ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) alleging the deficiency in service in not providing firefighting equipment in the floor in which the complainant is residing and for damages of Rs.8,40,139/- as compensation along with interest and Rs.1,50,000/- as damages for suffering mental agony and inconvenience and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The OP1 is the Commissioner, Karnataka Housing Board, OP2 and 3 are the executive engineer and Asst. Executive Engineer looking after the flats constructed by them in Kengeri Upanagara, Bangalore.

3.      It is contended that the complainant was allotted a flat No.D-101, in KHB Platinum High Raise Apartment, Kengeri Upanagara. The sale deed was registered in his name on 16.12.2017 and possession was given on the same day. He is the absolute owner of the said flat.  The same was constructed on behalf of OPs by Nagarjuna Construction Company. He has been living in the said flat.  He noticed that some work in the said flat was incomplete including electrical wiring and fire safety precaution which is the basic need.  The same was brought to the notice of OP through the association by writing a letter on 3.6.2019 and the fire department considering the request, inspected the premises and found the incomplete work and also no fire safety measures installed in the building. It issued notice to the OPs on 5.7.2019 to take up the safety measure immediately and on the failure, to take necessary action against the builders. Inspite of it, OPs did not taken any action to provide the fire safety measure.  Precaution for fire safety measures to the whole apartment was not taken and the NOC from the fire department was not obtained.  OP has not handed over the said building to the BBMP.

4.      It is contended that on 02.07.2019 at around 7.30 pm, there was a fire in his house due to the short circuit. Luckily there was no one injured.  Complaint was given to the police and they came and draw a mahajar and registered a case. Photographs and CDs were taken. The relative of the complainant, a girl who was residing in the house at the time of short circuit, came out of the house shouting and calling for help due to the said fire.  Within few minutes, the neighbors came and tried to put off the fire.  But the fire equipment’s which was kept by the OP was not at all working and due to that, the fire spread to more place and the fridge of his house got burst.  The report of the fire department is appended to the complaint.  Since the smoke emanating from the fire did not allow the neighbors to enter inside the house, some person called the firefighting department and the fire engines came to the spot and with much difficulty, put of the fire after struggling for two hours.  By that time, the entire kitchen, dining hall was fully burnt and luckily it did not spread to the other flats, which was having 13 floor building.

5.      It is contended that the loss suffered by the complainant was Rs.8,40,139/-. He bought the flat for Rs.42,00,000/- believing that the state government/housing board will provide all necessary facilities and also the safety measures. Whereas, OPs are negligent in not providing fire safety measures.  When the matter was brought to the notice of OPs, in the next morning, they did not bother even to speak to the complainant.  As on the day, the whole premises and the management of the flat was not handed to any of the association and still in the management of the OPs only.  Though informed to OPs, OP2 only came to the spot three days after the incident and did not bother to provide another alternate house for their stay. The act of OP evidences atrocious attitude besides deficiency in service and also against the law in respect of newly constructed flats. By writing letter on 05.07.2019 complainant requested OP to compensate for the loss he has suffered. Inspite of it, OPs did not heeded to the request. Since there is deficiency in service on the part of OPs in not providing basic safety measures in providing the firefighting equipment and not maintaining it properly, OPs are liable for the deficiency in service and liable to pay the compensation and hence the complaint.

6.      Upon the service of notice, OP1, 2 and 3 appeared before the Commission and filed the version contending that the complainant is not a consumer and the complaint is not maintainable and has filed this complaint unscrupulously by adopting dubious method and he has filed fraudulent litigation which requires imposing of exemplary cost.  As per section 72 of the Karnataka Housing Board Act, no suit against the board is maintainable, unless two months previous notice in writing is given in respect of intending to file the suit or taking action and not to file any complaint after six months from the date of complaint.  This fact has been upheld by the Karnataka State Commission in A.No.708/2006.  Hence the complaint is not maintainable and liable to be returned.  It has also contended that the proceedings initiated under the Consumer Protection Act, amount to a suit as held by Hon’ble Supreme Court of India 2011(8)SCC 538 and hence this complaint is not maintainable.

