Tripura

StateCommission

A/40/2021

Md. Jahid Khan - Complainant(s)

Versus

Tripura State Electricity Corporation Ltd. - Opp.Party(s)

Mr. Diptanu Debnath

23 May 2022

ORDER

 

TRIPURA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AGARTALA : WEST TRIPURA

 

CASE NO. A.40 OF 2021

 

Md. Jahid Khan,

S/o Jahirul Islam Khan,

Resident of Durgapur, PS-Sonamura,

District-Sepahijala, Tripura.

.....Appellant-complainant

Vrs.

 

1.Tripura State Electricity Corporation Ltd.

Represented by its Managing Director, registered Office at

Bidyut Bhaban, Banamalipur, P.O. Agartala, PS. East Agartala,

District-West Tripura, PIN 799001.

 

2. Sonamura Electrical Sub-Division,

Represented by its Senior Manager,

Office at Sonamura, PO & PS Sonamura,

District-Sepahijala Tripura, PIN-799131.

....Respondent-opposite parties

 

BEFORE

 

HON’BLE MR. JUSTICE ARINDAM LODH

PRESIDENT,

DR. CHANDA BHATTACHARYYA

SRI KAMALENDU BIKASH DAS

MEMBERS

 

PRESENT

For the Appellant(s)                  :         Mr. Diptanu Debnath, Advocate.

 

For the Respondent(s)              :         Mr. Nepal Majumder, Advocate.

 

Date of hearing & date of delivery of judgment & Order: 23.05.2022

 

Whether fit for reporting           : Yes

JUDGMENT & ORDER (ORAL)

 

                   Heard Mr. D. Debnath, learned counsel appearing for the complainant-appellant [here-in-after referred to as complainant]. Also heard Mr. N. Majumder, learned counsel appearing for the Tripura State Electricity Corporation Ltd. [for short, TSECL].

 

2.                Shorn of unnecessary details, the facts relevant to decide the instant appeal are narrated here-in-below:

                   The complainant lodged a complaint to the Sonamura Electrical Sub-Division on 09.05.2019 at about 3:30 pm stating inter alia that the electric connection supplied to his house from a post near to his house had been severed by a vehicle. It is an admitted position that the officials of the respondents had addressed the complaint on the next date i.e. on 10.05.2019. During that intervening period from 4:00 pm and the next day, a fire incident was caused, according to the complainant, due to short circuit. The Fire Service people were called and they submitted a report observing that the house was electrocuted due to short circuit. The grievance of the complainant, is that, had his complaint been addressed at the moment when he lodged the complaint, the accident would have been avoided. Since the complainant had to incur huge loss of Rs.7,00,000/-, he demanded the said amount by filing a complaint before the learned District Consumer Disputes Redressal Commission, West Tripura, Agartala as compensation.

 

3.                The respondent-TSECL appeared and contested the suit after receipt of the copy of the complaint. During the course of trial both the parties had adduced their respective evidences and on closure of recording evidences, the learned District Consumer Disputes Redressal Commission dismissed the suit of the complainant.

 

4.                Feeling aggrieved, and dissatisfied with the said judgment dated 12.11.2021, the complainant has preferred the instant appeal before this Commission.

         

5.                Mr. Debnath, learned counsel appearing for the complainant has submitted that the learned District Consumer Disputes Redressal Commission rejected the claim of the complainant on the ground that the Photostat copy of the report as submitted by Fire Service Department had not been proved in accordance with the provisions of the Evidence Act. Learned counsel for the complainant has tried to persuade this Commission that the disputes before the District Consumer Disputes Redressal Commission are summary trials and the strict rules of Evidence Act may not be applicable in deciding the disputes between the parties. Mr. Debnath, learned counsel in support of his submission has placed his reliance upon a decision of this Commission rendered in Appeal No.9 of 2015 [Smt. Pranati Ghosh & 2 Ors. Vrs. Life Insurance Corporation of India Ltd., Agartala Branch & Anr.].  In the case of Pranati Ghosh (supra), this Commission has re-stated the principles enunciated in the Case No. CIMA 334 of 1997 [Indian Airlines Corporation Vrs. Farooq Ahamed Jan] decided on 27^th September, 2000 by the High Court of Jammu & Kashmir. We also are of the opinion that since it is a summary proceeding under the Consumer Protection Act, it would not be governed by the strict provisions of the Indian Evidence Act.

