Karnataka

Bidar

CC/54/2016

Shanthappa S/o Nagappa Dille Bidar - Complainant(s)

Versus

The Executive Engineer GESCOM Bidar - Opp.Party(s)

Rajkumar. K

07 Feb 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                                 C.C.No. 54/2016

 

                                                                                                  Date of filing : 01/08/2016

 

                                                                                             Date of disposal : 07/02/2017

 

 

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:            Shanthappa, s/o Nagappa Dille,

                                          Age: 50 years, r/o Marjapur-M,

                                             Tq. & Dist.Bidar,

                                          now residing at Vidya nagar colony, Bidar.

 

              

 

 

                                         (By Shri. Rajkumar K., Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-               The Executive Engineer GESCOM,

                                          Bidar Division, Bidar.

 

                                     

  

 

 

                                        (By Shri. Mahesh S.Patil, Advocate )   

 

 

                                                

::   J UD G M E N T  : :

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

                    This is a complaint file by the above said complainant U/s.12 of the C.P.Act., 1986, against the O.P alleging  deficiency in service . The gist of the case is as under:

 

2.          The complainant avers that, he was owning a cow, yielding 12 litre of milk every day, thus fetching him per day a sum of Rs. 200/- to Rs.300 after meeting the expenditures to maintain the Cow.  On 28/08/2015 the cow of the complainant came into contact with the place surrounding the GESCOM Transformer (T.C.) which was situated near the house of one Pandurang Suryavanshi.  Due to leakage of electricity, the periphery was electrocuted and the cow died on the spot due to electrocution.  Thereafter the complainant had filed a complaint before the Police Gandhi Gunj,Bidar, whereupon the police concerned visited the spot and registered the case and conducted Panchanama of the dead Cow.  In this regard the Veterinary Doctor  had conducted the Post mortem examination and issued report to Taluka Magistrate in respect of dead Cow of the complainant.  The said Doctor had opined and confirmed that, the death of Cow was due to electric shock.  The death of Cow of the complainant had taken place due to the negligence and deficiency of service on the part of the O.P.  

 

3.           The complainant despite being informed about the  T.C. of GESCOM in dangerous condition  but, respondent authority failed to attend the same, which resulted in spreading the electricity in the area of T.C. of GESCOM and caused death of the Cow of the complainant due to which, the complainant had suffered loss of income as well as suffered mental agonies.  Hence, complainant is before this Forum claiming a  sum of Rs. 80,000/- which is claimed the cost of the Cow against the O.P.

 

4.                 On receipt of notice form this Court, the O.P. has put up appearance through counsel and has filed written version in which   O.P. avered that the complaint filed by the complainant is miosconcived both in law and on facts, and it is not maintainable.  The complaint in the present form without impleading the Managing Director of GESCOM is not maintainable, since it is the Managing Director of the company who is necessary party, and the O.P. is only an officer working under the company, hence, for not impleading the Managing Director of GESCOM, the complaint is bad in the eye of law.   

 

5.                  In reply to para no.1, 2 & 3 of the complaint.  They are stated to be false and denied.  It is denied that on 28/08/2015 the cow of the complainant died due to electric shock near GESCOM Transformer near the house of Pandurang Suryavanshi at Vidyanagar colony,Bidar.  The O.P. Company had no such information of any such electricity leakage and about the death of the cow.  Even the complainant had not given any such information to the O.P. Company.  Therefore the O.P. Company disputes the death of the cow and the complainant be put to strict proof of his ownership.  The contents of the para no.3 claiming cow’s cost worth Rs. 80,000/- and that he had purchased it from one Tukaram s/o Mareppa are both denied.  It is further avered that the relevant documents to prove that complainnat had purchased the cow from one Tukaram s/o Mareppa by paying the cost of the cow as of Rs.80,000/- are no where produced. But, the contents of para no.4 of the complaint regarding registration of the case by the police and conducting post-mortem examination by the veterinary Doctor on the dead cow are not disputed by the O.P.

 

6.               The O.P further disputes contents of paras 5, 6 & 8 of the complaint.   It has been denied that the complainant approached the O.P. company claiming damages, but no compensation was paid.  In fact, the complainant never approached the O.P. Company hence, the complainant being without any cause of action is not maintainable.  In reply to para no.9 of the complaint, the complainant has not explained as to how he is a Consumer as defined under the Act.  Hence, when admittedly the complainant is not a consumer, his complainant is not at all maintainable.

