ADDITIONAL ASSTT. ENGINEER, A.P.STATE ELECTRICITY BOARD vs SIDDALA CHAKRAPANI

THE appellants, who are the respondents in C.D. No. 148/1993 on the file of the Nalgonda District Forum, question the order of that District Forum dated 9.10.1996 allowing the said C.D. in part. THE respondent in this appeal was the complainant in that C.D.

THE complainant approached the District Forum on 25.9.1993 complaining that the supply of electrical energy to his rice mill named Harshavardhana Modern Rice Mill at Bhongir, which has been receiving electrical energy under Service Connection No. 222, was disconnected on 25.8.1993 in spite of the dispute raised by him about the correctness of the meter and the bills raised for the energy consumption of his rice mill for May, 1993 and June, 1993 at Rs. 4,185/- and Rs. 99,094/- respectively. After the complainant raised a dispute about the correctness of the meter for his Service Connection No. 222, the respondents got the meter removed and installed a new meter on 22.7.1993 and got the disputed meter tested on 24.8.1993. According to the complainant, the respondents contended that the meter was correct. According to the complainant, die usual consumption of his rice mill used to be around 650 units per month, and the consumptions recorded by the disputed meter for the months of May and June, 1993 were 1960 units and 49,990 units respectively, which were far above the average consumption of about 650 units per month. THE complainant protested against the finding of the Authorities concerned as regards the correctness of the meter, to no effect. On 25.8.1993 the supply of the energy to his rice mill was disconnected on the ground that he defauled in the payment of the bills for May and June, 1993 for Rs. 4,185/- and Rs. 99,094/- respectively. After the complainant approached the District Forum, he made an application to the Chief Electrical Inspector on 1.12.1993 raising dispute about the said bills. The Chief Electrical Inspector finally gave his report dated 27.5.1994; a copy of that report was marked as Ex. A-13 in the C.D. before the District Forum. The Chief Electrical Inspector observed that the Divisional Engineer (Operation), Bhongir in his reply contended that it was not correct to say that the consumer had been consuming only 800 units in a month and that in fact "the consumer has colluded with the meter reading and got the consumption postponed by means of fraudulent and manipulated monthly meter readings and with the change of meter reading the actual reading for 6/93 i.e. 87,773 was noted". The Divisional Engineer also claimed that there was no fault in the meter. The Chief Electrical Inspector, after going through the record, held as follows: "On perusal of the record presented by Sri Chakrapani and representatives of A.P. State Electricity Board, it is observed that the consumption of 49,990 units in the month of June, 1993 is not in order. According to Divisional Engineer, Operation, it is the accumulation of the consumption of the previous months which was not correctly recorded by the previous meter reader and also no slippage was observed in the meter. The point of dispute is now limited to whether meter is defective or it is accumulation of previous consumption. The Divisional Engineer has not substantiated for accumulation of consumption i.e. from which period to which period and proof of it. On perusal of the test report given by the MRT Wing of A.P. State Electricity Board, it is observed that tests have not been conducted on the meter required, under IS 772 for ascertaining the fault in the meter, but simply enclosed the test report which reads as follows: ''Test carried out'' ''Meter Body cover opened and registering mechanism checked and found no breakage of dial teeth, no slippage of the Register is observed.''

The meter under dispute was installed with the initial reading 0085 on 26.9.1989 and the check reading taken by Divisional Engineer/ DPE II Hyderabad on 6.1.1992 is 2544.6 i.e. the consumption of 25,396 for a period of 28 months at an average consumption of 906 units per month has not been disputed by the Board. In fact these readings are given by the reprssentative of Board vide Letter No. DEE/DPE. II. Hyd./F. 14/B. No. 259/93, dated 7.9.1993 and also he has not explained why the new meter consumption for the period from 27.7.1993 to 25.8.1993 shall not be taken as yard-stick for assessing average consumption.

UNDER the circumstances as explained above, the representatives of the Board has not proved on record that the meter is not faulty. When there is a dispute on meter it is desirable to get the meter tested in any one of the standard agencies other than the Board wing, i.e. either in the office of Chief Electrical Inspector to Government or in the ETDC or any other recognised agency. But it was not done so. Hence the undersigned believes that the meter is at fault, since it has recorded the consumption of 1960 units during the month of May, 1993 and 49,990 units during the month of June, ''93. Further at this juncture of long gap that too on opening the meter body covers, no useful purpose will be served by getting the meter to the laboratory. Hence the meter is not examined. Hence based on the records available and under Section 26(6) of Indian Electricity Act, 1910 when the meter in the opinion of Chief Electrical Inspector to Government is not correct, he can assess the average consumption for the past 6 months. Since the representative of the Board has not contested for the consumption recorded in the meter during the month of May, 1993, it is also regarded as an incorrect reading. So the average consumption for the previous six months prior to May, 1993 is taken into consideration and arrived at an average consumption of 717 units per month." (emphasis supplied) After the Chief Electrical Inspector''s decision was received on 4.6.1994, the complainant paid the amount demanded on the basis of 717 units consumption for each of the months May and June, 1993 and thereafter the respondents restored the supply of the energy to the complainant on 3.7.1994.

