w w w . L a w y e r S e r v i c e s . i n



Yashobanta Narayan Dixit v/s Executive Engineer, Bhadrak Division At- Power House, Bhadrak & Another


Company & Directors' Information:- INDIA POWER CORPORATION LIMITED [Active] CIN = L40105WB1919PLC003263

Company & Directors' Information:- B L A POWER PRIVATE LIMITED [Active] CIN = U40102MH2006PTC165430

Company & Directors' Information:- L V S POWER PRIVATE LIMITED [Active] CIN = U40100TG1996PTC023552

Company & Directors' Information:- S L S POWER CORPORATION LIMITED [Active] CIN = U40109AP2005PLC047008

Company & Directors' Information:- S L V POWER PRIVATE LIMITED [Active] CIN = U40102KA2002PTC030448

Company & Directors' Information:- POWER HOUSE INDIA PRIVATE LIMITED [Strike Off] CIN = U40109TZ2011PTC017192

Company & Directors' Information:- B V POWER PRIVATE LIMITED [Active] CIN = U40106DL2011PTC213428

Company & Directors' Information:- R AND H POWER COMPANY PRIVATE LIMITED [Active] CIN = U51109UP1965PTC003067

Company & Directors' Information:- B R POWER LTD [Active] CIN = U40106WB1995PLC073567

Company & Directors' Information:- N M S POWER PRIVATE LIMITED [Active] CIN = U51109WB1999PTC089747

Company & Directors' Information:- P R B POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG1995PTC020647

Company & Directors' Information:- S V G POWER PRIVATE LIMITED [Active] CIN = U40300AP2012PTC084435

Company & Directors' Information:- INDIA POWER PRIVATE LIMITED [Active] CIN = U31900DL1995PTC070096

Company & Directors' Information:- M POWER INDIA PRIVATE LIMITED [Active] CIN = U31908MH2012PTC234343

Company & Directors' Information:- A N S INDIA POWER PRIVATE LIMITED [Active] CIN = U51101DL2014PTC266873

Company & Directors' Information:- M M K POWER PRIVATE LIMITED [Strike Off] CIN = U40106AP1998PTC030796

Company & Directors' Information:- N D T HOUSE (INDIA) PRIVATE LIMITED [Strike Off] CIN = U33110MH2000PTC126194

Company & Directors' Information:- C R E M POWER PRIVATE LIMITED [Strike Off] CIN = U40101DL2001PTC111631

Company & Directors' Information:- D T POWER PRIVATE LIMITED [Strike Off] CIN = U40300AP2015PTC097226

Company & Directors' Information:- ON THE HOUSE PRIVATE LIMITED [Active] CIN = U70101WB2000PTC091842

Company & Directors' Information:- O L G POWER P LTD [Active] CIN = U30007TN1991PTC020898

Company & Directors' Information:- G S POWER LIMITED [Strike Off] CIN = U40102KA2010PLC054033

Company & Directors' Information:- C D HOUSE INDIA PRIVATE LIMITED [Strike Off] CIN = U74899DL1995PTC068483

Company & Directors' Information:- P D M POWER PRIVATE LIMITED [Active] CIN = U40104AS2014PTC011780

Company & Directors' Information:- H. H. HOUSE PRIVATE LIMITED [Converted to LLP] CIN = U45201DL1981PTC012646

Company & Directors' Information:- S POWER PRIVATE LIMITED [Active] CIN = U19202DL1986PTC026505

Company & Directors' Information:- G M POWER PRIVATE LIMITED [Strike Off] CIN = U40105PN2003PTC017857

Company & Directors' Information:- M C B HOUSE PRIVATE LIMITED [Active] CIN = U52335DL1999PTC099967

Company & Directors' Information:- S AND S POWER PRIVATE LIMITED [Active] CIN = U40109PY2004PTC001824

Company & Directors' Information:- POWER-X PRIVATE LIMITED [Strike Off] CIN = U99999DL1970PTC005331

Company & Directors' Information:- NARAYAN [Strike Off] CIN = U00111KA2006PTC390000

Company & Directors' Information:- A K HOUSE PRIVATE LIMITED [Strike Off] CIN = U70109WB1953PTC021083

Company & Directors' Information:- R G D POWER PRIVATE LIMITED [Strike Off] CIN = U41000TG1996PTC023809

Company & Directors' Information:- M M R POWER PRIVATE LIMITED [Active] CIN = U31104DL2008PTC174079

Company & Directors' Information:- S J POWER PRIVATE LIMITED [Strike Off] CIN = U45207HR2012PTC045937

Company & Directors' Information:- S & O POWER PRIVATE LIMITED [Active] CIN = U40107MH2010PTC206447

