This appeal has been filed by the Chairman-cum-Managing Director Andhra Pradesh Southern Power Distribution Company Limited and Others challenging the order dated 11th September 2012 passed by the Andhra Pradesh State Consumer Disputes Redressal Commission Hyderabad (in short “the State Commission”) in consumer complaint No. 20 of 2011.
2. Brief facts of the case are that Sri T.Gopala Krishna, husband of the complainant No.1, father of the complainant Nos.2 & 3 and son of the complainant Nos.4 & 5 was an agriculturist and was having electricity service connection to his bore well with 5 HP connection vide service No.29656001287. On 02.06.2010, the said T. Gopala Krishna while operating the bore well in his agricultural field came into contact with a 11 KV main electrical wire which caught fire and fell down on him as a result of which he died on the spot. An FIR was registered with the police on the same day. The post mortem was conducted in the Government General Hospital and the cause of death was established as electrocution. According to the complainants, the deceased was 44 years old and was earning Rs.2,00,000/- p.a. by leasing his bullock cart, mulching cow, sheep rearing and from agricultural operations. Complainants alleged that it was the duty of the appellants to maintain the electric poles properly and they never rectified them even though the wire was in a sagging condition. Therefore, it is only due to the negligence of the appellant that the said T.Gopala Krishna died. Complainant, being aggrieved, filed the complaint claiming compensation of Rs.22,00,000/- along with interest and cost of Rs.10,000/-
3. The complaint was contested mainly on the ground that the incident happened due to quarreling of large number of crows and “Y” phase conductor of 11 KV wire was accidentally cut due to short circuit of conductors as an impact of large number of crows. The wire was hanging at a height of 4 feet from the ground with a support of 11 KV fuse set provided to DTR. Deceased should have avoided contact with the wire. The wires were regularly maintained by the appellants.
4. The State Commission has passed the following order on 11.09.2012:-
“In the result this complaint is allowed in part directing opposite parties to pay Rs.14,00,000/- to the complainants in the following manner.
Rs.5,25,000/- to the first complainant being the wife.
Rs.2,62,500/- each to the second and third complainants who are the minors and these amounts shall be kept in a fixed deposit under the custody of the mother till the minors attain majority.
Rs.1,75,000/- each to the parents who are the fourth and fifth complainants herein’.
The amount of Rs.50,000/- awarded would be equally shared among all the five complainants together with costs of Rs.5,000/- to be paid within four weeks from the date of receipt of this order.”
5. Heard the learned counsel for the parties and perused record. The learned counsel for the appellants stated that the State Commission had misconstrued a stray case in applying the provisions of Consumer Protection Act, 1986 so as to invoke the jurisdiction of the Consumer Forum for a fatal accident which is covered by the Fatal Accidents Act and which is a tort which has to be decided in Civil Court and for which the Consumer Forum is not having jurisdiction.
6. In support of his arguments learned counsel for the appellants referred to the judgment of the Hon’ble Supreme Court in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and Ors. Vs. Sukamani Das (smt.) and others. (1999) 7 SCC 298 wherein it has been observed:-
“6. In our opinion, the High Court committed an error in entertaining the writ petitions even though they were not fit cases for exercising power under Article 226 of the Constitution. The High Court went wrong in proceeding on the basis that as the deaths had taken place because of electrocution as a result of the deceased coming into contact with snapped live wires of the electric transmission lines of the appellants, that “admittedly prima facie amounted to negligence on the part of the appellants”. The High Court failed to appreciate that all these cases were actions in tort and negligence was required to be established firstly by the claimants. The mere fact that the wire of the electric transmission line belonging to Appellant I had snapped and the deceased had come in contact with it and had died was not be itself sufficient for awarding compensation. It also required to be examined whether the wire had snapped as a result of any negligence of the appellants and under which circumstances the deceased had come in contact with the wire. In view of the specific defences raised by the appellants in each of these cases they deserved an opportunity to prove that proper care and precautions were taken in maintaining the transmission lines and yet the wires had snapped because of circumstances beyond their control or unauthorised intervention of third parties or that the deceased had not died in the manner stated by the petitioners. These questions could not have been decided properly on the basis of affidavits only. It is the settled legal position that where disputed questions of facts are involved a petition under Article 226 of the Constitution is not a proper remedy. The High Court has not and could not have held that the disputes in these cases were raised for the sake of raising them and that there was no substance therein. The High Court should have directed the writ petitioners to approach the civil court as it was done in OJC No.5229 of 1996.”
