ASHOK ACHARAYA vs Rajasthan Government

MR. Ashok Acharaya (complainant) has filed this complaint under Sec. 12 read with Sec. 17(a)(i) of the Consumer Protection Act, 1986 ("the Act" herein) against the Rajasthan State through (1) Secretary, P.H.E.D., Jaipur, (2) Chief Engineer, P.H.E.D., Rajasthan, Jaipur (3) XEN, P.H.E.D., City Division, I, Bikaner and AEN, P.H.E.D. City Area, Bikaner praying for the following reliefs (1) That, a sum of Rs. 2,09,702/- may be ordered to be paid to the complainant by the opposite parties for the repairs of the house. (2) That a sum of Rs. 35,876/- was spent on the urgent repairs of the house, which the opposite parties may be asked to pay to the complainant. (3) That as there was shortage of water in May-June, 1989 the complainant has to purchase water from outside for which he spent Rs. 2,000/-, which may be ordered to be paid. (4) That certain miscellaneous expenses were incurred for which the complainant has claimed Rs. 5,000/- from the opposite parties; and (5) That as the house is damaged the members of the family had to remain in that house, and they were always in fear and so there was mental tension, and therefore reasonable compensation may be awarded.

The house of the complainant is situated in Acharyon-ka-chowk, Bikaner known as Sanghi Bhawan. The complainant is a consumer of drinking water and his consumer No. is 8052-A and A/c. No. is 19-111074. An underground pipe line of water runs in front of the complainant''s house from which water connection was given to the complainant. It is said that the. opposite parties are bound to render service of supplying water without any interruption in accordance with law. It was stated that the opposite parties are also under an obligation to keep the machineries and pipe line etc. in order and to look after them from time to time. The officers are required to supervise and inspect them and maintain them in good condition. The pipe line before the meter is a Government property and it is the responsibility of the State Government to keep it in proper condition. It is said that the complainant has been making complaints since June, 89 that the water received from the pipeline is less but no heed was paid and the complainant also thought that it was on account of summer that he has been receiving less water. In reality according to the complainant pipe-line was defective and there risav of water started which resulted in less supply of water. It was on account of risav that the water went into the foundation of the complainant''s house. It was noticed in the first week of July, 1989 that there are cracks in 2-3 houses and also in the house of the complainant. The news spread. It was published in the prominent newspapers that on account of the leakage in the Government pipe line, there were cracks in the house of the complainant. The complainant contacted the concerned officers of the Public Health and Engineering Department regarding the leakage of the pipeline which resulted in damaging many houses. It is said that the complainant informed his elder brother, Shri B.D. Acharaya who is a prominent photo officer in the Directorate of Public Relations, Jaipur. He contacted Shri P.N. Rajwanshi at his residence who told him to contact his office at Bikaner. He took the application before the then State Minister who told him that a meeting of Public Health and Engineering Department officers will be held at Bikaner. The Minister handed over the application to Shri M.M. Singhvi, Additional Chief Engineer, Bikaner and told him to take necessary action on the complaint. The elder brother of the complainant immediately submitted an application to the Public Health and Engineering Department Minister regarding compensation for the damaged houses. The Minister handed over the application for taking necessary action to the subordinate officers. Several demands for compensation c-f the damaged house were made but no reply was given. The amount of compensation was not paid. The complainant served a notice in the first week of November, 1989 on the opposite parties but nothing was done. On account of the improper maintenance of the pipeline there was interruption in the service lines, and on account of the carelessness and negligence of the opposite parties the damage was caused to the complainant''s house. The opposite parties got the pipeline dugged. It was noticed that there was leakage at many placed and the water had reached the deep foundation of the house and damage was caused to it resulting in cracks. The complainant go the assessment and estimate report from an Engineer and a plan of the house was also got prepared from Draftsman. As nothing was done, the complainant was filed as stated hereinabove. With the complaint a plan, photostat copy of the bill, estimate on dismaintaling, the house ''Sanghi Bhawan'', Bikaner marked Annexure 1 to 4 were submitted. The complainant submitted his affidavit. A joint version of the case purporting to be on behalf of opposite parties No. 1 to 4 was submitted. Opposite party No. 2 is Chief Engineer opposite party No. 3 Executive Engineer and opposite party No. 4 is Assistant Engineer. By order dated 1.12.90 version of the case which was filed on 5.11.90 was ordered to be taken on record on payment of Rs. 200/- as costs. The costs were paid and thereafter the version of the case was taken on record. The opposite parties while opposint the complaint in the version of the case raised an objection that the complainant is not a consumer and, therefore, the complaint should be dismissed. It was also sub-, mitted that the neighbours in the vicinity of the complainant, Smt. Janki Devi filed Complaint Case No. 197/89 before the District Forum, Bikaner in regard to the leakage of the pipeline. By its order-dated 20.1.90 the District Forum dismissed the complaint. A photostat copy of the order was submitted in support thereof. The complainant submitted his affidavit in support of the complaint on 26.11.91. A reply was submitted on behalf of the opposite parties by Shri Kishan Lal Sadh, LDC on 9.12.91. It was recorded in the proceedings dated 13.1.92 that it cannot be considered as an affidavit in rebuttal as submitted by the learned Counsel for the opposite