State Consumer Disputes Redressal Commission
Jagmohan Singh vs General Manager, Bharat Sanchar Nigam ... on 1 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 338 / 2010
1. General Manager, Bharat Sanchar Nigam Limited
Patel Nagar
Dehradun
2. SDO (Telephones)
Bharat Sanchar Nigam Limited
Doiwala, Dehradun
......Appellants / Opposite Parties
Versus
Sh. Jagmohan Singh S/o Sh. Dile Ram
R/o Chandmari, Doiwala
District Dehradun
......Respondent / Complainant
Sh. M.K. Kohli, Learned Counsel for the Appellants
Smt. Savita Sethi, Learned Counsel for Respondent
AND
FIRST APPEAL NO. 351 / 2010
Sh. Jagmohan Singh S/o Sh. Dile Ram
R/o Chandmari, Doiwala
District Dehradun
......Appellant / Complainant
Versus
1. General Manager, Bharat Sanchar Nigam Limited
Patel Nagar
Dehradun
2. SDO (Telephones)
Bharat Sanchar Nigam Limited
Doiwala, Dehradun
......Respondents / Opposite Parties
Smt. Savita Sethi, Learned Counsel for the Appellant
Sh. M.K. Kohli, Learned Counsel for Respondents
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
2
Dated: 01/04/2014
ORDER
(Per: Justice B.C. Kandpal, President):
These two appeals, one by the service provider - telephone department and another by the complainant, arise out of the order dated 01.10.2010 passed by the District Forum, Dehradun in consumer complaint No. 49 of 2005, whereby the District Forum has partly allowed the consumer complaint and directed the opposite parties to pay compensation of Rs. 2,45,000/- to the complainant. Aggrieved by the said order, the telephone department has filed First Appeal No. 338 of 2010 and whereas not being satisfied with the quantum of compensation awarded by the District Forum, the complainant has filed First Appeal No. 351 of 2010 for enhancement. Since both the appeals arise out of the same judgment and order, hence these are disposed of together by this common order.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that on 19.02.2004 at about 6:00 a.m., a call came on telephone connection No. 2695196 issued in the name of Sh. Maan Singh, the brother of the complainant - Sh. Jagmohan Singh. It is alleged that the complainant and his brother are living in the same house where the above telephone connection has been installed. In order to attend the incoming call, when the complainant picked up the receiver, the waist of his hands and legs got burnt due to electric current. The complainant was taken to Doiwala Hospital, from where he was referred to Prasad Hospital, Rishikesh. It is alleged that on the same date, there was also electric current in the receiver of telephone connection Nos. 2695576 and 2691089 of Capt. Anand Singh and Smt. Anandi Devi respectively and on account of the electric current flowing in the receiver, the said persons also received burnt injuries.
3The intimation of the incident was given to the telephone department on 25.02.2004 and an FIR was also lodged with the police. On account of negligence on the part of the officials of the telephone department, the telephone line was laid on the electricity pole having electricity load of 11000 volt and on account of which, electric current flowed through the receiver. Alleging negligence and deficiency in service on the part of the opposite parties, the complainant filed a consumer complaint before the District Forum, Dehradun.
3. The opposite parties filed written statement before the District Forum and pleaded that the complainant is not the consumer of the telephone department; that on 19.02.2004, the complainant had tied the wire to some other place after removing it from DP; that there was no electric current in the telephone line; that the injury was suffered on account of negligence on the part of the complainant; that the height of the electricity pole was 20 feet from ground level and that of telephone pole was 15 feet and there was a difference of 5 feet between the electricity line and telephone line and that there is no negligence and deficiency in service on their part.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 01.10.2010 in the above manner. Aggrieved by the said order, the telephone department has filed First Appeal No. 338 of 2010, thereby assailing the propriety and legality of the impugned order passed by the District Forum and whereas being dissatisfied with the quantum of compensation awarded by the District Forum, the complainant has filed First Appeal No. 351 of 2010 for enhancement.
