CANTONMENT BOARD vs Amir Chand

BY this order, two appeals, i.e. 1092 of 1998 and Appeal No. 503 of 1999 are being disposed of as both the appeals arise out of common order dated 9th September, 1998 of the District Forum, Jalandhar in Complaint No. 74-DF-97 of 1998, directing the opposite party No. 1 to pay Rs. 17,000/- as compensation for mental tension, harassment etc. for negligence and deficiency in service in not supplying the pure drinking water to the complainant beside Rs. 2,000/- as costs of the complaint. The complainant in appeal has prayed for enhancement of compensation amounting to Rs. 4.50 lacs.

THE complainant alleged that the complainant is a resident of House No. 24, R.A., Top Khana Bazar, Jalandhar Cantt. and had obtained the water connection for the supply of drinking water from the opposite parties and was paying the water charges regularly. THE opposite parties were duty bound to supply drinking water as well as the maintenance of hospital, dispensaries and for the prevention of infection and contagious diseases under Sections 150, 217, 218 of the Cantonment Board. As per narration, the Cantonment, Jalandhar Cantt. was established somewhere about 60 years back and since then water supply line of the Board for the supply of pure drinking water for the domestic use was being supplied. THE opposite parties have not taken into consideration the aspect that the pipes have outlived their life and was leaking from each pipe and contaminated water was being supplied to residents for domestic use. In the month of December, 1996 the situation became very aggravated when the sewerage water started mixing with the drinking water supplied to the residents through the water supply system maintained by the opposite parties and as a result of which hundred of people became victim of diseases after consumption of the said supplied water. THE opposite parties failed to take proper care and to maintain the supply of the drinking water for which they were under obligation under the Cantonment Act, 1924. THE relevant portion of the complaint reads as under : "That it is the obligation and duty of the Cantonment Board being the Public Authority for the proper maintenance of the hospital and dispensaries within the Cantonment Area. THE same is being reproduced hereunder : ''Sub-section 1 : Board may, (a) provide and maintain either within or outside Cantonment as many hospitat or dispensaries as it thinks fit; (b) Make upon such terms as it thinks fit to impose a grant-in-aid to any hospital or dispensary or veterinary hospital, within or without the Cantonment not maintained by it. Sub-section 2 : Every hospital or dispensary maintained or aided under Sub-section 1(b). Sub-section 3 : A Medical Officer appointed in such manner as the Central Government may direct, shall be incharge of every hospital or dispensary maintained or aided under this section.'' THE Cantonment Board, Jalandhar Cantt. is maintaining and aiding a Civil Hospital at Jalandhar Cantt. just opposite the Cantonment Board Office and the opposite party No. 2 is the Medical Officer, as such appointed, who is responsible for the treatment and medical aid to the patients. That it is the bounded duty of a Public Authority like Cantonment Board, Jalandhar Cantt. to maintain and supply the fresh drinking water to its citizens. THE duty is cast upon the Cantonment Board under the Cantonment Act, 1924 under Sections 217 and 218 of the said Act, which are reproduced for kind reference : ''Section 217(1) : In every Cantonment where sufficient supply of pure water for domestic use does not already exist, the Board shall provide or arrange for the provision of such a supply. (2) THE Board shall, as far as possible, make adequate provision that such supply shall be continuous throughout the area and that the water shall be at all time pure and fit for human consumption. Section 218(1) : THE Board may, with the previous sanction of Central Government by public notice, declare any lake, stream, spring, well, tank reservoirs or other resources whether within or without the limits of the Cantonment (other than a source of water supply under the control of Military Engineering Service or Public Works Department) from which water is or may be made available for use of the public in the Cantonment to be a source of public water supply. (2) Every such source shall be under the Control of the Board. Section 220(1) : THE Board may permit the owner, lessor or occupier of any building or land to connect the building or land with a sewerage or public water supply by means of communication of pipes of such size and description as it may prescribe for the purpose of obtaining water for domestic use. (2) THE occupier of every building so connected within the water supply, shall be entitled to have, for domestic use, any return for tax, if any, such quantity of water as the Board may determine."

As alleged, since the opposite parties had failed to provide services required under the Cantonment Act and failed to supply pure drinking water for domestic use, the disease spread due to the consumption of the contaminated water and the complainant became a victim of the terrible disease of jaundice. The complainant when came to know of the disease approached the opposite party No. 2 for medical care and treatment but he could not given proper treatment due to paucity of medicines. The opposite parties had failed to provide service as mandated in the Cantonment Act, 1924, amounted to deficiency in service. Rs. 10,000/- spent on the medicines alongwith costs of the complaint and interest.