Company & Directors' Information:- V D M-POWER PRIVATE LIMITED [Active] CIN = U74999MH2015PTC262999

Company & Directors' Information:- W N POWER PRIVATE LIMITED [Strike Off] CIN = U40101JK2013PTC004009

Company & Directors' Information:- ENGINEER & ENGINEER PRIVATE LIMITED [Active] CIN = U74999DL2016PTC293097

Company & Directors' Information:- C S ENGINEER PRIVATE LIMITED [Strike Off] CIN = U45201DL2003PTC122355

Company & Directors' Information:- C K S POWER PRIVATE LIMITED [Strike Off] CIN = U40101KA2010PTC052199

Company & Directors' Information:- G C I POWER PRIVATE LIMITED [Active] CIN = U40107KA2010PTC053656

Company & Directors' Information:- R. C. POWER PRIVATE LIMITED [Strike Off] CIN = U40100GJ2009PTC058005

Company & Directors' Information:- J R J POWER PRIVATE LIMITED [Active] CIN = U40300GJ2015PTC082396

Company & Directors' Information:- M. D. HOUSE PRIVATE LIMITED [Active] CIN = U17299CH2019PTC042719

Company & Directors' Information:- D V N POWER PRIVATE LIMITED [Strike Off] CIN = U40101TG2007PTC053069

    First Appeal Nos. A/483, 625 of 2014

    Decided On, 02 February 2021

    At, Orissa State Consumer Disputes Redressal Commission Cuttack

    By, THE HONOURABLE DR. JUSTICE D.P. CHOUDHURY
    By, PRESIDENT

    For the Appellant: Karunakar Jena, Advocate. For the Respondents: S.C. Dash, Advocate.