7.      Even this complaint is also not maintainable in view of the Deputy Electrical Officer, report and the Panchanama produced which do not bears the signatures of the Panchas.  Out of 808 flats constructed by OP, 700 flats were sold to public.  Complainant was allotted and sale deed was registered in respect of flat No.101.  It is baseless to allege that some wiring work and fire safety work has not been completed in respect of the buildings constructed by the OP.  After receipt of the complainant letter dated 04/05/07/2019, OP3 sent a letter to the Deputy Chief Electrical Inspector and he after verification filed a detailed report which was submitted to the Chief Secretary, Energy Department, Government of Karnataka, which itself clearly discloses that the complainant was having an old refrigerator in his house and due to internal mistake of the refrigerator, short circuit took place, since no stabilizer was fixed on the refrigerator for controlling the power.  The deputy electrical inspector’s report shows that the complainant has removed all the materials which were burnt due to short circuit and did his renovation to his flat, hence no material was available for inspection and verification.  The main switch board, the MCB and HCB were in good condition.  There is no fault in the main switch.  Complainant has admitted the said fact.  Hence there is no fault on the part of the OP.  Before filing the complaint, the complainant himself obtained quotation in respect of the expenditure required for modular kitchen and furniture.  The claim of the complainant is illegal.  The Electrical Inspector Report is against to the contention of the complainant. To make a claim he has filed this complaint making false allegation against the OPs.  No notice is served on the OPs.  The claim made in the complaint is imaginary and cannot be granted. There is no deficiency on its part and the claim of the complainant regarding damages was rejected by the letter dated 22.08.2019.  Denying all the allegations made against it in each and every para of this complaint, prayed the forum to dismiss the complaint by imposing cost of Rs.10,000/- in terms of section 26 of the C.P.Act.

8.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

9.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

10.   POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant purchased the flat bearing No.D-101, in KHB Platinum High Raise Apartment, Kengeri Upanagara, Bangalore, constructed by OPs and that he is in possession of the same and living therein.  It is also not in dispute that there was a fire accident in his house and some house hold articles burnt.  According to him he suffered damages to the extent of Rs.8,40,139/-, which he wanted to be paid by the OPs as it is his contention that OPs did not provide firefighting equipments in the apartment inspite of request and maintained it properly.

        11.   It is also not in dispute that immediately after the fire accident, the same was reported to police and the Electrical Inspector, and the Electrical Inspector after two to three months, inspected the premises and has given his findings.  The police have drawn a mahajar of the spot.  The complainant has also produced the photographs to show regarding the destruction of the materials in his house and also the burnt portion of the water filter, the wooden interiors, blackening of the walls, destruction of sofas, furniture’s and other utensils. He also produced the photographs to show that firefighting equipments and fire extinguishers are provided. Whereas, it is his further case that they were not in order to be used at the time of the need.  Hence the damages to his house hold articles have become aggravated.

        12.   It is the contention of the OP as per the version narrated above that they have constructed 808 flats in platinum High Raise apartment and out of which 700 were sold to various persons including the complainant and nobody has complained regarding low quality of electrical work using substandard materials, and there was no short circuit any of the house except in the house of the complainant.  It is their further contention that the incident has taken place within the house of the complainant for which it cannot be held responsible.

        13.   Under these backgrounds, if the documents produced by the respective parties are taken into consideration, there was a short circuit in the house of the complainant and according to him the compressor of fridge used by him got bursted and thereby there was a short circuit due to which there was a fire and some of the house hold articles were got burnt.  FIR is also filed to the police, who have registered the complaint.  A complaint was also given to the Electrical Inspector.  It is to be noted here that, the incident has taken place on 02.07.2019 and the information was given to the Deputy Chief Electrical Inspector, Bangalore West, on 16.07.2019 and the electrical inspector by name Huligappa visited the house on 24.07.2019 and found the gas stove, the mixi, fridge, TV, TV stand and the furniture’s of the house have burnt to the fire.  In his report he has found that the fire accident has taken place in Flat No.D101, of KHB Platinum apartment, in D Block.  A First information was given by the complainant to the police and he has visited the apartment area wherein 4/250 KVA transferor was allotted and the underground cable work has been connected to the main panel board through which electricity has been supplied to all the flats.  At the time of inspection he found that all the burnt items have been removed from the spot and are lying in the car parking area in the underground and painting was being done to the house which was got fire.  To the house of the complainant, a meter manufactured by HPL bearing No.37620585 has been installed with a 32 amps fuse cut out.  The meter the terminal leads and the fuse wires were in order and there was no damage to them. When enquired it was revealed that the refrigerator, compressor kept in the kitchen got burst thereby, the fridge got fire and as a result all the other house hold articles in the kitchen got burnt.  The 25 amps MCB and RCCB were in order.  Except the wiring in the Kitchen, the rest of the electrical wires of the house of the complainant were in order. He has given a firm opinion that the fire accident has taken place due to the burst in the refrigerator compressor.  

