State of Madhya Pradesh vs SH. TRIBHUVAN PRASHAD CHATURVEDI

BOTH these appeals arise out of the common orders passed by District Forum, Rewa, and the parties being the same and as appeals involve common questions of law and facts they have been heard together. By majority of two the Members of District Forum have awarded Rs. 5,000/- and Rs. 1,000/- respectively, to Tribhuvan Prasad and Rinku minor son, Rs. 6,200/- to Nagendra Singh, and Rs. 2,500/- to Ishwardeen Sharma, as compensation for bodily pain, mental suffering medical and sundry expenses suffered on account of infective hepatitis which broke out at Rewa in epidemic form in 1990. The C.M.O. Rewa, Superintendent Gandhi Memorial Hospital, Food Director were arrayed as opposite parties but only the present appellants have been hold liable, jointly and severally, to pay total compensation of Rs. 14,700/- within two months of the orders. Thus other O.P''s were held, not liable. The President of the Forum, in his dissenting orders of even date, had dismissed the entire claim with direction that parties shall bear their costs as incurred.

ON 3.5.1990, Tribhuvan Prasad Tiwari in his capacity as President of Jila Upbhokta Sanrakshan Parishad (for short Parishad) filled a complaint averring that parishad is a registered consumer Association; that due to polluted water supply, insanitary and unhygienic conditions and sale of adulterated foodstuffs the city of Rewa is in the grip of Jaundice and Menenjitis fever which has claimed many lives, and many others inflicted are taking treatment as indoor and outdoor patients; that the medical facilities are inadequate, and even the medicines are adulterated for which all the six defendants/O.P''s are liable; that, through the paper media and also orally. The attention of those authorities drawn but they failed to solve them and the water pipe lines continue to supply water polluted due to drainage pipes causing thereby the dreadful diseases; that, the Association or beneficiaries have not received any compensation; that even on the consumers day i.e. 15.3.90 these, problems were mooted in the meeting held by the Collector, but preventive action has not been taken by the authorities; hence the defendants/O.P''s are jointly and severally liable to pay compensation of Rupees ONe Lakh, with further directions that they will take all preventive steps for future. The O.P./Food Controller stated, that on the Consumer''s Day i.e. on 15.3.90 the members attending the meeting the question of water supply was raised, and on 20.3.90 their office had sent a letter to PHED, but no reply was received. It was also averred, that supply of water is the function of PHED. 3.1 Original O.P. No. 5-Administrator M.C. denied neglect of its functions in the matter of cleanliness and sanitation, and averred, that their staff, with gangs, is prompt in maintaining hygienic conditions by removing the garbage and cleaning the Nalis everyday, by disinfectants etc. That, the complainant does not come under the preview of ''complainant'', as defined u/section 2(b) of the Act and is liable to be dismissed u/section 26 of the Act.

3.2 O.P. No.2 (PHED) averred that the sources of water supply are rivers Behar and Bichiya; that the water pump is filled in Filter plants, where as per PHE Manual it is purified by treating it with Alum dozing, blacutation, sedimentation and after filteration by chlorine it is rendered bactrialess. Thereafter it is supplied to four main storage tanks and then supplied to consumers; that, at every stage, its quality is tested for which there is a laboratory also; that, everyday there are physical, chemical and bacteriological tests for which samples are collected every day; that on basis of news in the media or from other sources, the effected areas were surveyed and accordingly 55 connections having leakages were disconnected, and 90 pipe lines which were under the drainage lines were raised; that, 42 water pumps in the city were treated with bleaching powder; that, action of closure against manufacturers of KULFIS was also reported; that, in places of apprehend pollution, the work of laying pipe lines away from places of suspected leakages in drains is in progress; that a term of experts from Research Laboratory'' (NIRI) Nagpur also examined the water supply system and ''Residual Chlorine'' was found in sufficient quantities and thus water supply system has not been found "deficient". Accordingly the PHE is maintaining proper "quality control" in the supply of water.

