Complaint filed on: 01/07/2023
Disposed on:28 /02/2024
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, TUMAKURU
DATED THIS THE 28th DAY OF FEBRUARY 2024
//:PRESENT://
SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT
SRI.KUMARA.N, B.Sc. (Agri), LL.B., MBA., MEMBER
SMT.NIVEDITA RAVISH, B.A., LL.B.(Spl)., LADY MEMBER
CONSUMER COMPLAINT NO. 86/2023
1. Smt. S.Saraswathi W/o G.Sreepathi,
A/a 55 years,
2. Sri.G.Sreepathi, S/o Late. H.Ganapathi Pandith,
A/a 63 years,
Both are residents of
Sri Ramashraya, 4th Main Road,
Shivamookambika Nagara,
S.S.Puram Post, Tumkur-572 102.
M.No.9964529657
email ID:sreepathiganapathi@gmail.com
……….Complainant
(In person)
V/s
The Commissioner,
City Municipal Corporation,
Town Hall Circle, Tumkur – 572 101.
Phone No.2271200 & 2272200
email ID:itstaff-ulb-tumkur@yahoo.com
……….Opposite Party/s
(By Smt. K.R.Mamatha, Advocate)
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BY SMT.NIVEDITA RAVISH – LADY MEMBER
This Complaint is filed by the complainants U/s 35 of the Consumer Protection Act, 2019 against the Opposite Party [hereinafter called as OP] to direct the OP to pay Rs.4,60,000.00 towards loss incurred due to spoilage of furniture and fixtures along with 6% interest from the date of filing of the complaint. Further, to direct the OP to pay Rs.15,000.00 towards compensation andRs.5,000.00 towards cost of litigation.
2. It is the case of the complainants that the complainant No.1 is the owner of the house, which is situated in Tumkur, Ward No.23 Vide property No.10401, Tap No.13678, Consumer No.1118 [water tax], P.P. property No.23-2-598-732, PID number of property is 6015, Consumer No.1445 and complainant No.2 is the husband of the complainant No.1. Further complainant is paying property tax, water tax and UGD taxes regularly. On 30th July 2022(Saturday) night due to heavy rain in Tumkur, the drainage and UGD were blocked and rain water rushed inside of complainant’s house forcefully and filled about 2 and half feet, with this the furniture and fixtures kept inside the house of complainants were spoiled/damaged. The same has happened due to negligent act of the OP. Because the OP has failed to kept clean drainage and also UGD due to this the rain water blocked and rushed inside the house of complainants and spoiled/damaged the entire furniture and fixtures inside the house, which was happened first time in the complainant’s house for the last 18 years. The complainants have lost material cost around four lakhs including expenses incurred for cleaning and cost of material and the same has happened due to negligent act of OP and OP has liable to pay loss incurred to the complainants. From the reliable sources, the complainants came to know that OP has paid some compensation to some people who have suffered with this incident. But the OP has failed to pay the same to the complainants. Though the complainants issued the legal notice on 26.08.2022 and 20.06.2023, the OP has failed to give any reply. Hence, this complaint.
3. After hearing the arguments by complainant on admission of the complainant, notice issued to the OP with kept open the question of maintainability of the complaint.
