State Consumer Disputes Redressal Commission
Maharashtra State Electricity ... vs Sau.Survarna Vijay Dixit on 3 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, CIRCUIT BENCH AT NAGPUR 5 TH FLOOR, ADMINISTRATIVE BUILDING NO. 1 CIVIL LINES, NAGPUR-440 001 First Appeal No. A/07/372 (Arisen out of Order Dated 22/03/2007 in Case No. CC/06/65 of District Bhandara ) Maharashtra State Electricity Transmission Co. Ltd Through its Executive Engineer O & M Division, Bhandara ...........Appellant(s) Versus Sau.Survarna Vijay Dixit Shri Newalkar Bungalow Vidya Nagar, Bhandara Tah. & Dist. Bhandara ...........Respondent(s) BEFORE: Hon'ble Mr. B.A.Shaikh Presiding Member Hon'ble Mrs. Jayshree Yengal Member PRESENT: A.D.Mohgaonkar, Advocate for the Appellant C.K.Dixit, Advocate for the Respondent ORDER
(Passed on 03.04.2014) Per Mr B A Shaikh, Honble Presiding Member
1. This appeal is preferred against the order dtd.22.03.2007 passed in consumer complaint bearing No.CC/06/65 by District Consumer Forum, Bhandara by which the complaint has been partly allowed.
2. The case of the complainant as set out in the complaint in brief is that she was residing with her family members in a rented house at Bhandara. The opposite party (for short the O.P.) supplies electricity and it has got control over activities in the matter of supply of electricity to the consumers coupled with proper supervision and maintenance of electricity wires. On 25.03.2005 the complainant was washing household utensils in the balcony of her rented house. At that time, she heard large sound and she fell down. A High Tension (for short HT) line of electricity was passing nearby the balcony of her house and it was loose and drooping and therefore she was electrocuted. The HT wires were parallel to the balcony level of that house and the distance in between them was too short. The height of this HT wires were also not above 30 feet from the ground level as prescribed under the rules. The distance between two poles of that HT line was also too long and HT wires were sagging and therefore, the complainant was electrocuted. She suffered 70% burn injuries. Therefore, she was shifted to Government Hospital, Bhandara. She was transferred to Nagpur due to her critical condition, for better treatment. She was admitted to Suretake Hospital and Research Center at Nagpur at 7.30 p.m. on the same day. She got burn injuries to her arms, right leg, face and the said injuries were very deep. She (complainant) was treated by expert doctors in Intensive Care Unit (for short ICU) for one and half month and she was discharged on 05.05.2005 with advice to have follow-up treatment. She was also advised to go for plastic surgery in time bound phase manner coupled with physiotherapy. She (complainant) incurred huge expenses for her treatment. The incident took place due to negligence and careless working on the part of the O.P. Though several oral and written complaints were made regarding loose and sagging HT wires and lack of proper maintenance, the O.P. did not attend the same. The complainant, therefore, claimed from the O.P. Rs.7,36,467 towards medical expenses incurred by her, Rs.6,48,000/- for future pecuniary losses suffered by her and Rs.3.00 Lacs toward general damages i.e. she claimed total amount of Rs.16,48,467/-.
3. The O.P. resisted the complaint by filing its Written Version. It raised preliminary objection to the effect that the complaint is liable to be dismissed for non-joinder of necessary party and that there is no relationship of service provider & consumer in between it and the complainant. So also, the remedy available to the complainant is to approach Civil Court and District Consumer Forum has no jurisdiction to entertain the complaint. The adverse allegations made in the complaint are denied by the O.P. It is submitted by the O.P. that the complainant has suppressed material facts in the complaint. The complainant sustained electric shock and injuries due to her own negligent act.
It is mentioned in the Spot Panchanama prepared by the Police that the complainant had thrown dirty water of household utensils from the balcony of her house which fell on the HT Line, and therefore, she was electrocuted. The HT tower line is erected as per rules framed under the Electricity Act and it was also erected much prior to the construction of the house, in question. The owner of the house constructed the building without maintaining clearance as provided under Rule 80 of Electricity Rules, 1956. This fact was brought to the knowledge of the owner of the house by the O.P. by issuing notice dtd.04.01.2000 about making illegal construction of the house near HT tower line. The said line was charged only after due inspection by Electrical Inspector and on getting certificate from him. The incident did not occur due to any such irregularity as alleged in the complaint. It is, therefore, prayed by the O.P. that the complaint may be dismissed with cost.
