PER: HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

          The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of complainant to impeach the final order/ Judgment dated 6.8.2018 passed by the District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur (in short, ‘Ld. District Forum’) in Consumer complaint No. 29 of 2017 whereby the complaint lodged by the appellant under Section 12 of the Act was dismissed on contest without any order as to costs.

          The appellant herein being complainant lodged the complaint before the Ld. District Forum stating that on 31.7.2015 her husband Mrityunjay Khutia was going to wholesale market to fetch fish as per his daily routine and just after going a  few yards, the high tension wire of electricity suddenly fell down over him resulting his death instantly. The complaint has stated that at the relevant time her husband was earning Rs. 400/-per day. Immediately, she reported the matter to the local office at Kakdwip, who in turn through Divisional Manger Kakdwip referred the higher authority but it yielded no response. Hence, the appellant approached the Ld. District Forum with prayer for following reliefs; viz- a) a direction upon the Opposite Parties to pay Rs. 6,00,000/- towards the loss of income; b) compensation of Rs. 3,00,000/- for loss and agony; c) litigation cost of Rs. 15,000/- etc.

          The Respondents /Opposite Parties by filing a written version have stated that the complainants is not a consumer and the Opposite Parties are not service provider of the complainant. It has been specifically stated by the Opposite Parties that Mrityunjay Khutia, since deceased who happened to be the husband of the complainant met the accidental death due to electrocution on 31.7.2015. He was an employee of a local cable operator and was doing the repairing job. On the fateful day at about 11.30 AM somehow while he was doing work came in touch or hold the cable wire which was already being electrified and he met the fatal accident.

          After assessing the materials on record, the Ld. District Forum by the impugned order dismissed the complaint, which prompted the complaint to come up in this commission with the instant appeal.

          Mr. Debesh Halder, Ld. Advocate for the appellant has submitted that the Ld. District Forum has failed to appreciate that as per Section 2 (1)(d) of the Act, the complainant is a ‘Consumer’ when she paid the amount to the Electricity Board   (Aalor Avikar) through the local Panchayat. He has further submitted that as per provisions of Section 67  of the electricity Act, 2003 and rule 29 of the Electricity Rules, 2005 the respondent No. 1 is bound to pay compensation to the complainant. Therefore, when the Ld. Advocate passed the order not in accordance with the provisions of law, the impugned order should be set aside. In support of his submission, Ld. Advocate for the appellant has drawn our attention to two decisions of the Hon’ble Supreme Court reported in (2002) 2 SCC 162 ( Madhya Pradesh Electricity Board –vs- Shail Kumari and Others) and (2017) 3 SCC 115 (State of Himachal Pradesh –vs- Naval Kumar allies Rohit Kumar). Ld. Advocate for the appellant has also invited our attention to a decision of Hon’ble National Commission reported in (i) 2015 CPJ 195 (A.P Transco and others –vs- Bhimeswara Swamy and others).

          Per contra, Mr. Subhendu Das, Ld. Advocate for the respondent supporting the impugned judgement/ final order has contended that the Ld. District Forum has rightly observed that no relationship between the parties as ‘consumer’ and service provider exists and as such the impugned order should not be interfered with.

          We have given due consideration to the submission made by the Ld. Advocates appearing for the parties and seen the materials on record.

          Undisputedly, due to electrocution the husband of the complainant Mrityunjay Khutia (victim), passed away on 31.7.2015 at 11:30 A.M. The post-mortem report speaks that the victim sustained following injuries-  (1) one electrical wound of entry 0.5” by 1” anterior aspect as left thumb, ashy grey in colour, slightly raised above surface with least zone of vital reactions; (2)   one electrical wound of exit 0.5” by 0.5” over anterior portion of sole of left foot, raised above the surface with least zone of vital reactions. No other external and internal injury could be detected even after careful dissection and examination under hand lens. The Autopsy Surgeon has opined that the death of the victim was due to electrocution, as noted above, ante mortem in nature and further opinion on receipt of chemical examiner’s report.

          The appellant in the petition of complaint has spell out that on the fateful day  while the victim/ deceased was going to wholesale to fetch fish, a high tension wire hanging over through which electricity passes to the residence of the complainant suddenly fell down resulting to instant death of the victim.

          The material on record speaks that over the matter an enquiry was done by the one Mr. P Bhattacharjee, Chairman and Regional Manager of West Bengal State Electricity Distribution Company Limited ( WBSEDCL) and Mr. K Das, Member Secretary and Assistance Manager (HR & A) , South 24 Parganas region of WBSEDCL and the said report speaks thus-

          On an enquiry conducted on 08.09.2015 it has come to the surface that at about 11:30 AM on 31.07.2015 the victim was somehow engaged in working on the Cable TV network. The sagged Cable TV network had been drawn using the PCC poles as support. The GI wire attached to the Cable TV network got entangled with the nuts and bolts of LT spacer of Y phase of LT line making the GI wire live. The victim came in touch with the live GI wire and got electrocuted and subsequently succumbed to death.

