ASSTT.EXECUTIVE ENGINEER vs HAMPAVVA

APPEAL No. 290/95 by the opposite parties and APPEAL No. 298/95 by the complainant are directed against the order dated 24.8.95 passed by the District Forum, Bijapur in Complaint No. 106/94, directing the opposite parties to pay to the complainant a sum of Rs. 2,10,000/- as compensation and a sum of Rs. 2,000/- towards costs of the proceedings.

THE opposite parties have challenged the impugned order and sought the said order to be set aside and complaint to be dismissed. The complainant in her appeal has sought payment of higher compensation, as claimed by the complainant in her complaint at Rs. 4,55,000/-.

The facts, briefly stated, are as follows : The complainant a resident of Yemmi Hatti village in Hunugund Taluk of Bijapur District averred that she owned a land R.S. No. 7, measuring 1 acre 12 guntas in the said village. A well is situated in the said land. It is the case of the complainant that she applied for the supply of electricity for installation of 1 H.P. I.P. set for the said well on 28.2.84. The opposite parties failed to supply the power. The complainant issued legal notice to the opposite parties. Even then the opposite parties failed to supply power. So the complainant filed a suit in O.S. No. 132/ 1984, on the file of the Munsiff and J.M.F.C. at Hunugund seeking a mandatory injunction against the opposite parties directing them to supply electricity to the complainant''s 1 H.P. I.P. set to the well in her land. But the opposite parties failed to supply power and took up a plea in the said suit that the complainant was not the owner of the well situated in the said land. The complainant when the opposite parties took up such a contention filed a suit in O.S. 85/1985, on the file of the Munsiff and J.M.F.C. at Hunugund seeking declaration of ownership of the well situated in R.S. No. 7 of Yemmi Hatti village. The said suit O.S. 85/1985 on contest came to be decreed on 26.10.88. Subsequently even the appeal filed by the opposite parties against the said decree came to be dismissed on 8.9.92.

THE complainant produced the copy of the said decree obtained in O.S. No. 85/85. THE said suit No. 132/84 came to be decreed on 12.1.94 directing the opposite parties to supply power to the plaintiff''s 1 H.P. I.P. set. Even thereafter the opposite parties failed to supply the power. The complainant averred that due to this attitude of the opposite parties in denying supply of power the complainant has suffered loss in a sum of Rs. 4,50,500/-. The complainant filed the complaint on 18.5.94 seeking compensation from the opposite parties in a sum of Rs. 4,50,000/- and also costs in a sum of Rs. 5,000/-.

THE opposite parties i.e. K.E.B. Authorities, filed the version and averred that the installlation of the complainant was serviced on 19.6.85 but as on 19.8.85 the Chief Executive Officer, Taluka Development Board, Bagalkot intimated the opposite parties that the Assistant Commissioner, Bagalkot had withdrawn the certificate granted to the complainant for use of water from the well located in R.S. No. 7 at Yemmi Hatti village and so the installation came to be disconnected on the basis of the said direction of the Chief Executive Officer, Taluka Development Board, Bagalkot. THE opposite parties admitted the fact of filing of the suit by the complainant in O.S. No. 132/84 seeking mandatory injunction and, O.S. No. 85/85 for declaration of ownership of the well by the complainant. THE opposite parties also admitted that those suits came to be decreed. THEreafter the opposite parties had intimated the complainant to arrange for inspection of I.P. set for facilitating supply of energy and as the complainant had not submitted any inspection report, so the power supply could not be made to the installation of the complainant. THE opposite parties on the bass of these averments submitted that they did not commit any deficiency in service. During enquiry the complainant filed the affidavit of her power of attorney holder and got Exs. P 1 to P 5 marked in evidence. The documents filed by the opposite parties came to be marked as Exs. R 1 to R 14. The District Forum on consideration of this, material placed on record held that the opposite parties committed deficiency in service in not supplying the power to the complainant''s installation and in that view, it awarded compensation to the complainant in a sum of Rs. 2,10,000/- and also it awarded a sum of Rs. 2,000/- towards costs of this proceeding.

WE have called for the records and received. WE have also heard the learned Counsel for the parties, perused the pleadings and the material on record. Ex. P 1 is the copy of the decree in O.S. 132/84. The operative portion of the decree reads as under : "Defendants are directed to supply electricity power to the plaintiff''s one H.P.I.P. set to the suit well situate in R.S. No. 7 of emmihatti village. In view of the special circumstances of the case both the parties shall bear their own costs."