4. The Forum below after hearing advocates of both the parties and considering the evidence brought on record, passed the impugned order on 22.03.2007 by majority.
One of the members of the Forum dissented with the majority view taken by President and another member of the Forum. As per the decision by the majority, the complaint has been partly allowed, whereas, as per dissenting view taken by the single member of the Forum, the complaint has been dismissed.
5. The order passed by the majority of the Forum below, by which the complaint is partly allowed, is assailed in this appeal by the original O.P. The direction has been given in the impugned order to the O.P. to pay to the original complainant Rs.6,06,467/- towards expenses incurred by her for her treatment and also to pay Rs.4,20,000/- towards the loss sustained by her.
Further direction is given to the O.P. to take action to demolish the illegal construction made at the unsafe distance of the HT lines, so as to avoid such incident in future. Direction is also given under the impugned order to the O.P. to pay to the complainant Rs.2,000/- towards cost of the complaint within one month.
Hereinafter the original O.P. is referred to as the appellant and the original complainant hereinafter is referred to as the respondent.
6. We have heard learned advocates of the appellant and respondent. We have also perused the Written Notes of Arguments and other documents filed by both the parties.
7. Arguments of learned advocate of the appellant is summarised point-wise as follows:-
i. From the evidence, brought on record, it is proved that the complainant herself had thrown the dirty water on the conductors of the HT lines and therefore, she was electrocuted and suffered injuries due to her own negligent act and hence, no deficiency in service can be alleged against the appellant.
ii. The HT line was erected more that 40 years before the construction of the residential houses of that area and that all those constructions are illegal as either they are near the HT line or under the HT line and though notice was given to all those residents to remove the said illegal constructions and that applications were also made to the President of the concerned Municipal Council and also to the concerned District Collector for taking action for removing all such illegal constructions and that the documents to that effect are also produced on record which were pointed out during the course of his arguments and hence, the appellant can be held responsible for electrocution of the respondent.
iii.
There is no evidence to show that the HT line was either sagging, loose or drooping or otherwise having any defect in it and that there is no evidence to show that due to any such defect in the HT line, the respondent was electrocuted.
iv.
There is no cogent evidence to show that the respondent incurred such huge expenses for her treatment and she incurred loss of income, which is awarded to her.
v.
There is no relationship of service provider and consumer in between the appellant and respondent as the appellant is simply transmitting the electricity to one sub-station to another sub-station and therefore, the complaint is not maintainable.
8. Thus, the learned advocate of the appellant submitted that the impugned order is suffered from various infirmities and thus it cannot be sustained under law as aforesaid material facts & circumstances are not properly considered by the Forum below while partly allowing the complaint. He, therefore, submitted that as the impugned order is perverse, it may be set aside. He relied upon the observations made in the following cases.
i. Doon Valley Rice Ltd. Vs.
State Bank of India,
II(2003) CPJ 196 (HC)
ii. James Vs. The Federal Bank Ltd
& Ors., 2005 (2) CPR 301 Kerala
State Consumer Disputes
Redressal Commission, Thiruvanantpuram.
iii.
Oriental Insurance Co. Ltd Vs. Munimahesh Patel, IV(2006) CPJ-1 (SC) iv.
Uttar Pradesh Power Corporation Ltd. & Ors. Vs. Anis Ahmad, (2013) 8 Supreme Court Cases 491 The ratio laid down in aforesaid first three cases is that when the complaint involves complex question of facts and requires lengthy evidence, then the complaint be returned to be presented before the competent Civil Court.
The ratio laid down in the aforesaid fourth case is that the complaint is maintainable only when the complainant is a consumer within a meaning of 2(1) (d) of Consumer Protection Act 1986 and the complaint can be filed in respect of supply of electrical energy or other energy, if complainant contends allegations of Unfair Trade Practice or Restrictive Trade Practice or there are defective goods, deficiency in services or hazardous service.
