Order no.16
Ld. Advocate for the complainant is present.
Ld. Advocates for opposite parties are present.
It appears from the record that after service of notices the opposite party no.1, opposite party no.2 and opposite party no.3 filed three separate written versions and all the opposite parties alleged that the instant complaint case is not maintainable before this Commission as the complainant is not a consumer in terms of consumer protection act.
Therefore, the instant Commission before proceeding with the case had been pleased to take up the case on framing preliminary issues as follows:
- Is the case maintainable in law and in its present form ?
- Is the complainant a consumer in terms of Consumer Protection Act, 2019 ?
The case of the complainant is that his only son Rishav Mandal was an employee of Hindustan Petroleum Corporation Limited having its office at HPCL Kolkata Retail Regional office, 2nd Floor, 6, Church Lane, Kolkata-700001. In the evening of 11.05.2021 at about 7 p.m., while the said Rishav Mandal was returning from his office, due to heavy rainfall he was walking through the “foot path” in front of Raj Bhavan, Kolkata. It is further stated that the said “foot path” was water logged due to heavy rainfall and electric live wire was lying on the “foot path” from the electric lamp post submerged under water. The said Rishav Mandal being unaware of the situation, while walking through that water logged “foot path” got electrocuted and died on the spot and his body was found floating in the water logged street. A U.D. case was started in Hare Street Police Station being UD case no.18/2021 dated 11.05.2021 and Post Mortem of the dead body of Rishav Mandal was held and the Autopsy Doctor opined that the ‘death was due to effect of electrical injury’. According to the complainant CESC and Kolkata Municipal Corporation are responsible for the death of Rishav Mandal as they have not taken any safety and security measures and for their negligence the said Rishav Mandal died a pre-mature death on electrocution. It is clearly deficiency in service on the part of the opposite parties. Hence this case.
Ld. Advocate for the opposite party nos.1 & 2 and Ld. Advocate for the opposite party no.3 raised strong objection against the contention of the complainant.
Both advocates of the opposite parties submit that the complainant or his son (since deceased) are/were not a consumer in terms of section 2(7) of the Consumer Protection Act, 2019. This Commission is not the proper Forum to redress the grievance of the complainant made in the complaint application.
In reply Ld. Advocate for the complainant submits that the complainant is a consumer in terms of the Consumer Protection Act, 2019 and referred a judgment passed by the Hon’ble Apex Court in Vadodara Municipal Corporation Vs. Purshottam V. Murjani & Ors.
The facts of Vadodara Municipal Corporation Vs. Purshottam V. Murjani & Ors. is as below:-
The Lake Sursagar is under the control and management of the Corporation which has been plying boats for joy rides and boating club. During the period in question, the contract for plying the boats was given to Ripple Aqua Sports vide licence agreement dated 26th September, 1992 for managing the affairs of the Boating Club at the Lake for the purpose of entertainment. The agreement, inter alia, provided that the facility of boating was to be given to the public. It was necessary that the contractor shall be taking insurance policies to cover the risk liability of all persons using the equipment of the club. The Corporation had the right to supervise the boating club. The passengers had taken tickets for the boat ride but on account of deficiency in service the passengers drowned on capsizing of the boat which was overloaded. The occurrence took place on account of negligence of the contractor as well as failure of the Corporation to exercise due care. Under the above circumstances the Hon’ble Apex Court observed as follows:
“In view of above discussion, while upholding the liability of the Corporation, we reiterate that not only Constitutional Courts have to, in suitable cases, uphold claims arising out of loss of life or liberty on account of violation of statutory duties of public authorities, in private law remedies, just and fair claims of citizens against public bodies have to be upheld and compensation awarded in Tort. Where activity of a public body is hazardous, highest degree of care is expected and breach of such duty is actionable. This obligation is also referable to Article 21. We reiterate the need for a comprehensive legislation dealing with tortious liability of the State and its instrumentalities in such cases for certainty on the subject. We request the Law Commission to look into the matter and take such steps as may be found necessary.
Therefore, as the passengers of the boat had taken tickets on payment of consideration, certainly they were consumers in terms of section 2(7) of Consumer Protection Act, 2019.”
This judgment is quite distinguishable from the fact of the instant case. The instant complaint case has been filed on 14.12.2021 under the Consumer Protection Act, 2019.
The definition of the, Consumer under section 2(7) of the Consumer Protection Act, 2019 read as follows:
“ (7) “consumer” means any person who-
- buys any goods for a consideration which has been paid or promised or partly paid any partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose: or
- hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.”
Here the father of the deceased Rishav Mandal filed the instant complaint case as a complainant. According to him the said deceased Rishav Mandal was an employee of Hindustan Petroleum Corporation Limited having its office situated at premises no. 6, Church Lane, Kolkata-700001. The said Rishav Mandal died on 11.05.2021 electrocuted due to live electric wire lying on the foot path from electric lamp post on water logged street in front of Raj Bhavan, Kolkata. The complainant has not produced any document to establish that he or his deceased son Rishav Mandal has/had availed any service of CESC or the Kolkata Municipal Corporation on payment of consideration required to be a ‘consumer’ under the Consumer Protection Act, 2019.
It is well settled that the maintenance of the drainage and sewerage system etc. is a statutory function discharged by the Kolkata Municipal Corporation. Payment of tax imposed by the Government for public purpose should not be accepted as consideration for providing services. Therefore the person paying tax shall not fall within the meaning of ‘consumer’ in terms of the Act.
Therefore it is crystal clear that neither the complainant nor his deceased son Rishav Mandal is a consumer in terms of section 2(7) of the Consumer Protection Act, 2019. Though this Commission has sympathy with the complainant for the loss he suffered but at the same time felt bound by the provision of the Consumer Protection Act, 2019 which unfortunately do not cover such accident. The remedy lies before the Civil Court. However the complainant is hereby allowed the benefit of section 14 of the Limitation Act, 1963 by excluding the period he has been pursuing remedy before this Commission which would not be counted towards the period of imitation for filing case, if any before the Civil Court or any other legal authority.
In view of the above, we are of the opinion that the complainant not being a consumer under the Consumer Protection Act, 2019, the case is not maintainable before this Commission.
Having considered the discussion made above, it is crystal clear the instant complaint case being not maintainable in law is liable to be dismissed.
Both the points are decided against the complainant.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed on contest as not maintainable without cost.
Dictated by me
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Presodent