4. After receiving the notice by this Commission, the OP has appeared through his counsel and filed the version. In the version, the OP has admitted that the complainant No.1 is the tax payer to the OP and denied all other allegations made by the complainants as false. Further, the OP has submitted that the heavy rain water rushed to the complainant house and spoiled some household materials and utensils. This incident will come under natural disaster. Hence, this complaint is not maintainable against the OP. Further, the OP has submitted that, the OP has maintained the storm water drainage and Underground Drainage system properly and if the drainage system was not maintained properly by the OP in time, the complainants would have suffered in every rainy season. Further, the OP has submitted that, the OP is only the assessing authority along with other departments have assessed the damages caused by the heavy rain and have prepared spot mahazar jointly and the same has been sent to the District Administration/Commissioner. Thereafter the District Administration has identified the damaged house beneficiaries and has prepared Bank wise Report for the identified beneficiaries. Further, submitted that the complainant has already been identified as damaged house beneficiary under the State Government Scheme. The State Government has sanctioned the amount of Rs.10,000-00 to the complainant along with 12 other beneficiaries bearing cheque number 54040240024 from the account of Tahasildar, Tumkur Taluk and the house damaged beneficiaries Bank wise report shows the beneficiary name and address as being Sreepathi .G S/o Late Ganapathi Pundit, Shivamukambika Nagar, Upparahalli and account holder name being Sreepathi .G bearing Account No.522101030343 in SBI, Tumkur Main branch and sanctioned and deposited amount of Rs.10,000-00 only. Hence, the OP has submitted that what kind of service deficiency and where is consumer dispute and prayed for dismiss of the complaint.
5. 2nd complainant has filed his evidence by way of affidavit on behalf of complainants. One Miss. Monisha, Assistant Engineer of OP, has filed evidence by way of affidavit on behalf of OP. The complainants produced 11 copies of documents which are C1 to C11. The OP has filed 09 documents which are marked as Ex.R1 to R6 and R1(a), (b) & (c).
6. We have heard the arguments of OP. The OP also filed written arguments. The adjournment cost of Rs.300/- not paid by the OP. In spite of granting sufficient opportunities, the complainants failed to address the arguments. Hence, arguments of complainants is taken as NIL.
7. On perusal of pleadings, evidence and documents produced by both parties, the points that would arise for our consideration are as under:-
- Whether complainants prove the deficiency of service on the part of OP?
- Is complainant entitled to the relief sought for?
- Our findings on the aforesaid points are as under:
Point No.1: In the Negative
Point No.2: As per final order for the following:
//: R E A S O N S ://
POINT NOS. (1) & (2):-
9. The complainants have pleaded that complainant No.1 is the owner of the house situated in the ward No.23 of Tumkur vide property No.10401, Tap.No.13678, Consumer No.1118(water tax) PP property No.23-2-598-732, Consumer No.1445 and complainant is paying property tax, water tax and UGD Taxes regularly. Further the PID number of the property is 6015. Document No.C4/copy of the water tax DOB History details produced by the complainants is reflecting the above details pertaining to payment of taxes of complainants. The OP also admits the same. Further, the complainants have submitted that on 30th July 2022 (Saturday) night due to heavy rain in Tumkur, the drainage and UGD both were blocked and rain water rushed into house of the complainants forcefully and filled about two and half feet, with this the furniture and fixtures kept inside the house were spoiled/damaged i.e. water rushed inside the car, sump, spoiled wire bed, cotton beds, teapoy, T.V.stand,entire wardrobe Diwan, cloths and bed sheets. To prove the same, the complainants have produced the document No.C5 to C11/copies of photos and which are reflecting kurlon bed and cotton beds which are kept outside the complainant’s house and ¼ portion of the car, Tepoy, another Tepoy/TV stand, some cardboards, one divan cot with bed sheet. But these copies of photos are not explaining/establishing to what extent, the things are damaged. The complainants are also failed to give explanation about how much the things in the document Nos.C5 to C11 are damaged. Further, the complainants have pleaded/submitted that, the heavy rain water rushed to their house due to the negligent act of op by not kept the clean drainages and UGD. But in the same time, the complainants are submitted/pleaded that “this type of inconvenience or incident happed first time in their house in the last 18 years”. This statement of the complainants has expressing that the rain water rushed inside the house of complainants due to heavy rain not the blockage of the drainages and UGD. Further, the complainants have not produced any documents to show that the drainage and UGD are not cleaned by the OP and complainants are failed to produce any documents or evidence to prove the rain water rushed into the house of complainants due to blockage in the drainage or UGD. Further, the complainants’ have submitted that they have sent legal notice to the OP on 26.08.2022 and 20.06.2023 and the OP has failed to give any reply. To prove the same the complainants have produced document No.1/copy of legal notice dated:26.08.2022, Document No.C2/postal receipt, Document No.C3/copy of legal notice dated20.06.2023. But complainants have failed to produce any postal acknowledgment pertaining to the above legal notices sent by the complainants, to show whether the legal notices are reached to the OP. Further, the complainants are submitted that from the reliable sources, they came to know that they have paid some compensation to some people who have suffered with this incident and the OP has failed to pay the compensation to the complainants. But the complainants have failed to produce/mention the names or list of beneficiaries who have get compensation from the OP and how much others are received the compensation. Further the complainants has pleaded that they have paying tax regularly for property, water and UGD to the OP and the complainants availing service from the OP. Therefore, the complainants are considered as Consumers and to prove the same the complainants are relied on the Judgment of Hon’ble Kerala High Court in a case between Thrissur Municiapl Corporation V/s Ummer Koya Haji on 1st August, 2006(3) KLT 897.
