Karnataka

Bidar

CC/53/2016

Nagamma W/o Basappa Serikar Bidar - Complainant(s)

Versus

The Executive Engineer GESCOM Bidar - Opp.Party(s)

K. Rajkumar

21 Feb 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

AT BIDAR::

 

 

                                                                                                                   C.C.No. 53/2016

 

                                                                                                     Date of filing : 01/08/2016

 

                                                                                                 Date of disposal : 21/02/2017

 

 

P R E S E N T:-                    (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B.,

                                                                                                       President.

    

                                             (2) Shri. Shankrappa (Halipurgi),

                                                                                     B.A.LL.B.,

                                                                                             Member.

 

                                   

 

                                               

COMPLAINANT/S:            Nagamma, w/o Basappa Serikar,

                                          Age: 52 years, Occ: house hold & Agriculture,

                                            R/o Village Gumma, Tq. & Dist.Bidar,

                                          

              

 

 

                                         (By Shri. Rajkumar K., Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-               The Executive Engineer, GESCOM,

                                          Bidar Division, Bidar.

 

                                    

 

 

 

                                         (By Shri. Mahesh S.Patil, Advocate )  

 

 

                                               

::   J U D G M E N T  : :

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

                    This is a complaint file by the above said complainant U/s.12 of the C.P.Act., 1986, against the O.P alleging  deficiency in service . The subjectof the case is as under:

 

2.          The complainant avers that, she was owning  8 years old she- buffalo , yielding 6 to 8  litres of milk every day, thus fetching her per day a sum of Rs. 300/- to Rs.400 after meeting the expenditures to maintain the buffalo.  On 25/06/2016 at about 7 a.m. the complainant took her she buffalo for grazing.  When she reached   to the land of Shivraj Patil,  the buffalo came into contact of electric pole wire and suddenly died  due to electrocution.  Thereafter, the complainant had filed a complaint before the Rural Police, Bidar upon which,  the Police concerned visited the spot and registered the case no. 3/16 and conducted the panchanama and the Veterinary Doctor of Bidar has conducted the PME.     The said Doctor had opined and confirmed that, the death of she buffalo  was due to electric shock.  The death of she buffalo of the complainant had taken place due to the negligence and deficiency of service on the part of the O.P.  

 

3.           The complainant claims that, despite of being informed about the  transmission line of GESCOM in dangerous condition   O.P authority had failed to attend the same, which resulted in spreading the electricity in the area surrounding the pole and caused death of the she buffalo of the complainant due to which, the complainant had suffered loss of income as well as suffered mental agonies.  Hence, complainant is before this Forum claiming a  sum of Rs. 1,00,000/- which is claimed to be the cost of the she buffalo against the O.P.

 

4.                 On receipt of notice form this Court, the O.P. has put up appearance through counsel and has filed written version in which,   the O.P. avered that the complaint filed by the complainant is misconceived both in law and on facts, and it is not maintainable.  The complaint in the present form without impleading the Managing Director of GESCOM is not maintainable, since the Managing Director of the Company who is necessary party to the case, and the O.P. is only an officer working under the Company, hence, for not impleading the Managing Director of GESCOM, the complaint is bad in the eye of law.   The O.P. further avered that the complainant is not the consumer of O.P. Company, which is mandatory for entertaining the complaint  under the provisions of C.P. Act.  Under the provisions of Indian Electricity Act, the special Judge i.e. Additional District & Sessions Judge, Bidar, who is competent and having jurisdiction to deal with the matters concerning Gescom and this Forum has got no jurisdiction to entertain the complaint.    

 

5.                  In reply to para no.1 & 2 of the complaint the facts are not in the knowledge of the O.P. Company, the O.P. company denies the contention of the complainant that, she is an agriculturist by profession and owned she buffalo,  getting daily income of Rs. 300/- to 4 00/- from she buffalo and the said buffalo died due to electrocution.  The contents of para no.3 regarding of the value of the she buffalo was Rs. 1,00,000/-is denied and the receipt is concocted  and created for filling this false complaint against the O.P.  The contents of para no.4 of the complaint regarding registration of the case by the Police and conducting P.M. examination by the Veterinary Doctor on the dead she buffalo are not disputed.   The O.P. denies the contention of para no.7, 8 & 9 of the complaint.  The complainant has no locus-standi to make allegation of deficiency and to maintain complaint before the Forum.  Apart from this, the O.P. Company denied that there was deficiency on the part the O.P Company.  When the complainant is not a consumer, her complaint itself is not maintainable under the provisions of C.P. Act, which clearly states that, the person making complaint must be a consumer as defined under the Act and then only the complaint would be maintainable.  The complainant has not reported any such incident to the respondent Company soon after.  The alleged incident should have been reported as required under section 161 of Indian Electricity Act, so as to enable the O.P. Company to investigate the matter and find the truth.  As such, the complaint appears to be concocted without complying with the mandatory provision of act hence, the complaint may be dismissed with costs.

