State Consumer Disputes Redressal Commission
The Deputy General Manager vs Sri Tukai Dey on 3 June, 2014
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal 11A, MIRZA GHALIB STREET, KOLKATA-700 087. S.C. CASE NO- FA/666/13 (Arisen out of Order Dt. 28/05/13 in Case No. CC/1421/2009 of District Consumer Disputes Redressal Forum, Kolkata-II ) DATE OF FILING: 24.07.13 DATE OF FINAL ORDER: 03.06.14 APPELLANT: The Deputy General Manager, CESC Limited, North Regional Office 226-A &B Acharya Prafulla Chandra Road, P.S. Manicktala, Kolkata- 700 004. RESPONDENT : Sri Tukai Dey 76-F Balaram Dey Street Kolkata- 700 006. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. HONBLE MEMBER : Sri Jagannath Bag. FOR THE APPELLANTS : Mr. Srijan Nayak, Mr. Alok Mukhopadhyay, Mr. S. Chatterjee, Ld. Advocates. FOR THE RESPONDENT: Mr. Prasanta Mukherjee, Ld. Advocate. _____________________________________________________________________________ : O R D E R :
MR. J.BAG, LD. MEMBER The present appeal is directed against the Order dated 28.05.2013 of the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II, in CC No. 1421 / 2009 , whereby , the complaint was allowed in part against OP / CESC Ltd.
The complaint, in brief, was as follows:
The Complainant and his family , residing jointly with Shri Prem Shankar Mishra at premises No.76F, Balaram Dey Street, Kolkata-6, enjoyed electricity from the electric meter installed by the OP in the name of the said Prem Shankar Mishra. The meter box along with other two meter boxes were installed by the OP just inside the main entrance of the building. The cover of the high voltage line / wire proceeding towards the said meter box was lying open for a considerable period. The attention of the CESC authorities was verbally drawn to the fact by the dwellers of the above noted premises including the Complainant with the request to redress the same, but CESC authorities paid no heed . On 26.04.2009 at about 2.30 p.m a male child of the Complainant, namely, Sujan Dey aged about 3 years suddenly touched the said high voltage line and died then and there. The death took place due to negligent act of maintenance of high voltage line. The Complainant made a representation dated 17.06.09 intimating about the death of his child to the OP along with death certificate and other documents and prayed for compensation of Rs. 20 lakh . The OP gave no response. Accordingly, a complaint case was filed on the ground of deficiency in service on the part of the OP towards the Complainant /Consumer.
OP/CESC Ltd. disputed the claim by filing written version contending, inter alia, that the Complainant is not a consumer and that there was no privity of contract between the Complainant and the OP. It was also submitted that the alleged incident took place from the supply controlled by the Kolkata Municipal Corporation who was not made a party to the case. The victim got electrocuted when he came in touch with the frayed wiring installed by KMC for street lighting meant for narrow passage lighting. There was no negligence or deficiency in service on their part.
Ld. Forum below observed that the Complainant is the co-resident of the premises No. 76F, Balaram Dey Street, Kolkata-06 , which has not been denied by the OP/CESC Ltd the OP can not state or deny about lacking of the privity of contract in between the Complainant and the OP. The Complainant being occupier of the said premises and when such incident took place in such a place can be held as consumer as provided u/S-2 (1) (d) of the C.P. Act 1986. Ld. Forum below also observed that CESC Ltd. being the distribution licensee provides electricity and they can not avoid responsibility for the alleged incident. Failure to maintain the lines installed by them is their negligence. Considering the facts and circumstances, Ld. Forum below allowed the complaint and directed OP/CESC Ltd. to pay a sum of Rs. 5,00,000/-only to the Complainant within 45 days from the date of order.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below the Appellant has come up before this Commission on certain grounds with a prayer for direction to set aside the impugned order.
We have gone through the Memorandum of appeal, together with the impugned order, the petition of complaint and the written version among other documents filed by OP/CESC Ltd before the Ld. Forum below. The Respondent/Complainant has submitted BNA which has been perused .
Ld. Advocate appearing for OP/ Appellant submitted that the Complainant named, Sri Tukai Dey , was not a consumer at all in so far as no service connection was provided to him and the person in whose name the meter was provided in the premises No. 76F , Balaram Dey Street , Kolkata-6 never alleged about any deficiency in service on the part of the service provider CESC Ltd. Further, the high voltage line / wire proceeding towards the meter boxes installed at the entrance of the building was under the control of the Kolkata Municipal Corporation who have not been made a party. In fact, there was no written communication or oral alert from the residents of the building to the CESC Ltd. and there was no knowledge of the fact that the said high voltage line / wire was lying open as alleged. The Appellant, CESC Ltd , is under no obligation to compensate for the unfortunate death of the male child of the Complainant and the impugned order deserves to be set aside.
On the contrary, Ld. Advocate appearing for the Complainant/Respondent submitted that the Complainant is residing in the same premises No.76F, Balaram Dey Street with Sri Prem Shankar Mishra in whose name, the electric meter was installed by the OP /Appellant . He is the beneficiary of the service provided by the OP /CESC Ltd. The deficiency of the OP /CESC Ltd. is established by the fact that they did not take care about proper maintenance of the high voltage line / wire that caused the death of the Complainants three year old child. Ld. Forum below has rightly held that OP can not avoid their responsibility in maintaining all the lines installed by them. It has never been denied by the OP/Appellant that the death of the child was caused by electrocution. Whether compensation will be realized from KMC may be the concern of CESC Ltd., but by saying so they can not escape their responsibility of paying compensation for the loss caused by the deficiency in service on their own part.
Ld. Forum below has rightly adjudicated the matter and the appeal against the order deserves to be set aside with exemplary cost.
Decision with Reasons There is no dispute that the death of a three year old male child of the Complainant occurred by electrocution on 26.04.2009 in the premises of 76 F , Balaram Dey Street, Kolkata-6 as revealed from the death certificate issued by Kolkata Municipal Corporation as well as from the Post Mortem Report submitted by the Police. The electrocution was caused while the child touched the open high voltage electric line connected to the meter installed by the OP/ Appellant in the name of one Sri Prem Shankar Mishra with whom the Complainant is residing in the same premises. The Complainants claim that he is a consumer under the category of a beneficiary of the service availed by the said Prem Shankar Mishra does not , however , stand substantiated with any evidence showing any relationship between the Complainant and the said Prem Shankar Mishra . In fact, the said Prem Shankar Mishra himself has not come forward as a complainant with any statement that he allowed use of electricity by the Complainant from his meter with or without any consideration or that the right of beneficial use of electricity from his meter was given by him to the complainant in lawful manner.
In this case, there is really no privity of contract or consumer - service provider relationship between the Complainant and the service provider OP/CESC Ltd., nor has the holder of the meter from which the Complainant has been enjoying electricity been made a party as a joint Complainant who would have been the appropriate person to agitate against the deficiency in service, if any, on the part of the service provider. Viewed as such, we are inclined to hold that the impugned order suffers from material irregularity, illegality and jurisdictional error. The appeal carries merit that deserves consideration. Hence, Ordered that the appeal be and the same is allowed on contest . The impugned order is set aside . Consequently ,the complaint stands dismissed. There shall be no order as to costs.
Sd/ Sd/ Sri Jagannath Bag Sri Debasis Bhattacharya (Member) (Member)