In reply, the opposite parties stoutly refuted the allegations levelled in the complaint and admitted that the duties are cast on the opposite parties under the Cantonment Board Act. It was asserted that the pure water was supplied by the Board and the complainant never suffered from disease like jaundice. It is alleged that the disease of jaundice could be due to some other reasons, but not due to supply of contaminated water. No complaint was received from any other person except the complainant. It was asserted before the District Forum that there was no deficiency in service on the part of the opposite parties. The opposite parties prayed for the dismissal of the complaint. Parties led their evidence on affidavits and documents which resulted in passing the impugned order.

IN appeal before us (Appeal No. 503 of 1999), an application has been filed by the complainant alongwith the appeal. It is stated in the application that the complainant-appellant received the copy of the order by the District Forum, Jalandhar on 29.6.1998 and same was kept in some old record of the documents of the family which was misplaced in the house somewhere and the appellant forgotten the date of order in the above case and the complainant-appellant could not trace the certified copy of the order. On 16.5.1999, when the applicant was tracing some other documents in the house, which were required for some other purpose and found the said order of the District Forum in folded condition in the old documents lying in the house. The appellant immediately engaged the Counsel and this appeal was filed without any further delay. The delay in filing the appeal is 243 days, which is not intentional. The learned Counsel for the complainant/appellant prayed for condonation of delay. The appeal is hopelessly barred by time. No cogent ground exists for condoning the delay. No reasons much less cogent or plausible have been put forth to condone the delay. The application for condonation of delay is dismissed with the result the appeal is also dismissed as belated. Since we are dismissing the appeal as barred by time, it is unnecessary to traverse the entire matter again in appeal. Thus, this appeal is disposed of. Appeal No. 1092 of 1998 has been filed by the opposite parties challenging order of District Forum, Jalandhar. It is submitted that the District Forum passed order without appreciating the actual facts and circumstances of the case and merely decided it on conjectures and surmises. The complainant never entered into a commercial transaction with the appellant Board. The complainant-respondent has a water connection and the charges paid for the same are not with the intention to get any profit and collected only on no profit no loss basis. The service of supply of water is a statutory duty of appellant. The respondent is, therefore, not a ''consumer'' within the meaning of Consumer Protection Act. The complainant wrongly and illegally invoked the jurisdiction of the District Forum, Jalandhar. The District Forum erred in accepting the complaint. The claim of complainant-respondent that he suffered from jaundice after consuming polluted water supplied by the opposite parties-appellants is unfounded and could not be proved. The District Forum erred in considering the claim of the complainant without any specific or cogent evidence, being placed on record. It is also submitted that no water sample was taken from the tap which supplied water to him for sending the same to the appropriate laboratory for carrying necessary analysis. It has been averred that in the absence of cogent evidence of laboratory test, the District Forum, wrongly concluded the complainant/respondent suffered from jaundice. The District Forum failed to consider the important question that it was incumbent on complainant/respondent to prove a direct nexus between illness and alleged negligent act of providing polluted water on the part of appellant, which could not be proved. The learned Counsel asserted that jaundice can be caused by various factors such as unhygienic conditions and habits. Not washing hands, eaten uncovered food, eating outside in restaurants and parties etc., could be cause of jaundice. The learned Counsel for the Cantonment Board also pleaded that before the District Forum there was no evidence on record that the appellant Board has supplied polluted water. Merely relying upon the report of the doctor who treated the complainant/respondent is not sufficient ground to grant compensation. There was no justifiable reason in relying upon various newspaper reports as newspaper reports are hearsay evidence and not admissible. The newspaper items cannot authenticate claim of complainant/respondent that jaundice was caused because of consumption of polluted water. All the water supply pipes are of iron/galvanised iron and are of high age and safe. No evidence with regard to leakage or breakage of water pipes was placed on record. In the absence of such evidence the condition of water pipe lines and the tap supplying water to the complainant/respondent could not be determined. The learned Counsel for the Cantonment Board prayed for setting aside the impugned order.

WE have heard the Counsel for both the parties and have gone through the records. The primal and vital question for our consideration is as to whether polluted water was supplied to the consumers, if so, whether the complainant has proved that jaundice was caused to him due to polluted water. The District Forum somewhat summarily decided the issue of maintainability of the complaint and its jurisdiction and thereafter proceeded further to grant relief by way of compensation. Learned Counsel for the appellant Cantonment Board has assailed the order under appeal. Our attention was drawn to the preliminary objection in the reply firmly alleging the complainant-respondent was not a consumer. In the grounds of appeal it has been in terms averred that the complainant is not a ''consumer'' within the meaning of Section 2(1)(d)(ii) of the Act as he has not hired any service for consideration from it. The complainant/respondent never entered into a commercial transaction with the appellant Board. The complainant has a water connection and charges paid for the same are not with intention to make any profit and is collected only on no profit and no loss basis. The service of supply of water is a statutory duty of appellant. The complainant illegally invoked the jurisdiction of the District Forum, Jalandhar. We do not find any merit in this submission. The complainant has specifically stated in his complaint that he has been paying water charges to the opposite parties and as such he was entitled pure drinking water provided under the Cantonment Act, 1924. He has annexed one receipt dated 22.3.1996 (Ex. C-6) for Rs. 240/- on account of water consumption charges from 3/95 to 3/96 @ Rs. 20/- per month for 12 months. We, therefore, hold that the District Forum was right in holding the complainant as ''consumer'' qua opposite parties under the Consumer Protection Act and the complainant rightly invoked the jurisdiction of District Forum, Jalandhar.

