- (1.) COMPLAINANT No. 1, a reputed consumer organisation has filed this complaint on behalf of complainant No. 2, who is referred to as complainant in this order. He is resident and joint owner of bungalow No. 11/12 in the premises of Nishant Bungalows purchased from opponent No. 1 as per agreement dated 18.7.1991 entered into between the complainant along with his parents Jashwantbhai. H. Patwa and Jayaben J. Patwa. Opponent No. 1 is builder and dealer in housing property and realty and is also working as such under opponent No. 2 claiming to be the principal of opponent No. 1. Opponent No. 3 Rastrapal Cooperative Housing Society is a Coop. Society set up under the provisions of the Gujarat Coop. Socieities Act by opponent No. 1. Opponent No. 4 is Ahmedabad Electricity Company, provider of electricity services to Nishant bungalows in the premises belonging to the common plot where the complainant s son Pavan died due to electric shock. The complainant has alleged deficiency in service on the part of the opponents firstly on account of the overall control and management of the opponent No. 3 society retained by the first two opponents and secondly because of the deficiency in rendering services of electricity by way of supervision of electricity supply on the part of the opponents, opponent No. 4 electricity company is included are concerned as per the allegations of facts contained in the complaint.
(2.) AS stated above, as per agreement dated 18.7.1991 entered into between the complainant and his aforesaid relatives on the one side and opponent Nos. 1 to 3 on the other side, bungalow No. 11/12 of Nishant bungalows was to be allotted to the complainant and his relatives for consideration of Rs. 14,00,000/ - which came to be fully paid. Relevant clauses of the agreement have been set out in the complaint which inter alia say that the purchaser should permit the builders and the Surveyors and agents with or without workmen and others at all reasonable times to enter into and upon his/her property or any part thereof for purpose of repairing any part thereof the bungalow and for cables, water, covers, gutters, wires, partly structures and other conveniences belonging to or servicing or used for the said scheme (of Nishant bungalows) and also for the purpose of laying down, maintaining, repairing, testing drainage, gas and water pipes and electric wires and for similar purposes. It is also recited that in the event of the society being formed and registered before the sale and disposal by the builders of all the bungalows in the scheme, power and authority of society so formed should be subject to overall power of the builder. After having occupied the bungalow in question, the said incident of complainant s son touching the light pole erected in the common plot of the society and getting electric shock from the said light pole occurred at around 8.45 p.m. on 14.5.1993. It has been alleged that since there was leakage in the electric wires which had been negligently placed in the pillar/post and upon the complainant s son Pavan coming into contact with the pole died on the spot due to electric shock. It has, therefore, been alleged that on account of negligence and carelessness on the part of opponents as stated above in not providing proper electric cables and not maintaining the same the complainant s son died. The complainant has then referred to the notice correspondence which ensued between the parties. He has also referred to intimation having been given to opponent No. 4 Ahmedabad Electricity Company Limited. Representative of opponent No. 4 Electricity Company, however, visited Nishant bungalow on 17.5.1993 after knowing about the death of complainant s young son Pavan on account of electric shock. The inspectors/supervisors of opponent No. 4 electricity company disconnected the supply of the said society. Upon being requested to find out the reasons for stopping of electricity supply and to take appropriate steps against first opponent, opponent No. 4 electricity company kept silent. Opponent No. 4 electricity company, however, gave report on the inspection carried on 17.5.1993 to the effect that 1st two opponents had taken unauthorised electric connection up to the pole which ultimately resulted into the accident to Pavan Patwa. The technician of opponent No. 4 electricity company found the electric pole dangerous on account of the wiring being open. After taking the required steps and insulating the open wires, opponent No. 4 electricity company restored electric connection on 28.6.1993. Thus, career of a promising boy ended on account of untimely death due to electric shock as aforesaid. The complainant has asserted facts about longevity in the family. Parents of the deceased were in their thirties at the date of his death and his grand father and grandmother were respectively aged 71 years and 69 years. His great grandmother was alive at the age of 86 years on the date of the incident. Pavan was a student of St. Xavier s Loyola School and had attained merit certificates showing his high level of performance in painting and other arts and crafts. He was studying in 8th standard at the time of the incident. The complainant has prayed for compensation in the sum of Rs. 5,00,000/ - on account of shortening of life of his son, Rs. 2,00,000/ - for mental shock and suffering and cost in the sum of Rs. 10,000/ - and Rs. 5,000/ - respectively for complainant Nos. 1 and 2. The complainant has alleged that Pavan would have earned at least Rs. 3,000/ - per month for 25 years and after deducting 1/3rd for his own personal expenses, he might have spared balance amount for the household of the complainant and the members of his family. Compensation has accordingly been worked out as stated above.
(3.) FIRST two opponents have filed their written statement at Exh. 14. While denying the allegations contained in the complaint, they have asserted that the complaint is not maintainable at law as the complainant No. 1 cannot be said to be a consumer as defined in Section 2(1)(d) of the Consumer Protection Act, 1986 , that it has no locus standi to continue and pursue the complaint and that in view of the fact that the bungalows were completed in November 1992 and a maintenance committee was formed on or around September 1992 of the Members of the Society for the purpose of maintenance and attending to the common amenities and service of the bungalows of the society, first two opponents would not be liable for the incident in question. These opponents have also referred to the correspondence as also the agreement in question inter alia making reference to Clause 8 thereof saying that the buyers had taken inspection of the agreement for sale and agreement made between the society and the builders and after fully understanding the terms, covenants and conditions contained in the said agreement, agreement of sale was entered into. Complainant issued notice dated 27/28.5.1993 to which interim reply was sent on 2.6.1993. Mr. Manoobhai G. Amin, Advocate for opponent No. 2 finally gave reply to Mr. Jashwantbhai Hiralal Patwa and three others on 9.6.1993. The said members of the committee replied on 22.6.1993 Mr. S.B. Vakil replied on 2.6.1993 to the notice dated 27/28.5.1993 issued by Advocate Mr. N.J. Bhatt for the complainant. With regard to the electric pole, it has been asserted that the electric pole was not in the original design and the same was provided by the society at the instance of the purchaser of the bungalows. Fuse box was provided which was about two feet from the boundary wall. The society raised the area surrounding the pole for the purpose of landscaping in such a manner as to leave gap of 4 inches between the top of the mound and the fuse box. It has been asserted that sprinkling of water on the top of the mound would easily cause water to enter into the fuse box and as the wires were not properly tapped such an accident as has occurred would be caused. It has been asserted that fittings in the entire premises with switches and switch boxes were provided in proper accordance and the same were carried through concealed pipes from the electric wires properly insulated. After handing over the possession of the bungalows to the purchasers, number of functions came to be held in the scheme open area by society members by taking temporary connection from the pole point. In such circumstances if connections were not properly re -tapped and if some wires were kept open, the accident could occur. Hence, 1st two opponents cannot be held responsible for the accident in question. According to the 1st two opponents, entire management came to be handed over to the society and opponents did not have any control in respect thereof. The report of opponent No. 4 electricity company, though not admitted, is stated not to disclose any negligence attributable to opponent Nos. 1 and 2. Upon the incident having occurred, FIR dated 15.5.1993 was lodged before the Satelite Police Station by Dr. Jashwant Patwa as accidental death case No. 14/1993 and final report dated 28.4.1994 has been submitted for further process. Under all these circumstances, the first two opponents cannot be held responsible either on the ground of negligence or on the ground of deficiency in service. The first two opponents have, therefore, prayed for dismissal of the complaint with cost.;