Karnataka

Bidar

CC/23/2016

Suryakant s/o Baswanthrao Biradar - Complainant(s)

Versus

The Executive Engineer - Opp.Party(s)

Sri.P.M.Deshpnade

04 Apr 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                                 C.C.No. 23/2016

 

                                                                                                  Date of filing : 03/05/2016

 

                                                                                             Date of disposal : 04/04/2017

 

 

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:          Suryakant, s/o Baswanthrao Biradar,

                                         Age: major, Occ: Agriculture,

                                          R/o Solanlwadi,Tq.Aurad,

                                   Dist.Bidar.

              

                                  (By Shri. P.M. Deshpande, Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-               The Executive Engineer,

                                             GESCOM, Bidar.

 

               

                                        (By Shri. Mahesh S. Patil, Advocate )   

                                            

::   J U D G M E N T  : :

 

By Shri. Jagannath Prasad Udgata, President.

 

              The complainant has approached this forum u/s. 12 of the C.P.Act, 1986 against the opponent.  The gist of the case is as under.  

 

2                     The complainant is native of village Sonalwadi,Tq.Aurad,Dist.Bidar.  He has a small house of mud structure and living with his family.  The house stands in the name of complainant’s son by name Apparao.   The complainant claims that the electrical pole has been installed by the O.P. which is inside of the compound of the complainant’s house and  the electric connection is given to the house of the complainant through the said electric pole.   But, electric pole lining is most is unsecured, is in dangerous situation and there are possibilities of dire consequences and hazardous events and there is possibility of any events of life loss to animal/people and even to the residents of the house and neighbouring houses etc.  Hence, the complainant had approached the O.P. and applied for shifting the existing electric pole to the safer place.   Thereafter the O.P. had asked to deposit Rs.33,120/- for shifting of pole to safer place with live wire lining etc.  The O.P. has granted for shifting of poles and sanction order to entrust work to a private contractor etc. passed by the O.P. dt.20/08/2015.  The estimated work order is under self execution for estimated cost of Rs.33,120/-.  The complainant has complied all other extra charges for proper estimated execution work as and when asked by the O.P.  But, the O.P. neither  shifted of the said electric pole  to the safer place  nor any precautionary measures were taken to safeguard of the live wire lining of pole.   So, the complainant was put to  inconveniences for existence of electric pole inside  the compound of the complainant’s house.  Hence the complainant is before us claiming that, the direction be given to the O.P. to remove electric pole installed in the house premises of the complainant and to shift to safer place and compensation be awarded for Rs.1,00,000/- and cost of the proceedings to the complainant from the O.P.

 

 

3.            After receipt of the Court’s notice, the  O.P. has appeared before this Forum, and filed written version.  The O.P. states that the complainant is not  Consumer of O.P. as defined under the Act.  Even the complainant has not stated in his complaint that he is the consumer of O.P. and on the contrary he admits that his son is the consumer of O.P. and it is not his case that the complainant is the GPA holder of his son.  Therefore when the complainant is not the consumer, this complaint is not maintainable.   The complainant by suppressing the true facts has filed this false complaint.  The electric pole/L.T. line has been already shifted from the premises of the complainant much before the filing of his complaint, and this can be confirmed by appointing Court commissioner.   The complainant with a malafide intention to make wrongful use of the Act, has filed this false complaint which is not maintainable. 

 

4.                The  contents of para no.2 to 5 of the complaint are false, hence  denied.   There is no relationship of consumer and trader or service provider between the complainant and O.P. Company.   The complainant is not consumer as defined under the Act.  Hence there has been no cause of action to file the complaint.  This Forum has got no jurisdiction to decide the case, and award damages, and the complainant has to seek his remedy in the competent civil Court.  The complaint is bad for non-joinder of necessary party, since the Managing Director of O.P. is necessary party and in his absence the complaint is not maintainable hence, the complaint may be dismissed with costs of Rs.25,000/- against the  complainant.

 

 

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

 

1. Is not the complainant a Consumer as averred by the O.P?
2. Does the complainant prove that, there has been a deficiency of service on the part of the opponents?

 

3. What order?

 

 

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

 

1.   In the negative.  

          2.    In the affirmative.

2.  As per the final order, owing to the following:

 

 :: REASONS ::

 

7.  Point No.1.  A ludicrous opposition has been raised by the O.P. that, since Sri. AppaRao, the son of the complainant is the person in whose favour the metre ( electrical) has been sanctioned as envisaged in E.P5, the present complainant is not entitled to maintain the present case.  Nothing can be more ridiculous than this proposition.  Firstly, section 2 (b)  of the C.P. Act, 1986, defines the term consumer as follows

“ Complainant” means- A consumer: or  Any voluntary consumer association registered under the Companies Act, 1956 ( 1 of 1956), or under any other law for the time being in force, or The Central Government or any State Government, One or more consumers, where there are numerous consumers having the same interest;] Who or which makes a complaint;      [(v)     in case of death of a consumer, his legal heir or                            representative.]

 

 

 

 

 

 

 

 

 

 

Vide this parlance, vide Cl. IV of the section, the present complainant entitles himself to be as such to marshal the present case. 

 

8.               Secondly we may provide an illustration to substantiate our findings.

               Suppose a person purchases a K.G. of salt for his domestic kitchen, which was found to be devoid of iodine, in contravention with Food Safely Act, or the usual regulations, against payment or a promise to pay, should we presume that, the entire stock of salt was only consumed by him and not his family members?  Such an inference would be laughable perse.  Deficiency of iodine would not only affect the real purchaser but also his entire kith and kin.  The similar situation is prevalent in the present case and rationally we are bound to negate the propositions of the opponent.  Next, a proposition has been put forward that, the Managing Director of GESCOM not being made a party, the case is bad by non-joinder of necessary parties.  Order XXIX of the C.P.C. prescribes that, when a corporation is made a party to a proceeding, a notice served on an officer of the organisation would be held sufficient.  GESCOM having been served with the notice and appearing since 25.05.2016, if was so keen about the participation of the Managing Director could have also taken steps in that regard.  Sitting lame duck, the present proposition holds no water and we reject the claim and answer point No.1 in the negative.

 

9.         Point No.2.            At the threshold of the case, apropos to the visual depicted in Ex.P1, a strange submission was made by the opponent that, the electrical pole evident there in was damaged by the complainant, tying cattle to it.  Alarmed, we analysed the visual of the pole and could observe that, the pole has been damaged from the base,  up to a height of about 11 feet, the concrete cast shedded and ferrous rods exposed.  Can any bovine be tied up at a height of 11 feet?  It could have been possible in the case of an elephant or a camel or a Giraffe. Certainly no bovine could be tied up at a height of 11 feet.  However, to test the veracity of the opponents’ contention, we decided to conduct a spot visit on 17.09.2016, in company with the parties and their respective counsels. On our arrieval, we found, the damaged pole has been replaced with a new one, still implanted inside the compound of the complainants’ house.  Still, we found, naked electrical transmission wires hanging over the roof of the house,  without any insulation.  We further observed, the L.T. line captioned, is run from West to East, ending the running direction in front of the double storied house of neighbourhood.  The distance of the transmission wires from the up stair balcony of such house was about 3 feet.  From that, point, the transmission line takes a right turn, running to South towards the premises of the complainant about 100 feet away and in the intermediate space were located three house of G.I. Sheet roof, over which then un-insulated transmission line is drawn up to the pole installed in the compound of the complainant.  From there, it  runs a bit towards in the same direction and then takes a left turn.  The scenario was sufficient to prove that, at least four households were exposed to the radiation of electrical energy and an impeding danger of severance in future to cause electrical accident to such houses at least.  While fathoming the vicinity to ascertain any other probability compatiable to both sides, we found to the West of the house of the complainant, exists a cement road of the village running from the North to South.   At the base of the southernmost portion of the road, we found the stump of an old electrical pole, which was cut some times in the past to run the L.T. Line beyond a distance of about 90 feet to East, and the pole got embodied proximate to the double storied house earlier discussed.  This appears to be a quixotic action in the part of the GESCOM, having least care for human safety and a departure from basic rationality and common sense.

 

10.                   We conferred with the Asst. Engineer of GESCOM present at the spot, who conceded that, shifting of the transmission line towards further West to run along the village road as was originally planned and approved would be surely a better idea.  He further conceded that, a decision to shift the transmission line has been sanctioned vide Ex.P.13, Ex.P.14, Ex.P.16 and the present estimate cost of such shifting has been fixed at Rs.33,120/- (Ex.P16) and the customer has remitted a sum of Rs.3312/- towards supervision Charges with Service tax at Rs.409/- vide D.D. as is evident from Ex.P.14.

 

11.                   Now, the crux of the problem remains, with the hypocratic decision of the GESCOM as is evident in Ex.P.16.  Herein, the opponent estimates the cost of Rs.33,120/- but passes on the responsibility  of shifting poles and electric lines to the complaining consumer, to hire some servicemen to effect the same.  The question now remains, should a consumer at certain eventuality enters a hospital or Nursing home for his treatment for some ailment and agrees to pay the required fees.  Thereafter the physician or the surgeon, abstaining himself from rendering services and expertise, directs the patient to conduct on operation on himself indicating the stocks of medicines, scalpels, forceps, clevers, hypodermic syringes or other surgical medical instruments?  Such kind of proposition would be nothing but a nightmare  in the case of the intending patient to avail medical help.  A similar situation may arise in a situation between a lawyer and client, in which case the former receives the fees and brief and instructs the later to plead his case in a Court of law.  We are not in a banana republic but in a civilised nation and no Govt. organisation, not the sovereign itself can assume a role to act as per it’s whims and fancies.  It would be an antithesis to Articles 12, 13, 14 & 32 of the Constitution of India and also the C.P. Act, 1986.    Hence, we hold point no.2 in the affirmative. 

 

12.  Point No.3:-   Thread barely, analysing the pros and cons of the case, we conclude that, the O.P. has a duty to perform vis-a-vis the pleadings of the complainant and proceed to pass the following:-

 

:: ORDER ::

 

   

                  The complaint is allowed in part.

1.  The O.P. is directed to shift the transmission lines of electricity as would be evident in Ex.P.17 ( back page ) should the complainant defrays the estimated cost of rs.33,120/- by engaging it’s own ( formers) personnel;
2. The complainant is required to deposit the sum aforesaid within four weeks of this order, under intimation to the O.P. with this Forum.
3. From two weeks of such deposit and intimation, the O.P. is to execute the work of shifting L.T. line as per Ex.P.17 ( back side),
4. Any negligence in the part of the O.P. to act as per the present order, would entail a payment of Rs. 1,00,000/- as per section 14 (d)- (explanation) to be payable to Consumers legal A/c of this Forum without demur.
5. There would be no cost towards compensation, cost of litigation or otherwise given the peculiar facts and circumstances of the case;
6. On satisfactory the shifting the amount mentioned at clause (a) above would be paid to the O.P.
7. Altogether an outer time limit of eight weeks is granted to fully implement the order.

    

 

( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 4^th  day of  April-2017 )

 

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                 President.                                                                                           

 

Documents produced by the complainant

1. Ex.P.1- Colour photo of dilapidated electric pole   
2. Ex.P.2- Receipt of bill payment.
3. Ex.P.3- & 4 Bills by O.P.
4. Ex.P.5- Metre description ( copy )
5. Ex.P.6-Letter of Supdt. Engineer of GESCOM ( Original) dt. 29/03/2016.
6. Ex.P.7- Representation of complainant dt. 15/03/2016 ( acknowledged copy)   
7. Ex.P.8.- Letter of Chief Engineer, GESCOM, dt. 16/03/2015 ( copy).
8. Ex.P.9- Representation of complainant, dt.15/03/2016 to E.E. (GESCOM)
9. Ex.P.10- Letter of Chief Engineer to Asst. Executive Engineer, dt. 17/02/2017 ( copy )
10. Ex.P.11- Representation of complainant, Dt.D10/02/2016} (Acknowledged copy.)
11. Ex.P.12-  Representation to Executive Engineer, GESCOM.
12. Ex.P.13-Official Memorandum, dt. 23/04/2015 ( copy )
13. Ex.P.14-Estimate ( copy )
14. Ex.P.15- Electricity bills payment vouchers ( copy )
15. Ex.P.16- Sanction order, dt. 13/04/2015 ( copy )
16. Ex.P.17- Estimate by O.P. ( Copy )
17. Ex.P.18- Representation of complainant ( copy )
18. Ex.P.19- Representation to Panchayat Development (copy )
19. Ex.P.20- Letter of Panchayat Development Authority to O.P. ( Copy )

 

 

 Document produced by the Opponent

 

 

 Nil   

 

 

 

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                      President.

 

 

mv.