FRIDAY, THE 10^TH DAY OF OCTOBER, 2014

C.C.NO.68 OF 2013

BETWEEN:

1.NADUPURI ANNAPOORNA W/O LATE GUNNAYYA,

HINDU, AED 46 YEARS, HOUSEHOLD DUTIES,

R/O OF T.BURJAVALASA VILLAGE,

DATTIRAJERU MANDAL, VIZIANAGARAM DISTRICT .

2.NADUPURI SATYANARAYANA S/O LATE GUNNAYYA,

AGED ABOUT 21 YEARS, HINDU, CULTIVATION,

R/O OF T.BURJAVALASA VILLAGE,

DATTIRAJERU MANDAL, VIZIANAGARAM DISTRICT .

                                              …COMPLAINANTS                 

AND

1. THE SUPERINTENDENT ENGINER,

APEPDCL (OPERATIONS), DASANNAPETA,

VIZIANAGARAM.

2.THE DIVISIONAL ENGINEER, APEPDCL., DASANNAPETA,

VIZIANAGARAM.

3.THE ASSISTANT DIVISIONAL ENGINEER,

APEPDCL., GAJAPATHINAGARAM, VIZIANAGARAM DISTRICT.

              …OPP.PARTIES

      This complaint is coming on for final hearing before us in the presence of SRI CH RAMBABU, Advocate for the Complainant and SRI P.VENUGOPALA RAO, Advocate for the Opposite Parties, and having stood over for consideration, the Forum made the following:-

O R D E R

AS PER SRI T.SRIRAMA MURTHY, PRESIDENT

This complaint is filed U/s 12 of Consumer Protection Act, 1986, seeking reliefs to direct the Opposite Parties to pay a sum of Rs.10,00,000/- together with interest @ 12% p.a., towards compensation from the date of complaint till the date of realization on the following averments:-

The Complainant is a widow and the complainant No.2 is the son of the deceased Gunnayya. On 24-09-2013 at about 10 a.m., the deceased Gunnayya took his cattle for Grazing and while he was returning home with the cattle and reached near Chintalacheruvu, one of his cows came into contact with live wire which was lying on the ground in the tank bed of Chintala Cheruvu and to save the cow, the deceased went there and he too came in contact with the said live wire and sustained burn injuries and died on the spot. After accident, the deceased was taken to Government Hospital, Gajapathinagaram and a report was lodged with the Police of Pedamanapuram Station in this regard. After conducting P.M. Examination over the dead body of the deceased and dead cow, the same were returned back to the complainants. The complainants having engaged a vehicle brought the dead body of the deceased to their house for obsequies. The deceased Gunnayya was hale and healthy and was doing cultivation and was earning Rs.1,00,000/- per year besides that he was grazing cattle and was selling milk and was earning Rs.10,000/- per month. Since the deceased died due to electrical shock and the complainants being his heirs were deprived of his love and affection and support. Since the men of the Ops were in dereliction of their duties in having the live electrical wire on the ground and as there is deficiency of service on their part, they are liable to pay the above said sum towards compensation. Hence, this complaint.

The 3^rd OP filed counter and the same was adopted by the 1^st and 2^nd OPs by filing a Memo. In the counter, the OPs traversed the material allegations made in the complaint and disputed the relationship of complainants with the deceased, the age and avocation of the deceased and the cause of accident etc., it is averred that there is no consumer and service provider relationship in between the parties and the men of the Ops were not in dereliction of their duties  and there is no deficiency of service on their part.

It is averred that as per provisions of the Electricity Act, the complainants have to give a notice of occurrence to the electrical Inspector which is mandatory and as they did not issue such a notice to the Electrical Inspector, the complaint is bad in law. It is averred that the claim for compensation under various heads is imaginary and invented for the purpose of this case and as the claim is not supported by any cogent material, the same is not sustainable. It is averred that the OPs have been maintaining the electrical lines properly and on enquiry it was found that the deceased while grazing the cows one of his cows came in contact with the loosened live conductor and as the deceased negligently and voluntarily caught hold of the tail of the said cow, he sustained electrical shock and burn injuries and died on the spot. It is averred as there are no bonafides in the complaint, the same is liable to be dismissed.

In furtherance of complainants’ case, the affidavit evidence of complainants is filed and Exhibits A1 to A5 are marked on their behalf. Per contra, the Ops filed affidavit evidence of RW1 and they did not choose to mark any documents on their behalf.

Perused the material placed on record and heard the arguments on behalf of the respective parties.

Now the point for consideration is, whether there is any deficiency in service or dereliction of the duties on the part of the Opposite Parties and whether the complainants are entitled to get the reliefs prayed for?

Basing on the material placed on record, the Learned Advocate for the Complainants has contended that on the fateful day of incident, the deceased along with cattle went to the fields and as the live electrical wire was cut and lying on the ground, one of his cows, came in contact with the said wire and to save the cow, the deceased went to the place of incident, and he too came in contact with the said live wire, as a result of which, the deceased and his cow died on the spot and as such, the complainants are entitled to get compensation as prayed for.

