D.R. Kartikeyan vs D.G. Cpwd And Ors.

D .R. Karthikeyan, the complainant herein joined National Human Rights Commission as Director General on 15.06.1998. The complainant was allotted residential accommodation, namely, premises No. C1/1, Humayun Road, New Delhi. According to the complainant, maintenance and upkeep of said premises including the electricity connection and wiring was the responsibility of CPWD (OP No. 1), the electricity to the premises was to be supplied by the NDMC (OP No. 2). According to the complainant, he is a consumer qua the opposite parties because he was to pay electricity bills as also license fees for occupation of the premises to the respective opposite parties.

IT is alleged that premises allotted to the complainant was unoccupied for quite some time. Its compound wall and the garage wall had collapsed due to seepage and the whole house was in dire need of repairs before allotment/occupation, which work was to be carried out by the CPWD. The Executive Engineer supposedly after completing the work and making the premises fit for occupation issued fitness certificate dated 12.12.1998. The personal belongings of the complainant arrived in Delhi on 16.12.1998. As some of the work in the main premises was still in progress, the complainant was forced to place his belongings in the garage. The complainant, however, took charge of the house on 23.12.1998. That on 09.01.1999 at around 6.30 a.m., a fire broke out in the garage due to sparking from the meter board as a result of deficiency in service on the part of the opposite parties. Consequently, the valuables of the complainant including his car which was parked in the garage perished.

IT is further alleged that after the fire, an Enquiry Committee was constituted by the CPWD comprising of Chief Engineer and some other officers and as per their report, negligence on behalf of the opposite parties was caused due to fire accident.

IT is the case of the complainant that as a result of fire accident, the complainant has suffered loss of his household goods, belongings worth Rs. 16.00 lacs. Hence the complaint. Op No. 1 (CPWD) in its written statement took the preliminary objection that consumer complaint against Op No. 1 is not maintainable because Op No. 1 renders functions of Government of India and as such, it does not come within the purview of the Consumer Protection Act (in short ''the Act'') On merits, while admitting that subject premises was allotted to the complainant as alleged and that fire did break out in the garage, Op No. 1 pleaded that electricity supply to the premises was the job of NDMC. The fire had broken out because of heating of meter fuses, which are the property of electricity supplier and if at all there is any negligence, it is on the part of the NDMC (Op No. 2). According to Op No. 1, report of the Enquiry Committee is a matter of record and the list of household goods destroyed in the fire, given by the complainant is exaggerated.

OP No. 2 (NDMC) in its written statement denied that it is incharge for maintenance of electricity supply and related work in respect of the building. The NDMC is responsible only for providing electricity supply upto the meter board and, thereafter, it is responsibility of CPWD. It is further alleged that meter board for energising the security lights was provided on the wall of the garage on the request of the CPWD in this case as also in all other government flats. It is alleged that location, maintenance and distribution of electric supply in the premises is the job of CPWD and if at there is any negligence, it is on the part of the CPWD (OP No. 1). OP No. 2 denied knowledge in respect of damage caused to the household belongings to the complainant in fire. It is also pleaded that complainant is also at fault because he kept the household goods in close vicinity of meter board installed on the wall of the garage. As regards report of the Enquiry Committee, it is stated that said report cannot be used against OP No. 2. The Committee was presided by the Chief Engineer of OP No. 1 and the report was prepared in violation of principal of natural justice at the back of OP No. 2.

IN order to prove his case, complainant has filed his own affidavit whereas OP No. 1 & 2 have filed affidavits of their respective officers. The facts of the case are more or less admitted. It is admitted that the subject premises was allotted to the complainant in his capacity as Director General, NHRC. It is also submitted that Executive Engineer of OP No. 1 vide certificate dated 12.12.1998 declared said premises fit for occupation. It is not disputed that belongings of the complainant arrived at Delhi on 16.12.1998. Case of the complainant is that since some maintenance work was still going on in the main bungalow, he stored his personal belongings in the garage. Though it is not denied that some of the belongings were stored in the garage but the case of the opposite party is that list of the belongings stored in the garage is exaggerated. It is not disputed that in the morning of 09.01.1999, a fire broke out in the garage resulting in loss of belongings of the complainant. It may be noted that admittedly after the fire incident, an Enquiry Committee under the Chairmanship of Chief Engineer of CPWD was constituted to look into the cause of fire and to recommend the safeguard measures to be taken in future. The said report was forwarded by the Special Secretary of the Ministry of Urban Development to the complainant vide letter dated 12.03.1999. On reading of the aforesaid letter which is annexure ''D'' and the accompanying report, it is clear that fire was caused because the meter board installed within the garage was uncovered and the fuse cut out was without fuse grip with naked fuse wire and also because of storage of household goods close to the live meter board. From this, it is evident that CPWD had certified the subject premises fit for occupation without ensuring that there was a proper fuse grip in the socket. This in our view is an act of negligence which can be termed as deficiency in service. However, one cannot lose sight of the fact that garage in a building is meant for parking of the car and is not supposed to be used for storage of household goods.

