State of Madhya Pradesh vs SHRI RAMMITRA PIDIHA, ADVOCATE

BOTH the appeals arise out of common orders dt. 7.2.90 passed in Complaint Case No. 29 of 1990, hence they are disposed of by this common order. These are appeals against the orders directing the O.P.''s Executive Engineer and Nagar Nigam Rewa to pay the Complainant/Respondent. a total sum of Rs. 5,750/- as compensation and Rs. 150/- as costs within a period of 2 months from the date of order, besides the general directions that P.H.E.D., at the earliest, shall repair pipelines to prevent seepage, leakage, present and future, and the Municipal Corporation shall take special care to see that gutters etc. are properly cleaned and sanitary conditions maintained.

THE complainant/respondent filed a complaint against four O.P. ''s, alleging, that the water supplied by P.H.E. (Original O.P. No. 2) is polluted; that C.M.O. Rewa (Original O.P. No. 3), responsible for public health was negligent; that Commissioner Municipal Corporation (Original O.P. No. 4), responsible for maintenance of cleaniness in the city, for which taxes are realized are all responsible for the outbreak of Jaundice. That the complainant, due to their negligence, suffered from Jaundice from 28.5.90 till August, 1990. He claimed compensation as follows : Rs. 50,000/- as loss of earnings as an Advocate; Rs. 20,000/- as loss of earnings from agriculture; Rs. 1,000/-medical expenses; Rs. 10,000/- for bodily pain and mental agony; Rs. 1,000/-for incurring expenses on an attendant. Total Rs. 82,000/- Op.''s 1 and 2 jointly submitted their version of the case u/Section 13(b), whereas, the other two O.P.''s submitted separately. All the O.P.''s denied the complainant''s basis of the claim for compensation as also their liabilities and quantums.

(i) In the above submissions, the complainant raised preliminary objection about limitation. In filing this appeal, under Sub-Rule 10 of Rule 4 of M.P. Consumer Protection Rule, 1987, it is specified that "orders of the District Forum shall be signed and dated by the Members of the District Forum presiding the bench and shall be communicated to the party free of charge". We are of the view, that in view of this provision, the copy of the order is to be furnished to the parties free of charge. The communication ordinarily adopted by the Forum is sending such copies by registered post A.D. The impugned orders appear to be passed on 7.2.91 as per order-sheet of the even date. But on the perusal of the record, in the margin of that order-sheet it is nowhere mentioned that copies of the orders were received on that date. On the other hand, the marginal noting shows that the three parties were given copies, on 23.2.91, 27.2.91 and 1.4.91. This Appeal No. 29/91 have been preferred on 26.3.91, therefore, the objection that the appeal has been filed beyond 30 days without any sufficient cause for late presentation. It is more obvious then real and must fail. (ii) The learned President passed a dissenting order (minority view) holding, that the complainant is not a "consumer for consideration" so far as the C.M.O. is concerned; that A.E., P.H.E.D. has admitted that the complainant is consumer, but in absence of public analysis of any sample it is not proved that jaundice was caused due to bacterial polluted water supply; that the reports are inadmissible and not duly proceed and cannot be considered; that jaundice could be caused due to multifarious causes; accordingly the complaint be rejected.

HAVING perused the record and after hearing the parties, we are of the view that this appeal has to be allowed for two short reasons. First, due to absence of taking of sample and public Analyst''s report thereon. Section 13(1)(c) to (g) lays down elaborate procedure viz. that where the alleged defect cannot be determined without proper analysis or test, the District Forum shall obtain a sample of goods from the complainant which shall be sealed and authenticated in the manner prescribed, and it will be referred to the appropriate laboratory with necessary directions. The Forum may require the complainant to deposit fees etc. Rule 5 of the M.P. Consumer Protection Rules, 1987 provides the procedure to be adopted for analysis and testing of the goods. This evidentiary aspect is totally missing and the learned President of Distt. Forum has rightly held, that the complainant has failed to prove that jaundice could be due to supply of bacterially polluted water. On the other hand, Shri Chaturvedi, A.E. has positively stated, quoted an authority that in the water supplied by P.H.E.D. the concentration of Residual Chlorine level is 1.2 PPM though even with a concentration of 0.5 PPM virus becomes ineffective. P.H.E.D. has its own Laboratory, and sometimes samples are sent to the Laboratory at Bhopal also.

MOREOVER, recent developments in medical science show Hepatitis A (H.A.V.) and B virus (H.B .V.) are two traditional viruses infecting the liver, though more viruses are said to have been discovered recently. HAV, H.B.V. can also damage the kidney, heart and lungs. Even unhygienic conditions like not washing hands after ablutions could cause faecal contamination of food or water. Sanitary disposal of sewage and protected water supply are the means of fighting the spread of Hepatitis A, whereas H.B. virus which is more dangerous could be excreted in most body fluids of patients and carriers and thus could be transmitted through many other sources. In all this backdrop, it was all the more essential to Prove the negligence i.e. the nexus between the ailment suffered and water supplied by the P.H.E.D. Secondly, we have gone through the reports on preliminary investigations of Jaundice Epidemic in Rewa by National Environmental Engineering Research Institute, Nagpur, and such another Report from New Delhi (Period 19 to 22 April, 1990). These "investigative reports" have merely been produced which contain "recommendations", but not a single person has been examined to identify the water supply to the complainant vis- a-vis the alleged pollution of water. Even the Nagpur Report on "Residual Chlorine Concentration in the Tap Water of Rewa Water Supply System", at page 17-Table 4, shows, that particularly at Dhobiya Tank reservoir the Residual Chlorine concentration was 1.0 Mg/1 to 1.8 Mg/1, which may be read with what D.W. Chaturvedi, A.E. has stated. These reports have been relied by the learned Members ignoring the fact that they primarily relate to the general observations regarding seepage/leakage of water pipes and also the water contamination particularly in borewells etc. In absence of cogent and specific evidence about condition of water pipeline and the top supplying water to the complainant, it cannot be held that he has suffered from jaundice due to this water supply only. In Mr. R. Ramchandra, Master v. Manager Bata India Co. and others decided on 28.11.1990 by Karnataka State Commission Vol. I March (1991) C.P.J. at page 231, the complainant had purchased P.V.C. chappal and alleged that after wearing them for about three months, he allegedly developed white patches on both feet called ''vitiligo''. These, as per expert evidence, could be contacted even by individual susceptibility and may also be hereditary. It was not possible for both experts to give exact cause of ''vitilio''. It was held, "that it was for the complainant to exclude all other possibilities" "and prove unmistakably" that it was by using P.V.C. chappal that he contracted white patches. In the appeal before us, therefore, analysis of sample of water supplied and consumed by complainant and Report thereon was very necessary. It is also in evidence that the complainant is a social worker but obviously, he had not stated that even on occasions of visits outside, he did not drink from other sources except the water supplied by P.H.E.D. For the aforesaid discussion, these appeals succeed and are allowed. The impugned orders passed by the learned members are set aside. However, we direct that the parties shall bear their own costs, throughout, as incurred. In similar cases relating to epidemic of jaundice in Rewa (Appeal Nos. 5 and 6 of 1990/12.3.91). We have already made some observations about this epidemic and copies have been sent to Chief Secretary to alert the concerned Deptts. and therefore, no such action expressing our anxious concern is called for. The parties be communicated of the result of the appeal by sending copies of orders by Regd. Post A.D. free of costs. Appeal allowed. _____________