 

 

6.               Both the sides have filed their evidence affidavits and written arguments reiterating their respective contentions and documents relied upon are described at the end of the order.

 

 

 

7.         Considering the rival contentions of the parties, the following points arise for our consideration:-

 

1. Is the complaint maintainable against the sole opposite party?

 

2. Does the complainant prove that, there has been a deficiency of service in the part of the Opponents?

 

3. Is the complainant entitled for compensation and then how much?
4. What order ?

 

 

8..           Our answers to the points stated above are as follows:-

 

               1. In the affirmative.

               2. In the affirmative.

               3. As per the assessment of veterinary surgeon.

                4. As per final orders due to the following

 

 

                                                                     

 

                                                                                            :: REASONS ::

 

9.                     In the instant case the opponent has raised an objection that, the complaint cannot be maintained against the Executive Engineer, GESCOM, Bidar, without impleading the Managing Director of GESCOM as a party.  To answer the question, we fix our gaze on the provisions of order XXIX of the C.P.C., Rule-2 which reads as follows:-

 

 

Order XXIX Rule-2 C.P.C.

                        Service on corporation: Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served.           

1. On the secretary, or on any director, or other principal officer of the corporation, or
2. By leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business.

 

10.                   The Executive Engineer (present O.P.) being one of the Principal officer, notice has been served on him and therefore, he is before the court.  Therefore, no impediment can be attributed in maintaining the case and we answer the point in the affirmative.

 

11.                   The complainants’ Counsel has submitted before us two judgements of the Hon’ble National Commission reported as III(2010) CPJ-198-[DHBVNL V/s Vidya Devi] in which it has been interalia held:-

                        “ Petitioner transmits energy, has duty to ensure safety and security of persons, animals and other objects”.

                        He has also relied upon another judgement reported as 2013(2) CPR 184 (NC)- [DHBVNL V/s Parmilla Devi] in which it has been held further as follows:-

                        “ Electricity Board is duty bound to ensure proper and safe  keep of electric wire”.

12.                  The ratios of the two judgements quoted above clinches the major issues involved in the case.  As far as the none intimation of peripherial electrocution of the pole, the same is instantaneous and no fault can be attributed to commoners by not notifying the Electrical Inspectorate as required U/s 161 of the  Electricity Act.

 

13.                   The O.P’s challenge to the status of a consumer vis-a-vis the O.P is a foregone conclusion.  In IV (2008) C.P.J 139 N.C. CGMP and ONPDCL and ors, the Hon’ble National Commission has been pleased to hold that:-

                   “Villagers pay taxes to village panchayaths and power consumption charges to electricity company-consumers being beneficiaries entitled to compensation”.

 

14.         As far as the O.)Ps claim that, the complainant had never approached them and they were not informed about the incident, the same is nothing but a blantant lie.

 15.                Further from Ex.P.8 it is evident that, the complainant herself had submitted a demand for Rs.1,00,000/-  under due acknowledgment on 12/07/2016, which was never considered, wherefore the complainant had lodged the complaint thereafter.

16.                The documents produced vide Ex.P.1 to P.6 speaks volumes on the facts of the accident and the ownership of the buffalo  and also fact of death due to electrocution.  Therefore we hold the point no.2 accordingly.

 17.              The complainant though had initially claimed the value of the buffalo as Rs.1,00,000/-, the P.M. report of the veterinary surgeon assesses the value of the dead buffalo at Rs.50,000/-.  We therefore hold that, the complainant is entitled for that value only and therefore proceed  to pass the following:

 

 

:: ORDER ::

 

   

1.  The complaint is allowed in part.
2.  The O.P. is liable to pay a compensation ofRs.50,000/- to the complainant together with interest @ 12% p.a. from the date of demand raised i.e. 12.07.2016  till realisation.
3. The O.P.is further liable to pay a sum of Rs.3000/- towards mental agony undergone for the loss of a valuable wealth and a further sum of Rs.2000/- towards litigation expenses.

 

 

           d)  Four weeks time granted to comply this order.

 

 

( Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 21^st day of  February-2017 )

 

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                            

 

 

Documents produced by the complainant

1. Ex.P.1- Copy of Police complaint date: 25.06.2016.
2. Ex.P.2- copy of report of jurisdictional Bidar RuralP.S. to Tahasildar, Bidar date. 25/06/2016.
3. Ex.P.3- Copy of spot Mahazar date: 25.06.2016.
4. Ex.P.4- Statement of Sri.Shivraj,s/o Hanmanth rao,dt.25/06/2016.
5. Ex.P.5- Post Mortem report ( Copy)
6. Ex.P.6- colour photo of deceased animal.
7. Ex.P.7-Cash receipt towards purchase of buffalo
8. Ex.P.8Claim application of complainant.dt.12/07/2016.

 

 Document produced by the Opponent/s

 

            Nil

 

 

 

Sri. Shankrappa H.,                                             Sri. Jagannath Prasad,                                  

       Member.                                                                      President.     

 

 

 

 

 

mv.