Consumer Complaint No.61 of 2016
Date of filing: 06.4.2016 Date of disposal: 13.01.2017
Complainant: Ujjwal Konar, S/o. Late Mohadeb Konar, resident of Village: Arra, Post Office: Amrun Bazar, Police Station: Bhatar, District: Burdwan, PIN – 713 125.
-V E R S U S-
Opposite Party: 1. Station Manager, Bhatar Group Electric Supply of West Bengal State Electricity Distribution Company Limited, having its office at Vill., PO. & PS: Bhatar, District: Burdwan, PIN – 713 125.
2. Divisional Engineer of West Bengal State Electricity Distribution Company Limited, Burdwan Division, having his office address at Power House Para, PO., PS. & District: Burdwan, PIN – 713 101.
3. Chairman of West Bengal State Electricity Distribution Company Limited, having his office at Bidyut Bhavan, Salt Lake, Kolkata – 700 091.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Appeared for the Complainant: Ld. Advocate, Santi Ranjan Hazra.
Appeared for the Opposite Party (s): Ld. Advocate, Biswanath Nag.
J U D G E M E N T
This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as due to lack of care, caution and deficient service of the OPs he had lost his one cow out of three.
The brief fact of the case of the Complainant is that being a marginal farmer he is depending on cattle farming and he had three cows including one calf. The OPs-WBSEDCL is a statutory body who engage in transmit, distribute and trading in electricity. On 20.06.2015 three cows of the Complainant went for grazing in the field. At that time out of three cows one cow, white in colour, died due to electrocution. The deceased cow at that point of time was pregnant for three months. The incident of death of the said cow due to electrocution was caused from the electrical wire which was installed to provide connection to a submersible line and from where the farmers of the surrounding area including the Complainant used to get water for the purpose of irrigation and cultivation of the land subject to making necessary payment. The service wire in respect of the said connection where the cow of the Complainant died was not properly installed and reasonable standard for safety was not maintained as per specification as contemplated in the Section 53 of the Indian Electricity Act with a view to reduce the risk of personal injury or damage of property. The Complainant lodged a general diary with Bhatar Police Station and obtained photography of the dead cow. Post mortem was done at the Block Animal Health Centre and from the report it is evident that the death was caused due to severe electric shock and multi-organ failure. The Complainant approached to the office of the Block Live Stock Development Officer at Bhatar and prayed for arranging compensation. The Office Memo no- 187 dated 02.07.2015 recommended for payment of compensation in favour of the Complainant by requesting the Electricity Office to compensate the Complainant. It is evident that the death of the cow of the Complainant has been caused due to gross negligence of the WBSEDCL authority and the same accident could be avoided provided the electricity authority would have taken reasonable degree of care. The market value of the said cow as assessed, on the date of death was not less than Rs.15,000=00. The Complainant being a poor farmer has been suffering huge monetary loss due to such accidental death of the cow. So he is entitled to get compensation from the OPs. As his grievance had not been redressed by the OPs, having no alternative he has filed this complaint before this ld. Forum praying for compensation. It is mentioned by the Complainant that he went at the Office of the OP-1 on several occasions but they did not pay any heed to his request and illegally did not take any step to pay his legitimate claim towards compensation. The Complainant sent a legal notice on 05.10.2016 upon the OP-1 requesting to pay a sum of Rs. 15,000=00 towards compensation along with interest on the said amount from the date of submitting application till the date of payment along with additional Rs.10,000=00 towards harassment. It was also requested by him through the said letter to make those payments within 15 days from the date of receipt of notice, but the OP-1 did not take any proper step to mitigate the grievance of the Complainant. On 25.02.1016 when the Complainant went further at the OP-1 requesting for making payment of compensation, the OP-1 had flatly refused to pay any amount. By filing this complaint the Complainant has prayed for making direction upon the OPs to pay a sum of Rs. 15,000=00 as compensation, Rs. 10,000=00 towards mental agony and litigation cost of Rs. 6,000=00 to him.