3.3 O.P.No.3/C.M.O. denied the liability and averred, that the hospital has given proper treatment to patients, but patients themselves are also responsible because they go to hospitals at late stages when condition becomes critical and they initially resort to treatment by quacks, Jadutona, Zhadfook etc; that in the year 1990 there was outbreak of hepatitis in epidemic form and the total number of cases from Jan. 90 to May 1990 was 500 and 49 cases proved batal; that teams of experts from Medical College, Bhopal, N.I.C.D. Delhi and Pune visited Rewa, respectively on 15.4.90, 20.4.90 and 30.4.90 which surveyed the urban and rural areas and submitted Reports; that through distribution of pamphlets, slides and other media the public was alerted about the precautionary measures and other steps were also taken; that no cause of action accrued because the Association has not availed the services of O.P.3 and 4 (G.M. Hospital); that neither the members of the Association nor the patients effected have shown any awareness for treatment and the complaint, as it is not entitled to any compensation.

The Forum held, that it has pecuniary jurisdiction to hear the complaint; that infective hepatitis in the year 1990 had broken out in epidemic form; that, only two O.P''s i.e. Municipal Corporation and PHED are liable; that O.P''s are liable to pay compensation as stated earlier.

WE have heard the learned Counsel and also heard the complainant in person who happens to be an Advocate besides the Department officers from PHE. Pecuniary Jurisdiction : To recall, the complainant-Association has claimed compensation of Rs. One Lakh. True, Section 11 of the Act reads as follows: Jurisdiction of the District Forum (1) subject to the other provisions of this Act, District Forum shall have jurisdiction to entertain where the value of the goods or services and the compensation, if any, claimed is less than rupees one lakh (Emphasis added). Object of the Act is to provide a three-tier redressal system viz. District Forum, State Commission and National Commission as envisaged in Sections 11, 17(a)(i) and 21(a)(i). The other two provisions of this Act are: S.17: Jurisdiction of the State Commission - Subject to the other provisions of this Act, the State Commission shall have jurisdiction (a) to entertain (i) complaints where the value of the goods or services and compensation if any claimed exceeds rupees One Lakh but does not exceed rupees Ten Lakhs. S.21: Jurisdiction of the National Commission - Subject to the other provisions of this Act the National Commission shall have jurisdiction (a) to entertain - (i) complaints where the value of goods or services and compensation if any claimed exceeds rupees Ten Lakhs.

A bare reading of these Sections 11, 17 and 21 shows that the expression "subject to the other provisions of this Act" is common. But the words"...... less than rupees One Lakh" are not happily worded. According to rule of grammatical or literal construction, if the claim is for Rs. One Lakh, being not "less than One Lakh" (per Section 11), the consumer has no remedy in District Forum. And since it does not exceed One Lakh, he has no remedy to seek redressal before State Commission. This interpretation would lead to anomalies, hardships, and absurdities which are to be avoided by rule of harmonious construction. All these Sections must be read as parts of an integral whole and as being interdependent. An attempt should be made to reconcile them if it is reasonably possible to do so, so as to avoid repugnancy. In the words of Lord Denning, "when a defect appears in a statute, a judge cannot simply fold his hands and blame the draftsman, that he must supplement the written words so as to give force and life to the intention of the legislature....." "a judge must not alter the material of which the Act is woven, but he can and should iron out the crease." On examining distinct provisions aforesaid and the pecuniary jurisdictional scheme under the Act, the ''legislatives'' intent is met by reading "does not exceed rupees one lakh", in place of "less than rupees one lakh" we, accordingly, affirm the finding that the claim of Rupees One Lakh was within the pecuniary Jurisdiction of the District Forums. Secondly, it was contended that the complaint has not been filed after a Notice contemplated under Section 80 C.P.C. Suffice to stale that the provisions of this (special) Act provide an additional remedy summary and speedy in nature and we cannot graft Section 80 C.P.C. in this Act when legislature has not intended to do so. Thirdly, in our view the finding of the Forum that Rewa was in the grip of infective hepatitis in 1990 which broke-out an epidemic form is well borne out by evidence. Rambilas Sohagaur, Prof. in Ayurvedic College since 27th July, 1988 states, that since Sept. 89 till 24.6.90 (when he was examined, ) 422 cases of Jaundice were treated, Dr. Y. Yadav had produced Admission Register of patients suffering from Jaundice from 1.1.90. Then Dr. R.K. Diwakar has also given statistics and has clearly admitted that hepatitis was in epidemic form. There are three Reports by teams of experts, which also indicate magnitude of the disease.

