PUNJAB HEALTH DEPARTMENT vs PROF.GIRDHARI LAL GUPTA

THESE are three Appeals (Nos. 1057, 1089 and 1167 of 1998) against a common order dated 23.9.1998 of District Consumer Disputes Redressal Forum, Bathinda (hereinafter called the District Forum). Appeal No. 1057 of 1998 has been filed by the complainant (hereinafter called the complainant) asking for modification of the impugned order for enhancement of compensation and damages etc. Appeal No. 1089 of 1998 has been filed by Punjab Urban Planning and Development Authority, Bathinda, opposite party No. 2 before the District Forum (hereinafter called the opposite party No. 2) for setting aside the impugned order and Appeal No. 1167 of 1998 has been filed by Punjab Health Department, opposite party No. 1 before the District Forum (hereinafter called the opposite party No. 1) for setting aside the impugned order. THESE three appeals are being disposed of by our common order.

BRIEF and relevant facts stated in the complaint are that MIG Flat No. 21 (hereinafter called the Flat) was constructed by Punjab Housing Development Board, which has been merged in Punjab Urban Planning and Development Authority, Bathinda. This flat had been allotted to the complainant by Punjab Housing Development Board and he was in its possession. Sometime back he had made some additions and alterations in the flat with the sanction of the opposite party No. 2 at a cost of Rs. 2.50 lacs. On 2.12.1995, a water supply pipe noticed for the first time being laid under the flat having 6" dia had burst in the mid-night in this flat and the flat was inundated with water. The belongings of the complainant started floating in the water and he had suffered a loss of Rs. 25,000/- of his household goods. It is then mentioned in the complaint that due to bursting of pipe and accumulation of water in the flat, cracks had developed in the floor and the foundation of the flat had been weakened and as a result thereof he had suffered a loss of Rs.1.25 lacs to the flat.

The residents of the locality including the complainant had written a letter dated 5.12.1995 to the Deputy Commissioner, Bathinda bringing to his notice that water pipe line of 6" dia was passing through the houses of Punjab Housing Board Colony. It was mentioned in the letter that on 2.12.1995 the water pipe had burst in Flat No. 21 and as a result thereof lot of damage was done to the flat. It was further stated in the letter that the water pipe line was passing through 50 houses of the colony and the same be diverted through a different route. The Deputy Commissioner had asked the opposite party No. 1 to take action into the matter. S.D.O. of opposite party No. 1 wrote a letter to opposite party No. 1 informing the later that water pipe line of 6" dia was passing through the Punjab Housing Board Colony and it had burst in Flat No. 21 and it was with great difficulty that the water was controlled and the pipe line was repaired. Request was made by the S.D.O. in his letter that the pipeline be diverted through some different route. Opposite party No. 1 had prepared an estimate of Rs. 1,18,200/- also for laying a separate pipe line and had submitted the same to the District Planning Board, Bathinda, but no action was taken so far.

A mention has also been made in the complaint about a news-item appeared in the Daily Tribune dated 22.12.1995 regarding the bursting of the pipe on 5.12.1995 in Flat No. 21 and in this newspaper the goods had been shown floating in the water. On 4.6.1996, the President, Housing Board Colony Welfare Society, Bathinda had written a letter to the Municipal Council, Bathinda for the change of route of water supply line and on that application the President, Municipal Council, Bathinda had written a letter dated 12.6.1996 to the opposite party No. 1 for laying a separate pipe line in place of the pipe line passing through the flats of the colony, but no action was taken by the opposite party on that letter. Hence the complaint was filed before the District Forum seeking directions to the opposite parties to shift the underground 6" dia water pipe line from the present site to some other place and to plug the loopholes and further to pay a compensation of Rs. 1.50 lacs as loss to the flat and household goods and further to pay Rs. 1 lac compensation for mental tension and agony.

ON notice being issued to the opposite parties, separate replies were filed by opposite party Nos. 1 and 2. Both the opposite parties had taken common legal objections. The main objection being that the complainant was not a consumer as defined under the Consumer Protection Act, 1986 as amended upto date (hereinafter called the Act); that the complaint was vague, false, vexatious, against law and facts and had been filed just to harass the answering respondents. The next legal objection taken by the opposite parties was that the matter in dispute was of civil nature involving the complicated issues and question of law and facts required adjudication by the Civil Court. It also required voluminous evidence to be produced by both the parties and thus the complaint could not be entertained. On merits, it has been stated by opposite party No. 1 in its reply that no pipeline had burst as alleged in the complaint and the whole story was concocted by the complainant. It was further stated in the reply that the water pipe lines were laid down passed by the opposite party No. 1 in sixties as per approved design and at that time no construction was existing there. The water supply pipeline was laid down as per PWD specifications with approximately 3'' coverage of earth filing. It was then stated in the reply that later on the land was acquired by the Punjab Housing Development Board and construction was raised without any notice to the answering department. It was further stated in the reply that the complainant had raised the construction without any notice to the opposite party. It was then stated that the sewerage line was laid down as per approved design by the department and there was no problem of over-flowing and choking. No complaint was ever lodged with the Competent Authority with this regard. It was then stated that as there was no deficiency on the part of the opposite party No. 1, the complaint be dismissed as frivolous with costs. Reply of opposite party No. 2 is rather on the similar lines as has been filed by opposite party No. 1. In para No. 3 of the reply, the opposite party No. 2 has stated that complainant might have broken the floor for changing the floor. Opposite party No. 2 had also prayed that the complaint be dismissed with costs.