 

7.                  The O.P.   avered that,  the complainant has not reported any such incident to the O.P. Company soon after the alleged incident as required under sec.161 of Indian Electricity Act. so as to enable the O.P. Company to investigate the matter and find the truth.  As such, the complaint appears to be concocted without complying with the mandatory provisions of the Act.  The O.P. further avered that, the complainant is not a consumer as defined under the Act.  He has no locus standi to file the complaint, and even this Forum has got no jurisdiction to decide such complaint.  The only option for the complainant is to approach the competent Civil Court and claim damages, if he so desires.  Further complainant has not proved that he was Consumer of the O.P. and there was any deficiency or negligence in service on the part of the O.P. Company.  Hence the complaint filed by the complainant may be dismissed with costs.

 

8.               Both the sides have filed their evidence affidavits and written arguments reiterating their respective contentions and documents relied upon are described at the end of the order.

 

 

 

9.         Considering the rival contentions of the parties, the following points arise for our consideration:-

 

1. Is the complaint maintainable against the sole opposite party?

 

2. Does the complainant prove that, there has been a deficiency of service in the part of the Opponents?

 

3. Is the complainant entitled for compensation and then how much?
4. What order ?

 

 

10.           Our answers to the points stated above are as follows:-

 

               1. In the affirmative.

               2. In the affirmative.

               3. As per the assessment of veterinary surgeon.

                4. As per final orders due to the following

 

 

                                                                                         :: REASONS ::

 

11.                   In the instant case the opponent has raised an objection that, the complaint cannot be maintained against the Executive Engineer, GESCOM, Bidar, without impleading the Managing Director of GESCOM as a party.  To answer the question, we fix our gaze on the provisions of order XXIX of the C.P.C., Rule-2 which reads as follows:-

 

Order XXIX Rule-2 C.P.C.

                        Service on corporation: Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served.           

1. On the secretary, or on any director, or other principal officer of the corporation, or
2. By leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.

 

12.                   The executive Engineer (present O.P.) being one of the Principal officer, notice has been served on him and therefore, he is before the court.  Therefore, no impediment can be attributed in maintaining the case and we answer the point in the affirmative.

13.                   The complainants’ Counsel has submitted before us two judgements of the Hon’ble National Commission reported as III(2010) CPJ-198-[DHBVNL V/s Vidya Devi] in which it has been interalia held:-

                        “ Petitioner transmits energy, has duty to ensure safety and security of persons, animals and other objects”.

                        He has also relied upon another judgement reported as 2013(2) CPR 184 (NC)- [DHBVNL V/s Parmilla Devi] in which it has been held further as follows:-

                        “ Electricity Board is duty bound to ensure proper and safe  keep of electric wire”.

14.       The ratios of the two judgements quoted above clinches the major issues involved in the case.  As far a the none intimation of peripherial electrocution of the Transformer, the same is instantaneous and no fault can be attributed to commoners by not notifying the Electrical Inspectorate as required U/s 161 of the  Electricity Act.

 

15.                   The O.Ps challenge to the status of a consumer vis-a-vis theO.P is a foregone conclusion.  In IV (2008) C.P.J 139 N.C. CGMP and ONPDCL and ors, the Hon’ble National Commission has been pleased to hold that:-

                 

 

 

:: ORDER ::

 

   

1.  The complaint is allowed in part.
2.  The O.P. is liable to pay a compensation ofRs.25,000/- to the complainant together with interest @ 12% p.a. from the date of demand raised i.e. 12.07.2016  till realisation.
3. The O.P.is further liable to pay a sum of Rs.3000/- towards mental agony undergone for the loss of a valuable wealth and a further sum of Rs.2000/- towards litigation expenses.

 

 

           d)  Four weeks time granted to comply this order.

 

 

( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 7^th day of  February-2017 )

 

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                            

 

 

Documents produced by the complainant

1. Ex.P.1- Copy of Police complaint date: 29.08.2015.
2. Ex.P.2- copy of report of jurisdictional Gandhi Gunj P.S. to Tahasildar, Bidar date. 15.09.2015 with copy endorsed to O.P.
3. Ex.P.3- Copy of spot Mahazar date: 29.08.2015..
4. Ex.P.4- Post mortem report.(copy).
5. Ex.P.5- Copy of photograph (illegible).
6. Ex.P.6- Copy ofclaim for compensation date: 12.07.2015.

 

 Document produced by the Opponent/s

 

            -Nil-

 

 

 

Sri. Shankrappa H.,                                             Sri. Jagannath Prasad,                                  

       Member.                                                                      President.     

 

Sb.