5. We have heard the learned counsel for the parties and have also perused the record.
46. The opposite parties have taken the stand that the complainant does not fall under the definition of "consumer", as the telephone connection has been issued in the name of Sh. Maan Singh, the brother of the complainant and hence the consumer complaint, if any, should have been filed by Sh. Maan Singh and not the complainant.
7. The complainant has specifically stated in para 2 of the consumer complaint that he resides along with his brother in the same premises, where the telephone connection has been installed. Thus, the complainant is also using the said telephone connection and is the beneficiary of the services rendered by the telephone department in respect of the telephone connection in question. Under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986, it has been specifically provided that the term "consumer" also includes the beneficiary of the services availed by the person other than the person who hires or avails of such services for consideration paid or promised. Since the complainant is living in the same house where the telephone connection has been installed along with his brother and, as such, he can very well be said to be the "beneficiary" of the services so availed by his brother and in view of the above provision of the Act, the complainant falls under the definition of "consumer" and the consumer complaint filed by him was clearly maintainable and the view so taken by the District Forum is perfectly justified and can not be faulted with.
8. So far as the plea taken by the opposite parties that the complainant had himself tied the wire to some other place after removing it from DP and he has sustained the injuries on account of his own negligence, is concerned, there is nothing on record to 5 substantiate the said plea taken by the opposite parties. Therefore, we do not find any force in the said plea of the opposite parties.
9. The opposite parties have also pleaded that there was a difference of 5 feet between the electricity line and telephone line and, as such, there was no occasion of the electricity current flowing in the receiver. In this connection, the opposite parties have placed reliance on the site plan (Paper No. 20kha/2 of the original record). It is true that the said site plan shows that there was a difference of 5 feet between the electricity line and telephone line, but the fact remains that the complainant has received burnt injuries on account of electric current flowing in the receiver of the telephone in question. This apart, Capt. Kartar Singh has stated in his affidavit dated 19.12.2005 (Paper Nos. 15ka/1 to 15ka/2) that on 19.02.2004 (the date of the incident) at about 5:45 a.m. when he picked up the receiver, he got electric current and he came out from his house and heard the noise of screaming. He had also stated that he went to the office of the telephone department to lodge the complaint, but his complaint was not lodged. Sh. Shambhu Naugain in his affidavit dated 14.12.2005 (Paper Nos. 14ka/1 to 14ka/2), has stated that on 19.02.2004 at about 5:45 a.m., fire erupted from the pole from where the telephone line was coming and he woke up and heard the noise of shrill and cry from the house of Sh. Maan Singh and that from the junction box of his telephone, smoke was coming. He has also stated that there was display of fireworks from the telephone pole. The opposite parties have not filed any evidence to corroborate the above statements made on oath. Thus, it is quite clear and proved that the electricity current flowed in the receiver of the telephone in question on account of negligence and deficiency in service on the part of the opposite parties and the view to this effect taken by the District Forum, is perfectly justified and can not be faulted with.
610. So far as the plea taken by the opposite parties that the District Forum has wrongly relied upon the disability certificate filed by the complainant on record and that the same was not produced by examination of doctor who had issued the same, is concerned, we also do not find any force in the said plea of the opposite parties. It is true that the complainant has not produced any doctor in support of the disability certificate, but in the given facts and circumstances of the case, the genuineness and authenticity of the disability certificate can not be doubted. The disability certificate was issued by Chief Medical Officer, Dehradun and not by a private medical practitioner. This apart, the strict provisions of the Evidence Act do not apply to the proceedings initiated under the Consumer Protection Act, 1986, which is a beneficial legislation, enacted for the welfare of consumers and to provide relief to the consumers in case there is any deficiency in service or negligence on the part of the service provider. The opposite parties have also not filed any documentary evidence to show that the disability certificate is incorrect and is not genuine or that the complainant has not sustained any disability or injury in the incident in question. The opposite parties have not denied the fact that the complainant suffered burnt injuries in the incident and he was hospitalized and had taken treatment in connection with the said injuries. Thus, the District Forum has rightly relied upon the disability certificate and has rightly taken the same into consideration while calculating the compensation, to be awarded to the complainant. There is also no provision under the Consumer Protection Act, 1986 for examination of the witnesses by the parties in support of their respective case and, thus, there was no need for the complainant to have examined the doctor who had issued the disability certificate or to file his affidavit, more so, when there is nothing on record to create 7 any suspicion about the authenticity and genuineness of the disability certificate.