9. The sum & substance of the argument advanced by the learned advocate of the respondent is given below point-wise:-
i. The Forum below has properly considered the evidence brought on record and rightly granted compensation to the respondent.
ii. The appellant has not taken any action against unauthorized construction and it has also not complied with the directions of the District Collector and violated the Rules and now the appellant cannot raise any defence in the present case.
iii. It is false that the respondent was electrocuted due to throwing of dirty water on the live wire from the balcony and the spot Panchanama was prepared in the absence of complainant and her husband. Hence, it has got no value to show any such negligent act of the respondent.
iv. As per spot Panchanama prepared by the Police, the HT wires of 66 KV were running parallel to the residence of the respondent from the distance of only five feet and that two poles holding HT wires were situated at the distance of 1000 feet from each other and that those wires were loosely hanging and there was sagging of wires causing danger to the lives of the residence of that place.
v. There is sufficient evidence to prove that the respondent was treated in hospital for more than 45 days and she incurred expenses as claimed by her in the complaint and there is also sufficient evidence to prove the loss sustained by her (complainant) as claimed by her.
vi. The respondent was electrocuted due to negligent act of the appellant and it attracts principle of strict liability.
vii. The respondent is a Consumer as she was using service provided by the appellant to its consumers.
10. The learned advocate of the respondent, thus, submitted that there is no error in the impugned order and hence, the appeal may be dismissed. He relied upon the observations made in the following cases in support of his submission that the appellant is the service provider and the respondent is its consumer as per the definition given under Section 2(1)(d)(ii) of Consumer Protection Act, 1986.
i. Lucknow Development Authority Vs. M K Gupta, AIR 1994 SC 787 ii. Karnataka Power Transmission Corpn.
Ltd. Vs. Asoka Iron Works Pvt Ltd., III (2009) CPJ 5 (SC) iii. Ajmer Vidyut Vitaran Nigam Vs. Parthu, I (2013) CPJ-159 (NC) iv. C.G.M., P & O, NPDCL Vs. Koppu Duddarajam, IV (2008) CPJ-139 (NC) v. APSPDCL Vs. Bujamma, I(2013) CPJ-693 (NC) vi. Dakshini Haryana Bijli Vitaran Nigam Vs. Pramila Devi, II(2013) CPJ-321 (NC) vii. N. Kunchi Babu Vs. A. P. Transco, I(2010) CPJ-97 (NC) viii. Prakash Gajendrabhai Desai V. Madhya Gujrat Vij Co. IV(2012) CPJ-805 (NC) ix. RSEB Vs . Mohan Lal Bairwa, 2001 NCJ (NC) 667 x. HSEB Vs. Ram Nath, 2005 ACJ 342 SC xi. Sajjan Sachdeva Vs. PSEB, I(2009) CPJ 30 xii. Alwala Mangamma Vs. Northern Power Distribution Co. Ltd. & Ors., III(2013) CPJ-395 (CN) (AP) xiii. PSEB Vs. Shri Gopal, 1993 (2) CPJ 188 xiv. RSEB Vs. Dharan Singh, I(1999) CPJ 162 xv. HVPN Vs. Bhag Ram, I (2007) CPJ 51
11. The learned advocate of the respondent also relied upon the observations made in the following case in support of his submission that as the respondent has been electrocuted due to negligence of the appellant, the appellant is liable to pay compensation to her.
i. Madhya Pradesh Electricity Board Vs. Shail Kumari, 2002 ACJ- 526 SC ii. Joginder Singh Vs. State of J & K, 2012 ACJ 2037 SC iii.
BSES (Y) Power Ltd. Vs. Neeraj Kumar, I(2007) CPJ-1 iv.
Northern Power Dist. Co. Vs. Yedelli Kanath Rao, III(2009) CPJ 170 v.
A.P. Southern Power Dist. Co. Vs. G. Subbarama Naidu, II(2009) CPJ-391
12. The learned advocate of the respondent also relied upon the decision in the following case in support of his submission that Consumer Fora can decide the complaint by summary procedure under the facts & circumstances of the present case.