Judgment Text

1. Learned counsel for the appellants NESCO and learned counsel for the respondent are present.Heard both of them.2. Both the appeals arise out of common impugned order passed by the learned District Forum, Bhadrak in CD Case No. 76 of 2012. Therefore, both the appeals were tagged and heard together. This common order shall govern the result of both the appeals.3. This is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the 'Act'). Parties to this appeal shall be referred to with reference to their respective status before the District Forum. FA No. 625 of 2014 has been filed by the OPs whereas FA No. 483 of 2014 has been filed by the complainant.4. The factual matrix leading to the case of the complainant is that the complainant in order to maintain his livelihood has set up an oil industry by taking loan from the Bank. He has also become consumer under the OPs by executing agreement in 1989. The complainant alleged inter alia that the OPs have set up a meter and other equipments on the nearest electric pole situated at the distance of 20 to 30 meters outside the premises of the complainant. It is further alleged by the complainant that on 14.5.2012, there was heavy pressure of wind and lightening for which the metering system was completely damaged. The complainant informed the OPs who inspected the metering system and found the metering unit was totally burnt for which the electric line of the complainant was disconnected.5. It is alleged by the complainant that in spite of request, power supply was not restored. On 21.5.2012, complainant received a letter from the OPs to the effect that the complainant should deposit Rs.47,592/- towards the cost of burnt metering unit. The complainant challenged such demand to pay the cost of the metering unit. In that process, correspondences between the parties went on. Since the matter was not solved, the complainant suffered from metal agony. So, he filed the complaint alleging deficiency of service and unfair trade practice on the part of the OPs.6. Per contra, the OPs filed written version questioning the maintainability of the complaint on the ground that the complainant is not a consumer as he has taken electric line for commercial purpose. Further, the OPs have averred in the written version that the cost of the metering unit as per Regulations 45 and 47 of OERC Distribution (Conditions of Supply) Code, 2004 read with Regulations 54, 55 and 56 of the OERC Code, the complainant is required to deposit the said amount before the OPs.7. It is further averred in written version that since the complainant has installed the metering unit at his own cost and being for his exclusive use as per the permission letter dated 5.5.1989, he is liable to deposit the cost for installation of new metering unit. So, they averred that they have no deficiency of service or unfair trade practice on their part and as such, the complaint is liable to be dismissed.8. Learned District Forum after hearing both parties passed the following impugned order:-€œxxx xxx xxxIn the result, the complaint is allowed in part on contest against the OPs. The OPs are directed to restore power supply to the unit of the complainant if not restored at present and to bear the cost of the metering unit amounting to Rs.47,592/- as per their Estimate No.57 of 2012-13. The complainant is not liable to pay the cost of metering unit. Further, the OPs are directed to pay litigation cost of Rs.2,000/- (Rupees Two Thousand) only to the complainant within a period of 30 days of receipt of this order.€9. Mr. S.C.Dash, learned counsel for the appellants in FA No. 625 of 2014 submitted that the learned District Forum has committed error in law by allowing the complaint because the learned District Forum has not properly understood Section €“ 55 of the Electricity Act, 2003 and Regulations thereto. According to him, Regulation - 45(1) of the Code, 2004 provided that the complainant has to install the metering unit at his cost and he is liable to pay the cost for restoring power supply after metering unit installed.10. Learned counsel for the appellants further submitted that the metering unit is different from the meter and as such Regulation €“ 47 is not applicable. He drew attention to Regulation €“56 (5) which clearly mentioned that applicant requiring high voltage or extra high voltage supply must provide and maintain at his expense a locked and weather-proof enclosure of a design approved by the licensee for the purpose of housing the licensee€™s metering equipment. Apart from this, he submitted that permission was granted in 1989 as per the request of the complainant and at his own cost the metering unit has been installed inside his premises and when it is burnt, the complainant is to set up the metering unit or to pay the cost which is recommended by the licensee for restoring the equipments.11. Learned counsel for appellants drew the attention to the fact that the complainant had not installed the transformer or metering unit outside his premises but it is inside the premises for which the licensee is not required to take care of that but it is the complainant to take care of the same. Learned District Forum has committed error in law by not considering all these factual and legal provisions for which such order are vulnerable and illegal. According to him, Regulation €“ 58 does not apply to this case and the learned District Forum without analyzing the necessary provisions has passed the impugned order by directing the OPs to pay Rs.47,592/- as per the estimate made which should be set aside. He also submitted that the entire order should be set aside. At the same time submitted that since the complainant has not performed his duty by payment of the cost of metering equipments to the OPs, the prayer made in FA No. 483 of 2014 by the complainant to pay any compensation has been refused rightly by the learned District Forum in the impugned order and as such FA No. 483 of 2014 should be disallowed.12. Mr K.K.Jena, learned counsel for the respondent in FA No. 625 of 2014 submitted that the learned District Forum has allowed the complaint in part but illegally dismissed the other prayer of the complainant. He submitted that there is no definition of metering unit but the definition of meter takes care of the meter as well as metering unit. Further, he submitted that as per Section 42(5) of the Electricity Act, 2003, Distribution (Conditions of Supply) Code, 2004 (in short) €˜Code€ has been framed and Regulation €“ 45 should not be applied to this case and as such the demand of payment of cost for restoring the transformer or the metering unit at the cost of complainant does not arise. So, he challenged the applicability of Regulation - 45 as submitted by the learned counsel for the appellants.13. Learned counsel for the respondent submitted that Regulation €“ 47 is clear to show that the consumer can compensate the licensee for damages caused by him to the metering unit. In the instant case, since the transformer was burnt due to lightening as admitted by both the parties there cannot be contributed negligence by the complainant to compensate in any manner and as such the demand of metering unit cost is illegal.14. Learned counsel for the respondent further submitted that it has been pleaded in the complaint that transformer was installed 20 to 30 meter away from the premises of the complainant and it is not within his premises and according to impugned order when OPs not challenge the same, the leaned District Forum rightly held that the metering unit has been set up outside the premises of the complainant. So, he drew attention to this Commission to Regulation €“ 56 (7) (iii) of OERC Code, 2004 where it is clearly mentioned that licensee shall be responsible for the safety of the meter located outside the premises of the consumer and consumer shall be responsible for the real time display unit installed by the licensee in consumer premises. Learned counsel for the respondent submitted that since it is outside the premises, the demand for payment of cost of Rs.47,592/- is absolutely illegal and as such, the complainant is not required to pay the same and the licensee - OPs are to install the same at his own cost. In this regard, he supports the order of the learned District Forum.15. Further, he submitted that complainant has filed appeal bearing FA No. 483 of 2014 for the reason that the learned District Forum while disposing the complaint did not allow compensation although there is specific averment of the complainant that due to non-supply of power, there is damage to the unit and he suffered a lot for repayment of the loan. As such, learned District Forum illegally refused to award compensation. In this regard, he submitted that while allowing the complaint the learned District Forum ought to have allowed the compensation as prayed for by the complainant. Accordingly, he submitted that FA No. 483 of 2014 should be allowed while dismissing FA No. 625 of 2014.16. Learned counsel for the respondent also relied upon decisions in the case of Kishore Lal v. Chairman, Employees State Insurance Corporation in Appeal (Civil) No. 4965 of 2000, Karnataka Power Transmission Corp. and another v. Ashok Iron Works Pvt.Ltd in Civil Appeal No. 1879 of 2003, Charan Singh v. Healing Touch Hospital and others passed on 20.9.2000 and U.P.Power Corporation Ltd & others v. Anis Ahmad AIR 2013 Supreme Court 2766.17. Considered the submissions of respective counsel and perused the DFR