National Consumer Disputes Redressal
Smt. Muneesh Devi vs U.P. Power Corporation Ltd. & Ors. on 3 February, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 253 OF 2002 WITH IA/543/2013 Smt. Munesh Devi W/o Late Shri Jagbir Singh R/o. A/103, Sunita Vihar 100 ft. Road, Loni Tehsil & District Ghaziabad Uttar Pradesh Presently residing at : C/o B.P.Singh, C-31 Gali No.1, Khajoori Khas, Delhi 110 094 .... Complainant Vs. 1. The U.P. Power Corporation Ltd. Shakti Bhavan, 14, Ashoka Marg Lucknow 2. The Executive Engineer Electricity Distribution Division - 11 SB-VI, Shastri Nagar, Ghaziabad 3. The Sub-Divisional Officer Electricity Distribution Division Pargana Loni, District Ghaziabad .. Opposite Parties BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HONBLE DR.S.M.KANTIKAR, MEMBER For the Complainant : Mr. Vishal Saxena, Advocate For all the Opp. Parties : Mr. Pradeep Misra, Advocate Pronounced on 3rd FEBRUARY, 2014 ORDER
JUSTICE J.M. MALIK
1. The facts germane to this complaint case filed before this Commission on 11.07.2002, by Smt. Munesh Devi, Widow of late Shri Jagbir Singh, R/o. A/103, Sunita Vihar, 100 ft. Road, Loni, Tehsil & District Ghaziabad, Uttar Pradesh, (Presently residing at C/o B.P.Singh, C-31, Gali No.1, Khajoori Khas, Delhi 110 094) are these. The Complainant has claimed a sum of Rs.25,00,000/-
because the death of her husband was caused due to the transformer installed and maintained by the Opposite Parties, while he was returning home from duty. The transformer of the Uttar Pradesh Power Corporation Ltd., (UPPCL, in short), arrayed as OP No.1, suddenly burst and the hot oil of the transformer fell upon her husband, late Sh. Jagbir Singh, on 05.02.2000 at about 6.00PM. He received 85% burn injuries. He was taken to Safdarjung Hospital, where he succumbed to burn injuries on 08.02.2000.
2. Sh Jagbir Singh who was residing at the above mentioned address was an employee of the Mahanagar Telephone Nigam Ltd., (MTNL, in short) at Delhi. The information regarding the death of the deceased was given to the Police. The complainant claimed Rs.25.00 lakhs as compensation under different Heads before the OPs. The said claim has not been decided so far. The transformer in question was very old and rusty. The OPs were entrusted with the job of maintenance, removal and replacement of equipments which are needed for the generation and supply of electricity. The local inhabitants informed the OPs about the pathetic condition of the transformer but the OPs did not pay any heed to it. The deceased at the time of the death was drawing a monthly salary in the sum of Rs.6,275/-. He was born on 01.07.1961 and he passed away when his age was 38 years 7 months. The complainant, at the time of her husbands death, was about 33 years and she has to look after her three minor children.
3. The complainant approached the civil court, Honble High Court and Honble Supreme Court, respectively, on the ground that she was unable to pay a sum of Rs.1,00,000/- as court fee and wanted exemption from paying the court fee, but her request was not allowed. It is prayed that complainant be awarded a sum of Rs.25,00,000/- on account of the deficiency, negligence and dereliction of duty on the part of the OPs.
4. The OPs contested the case and set up the following defences. The complainant is not a consumer and she is not entitled to Rs.25,00,000/-. The details given by her are not clear. All the allegations have been denied including that no application for compensation was received by the replying OPs. It is, admitted that UPPCL, OP1 is a Government Company which has been entrusted with the work of transformation and distribution of electricity in Uttar Pradesh. It is also admitted that a transformer of the OPs was burnt due to sudden fall. No copy of FIR was enclosed with the complaint. The OPs were maintaining the transformer from time to time and its capacity and load and oil used to be checked from time to time. It is denied that the transformer burst out due to negligence of the OPs. There is no provision under which compensation for sudden accident due to the fact which was beyond the control of the replying OPs could be granted. The incident did not occur in the premises of the complainant but had occurred on the road, and by chance, the complainants husband was passing by it, at that time. No cause of action has arisen in favour of the complainant and she is not entitled to any compensation.
5. Previously, we (Justice J.M. Malik and Sh. Vinay Kumar), have heard the case and decided that the case was barred by time, vide our order dated 18.02.2013. Aggrieved by that order, the complainant filed a Special Leave Petition before the Honble Apex Court. The said SLP was accepted. It was held that the delay in filing the original petition was condonable. The delay had been condoned and the case was remanded back to this Commission, vide order dated 19.07.2013.
6. We have heard the counsel for the parties and gone through the evidence led by them, through affidavits. The complainant, Mrs. Munesh Devi has supported her case by filing an affidavit. She contended that she has been consuming electricity, distributed by U.P. Power Corporation Ltd. She has proved the receipt of bill, Ex.P-2. She has also placed on record, Ex.P-3, wherein she made claim before the Executive Engineer (Electrical), Supply Division-VI, Shastri Nagar, Ghaziabad, the copy of the picture of the Transformer, Ex.P-4, the Post Mortem report, Ex.PW-1/1, Discharge summary report, PW-1/2 and the documents showing that the electricity distribution estimate for the replacement of damaged transformer have been placed on record by the complainant. It is also apparent that the damage was caused to the transformer on 16.01.2000 and on 06.02.2000. She has also proved on record the salary of her husband at Rs.6,275/- dated 20.09.2000.
