Karnataka

Bidar

CC/59/2016

Kashinath S/o Kalappa Bidar - Complainant(s)

Versus

The Executive Engineer GESCOM Bidar - Opp.Party(s)

Rajkumar K.

20 Jun 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                                 C.C.No. 59/2016

 

                                                                                                  Date of filing : 17/08/2016

 

                                                                                             Date of disposal : 20/06/2017

 

 

P R E S E N T:-                    (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B.,

                                                                                                       President.

    

                                      (2) Shri. Shankrappa (Halipurgi),

                                                                                          B.A.LL.B.,

                                                                                                Member.

 

                                   

                                                                                                                                               

COMPLAINANT/S:            Kashinath, S/o Kalappa,

                                              Age: 60 years, Occ: Agriculture,

                                              R/o Village Nizampur,

                                          Tq & Dist. Bidar.

 

             

                                          (By Shri. Rajkumar K., Advocate)

 

                                                      VERSUS

 

OPPONENT/S   :-               The Executive Engineer, 

                                              GESCOM, Bidar Division,                                                                    

                                           Bidar.

                                

                                           ( By Shri. Mahesh .S. Patil, Advocate )   

                                         

::   J UD G M E N T  : :

 

By Shri. Jagannath Prasad Udgata, President.

 

                    This is a complaint filed by the above said complainant U/s.12 of the C.P.Act., 1986, against the O.P. The sum total of his allegations are as follows:-

 

 

2.          The complainant is an agriculturist and he was owning one she buffalo.  The complainant for his livelihood and family maintenance  was vending the milk of the she buffalo which  was yielding three to four litres of milk in the morning and evening and the complainant was getting daily income of Rs. 350/- to 450/- excluding the maintenance charges from milk vending of the said she buffalo.  The complainant avers that, on 15/07/2015 at about 17.30 hours, the complainant took his she buffalo for grazing in the field and when it reached near the Kolar Industrial area came into contact of the electric pole.  After touching the electrocuted pole in the field, the she buffalo died on the spot due to electrocution.    Thereafter the complainant informed the incident to the New Town Police Station, Bidar upon which, the police concerned visited the spot and registered the case and conducted the panchanama and also conducted the post mortem.  The Veterinary Doctor of Backchowdi, Bidar had conducted the PME and issued post mortem  report in respect of the dead she buffalo of the complainant.  The Doctor had opined and confirmed that the death  of she buffalo was due to electric shock.   The death of she buffalo of the complainant took place due to the negligence and deficiency of service on the part of the O.P. staff.   The O.P. Company despite being informed earlier  and complained about the said electric pole and that wire was in dangerous condition,  had failed to attend the same, which resulted in    spreading of electric current in the said pole area and causing death of healthy she buffalo of the complainant.  The she buffalo was young and healthy.  It was 8 years old and it was beneficial to the complainant to earn the income.  Due to death of the she buffalo of the complainant he suffered heavy loss and suffered mental agony.  Hence, the complainant filed the complaint before this Forum for claiming for a sum of Rs. 1,00,000/-.

 

 

3.               The O.P. putting up appearances has filed versions.  Therein the O.P. has stated that, the complaint filed by the complainant is totally misconceived both in law and on facts and it is not maintainable.   The complainant has not impleaded the Managing Director of GESCOM who is necessary party and the O.P. is only an officer working under the company.   Since the Managing Director of GESCOM, not imleaded as party to the proceeding, the compliant is bad in the eye of law and it is not maintainable.  The O.P. further stated that under the provision of Indian Electricity Act, it is the special Judge i.e. Additional District and Sessions Judge, Bidar, who is competent and having jurisdiction to deal with the matters concerning GESCOM, and this Forum has got no jurisdiction to entertain the complaint.  The O.P. has denied the contents of the complainant that he is an agriculturist and milk vender by profession and owned she buffalo and getting daily income of Rs. 350/- to 450/- excluding maintenance from the she buffalo and she buffalo died due to electrocution.  The O.P. has denied that the she buffalo had died due to electrocution and the incident reported to the police New Town by the complainant.  If the complainant had intimated the concerned  police station,  the Police concerned could have intimated the O.P about the incident but the concerned police have not intimated the incident to the O.P.  The complainant in collusion with the Police and Veterinary Doctor has filed this false complaint to claim the compensation form the O.P.   The complainant is not the consumer of O.P. Company which is mandatory for entertaining the complaint under the Provision of C.P.Act, unless it is proved and established that the complainant is consumer, no complaint could be entertained.  Hence since the complainant is not consumer, any deficiency in service would not accure to the complainant to file the complaint.   The contents of para no. 3 to 5 and 8 of the complaint is denied by the O.P. regarding the death of the she buffalo of the complainant.  The O.P. company has not admitted the correctness of the documents produced and relied upon by the complainant and therefore they need to be proved strictly.  The complainant is not a consumer as defined under the Act.  He has no locus standi to file the complaint and even this Forum has got no jurisdiction to decide such complaint.  The only option for the complainant is to approach the competent civil Court and claim damages if he so desire.  Further it is not shown by the complainant that there was any deficiency or negligence in service on the part of the O.P. company.  Hence the complaint may be dismissed with costs.