CCI Chambers Hsg. Soc. Vs. Development Credit Bank, AIR 2004 SC 184
13. The learned advocate of the respondent also relied upon the following decisions in support of his submission that the medical bills produced by the respondent about her treatment are admissible in evidence.
i. Dr. Dattatray Waman Shinde Vs. Nana Raghunath Hire, 2013 ACJ-474 Bom. HC ii. Shaikh Pervez Vs. Bajaj Allianz, 2007(4) TAC 99 Bom.
14. The learned advocate of the respondent has also relied upon the decision in the following cases in support of his submission that the appellant cannot be absolved from its liability as the obligations are flowing from two separate contracts and / or statutory obligations.
i. Vrajesh Vs. K Bagyam, 2006 ACJ 65 Bom. HC.
ii. K Ardeser Mehta Vs. Union of India, 1986 ACJ 1002 Bom. HC.
iii. Raghbir Sing Vs. Harbens Kaur, 1985 ACJ 676 P&H, HC
15. The learned advocate of the respondent has also relied upon the decision in the following cases in support of his submission that the income of the complainant being woman can be considered for assessment of compensation.
i. Lata Wadhwa Vs. State of Bihar, II(2001) ACC 316 (SC) ii. Arun Kumar Agrawal Vs. National Insu. Co., 2010(3) TAC 769 (SC) iii.
Balram Prasad Vs. Dr. Kunal Saha, IV(2013) CPJ-1 (NC)
16. He also relied upon the decision of the following case in support of his submission that the respondent is entitled to interest over the amount of compensation granted by the Forum below.
Hira Lall Vs. Royal Jordanian Airlines, II(2013) CPJ 1 (NC)
17. The learned advocate of the respondent has also taken us through the relevant provisions of Electricity Act, 2003 and India Electricity Rules 1956 in support of his submission that as HT line did not pass through the safe distance from the residential premises, the appellant can be held liable when the respondent has been electrocuted due to that reason. Lastly it is submitted by the learned advocate of the respondent that there is no merit in appeal and hence it may be dismissed.
18. We have also gone through the aforesaid decisions relied upon by the advocate of both the parties.
The copy of the spot Panchanama produced on record shows that it was prepared by the Police on the same date of the incident i.e. on 25.03.2005. It shows that at the time of preparation of that spot Panchanama, the respondent was taking treatment in hospital and the spot of incident was shown to the police and two witnesses by Shri Babanrao Karemore, who was the owner of that house. The said owner of the house informed the Police that the respondent resides on the upper floor of that house and on 25.03.2005 at 4.00 p.m. she brought dirty tea water from her house and took at to the porch of that house and she threw it outside the house and the said water fell on HT line, which was at a distance of 8 feet from her house and therefore, she was electrocuted and sustained burn injuries. The said spot Panchanama also shows that there was a kitchen on the upper floor of that house and there was a porch attached to that kitchen and there was parapet wall to that porch of upper floor. It also shows that the distance from that parapet wall to HT line was 5 feet and the said HT line is passing in parallel direction to the porch of that house. It also shows that one electric pole was at the distance of 500 feet from the place of incident towards Northern side and another electric pole from that place was at a distance of 500 feet towards Southern side.
19. It is pertinent to note that the said spot Panchanama does not show that the wires of that HT line were either loose, drooping, hanging or sagging or in any way, having any defect or not properly maintained. There is no other evidence to draw an inference that the appellant did not properly maintain the HT lines passing from that place.
20. According to the case of the respondent, when she was washing household utensils in the balcony of her house, she was electrocuted and fell down. There is no expert opinion to prove that a person can be electrocuted simply when such a person is washing utensils in the porch of a house, which is having parapet wall at a distance of 5 feet from the HT wires. In the absence of any expert opinion, we are not inclined to accept the plea raised by the respondent that she was electrocuted simply when she was washing utensils in the porch of her house, having parapet wall.
21. On the contrary, it can be said that as the respondent threw dirty water from that porch outside and as it fell on the HT wires, she was electrocuted as the electric current passed through the water conductor and it was struck to respondent and therefore, she was sustained burn injuries. The electricity cannot be passed without any tangible conductor. Therefore, we are inclined to hold that the respondent was electrocuted due to her own aforesaid negligent act and not because of any negligence on the part of appellant.