THE District Forum discussed the evidence of PW 1 i.e. the complainant, and of R.W. 1 on behalf of the respondents, and the material on record, and in particular the report of the Chief Electrical Inspector. After considering all aspects of the matter the District Forum held that the respondents were liable to compensate the complainant for stopping the supply of energy for about ten months i.e. from 25.8.1993 to 3.7.1994 and awarded Rs. 10,000/- towards damages suffered by the complainant for disabling him from running his rice mill during that period. However, the District Forum refused to award compensation to the complainant at the rate of Rs. 100/- per day claimed by him which would come to about Rs. 30,000/- for ten months. THE respondents in the CD are the present appellants. The learned Standing Counsel, Mr. J. Siddaiah, appearing for the appellants firstly submits that the disconnection was effected on 25.8.1993 on the complainant committing default of payment of bills for May and June, 1993 after inspection of the meter in question in the MRT Laboratory and after finding that the meter was not defective. The learned Counsel contends that under Section 24 of the Indian Electricity Act, 1910 (''1910 Act'' for short), the Board has the power to cut off the supply of energy to any defaulting consumer of the Board and that the complainant, therefore, could not question the stoppage of supply of energy as bad under those circumstances. He also contends that the complainant should have paid the disputed bills and then raised the dispute and thereby could have avoided disconnection. The learned Counsel further submits that even otherwise, the amount of Rs. 10,000/- awarded as compensation was very much on the high. To test the contention of Mr. J. Siddaiah based on Section 24 of the 1910 Act, it is necessary to have a close look at Section 24. It reads as follows: "24. Discontinuance of supply to consumer neglecting to pay charge-(1) Where any person neglects to pay any charge for energy or any sum other than a charge for energy, due from him to a licensee in respect of the supply of energy to him, the licensee may, after giving not less than seven clear days'' notice in writing to such person and without prejudice to his right to recover such charges or other sum by suit, cut off the supply and for that purpose cut or disconnect any electric supply line or other works, being the property of the licensee, through which energy may be supplied, and may discontinue the supply until such a charge or other sum, together with any expenses incurred by him for cutting off and reconnecting the supply, are paid, but no longer. (2) Where any difference or dispute which by or under this Act is required to be determined by an Electrical Inspector, has been referred to the Inspector before notice as aforesaid has been given by the licensee, the licensee shall not exercise the powers conferred by this section until the Inspector has given his decision: Provided that the prohibition contained in this sub-section shall not apply in any case in which the licensee has made a request in writing to the consumer for a deposit with the Electrical Inspector of the amount of the licensee''s charges or other sums in dispute or for the deposit of the licensee''s further charges for energy as they accrue, and the consumer has failed to comply with such request."

The A.P. State Electricity Board (''the Board'' for short), as licensee under this section, is empowered to cut off the supply of energy to any defaulting consumer and may discontinue the supply until he pays the amounts due to the Board together with the charges for cutting off and re-connection of the supply. But before cutting off the supply to such consumer, the Board has to give not less than seven clear days'' notice in writing. This pre-condition is mandatory. In Isha Marbles v. Bihar State Electricity Board, (1995) 2 SCC 648, the Supreme Court held as follows: "Section 24(1) provides where a consumer neglects to pay any charge for energy or any sum other than charge for energy the licensee, after the requisite notice, shall be entitled to stop supply of electrical energy. Of course, this power of disconnection is subject to Sub-section (2) of the said section. Thus, Section 24 relieves the licensee of its obligation under Section 22 to supply energy if the consumer has not paid to it the charges for electricity supplied or where the consumer neglects to pay the same."

(emphasis supplied) This is a reiteration of what the Supreme Court held in Municipal Corporation of Delhi v. Ajanta Iron and Steel Company (Private) Limited, (1990) 2 SCC 659. The Supreme Court said in that case that service of notice was a pre-requisite for disconnection and observed as follows: "It has to be appreciated that the licensee Undertaking is performing a public duty and is governed by a special statute and the law also contemplates service of a notice before disconnection of supply of electricity."

It might be different if there was a conclusive detection of pilferage of energy or any other mal- practices by the consumer as observed by the Supreme Court in M.P. Electricity Board, ]abalpur and Others v. Harsh Wood Products and Another, (1996) 4 SCC 522, that Section 24 does not apply in case of detection of pilferage. But the Supreme Court also made it clear in that case as follows: "It (Section 24) would apply to a case of regular supply made and prior demand for payment of electricity charges with a notice of seven days to be made and for failure to pay within the given time, after expiry of seven days, the appellant as a licensee (M.P. Electricity Board in that case) would get the right to disconnect the supply of electrical energy."

IN the present case such a notice of seven clear days'' was not given before effecting dis- connection - the disputed meter was tested on 24.8.1993 and the disconnection was effected on the next day i.e. on 25.8.1993 without any notice under Section 24(1) of 1910 Act. Mr. J. Siddaiah does not dispute this position. This disconnection was admittedly not for any mal-practice and therefore, it does not attract the observations of the Supreme Court in M.P. Electricity Board Jabalpur and Others v. Harsh Wood Products and Another, case (supra). INasmuch as the mandatory requirement of seven days'' notice under Section 24(1) of the 1910 Act was violated, disconnection of the complainant''s service connection on 25.8.1993 was, therefore, illegal and bad.