including the impugned order.18. It is well settled in law that the complainant has to prove the deficiency of service or unfair trade practice on the part of the OPs.19. It is admitted fact that the complainant has got HT line from the OPs in 1989. It is not in disputed that on 14.5.2012, there was lightening and the metering unit installed for the purpose of industry of the complainant was burnt. It is also admitted fact that the complainant has requested for restoration of power supply but the OPs sent a letter on 21.5.2012 directing to deposit Rs.47,592/- as per estimate to avail power supply.20. Complainant has clearly mentioned in the complaint that the metering unit has been installed 20 to 30 meters away from the premises of the complainant as it is installed nearest electric pole. This fact is also not denied in the written version by the OPs. When there is no denial, fact is deemed to have been admitted by OPs. This fact has also been noted by the learned District Forum in its impugned order. So, it is clearly proved that this metering unit is installed outside of the premises of the complainant.21. The next question arises whether the metering unit is a €˜meter€™ or not. The definition of meter in OERC Code, 2004 vide Regulation 2(d)(bb) which is as follows:-€œxxx xxx xxxbb) €œmeter€ means an equipment used for measuring electrical quantities like energy in kWh or KVAh, maximum demand in kW or KVA, reactive energy in KVAR hours etc. including accessories like Current Transformers (CT) and Potential Transformers (PT) where used in conjunction with such meter and any enclosure used for housing or fixing such meter or its accessories and any devices testing purposes;€22. The aforesaid definition is clear to show that meter means any equipment used near its electrical installation and it includes like current transformer and potential transformer and therefore, the metering unit is definitely part and parcel of €˜meter€™. There is no any definition of metering unit separately either in the aforesaid Electricity Act or in the Code as prescribed. Thus, metering unit is under definition of meter.23. The question arises whether Regulation €“ 45 of Code would apply to this case or not. Before going to decide the issue it is necessary to go through Chapters of the Code. All have been narrated with regard to the manner of application, the required estimate, how to realize the cost etc. So the relevant chapter for this case is chapter €“ IV. This chapter relates to apparatus to be fitted in the consumer premises. Regulation €“ 45 is as follows:-€œxxx xxx xxxLicensee€™s Supply Mains and Apparatus45.(1) All equipment such as metering equipment and tamper proof boxes etc. for the purpose of metering, except the meter shall be included in the service connection estimate and the cost thereof realized from the applicant. The applicant shall have the option of supplying an appropriate meter to the specification of the licensee and approved by the licensee.2) In case the applicant requires the licensee to `provide the meter, the licensee shall do so on such terms and conditions as decided by the licensee with the approval of the Commission.3) Notwithstanding the fact that the meter, metering equipment and other apparatus as indicated above are supplied by the applicant, or paid for by the applicant, the same shall remain under the control of the licensee so long as the agreement is in force.€24. Before Chapter €“ IV, there is another Chapter which is Chapter €“ III which provides application for initial supply or subsequent additional supply of power. Moreover, word €œapplicant€ has been used in Regulation €“ 45. Thus, it is not meant for the complainant who has already become a consumer after being applicant at first instance while applied for supply of power in 1989. That apart Regulation €“ 47 of Code should also be taken into consideration for discussion. Regulation €“ 47 reads as follows:-€œxxx xxx xxx47. The consumer shall compensate the licensee for any damage caused to the mains, apparatus or instruments or any other property of the licensee in the consumer€™s premises, occasioned by any act, omission, lapses or negligence on the part of the consumer or his servants, agents or employees and if supply of power has been disrupted or disconnected on account of such damage, the supply may not be restored until the damage is assessed and the cost of restoration is deposited by the consumer. The engineer€™s decision in regard to the damage caused and the compensation payable assessed on the basis of current market rate and the cost of restoration as assessed shall be final and finding subject to the result of the appeal, if any. The consumer may represent to the designated authority of the licensee in regard to the determination of damage and cost fixed by the engineer. No damage shall be claimed and no demand for payment of cost shall be raised without giving seven clear days notice to the consumer and reasonable opportunity to him to make representation, if any.€25. The aforesaid regulations provide that if there is damage to the metering unit in the consumer€™s premises, occasioned by any act, omission, lapses or negligence on the part of the consumer or his servants, agents or employees and if supply of power has been disrupted or disconnected on account of such damage, the supply may not be restored until the damage is assessed and the cost of restoration is deposited by the consumer. Here, admittedly, the metering unit was damaged due to lightening. Therefore, neither Regulation €“ 45 nor 47 is applicable to this case.26. Now next comes to Chapter €“ V of the OERC Code, 2004 where both parties agitated about applied conditions of Regulation €“ 56. According to learned counsel for the appellants Regulation €“ 56 (5) is clear to show that an applicant requiring high voltage or extra high voltage supply must provide and maintain at his expense a locked and weather-proof enclosure of a design approved by the licensee for the purpose of housing the licensee€™s metering equipment. Similar enclosure may be used by the applicant for his own metering equipment. In the instant case, it is already observed in above paras that the metering unit is outside the premises of the complainant and particularly, this was burnt due to lightening. So the question of applicability of Clause - 5 of Regulation - 56 does not arise.27. Next question is the safety of the meter. When the metering unit is included with the meter as per definition as stated above, the safety of meter is relevant for the purpose and it is clearly mentioned under clause 7(iii) of Regulation €“ 56 of Code. It stated as follows:-€œxxx xxx xxxSafety of Meters €“The consumer shall, as far as circumstances permit, take precautions for the safety of the meter installed in his premises. Licensee shall be responsible for the safety of the meter located outside the premises of the consumer and the consumer shall be responsible for the real time display unit installed by the licensee in consumer premises.€28. The aforesaid definition clearly shows that if the meter includes metering unit is located outside the premises, the licensee is to be responsible for safety of the meter.29. In view of aforesaid discussion, it is very clear that at no cost, Regulation €“ 45 is to apply and rightly the learned District Forum has come to such conclusion. Besides, when it is outside the premises of the complainant, the demand of cost by the OPs to install the transformer and metering unit for restoration of power supply is equally uncalled for. It is a fact that the damage due to lightning cannot be act of any consumer or the licensee. It is also clear from the fact of the case that the complainant has become already consumer and he is not a new applicant. When it is damaged outside the premises, it should be installed by the licensee without asking cost from the complainant.30. From the DFR, it appears that the OPs become adamant and did not give power supply in spite of request of the complainant and complainant had to request the District Forum and District Forum passed the interim order. Against that order, the OPs filed revision petition in this Commission vide RP No. 71 of 2012 and in that matter, this Commission directed to restore power supply. Then again also power supply was delayed and learned District Forum issued order of imprisonment for OP due to disobedience of order of this Commission. Against that Revision Petition No. 123 of 2012 was filed by the OP. This Commission interfered. After passing of necessary order of modification by this Commission, finally the learned District Forum restored power supply to the unit of the complainant.31. Thus, there is delay of 269 days for giving power supply on the small issue whether Regulation €“ 45 is to be applied or not. However, the order of learned District Forum in this regard is confirmed but reason of learned District Forum for non-award of compensation is not sound one.32. Be that as it may, when loss caused to the complainant as advanced by him in complaint due to non-supply of power, mental agony, harassment and also fact that multiple rounds of litigations in this Commission and the learned District Forum at the instance of OPs dragged for 269 days to restore supply of power, some compensation should be awarded. In the case of Charan Singh (Supra) the Hon€™ble Apex Court held as follows:-€œxxx xxx xxxWhile quantifying damages, consuer forums are required to make an attempt to serve e