        14.   When this report along with the mahajar and the say of the complainant is taken in to consideration, the fire accident taken place either due to the short circuit in the house or due to the burst of the compressor of the fridge of the complainant’s house for which OP cannot be held responsible.  As per the report of the Electrical Inspector, except the electrical wiring in the kitchen, all the rest of the wiring to the house were in order.  When such being the case, this may be due to the short circuit or burnt of the compressor of the fridge. 

        15.   Complainant has not got the fridge inspected and evaluated by a qualified engineer who has knowledge of fridge to make it clear that the incident has taken place due to the burst of the compressor of the fridge.  No expert evidence is produced.  So also no estimate regarding the loss he has suffered and the amount required for restoration of the articles and furniture’s which was destroyed due to the said fire accident.  In this regard and by taking into consideration that no fire accident has been reported in respect of the other flats, and in furtherance of the report of the electrical inspector, it is to be held here that OPs have used standard materials and standard equipment’s in providing electrical wiring and supply to all the houses built by it.  Hence in this view of we cannot hold the OP liable for the fire incident that has taken place in the house of the complainant.

        16.   On the other hand, if we see Ex.P3 it can be seen that the Platinum resident welfare association a registered body has made a complaint on 03.06.2019 to the Additional Director General of Police, Firefighting and emergency services and to the Superintendent of Police, Firefighting and emergency services, requesting them and complaining them that the fire extinguishing machine installed in the flats are not kept in well preparedness and in some areas the fire controlling equipments have not been installed, and the KHB authorities have not at all taken fire safety measures and they learnt that there were many fire accidents in multi-storied buildings and in case these fire controlling machines were not kept in proper manner, there is every likelihood of loss of life and hence requested the authorities to inspect and enquire and issue suitable directions in that respect to the KHB authorities.

        17.   Upon the said request as per Ex.P4 on 10.06.2019 the Regional Fire controlling authority South Bangalore, visited the flats constructed by the OPs and found the following;

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2. ¥Àæw ªÀĺÀrAiÀÄ°ègÀĪÀ ºÉÆøï PÁå©£ïUÀ¼À°è ºÉÆÃ¸ï ªÀÄvÀÄÛ ¨ÁæAZïUÀ¼À£ÀÄß C¼ÀªÀr¹gÀĪÀÅ¢®è
3. MLC (Manual Call Point) zÀÄgÀ¹ÜAiÀiÁVzÀÄÝ PÁAiÀÄð¤ªÀð»¸ÀÄwÛgÀĪÀÅ¢®è
4. Public Address System zÀÄgÀ¹ÜAiÀiÁVzÀÄÝ PÁAiÀÄð¤ªÀð»¸ÀÄwÛgÀĪÀÅ¢®è
5. vÀ¼ÀªÀĺÀr ªÁºÀ£ÀUÀ¼À ¤®ÄUÀqÉ ¸ÀܼÀUÀ¼À°è CVߣÀAzÀPÀUÀ¼À£ÀÄß ªÀÄvÀÄÛ ¥sÉÊgï §PÉÃmïUÀ¼À£ÀÄß C¼ÀªÀr¹gÀĪÀÅ¢®è
6. Fire drivewayAiÀÄ°è vÀÄvÀÄð ¸ÀAzÀ¨sÀðUÀ¼À°è CVß±ÁªÀÄPÀ ªÁºÀ£ÀUÀ¼ÀÄ vÉgÀ¼À®Ä C£ÀĪÁUÀĪÀAvÉ 6.00«Äà Fire driveway MzÀV¸À¯ÁVgÀÄvÀÛzÉ, DzÀgÉ ¤ªÀÄä PÀlÖqÀzÀ°è Fire driveway CqÀتÁV ¨ÁåjPÁåqïUÀ¼À£ÀÄß C¼ÀªÀr¹gÀĪÀÅzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ.