FOURTHLY, the complainant had argued that these appeals are time-barred. According to Rule 4(8) of the M.P. Consumer Protection Rule 1987, orders of the Distt. Forum shall be communicated to the parties free of charge. PHE obtained copy on 8.10.90 and filed this appeal on 25.10.90, whereas, Municipal Corporation got copy on 5.10.90 and preferred appeal on 3.11.90. The impression that those are time-barred, is misconceived.

FIFTHLY, it was contended that no evidence was led to show that those persons were "consumers", as defined in Section 2(d) who had taken pipe connection on payment for such service. Thus it is not stated that those persons ''hired'' services of PHE for "consideration", and such services were found to be ''defective'' or ''deficient'' to render PHED liable. The ''Complaint'' as submitted before the Forum was defective in various respects. However, this particular lacuna was noticed by the learned President. To meet this at the time of hearing. The complainant filed on application which purports to be under Order 41 Rule 27 C.P.C. alongwith Printed Bills received by Tribhuvan Prasad Chaturvedi, and Mordhvaj Singh. Whether those are "charges", "Levy", "water", "rates", "Fees" or Taxes" is a question to be decided in light of law rendered by Hon''ble National Commission in First Appeal No.2 of 1989 Consumer Unity & Trust Society Jaipur v. The State of Rajasthan & others decided in December 1989. It is unnecessary to express any opinion on this point which is raised for the first time, and more importantly because as observed by the learned President in his dissending Judgment, the complaint itself avers various other factors which caused the epidemic, and in particular the contaminated water supply. The alleged defect of bacterial water supply could not have been determined without proper analysis of sample as contemplated under Section 2(1)(a) R/W Section 13(1)(c),(d),(e),(f), and (g) of the Act. In absence of such Report, the finding that the PHED supplied contaminated water which caused the desease cannot be upheld. We find that while considering (issue No.3) the learned Members have considered the three Reports by experts as the basis for causing Jaundice to those persons. The G.M.C. doctors from Bhopal on 15.4.1990 had discussions with various authorities and assessed the incidence of cases and made an effort to find out "Common risk factors", and made general observations that "cases are more in localities where sanitary conditions were poor, where pipe lines had leakages". But there is other side of the coin, observing, that PHED informed that "leakages have been repaired and also expressed difficulties where pipelines were submerged in drains." Then the report deals with "Action plan Short Terms & Long Terms". 12.1 The Second Report is from NICD-New Delhi. There was extensive survey of different wards on and about 22.4.90. It inter alia revealed the leakage in water pipe line in 427 places and crossing of water pipes over drains at 903 places. There was use of water from wells, tube wells, private sources other than pipe water supply. Majority of pipe lines in city of Rewa were laid down in 1958 and general condition was noted to be unsatisfactory. In para 14 the team was not shown any written records regarding "bacteriological testing". They were verbally told that frequently examinations have shown drinking water to be free from bacterial contamination. Then this report also concludes with recommendations and preventive measures. That exonerates the PHE and M.C.

12.2 The Third Report is by National Institute of Virology Pune (30.4.90 to 5.5 90). It records statistics obtained from Hospital records because no "epidemiological CELL" functions in the area. It refers to leakages of pipe lines at some places, gutters not regularly cleaned etc. In para 2.6 there is a note about their visit to PHED water works and the team noted that water from the confluence of two rivers is pumped to the filtration plant. After ALUM treatment, rapid sand filtration and chlorination it is pumped to overhead tanks. "The overall functioning of the water works appeared satisfactory."

Though we strongly deprecate the leakages, filth near the pipelines, or gutters running parallel to them etc. but there is no evidence a that a particular leakage and particular pipe line and tap water consumed by those persons was found bacterial. Absence of any sample analysis is significant. In this poor country, with masses even ignorant of personal hygiene and sanitation, this kind of proof was very important. Otherwise, merely on basis of reports that there is this or that epidemic in a town, it would open the floodgates of complaints everyone claiming compensation. This is not to undermine the duties of a Welfare State and Directive Principles enshrined in Constitution to ensure basic health facilities. We should be aware to the realities of life, should we shut our eyes when we find even urinals used by some persons as W.C.'' s? Or some persons using gutters as convenient places for their children as Commodes? Even holy rivers are polluted. Hence the suggestion of the Forum that the whole area of water storage should be protected by fencing to protect it from abulations is an unrealistic view. People need to be properly educated in matters of personal and social health, hygiene and sanitation, incidentally we would also draw the attention of the authorities to the wholesome provisions contained in the water (Prevention and Control of Pollution) Act, 1974. It is sad indeed that 449 persons were afflicted with Jaundice and atleast 77 died. But it is not proved that those four persons suffered because of negligence of the two defendants in supplying bacterial water.