REFERENCE has been made to Rule 5 of Consumer Protection (Punjab) Rules, which require procedure to be adopted by the District Forum for analysis and testing of the goods Clause (c) of Sub-section (1) of Section 13 of Consumer Protection Act, 1986. Section 13(c) of the Consumer Protection Act, 1986 coupled with procedure to be adopted by the District Forum for analysis and testing of goods is reproduced below : "13. Procedure on receipt of complaint- (c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory alongwith a direction that such laboratory make an analysis with a view to finding out whether such goods suffer from any defect alleged in the complaint or suffer from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum; (d) before any sample of the goods is referred to any appropriate laboratory under Clause (c), the District Forum may require the complainant to deposit to the credit of the Forum such fee as may be specified, for payment to the appropriate laboratory for carrying out the necessary analysis or test in relation to the goods in question; (e) the District Forum shall remit the amount deposited to its credit under Clause (d) to the appropriate laboratory to enable it to carry out the analysis or test mentioned in Clause (c) and on receipt of the report from the appropriate laboratory, the District Forum shall forward a copy of the report alongwith such remarks as the District Forum may feel appropriate to the opposite party; (f) if any of the parties disputes the correctness of the findings of the appropriate laboratory, or disputes the correctness of the methods of analysis or test adopted by the appropriate laboratory, the District Forum shall require the opposite party or the complainant to submit in writing his objections in regard to the report made by the appropriate laboratory; (g) the District Forum shall thereafter give a reasonable opportunity to the complainant as well as the opposite party of being heard as to the correctness or otherwise of the report made by the appropriate laboratory and also as to the objection made in relation thereto under Clause (f) and issue an appropriate order under Section 14."

The Consumer Protection (Punjab) Rules, 1987 : "5. Procedure to be adopted by the District Forum for analysis and testing of the goods : Clause (c) of Sub-section (1) of Section 13, C.P.A., 1986 : Section 13(1)(c) (1) Under Clause (c) of Sub-section (1) of Section 13, if considered necessary, the District Forum may direct the complainant to provide more than one sample of the goods in clean containers with stopper properly fixed on them. (2) On receiving the samples of such goods, the District Forum shall seal it and fix labels on the containers carrying following information : (i) name and address of the appropriate laboratory to whom sample will be sent for analysis and test; (ii) name and address of the District Forum; (iii) case number; (iv) seal of the District Forum. (3) The sample will be sent to the appropriate laboratory by the District Forum for sending report within 45 days or within such extended time as may be granted by the District Forum after specifying the nature of the defect alleged and date of submission of the report."

FROM the above it is clear that where the alleged defect cannot be determined without proper analysis or test, the District Forum shall obtain a sample of goods from the complainant which shall be sealed and authenticated in the manner prescribed and it will be referred to appropriate approved laboratory for conducting water quality analysis with necessary directions. In the instant case the above procedure has not been followed. There is no test report that the water was polluted. This evidentiary aspect is totally missing. In the absence of this evidence, we cannot conclude that the water supplied to the consumer was bacterially polluted water and has caused jaundice or any other disease. Taking sample and laboratory analysis report was essential. After authenticated laboratory test, analysis report should have been placed on record for consideration with a view to finding out whether water suffers from any defect alleged in the complaint or from any other defect. This was not done so.

The allegation of the complainant/respondent that the situation became aggravated when 60 years old water supply pipeline became deteriorated and sewerage water started mixing with the drinking water also has no support of any evidence. If in the month of December, 1996 dirty water was supplied by the opposite parties to the residents of Jalandhar Cantt. for domestic use resultantly hundreds of people suffered from diseases and the complainant also became victim of jaundice after consuming the water, it was all the more essential to prove the negligence and the nexus between the ailment suffered and water supplied by the Cantonment Board.

AFTER an appreciation of the facts of the case as stated by the appellant-Board and after a careful consideration of the record before us, we are satisfied that the complainant has failed to prove that polluted water was supplied to the consumer/complainant and jaundice was caused to him due to alleged polluted water. In the light of what is discussed above, the Appeal No.1092 of 1998 of Cantonment Board, Jalandhar Cantt. is allowed. The order under appeal cannot be sustained as the complainant failed to prove that the alleged polluted water was supplied by the opposite parties. For the Section 13(c) of the Consumer Protection Act, 1986 has not been satisfied before arriving at that conclusion. The order of the District Forum is, therefore, set-aside. The complaint is dismissed. No order as to costs. Appeal allowed.