State Consumer Disputes Redressal Commission
Central Power Distribution Of A.P. ... vs 1. Smt. Mada Nilavva Wife Of Late Ailaiah ... on 22 August, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana First Appeal No. A/501/2014 (Arisen out of Order Dated 28/02/2014 in Case No. Complaint Case No. CC/13/2013 of District Medak) 1. Central Power Distribution of A.P. Ltd., Rep. by 1. The Superintending Engineer Operation Central Power Distribution Company of A.P. Ltd., APCPDCL, Main Road, Sangareddy 502 001 Medak District 2. 2. The Managing Director, Central Power Distribution Company of A.P. Ltd., Corporate Office H.No.6.1.50, Mint Compound, Hyderabad 500 063 ...........Appellant(s) Versus 1. 1. Smt. Mada Nilavva Wife of Late Ailaiah R.o. H.No.5.90, Pamulaparthy Village Wargal Mandal, Medak District 2. 2. Smt. Mada Kistavva Wife of late Ailaiah, R.o. H.No.5.90, Pamulaparthy Village, Wargal Mandal, Medak Dist 3. 3. Mada Syamala D.o. Late Ailaiah, Aged 13 Years, Minor, SI No.3 rep. by the guardian and natural Mother, SI.No.1 Mada Nilavva Wife of late Ailaiah 4. 4. Mada Chamanthi D.o. Late Ailaiah Aged 11 years, SI No.3 rep. by the guardian and natural Mother, SI.No.1 Mada Nilavva Wife of late Ailaiah 5. 5. Mada Kalyani D.o. late Ailaiah, Age 12 Years, Minor, SI No.5 rep. by the guardian and natural Mother, SI.No.1 Mada Nilavva Wife of late Ailaiah 6. 6. Mada Maheswari D.o. late Ailaiah Age 10 years, Minor, SI No.6 rep. by the guardian and natural Mother, SI.No.1 Mada Nilavva Wife of late Ailaiah ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Appellant: For the Respondent: Dated : 22 Aug 2017 Final Order / Judgement BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD. FA No. 501 OF 2014 AGAINST CC No.13 OF 2013 ON THE FILE OF DISTRICT FORUM- MEDAK AT SANGAREDDY DISTRICT Between : Central Power Distribution of A.P. Ltd., Represented by : The Superintending Engineer / Operation, Central Power Distribution Company of A.P. Ltd., (APCPDCL), Main Road, Sangareddy - 502001, Medak District. The Managing Director, Central Power Distribution Company of A.P. Ltd., Corporation Office, H.No.6-1-50, Mint compound, Hyderabad - 500063. ....Appellants / Opposite Parties AND Smt. Mada Nilavva W/o. Late Ailaiah, R/o. H.No.5-90, Pamultaparthy Village, Wargal Mandal, Medak District. Smt. Mada Kistavva W/o. Late Ailaiah, R/o. H.No.5-90, Pamultaparthy Village, Wargal Mandal, Medak District. Mada Syamala D/o. Late Ailaiah, Age : 13 years Minor, (Sl.No.3 represented by the guardian and natural mother Sl.No.1Mada Nilavva W/o. Late Ailaiah) Mada Chamanthi D/o. D/o. Late Ailaiah Age 11 years, (Sl.No.4 represented by the guardian and natural mother Sl.No.1Mada Nilavva W/o. Late Ailaiah) Mada Kalyani D/o. Late Ailaiah, Age : 12 years, Minor, (Sl.No.5 represented by the guardian and natural mother Sl.No.1Mada Nilavva W/o. Late Ailaiah) Mada Maheswari D/o. late Ailaiah, Age : 10 years, minor, (Sl.No.6 represented by the guardian and natural mother Sl.No.1Mada Nilavva W/o. Late Ailaiah) ..Respondents / Complainants Counsel for the Appellants / Opposite Parties : Sri P.Ganeswar Rao & A.Jaya Raju Counsel for the Respondents / Complainants : Sri P.Raghavender Rao Hon'ble Sri Justice B.N.Rao Nalla ... President & Sri Patil Vithal Rao ... Member
, Tuesday the Twenty Second day of August Two thousand Seventeen Oral Order : (Per Hon'ble Sri. Patil Vithal Rao, Member).