Please Login To View The Full Judgment!

nds of justice so that compensation is awarded, in an established case, which not only serves the purpose of recompensing the individual, but which also at the same time, aims to bring about a qualitative change in the attitude of the service provider. Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While warding compensation, a Consumer Forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to established judicial standards where the claimant is able to establish his charge. it is not merely the alleged harm or mental pain, agony or physical discomfort, loss of salary and emoluments etc. suffered by the appellant which is in issue. €“ it is also the quality of conduct committed by the respondents upon which attention is required to be founded in a case of proven negligence.€33. With due regard to above principle as proposed by the Hon€™ble Apex Court, in the instant case taking all the facts and circumstances as directed above compensation of Rs.1.00 lacs (Rupees one lacs) is awarded to complainant.34. In view of aforesaid discussion, the impugned order is confirmed to the extent that the cost of the metering unit should be borne by the OPs while restoring power supply. The impugned order is set aside towards decline of compensation to complainant as the complainant is entitled to compensation of Rs.1.00 lac. So far cost is concerned, the views of the learned District Forum is confirmed. All payment for compensation and cost be paid within 45 days from the date of passing of this order failing which same will carry 12% interest per annum from the date of this order till actual payment.35. As such, FA No. 625 of 2014 is dismissed and FA No. 483 of 2014 is allowed in part.DFR be sent back forthwith.Supply free copy of this order to the respective parties.
O R