10. In contrary, the counsel for the OP has argued that, rain water rushed to the complainant’s house due to heavy rain and spoiled some household materials and utensils. This happened only due to heavy rain, this is comes under natural calamity. It is the act of God and not maintainable against the OP. Further, counsel for the OP has argued that the OP is only the assessing authority. The OP along with other Departments has assessed the damage caused by the heavy rain and prepare spot mahazar jointly and same has sent to District Administration/District Commissioner. Thereafter the District Administration identified the damaged house beneficiaries and prepared bank wise report for the identified beneficiaries. To prove the same the OP has produced the Ex.R4/copy of letter written by the office of Tahasildar, Tumkur Taluk to the Manager, State Bank of India on 12.09.2022 and Ex.R4 is establishes that, Tahasildar, Tumkur Taluk has requested to release an amount of Rs.1,30,000-00 from an account No.54040240024 of Tumkur Tahasildar account to release 13 beneficiaries account numbers which attested the list of the beneficiaries along with Ex.R4. Further the OP has also produced the Ex.R5/copy of House Damaged Beneficiaries Bank wise Report (13 members), 2nd payment, in which it is reflecting that the name of 2nd complainant and his address, account number as – 522101030343, Bank name with branch details as, Tumkur Main Branch, IFSC CODE as – CNRB0000522 and sanctioned amount as Rs.10,000.00. Hence, Ex.R5establishes that the concerned authority has sanctioned the compensation to the complainants as assessed by them. Further, Ex.R6/copy of the cheque issued by the Tahasildar, Tumkur to SBI, Tumkur for Rs.1,30,000-00 establishes that concerned departments have released an amount for compensation to the beneficiaries. Further, the counsel for the OP has argued that as per Ex.R5 an amount of Rs.10,000.00 was sanctioned and deposited in the name of complainant No.2 to bank details which are mentioned in Sl.No.3 of Ex.R5. But due to technical error i.e. Account does not exist, on 17.09.2022, the deposited amounts return back to the Tahasildar, Tumkur. When sanctioning authority of compensation for natural disaster is the Tahasildar in the Taluk level, the complainants have not made the Tahasildar as party. Moreover, the bank details, account numbers are given by the beneficiaries themselves to assessing authorities, sanctioned authorities while assessing the loss due to natural disaster/calamity. As per Ex.R4 & R5, the Tahasildar, Tumkur sanctioned an amount ofRs.10,000-00 on 12.09.2022 to the account number which was given by the complainants. Hence, we have not found any deficiency in service in the part of OP or concerned authority i.e. Tahasildar, Tumkur.
