This case is coming on for final hearing before us in the presence of Sri P.Dhananjaya Rao, Advocate for the Complainants and Sri P.Venugopala Rao, Advocate for Opposite parties 1 to 3 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 C.P.Act,1986 seeking the reliefs to direct the O.P’s to pay a sum of Rs.5,00,000/- with interest at 12% per annum from the date of death of the deceased till payment is made and to pay a sum of Rs.5,000/- for cost of the complaint on the following averments:-
The 1st complainant is the wife and complainants 2 to 4 are the children of deceased Pentaiah who died on 28.08.2014 due to electrocution. On 28.08.2014 the deceased came to Vizianagaram for purchasing household articles and he boarded an auto at R.T.C. Complex and came to M.R.College Junction near clock tower and got down from the auto and while he was proceeding on the road there was heavy wind and gale and when he reached near an electrical transformer, he came in contact with the same and having sustained electrical shock and burn injuries he fell on the road. Some passers-by took him to Government Hospital for treatment. The doctors examined him and found that the deceased died due to electrical shock. The doctors conducted Post-mortem examination and handed over the dead body of the deceased to the complainants for cremation. On a report given to police a crime was registered and police held inquest over the dead body of the deceased and an inquest report was prepared to that effect. At the time of the accident the deceased was hale and healthy and was doing agricultural work and was also selling seasonal produce in the market and was earning sufficient amount on the same. The complainants being the wife and children of the deceased were being maintained by the latter. Due to the sudden demise of the deceased the complainants being his legal heirs are deprived of his love and affection and also support. Since the O.P’s were in dereliction of their duty for not totally enclosing the transformer so as to prevent persons accidentally coming into contact with it and since the above said incident was occurred. As there is deficiency in service on the part of O.P’s they are liable to pay the compensation amount to the complainants. Hence the complaint.
The 3rd O.P. filed counter and the same was adopted by O.P’s 1 and 2 by filing a Memo and in the counter they have traversed the material allegations made in the complaint and have averred that there is no consumer and service provider relationship in between the parties and as the complainants did not issue a notice U/s-33 of I.E.Act to the Electrical Inspector about this incident, the complaint is bad in law. It is averred that as per enquiry made by them it was found that on the date of incident there was heavy gale and wind and the deceased who was proceeding near the transformer negligently opened his umberella and as the same touched the live part of the distributing transformer S.S-142, 100 KVA pole he sustained electrical shock and fell down. The above said accident was occurred due to the negligence of the deceased. As the men of O.P’s were not in dereliction of their duty and as there is no deficiency in service on their part, the complaint merits no consideration and is liable to be dismissed.
In support of complainants case they have filed proof of affidavit of 1st complainant and got marked exhibits A1 to A5 on their behalf. Per contra the O.P’s filed proof of affidavit of RW-1 on their behalf.
Perused the material placed on record and heard the counsel for respective parties. Now the points for determination is whether there is consumer and service provider relationship in between the parties and whether there is deficiency in service on the part of men of O.P’s and whether the complainants are entitled to get compensation as prayed for?
Besides the oral evidence of PW-1 the complainants have filed copy of Family Members Certificate, Death Certificate, FIR, Post-Mortem Certificate and Inquest Report and got the same marked as exhibits A1 to A5 respectively. The O.P’s did not dispute about the correctness of the contents of above said documents. The contents of above said documents considerably lends support to the case of complainants to believe that due to electrical shock and burn injuries the deceased died on the fateful day of incident. In the counter the O.P’s have taken a plea that due to heavy gale and wind the deceased who was proceeding near the transformer negligently opened his umbrella and came into contact with live part of transformer as a result of which he sustained electrical shock and fell on the road. In view of the above said stand taken by the O.P’s their counsel has contended that the O.P’s were not in dereliction of their duty and as the deceased was negligent in opening the umbrella and came in contact with live part of transformer he sustained electrical shock and as such the O.P’s are not liable to pay any compensation to the complainants.
