::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::
C.C. No.06/2018.
Date of filing: 03.02.2018.
Date of disposal: 31.08.2018.
P R E S E N T:-
(1) Shri. Jagannath Prasad Udgata, B.A., LL.B.,
President
(2) Shri. Shankrappa (Halipurgi),
B.A.LL.B.,
Member.
COMPLAINANT/S: 1. Nabi Sab S/o Mastan Sab,
Age:66 years, Occ: Agriculture,
R/o Villag Mogdal Tq and Dist: Bidar.
( By Sri.Rajkumar.K.,Adv.)
VERSUS
OPPONENT/S: 1) The Executive engineer,
GESCOM Bidar,
Division Bidar.
(By. Santosh V.Bargale., Adv.)
:: J UD G M E N T ::
By Shri. Jagannath Prasad Udgata, President.
This complaint is filed u/s 12 of the Consumer Protection Act, 1986, against the opponent claiming compensation on account of damages due to deficiency of service. The subject matter of the complaint is as hereunder.
2. The complainant claims himself to be consumer under the O.P.. To that effect he has submitted electricity bill issued to him. The complainant has stated in the complaint that he is agriculturist by profession and had ownes two bullocks born and brought up at his homestead and he was using them for agricultural activities. They were also being used to pull harvesting machine as and when required. From last two years, the complainant was cultivating lands of one Sadak Ali Malkoji of Mogdal village on batai basis and had grown Toor crops in the said land. He had engaged labours for cutting the Toor dal crop.
3. On 27.01.2017, he had engaged a posse of labors to cut the crop and on the same day at about 4.30 p.m., he took the harvesting machine of one Maruthi S/o Gundappa and engaged his two bullocks to pull the same machine up to the land. A person by name Ashok s/o Basappa was engaged to tow the machine up to the land of Sadak Ali. On reaching the land, the H.T. line having been hung down wards, were only at a height of 7/8 feet from the ground. The harvesting machine came into touch, causing electrocution and death of the pair of bullocks and burn injuries to the lead man Ashok. He was shifted by some other persons to Government Hospital, Manna-Ekhalli. The bullocks of the complainant were of Rs.1,00,000/- value each.
4. The complainant had filed complaint before the jurisdictional police, a case was registered and in Course of investigation Panchanama was drawn and the bullocks were subjected to post-mortem.
5. The complainant claims that, the bullocks died due to electrocution due to negligent attitude of the opponent, causing the powerful H.T. line descending down wards and the opponent not satisfying his claim, the complainant has filed the present case, claiming a compensation of Rs.2,00,000/- and interest there on.
6. The opponent putting up appearance through counsel had filed detail written versions opposing the claim of the complainant. In the versions, the claimed facts of the complainant being an agriculturist, owner of two bullocks, using the same for agricultural work or towing the harvesting machine and further the fact of he cultivating the land of Sadak Ali on batai basis are all denied. It is further avered that, on the captioned date, engagement of labours for cutting Toor dal from the land of Sadak Ali, towing the harvesting machine at 4.30 p.m. by engaging the services of Ashok, the loose hanging wires coming into touch of the harvesting machine at a height of 7/8 feet from the ground, consequential death of the bullocks due to electrocution and injuries t lead man Ashok are all false, baseless, bogus and concocted. The O.P. further claims that, the electrical wires were at a height of 12-15 feet from the ground. The lead man Ashok was coaxing the bullocks to move first by hitting them with stick as a result of which, the bullocks ran amok, dashed against the electrical pole and might have got electrical shock as a result there of. It is further contended that, the bullocks were old, maybe valued at Rs.15 to 20 thousand each if survived and the electrocution happened due to negligence of the complainant himself and further that, at no point of time either Sadak Ali or the complainant have informed about the loosening of the transmission wire.
7. The opponent at para-4 of the versions claim that, the complainant had got the case registered owning over the police by political influence and there might be drawal of panchanama etc. and subsequent post-mortem examination.