7. The learned counsel for the appellants stated that the State Commission was not justified in awarding a huge compensation without there being any negligence on the part of the appellants (opp. Parties) since on the date of accident, the incident happened due to quarreling of large number of crows and the “Y” Phase conductor of 11 K.V. line was accidentally cut due to short circuit of conductors which was due to impact of large crowd of crows and the snapped wire was hanging at the height of 4 feet from the ground.
8. Learned counsel for the appellants stated that the State Commission was not justified in awarding the compensation to the respondents against the appellants without there being any documentary evidence with regard to the extent of land taken on lease by the deceased to arrive at the alleged income of deceased from the said lands.
9. Learned counsel for the appellants stated that the State Commission has wrongly computed the compensation on the imaginary figure of income of the deceased as stated by the complainants when it is an admitted fact from the documents filed with the complaint that the income of the deceased/complainants from all the sources was Rs.18,000/- which was issued by the competent authority.
10. Leaned counsel for the appellants further stated that the State Commission has wrongly computed the compensation taking the age of deceased as 44 years on the date of death when from the documents filed by the complainants along with the complaint i.e. the FIR and complaint given to the concerned S.H.O.P.S. shows that age of the deceased at the time of accident was 46 years and the same fact was confirmed by the inquest report filed by the complainants.
11. On the other hand, the learned counsel for the respondent complainants stated that the State Commission has already considered all the objections raised in the appeal and has allowed the complaint on merits. The compensation has been awarded on the basis of the formula for compensation in the motor accident claims cases. Thus, there is no error in the calculation of the compensation. The State Commission has decided the annual income of the deceased on the basis of the evidence produced by the complainants and the opposite party has not produced any evidence contradicting the assertions of the complainants. Accordingly, there is no error in the calculation of income of the deceased by the State Commission.
12. I have carefully considered the arguments advanced by both the learned counsel for the parties and have examined the record. It is seen that there is a delay of 40 days in filing the present appeal, however, this delay has already been condoned by this Commission vide order dated 10th January 2013.
13. The main legal objection raised by the appellants is that the consumer forum is not competent to look into this type of disputes as the same is a sort of tort which can only be decided by a civil court. The learned counsel for the appellants has relied upon the decision of the Hon’ble Supreme Court in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and Ors. Vs. Sukamani Das (smt.) and others (supra) which is a case of 1998. This Commission decided OP No.253 of 2002, Smt. Munesh Devi Vs. U.P.Power Corporation Ltd. & ors, decided on 03.02.2014 as a consumer dispute and the Hon’ble Supreme Court has upheld the decision of this Commission in the SLP, Civil Appeal No.5672 of 2014, decided on 22.08.2014. This shows that the Hon’ble Supreme Court has now accepted such cases within the ambit of consumer disputes. The question of such complainants being consumer or not within the purview of the Consumer Protection Act 1986, has been examined in detail by this Commission in Managing Director cum Chairman T.S. Transco & Ors. Vs. Mohd. Noorullha Shareef & Ors. FA No.235 of 2010 & FA 352 of 2010, decided on 07.03.2018 (NC) and it has been found that such complainants would be deemed to be consumers. This Commission in this judgment has observed as under:-
“9. The State Commission has given its award on the basis of judgment of Hon’ble Supreme Court in M.P. Electricity Board Vs. Shail Kumar, 2002 (2) ALD 4(SC), wherein the Hon’ble Supreme Court has allowed the compensation on the basis of strict liability. However, that was not a case under consumer Protection Act. This Commission in OP No.253 of 2002, titled Smt. Munesh Devi Vs. U.P. Power Corporation Ltd., & Ors., decided on 03.02.2014, has allowed the complaint which was a similar matter where the death of the husband of the complainant was caused due to the transformer installed and maintained by the opposite parties, while he was returning home from duty. He was taken to the Hospital, where he succumbed to burn injuries. This Commission awarded compensation of Rs.25.00 lakhs along with interest. Aggrieved by that order SLP was filed by the opposite parties. The Hon’ble Supreme Court in Civil Appeal no.5672 of 2014 dismissed the SLP vide its order dated 22.08.2014. This was a peculiar case where the complainant had earlier filed civil case against the opposite parties for damages and compensation, however, the same could not be pursued as the complainant could not pay the court fees and her request to exempt from the payment of court fees was rejected by the High Court and by the Hon’ble Supreme Court. In that situation, the complainant filed complaint case before this Commission under Consumer Protection Act, 1986 and the same was allowed by this Commission and SLP filed against that order was dismissed by the Hon’ble Supreme Court. These facts clearly show that the Hon’ble Supreme Court has accepted jurisdiction of the consumer fora to decide such cases. Against this, no confirmation by the Hon’ble Supreme court in the cases decided by this Commission as referred to by the learned counsel for the OP/A.P. Transco (now T.S. Transco) has been brought to my notice. Thus, after confirmation of the jurisdiction of consumer fora by the Hon’ble Supreme Court, I do not see any doubt in exercise of jurisdiction by the consumer fora to decide such complaints. Indirectly, this implies that the complainants meet the criteria for being a consumer in such cases. Moreover, the Hon’ble Supreme Court in the matter of Madhya Pradesh Electricity Board (supra) has established the principle that the OP will be liable from the strict liability point of view to compensate the complainant.”