THAT disconnection is also illegal and violative of Sub-section (2) of Section 24 of the 1910 Act because the complainant applied to the Chief Electrical Inspector under Sub-section (6) of Section 26 of the 1910 Act, on 1.12.1993 questioning the correctness of the meter after finding that the Authorities concerned tried to get over his objection to the correctness of the meter by having it tested in the manner they did on 24.8.1993. In view of the finding of the Chief Electrical Inspector in Ex. A-13, it is now obvious that the meter was not properly tested by the MRT Laboratory at Bhongir. Sub-section (2) of Section 24 clearly enabled the complainant to apply to the Chief Electrical Inspector because no notice for disconnection under Section 24(1) was given to him. Sub-section (2) emphatically states that until the Inspector gives his decision the Board shall not exercise the powers conferred under the section. It is not the case of the appellants that they approached the Chief Electrical Inspector for requiring the complainant to deposit the amount claimed under the May and June, 1993 bills. Therefore, after the complainant gave his complaint to the Chief Electrical Inspector on 1.12.1993 the appellant could not have continued the disconnection illegally effected without giving seven clear days'' notice under Sub-section (1) of Section 24. The illegal disconnection effected by the appellants would mean that there was deficiency in service on the part of appellants for the period from 25.8.1993 to 3.7.1994 when the supply of energy to the complainant''s rice mill was cut off. ''Service'' as defined under Section 2(1)(o) of the Consumer Protection Act, 1986 (''the Act'' for short) includes supply of electrical or other energy and under Section 2(1)(g) ''deficiency'' means "any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service".

Under Section 22 of the 1910 Act, the Board as licensee is bound and the consumer is entitled to supply of electrical energy "on the, same terms as those on which any other person in the same area is entitled in the similar circumstances to a corresponding supply". It follows that any unauthorised or illegal or improper cut of supply of electrical energy to a consumer will constitute deficiency in service on the part of the Board and the consumer would be entitled to claim damages for such stoppage of supply of energy. The Supreme Court held in Punjab State Electricity Board v. Bassi Cold Storage, Kharar and Another, 1994 Supplement (2) SCC 124, that the "remedy of approach to the Civil Court would definitely be available to a consumer, if he would seek to recover damages for dis- connection due to wrongful manner". This was reiterated by the Supreme Court in Punjab State Electricity Board, Mahilpur v. Guru Nanak Cold Storage & Ice Factory Mahilpur and Another, (1996) 5 SCC 411.

THUS when there is deficiency in service, the complainant will be entitled to compensation. The District Forum has the power to grant compensation under Clause (d) of Sub-section (1) of Section 14 of the Act. But there has to be a reasonable basis for assessing compensation. In the present case, the complainant had claimed that he had incurred a loss of Rs. 100/- per day during the ten months, the supply was disconnected. But, he had not given the exact basis for arriving at the said quantum of loss at the rate of Rs. 100/- per day. However, we find that the Chief Electrical Inspector fixed the number of units of average consumption of the complainant''s mill at 717 units per month. It would mean a consumption of more than 20 units per day. The District Forum fixed the compensation roughly at Rs. 1,000/- per month or Rs. 35/- per day. It is agreed by the learned Counsel on both sides that taking the average consumption per day at 20 units, the monthly income would be around Rs. 750/- after deducting all expenses. We, therefore, reduce the compensation of Rs. 10,000/- fixed by the District Forum to Rs. 7,500/-. The said sum shall be paid with interest @ 10% per annum from 3.7.1994, the date when the supply of energy was restored. Accordingly the order of the District Forum is modified. On l7.2.1997 in F.A.I.A. No. 233/97 this Commission granted interim stay of the order of the District Forum subject to the condition of the appellants depositing Rs. 5,000/- and a further sum of Rs. 200/ - towards costs before the District Forum, Nalgonda to the credit of C.D. No. 148/ 93 within a period of one month from that date and the complainant was allowed to withdraw the costs of Rs. 200/- only without furnishing security; the complainant/respondent was not permitted to withdraw the sum of Rs. 5,000/- deposited by the appellants. In the circumstances, the appellants shall pay interest on Rs. 7,500/- upto the date of payment of the said sum. The learned Counsel requests one month''s time for taking the payment. In the circumstances, the amount shall be paid by 28.3.1998. The balance sum of Rs. 2,500/- together with interest @ 10% on Rs. 7,500/- from 3.7.1994 shall be paid by way of cheque in favour of the complainant calculating the interest upto the date of the cheque, on or before 28.3.1998. On such payment being made the complainant will be at liberty to withdraw the sum of Rs. 5,000/- lying in deposit in the Nalgonda District Forum to the credit of C.D. No.148/93.

IN the result, the appeal is partly allowed accordingly. Post on 30.3.1998 for reporting compliance. Appeal partly allowed.