appears to be reasonable and should be maintained.
But at the same time, I do not find any reason for imposition of fine of Rs.200/- per day for non-compliance with the order. However, I do not find any reason for imposition of punitive damages of Rs.200/- per day. In a decision reported in (2015) 1 SCC 429 (General Motor (India) Pvt. Ltd. – Vs. – Ashok Ramnik Lal Tolat & Anr.) a question came up for consideration before the Hon’ble Supreme Court whether in absence of any prayer made in the complaint and without evidence of any loss suffered, the award of punitive damages is permissible?. In answering to the question – the Hon’ble Apex Court has observed – “Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be specifically pleaded”.
Neither there is any averment in the complaint about suffering of punitive damages by the other consumers nor the appellants were aware that any such claim is to be met by it and the appellants having no notice of such a claim, the said order is contrary to the principles of fair procedure and natural justice. Therefore, the order of penalty imposed by the Ld. District Forum is not sustainable in the eye of law.
In view of the above, the impugned Judgement/Final Order is modified to the extent that the appellants/complainants do get a compensation of Rs.2,64,000/- and also Rs.5,000/- as litigation cost awarded by the Ld. District Forum. The respondents/OPs are directed to issue three cheques of equal amount in respect of Rs.2,69,000/- in favour of all the three appellants/complainants within 60 days from date otherwise the amount shall carry interest @8% p.a. from date till its realisation.
With the above observations and directions, the instant appeal stands disposed of.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Purulia for information.