          Immediately after the incident, locals of the area cut the LT conductor of ‘B’ phase probably in order to wipe out the actual reason of the accident. It is to be noted that the span where the LT wire was cut and the actual spot of occurrence are different.

          The Ld. District Forum has observed-

     “it has been stated by the complainant that she is a consumer or electricity and that her Consumer I.D no. 100595642. She could have filed a bill to her. It is mentioned in para 3 of her petition of complaint that electric bill is annexed as Annexure B. But no bill is found annexed with the petition of complaint, the complainant was directed to produce all the documents she has relied before the Forum, Vide order no. 16 dated 13.6.2018. the complainant has filed the documents upon which she relies. But no electric bill is filed by her. So , the complainant does not have any electric bill; she does not have any electric connection in her house. The averment of her in the petition of complaint that her Consumer ID number of the complainant is 100595642 appears to be absolutely false. The complainant filed affidavit in chief but does not mention anywhere in that affidavit in chief that the Consumer ID number of the complainant is 100595642. The complainant will have to plead and prove that she is a consumer. In the instant case, there is no document filed by the complainant to prove that she is a consumer of the O.Ps. She has no evidence also to prove that she pays electric charges to the O.Ps for consuming electricity in her house.”

          From the above observation of the Ld. District Forum and the materials on record it would reveal that the appellant has failed to produce any document whatsoever to show that she or her husband was a consumer under WBSEDCL. On behalf of appellant a document has been filed showing payment of taxes of Rs. 40/- to Madhusudanpur Gram Panchayat under Kakdwip Panchayat Samiti including Aalor Avikar (taxes on Electricity) but had it been produced before the Ld. District Forum there would have been a reflection to that effect in the judgment/ final order. On the other hand, though the appellant claimed that she possess electric bill as annexure ‘B’ but no such bill was annexed with the petition of complaint and despite direction by the Ld. District Forum no such bill has ever been produced before the Ld. District Forum. The receipt of Panchayat, perhaps, has been obtained for the purpose of this case.

          The decisions referred by the Ld. Advocate for the appellant has no manner of application in our case because in the case of Madhya Pradesh Electricity Board (supra) a person being a workman in a factory, while returning from his factory was electrocuted due to falling down of live electric wire on the road. There was rain and the victim being cyclist did not notice the live wire on the road for which he was instantaneous electrocuted. In the case of state of Himachal Pradesh (supra) the respondent Naval Kumar alias Rohit Kumar who was 8 years old while along with his mother went to the field to collect ‘saag’ where he got electrocuted with a high tension live wire. In the case before hand, it is evident that on the date of unpowered incident i.e. on 31.07.2015 at about 11:30 AM victim being an employee of local cable operator came in contact with the sagged cable TV network and the GI wire attached to the TV Cable might have come in contact with the live TV network and the victim got electrocuted. The cable TV network has been drawn using the PCC Pole as support. It has also been observed that one LT wire was intentionally cut near the spot of occurrence to lead this incident as electrical accident by snapping of LTOH  line.

          The decision of the Hon’ble National Commission in the case of A.P Transco and others (supra) is also distinguishable with the facts and circumstances of our case in the said case, while the victim who was a house wife of 39 years old was returning home after purchase of vegetables a high power transmission were got suddenly cut and fail on her which caused the incident.

          Ld. Advocate for the appellant drawing our attention to the provisions of Section 67 of the Electricity Act and also the provision of rule 29 of the Indian Electricity Rules , 2005 has contended that to avoid unnecessary damage to the public and private property, the WBSEDCL should have taken proper care and when damage has been done they are liable as to pay compensation.

          The submission of the Ld. Advocate for the appellant could not inspire us because the victim himself climbed upon the PCC Poles of WBSEDCL for the purpose of private cable TV network and in doing such job the GI wire attached to the cable TV network came in touch with the live GI wire and got electrocuted and subsequently succumbed to death. It implies that there was no negligence or deficiency on the part of the Company rather the victim himself invited the peril by coming into contact with the GI wire of the WBSEDCL in the Pole.

          After giving due consideration to the submission made by the Ld. Advocate appearing for the parties it appears to us that the appellant does not come under the purview of definition of ‘Consumer’ as defined in Section 2 (1) (d) of the Act and further there was no negligence or deficiency on the part of the respondent No. 1 Company. In that view  of the matter when there is no impropriety or illegality in dismissing the complaint, the impugned order should not be interfered  with.

          In view of the above, appeal is dismissed on contest. However, there will be no order as to costs.

          The impugned/ final order /judgment is thereby affirmed.

          The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Dispute Redressal Forum, South 24 Parganas at Baruipur for information.