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Judgment
THIS is a complaint filed under Section 12 of the Consumer Protection Act, 1986. The allegations made in the complaint may be briefly stated thus: The complainant is a Doctor in Indian Medicine and she has been working as a Lecturer in Government College of Indian Medicine, Mysore. Her husband Dr. S.S. Patil was also a Lecturer in the same college and during their wedlock they begot 3 children who are all minors now. The complainant applied for allotment of a residential house under a scheme floated by the 1st opponent, and the 1st opponent allotted her a house bearing number 5686 under an allotment letter dated 27.2.1991. The first instalment was paid along with the application. On 12.7.1992 Dr. S.S. Patil-husband of the complainant with his two children went to the house allotted to them, which was under construction, to inspect the construction and while he was doing so on the roof he suddenly came into contact with a high tension wire which was running just above the roof. He was electrocuted and fell down from the terrace. He was immediately shifted to a hospital where he was found dead. The complainant is contending that she has sustained a heavy loss as she has lost the breadwinner of the family, and according to her, his death was attributable to deficiency of service for which the opponents were responsible.
THE 1st opponent has denied all; the allegations made against it. According to the 1st opponent, the deceased had no business to visit the house. THE 2nd opponent-K.E.B. has contended that it is not responsible for the incident. It is its contention that the house should not have been built beneath high-tension wire contravening Rule 82 of the Indian Electricity Rules, 1956. The following points would arise for consideration: (1) Whether the complainant is a Consumer ? (2) Whether the 1st opponent committed deficiency of service ? (3) Whether the 2nd opponent is liable ? (4) To what relief the parties are entitled to?
Point No. I :
There can be no dispute that the complainant is a ''Consumer'' within the meaning of the Consumer Protection Act, 1986. The house has been allotted to her by the 1st opponent M.U.D.A. under a housing scheme. Point No. II :
IT is the contention of the learned Counsel for the 1st opponent that the 1st opponent cannot be held to be guilty of deficiency of service for the main reason that the complainant''s husband invited trouble for himself. According to him, they had not permitted the deceased to enter the house nor it is open to the deceased to inspect the house suo motu before the house was actually delivered. That the house has not been delivered to the complainant at the time of the incident is not disputed. The only question is whether the husband of the complainant could have visited the house before its delivery. The learned Counsel for the complainant points out that according to Ex. Cl-Allotment Letter dated 27.2.1991, the payment by instalments are linked to the stages of construction. In Ex. Cl it is stated that the 2nd instalment has to be paid after the completion of the foundation; the 3rd instalment has to be paid when the building reaches the lintel level; and the 4th instalment has to be paid after the completion of the roof of the building. The contention of the learned Counsel for the complainant is that since the payments are linked to the stages of construction, the complainant and her husband, who is part of her family are entitled to inspect the building to find out whether the building has reached a particular stage or not. She also argues that the right to inspect the building and to find out whether the M.U.D.A., the 1st opponent was constructing the building properly is inherent in the allotment itself. On the other hand, Mr. Manjunath, the learned Counsel for the 1st opponent contends that either Ex. C1- Allotment Letter or Ex. C22-Notification inviting applications do not provide any privilege of inspecting the house to the allottee or her agent. The Hon''ble Supreme Court in the case of Lucknow Development Authority v. M.K. Gupta reported in (1994) 1 SCC 243 has observed in para 6 that when a statutory authority develops land or allots a site or constructs a house for the benefit of a common man, it is as such service by a builder or a contractor. One is contractual service and the other is statutory service. Construction of a house may be undertaken by the owner or he may hire the services of a builder or a contractor. So, in the instant case, the complainant has hired the services of the 1st opponent to build a house to herself. IT is therefore not possible to accept the contention of the 1st opponent that the complainant or her husband had no authority to inspect the house at the time of construction and before it is delivered to them. The complainant had vested interest in the whole scheme, which includes the process of construction of the house. The relationship of husband and wife in marriage is such that of commonality of interest and inter-dependence on each other, entitles either party to step in the shoes of another, as pointed out by the Hon''ble National Commission in the case of T.T. Private Limited v. Akhil Bharatiya Grahaka Panchayat And Another reported in II (1996) CPJ 239 (NC). The Post-Mortem Report-Ex.C4 clearly shows that the death of the husband of the complainant was due to electrocution. IT is in evidence that the high-tension wire was running just above the roof. The distance between the wire and the roof was only about 5 feet. This shows that the 1st opponent constructed the house just beneath the high-tension line. Construction of a house just beneath the high tension wire itself is per se negligence. The 1st opponent should have taken care to avoid the possibility of such an accident before the construction. The learned Counsel for the 1st opponent, relying on Ex. R1 contends that the case of the complainant is an afterthought. It is true in Ex. R1-letter written to the 1st opponent, the complainant has not claimed the damages nor made any other allegations against the 1st opponent. She has only requested the 1st opponent to waive the payments of further instalments in view of her difficulties. She has not waived her right to claim all compensation. The materials placed before us do not indicate that the complainant has improved her case. We have clear materials before us to conclude that her husband lost his life as alleged by her. The complainant has sworn to these facts. In addition, her children who were with the deceased at the time of his death, have corroborated the version of CW 1, in their affidavits. Ex. C4-the Post-Mortem Report supports the version of the complainant. We are therefore of the view that the 1st opponent committed deficiency of service. Point No. III :
AS regards the 2nd opponent is concerned, the complainant has not made out any case. The learned Counsel for the complainant is not able to convince us why the 2nd opponent K.E.B. has been impleaded. We are of the view that the 2nd opponent has been unnecessarily dragged here. Point No. IV : The next question is to what relief the parties are entitled to: The complainant has claimed damages of Rs. 20.00 lakhs with interest. This is very high. In a matter like this, the assessment of damages could be properly done if we follow the methods adopted by the Motor Vehicle Claims Tribunal. It is in evidence that the husband of the complainant was earning about Rs. 4,000/- per month, and that he was aged about 35 years at the time of his death. He was a doctor, and he was employed as Lecturer in Government College of Indian Medicine at Mysore. The effect on his family after his death will have to be assessed. Though he was earning about Rs. 4,000/- per month, he would have spent 1 /3 of his earning on himself. His contribution to his family would have been 2/3 of his income. The complainant will therefore be entitled to loss of 15 years dependency. If we assess the loss of dependency at Rs. 2,660/- per month, the loss of dependency of 15 years will come to Rs. 4,78,800/-. She will also be entitled to a sum of Rs. 5,000/- towards loss to the estate; and Rs. 10,000/- for loss of consortium. We would like to award a sum of Rs. 5,000/- towards funeral and obsequies expenses. In all, the complainant will be entitled to Rs. 4,98,800/-. Therefore, we pass the following order: We direct the 1st opponent to pay a sum of Rs. 4,98,800/- with interest at 15% p.a., from 12.7.1992 till payment, to the complainant. However, the 1st opponent has waived a sum of Rs. 1,57,500/-, which was due to it from the complainant being the balance amount to be paid towards allotment of the house on 16.10.1992. Therefore, the 1st opponent is entitled to deduct this amount as having been paid on 16.10.1992. The complainant shall pay a sum of Rs.l, 000/-to the 2nd opponent being the costs of this proceeding. The complaint is disposed of accordingly. Complaint disposed of.