AFTER hearing the Counsel for the parties and having gone through the record, the District Forum accepted the complaint with costs, which were assessed at Rs. 1,000/-. The opposite party No. 1 was directed to lay a separate pipeline to supply water to ITI and to disconnect the old water supply pipeline passing through the Punjab Housing Board Colony Flats including Flat No. 21. The opposite parties were ordered to pay to the complainant an amount of Rs. 79,000/- as compensation for damages to the flat. The liability was made joint and several. We have gone through the record of the case with the help of Counsel available.

THE District Forum has held that the complainant was a consumer of the opposite parties and that the underground water supply pipeline of 6" dia had burst on 2.12.1995 in the flat of the complainant and has caused damages to the Flat. If we take it as correct that the complainant was a consumer of the opposite parties and the water supply pipeline had burst on 2.12.1995, can it be taken as proved that the pipeline had burst due to the negligence of the opposite parties and consequently damage was caused to the Flat ? If it is not proved that the water supply pipeline had burst due to negligence of the opposite parties then no damages could be awarded to the complainant. As in that case, it could not be held that the opposite parties in any way were deficient in providing service to the complainant. According to our considered view, there is no evidence on the record to indicate anything worth mentioning that the water supply pipeline had burst due to the negligence of the opposite parties.

Admittedly, new construction was made in the courtyard of the flat of the complainant. It is clearly stated in the report of the Junior Engineer of opposite party No. 2 (Ex. R-5) that as per approved plan there was no provision of construction in the courtyard, still illegal construction had been done by the allottee. It is not disputed before us that the construction was made by the complainant in the courtyard also. It is also not disputed before us that the water supply pipeline crossed through the courtyard and not where the main construction on the flat is made originally. It is further not disputed before us that the water supply pipeline was laid down as per PWD specifications with approximately 3'' coverage of earth filling. It has also come out in the report of the Junior Engineer (Ex. R-5) that the plinth level was more than 1''-6" higher than the road level and courtyard water could go easily to the road side. We find force in the contention of the opposite parties that while making illegal construction in the courtyard, the complainant might have tampered with the pipeline and the damage to the pipeline might have been made due to the illegal action of the complainant himself. Even the conduct of the complainant also shows that the pipeline must have burst due to negligent act of the complainant by tampering with the pipeline while making additional construction in the courtyard of the flat due to the following reasons : (i) The pipeline is alleged to have been burst on 2.12.1995. In the complaint filed before the Deputy Commission and other authorities by the complainant he had never claimed any compensation for alleged damages to the Flat as obviously he may be feeling that the pipeline had burst due to his own misdoing. (ii) The incident occurred on 2.12.1995 but the complaint had been filed on 3.3.1997 before the District Forum. (iii) Even the report Ex. C-9 prepared by V.K. Goyal, Architect of the complainant is dated 3.4.1997 i.e. after about one year and four months of the bursting of the pipeline. (iv) In the report of the Junior Engineer Ex. R-5, it has been clearly stated that the cracks which had developed in the building were weather cracks.

WHATEVER evidence is available on the record, does not prove that the water supply pipeline had burst due to the negligence of the opposite parties. Consequently no compensation or damages etc. could be awarded to the complainant. Moreover elaborate evidence oral as well as documentary is required to prove the correctness or otherwise of the allegations made in the complaint. The civil suit in a Civil Court and not the Fora would have been the right choice of the complainant to redress his grievance, if any. The order of the District Forum thus deserves to be set aside. In view of our discussion made above, we set aside the order dated 23.9.1998 of the District Forum and accept both the Appeals (Nos. 1089 and 1167 of 1998) filed by the opposite parties with costs, which are quantified as Rs. 2,000/- each. Consequently, the Appeal No. 1057 of 1998 filed by the complainant stand dismissed. However, the appellant/complainant is at liberty to knock the door of the Civil Court, in accordance with law, if so advised. Observations made in our order will not affect or influence the order of the Civil Court. Ordered accordingly.