22. It is not disputed that the respondent was residing on the upper floor of the house, which was not constructed after obtaining No Objection Certificate from the appellant. The residential premises at that place were unauthorisely constructed. The record shows that the appellant has taken every step to remove the said unauthorized construction, which was unsafe due to passing of HT line. The record also shows that the authorities of the appellant served notice to Shri Prakash Karemore, owner of that house on 04.01.2000 i.e. much prior to aforesaid incident. The copy of that notice reflects that Shri Prakash Karemore was directed to remove the said unauthorized construction of his house and in case of his failure, he will be responsible for any untoward incident. Likewise notices were given to other residents of that place. Copy of list produced on record shows the names of such 88 owners to whom the similar notices were served by the appellant.
23. The appellant also made application to the President of Municipal Council, Bhandara on 24.09.2004 and requested the said authority to take action to remove unsafe construction of that place and it is also requested to him that before granting permission of any such construction, permission of the appellant should be taken. It is also made clear in that application that in order to avoid any such fatal incident, the said President of Municipal Council should co-operate with the appellant. Copy of that application was also sent to the District Collector of Bhandara. The District Collector, Bhandara vide its letter dated 28.10.2004 directed the Sub-Divisional Officer of Bhandara and also to Chief Officer of the Bhandra Municipal Council to make survey of said unauthorized construction and to take proper action and to give to it report of action taken. The Appellant also published a public notice on 05.09.2004 in local newspaper of Nagpur and Bhandra region, calling upon the residents of the aforesaid place to remove immediately the unauthorized and unsafe construction of their houses or otherwise, the appellant would not be responsible for any untoward incident.
24. The aforesaid documents produced on record are not disputed by the respondent. The provisions of Sec. 68(5) of Electricity Act, 2003 reads as under:-
Where any tree standing or lying near an overhead line or where any structure or other object which has been paced or has fallen near an overhead line subsequent to the placing of such line, interrupts or interferes with, or is likely to interrupt or interfere with, the conveyance or transmission of electricity or the accessibility of any works, an Executive Magistrate or authority specified by the Appropriate Government may, on the application of the licensee, cause the tree, structure or object to be removed or otherwise dealt with as he or it thinks fit.
25. In the instant case as discussed above, the appellant had already made an application to the District Collector (District Magistrate) of Bhandara, who had given direction to Sub-Divisional Officer of Bhandara (Sub-Divisional Magistrate) to take appropriate action in respect of aforesaid unauthorized construction.
Hence, we are satisfied that the appellant has taken all those steps necessary for removal of the aforesaid unauthorized / unsafe construction. There is no provision under law giving power to the appellant to demolish itself the aforesaid unauthorized construction. Therefore, we hold that as appellant has taken all legal steps for removal of unauthorised and unsafe construction of the house where respondent was residing and when the respondent as discussed above, was electrocuted due to her sheer negligence, and when there is no evidence to prove that HT wires were loose, sagging or drooping or were not properly maintained, it cannot be said that appellant rendered any deficient service to the respondent. In this view of the matter taken by us we find that all the aforesaid decisions relied upon by learned advocate of respondent are of no assistance to the respondent. The facts & circumstances of present case as discussed above are also different from those of said cases and hence they are not applicable to the present case.
26. Thus, even if we accept that the appellant herein is a service provider and the respondent is a consumer then also we find that as the respondent was electrocuted due to her aforesaid own negligent act and as there was no negligence as discussed above, on the part of appellant, it cannot be said that there is deficiency in service provided by the appellant to the respondent.
27. Therefore, the appellant is not liable to pay any compensation to the respondent herein. The Forum below has not properly considered the aforesaid material facts & circumstances of the present case.
The conclusion drawn by the majority of the Forum below under impugned order is thus erroneous and therefore, it cannot be sustained under law. The appeal, therefore, desires to be allowed.
ORDER i. The appeal is allowed.
ii. Impugned order dtd.22.03.2007 passed in consumer complaint bearing No. CC/06/65 by District Consumer Forum, Bhandara is hereby set aside and the complaint is dismissed.
iii. No order as to cost in appeal.
iv. Copy of this order be furnished to both the parties free of cost.
[ B. A. SHEIKH] PRESIDING MEMBER [ SMT.JAYSHREE YENGAL] MEMBER sj