THE complainant in para 8 of his affidavit has averred that his staff including the driver on duty had noticed defect in meter board and brought it to the notice of the NDMC electrician and CPWD personnel who were assigned with the job of getting the house ready and also for installation of security lights. From this it is evident that before the fire incident, the complainant was aware of the aforesaid naked fuse cut out wire. Despite that he stored his personal belongings in the garage. Thus, it is clear that complainant has also contributed to the loss which occurred due to fire. Thus, it is clear case of a contributory negligence on the part of the service provider as also the complainant.

NOW the question arises whether the complainant is entitled to compensation and if so, to what extent and from whom? Learned counsel for CPWD (OP No. 1) has taken a legal objection that instant complaint against OP No. 1 is not maintainable because OP No. 1 renders functions of Government of India and, therefore, does not come within the purview of Consumer Protection Act.

WE do not find merit in this contention. On perusal of the Consumer Protection Act (in short, the Act) particularly section 2(1)(a) & (b), it is clear that consumer can file a consumer complaint against a trader or service provider on various counts which includes deficiency in service on the part of service provider. Thus, it is clear that CPWD was deficient in service by declaring the subject premises fit for occupation without ensuring that fuse cut out installed at the meter board within the garage was having a naked fuse wire without the fuse grip. Therefore, in view of section 2(1)(a) & (b), the consumer complaint is maintainable against OP No. 1 particularly when there is no provision in the Act making a distinction between private service provider or a service provider performing governmental functions. Similar issue came up before the Supreme Court in the matter of Ghaziabad Development Authority Vs. Balbir Singh : 2004 (5) SCC 65, wherein Hon''ble Supreme Court has held that jurisdiction of National Commission/Forums extends to cases of service rendered by statutory and public authorities. Relevant observations of the Supreme Court are reproduced as under: "In Wood v. Blair a dairy farmer''s manageress contracted typhoid fever and the local authority served notices forbidding him to sell milk, except under certain conditions. These notices were void, and the farmer was awarded damages on the ground that the notices were invalid and that the plaintiff was entitled to damages for misfeasance. This was done even though the finding was that the officers had acted from the best motives.

Today the issue thus is not only of award of compensation but who should bear the brunt. The concept of authority and power exercised by public functionaries has many dimensions. It has undergone tremendous change with passage of time and change in socio -economic outlook. The authority empowered to function under a statute while exercising power discharges public duty. It has to act to sub -serve general welfare and common good. In discharging this duty honestly and bona fide, loss may accrue to any person. And he may claim compensation which may in circumstances be payable. But where the duty is performed capriciously or the exercise of power results in harassment and agony then the responsibility to pay the loss determined should be whose? In a modern society no authority can arrogate to itself the power to act in a manner which is arbitrary. It is unfortunate that matters which require immediate attention linger on and the man in the street is made to run from one end to other with no result. The culture of window clearance appears to be totally dead. Even in ordinary matters a common man who has neither the political backing nor the financial strength to match the inaction in public oriented departments gets frustrated and it erodes the credibility in the system. Public administration, no doubt involves a vast amount of administrative discretion which shields the action of administrative authority. But where it is found that exercise of discretion was mala fide and the complainant is entitled to compensation for mental and physical harassment then the officer can no more claim to be under protective cover. When a citizen seeks to recover compensation from a public authority in respect of injuries suffered by him for capricious exercise of power and the National Commission finds it duly proved then it has a statutory obligation to award the same. It was never more necessary than today when even social obligations are regulated by grant of statutory powers. The test of permissive form of grant is over. It is now imperative and implicit in the exercise of power that it should be for the sake of society. When the Court directs payment of damages or compensation against the State the ultimate sufferer is the common man. It is the tax payers'' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then it should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behavior by dividing it proportionately where there are more than one functionaries.

We are in full agreement with what is observed herein. Thus the law is that the Consumer Protection Act has a wide reach and the Commission has jurisdiction even in cases of service rendered by statutory and public authorities. Such authorities become liable to compensate for misfeasance in public office i.e. an act which is oppressive or capricious or arbitrary or negligent provided loss or injury is suffered by a citizen."