parties for the simple reason that it has neither been attested by a competent authority nor verified and sworn before an authority competent to administer the oath. It was pleaded that no complaint was received from the complainant about less water from the pipe line in the months of May-June 1989. However on 3.7.89 the JEN was informed on phone that in Acharyaon-ka-Chowk there is leakage of water. In compliance of that the JEN sent a party for checking and it was found that there was no leakage. Then on 4,7.89 working party was sent which dug and checked the pipe line. At that time the XEN & AEN who were present while checking found that there was leakage of connection of Shri Laxmidas Acharaya which was repaired on 6.7.89 and supply of water was started. Facts relating to leakage pleaded by the complainant were denied. It was submitted that if any complaint is received with respect to the supply and distribution of water, efforts are made to remove in time. An objection was taken that the complainant is not a consumer of the Department. No water connection has been granted in his name. No documents have been produced by the complainant to show that he is the owner of the house and he is the consumer of the Department. Leakage was denied on the ground that whatever leakage was noticed it cannot be said that it was on account of the negligence of the opposite parties. It will be useful to except para 13 of the complaint, which is as under: ...[Vernacular Text Ommited]... Shri Ashok Acharaya submitted his affidavit in support of the complaint. Thereafter Shri T.R. Singhal, XEN submitted a reply to the affidavit as stated above. That was not taken on record. With that a photostat copy of the order passed in Complaint Cases No. 108/89 and 110/89 dated 5.9.90 by the District Forum, Bikaner was submitted to show that similar complaints were made by the neighbours in the vicinity and the District Forum dismissed the complaints. A photostat copy of the Water Supply Rules, 1967, amongst others, was also submitted. In the first instance arguments of Shri Karni Singh Rathore, learned Counsel for the opposite parties were heard. An application was submitted by the learned Counsel for the complainant on 17/1/1992 praying for affording an opportunity of hearing as learned Counsel for the com plainant did not appear on 13.1.90 when the arguments were heard. An opportunity was given to him to submit written arguments after delivering the copy to the learned Counsel for the opposite parties. An opportunity was also granted to the opposite parties to submit written arguments in reply if they so like. Learned Counsel for the complainant did not avail of that opportunity. We have carefully considered the complaint, version of the case, affidavit of the complainant and the documents submitted by the parties. The complainant is son of late Shri Sanghi Das Acharaya. The photostat copy of the bill which he has produced is of Laxman Das Acharaya, Sanghi Das''s son is Laxman Das Acharaya. Technically it is correct that there is no water connection in the name of the complainant for the bill was issued in the name of Laxman Das Acharaya, Shri Ashok Acharaya is the son of Sanghi Das Acharaya. The controversy that the complainant has no locusstandi to file the complaint as water connection is not in his name is not of any relevance. The principal question which arises in this case is whether the complainant is a consumer. Before proceeding further we may briefly take into consideration the definitions of ''complainant'', ''complaint'', ''consumer'', ''consumer dispute'', ''deficiency'' and ''service'' as defined in Sec. 2(1)(b), (c), (d), (e), (g), & (o) of the Act : "(b) "complainant" means : (i) a consumer; or (ii) any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force; or (iii) the Central Government or any State Government, who or which makes a complaint; "(c) "complaint" means any allegation in writing made by a complainant that (i) a result of any unfair trade practice adopted by any trader, the complainant has suffered loss or damage; (ii) the goods mentioned in the complaint suffer from one or more defects; (iii) the services mentioned in the complaint suffer from deficiency in any respect; (iv) a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods, with a view to obtaining any relief provided by or under this Act;"

(d) "Consumer" means any person who - (i) buys any goods, for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of i.e. first mentioned person;

(e) "Consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint". (g) "Deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service". (h) "Service" means service of any description which is made available to potential users an includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, entertainment amusement or the purveying of news or other information but does not include the rendering of any service free of charge or under a contract of personal service". Here we may notice Rules 12 and 13 of the Water Supply Rules, 1967 which are as under : "(12) The applicant shall have to make his own arrangement for pipe fitting at his own cost". "(13)(i) It will be the sole responsibility of the consumer for the maintenance of the service line from the Water Works main or sub-main. But its maintenance (repairs and replacement) will have to be carried out through the Water Works Department and charges shall have to be borne by the consumer. If the consumer fails to deposit the cost of maintenance, repair or replacement his connection will be liable to be cut off after a due notice and amount so incurred will be recovered as per P.D.R. Act, 1952". (ii) Installation and extension of pipe line beyond the Meter and inside the premises shall be carried out by the applicant through a licensed plumber of approved contractor of the Water Works Department but the same will be open to inspection by technical representative of the department as and when desired and directed by the Department. (iii) The consumer shall not connect with his pipe line any Cistern receptacle used for the storage of rains or well water or other water from the water works mains and no supply shall directly be connected to any water closet".