 

6.                In view of above, we are unable to agree with the findings of the learned District Consumer Disputes Redressal Commission, West Tripura District, Agartala that to prove a document, the party has to produce the original copy and has to comply the relevant provisions of the Indian Evidence Act. More so, the opposite parties did not raise any objection when the document was introduced as evidence before the learned District Commission. It is the settled proposition of law that objection has to be raised at the very first instance during trial, when a party intending to produce the document as evidence.

 

7.                Now, coming to the next point as submitted by learned counsel appearing for the respondent-TSECL that since the electric line was totally disconnected, there was no question of any short circuit in the house of the complainant out of that snapping of electricity connection.

 

8.                We have given our thoughtful considerations to the said submissions of the learned counsel for the respondent-TSECL. It appears from the record and from the evidence of OPW-1, Samir Das, Sr. Manager, Sonamura Electrical Sub-Division who deposed before the District Commission that on 09.05.2019, the complainant made a written entry to the complaint register in respect of the fact that –“the electric line of the house of Jahirul Islam Khan at Durgapur Dakshin Para has been disconnected from the electric main post. Today at noon time a vehicle engaged for construction of fencing of iron net (Kata tar) during passing/crossing road snapped/torned (sic) the electric wire and disconnected the electric line. So, it is requested the electric line of our house be drawn.”

 

9.                Indubitably, the moment the complaint was lodged to the Electric Department, the same was not addressed and most unfortunately, the TSECL addressed the said complaint on the next day.

 

10.              In our opinion, the conduct of the TSECL at Sonamura Electrical Sub-Division is unwarranted and it is tantamount to serious negligence on the part of the Electric Department. It is true that the respondent had tried to create some doubt about the exact reason of short circuit. In this regard, we find that the report of the Fire Service authority clearly demonstrates that the accident was caused due to short circuit. Whether the electricity connection was entirely severed or not, that could be brought to light if the Electricity Department would have visited the place of occurrence the moment when it was reported by the complainant.

 

11.              To appreciate the magnitude of such failure to step into action at that moment, and further, failure to appreciate the magnitude of such severance of electricity connection that it may endanger the life of the passersby and the nearly residents as well, the electricity department including its officers and staff exhibited sheer negligence in performance of their duties and responsibilities towards the consumers. In the circumstance, actual cause of the accident in the house of the complainant is whether short circuit was caused out of electric line connecting the house of the complainant is not relevant in determining the civil liability. In this situation, the doctrine res ipsa loquitur will come into play.

12.              Under the doctrine of res ipsa loquitur only question relevant to be determined whether electric wire connecting the house of the complainant is severed from the electric pole and such mishap is within the knowledge of the electric department, that is, the opposite party-respondents.

                    

13.              Hon’ble Supreme Court in the case of Sanjay Gupta & Ors. Vrs. State of Uttar Pradesh, reported in 2022 OnLine SC 443, while dealing with the doctrine of res ipsa loquitor, taking notes of its earlier judgments, held in paragraphs 53, 54 and 55 that—

           “53. In Shyam Sunder v. State of Rajasthan (1974) 1 SCC 690, this Court observed that the maxim res ipsa loquitor is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering the damages, if proper inference to be drawn from the circumstances which are known is that it was caused by the negligence of the defendant. It was observed as thus:

“9. The main point for consideration in this appeal is, whether the fact that the truck caught fire is evidence of negligence on the part of the driver in the course of his employment. The maxim res ipsa loquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering the damages, if the proper inference to be drawn from the circumstances which are known is that it was caused by the negligence of the defendant. The fact of the accident may, sometimes, constitute evidence of negligence and then the maxim res ipsa loquitur applies.

10. The maxim is stated in its classic form by Erle, C.J. : [Scott v. London & St. Katherine Docks, (1865) 3 H&C 596, 601]

“… where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

The maxim does not embody any rule of substantive law nor a rule of evidence. It is perhaps not a rule of any kind but simply the caption to an argument on the evidence. Lord Shaw remarked that if the phrase had not been in Latin, nobody would have called it a principle [Ballard v. North British Railway Co., 1923 SC (HL) 43]. The maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendant responsible for it even when the facts bearing on these matters are at the outset unknown to him and often within the knowledge of the defendant. But though the parties' relative access to evidence is an influential factor, it is not controlling. Thus, the fact that the defendant is as much at a loss to explain the accident or himself died in it, does not preclude an adverse inference against him, if the odds otherwise point to his negligence (see John G. Fleming, The Law of Torts, 4th Edn., p. 264). The mere happening of the accident may be more consistent with the negligence on the part of the defendant than with other causes. The maxim is based as commonsense and its purpose is to do justice when the facts bearing on causation and on the care exercised by defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant (see Barkway v. S. Wales Transo [(1950) 1 All ER 392, 399]).