The petition of complaint have been contested by the OPs by filing conjoint written version stating that in view of the provision of the Section 161(1) & (2) of the Electricity Act, 2003, (1) that if any accident occurs in connection with the generation, transmission, distribution supply of use of electricity in or in connection with, any part of the electric lines or electrical plant of any person and accident results or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person shall give notice of the occurrence and of any such loss or injury actually caused by the accident, in such form and within such time as may be prescribed, to the Electrical Inspector or such other person as aforesaid and to such other authorities as the Appropriate Government may be general or special order direct . (2) The Appropriate Government may, if it thinks fit, require any Electrical Inspector, or any other person appointed by it in this behalf, to enquire and report (a) as to the cause of any accident affecting the safety of the public which may have been occasioned by or in connection with, the generation, transmission, distribution supply or use of electricity, or (b) as to the manner in, and extend to, which the provisions of this Act or Rules and Regulations made thereunder or of any license, so far as those provisions affect the safety of any person have been complied with. But in the instant complaint no intimation was given to the OPs regarding the alleged accident and the Complainant lodged a complaint on 06.08.2015 before the Block Live Stock Development Officer, Bhatar and the copy of the same was received by the office of the OP-1 on 06.08.2015. No complaint was registered on the date of death of the cow i.e. on 20.06.2015 or 21.06.2015. But after receipt of the complaint on 06.08.2015 an inspection was conducted on the said date, but no abnormality was observed in the spot of death. The OPs have contended that the Complainant is not at all a consumer in respect of death of his cow due to electrocution and the OPs being not service providers in the instant complaint, the complaint cannot be tried by this Ld. Forum as it is not a consumer dispute. The OPs have further mentioned that in view of the provision of the Electricity Act, Rules and Regulations if there is any dispute regarding payment of damages due to electrocution, if any, that should be ventilated before the Regulatory Commission or before the authority or person empowered by the said Act. So as there is alternative and appropriate Forum for redressal of the grievance, this Ld. Forum has no authority to adjudicate this complaint. Prayer is made by the OPs for dismissal of the complaint with cost.
During filing of this complaint the Complainant has filed several documents in support of his contention by way of firisty. The OPs have filed written notes of argument with a copy to the Complainant. The OPs have filed the photocopy of the Section 161 of the Electricity Act, 2003 and the Ld. Counsel for the Complainant has placed his reliance on the judgment passed by the Hon’ble SCDRC, West Bengal in the S.C. case no-FA/621/2010, dated 25.05.2012 in the case of The Station Manager, Panskura Electric Group Supply & Another vs. Smt. Nirmala Maity. We have carefully perused the record; papers, documents, Ruling submitted by the Complainant and the written notes of argument and the relevant Section of the Electricity Act filed by the OPs and heard argument at length advanced by the Ld. Counsel for the parties. It is seen by us that there are some admitted facts in the case in hand i.e. Complainant’s cow died due to electrocution on 20.06.2015 while it was grazing in the open field, electrocution caused from the electrical wire which was installed to provide connection to a submersible line, through the said line the farmers of the surrounding area including the Complainant used to get water for the purpose of irrigation and cultivation of the land subject to making necessary payment, after death of the cow the Complainant lodged a general diary with Bhatar Police Station, obtained photography of the dead cow, post mortem was done at the Block Animal Health Centre, post mortem report reveals that the death was caused due to severe electric shock and multi-organ failure, the Complainant approached to the office of the Block Live Stock Development Officer at Bhatar and prayed for arranging compensation, the officer of the concerned Department by issuing a letter being Memo no- 187 dated 02.07.2015 requested the Electricity Officer and recommended for payment of compensation in favour of the Complainant towards compensation, the market value of the said cow was assessed by the concerned Department for Rs.15,000/-, on the date of death, several written correspondences were made by the Complainant with the OPs, legal notice was issued by the Complainant, but to no effect. The allegation of the Complainant is that due to lack of care and caution of the OPs his cow died due to electrocution and for this reason he is very much entitled to get compensation from the OPs. According to the Complainant as his grievance had not been redressed by the OPs, hence by filing this complaint the Complainant has prayed for certain reliefs. On the other hand the contention of the OPs is that the Complainant’s case does not come within the ambit of the Consumer Forum and the complaint being not a consumer complaint, cannot be tried by the Ld. Forum. Further case of the OPs is that as there is alternative machinery in the Electricity Act for redressal of his grievance, the Complainant is under the obligation to approach before the appropriate authority as per the said Act. Moreover the Complainant did not bother to intimate the accident of his cow due to electrocution to their Department in writing, so that they could not take any initiative. According to the OPs the complaint being devoid of any merit is liable to be dismissed with cost.