*** Having Aggrieved by the order dated 28.02.2014 in C.C.No.13/2013 passed by the District Consumer Forum [for brevity, 'the District Forum'] Medak at Sangareddy District, the Appellants herein, who are the Opposite Parties in the case have come up with the present Appeal under section -15 of the Consumer Protection Act, 1986. By the impugned order the District Forum has directed the Opposite Parties to pay to the Complainants in the case a sum of Rs.4,40,000/- with interest @ 9% p.a., from 06.03.2008 till realization with costs of Rs.10,000/-by granting a time of one month for due compliance. The parties, for the sake of convenience, will be referred to hereinafter as arrayed in the complaint.
The factual matrix of the case is that one late Mada Ailaiah died on 06.03.2008 at about 2-30 p.m., due to electrocution, while working in his agricultural field. On the complaint in this regard by his second wife, who is the Complainant No.2 herein, the police, Gouraram P.S., Medak district investigated into the matter in Crime No.20/2008 under section-174 Cr.P.C. and submitted the Final Report, Ex.A1 before the Junior Second Class Executive Magistrate, Wargal, Medak District stating that it was a case of "accidental death due to electrical shock". By attributing negligence on the part of the Opposite Parties in maintaining the power supply, the Complainants lodged a complaint with the APCPDCL [For short, the Department]. Thereafter, the officials of the Opposite Party no.1 enquired into the matter and the Department gave an ex-gratia of Rs.1,00,000/- to the bereaved family of the deceased. Not satisfied with the said gesture the Complainants, who are the legal heirs of the deceased, have further claimed a sum of Rs.4,40,000/-. But as the same was not granted by the Opposite Parties, they have filed the complaint under Section-12 of the Act, 1986 before the District Forum. They have also claimed interest @ 12% p.a., on the said amount with costs.
The Opposite Parties resisted the claim on the grounds, interalia, that the Complainants filed the complaint without submitting their Legal Heir Certificate. Further, as per the Departmental inquiry and Police Investigation, the deceased Mada Ailaiah tried to join the broken live cable wire and thereby died accidentally. Thus, he acted negligently by taking risk and without informing to the Department to rectify the defect through their skilled technicians. Therefore, the Complainants cannot attribute any negligence or deficiency in service on the part of the Opposite Parties. However, as per the Opposite Parties, the ex-gratia was given to the Complainants on humanitarian grounds. For these reasons the Opposite Parties have prayed to dismiss the complaint with costs.
On considering the evidence affidavits and the documentary evidence under Exs.A1 to A9 and Exs.B1, of the respective parties and also Ex.C1 and further the written arguments of the Complainants and after hearing both the parties the learned District Forum allowed the complaint by passing the order referred in Para-1 supra, which is now impugned in the present Appeal.
The contention of the Appellants / Opposite Parties in the present Appeal under Section-15 of the Act, 1986, in brief, is that though the complaint was filed on 02.04.2013, the District Forum has awarded interest on the claim amount from 06.03.2008 i.e., the date of death of the victim. Further, the Police investigation clearly establishes negligence on the part of the deceased in his attempt to repair the cable wire without knowing it's implications. But, the District Forum did not consider all these vital aspects and also ignored the fact of payment of ex-gratia of Rs.1,00,000/-to the Complainants and thereby committed material irregularity in passing the impugned order contrary to law and facts and that as such the same is liable to be set aside.
Perused the material evidence placed on record, the impugned order and the written arguments of the parties. Heard both the learned counsel.
Now the point for consideration is that:
whether the impugned order is erroneous and illegal both on facts and under law and that as such liable to be set aside ?
Point :- The initial objection raised by the Opposite Parties is about maintainability of the claim of the Complainants on the premise that they did not file any Legal Heir Certificate. But, obviously this objection is not tenable for the simple reason that the Opposite Parties have paid an ex-gratia of Rs.1,00,000/-to both the widows of the deceased, Mada Ailaiah and that the said widows have accepted the same on their behalf and also on behalf of their minor children who are all Complainants in the case. Thus, the Opposite Parties have impliedly not only accepted them as legal heirs of the victim, Mada Ailaiah but also acted upon it. Therefore, they have no right to dispute the claim on the point of non filing of the Legal Heir Certificate.