As against the above said contention, the learned counsel for the OPs, has contended that the men of Ops were not in dereliction of their duties and due to heavy rain and wind, a live wire was loosened and was hanging and when the cow came in contact with the same, it sustained burn injuries and when the deceased went there and caught hold of the tail of the cow, he too sustained burn injuries and as the men of the OPs were not the cause for the above said incident, the complainants are not entitled to get any compensation from the OPs.

Since, the initial burden to prove the case is on the complainants, the affidavit evidence of Complainants was filed and in support of their oral testimony, the complainants got marked the copy of FIR in Crime No.58/13 of Pedamanaopuram P.S., Death Certificate issued by Grampanchyat of Dattiraju Mandal, Inquest Report and  P.M. Certificate of deceased Gunnayya and P.M. Certificate of cow and got the same marked as Exhibits A1 to A5 respectively. As seen from the contents of above said documents, it is manifest that on 24-09-2013 at about     10 am, the deceased went to the fields along with his cattle for grazing and when he was returned with cattle, one of his cows came into contact with live wire and to save the said cow, the deceased went there and caught the cow and sustained burn injuries.

The OPs have taken a plea as there was a heavy blow of wind, a live wire was suddenly loosened and was hanging and as the cow and deceased came in contact with the said wire, they sustained burn injuries and died at the spot. Though the OPs have taken such a plea, they have not adduced any cogent evidence to prove that due to heavy blow of wind, a live wire suddenly loosened and as it was an act of God, the men of ops were not negligent in their duties. The contents of the counter and evidence of RW1 lends support to the case of the Complainants to believe that the cow and deceased came in contact with  a live wire and having sustained burn injuries they died at the spot.

As seen from the contents of Exhibit A1 report, the live electrical wire was lying on the ground at the time of incident. Exhibit A3 is an inquest report which drafted by the Investigating Officer, at the place of incident and as seen from its contents, a live electrical wire was lying across the path way in the Tank and when the deceased and his cow came in contact with the same, the above said incident took place. To counter the above said allegations made in the FIR, Inquest Report, the OPs did not file any document to show that as there was a heavy wind and blow, the wire was loosened and was hanging at the place of incident.

In a decision in AJMER VIDYUT VITRAN NIGAM LTD., Vs. PARTHU & ANR., I (2013) CPJ 159

Wherein it is held:-  Supplier of electricity is under statutory obligation to maintain all of its lines and equipments, etc., in such condition so as to ensure that no one comes into direct contact of such lines or equipments resulting into mishap.

     In a decision in AIR 1920 PC 181 QUEBEC RAILWAY, LIGHT HEAT AND POWER COMPANY LTD., Vs. VANDRY & OTHERSX  “that the company supplying the electricity is liable for the damage without proof that they had been negligent even the defence that the cables were disrupted on account of violent wind and high tension current found its way through the low tension cable into the premises of the respondents was held to be not a justifiable defence.  Thus, merely because the illegal act could be attributed to a stranger is not enough to absolve the liability of the Board regarding the live wire lying on the road”.

In a decision reported :-  The Honourable Supreme Court of India in the case between Madhya Pradesh Electricity Board Versus Shail Kumar and others (2002 (2) ALD 4 (SC) as reported in Supreme Court full reports in C.A.No.180 of 2002 decided on the 11^th day of January, 2002 it was observed and held in Para 7 and 8:

PARA 7:-     It is an admitted fact that the responsibility to supply electric energy in the particular locality was statutorily conferred on the board and if the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into, the primary liability to compensate the sufferer is that of the suppliers of the electric energy.  Further observation is that so long as the voltage of electricity transmitted through the wires is potentially of dangers dimension, the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril.  It is no defence on the part of the management of the board that somebody committed mischief by siphoning of such energy of his private property and that the electrocution was from such diverted line.  It is the look out of the managers of the supply system to prevent such pilferage by installing necessary devices.  At any rate, if any live wire got snapped and fell on the public road, the electric current there on should automatically have been disrupted.  Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps.

PARA 8:-  Even assuming that all such measures have been adopted a person undertaking an activity involving hazardous or risk exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings.  The basis of such liability is the foreseeable risk inherent in the very nature of such activity.  The liability  cast on such person is known in law as “strict liability “.  It differs from the liability which arises on account of the negligence or fault in this way i.e., the concepts of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions.  If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed.  But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.

