Kamla Rani vs MUNICIPAL COUNCIL, RAJPURA

IT is an appeal against the order dated May 11, 1999 of the District Consumer Disputes Redressal Forum, Patiala (hereinafter called the "District Forum").

BRIEFLY stated, the facts as stated by the appellant-complainant (hereinafter called the "complainant") are that the respondents-opposite parties (hereinafter called the "O.Ps.") had laid pipes just in front of the house of the complainant for flushing water of drains and sewerage. The pipe was quite lengthy, but just in front of the house of the complainant it had been damaged and there was leakage of water and refuge etc. which had gone into walls of the house of the complainant. It had damaged, cracked and made the wall of the complainant''s house wet with saline water to the extent of about 14 feet. This had also made the front portion of the house vulnerable for living due to fear of coming down at any time causing loss of life and property etc. It was due to defective design and defective material used in laying pipes and system of sewerage. The complainant had made several requests to the O.Ps. for removing the above defect to save damage to the house of the complainant as only recently she had spent Rs. 25,000/- for repairing the damaged/cracked walls of the house. On this, an official of O.P. No. 1, i.e. the Municipal Council, Rajpura, had visited the spot but of no avail. It was also stated that the complainant was a ''consumer'' and the facts disclosed in the complaint constituted a ''consumer dispute'', payment of sewerage charges was ''consideration'' and non-removal of the defect was ''deficiency'' in the services on the part of the O.Ps. under the provisions of the Consumer Protection Act, 1986 (hereinafter called the "Act"). Ultimately, a prayer was made in the complaint that a direction be given to the O.Ps. to replace the defective pipes with solid, defectless pipes so that water/sewerage water etc. may not come out or go into the walls of the house of the complainant. Compensation of Rs. 25,000/- for the damage done to the house of the complainant and costs of Rs. 1,000/- for the complaint were also sought for. On notice being given to the O.Ps., O.P. 1, i.e. Municipal Council, Rajpura, through its Executive Officer, filed a reply. In reply to para No. 2, it has been stated that para No. 2 of the complaint was correct to the extent that there were sewerage pipes in front of the house of the complainant. Rest of the para was denied as wrong and incorrect. A prayer was made that the complaint be dismissed with costs.

Separate written statement was filed by O.P. No. 2, i.e. Punjab Water Supply and Sewerage Board. In reply to para No. 2, it was stated that para 2 of the complaint was denied due to want of knowledge and the complainant be put to strict proof of it. At the same time, the factual position stated by the complainant in para 2 was denied as incorrect. A prayer was ultimately made that the complaint be dismissed with costs. It was also stated in the reply that intricate questions of facts and law were involved and thus the District Forum had no jurisdiction to decide the same.

REPLIES filed by the O.Ps. have also been supported by their respective affidavits. The complainant filed an affidavit to support the averments made in the complaint. The complainant had also placed on record affidavit of Sh. Avtar Singh, Dhiman Associates, Architectural Designer and Valuer, Kalka Road, Rapture, as Ex. C-2. Estimate of damage to the house of the complainant had also been submitted by Sh. Avtar Singh aforesaid as Ex. C-3. Plan of the house of the complainant showing the damage to the house was also placed on record as Ex. C-4 along with certain other documents in the form of receipts Exhibits C-5 and C-6 showing payment of some bills with regard to water and sewerage. The District Forum dismissed the complaint by holding that the complainant was not a consumer and, thus, no relief could be granted to her.

THE relevant portion of the order of the District Forum by which it has held that the complainant is not the ''consumer'' reads as under : "8. THE complainant holds a sewerage connection. She can be clothed with the status of a consumer only if she can be considered having hired the services of the opposite parties for proper maintenance of sewerage connection. In Municipal Corporation, Jalandhar v. Amrit Lal Malhotra, 1998 (2) CON.LT 461, the complainant had claimed damages to the household goods on account of leaking of the sewerage. It was held by the Hon''ble Punjab State Consumer Disputes Redressal Commission that the maintenance of the main sewerage is the statutory duty of the Corporation and the complainant cannot be considered as a consumer having hired the servies of the Corporation for proper maintenance of the sewerage connection. It was held that the compensation could not be awarded to the complainant in the absence of specific allegations of negligent act. THE complainant has not adduced any expert evidence to prove if the pipe is damaged in front of her house. She cannot be considered as a consumer having hired the services of the opposite parties for proper maintenance of the sewerage connection. THE ratio of the aforesaid decision is fully applicable to the present case. THE complainant being not a consumer, no relief can be granted to her."