On the other hand, the OPs have denied all these allegations.
7. The submissions made by the counsel for the OP has the following five prongs. The complainant has approached the Civil Court, Honble High Court and Honble Supreme Court in respect of exemption of court fees. All the above said courts gave short shrift to her request.
Ultimately, this consumer complaint was filed, which is barred by principles of res judicata.
8. We clap no significance to this feckless argument. The expression of Matter in Issue in Section 11 of the Code means the right litigated between the parties, i.e., the facts on which the right is claimed and the law applicable to the determination of that issue. The merits of the case were never adjudicated. This view neatly dovetails with the cases reported in Jaswant Singh Vs. Custodian of Evacuee Property, AIR 1985 SC 1096 and Syed Mohd. Vs. Mohd. Hanijfa, AIR 1976 SC 1569. The matter in question is still to be decided. Even if the case is decided on a preliminary issue, there lies no rub in deciding the case on merits. Last, but not the least, there is no inkling in the order of the Supreme Court that this case is barred by principles of res judicata. While condoning the delay of 156 days, the Honble Apex Court held that the case is remitted back to this Commission for disposal thereof on merits. Consequently, we pin no value to this argument.
9. The second submission made by the counsel for the OP was that the complainant had an alternative remedy under the Fatal Accident Claims Act.
10. This argument was stated for its outright rejection. It is the choice of the complainant herself either to file complaint under CP Act, 1986 or under any other Act.
Section 3 of the CP Act, 1986, has crystallined clarity. Section 3 lays down 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. Consequently, this argument has to be left out of consideration.
11. The third submission advanced by the counsel for the OP was that the accident took place on 05.02.2000, but the intimation to the Department, was not given till, 28.07.2000. The delay was never explained. The complainant has never filed the claim before the OPs. There is no representation or its copy or any entry, etc., on record.
12. This plea is mere palliative and does not delve deep to the roots of the malady. The case of the opposite party is at sixes and sevens. The FIR, Post Mortem report and admission of OP itself, clearly go to show that the accident took place.
The complainant could have waited for two years and with an application for condonation of delay for more time. Even if there is no representation or entry in the record, it does not mean that the complainant does not have any case. It was known to the MTNL Department, (Mahanagar Telephone Nigam Limited) and, therefore, she got service of Class IV Employment on compassionate ground. This was a well-known fact and there is no use to bury your head in the sand.
It has become a fashion to deny the obvious facts which is against the spirit and object of the jurisprudence.
13. The last submission made by the counsel for OP is that the complainant has got employment as Class IV employee and that fact should be considered while granting compensation.
14. The record reveals that the OP was very well aware of the fact that their Transformer was not working properly. The documents themselves show that from 16.01.2000 and, on 06.02.2000, they were aware of these defects in the Transformer. The employees of the OP perused the matter in a lackadaisical manner till the whole drama ended in tragic death of Shri Jagbir Singh. This is dereliction of duty. This is negligence and with a vengeance. They should have removed the defects immediately, rather than putting the lives of the people in jeopardy. It is well said A Stitch in Time, Saves Nine. The deceased was a young man. On the date of his death, he was aged about 38 years and 7 months and his young wife was about 33 years at that time.
If we calculate the salary for remaining 22 years, it comes to Rs.16,56,600/-. This is without the 6th Pay Commission report. If we count the 6th Pay Commission, his increments/promotions, his Provident Fund, etc., it will be around Rs.10,00,000/-
p.a. or more, tentatively. However, the complainant has claimed a sum of Rs.25,00,000/- only. This appears to be just and reasonable. In the celebrated authority, reported in Balram Prasad (Dr.) Vs. Dr. Kunal Saha, IV (2013) CPJ 1 (SC), it was held :-
He has further rightly contended that with respect to the fundamental principle for awarding just and reasonable compensation, this Court, in Malay Kumar Gangulys case (supra), has categorically stated while remanding this case back to the National Commission that the principle for just and reasonable compensation is based on restitutio in integrum that is, the claimant must receive sum of money which would put him in the same position as he would have been if he had not sustained the wrong.
15. Under the circumstances, we allow the complaint and direct the OP to pay a sum of Rs.25,00,000/-
to the complainant, along with interest @ 9% p.a. from 08.02.2000, the date of death of the complainants husband. The complainant has been deprived of the company of her husband. She is the only person to look after her minor children.
She must have undergone harassment, mental agony, anguish, despair, frustration, sadness, anger, etc., all these years. Consequently, we award her compensation in the sum of Rs.10,00,000/- and litigation charges in the sum of Rs.2,00,000/-. Hopefully, she will continue with her service in the MTNL. The order be complied with, within 90 days from the date of receipt of this order. Otherwise, the compensation and litigation charges will also carry interest @ 9% p.a., till realisation.
....J (J.M. MALIK) PRESIDING MEMBER ...
(DR.S.M.KANTIKAR) MEMBER Dd/