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Superintendent Excise & Prohibition & Others v/s M. Shiva Rani & Others

    Revision Petition No. 4600 of 2010

    Decided On, 27 April 2017

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Petitioners: G.N. Reddy, Advocate. For the Respondents: R1 to R3, Nemo, R4, Ex-parte.

Judgment Text

Dr. B.C. Gupta, Member

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 28.09.2010, passed by the Andhra Pradesh State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in First Appeal No. 236/2008, 'The Superintendent, Excise & Prohibition & Ors. versus M. Shiva Rani & Ors.', vide which, while dismissing the said appeal, the order passed by the District Forum-I, Hyderabad in consumer complaint No. 185/2007, allowing the said complaint, was upheld.

2. The facts of the case are that the complainant No. 1/respondent No. 1, M. Shiva Rani, is the wife of the deceased Middey Manikyam, and the complainants No. 2 & 3 / respondents No. 2 & 3 are his son and daughter respectively. The said M. Manikyam is stated to have visited Thummalapayya Village alongwith his family members for celebrating the Yellamma Gudi Shikara Mahotshav. The deceased is stated to have consumed liquor on that day at 5:30 PM, allegedly bought from the licensee-dealer Opposite Party-1 (OP-1) M/s. Swathi Wines, which is respondent No. 4 in the present revision petition. As per consumer complaint, the deceased fell down on the ground after consuming liquor and he was shifted to Government Hospital, Shadnagar, District Mehboobnagar for treatment. However, he died the same day at 7:30 PM. The report of autopsy over the dead body of the deceased and the report of the Forensic Science Laboratory (FSL) on viscera, brought out that the cause of death was due to poisoning by Ethyl Alcohol Intoxication. The brother of the deceased lodged a report with the Police under section 174 I.P.C. which was registered as CR No. 110/2004. It was stated that the deceased M. Manikyam was only 35 years of age and was hale and healthy at the time of his death and was working as mestry, earning about ₹3,000/- per month and bringing up his family. The consumer complaint in question was filed against OP-1/respondent No. 4, the owner of the shop, from which the said liquor was purchased. The present petitioners/OPs - 2 to 4 are the officials of the Excise Department in the Government of A.P. and are reported to have given licence/permission to OP-1/respondent No. 4 for running the said liquor shop. It is stated that the petitioners/OP-2 to 4 were required to label and check the liquor and certify that it was fit for drinking. The complainants sought compensation of ₹5 lakh from the OPs as compensation due to the death of the deceased.

3. In the reply filed by the petitioners/OP-2 to 4 before the District Forum, it was stated that the allegations mentioned in the complaint were baseless, as there was no other casualty reported from any part of the District in respect of the liquor supplied from the IML Depot to the licensee shop. The liquor had been supplied in sealed bottles to the IML shops and hence, the question of poisoning of liquor prior to the sealing of the bottles did not arise. Moreover, the complainant had not shown any bill or invoice to show that the consumed liquor had been purchased from OP-1. It was also stated that the complaint was barred by limitation as the same had not been filed within two years from the date of cause of action. It was also stated that OP-2 to 4 were not liable in any manner to provide compensation to the complainants.

4. The District Forum after considering the averments of the parties, allowed the consumer complaint and directed all the OPs to pay compensation of ₹1 lakh jointly and severally within one month of the receipt of the order. It was also stated that if the payment was not made within the said time, the OPs shall have to pay interest @12% p.a. with effect from 25.10.2004. Being aggrieved against the order of the District Forum, the petitioners/OP-2 to 4 challenged the same by way of an appeal before the State Commission. The representative of OP-1 M/s. Swathi Wines, which was respondent in the said appeal was duly present before the State Commission. The State Commission dismissed the appeal vide order dated 28.09.2010. Being aggrieved against the said order, the petitioners/OP-2 to 4 are before this Commission by way of the present revision petition.

5. Notice of the petition was sent to the respondents. The complainants/respondents No. 1 to 3 put in appearance through counsel on some of the hearings, but later on, there was no representation on their behalf. The respondent No. 4, licensee-dealer did not appear despite service and was proceeded against exparte. A dasti notice was again sent for the service of the licensee-dealer, which was duly served upon them on 05.05.2016, but despite that, they did not put in appearance.

6. During hearing before us, the learned counsel for the petitioner has drawn attention to section 37(B) of the A.P. Excise Act, 1968 (Act No. 17/1968), which reads as follows:-

'37-B Order to pay compensation:-

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 the Court when passing the Judgment in a case falling under Section 37A may, if satisfied that death or grievous hurt or disability has been caused to any person or persons by consumption of liquor or intoxicating drug sold in any place, order the persons who sold the liquor of intoxicating drug, whether or not he is convicted of an offence under section 37A to pay by way of compensation, such amount as it deems just, to the legal representatives of the deceased or to the person or persons to whom grievous hurt or disability has been caused:

Provided that where the liquor or intoxicating drug is sold in a licensed shop, the liability to pay the compensation under the Section shall be on the licensee.'

7. The learned counsel argued that as per the statutory provisions, the liability to pay compensation was on the licensee-dealer, when the liquor or intoxicating drug had been sold in a licensed shop. The orders passed by the Consumer Fora below reflected an erroneous view, as the liability to pay compensation had been imposed on the petitioners as well who are Government officials of the Department of Excise.

8. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

9. The State Commission have brought out in the impugned order that the death of the deceased due to consumption of alcohol was not in dispute. The documents on record showed that the deceased had consumed liquor at 5:30 PM on 25.10.2004 and within a short time, he fell down, sweating and had to be carried to a hospital for treatment, where he died within a short time. It has been stated in the post-mortem certificate as well that the cause of death was poisoning due to Ethyl Alcohol intoxication. The State Commission also observed that although the District Forum had held all the OPs including the licensee–dealer jointly and severally liable for paying compensation to the complainants, the licensee-dealer did not challenge the said order before the State Commission. Even before this Commission, the licensee-dealer did not put in appearance, despite due service of notice upon them. It is made out, therefore, that in so far as the licensee-dealer is concerned, the concurrent findings made by the consumer fora below have become final vis--vis the said licensee-dealer.

10. In so far as the petitioners before us are concerned, they are all Government Officials and it is their job to frame and implement the necessary excise policy for the Sta

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te Government. The contention of the petitioners, however, that under section 37-B of the A.P. Excise Act, 1968, the liability to pay compensation is on the licensee-dealer, is valid. There is no doubt that the petitioners are duty bound to exercise proper regulatory control over the functioning of the liquor vends, but the compensation has to be given in accordance with the statutory provisions only. Further, there is no evidence on record to establish that the petitioners were responsible in any manner to supply spurious/sub-standard liquor to the licensee. 11. In the light of the discussion above, this revision petition is allowed and the orders passed by the consumer fora below are modified to say that the entire liability to pay compensation shall be upon the licensee-vender/OP-1 only. There shall be no order as to costs.