14. Moreover, Section 3 of the Consumer Protection Act 1986 provides for an alternate remedy and therefore a complainant can file a complaint under the Consumer Protection Act 1986 instead of taking action under the Fatal Accidents Act if the complainant can come under the category of consumer under the provisions of the Consumer Protection Act 1986.
15. Now coming to the objection raised by the appellants in respect of the calculation of income of the deceased, it is seen that the State Commission has observed the following:-
“For the aforementioned reasons, we are of the considered view that there is deficiency in service on behalf of the opposite parties in not maintaining the electric wires thereby leading to the death of T.Gopala Krishna who was having agricultural fields to an extent of Ac.1.14 and had also taken on lease lands totaling to Ac.10.21 as evidenced under Exs.A14 A15 and A16. The opposite parties did not take any steps to examine K. Polli Reddy, P. Harshavardhan Reddy and V.Gopalaiah who filed third party affidavit stating that the deceased cultivated Ac.10.21 and also got income from other sources by leasing out his bullock cart, mulching cow, sheep rearing etc. to an extent of Rs.1,50,000/- p.a. Ex.A1, FIR evidences that the age of the deceased is 44 years and when we apply the multiplier of 14, the amount is Rs.150,000/- less 1/3rd =Rs.1,00,000/- x 14 = Rs.14,00,000/-. We also award Rs.50,000/- towards loss of love and affection and loss of estate as we are not inclined to award interest together with costs of Rs.5,000/-.”
16. From the above, it is clear that the State Commission has relied upon the documentary as well as oral evidence by third parties in assessing the income of the deceased. The opposite parties have not examined the third parties who have given their evidence in favor of the complainants. Onus was on the opposite parties to have rebutted the evidence given by the third parties either by way of documentary evidence or by way of oral evidence of some other parties. Thus, there is no ground to interfere with the finding of the State Commission in respect of the income arrived at for calculating the compensation. Another objection has been raised in respect of the age of the deceased. The State Commission has taken the age of the deceased to be 44 years whereas, the contention of the appellants is that as par the documents submitted by the complainants themselves like the FIR and the complaint given to the SHO as well as the inquest report
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, the age of the deceased was 46 years at the time of accident. Thus, the compensation should have been calculated on the basis of this age. It is seen from the record that the appellants have not filed certified copies of the documents on which they wanted to rely for the proof of age of the deceased. Thus, the assertion of the opposite parties cannot be accepted without any proof. The complainants have stated in the complaint the age of the deceased at the time of accident to be 44 years and the State Commission has also relied on some other evidence to take the age of the deceased as 44 years. State Commission has also mentioned FIR as a document on which the age of 44 years has been ascertained. In these circumstances, I do not see any reason to find fault with the finding of the State Commission particularly in the absence of any proof filed by the appellants before this Commission. Hence, I do not find any merit in the argument of the learned counsel for the appellants that the age of the deceased should have been considered to be 46 years. 17. Based on the above discussion, I do not find any merit in the present appeal and accordingly the FA No. 714 of 2012 is dismissed. 50% of the awarded amount by the State Commission was deposited by the appellants with this Commission as mentioned in the order dated 10th January 2013 and 4th July 2013. This amount be released to the complainants by the Registry of this Commission within a period of 30 days from the date of this order and the remaining amount should be paid by the appellants within a period of 45 days from the date of receipt of this order.