11. Further, counsel for the OP has argued that, compensation was released as per the letter issued by the Ministry of Home Affairs[Disaster Management Division], Government of India, Annexure of Ex.R3/copy of letter issued by Government, Ministry of Home Affairs [Disaster Management Division], establishes the annexure was revised list of items and norms of assistance form State Disaster Response Fund (SDRF) and National Disaster Response Fund[NDRF] – (period 2022-26, MHA, letter No.33-03/2020-NDM – I Dated:10.10.2022, modified vide letter No.33.03/2020-NDM-I Dated:11.07.2023] and Sl.No.I (d) of this annexure showing Sl.No.(d) items Sl.No. I (d) of this annexure showing Sl.No.(d) items clothing and utensils/house hold goods for families, whose houses have been washed away/fully damaged/several houses have been washed away/fully damaged/severally inundated for more than two days due to a natural calamity – Norms of Assistant – Rs.2,500.00 per family for loss of clothing, Rs.2,500.00 per family, for loss of utensils/household goods. Further counsel for the OP has contended that after the contest, the complainant on 09.10.2023 furnished bank details that is bank account No.0522101030343 to the Tahasildar, Tumkur Taluk and request to deposit the compensation amount, Ex.R1(a)/copy of letter issued by the Tahasildar, Tumkur to Manager, State Bank of India, Tumkur dated:22.11.2023 is establishes the same. Further, Ex.R1(b)/copy of house Beneficiary Bank details produced by the OP reflecting the details of active bank account of complainant No.2as 0522101030343, bank name with branch details CANARA BANK, Tumkur main branch, IFSC CODE – CNRB0000522 sanctioned amount – Rs.10,000.00. Ex.R1(b) also reflecting the name of complainant No.2 and same Ex.R1(b) was not objected by the complainants and it is establishes that the complainant received the compensation for damages of household things due to heavy rain occurred in Tumkur on 30th July 2022.
12. Further, already the compensation for the damaged household material clothing and utensils was sanctioned by the Tahasildar, Tumkur as per the norms of the Government of India, Ministry of Home Affairs [Disaster Management Division] and we also gone through the judgment of Hon’ble High court of Kerala in the case between Thrissuer Municipal Corporation V/s Ummer Koyahaji on 1st August 2006(3) KLT 897 which was relied by the complainant’s themselves. By mentioning the above judgment, the complainants pleaded that they have considered as a Consumer to the OP by paying the Tax for property, water and UGD. But in the above case, the Hon’ble High Court of Kerala is held that “in respect of sovereign functions exercised by the local bodies by way of collection of taxes like property tax, profession tax and other taxes, it cannot be said that the local bodies are rendering any services, in respect of which the tax payer can maintain a complaint under the Consumer Protection Act. Therefore, in respect of payment of property tax, no complaint would lie before a Consumer Disputes Redressal Forum or Commission.”
13. Further in the case between V.K.Chaturvedi V/s Commissioner, Municipal Corporation, on 5th Febraury, 2014, the Hon’ble National Consumer Disputes Redressal Commission was held that, “it is settled law that Municipal Board or a Corporation not for the services rendered but for maintaining the roads, streetlights, managing and maintaining the sewage line and regulating the water ferrule. Since these facilities are not extended to the citizens on payment for consideration. Therefore, on the basis of this fine distinction it can be observed that the matter relating to municipal board taxes are not cognizable before the Consumer Fora”. Further, in the case between Nagar Nigam V/s Vijay Dhawan on 21st August 2017, the Hon’ble State Consumer Commission, Lucknow (Uttar Pradesh), it is held that, “taxes paid by the complainants did not make them out to be consumer and the appellant/OP as service provides” and in the case between New Delhi Municipal V/s Takatora Garden Morning on September 26, 2016, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, is held that “there was no agreement of hiring or availing of service for consideration between the complainant and the Opposite Parties, as such the complainants cannot be termed as Consumers quo the Opposite Parties as envisaged under section 2(1)(d) of the Consumer Protection Act, 1986. As per all above citations the complainants of the present complaint are not considered as Consumers and the complainants failed to prove the deficiency in service against the OP, hence complaint is liable to be dismissed. Accordingly, we pass the following:-
//:ORDER://
The complaint filed by the complainants is dismissed without cost.
The OP is directed to pay adjournment cost of Rs.300/- to the complainants. If already paid, OP is directed to produce the acknowledgment in this regard.
Furnish copy of this order to both parties at free of costs.