11. So far as the quantum of compensation awarded by the District Forum is concerned, from the perusal of the impugned order passed by the District Forum, it is evident that the District Forum has relied upon the medical bills filed by the complainant on record and after considering the same, has come to the conclusion that the complainant is entitled to sum of Rs. 29,201/- towards medical expenses and while calculating the total compensation, has rounded off the same to sum of Rs. 29,000/-, which can not be said to be unjustified. The District Forum has also placed reliance on the disability certificate of the complainant on record, wherein the disability has been shown as 60% and the medical board has certified that the said disability is of permanent nature. The said disability certificate has been issued by the Chief Medical Officer, Dehradun on 22.09.2004. There is nothing on record to discard the said disability certificate. Since there was no evidence on record with regard to the income of the complainant and hence the District Forum has taken the income of the complainant on notional basis to the tune of Rs. 3,000/- per month and has worked the total annual income as Rs. 36,000/- and applying the provisions of Motor Vehicles Act, 1988 and taking into consideration the age of the complainant as 46 years, has adopted the multiplier of "10" and taking the disability as 60%, has worked out the compensation as Rs. 2,16,000/- and after adding sum of Rs. 29,000/- towards medical expenses, has awarded the total compensation of Rs. 2,45,000/-, which can not be said to be on the higher side. Thus, the appeal filed by the telephone department bearing First Appeal No. 338 of 2010 being devoid of merit, is liable to be dismissed.
812. Learned counsel for the complainant cited a decision of the Hon'ble Apex Court in the case of Raj Kumar Vs. Ajay Kumar and another; IV (2010) ACC 815 (SC), wherein the Hon'ble Apex Court has held that under the Motor Vehicles Act, 1988, just compensation is one which should fully and adequately restore claimant to position prior to accident. In the said case, the claim petition was filed under the provisions of Motor Vehicles Act, 1988, which is not the position here. Even otherwise, the District Forum has taken into consideration the provisions of the Motor Vehicles Act, 1988 and the disability suffered by the complainant in the incident and has awarded the compensation accordingly. Learned counsel for the complainant cited another decision of the Hon'ble Apex Court in the case of Mohan Soni Vs. Ram Avtar Tomar and others; 2012 (1) T.A.C. 385 (S.C.). In the said case, the injured was a cart puller and in the accident, he suffered multiple fractures in left leg and underwent two surgeries and his left leg below knee was amputated. It was held that the loss of earning capacity of injured can not be less than 90%. In the present case, the complainant has not filed any evidence to show that he is not able to do the work which he was doing prior to the incident. The District Forum has relied upon the disability certificate showing disability as 60% and has awarded the compensation accordingly. The same is the position with another decision of the Hon'ble Apex Court rendered in the case of S. Suresh Vs. Oriental Insurance Company Limited and another; 2010 (1) AIR SCW 437, pressed into service by the learned counsel for the complainant. In the said case, a lorry driver suffered serious injuries to his right leg, on the head and other parts of the body and his right leg below knee had to be amputated. The injured became unable to work as a driver.
13. So far as the appeal filed by the complainant for enhancement bearing First Appeal No. 351 of 2010 is concerned, as is stated above, 9 while awarding the compensation, the District Forum has taken into consideration all the material on record and also the genuineness and authenticity of the medical bills submitted by the complainant and has also relied upon the disability certificate filed on record and has awarded the compensation on the basis of the provisions of Motor Vehicles Act, 1988, taking into consideration the notional income of the complainant as well as his age. Thus, we are of the considered view that the District Forum has adequately compensated the complainant and he is not held entitled to any further relief.
14. For the reasons aforesaid, both the appeals lack merit and are liable to be dismissed.
15. In view of above, both the appeals are hereby dismissed. No order as to costs.
16. Let the copy of the order be kept on the record of First Appeal No. 351 of 2010.
(C.C. PANT) (JUSTICE B.C. KANDPAL) K