And also given directions to the Chief Engineer of KHB to immediately set right and take suitable action in respect of the said defects found in maintaining the electrical safety gadgets.  The regional fire fighting authorities have also intimated the said facts to the asst. executive engineer, KHB Kengeri, Bandemutt Division.  Inspite of it, there is no documents produced by the OPs for having complied with the directions of the fire safety authorities to carry out the said findings.  When this is taken into consideration, there is lapse, and negligence on the part of the OP.  

        18.   Though the fire accident has taken place within the flat/house of the complainant due to either short circuit of the electrical wiring or due to the blast in the compressor of the fridge of the complainant, though it is the duty of the complainant to keep the electrical equipments and the electrical wiring in order within his premises, it is equally the responsibility of the OPs to keep the fire equipments installed to the building and to the each floor of the flat in well preparedness and partly to use.  So that, in case of any fire emergency, either within the house or in the corridor or in the building immediately the said equipments could be put to use and try to douse the fire, so that, the effect of such a fire accident would be controlled and curtailed.  In this case, inspite of the directions given by the fire safety authorities regarding not repairing the fire pumps and not keeping it in a working condition, and not providing hose cabin and hose branches and manual call point not working and not providing the fire extinguisher and fire buckets and putting barricades in the fire drive way clearly aggravated the situation and the fire spread to the entire kitchen and destroyed and the house hold articles and furniture’s of the house as could be seen from the photographs Ex.P8 filed and also from the electrical inspection report.  Hence we are of the opinion that in this aspect of not maintaining the fire safety measures equipments, and not keeping it in the state of use and preparedness, OPs have acted negligently, carelessly without taking proper safety measures to the life of the inmades of the flats.  Hence to this effect we hold OPs responsible for negligent act and thereby there is deficiency in service on its part. Hence we answer point No.1 in the affirmative.

POINT NO.2:

19.   In the result OP is bound to compensate the complainant in respect of the damages he has suffered due to the fire accident that has taken place.  In this connection as observed already, complainant has not placed any inventory in respect of the damage that has taken place to the house hold articles and the furniture’s of his house.  No estimation of the loss in respect of the articles and the furniture’s has been placed before the forum.  No experts evidence or the mechanic/technician evidence and the report in respect of the damages to the fridge, to the electrical gadgets has been filed before the forum.  So also the estimate regarding its replacement or the repair.  Hence this forum cannot accept the say of the complainant that he was put to a loss of Rs.8,40,139/-. 

20.   OP is not liable to pay the said entire amount since the incident has taken place within his house due to the short circuit in the kitchen or due to the blast in the compressor of the fridge of his house.  But this (the fire) could have been controlled or doused by using the fire extinguishers operated by hand or by using the hose through which water could have been forced on the fire to put off the same. Had the OP kept the said fire extinguishers operated by hand or the hose pipes with water in order and in a operable condition, damage to the house hold articles, kitchen equipments could have been minimised.  Since the report of the fire safety officers or to the effect that the said safety measures were not kept in a well prepared manner so as to put to use, the liability squarely falls on the OP also.

21.   In view of this we hold that the negligence on the part of the OPs to the extent of 30% and the rest due to the negligence of the complainant in not getting the electrical gadgets tested and repaired as required to be done in periodical time. Hence we answer point No.2 holding that OPs are liable to pay 30% of the total loss and the complainant to bear the remaining 70% on his own.  

22.   On perusal of the photographs wherein the materials were destroyed, and the invoices produced as per Ex.P14, complainant has claimed Rs.8,40,000/-.  On the other hand in the estimate and the complaint he has mentioned that a sum of Rs.6,00,000/- worth properties were destroyed in the fire.  In the absence of clear cut evidence, and taking into consideration, the mention of the amount of Rs.6,00,000/- in the complaint which was filed at the earliest point of time, we hold that the property worth Rs.6,00,000/- has been destroyed in the fire and as discussed above, we hold OP responsible to pay 30% out of the six lakhs as damages.

23.   The counsel for OPs have vehemently argued that u/s 72 of the housing board act, two months clear notice is to be given by the complainant to the Housing board authorities for filing the complaint.  He has also contended that the Hon’ble Supreme Court of India has held that the proceedings before the Consumer forum is a suit and hence notice is mandatory.  