LASTLY, on merit. On his own saying, Tribhuvan Prasad was not a victim in 1990. He was down with Jaundice in the year 1985 and his son Rinku in 1983. Rinku (per Ex.P/ 3) was admitted on 30.11.83 and discharged on 1.12.83 and was treated by Dr. H.P. Singh (Not examined). According to Tribhuvan Prasad, his liver is adversely effected and he developed some stomach troubles also for which Dr. Rambilas Sohgara is treating him. But strongly enough, not a question about treatment and after effects had been put to the witness Ex.P/5A seems to be some (dated 21.3.87) prescription by Dr. V.P.Vasavade but he too has not been examined. Ex.P/5B is dt. 23.3.87 (outdoor ticket) which refers to E.C.G. It is not possible to make out anything from Ex. P/C which also relates to Tribhuvan Prasad. Ex.P/ 6 dt. 13.7.86 is prescription of Dr. Sohgare about Ayurvedic Medicines. How all those could be connected with Jaundice illness in the years 1985 and 1983 suffered by Tribhuvan Prasad and his Son Rinku. Those claims are apparently state and barred by limitation. 14.1 Ishwardin (Secretary) states that he too was treated by Dr. Sohgare but doctor in silent on this and does not say about prescription, illness, dispensing medicines stated in Ex.P/4 dt. 13.4.90.

14.2 Nagendra Singh''s Discharge Certificate Ex.P/10 shows that he was admitted for Infective Hepatitis On 20.1.90 and discharged on 25.1.90. It is a public document. Though doctors have asked questions that polluted water is also one of the causes of this disease as stated earlier, it cannot be held that he suffered only by consuming bacterial water supply.

Unfortunately the paragraphs in depositions are not numbered for convenient references. But at page 4 Tribhuvan Prasad, claims Rs. 50,000/- for bodily pain, monetary losses and mental suffering. Ishwardeen. a Lecturer claims to have lost promotional chances because due to illness he could not "represent his case for promotion". He "lost seniority" because of illness. In their statements (for the first line) the inflated figures ofclaims appear. The so called "general damages" are presumed, but "special damages" have to be specifically alleged and proved. There is not a whisper in the complaint that those four-five persons are the claimants seeking so much compensation. Similarly, under the head "mental injury "nominal damages only could be awarded. In I (1991) CPJ page 31 (NC). Union of India v. Dr. (Mrs.) Satya Bhama Thakur decided on 15.12.89 for disconnection of Telephone Services, the National Commission fixed Rs. 200/- instead of Rs. 2,000/- awarded by State Commission. Since in the instant case liability has not been proved it is unnecessary to further discuss the evidence about damages. Even District Forum had observed that on some items evidence is not satisfactory.

WE are further constrained to observe that one of the learned Members passed derogatory arid disparaging remarks about Dr. R.K. Diwakar and the then Health Inspector which do not display judicial restraint and were uncalled for according to the well-settled principles laid down, in a catena of decisions by Privy Council and Apex Court, Last lines of the impugned order indicate that some personal knowledge has been imported about adulteration cases. In the result, both these appeals are allowed. The compensation of Rs. 5,000 + 1,000=Rs. 6,000; Rs. 6,200/-; Rs. 2,500/- (Total Rs. 14,700/-) awarded to Tribhuvan Prasad Chaturvedi, President of Parishad and his son Rinku, Nagendra Singh, and Ishwardeen Sharma (Secretary of Parishad) is set aside with a direction that the parties shall bear their own costs as incurred of both the Forums. Before parting we would reiterate that the people of Rewa have been victims of viral infective hepatitis in the year 1976, 1982 and 1990. Hundreds of lives were lost. Three teams of Doctors visited Rewa in 1990 and submitted their Reports alongwith Short Term and Long Term Action plans which we hope would deserve due attention so that history is not repeated. A copy of this orders be sent to the Chief Secretary of the State of M.P. So that all the departments involved could be alerted for timely action because summer season is approaching and prompt action is a must. Appeals allowed.