SECONDLY , it is contended on behalf of the opposite parties that complainant is not a consumer qua the opposite parties. We do not find merit in this contention. Section 2(1)(d)(ii) of the Act defines the term ''consumer'' qua a service provider. The definition provides that consumer means any person who hires or avails of services for consideration. Admittedly in this case, the complainant in his capacity of government employee was allotted premises in question for which he was supposed to pay the license fee and the electricity charges. Besides being a tax payer, the complainant was contributing towards the expenditure incurred by the government on organisations such as CPWD and NDMC. Therefore, there can be no denial that the complainant had hired and availed the services of both the opposite parties for consideration. The NDMC obviously was providing electricity for consideration and CPWD was supposed to maintain the subject premises. The fact that license fee for government accommodation is nominal and much less than the market rent would also not help the opposite party because the requirement of definition ''consumer'' in the Act is that the person must have hired or availed of service for consideration. It does not speak about the adequacy of consideration viz -a -viz the services hired or availed. Thus, in our view, the complainant is squarely covered within the definition of consumer and the consumer dispute raised by him is maintainable. Coming to the question as to which of the opposite party is responsible for negligent act attributing towards the fire accident? Both the opposite parties in their contentions have tried to shift the blame on each other. As per OP No. 1, installation of meter board and the fuse cut out which caused the fire was the responsibility of NDMC whereas according to NDMC their responsibility was only to energize the meter installed in the premises and thereafter electric wiring/equipment and maintenance was the job of CPWD. Answer to the aforesaid question is provided by the report of Executive Engineer (E) CPWD wherein after the inspection of the subject premises after fire accident, Executive Engineer has inter alia recorded as under: "There was one electrical meter board alongwith the one meter and cut out base, neutral link fixed on the inside wall of garage. Also there was one switchboard near the meter for garage lights. One power plug point also existed in the garage near the right hand corner. There was no fuse carrier in the fuse base that was fixed along on the meter board. The wires of the neutral connection were twisted together and there was no connection made through the link.

After the fire incident i.e. on 09.01.1999 the NDMC staff came and disconnected the power supply to the meter. They installed another meter board outside the garage the same day on their own. Also they removed the existing burnt meter board on Monday without intimation to the CPWD."

FROM the above. It is clear that opposite party No. 2 was responsible for installation of meter board and the relevant fuse cut out inside the wall of the garage. Thus, OP No. 2 cannot escape the liability to pay the compensation as it was deficient in failing to ensure that fuse wire in the cut out was not left naked. This, however, does not absolve from OP No. 1 to compensate the complainant for the reason that while certifying premises fit for occupation, OP No. 1 was also under obligation to ensure that there was a fuse grip inserted in the aforesaid fuse cut out having naked fuse wire. Thus, in our view, both the opposite parties are jointly and severally liable to compensate the complainant.

COMING to the quantum of compensation to be awarded to the complainant. Onus of proving the quantum of damage is on the complainant. In order to prove the damages, the complainant has filed affidavit evidence. Relevant averments in the affidavit are reproduced as under: "Unfortunately, on 09.01.2009 at 6.30 a.m., the security guard posted outside noticed fire and smoke coming from the Garage. He raised an alarm and my personal security officer alongwith other security personnel rushed to the garage. By the time I also reached the garage, the security personnel by then had opened the garage which had been locked and were trying to pull the car (maruti) out of the garage and also trying to put out the fire. Unfortunately, by then the piano kept inside the garage and all other household goods lying the packages had caught fire. In spite of the efforts of the security personnel to put out the fire, the piano and most of the goods had been gutted and destroyed in the fire. In this manner, large quantity of goods, household articles, antique pieces, photographs, expensive cutlery, carpets etc. were destroyed in the fire. A list of articles in the fire has been furnished along with the complaint.

I submit that some of my staff including the driver on duty, Pritam Singh had noticed the defect in the meter board and had brought it to the notice of the NDMC electrician and the CPWD personnel, who were visiting the premises in the course of their work of getting the house ready and installing security lights. The CPWD had drawn the cable from the meter board in order to provide the electricity inside the house and also for the purpose of the security lights installed around the premises."

On reading of the above, it is clear that affidavit of the complainant regarding loss suffered by him due to fire is highly vague. No details have been given. Neither the invoice/receipts of purchase of the goods lost in the fire have been produced nor the value of the goods destroyed in the fire accident has been mentioned. Thus, it is obvious that there is no cogent evidence on record to quantify the damages. However, the fact remains that as per the affidavit of the complainant, his maruti car and piano besides the other belongings were gutted in fire. Since the complainant has not been able to provide the actual value of the articles lost, looking into the over all facts and circumstances, we make a best judgment assessment and award compensation of Rs. 2.00 lakhs (Rupees Two Lakhs only) to the complainant for the loss of belongings and mental trauma and harassment. Both the opposite parties i.e. CPWD (OP No. 1) and NDMC (OP No. 2) shall be jointly and severally liable to pay the awarded amount to the complainant within one month failing which the compensation awarded shall be payable with 9% interest per annum from the date of passing of order till the realisation. Complaint is disposed of accordingly.