24.   If at all such a view has been taken by the Supreme Court, it has only mentioned as a suit.  Whereas, it is not in the real sense as contemplated under the civil procedure Code.  If the argument of the counsel for OP is to be accepted, then the State Commissions, the Hon’ble National Commission and the Hon’ble Supreme Court of India, would not have entertained so many complaints, appeals and Revision Petition against the State Government, various quasi judicial authorities and agencies, wherein there is a mandatory requirement of issuing prior notice.  There are so many statues envisages mandatory notice prescribing certain period to be issued to the government and other quasi judicial authorities, before filing suit. For Example: sec 80 of the CPC provides notice to the government  in case suit has to be filed, whether the state government or the central government.  If there was any service deficiency a person files a complaint before the forum, the same cannot be thrown out for want of notice as the complainant is seeking remedy under the C.P.Act, which is a special enactment, which has a overriding effect on all the general laws.  If that were to be so, then the Hon’ble Supreme Court of India, the Hon’ble National Commission and the State Commission would not have entertained the complaint, the appeal or the revision petitions against the Government Agencies, Telecom Department, Insurance Department, Housing Board Department and Urban Development Authorities, which all under their act mandates notice before taking an action under the law.

25.   Hence the contention of the OP’s counsel that this complaint is not maintainable for want of notice u/s 72 of the Karnataka Housing Board Act, cannot be accepted and the same is rejected.

26.   Due to the act of OP complainant suffered the damages to the extent of six lakhs rupees, when sought compensation, OP refused to pay the same.  Further OP made the complainant to approach this forum for redressal by engaging advocate to fight the litigation to establish his right of consumerism.  Complainant is a consumer and the OP is a service provider in this case. Hence we are of the opinion that if a sum of Rs.25,000/- towards damages for causing mental agony, strain and physical hardship and Rs.10,000/- towards litigation expenses if OPs are ordered to pay to the complainant, would meet the ends of justice. Which we are of the opinion that it would be just and reasonable. Hence we answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part.
2. OP1, 2 and 3 are directed jointly and severally directed to pay 30% of compensation out of Rs.6,00,000/- to the complainant.
3. OP1, 2 and 3 are further directed to pay Rs.25,000/- towards damages and Rs.10,000/- towards litigation expenses.
4. OPs are further directed to keep the entire fire fighting extinguishing system in order as observed by the Director of Fire Services in Ex P13 and file a report to this forum after obtaining a certificate from the fire services authority for having complied the observation within 30 days from the date of obtaining the certificate.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 17^th  DAY OF MARCH 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Sale Deed executed in my favour by OP

Ex P2: Copy of the Possession Certificate issued by OP

Ex. P3: Copy of the letter written by Fire Fighting department to the Association of residents of KHB Platinum Residents.

Ex P4: Copy of the letter written by the Fire Fighting department to the Chief engineer, KHB and Asst. Executive Engineer, KHB, Bangalore.

Ex P5: Copy of the complaint given by me to the Kengeri police Station, dated 03.07.2019.

Es P6: Copy of the acknowledgement given by the police

Ex P7: Copies of FD Receipts for having deposited amount with OP.

Ex P8: Photographs along with CD to show the damage caused due to fire.

Ex P9 : Copy of the complaint given by me to the electrical inspector.

Ex P10: Copy o the letter written by the Chief Electrical Inspector to the Addl. Secretary, Department of Energy, Bangalore

Ex P11: Copy of the Statement given by me to the electrical Inspector.

Ex P12: Copy of the Complaint given by me to the Fire station, Nagarabhavi, Bangalore.

Ex P13:  Copy of the Inspection report given by the Fire Fighting Authority

Ex P14: Copy of the estimation regarding the damage caused and the amount required for repair.

Ex P15: Notice issued to the KHB seeking compensation for the damage caused due to fire.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.Ravi Sharanappa

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Authorization letter issued by the Secretary KHB to represent him in this case

Ex R2: Copy of the letter written by our office to the Chief Engineer, KHB, Cauvery Bhavan, dated 22.08.2019

Ex R3: Copy of the another letter addressed to the Electrical Inspector, Bangalore West and Postal acknowledgement for having received the letter addressed to Health Inspector.

MEMBER                                        PRESIDENT