Vithal Padma Patil vs Deepali Premchand Sakhalekar & 3 Ors

This appeal has been filed by the appellant, Vithal Padma Patil against the order dated 20.08.2015 of the State Consumer Disputes Redressal Commission, Maharashtra, (in short 'the State Commission') passed in Complaint Case No.CC/07/203.

Brief facts of the case are that the appellant/opponent No.1 is the owner of Sagar Resort, Arnala, Tal Vasai Dist: Thane. Respondent No.1 to 3 are the original complainant, who filed the complaint before the State Commission. Respondent No.4 was opposite party No.2 in the original complaint. The husband of the respondent No.1/complainant No.1 and father of respondent Nos.2-3/complainant Nos.2-3 along with his friends visited Sagar Resort of the opposite parties on 23.10.2005 and was taking bath in the swimming pool of the Sagar Resort. Suddenly, he screamed as if he got the electric shock and as soon as his friends could make efforts to rescue him and brought him to the hospital, he was declared dead. FIR No.1-233/2005 dated 23.10.2005 was lodged and the post-mortem were also conducted. Later on the complainants filed consumer complaint bearing No.CC/07/203 before the State Commission for directing the opposite party to pay compensation of Rs.46,34,000/-. The notices were issued and though opposite party No.1 was represented, however, opposite party No.1 did not file any written statement. The matter was sent to the sine die list. Later on the matter was taken up in the year 2015 and again notices were issued. Even after publication of notice none appeared on behalf of opposite party No.2. Thus, the State Commission virtually proceeded ex-parte against both the opposite parties though the son of opposite party No.1 was allowed to argue the matter on the date of final hearing. The learned counsel for the complainant absented himself on the day of final hearing. However, the State Commission has allowed the complaint as under:-

"1) Consumer complaint is partly allowed with costs quantified to Rs.20,000/- [Rs. Twenty Thousand only] to be paid by the opponents to the complainants.

2) Opponents are further directed to pay lump-sum compensation of Rs.12,00,000/- [Rs.Twelve lacs only] to the complainants with interest @9% p.a. from 15/06/2008 within a period of 60 days from the date of this order.

3) Opponents are further directed to pay Rs.2,00,000/- [Rs.Two Lacs only] to the complainants on account of mental agony."

Hence, the present appeal by opposite party No.1.

Heard the learned counsel for the appellant as well as learned counsel for respondent Nos.1 to 3. Respondent No.4 was deleted. Learned counsel for the appellant stated that the police case was investigated and charge-sheet was filed in the competent court. However, the competent court/Sessions Court vide its order dated 23.06.2012 has discharged the opposite party No.1 from the criminal case. It was argued that when the appellant has been discharged from criminal case, no liability of the appellant can be fixed under the Consumer Protection Act, 1986 because the guilt of the appellant has not been established in the competent court/Sessions Court.

It was further argued by the learned counsel for the appellant that there is nothing on the record to suggest that the deceased died of electric shock. The Sub-Engineer of the MSEB has stated the following in his report given to the police:-

"As per their information, I put on & checked the motor of water falls in present condition. But, I have not seen any electric current leakage after starting the water. But, water is leaking from the water pump of said motor pump and due to leakage of water, the possibility of leakage of electric current can not be denied."

From the above report, it was argued that the Sub-Engineer has clearly stated that there was no leakage of electric current in the water. Even if there was some leakage of water from Motor Pump, the current cannot spread to the tank causing electric shock to the deceased. Moreover, in the post-mortem report, it has been clearly stated that "cause of death cannot be given". Later on roughly after two years the matter was discussed amongst doctors and the Civil Surgeon has arrived at decision regarding cause of death as "asphyxia" vide report dated 17.02.2007. Not only this, it seems that due to some pressure it has been mentioned in the Civil Surgeons report that deceased died due to asphyxia and the said asphyxia has happened due to drowning or electric shock. Asphyxia could have happened due to drowning, but whether asphyxia was caused due to electric shock is not supported by any symptoms given in the post-mortem report.

Learned counsel for the appellant further stated that the appellant is very old and he has already deposited 50% of the awarded amount. The appellant was proceeded ex-parte and could not get opportunity to defend his case as no opportunity was granted to the appellant to file written statement. Though his son argued the matter on the date of final hearing, but the appellant has not got any opportunity to file any evidence in the matter. The State Commission has not even recorded the arguments advanced by the son of the appellant. Thus, the order of the State Commission is one sided only.

It was further argued by the learned counsel for the appellant that the State Commission has allowed interest @9% p.a. from 15.06.2008, whereas, the case remain pending in sine die list and the appellant should not be held responsible for the delay and pay the interest for that period. Moreover, 9% p.a. interest is not available with any financial institution and the same is quite excessive keeping the current interest scenario in mind. Apart from the interest, the State Commission has also ordered Rs.2,00,000/- to be given to the complainants on account of mental agony. It was argued that the interest is also in the form of compensation and therefore, no separate compensation for mental agony is justified.

On the other hand, learned counsel for the respondent Nos.1-3/complainants stated that it is not correct to say that there is no evidence that the death was caused due to electric shock. The report of the Civil Surgeon dated 17.02.2007 clearly states that the cause of death was asphyxia, which would have been caused due to either drowning or due to electric shock. It has already come in the evidence that there was only 1 ½ feet of water and therefore, it was not possible that a full grown person could drown into the water. Thus, asphyxia due to drowning was not possible and consequently asphyxia due to electric shock is the possible cause of death. Similarly, the report of the Sub-Engineer also mentions that "water is leaking from the water pump of said motor pump and due to leakage of water, the possibility of leakage of electric current cannot be denied." Thus, the Sub-Engineer has also expressed the possibility that there would have been current in the water of the tank causing the electric shock.