At the very outset we are to adjudicate as to whether this complaint is maintainable before this Ld. Forum as the OPs have taken the plea that as the alternative machinery has been provided in the Electricity Act for the consumers, they are under obligation to approach before the appropriate authority to settle their disputes and hence in view of the specific provisions in the said Act, the Consumer Forum has no authority to try with this complaint. In this respect we are to say that in view of the Section 3 of the Consumer Protection Act, 1986 this complaint is maintainable before this Ld. Forum as the Consumer forum had been established for providing speedy remedy of the grievances of the consumers. In the Section 3 of the Consumer Protection Act, 1986 it is mentioned that ‘the provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.’ Therefore in view of the said Section the case is maintainable before the Consumer Forum/Commission. Moreover in the Electricity Act there is no mentioning that the Consumers should not approach before the Consumer Forum for redressal of their grievance. So as there is no barring provision in the said Act, hence in our view the consumers are at liberty to approach either before the consumer Forum or may take shelter under the provisions of the Electricity Act.
The OPs have taken the plea that the Complainant cannot be termed as consumer. In this regard we are to say that admittedly the cow of the Complainant died due to electrocution while it got touch the live wire and it is further an admitted fact that through that wire energy was supplying to the submersible pump from which the farmers of the locality got service for provide water at their agricultural land and this Complainant is one of those farmers. Therefore in this connection the Complainant is a consumer of the OPs in respect of the submersible connection who used to pay electricity bills to the OPs regularly. The cow is the beneficiary of the Complainant and being the owner of the deceased cow the Complainant has filed this complaint. Not only that in case of not a consumer of the OPs, for the sake of argument, in this complaint the Complainant shall be a consumer in view of the judgment passed by the Hon’ble National Commission, reported in IV (2008) CPJ 139 (NC), wherein it has been held that the villagers pay taxes to the village Panchayats and power consumption charges to the electricity company, are consumers and the Complainant being beneficiary to the service provided by the Company entitled to compensation. In the said judgment it has been further observed that the villagers have right for payment of taxes and seeking facilities such as street lights, drainage etc. In view of the abovementioned judgment we are of the view that the deceased cow of the Complainant is beneficiary and being the owner of the cow the Complainant is a consumer and moreover where the Complainant is a direct consumer of the OPs, such plea as raised by the OPs have no legs to stand upon.
We have noticed that the OPs nowhere have denied that the death was not due to electrocution and moreover the post mortem report done by the appropriate authority shows that due to the said reason the Complainant’s cow died while it was grazing in the open field. The contention of the Complainant is that due to lack of care and caution of the OPs he had lost his cow because the electric line and wires in the public places are maintained by the local authorities and in case of any defect or irregularities, the WBSEDCL is only liable to remove the said defects. The Ld. Counsel for the Complainant has mentioned that the OPs have failed to abide by the specific provision of the Section 53 of the Electricity Act, 2003 wherein it is enumerated-
53. Provision relating to the safety and electric supply:-
Authority may, in consultation with the State Government, specify suitable measures for-
- Protecting the public (including the persons engaged in the generation, transmission or distribution or trading) from dangers arising from the generation, transmission or distribution or trading of electricity, or use of electricity supplied or installation, maintenance or use of any electric line or electric plant.
From the aforementioned Section it is revealed that the Authority (herein WBSEDCL) is liable to maintain the electric line or plant. Therefore in view of the above mentioned Section the OPs are duty bound to maintain the electric line and plant, but as the OPs did not bother to inspect the electric line at the specified place, due to such negligence of the OPs the cow of the Complainant died due to electrocution. Therefore the OPs cannot avoid their responsibility which has been provided as per the Electricity Act, 2003. Moreover in the instant complaint the OPs did not mention any contrary pleading or adduce any contrary evidence that they are not negligent and the cow of the Complainant has not been died due to electrocution.
In view of such stipulation it can be said that in the instant complaint the responsibility is casted upon the WBSEDCL to maintain their lines and wires and to compensate the sufferer. But in the case in hand after the death of the cow the Complainant on several occasions requested the WBSEDCL to compensate him by making payment of the prevalent cost of the cow for Rs.15,000/- as assessed by the Block Livestock Development Officer, Bhata, Burdwan, Government of West Bengal, but no effect and under compelling circumstances the Complainant has to approach before the Court of Law. In our considered view such inaction on the part of the OPs suffers from deficiency in service.