Now coming to the actual controversy of the matter, it is to be noted that, undisputedly, late Mada Ailaiah died of electrocution on 06.03.2008 in his agricultural land. As per the evidence affidavit of Complainant no.1, the live wire leading from electric pole to the motor pump was snapped and fell in the Paddy field and that the deceased got electrocution while joining the wire to prevent danger of electrocution to other agricultural labourers. Even, as per the Police investigation i.e., Final Report under Ex.A9 and Ex.C1, the electricity supply seems to have off for quite long time on the fateful day and that at about 2-00 p.m., he observed restoration of the power as the electric motors of his neighbours were functioning and that as such he proceeded to start his electric motor installed at the Bore Well by switching it on. But, when the electric motor did not start, he checked it and found that cable wire connected to the live wire of the electric pole was broken and that he attempted to join the same and received an electric shock leading to his death. Even, as per the PME Report Ex.A8, the death was due to Cardio-Respiratory Failure as a result of electric shock. In this regard the Complainants have contended that the Department of the Opposite Parties was negligent in maintaining properly the live electric wires causing the fetal accident. The Opposite Parties have refuted this contention on the premise that the deceased ought to have informed them about snapping of the live wire so as to enable them to restore it to its original position but he took the risk of joining the broken cable wire and thereby acted negligently at his own peril and that as such there was no deficiency in service on their part. Their further defence is that, only on humanitarian ground their Department paid the ex-gratia to the Complainants.
In this regard we have to refer to certain provisions of the Electricity Act, 1910 [as amended by the Act 36/2003] and the rules made thereunder. As per Rules - 46,50 & 91 of the Indian Electricity Rules, 1956 the Department has to conduct periodical checks on electrical installations and take adequate precautions to ensure that no live parts are so exposed as to cause danger. Further, they shall take safety measures by providing with a device approved by the Electrical Inspector for rendering the line electrically harmless in case it breaks. In the present case, as per the evidence placed on record by the Complainants, the live wire was snapped from the electrical pole leading to breaking of the cable wire. This fact itself speaks volumes about the negligence on the part of the Department in maintaining the power supply live wires. Thus, there is gross violation of the above referred rules. No doubt, the deceased himself took the risk of joining the broken cable wire but the Opposite Parties cannot take advantage of the said act of the victim when they themselves erred in performing their lawful duties. To put it in other way, had there been no snapping of the live wire, there was no need to the deceased to attempt repairing of the broken cable wire. To clarify this aspect the Complainants have relied on the decisions of this Commission, Hon'ble National Commission and Hon'ble Supreme Court in the following cases:
One Mr. Subramanyam Naidu had died on account of electrocution on 25.05.2008 on account of accidentally stepping of on electrical live wire which had fallen on the ground. While dealing with the matter, by the order dated 26.02.2013 in R.P.no.3457/2009 in, Divisional Engineer [Operations] APCPDCL, Chittor, A.P., And another Vs. Smt. Bujamma And Others, the Hon'ble National Commission held that the Department had failed in its duty as service provider in ensuring that the electrical wires were properly maintained more so live wires which on contact can cause a serious risk to human life.
The Hon'ble Supreme Court in Madhya Pradesh Electricity Board Vs. Shail Kumar, 2002 (2) ALD -4 (SC), by invoking the law of strict liability, held as under :
"It is an admitted fact that the responsibility to supply electric energy in the particular was statutorily conferred on the Board. If the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into if the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defence on the part of the management of the Board that somebody committed mischief by siphoning such energy of his private property and that the electrocution was from such diverted line. It is the look out of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps." (Emphasis added.) It was further observed:
"Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risk exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability case on such person is known, in law as "strict liability".
In the present case also, the Department was negligent in maintaining the live wire properly leading to the incident. Therefore, the ratio laid down in the above said decisions, in our considered opinion, is squarely applicable.