 

 4.         Considering the rival contentions of the parties, the following points arise for our consideration:-

 

1. Does the complainant prove that, there has been a deficiency of service in the part of the Opponent?

 

2. What order ?

 

5.           Our answers to the points stated above are as follows:-

 

1. In the affirmative, partially.

               2. As per the final order, for the following:

 

 

:: REASONS ::

6. Point no.1:   In the instant case, the complainant himself has avered in the compliant that, he was aware of the fact of electricity running through the pole, leaking from the live wire and he had brought the same to the notice of the O.P. GESCOM.  It is further his case that, in spite of such intimation, the O.P. never attended to the compliant.  That being so, while grazing the dumb animal in the field, it was incumbent upon him to be vigilante and prevent the she-buffalo to go near the pole itself.   He has miserably failed to do so.  Further, it is not made clear as to how at all current could pass through the R.C.C. Pole?    However, the narrations in Ex.P.1 explains that, at the relevant time, live wire was dislodged from the pole and had fallen on the ground, which was the cause of electrical shock to the she buffalo under reference resulting it’s death.  The post mortem report at Ex.P.4 supports the cause of death due to electrocution and the same is supported by the spot panchanama at Ex.P.2 and report of police to the Tahasildar and Executive Magiatrate, Bidar as Ex.P.5.

 

7.                 Now, as discussed earlier the fault cannot be attributed to the electricity supply company in totality since the complainant fully knowing the perils ahead had allowed the buffalo to go near the electricity pole and hence we assess the contributory negligence of the complainant @ 50 %, though the GESCOM is liable for deficiency of service.  In terms of the Judgment of the Hon’ble National Commission  reported in III (2010) CPJ 198 ( NC) DHBVNL V/s VIDHYADEVI in which it has been held that,

 

“ Petitioner transmits energy, has duty to ensure safety and security of persons, animals and other objects”.

 

The deficiency of service of the electricity company is apparent.

 

 Hence we answr point No.1 accordingly.

 

 

8. Point No.2:-  Attempting to arrive at a just conclusion assessing the complainant’s loss in terms of money we are intrigued with a hobsons choice.    While the complainant before the police in Ex.P.1 indicates the value of the dead bovine as Rs.1,00,000/- the complainant has not led any evidence to that effect.  The veterinarian at Ex.P.4 has also not shown the approximate value of the dead buffalo.  It would be fallacious in our opinion to accept the price quoted by the complainant blindly.  However, in Ex.P.3 and P.5 an independent authority i.e. police, has estimated the value of the dead animal at Rs.50,000/-, which is belief inspiring.  This yardstick has to be   the  basis of the estimate and owing to the contributory negligence of the complainant, the compensation has to be proportionately reduced and hence we proceed to pass the following:-

 

:: ORDER ::

 

 

  The complaint is allowed in part.

1.  The O.P. to reimburse a sumof Rs. 25,000/- to the complainant towards compensation owing to the death of the later’s animal.
2. Owing to the peculiar nature of the case, there would be no order as to further compensation, interest or costs.

              c)  Four weeks time granted to comply this order.

( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 20^th day of  June-2017 )

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                            

 

 

Documents produced by the complainant

1. Ex.P.1- Letter addressed to GESCOM, by the Complainant.  
2. Ex.P.2- F.I.R.  
3. Ex.P.3- Requisition of Police to Veterinarian.
4. Ex.P.4- Post-mortem report  
5. Ex.P.5- Intimation of New Town P.S. to Tahsildar cum Executive Magistrate,Bidar.

              

 

 Documents produced by the Opponent/s

 

                -Nil-

 

Sri. Shankrappa H.,                                             Sri. Jagannath Prasad,                                  

       Member.                                                                      President.

 

           

mv.