As against the above said contention the learned counsel for complainants has contended that it is the responsibility of men of O.P’s to maintain the electrical live wires and equipments in such a condition so as to ensure that no one comes into direct contact with such lines or equipments resulting into mishaps and as the transformer near the place of incident was not properly guarded the deceased came into contact with the live part of transformer and sustained electrical shock and as the men of O.P’s are the cause for death of the deceased the complainants are entitled to get compensation as prayed for.
In a decision in (1) (2013) CPJ 159 Ajmer Vidyut Vitran Nigam Limited Vs Parthu and another, 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 mishaps.
In a decision reported in:- 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 11th 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. So long as the voltage of electricity transmitted through the wires is potentially of dangerous 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.
In a decision in AIR 1920 PC 181 between Quebee Raily, Light heat and power company Ltd., Vs Vandry & others Held: That the company supplying the electricity is liable for the damage without proof that they had been negligent. Even the defence that the cable wire 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.
As seen from the principles laid down in the decisions cited supra it is manifest that the O.P’s are under statutory obligation to maintain all the equipments in such a condition so as to ensure that no one comes into contact with such equipments resulting into mishaps. Coming to case on hand as there was heavy wind and gale on the date of incident the deceased who was passing on the road came into contact with live part of transformer and as he sustained electrical shock he died on the spot. Since the men of O.P’s did not erect any fencing or made construction of any protective walls around the transformer the deceased even if it is believed that he was opening an umbrella and due to gale and wind came in contact with the live transformer, the men of respondents are proved to be guilty, for allowing the men and cattle to come into contact with the said electrical transformer and as there is deficiency in service on the part of O.P’s and their men, they are liable to pay compensation to the complainants.
In this case the complainants claimed a sum of Rs.5,00,000/- towards compensation for the demise of the deceased in the above said accident. As per complainants the deceased was hale and healthy and was doing cultivation and was earning Rs.75,000/- per annum and also he was earning Rs.10,000/- per month by selling seasonal produce and was maintaining the family. To substantiate the above said contention they did not adduce any cogent evidence in this regard. Since the deceased was hale and healthy and aged about 45 years he must be doing some work to earn his bread. Hence we deem it fit to accept his annual income at Rs.30,000/-. Out of the same a one third 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. As per Post-Mortem report and Inquest report the deceased was aged about 44 years. Hence the appropriate multiplier is fixed at 15. When the above loss of dependency is multiplied with the appropriate multiplier 15 fixed supra the compensation under the head loss of dependency comes to Rs.3,00,000/-. The same is accordingly awarded as compensation to the petitioners under the head class of dependency. In addition to that a sum of Rs.5,000/- is awarded towards loss of consortium to the 1st complainant and a sum of Rs.5,000/- is awarded for transportation of the dead body from the hospital to the house of complainants and funeral expenses. In all the complainants are entitled to get Rs.3,10,000/- towards damages.
In the result, the complaint is partly allowed directing the O.P’s to pay to the complainants a sum of Rs.3,10,000/- (Rupees Three Lakhs and Ten Thousand Ony) towards damages for the demise of the deceased D.Pentayya, with interest at the rate of 7% per annum from the date of this petition till date of realization. Out of the amount awarded a sum of Rs.1,60,000/- (Rupees One Lakh and Sixty Thousand Only) with accrued interest be paid to the 1st complainant and a sum of Rs.50,000/- (Rupees Fifty Thousand Only) along with accrued interest be paid to each of the petitioners 2 to 4. The O.P’s are further directed to pay a sum of Rs.2,000/- towards costs of the complaint which includes the Advocate fee of Rs.1,000/-. The O.P’s are directed to comply this order within one month from today.
Dictated to the Steno, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 10th day of August, 2015.
MEMBER PRESIDENT
C.C.No.3 / 2015
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant:- For opposite parties:-
PW 1 RW1 & RW2
DOCUMENTS MARKED
For Compainant:-
Ex.A-1 Xerox Copy of the Family members certificate of deceased D.Pentayya.
Ex.A-2 Xerox Copy of the Death Certificate of D.Pentayya.
Ex.A-3 Copy of the FIR in Crime No.276/2014.
Ex.A-4 Post-Mortem of D.Pentayya.
Ex.A-5 Copy of the Inquest Report of D.Pentayya.
For O.P’s:- -Nil-
President