THE learned Counsel for the complainant fairly submitted that even after he obtained the said decree when the opposite parties declined to supply power to the installation, the complainant had filed the Execution petition and the same is pending execution before the said Civil Court. Ex. P 2 is the certified copy of the judgment of the Court of the Munsiff and J.M.F.C. Hunugund in the suit O.S. 132/84. The learned Munsiff, having regard to the pleadings of the parties had raised the following issues for his consideration : 1. Whether the plaintiff proves that she as complied with the mandatory provisions of Section 79(j) of Karnataka Electricity (Supply) Act, 1948 and is entitled to have a feasibility certificate of power as prayed; 2. Whether the plaintiff further proves that the defendants wilfully witheld to give power to plaintiff for her I.P. set; 3. Whether the plaintiff is entitled for the relief sought; 4. What order or decree;

The learned Munsiff gave a finding on issue No. 2 in the negative i.e. against the plaintiff-the complainant herein. The finding on issue No. 2 reads as under : "So far as this issue is concerned, Exs. P 3 to P 17 go to show that there is repeated effort by the plaintiff to the concerned K.E.B. authorities to get electricity supply. But only on these documents, it cannot be to the plaintiff wilfully. Hence issue No. 2 is held in the negative."

THEREFORE from this finding it is clear that non-supply of power to the installation of the complainant by the opposite parties was not due to the negligence of the opposite parties. The complainant under the provisions of Section 14 of the Consumer Protection Act, is entitled to get compensation in case the complainant suffered any loss or injury due to the negligence of the opposite parties. The provisions of Section 14(1) of the Act, read as under : 14. Finding of the District Forum. - (1) If, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the service are proved, it shall issue an order to the opposite party directing him to do one or more of the following things namely, - 14(d) :-to pay such amount as may be warded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party. 15. It is clear from the provisions of this section that the complainant is entitled to compensation only in case he were to establish that the complainant had suffered loss due to the negligence of the opposite parties.

IN the present case, as referred above, a Civil Court has given a finding that the opposite parties had not withhold power to the complainant wilfully. Moreover, it is an admitted fact that the said decree in O.S. No. 132/84 and the same is ending execution before a Civil Court. Having regard to these facts and in the circumstances of the case, we are constrained to hold that the matter is subjudice before a competent Civil Court and so this complaint is untenable.

THE District Forum has awarded compensation to the complainant in a sum of Rs. 2,10,000/-. Having regard to the material on record, we are constrained to hold that this finding recorded by the District Forum is without any material on record.

THE complainant at Para 2 of her complaint in this regard, has averred thus : "It is how the complainant had suffered a lot under the misadministration of respondents for a more than decade. She did not develop because of not supplying the energy to 1 H.P.I.P. set of complainant. Not only that the respondents even after in the initial stage supplying energy, later they stopped at the instance of some dirty politicians, the then M.L.A.. late S.S. Kadapatti. It is how they caused great loss and made the complainant suffer mentally, financially to the extent of Rs. 4,50,500/-. THE responents are bound to make the good loss to the complainant."

The power of attorney holder of the complainant filed the affidavit, has repeated the same allegations of facts. No other material was placed on record to show the loss suffered by the complainant.

The District Forum on consideration of this material at Para 3 of its order observed that the complainant had averred that the opposite parties wilfully did not supply power to the complainant''s installation and the opposite parties had even taken up the plea in the Civil Suit that the well did not belong to the complainant. So she was made to approach the Civil Court. Consequently she incurred heavy expenses. While referring to this averment the District Forum held that it would be just and proper to award a sum of Rs.20,000/-per annum as compensation and so in all for a period of 10 years a sum of Rs. 2,00,000/- as compensation was awarded to the complainant and a further sum of Rs. 10,000/- towards mental agony and suffering undergone by her.

WE find that this finding recorded by the District Forum is clearly erroneous and unsustainable. This finding has been recorded by the District Forum without any evidence placed on record by the complainant in support of her claim for compensation. The entire finding of the District Forum, on all aspects of the matter, in our opinion, is clearly erroneous and unsustainable.

IN the result, therefore, appeal No. 290/ 95 by the opposite parties is allowed. The order of the District Forum, Bijapur, recorded in Complaint No. 106/94 is set aside and the complaint is dismissed. Appeal No. 298/95 by the complainant fails and it is dismissed. The parties are directed to pay and bear their own costs in this proceedings. Appeal No. 290/95 allowed. Appeal No. 298/95 dismissed.