We have heard Counsels for the parties and have gone through the record of the case minutely. In our considered view, the order of the District Forum is not based upon any sound reason. The District Forum has not even taken into consideration the relevant evidence produced by the complainant on record. As is evident from the reproduction of the relevant portion of the order of the District Forum, it has been held by the District Forum that the facts of the case in Municipal Corporation, Jalandhar v. Amrit Lal Malhotra, 1998 (2) CON.LT 461, were identical to the facts of the case in hand. It has been further held by the District Forum that the compensation could not be awarded to the complainant in the absence of specific allegations of negligent act.

THE complaint was not entertained as no specific allegation was made by the complainant in that case as to how water or sewerage refuge had come to the house and damaged the household goods. It was only in that situation that it was held by the District Forum that the complainant was not the ''consumer'' of the Jalandhar Municipal Corporation. In the case in hand, a specific allegation has been made by the complainant in para No. 2 of the complaint that the O.Ps. had laid down pipes just in front of the house of the complainant for flushing water of drains and sewerage and it had damaged her house. THE pipe was lengthy one, but just in front of the house of the complainant, it had been damaged and had been leaking out water and refuge etc., which had gone into the walls of the complainant''s house. It had damaged, cracked and made the walls of the house of the complainant wet with saline water to the extent of 14 feet and this had made the front portion of the house vulnerable for living due to fear of coming down at any time causing loss of life and property etc. This factual position has not been considered by the District Forum at all while deciding the matter in issue. It is pertinent to mention here that the complainant had filed affidavit, Ex. C-2, of Shri Avtar Singh, Dhiman Associates, Kalka Road, Rapture. He has stated in para Nos. 2, 3 and 4 of his affidavit as under : "2. That the deponent has prepared the enclosed estimate of damages and plan of house of Smt. Kamla Rani, House No. B-4/38-A in Mohalla Ahluwalia, Old Rajpura. 3. That all damages to the house building such as, cracks in walls, dampness etc. is shown in yellow colour. 4. That as per observations and after examining the spot, the damage has been done by the sewerage line towards street, gate. Due to seeping of sewerage water into the foundations of the house, this damage has been caused."

Estimate of damage, Ex. C-3, to the house of the complainant due to M.C. sewer and underground drainage system as well as plan of the complainant''s house, Ex. C-4, showing damages were also placed on record. THEse aspects of the matter have not been considered by the District Forum at all while holding that the complainant was not a ''Consumer''.

IT has been held by this Commission in Parkash Wati v. Municipal Committee, Bathinda and Punjab Water and Sewerage Board, 1993 (3) CPR 152, that the complainant therein had been paying water and sewerage charges to the O.Ps. for the last so many years and he was entitled to all the civic amenities provided under the Punjab Municipal Act and, therefore, she fell within the definition of "Consumer" under the Consumer Protection Act, 1986. In that case, the Commission had directed the O.Ps. to rectify the defects which existed in regard to drainage and sewerage system and it was held that the complainant was a "Consumer". It may also be noticed that the Hon''ble Supreme Court had ruled as far back as the year 1993 in Lucknow Development Authority v. M.K. Gupta, III (1993) CPJ 7 (SC)=1994 (1) CPR 569, that a Government or semi-Government body or local authority was as such amenable to the Consumer Protection Act as any other private body rendering similar service. The relevant portion of the order of the Supreme Court reads as under : "A Government body or semi-Government body or a local authority is as much amenable to the Act as any other private body rendering similar service. Truly speaking, it would be a service to the society if such bodies instead of claiming exclusion subject themselves to the Act and let their acts and omissions scrutinised as public accountability is necessary for healthy growth of society."

In view of the discussion made above, the order of the District Forum is not sustainable on any count. We hold that in the case in hand, it could not be held by the District Forum that the complainant was not the "Consumer" of the O.Ps.

THIS appeal is allowed with costs which are quantified as Rs. 1,000/- and the order dated May 11, 1999 of the District Forum is set aside and the case is remanded back to the District Forum for fresh decision in accordance with law after taking into consideration the factual position on the record. The District Forum shall afford proper opportunity of being heard to the parties concerned before its final decision. Record of the case be sent back to the District Forum forthwith. Appeal allowed with costs.