8. In para-8 of the versions, the opponent avers that, on the approach of the complaint, a sum of Rs.8,000/- was paid to him against receipt and execution agreement bond by his observing his plight. The complainant had undertaken not to claim any further amount in the future. As a whole the opponent terms the case as false and baseless and seeks dismissal with costs.
9. Needless to say, the overall standpoint of the opponent is most baffling. At one stage, the accident is denied, at another point a different circumstances indicated and still at another point, payment of compensation albeit at a lower, whimsical figure is forth coming. Really a gory state of affairs.
10. Both sides have submitted document s listed at the end of this order, have filed evidence affidavits and written arguments in an effort justifying their respective stands.
11. From the conflicting pleadings, the following points arise for our considerations.
- Does the complainant prove that, he has an actionable claim against the opponent?
- If so, what would be the quantum in view of the receipt of amount of Rs.8,000/- by executing a bond?
- What orders?
12. Our answers to the points raised are as following:-
- In the affirmative.
- As to be determined in the discussions.
- As per final orders owing t the following:-
:: REASONS ::
13. Point (1): As far as the death of the bullocks concerned, the complainant has submitted overwhelming documents such as F.I.R. and complaint, Post-mortem reports on the dead animals by the jurisdictional veterinarian which prove the death of the bullocks due to electrocution. The points to be pondered are whether as claimed by the complainant, the electricity flew from the H.T. line or as claimed by the opponent, from the electrical pole after the bullocks dashed against it. In both contingencies, the negligence of the opponent is evident. If at all the wires were hanging loosely at less than the safe height, the blame of not proper up keeping goes to the opponent. Per centra, if the probabilisation of current flow from the pole as claimed by the opponent is to be believed for a moment, leakage of electricity to the pole installed in the ground ipso facto speaks volumes of improper, inefficient insulation of the live wires transmitting the energy. So, it is proven beyond doubt that, the complainant who is a consumer of the opponent co. has suffered due to the negligence of the opponent and must be suitable compensated.
14. Driving in his point, the complainant side has submitted the following decisions of higher foras for our reference.
IV (2008) CPJ-139 (N.C.).
At para 3 of the judgement the Hon’ble National Commission has observed as follows:-
The District Forum held that every villager has right to access to the Gram Panchayat Office and right for payment of taxes and seeking facilities such as street lights, drainage and library, etc. As the villagers pay taxes to the Gram Panchayat and pays consumption charges to the Company the complainants were beneficiaries to the service provided by the Company. Though the complainant s have claimed Rs.6 lakh as compensation, District Forum awarded Rs.2,50,000/- as compensation along with interest @ 9% p.a. from the date of the complaint i.e. 2.1.2006 till the date of payment along with Rs.1,000/- as costs.
III(2010)CPJ- 198 (NC).
The observation of the Hon’ble National Commission in Para-2 is as follows:-
Defence of petitioner raised before Fora below is reiterated simply to be rejected that since buffalo died due to negligence on part of respondent and also that since respondent was not a consumer, petitioner was not liable to pay compensation. Petitioner, which transmits energy has a duty to ensure safety and security of persons, animals and other objects. Loose wire remaining exposed to risk is causes damages, petitioner must be held liable to compensate losses. Finding no merit, revision petition is dismissed with no order as to costs.
Similar view was taken by the Hon’ble National Commission in another case i.e. 2013 (2) CPR-184 (NC).
Hence we answer the point No.1 in the affirmative.
15. Point (2): In the instant case, the complainant himself has avered that, the transmission wires of H.T. line were hanging at a height of 7/8 feet from the ground for last several days and further that, the complainant himself and his landlord Sadak Ali had brought the fact to the notice of the subordinates of the opponent. If that’s so, he should not have taken an adventurous step of towing the high harvesting machine below the loose lowly hanging wires. A contributory negligence in the part of the complainant is glaring a t the face and we propose to fasten 30% negligence on him.