As seen from the principles laid down in the decisions cited supra a person undertaking an activity involving hazardous or risk exposure to human life, is liable under law of torts to compensate for the injuries suffered by any other person irrespective of negligence or carelessness on the part of the Managers of such undertakings.  The complainants herein has succeeded in proving his case by placing both oral and documentary evidence.  Though the O.Ps. herein have taken a plea that the complainants themselves was negligent in touching the loosened live Conductor no cogent evidence is adduced to prove the said fact.  Hence in the above said facts and circumstances we are of considered opinion that the men of O.Ps. were in dereliction of their duties and as there is deficiency in service rendered by them in maintaining the equipments they are liable to pay compensation to the complainants.

Even if it is believed that due to heavy wind, the live wire was loosened and was hanging across the path way, the Ops can not escape their liability on the pretext that it was an act of God.

In a decision reported in AIR 2011 JAMMU AND KASHMIR 130 VIRENDER SINGH VERSUS MUZAFFAR HUSSAIN ATTAR,JJ  in para 32:

Wherein it was held:-  the plea taken by the Respondents does not absolve them of their liability. It was the duty of the Electrical Department to take all the precautions. The liability cast on the State in Law, would fall within the ambit of ‘strict liability’. The inherent basis of ‘strict liability’ is the foreseeable risk inherent in the very nature of the activity. In extenso in M.S.Mehta’s case (supra) is straightway attracted in the present case. The State and its functionaries, who were engaged in supplying electricity energy in a particular area knew it very well that the live electric wire has dangerous dimensions. Therefore, it was their added responsibility to take all precautionary/safety measures to prevent snapping of the wire”.

In view of the Dicta laid down in the decisions, cited supra, it is the duty of the Electrical Department to take all precautions to prevent danger to the men and cattle near the cut wires or the wires hanging loosely from pole which come in contact with such wires. Since, the OPs in the present case, did not maintain the wires properly, one of the live electrical wires was cut and lying across the path way in Chintala Cheruvu. The deceased and his cow came in contact with the said live wire they sustained burn injuries and died on the spot. Hence, we are of the considered opinion, that the men of the Ops were in dereliction of their duties and as there is deficiency in service on their part, the complainants are entitled to get compensation.

Now, the point for consideration is whether the complainants are entitled to get Rs.10 Lakhs towards compensation as claimed in this complaint from the OPs. As per complainants, the deceased was hale and healthy and was cultivating lands, grazing cattle and was earning Rs.1,00,000/- per year and was selling milk and was earning about Rs.10,000/- per month. To substantiate the above said plea, the complainants did not file any document to show that the deceased was cultivating lands and was earning Rs.1,00,000/- per year and also doing milk business and was earning Rs.10,000/- per month.  No cogent evidence is forth coming to believe the actual earnings and avocation of the deceased. As per P.M. Certificate and Inquest Report, the deceased was aged about 50 years. Hence, in all probability he must be doing some manual work to earn his bread.  Since, there is no cogent evidence with regard to the earnings or avocation of the deceased, we deem it fit to accept his annual income at Rs.30,000/- out of the said annual income a 1/3^rd  which comes to Rs.10,000/- can straight away be deducted towards personal living expenses of the deceased. 

The balance of Rs.20,000/- can be taken as annual loss of dependency. Since the deceased was aged about 50 years, the appropriate multiplier is fixed at 13.  When the above annual loss of dependency is multiplied by the use of appropriate multiplier 13 fixed supra, the compensation under the head annual loss of dependency comes to Rs.2,60,000/-.The same is accordingly awarded as compensation   to the complainants under the head loss of dependency. In addition to that, a sum of Rs.5,000/- is awarded towards consortium and Rs.10,000/- is awarded for loss of Estate and Rs.5,000/- is awarded towards funeral expenses. In all the complainants are entitled to get Rs.2,80,000/- as compensation under the above heads.

The complainants claimed a sum of Rs.20,000/- towards the value of the cow which died in the above  said incident. Except making bold allegations about its value, no cogent evidence is forthcoming to believe its actual age and value. Hence, we deem it fit to award a sum of Rs.10,000/- towards the value of the cow to the Complainants.  In all, the complainants are entitled to get Rs.2,90,00/- as compensation for the demise of the deceased and their cow, in the above said incident.

In the result, the complaint is partly allowed with proportionate costs awarding a compensation of Rs.2,90,000/- (Rupees two lakhs and ninety thousand only) to the complainants towards compensation with interest @ Rs.7 & ½ % p.a., from the date of complaint till the date of realization, recoverable by the petitioners from the OPs jointly and severally. Out of the said sum, the first complainant is entitled to get Rs.1,90,000/- (Rupees One lakh ninety Thousand only) and second Complainant is entitled to get Rs.1,00,000/-(Rupees one Lakh only). 

Time for compliance, two months from the date of this Order.

Dictated to the Steno, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 10^th day of October, 2014.

MEMBER                                  PRESIDENT

C.C.No.15/2013

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

For complainant:-                   For opposite parties:-

PW 1                               RW 1

DOCUMENTS MARKED

For Complainant:-

For Opposite Parties:-       -nil-

 MEMBER                                                                                   PRESIDENT