A perusal of Rule 13(i) shows that the sole responsibility for the maintenance of the service line from the Water Works main or sub-main is of the consumer. However it has been clarified that the maintenance/repairs and replacement are to be carried out through the Water Works Department and charges have to be borne by the consumer. A penalty has been provided that if the consumer fails to deposit the cost of maintenance, repair or replacement in connection with the supply, it is likely to be cut off after a due notice and the amount so incurred is to be realised as per PDR Act, 1952. Now let us revert to the allegations made in the complaint. It is significant to note that in para 3 of the complaint, the complainant has alleged that in front of his house (?) a Government pipeline for water in the underground runs and it is from that pipeline the water connection has been given in his house (?). In para 7 of the complaint the complainant has alleged that in reality pipeline of the water from which connection has been given for supply of water is defective and on account of that there was leakage which had resulted in less supply of water in his house. It may be noticed that the complainant has come with a case that the opposite parties got the pipeline dugged and it was noticed that at various places there was leakage of water and it has reached the deep foundation of the house which resulted in damage to the foundation and caused cracks therein. At this moment we are not concerned for the repairs of the house which has resulted in cracks. A contrary case has been set up in the version of the case by the opposite parties that after the receipt of the telephonic call on 3.7.89 the JEN sent working party for checking and it was found that there was no leakage. However on 4.7.89 the line was inspected by digging it by the working party. It was checked by XEN & AEN and it was found that the leakage was in the connection of Laxman Das Acharaya which was repaired on 6.7.89 and the supply of water was restored. According to Rule 13 (i) if there was any leakage in the water supply line of Laxman Das Acharaya the responsibility was that of the person in whose name the connection was granted and if the complainant has noticed the leakage of the water as is clear that there was less supply of the water in his house, steps should have been taken for removal of the defects or rectification thereof. According to the complainant as has been adverted hereinabove the defect was in the Government line which runs underground in front of the complainant''s house (?). Then the serious question arises whether the services of the opposite parties suffered from deficiency as there was defect in that service line. For that purpose we will have to analyse the definition of consumer. A consumer is one who hires the services of the opposite party for consideration. We had occasion to examine to two words ''hires'' and ''consideration'', in I (1992) CPJ 271. Sec. 12 of the Act provides manner in which complaint is to be made. It will be useful to excerpt material part of Sec. 12 of the Act which is as under :

"12. A complaint, in relation to any goods sold or delivered or any service provided, may be filed with a District Forum by - "(a) the consumer to whom such goods are sold or delivered of such service provided"; "(b) any recognised consumer association, whether the consumer to whom the goods sold or delivered or service provided is a member of such association or not"; or "(c) the Central or the State Government".

Sec. 14 of the Act deals with the findings of the District Forum. By virtue of Sec. 18 of the Act that procedure is applicable to the State Commission. An order for compensation to the consumer for the loss or injury suffered by him may also be passed. A perusal of Sec. 2(1)(d) (ii) of the Act shows that the service should have been hired by him. The complainant even if he is consumer of the opposite parties and pays water charges for the consumption then in that respect he can only be said to have hired the service. The grievance about the leakage of water raised by the complainant which according to the complainant has resulted in the damage of the house, he cannot said to be a consumer as defined in the Act. At the most it is a tortuous action. The facts as stated if taken to be correct merely show negligence as contemplated under the Law of Torts. Negligence under the Law of Torts means (1) duty to take care (2) breach of duty and (3) consequential damage. In other words negligence involves three constituents. 1. A legal duty to exercise due care on the part of the party complained of towards the party complaining the former''s conduct within the scope of the duty; 2. Breach of the said duty; and 3. Consequential damage.

In the Law of Torts, Ratan Lal and Dhirajlal Twenty First Edition, 1987 at page 372, some illustrations have been given relating to negligence. See (1936) A.C. 360. We have purposely mentioned this to show that the complainant as per the averments made in the complaint does not satisfy the tests under Sec. 2(1)(d)(ii) of the Act. If he thinks that the opposite parties owed a duty to him and that duty was breached on account of which he has suffered damage, the remedy lies not under the Consumer Protection Act, 1986 but in a general law on the basis of the tortus acts of commission and omission. If the complainant is not a consumer as envisaged by the Act, the question of granting any relief to him does not arise and, therefore, no useful purpose will be served in examining the questions relating to the merits of the complainant''s grievance. We are of considered opinion that as the complainant is not a consumer, he cannot maintain the complaint The complaint shall stand dismissed on the limited ground. There will be no order as to costs. Complaint dismissed.