The Learned Counsel for the Opposite Parties has vehemently contended that having accepted the ex-gratia un conditionally more so with an undertaking not to prefer any further claim in any court of law, the case as setup by the Complainants was not maintainable. In this regard he has invited our attention to the Receipt marked as Ex.B1 wherein it has been noted that the Complainants received the ex-gratia as final settlement and stated that they will not approach to any other authority to claim any additional compensation. Infact claiming compensation on account of a wrongful act is a statutory right of a claimant and that it cannot be curtailed or taken away by any means. In this regard let us refer to Section-28 of the Indian Contract Act, 1872 which reads as under:
28. Agreement in restraint of legal proceeding, void. 2 [Every agreement,
(a) by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or
(b) which extinguishes the rights of any party thereto, or discharges any party thereto, from any liability, under or in respect of any contact on the expiry of specified period so as to restrict any party from is void to that extent.] In the present case the deceased was using electricity to his agricultural land. Ex.A5 is a copy of Payment Receipt regarding power consumption. It shows that the service connection to the land was on the name of the Complainant no.1 herein, who is wife of the deceased. Thus, there was a contract of power supply between the parties and that the deceased was using the power through his wife. Inveiw of the above referred legal provision, the rights conferred on the Complainants cannot be restricted by the Opposite Parties even after receipt of the ex-gratia. This Commission in a similar case of death on account of electrocution in, M.Ramulu Vs. The Assistant Executive Engineer, NPDC of A.P. Ltd., And Others in F.A.no.863/2013, by the order dated 05.08.2014 held that payment of ex-gratia on account of unusual death of deceased cannot come in the way of courts directing payment of compensation etc. Similar view was taken by our Hon'ble High Court in W.P.no.511/2006 in S.Veera Veni and Others Vs. AP Eastern Power Distribution Corporation Limited and others by holding as under:
Receipt of the ex-gratia amount shall be without prejudice to the right of the Petitioners to claim compensation.
Even in W.P.no.5536/2004, between M.Lakshmaiah And Superintending Engineer, A.P. Transco, Nalgonda, our Hon'ble High Court held that the Petitioner is entitled to receive such ex-gratia without prejudice to his right to sue the licensee and its functionaries for compensation by availing proper legal remedy.
Inview of the legal fiction stated above we hold that the Complainants are certainly entitled to receive compensation irrespective of their receipt of ex-gratia from the Opposite Parties.
Now coming to the aspect of quantum of compensation, it is the settled law that the same can be calculated by adopting the method of multiplier under schedule-II of the Motor Vehicle Act, 1988. One such decision was rendered by this Commission in a similar case of death on account of electrocution, by the order dated 23.02.2010 in C.C.no.9/2008 in Md. Noorullah Shareef and Others Vs. The Managing Director-cum -Chairman A.P. Transco, Hyderabad and Others. We do not see any reason to differ with the said view. Therefore, the compensation has to be calculated accordingly.
As per the copies of FIR, Inquest and PME Report under Exs.A6 to A8 respectively, the deceased was aged 45 years at the time of the accident. The Complainants have given his daily earnings as Rs.150/- in Para-21 of their written arguments and the Opposite Parties did not dispute it. Taking it into consideration the District Forum has applied the multiplier of 13 by invoking the Second Schedule as per Section - 163 A of the Act, 1988, and calculated the quantum of compensation, which inour opinion, is appropriate. Thus, the net amount of eligible compensation comes to Rs.4,05,600/-. The complainants are further entitled for the amount towards the funereal expenses, loss of estate and also love and affection. By considering all these aspects the District Forum has granted a total compensation of Rs.4,40,000/- apart from costs of Rs.10,000/- which, in our view, in the give set of facts and circumstances, is just and most reasonable to meet the ends of justice and equity. The learned District Forum has considered all the material aspects meticulously and in a right perspective. The same is neither perverse nor erroneous and as such needs no interference.
In view of the foregone discussion, we hold that the Appeal is devoid of any merits and that as such liable to be dismissed.
In the result, the Appeal is dismissed by confirming the impugned order in toto but in the circumstances the parties shall bear their own costs.
PRESIDENT MEMBER Dt. 22.08.2017 [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER