CC Filed on 12.11.2009 Disposed on 11.08.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR. Dated: 11th day of August 2010 PRESENT: Sri. G.V.HEGDE, President. Sri. T.NAGARAJA, Member. Smt. K.G.SHANTALA, Member. --- Consumer Complaint No. 188/2009 Between: 1. Sri. B.C. Narayanappa, S/o. Seenappa, Aged about 40 years. 2. Smt. Narayanamma, W/o. B.C. Narayanappa, Aged about 38 years. Both are residing at Anahalli Village, Kappalamadagu Post, Mulbagal Taluk. (By Advocate Sri. N.G. Vasudev Moorthy & others) V/S 1. The Executive Engineer (Elel) BESCOM, (O & M Division) Champion Reef, K.G.F. 2. The Asst. Executive Engineer, BESCOM, (O & M Division) Mulbagal. .Complainants 3. The Supervising Engineer, (Elecl) BESCOM, (O &M Division) Near Vinay Sabangana, Kolar Circle, Kolar. 4. The Managing Director, BESCOM, K.R. Circle, Bangalore. (By Advocate for OP.1 to 4 B.S. Vijay Kumari) 5. Sri. H.V. Srinivasa, S/o. Venkataswamy, Junior Engineer, BESCOM, Mulbagal. 6. Sri. A.P. Chandrashekar, S/o. Late Puttaraj, Line Man, BESCOM, Mulbagal. 7. Sri. Bandaiah, S/o. Late Dodda Chowdappa, Line Man, BESCOM, Mulbagal. (By Advocate for OP.6 &7 Sri. N. Prabhakar & others) .Opposite Parties ORDERS This is a complaint filed under section 12 of the Consumer Protection Act, 1986 praying for a direction against the opposite parties to pay compensation of Rs.10,00,000/- with interest at 12% p.a. from the date of complaint to the date of realization with costs. 2. The material facts of complainants case as made out in the complaint and the documents filed along with it may be stated as follows: That on 09.07.2008 at about 12.30 p.m. one Subramani aged about 19 years the only son of complainants was proceeding by the side of residential premises of one Chinnodu on Kumbarapalya Road in Mulbagal Town along with his friends after attending second year ITI classes, with a view to reach his house. At that time an electric pole broken and fell down on him due to which he sustained severe head injuries. He was taken to local hospital and given first aid and thereafter he was taken to R.L. Jalappa Hospital for further treatment, but he died at about 1.45 p.m. on the same day while being treated at R.L. Jalappa Hospital, Kolar. It is alleged that a coconut tree standing in the premises of the above said Chinnodu was being cut at that time without taking proper precaution by removing the electricity lines drawn between poles nearby that tree and that after cutting the coconut tree it fell on the electric lines which pulled up the adjacent electric poles and thereby one of the electric poles fell down on the person of deceased Subramani. It is alleged that the said negligent act of cutting the coconut tree without taking proper precaution and safe guard was due to the dereliction of duty by the BESCOM Officials which resulted in causing the injury to the deceased and that OP No.5 to 7 who were a Junior Engineer and two Linemen, were present on the spot at time of cutting the coconut tree. It is alleged that the deceased was the only son of complainants and he was studying in second year ITI at MITc Industrial Training Centre, Mulbagal. It is alleged that Mulbagal Town Police have registered a case in crime No. 212/2008 against OP No.5 to 7 for offence under section 304 A of I.P.C and finally a charge sheet was also filed against them for the said offence. It is also alleged that the BESCOM (OPs) came forward to give compensation of Rs.1,00,000/- on the condition that the complainants should receive it in full satisfaction of their claim towards compensation for the death of their son and they should not make any further claim in any Court or Tribunal and that because of such condition the complainants refused to receive the said compensation. It is alleged that the complainants were put to great mental shock and agony due to the sudden death of their only son. Therefore they prayed for awarding a global compensation of Rs.10,00,000/-. 3. OP No.1 & 2 filed common version for themselves and on behalf of OP.3 and OP.4. The incident as such is not denied. The complainant is put to strict proof of the averments regarding the age and educational qualification and health and the relationship, etc., of the deceased Subramani. It is contended that the owner of the tree who had taken permission for cutting it was necessary party and that owner was responsible for the said accident. Further that the said owner did not take necessary precaution before cutting the coconut tree and even he had not informed any officers except taking two linemen with him. Further it is alleged that though there was no negligence on the part of BESCOM, the authorities decided to sanction Rs.1,00,000/- to complainants on humanitarian ground on the condition that the complainant should not raise any further claim against BESCOM or its officials. It is alleged that the complainants refused to receive the said amount. Therefore they contended there is no deficiency in service on the part of BESCOM or its officials. It is also contended that the complainants are not consumers within the definition of C.P. Act 1986 and thereby this Forum has no jurisdiction to try this case and the complainants have to move the Civil Court for redressal of their grievances if any. It is also contended that the claim made is exorbitant and arbitrary. 4. The OP No.6 and 7 filed common version. They contended that the criminal case is still pending and is not adjudicated. Further they denied any negligence on their part for the alleged incident and their liability to pay compensation. Further they contended that the complainants or the deceased were not Consumers and these OPs did not extend their service for any consideration for them as such this Forum lacks jurisdiction to entertain the complaint. Further it is contended that the claim is exorbitant and the deceased was not earning any income. Therefore they prayed for dismissal of the complaint. 5. The notice under RPAD sent to OP.5 returned unserved on refusing to receive it. Hence service on OP.5 is taken as sufficient. He remained absent during the proceedings. 6. Complainant No.1 filed affidavit and documents in support of the averments made in the complaint. One Vasudeva, A.E.E. (Ele.) BESCOM (O & M) Division, Mulbagal (OP.2) filed affidavit in support of the version of OP No.1 to 4. No evidence is led on behalf of OP.6 and 7. 7. Both sides filed written arguments. 8. The following points arise for our consideration: Point No. 1: Whether the complainants are Consumers as defined under sec 2 (1) (d) of the C.P. Act 1986? Point No.2: Whether the complaint is bad for non-joinder of necessary party? Point No.3: If the complaint is maintainable, to which compensation the complainants are entitled to and against whom? Point No.4: To what order? 9. After considering the records and submissions of parties our findings on the above points are as follows: Point No.1: The definition of Consumer defined in Sec. 2(1) (d) of the C.P. Act mainly prescribes that a person who buys any goods for consideration or who hires or avails of any services for consideration is a Consumer. The definition of deficiency in Sec. 2 (1) (g) of the Act is as follows: deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service; A complaint before Consumer Forum is entertainable only if the service hired or availed for consideration, suffers from any deficiency. It is contended on behalf of complainants that the OPs vow a duty while providing the service to take all possible care taking safety measures to the public and if there is any such failure in not providing the safety to the general public, necessarily it amounts to deficiency in service. He submitted that in Appeal No. 781/2008 decided on 06.11.2008 our Honble State Commission has held that the complaint before the Consumer Forum is maintainable in the similar set of facts. That Appeal has arisen out of the order dated 27.11.2007 passed by this Forum dismissing the complaint holding that there was no relationship of Consumer and Service Provider between complainants and OP. In that case the son of complainant while passing on the public road came in contact with live wire hanging from main line thereby died on the spot. This Forum had dismissed the complaint on the ground that there was no consideration for availing any service. The said order of this Forum was set aside and the matter was remanded in Appeal No. 781/2008 and ultimately this Forum allowed the complaint awarding compensation. That order was again challenged in Appeal No. 1877/2009 before our Honble State Commission and ultimately the appeal was dismissed however reducing the compensation awarded by this Forum. On facts it cannot be disputed that the BESCOM officials had a duty to take every precaution before granting permission to cut the coconut tree which was likely to fall towards service lines. The Learned Counsel for OP No.1 to 4 submitted that the complainants had not hired or availed any services and there was no consideration paid by complainants or deceased for the assumed service availed by them. The facts in the above Appeal decided by our Honble State Commission are almost similar to the facts in the present case. We think in view of the decision of our Honble State Commission we have to hold that the complainants are Consumers within the meaning of section 2 (1) (d) of C.P. Act. If any other view is to be taken that can be urged only before the Honble State Commission. So far this Forum is concerned the finding arrived by the Honble State Commission is to be followed. Hence point No.1 is held in affirmative. Point No.2: The BESCOM-OPs has contended that the owner of premises was responsible for the death of the deceased Subramani and he was the necessary party. The allegations show that the BESCOM had permitted to cut a coconut tree in the premises of the owner and OP No.5 to 7 were present at the time of cutting the tree. The chargesheet alleges this fact, therefore we can believe that those officials were present in the premises. Therefore it was the duty of those officials to take proper precaution so that the cut tree should not fall on the service line. For that reason before allowing the owner to cut the tree proper safety measures should have been taken. Hence we hold that owner of the premises is not necessary party as there is no deficiency in service on his part. Accordingly Point No.2 is held in negative. Point No.3: The complainants and the deceased were residents of Mulbagal Town. They must have been paying tax to local body and in turn the local body used to pay electricity charge for street light to BESCOM. Therefore there is passing of consideration by complainants to BESCOM for availing their services. However there is no such passing of consideration in favour of any of the BESCOM Officials. Therefore the compensation can be awarded only against BESCOM but not against its officials in their personal capacity. The deceased was a student studying in ITI Course aged about 19 years. It is alleged that he was the only son to complainants and he was a bright student. Therefore we think a sum of Rs.2,50,000/- may be awarded as compensation for the death of the deceased along with interest at the rate of 6% p.a. on the said amount from the date of complaint till the date of payment. Hence point No.3 is held accordingly. Point No.4: Hence we pass the following: O R D E R The complaint is allowed with costs of Rs.1,000/-. BESCOM, K.R. Circle, Bangalore represented by its Managing Director is directed to pay a sum of Rs.2,50,000/- (rupees two lakh fifty thousand only) as compensation to complainants along with interest at the rate of 6% p.a. from the date of filing of complaint (12.11.2009) till the date of payment. The amount shall be paid within 8 weeks from the date of this order. The complaint against the officials of BESCOM in their personal capacity is dismissed. Dictated to the Stenographer, corrected and pronounced in open Forum this the 11th day of August 2010. MEMBER MEMBER PRESIDENT
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