11. The plaintiff merely proves a result, not any particular act or omission producing the result. If the result, in the circumstances in which he proves it, makes it more probable than not that it was caused by the negligence of the defendants, the doctrine of res ipsa loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability.”

54. Further, this Court in Pushpabai Purshottam Udeshi v. Ranjit Ginning & Pressing Co. Pvt. Ltd. (1977) 2 SCC 745 held that where the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant, such hardship is sought to be avoided by applying the principle of res ipsa loquitor. It was observed thus:

“6. The normal rule is that it is for the plaintiff to prove negligence but as in some cases considerable hardship is caused to the plaintiff as the true cause of the accident is not known to him but is solely within the knowledge of the defendant who caused it, the plaintiff can prove the accident but cannot prove how it happened to establish negligence on the part of the defendant. This hardship is sought to be avoided by applying the principle of res ipsa loquitur. The general purport of the words res ipsa loquitur is that the accident “speaks for itself’ or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Salmond on the Law of Torts (15th Edn.) at p. 306 states:“The maxim res ipsa loquitur applies whenever it is so improbable that such an accident would have happened without the negligence of the defendant that a reasonable jury could find without further evidence that it was so caused”. In Halsbury's Laws of England, 3rd Edn., Vol. 28, at p. 77, the position is stated thus:“An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference arising from them is that the injury complained of was caused by the defendant's negligence, or where the event charged a; negligence ‘tells it own story’ of negligence on the part of the defendant, the story so told being clear and unambiguous”. Where the maxim is applied the burden is on the defendant to show either that in fact he was not negligent or that the accident might more probably have happened in a manner which did not connote negligence on his part.”

55. The said aspect of res ipsa loquitor has also been commented upon by the Court Commissioner holding the Organizers and the State liable to apportion the liability. Thus, we are of the opinion that the report of the one-man Commission is not suffering from any infirmity so as to absolve the Organizers from their responsibility of organizing the exhibition.”

                  

14.              In the case in hand, it is the specific case of the complainant that had the electric department that is, the respondents been showed due diligence and vigilant to address the complaint lodged by the appellant with the respondent no.2, then the accident could be avoided. The respondents have taken the plea that it was not out of the accident that caused damage to the electric pole of the department. But, fact remains that after the said accident the house of the complainant got fired. Here, the accident qua the negligence thereof ‘tells its own story’ of the negligence on the part of the respondents and hence, the doctrine of res ipsa loquitor will come into play.

 

15.              In M.C. Mehta Vrs. Union of India, reported in (1987) 1 SCC 395 Hon’ble apex court has categorically held that -Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm is caused on anyone on account of the accident in the operation of such activity, the enterprise is strictly and absolutely liable to compensate those who are affected by the accident; such liability under the rule in Rylands v,. Fletcher (1868) 3HL 330.

 

16.              Bearing in mind the aforesaid principles qua the above analysis on both legal and factual aspects, we hold that the complainant has successfully made out a case where negligence on the part of the TSECL becomes apparent on the face of the record.

 

17.              Having viewed thus, we set aside the judgment passed by the learned District Consumer Disputes Redressal Commission, West Tripura, Agartala and allow this appeal. Accordingly, we award a sum of Rs.1,00,000/- (Rupees one lakh) to the complainant as compensation for the loss the appellant-complainant has sustained and a further sum of Rs.50,000/- (Rupees fifty thousand) for mental agony and harassment he suffered due to negligence of the respondent-TSECL.

 

18.              The respondent-TSECL is directed to pay the total awarded compensation to the complainant to the tune of Rs.1,50,000/- (Rupees one lakh fifty thousand) along with interest @ 7% per annum within a period of two months from today. It is made clear that if the respondent-TSECL fails to pay the awarded amount of compensation as stated above, they shall be liable to pay interest @ 12% per annum till such payment.

                   With the aforesaid directions, the instant appeal stands allowed and disposed.

Supply a copy of the judgment to the learned counsel of the respondent-TSECL free of cost.