This is a complaint filed under section-12 of Consumer Protection Act seeking the relief to direct the OP’s to get the road leading from Kapu Street to Dwaraka Nagar repaired and widen the same for smooth passage of vehicles and to direct the owners of she Buffaloes and the men of Municipal Authorities to clean/remove the dung dropped by the Buffaloes on the road and to pay a sum of Rs.5,000/- towards damage of his scooter, and Rs.10,000/- towards damages on the following averments:-
The complainant is a resident of Dasannapeta and is using the road leading from Dasannapeta towards Dwaraka Nagar and Baba Metta to have ingresh and agresh to his house. Since the road is totally damaged it causes much inconvenience to its users and more particularly to the complainant while using his scooter on the said road. The complainant incurred a sum of Rs.5,000/- to get his scooter repaired and is spending Rs.120 per month for getting it cleaned. On 12.07.2009 the complainant got issued a notice to OP No.1 as well as to Health Officer and chair person of Vizianagaram Municipality in this regard but of no avail.
It is averred that about 10 families residing in Dasannapeta and Nawabpeta are owning 10 to 15 she buffaloes each and are allowing the same to pass on the road and though the said she buffaloes are dropping dung on the roads they are not cleaning and as such it causes much inconvenience to those road users. Though he lodged complaints against the owners of she buffaloes no action was taken against them till date. It is averred that there are compost pits around the houses and no action is taken against the owners of these compost pits for its removal and due to existence of the said compost pits the inhabitants of the locality are suffering from Malaria, Dengu and other deceases. The respondents did not take any action for maintaining and cleaning the roads and for removal of compost pits and as such the complainant as well as the inhabitants of the locality are facing much inconvenience and hardship. Hence the complaint.
Notices were issued and served on the opposite parties but they did not appear to contest the matter.
Now the point for consideration is:-
Whether the complainant is entitled for the reliefs prayed for.
Before adverting the merits of the case We would like to mention that in a case of this nature the initial burden is on the complainant to prove his case by placing cogent evidence and in case he fails, to do so his complaint is liable to be dismissed. In a decision in Rangannagari Yadavareddy Vs Vijay kumar 11 (2001) CPJ 391 wherein it is held that in the absence of proof by way of some evidence the averments of the complainant by themselves cannot be accepted and when a complainant has failed to substantiate the allegations leveled in his complaint the same fails for want of evidence and is therefore liable to be dismissed. As per complainant the road leading from Dasannapeta towards Dwarakanagar and Baba metta was totally damaged and some of the inhabitants of Dasannapeta and Nawabpeta are having she buffaloes and are allowing the same to pass on the above said roads, and when the said cattle are dropping dung its owners and also men of the Municipality are not cleaning the same and as such it causes much inconvenience to the above said road users.
Even if it is believed that some of the inhabitants of Dasannapeta and Nawabpeta are owning she buffaloes and are allowing them to pass on the roads, there is no law to prevent such owners from taking the cattle on the roads. Even if a cattle that passes on the road dropped dung on it, it cannot be said that its owner is liable to be punished. The complainant also did not disclose the names of the persons who allowed their she buffaloes to pass on the roads. He did not implead them as parties in this complaint. As per the complainant some of the inhabitants of Dasannapeta and Nawabpeta are having their compost pits around the houses in that locality and due to existence of the said pits there is wide spread of deceases more particularly Malaria, Dung and other fevers. For the reasons best known he did not choose to implead the owners of those compost pits in this complaint. It is well settled that none shall be condemned unheard and that a decision given without hearing shall be a Nullity. Since the complainant did not implead the owners of the she buffaloes and the persons having the compost pits around the houses of his locality no relief can be granted to him even if some damage is caused as alleged.
It is the grievance of complainant that the men of OP’s did not repair the roads and did not get the same cleaned and as such his scooter was damaged and he is facing much inconvenience in using the same.