In the instant complaint no case has been made out by the OPs that appropriate precautions were taken in respect of the wires in question and the said line and wire was duly inspected and maintained by the personnel of the OPs on regular basis. Where a live wire is lying on the road/path/open filed and the same did not come within the notice of the WBSEDCL, it cannot be happened. There are salaried employees of WBSEDCL whose duty is to inspect and check the electric line, wire, plant etc situated in the public places, roads, filed etc. But in the case in hand as the said personnel/employees did not perform their duties rightly, and due to their negligence and deficiency in service the cow of the Complainant had to welcome the death.
The OPs have taken the point that the Complainant did not inform the OPs about the death of the cow as per the Section 161 of the Electricity Act, 2003 to the authorized person. The Section 161 reveals as under-
161. Notice of accidents and inquiries-
(1) If any accident occurs in connection with the generation, transmission, distribution supply or use of electricity in or in connection with, any part of the electric lines or electrical plant of any person and the accident results or is likely to have resulted in loss of human or animal life or in any injury to a human being or an animal, such person shall give notice of the occurrence and of any such loss or injury actually caused by the accident, in such form and with such time as may be prescribed, to the Electrical Inspector or such person as aforesaid and to such other authorities as the Appropriate Government may by general or special order, direct.
In connection with the aforementioned plea of the OPs we are to say that on 06.08.2015 the Complainant submitted an application before the Block Livestock Development Officer, Bhatar, Burdwan intimating the entire incident of death of his cow and prayed for legitimate compensation. The copy of the said letter was also given to the WBSEDCL, which was received by the concerned Office on 06.08.2015 and accordingly an inspection was made by the officials of the WBSEDCL, but thereafter no step was taken either for making payment of any amount towards compensation as sought for or to mitigate the grievance of the Complainant in any manner. On the whole the Complainant was never told by the officials of the WBSEDCL that intimation of death should be on proper format and to the appropriate person. Without saying so at that point of time, now in the written version the OPs have taken the plea that the Section 161 of the Electricity Act, 2003 was not followed by the Complainant. As the information of the death incident of the questioned cow was within the knowledge of the WBSEDCL, hence we are of the considered opinion that inspite of knowing the same, the OPs have failed to discharge their liabilities as per their own Act, which of course denotes the deficiency in service and lack of care on their part.
In the judgment passed by the Hon’ble SCDRC, West Bengal, reliance was placed on another judgment passed by the Hon’ble NCDRC, reported in (2006) II CPJ 245 (NC), wherein same proposition has been held that due to electrocution or damage of plantation due to electrocution, the Board/Company cannot avoid its liability to compensate the loss and damage or the sufferer.
Having regard to the abovementioned judgments we are of the view that the OPs in the instant case cannot take shelter under the Section 161 of the Electricity Act, 2003 that as the intimation was not given to the appropriate person of the WBSEDCL, the Complainant is not entitled to get his claim.
As the Block Livestock Development Officer had already assessed the prevalent price of the cow for Rs.15,000/- and the OPs did not challenge the same, hence the OPs are under obligation to make payment of Rs.15,000/- to the Complainant towards the cost of the deceased cow as compensation. Admittedly as the grievance of the Complainant had not been redressed by the OPs before filing of this complaint inspite of written correspondences with them by the Complainant on several occasions, hence such action of the OPs proves their deficient service for which the Complainant is entitled to get compensation and as by filing this complaint the Complainant had to incur some expenses, in our opinion he is also entitled to get litigation cost from the OPs.
Going by the foregoing discussion hence it is ordered that the complaint is allowed on contest with cost. The OPs shall pay a sum of Rs.15,000/- to the Complainant towards the cost of the deceased cow within 45 days from the date of passing this judgment, in default the said amount shall carry interest @8% p.a. for the default period. The OPs are further directed to pay a sum of Rs.2,000/- as compensation due to harassment and litigation cost of Rs.1000/- to the Complainant within a period of 45 days from the date of passing of this judgment, in default the Complainant will be at liberty to put the entire order into execution as per provisions of law.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