16. Secondly, the opponent appears to have paid him a compensation of Rs.8,000/- as compensation towards the death of pair of bullocks and the complainant has received the same waiving his rights of claiming any more compensation in future. In an effort to get out of the quagmire. The complainant has relied upon another decision of the Hon’ble National Commission i.e. M/s V.K. Gupta and Associate v/s New India Assurance Co. Ltd. obtained electronically. In similar situations of obtaining premature discharge vouchers, the Hon’ble National Commission deprecating such attempts by institution in para 8.3 of the judgement has been pleased to observe as underneath:-
“3 The learned counsel for the complainant has placed before us a Circular No. IRDA/NL/CIR/Misc/173/09/2015 dated:24.09.2015 issued by Insurance regulatory Development Authority of India (IRDA) to all the General Insurance Companies, with regard to teh use of discharge vouchers in settlement of claim. The said circular reads as under:-
“The Insurance Companies are using ‘discharge voucher’ or “settlement intimation voucher” or in some other name, so that the claim is closed and does not remain outstanding in their books. However, of late, the Authority has been receiving complaints from aggrieved policyholders that the said instrument of discharge voucher is being used by the insurers in the judicial fora with the plea that the full and final discharge given by the policy holders extinguish their rights to contest the claim before the Courts.
While the Authority notes that the insurers need to keep their books of accounts in order, it is also necessary to note that insurer shall not use the instrument of discharge voucher as a means of estoppels against the aggrieved policy holders when such policy holder approaches judicial fora.
Accordingly insurers are herby advised as under:
Where the liability and quantum of claim under a policy is established, the insurers shall not withhold claim amounts. However, it would be clearly understood that execution of such vouchers does not foreclose the rights of policy holder to seek higher compensation before any judicial fora or any other fora established by law.
All insurers are directed to comply with the above instruction.”
17. The ratio as laid down is in rem and we are in respectful agreement with the ratio laid down by the Hon’ble National Commission and hold that, the execution of the bond by the complainant would not act as an estoppel against him.
18. In the instant case, the veterinarian has assessed the value of the bullocks at Rs.60,000/- each. In judgements reported in 2013 (1) CPR 510 (NC) and 111(203) CPJ 377(NC), it has been mandated the cost estimated by the veterinarian to be reckoned with. Hence we hold that, the exact compensation deserved by the complainant would a sum of Rs.1,20,000/- (gross cost) minus Rs.36,000/- (contributory negligence) minus Rs.8,000/- (already received)= Rs.76,000/- and hence we proceed to pass the following:-
ORDER.
- The complaint is allowed in part.
- The opponent is here by directed to pay a sum of Rs.76,000/- together with interest @ 12% p.a. calculated from the date of filing of this complaint till date of realisation;
- A sum of Rs.5,000/- toward compensation for mental agonies and a further sum of Rs.3,000/- be payable towards the litigation expenses;
- Four weeks time granted to comply the order.
(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 31st day of August 2018).
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
Documents produced by the complainant
- Annexure.A- Certified copy of F.I.R. and complaint in Crime
No.8/2017 of Bembalkhed Police Station. - Annexure.B– Certified copy of Late date:01.02.2017 of the Veterinary
Office Bagdal in the address of P.S.I. Bembalkhed. - Annexure. C&D- Copy of Post-mortem report of the dead Bullocks.
- Annexure. E– Electricity bill in original.
- Annexure.F- Copy of Aadhar card of the complainant.
- Annexure.G- Representation of the complainant to the opponent
date:05.12.2017.
Document produced by the Opponents.
- Annexure.R.1- Original money receipt date:09.10.2017 of the
complainant. - Annexure.R.2- Agreement bond in original date:04.10.2017.
Witness examined.
Complainant.
- P.W.1- Sri. Nabi Sab S/o Mastan Sab (complainant).
Opponent.
- R.W.1- Sri.Basawaraj S/o Apparao Patil Executive Engineer
GESCOM Bidar.
Sri. Shankrappa H. Sri. Jagannath Prasad
Member. President.