It was argued by the learned counsel for the complainants that it was also not correct to say that the appellant was proceeded ex-parte as he willingly did not file the written statement though his representative appeared before the State Commission. His son also argued before the State Commission and therefore, his views have already been considered and taken into account by the State Commission. The appellant cannot get any benefit of his own wrong as he chose not to file written statement even after appearance.

Learned counsel for the respondent Nos.1-3/complainants argued that the order dated 23.06.2012 passed by the Sessions Court is not the real discharge of the appellant/opposite party, who was accused, as the order has been passed due to non-appearance of the accused under Section 258 of Cr.P.C.. Thus, no benefit of this discharge can be given to the appellant. In fact this strengthens case against the appellant, who is so strong that he avoided even the criminal court.

In respect of the compensation granted by the State Commission, the learned counsel stated that the deceased was only earning member in the family and respondent Nos.2-3 are still minors and therefore, the State Commission has rightly calculated the earnings of the deceased and has rightly awarded the compensation to the complainants. The complainants have really gone under lot of mental agony and therefore, the award of Rs.2,00,000/- for mental agony is completely justified.

I have given a thoughtful consideration to the arguments advanced by both sides and have examined the material on record. It is true that the post-mortem report does not give cause of death as it states that "cause of death cannot be given". However, later on after discussion, the Civil Surgeon has given the cause of death as asphyxia, which may have been caused either by drowning or by electric shock. Thus, the report of the Civil Surgeon expresses the possibility that death might be caused by asphyxia due to electric shock. However, no confirmatory report has been submitted. Similarly, the report of Sub-Engineer MSEB has also expressed possibility that due to leakage of water from the motor pump, the possibility of electric current in the water cannot be ruled out. However, no definite conclusion has been given rather, he did not find electric current when he started the motor pump. All these reports go on to show that there is no confirmation that the death was caused due to current flowing in the water. However, it is true that the husband of the respondent No.1 died while using the swimming pool of the Sagar Resort of the opposite parties. There is nothing on record to show that the deceased died due to his own wrong or due to any sudden heart failure or stroke. Thus, the State Commission has rightly relied upon the fact that the death might have been caused due to flow of electric current in the water causing electric shock to the deceased.

It is true that the appellant did not get opportunity to defend his case by filing written statement. However, it is also true that perhaps the appellant did not want to file any written statement as inspite of the appearance of the representative of the appellant no written statement was filed. The appellant also did not file appeal against the order of the State Commission denying him to file the written statement. Moreover, his son argued before the State Commission. Thus, the appellant was not ex-parte before the State Commission. Here it is seen that the complaint was filed in the year 2007 and the matter was sent in the sine die list. The matter was taken out in the year 2015 and the final order has been passed on 20.08.2015. This was the case where urgent relief was required to be given to the complainants. However, the relief has been granted to the complainants after eight years of filing of the complaint. The practice of sending cases to sine die list needs to be curbed in the interest of complying with the objectives of the Consumer Protection Act, 1986 including speedy disposal of consumer disputes and for providing better protection to the consumers. In this background, if the matter is remanded to the District Forum, for giving opportunity to the appellant to file the written statement, the matter will be delayed further. As the views of the appellant have already been considered by the State Commission as argued by his son and keeping in view the delay already occurred in the matter, I do not intend to remand the matter for decision.

I have perused the order dated 23.06.2012 passed by the Sessions Court in the Criminal case No.22/5/06 filed against the appellant. It is seen that the appellant has been discharged due to the fact that for a long time appellant did not appear before the criminal court as accused. The court has discharged the appellant under the provisions of Section 258 of Cr.P.C. Thus, I do not consider this as a real acquittal of the appellant in the criminal case and this order cannot be taken as proof that the appellant has not been found guilty by the criminal court. Hence, this order does not help the appellant in any manner.

It is true that in the circumstances, the complainants are entitled to get compensation from the opposite parties. The point to be considered in this appeal is also regarding the quantum of compensation granted by the State Commission. Even if one leaves the doubts crept in the cause of death and consequently on the liability of the appellant/opposite party, it is seen that the question cannot be raised over the liability of appellant in the circumstances and facts of the present case as established in the proceeding paragraphs. The State Commission has considered the total monthly salary minus subsistence equal of 1/3rd of the salary for calculating the compensation, which has been considered for remaining 13 years of the service of the deceased. First of all, subsistence of 1/3rd of the salary is not justified and that should have been taken to be 50%. The analogy is being drawn from the Workmen Compensation Act, where only 50% of the monthly salary is considered for determining the compensation to be paid to the family of the deceased. Thus, the compensation of Rs.9,00,000/- would be reasonable and sufficient in the present case.

I also find that the award of the State Commission for Rs.2,00,000/- on account of mental agony is not based on any clear finding or any reasoning. When the compensation is being awarded the same would cover the mental agony as well. Thus, I do not find any justification for maintaining the award of the State Commission for Rs.2,00,000/- to be given to the complainant for mental agony.

Based on the above discussion, the appeal is partly allowed and the order dated 20.08.2015 of the State Commission is modified to the extent that the opposite parties will be liable to pay Rs.9,00,000/- (rupees nine lakhs only) along with interest @ 9% p.a. from 15.06.2008 till the date of actual payment. The order of the State Commission in respect of the award of Rs.2,00,000/- for the mental agony is set aside. The cost awarded by the State Commission is maintained. The opposite party/appellant to comply with this order within a period of 45 days.