As seen from the complaint the complainant got issued a notice to the 1st OP as well as to the health officer and chairperson on 27.02.2009 and has been making complaints to these authorities in this regard. He did not file any copies of complaints to show that he has been making complaints to various authorities since 2009 till filing of this case. He has not given any explanation as to why he did not file complaint against the Ops immediately after he caused a notice in the month of February, 2009. The cause of action for filing the complaint has arisen from the date when the notice was issued i.e. from 27.02.2009. As per section 24A of consumer protection act the Forum shall not admit the complaint unless it is filed within two years from the date on which the cause of action has arisen. The complainant in this case issued notice on 27.02.2009 to the 1st op and two others expressing his grievances and claiming damages, but he filed the complaint on 15.06.2013. The cause of action for filing this complaint is barred by limitation as he did not file complaint on or before 28.02.2011. Even if it is believed that Op’s are inactive, lethargic and did not respond to the complaints made by the complainant, the remedy to the complaint lies some whereelse but not in this Forum for the law laid down by various authorities as mentioned below.
1. The Commissioner, City Corporation of Belgaum Vs Sangouda Malagouda Patil, 1996 (1) CPR 37
Municipality – Failure to lay road, gutters, water supply complaint untenable under C.P.Act.
2. Smt.Prem Lata Vs Municipal Committee, 1994 (3) CPR 320 Municipality-Sewerage overflow – Complainant fell in ditch sustained injury-complaint against Municipality – Untenable –complainant not consumer-remedy available before Civil Court –Torts Remedy Civil Court The State Commission, Punjab has taken the view as under.
“Overflow of sewage – Complainant slipped and fell down in the ditch of manhole-complainant appellant cannot be said to be consumer and complaint was not maintainable – Order of District Forum awarding compensation is liable to be set aside”.
The complainant cannot be classified as a ‘Consumer’ under the provisions of the Act and the dispute raised under the complaint cannot be classified as a ‘Consumer Dispute’.
3. Executive Engineer Cuttack Municipality Vs Rabi Singh,1997 (3) CPR 85.
Municipality – Failure to remove nuisance – It is self evident from the narration in the complaint/petition that the complainant has not hired or availed of any service for consideration far less has paid any consideration for the same. Payment of tax if at all may be for his own holding and that again it is different from fee on receipt of which the Municipality is obliged to render some service to the fee payer. It may be that the Municipality has not discharged its responsibility as per the provisions of the Orissa Municipal Act, and the Rules framed thereunder but the consumer Forum cannot entertain such a dispute in as much as the complainant is not a consumer nor the dispute presented comes within the purview of Consumer dispute.
The Calcutta Municipal Corporation V.Dr.Apurba Kumar Basu, II (1996) CPJ 186 (NC): 1996 (2) CPR 173.
Municipality – House Tax – Dispute as to – cannot be entertained by Forum under the Act – Tax payer is not consumer – No hiring of service – There is no nexus between the tax and the services rendered by the Municipality and any complaint about levy and collection of such tax does not make the assesse a consumer as defined under the Consumer Protection Act, 1986.
I (1993) CPJ 505
Commissioner, Municipal Corporation Vs Rakesh Johari & ors
Para 5:- From the aforesaid facts it is clear that there is no question of hiring any services by the complainants from the non-applicants. The State of Madhya Pradesh has nothing to do with the complaint. There is nothing to do with the complaint. There is nothing which is alleged against the Town Improvement Trust which could make it liable. So far as the Municipal Corporation is concerned whatever it has done or not done, has been done or not done under the purported exercise of powers under the M.P.Municipal Corporations Act, 1956 and on the allegations in the complaint itself it has not been proved that the complainant was a consumer under the Consumer Protection Act, 1986 and any services were hired by the complainants. Section 2(1) (o) of the Act defines “Service” to mean service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financial Services, insurance, transport, processing, supply of electrical or other energy, boarding or lodging or both, entertainment, amusement or the purveying of news or other information. Though the definition is inclusive of any other service which is not enumerated will have to be a service like the services enumerated. Rule of ejusdem generis will have to be applied. Thus, service rendered by a Government Department or a statutory body under provisions of an Act cannot be said to be such service which will be included in the definition of ‘Service’ under the Consumer Protection Act, 1986. We therefore, find that the complaint itself was not entertainable by the District Forum. It should have been dismissed out right.
As seen from the principles laid down in the decisions cited supra even if the Municipal Authorities have failed to remove nuisance or in getting the roads repaired, the complainant cannot be classified as a consumer as he did not hire or avail of any service for consideration from the OP’s. Since the complainant is not a consumer and as the present dispute does not come within the purview of consumer disputes the complaint merits no consideration.
Hence the complaint is dismissed but under the circumstances without costs.
Dictated to the Steno, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 5th day of November,2013.
Member President
