DOUGLAS ANTONY vs SECRETARY, KERALA STATE ELECTRICITY BOARD

ALLEGING deficiency in service on the part of the opposite parties in O.P. 82/2001 on the file of the Consumer Disputes Redressal Forum, Idukki, the complainant who is the appellant herein approached the lower Forum and the lower Forum dismissed his complaint after taking evidence on the ground that complaint was barred by limitation i.e., complaint was not filed within two years of arising of cause of action as provided under Section 24A of the Consumer Protection Act, 1986. We need only to state here the allegation made in the complaint briefly. The appellant/complainant who is Consumer No. 2731 was given connection in the year 1994 for irrigation purposes (for irrigating Cardamom plants in the cardamon estate belonging to him) and the case of him is that due to insufficient voltage, the 24 HP electrical motor and pump set installed by him stopped working after 20 minutes (he alleged that the motor and pump set were operated in the presence of lineman one Mani and Overseer Joy Kutty attached to the office of the 3rd opposite party). The complainant attributed over heating of the motor due to "insufficient voltage". The further case put forth by him was that the lineman and Overseer stated that steps would be taken to provide sufficient voltage and in spite of repeated requests supply position was not improved. He used to start the motor for 10 minutes at a time and then stopped for cooling the same. On cooling the same the motor would be started again for working for 10 minutes. Complainant further alleged that power supply was cut off due to fall of electric posts due to natural calamities in the month of January, 1995. The deficiency in service attributed by the complaint is that several requests made by him to the opposite parties/respondents to restore the supply of power was unheeded and fell on deaf ears. Failure to restore supply resulted in destruction of large number of cardamom plants (he was not able to irrigate his cardamom plants). Loss caused to him was to the tune of Rs. 2.5 lakhs.

THE complaint was filed in the year 2001. In the written version filed by the opposite parties they contended that electric connection was given on 26.8.1994 and when the motor was connected to the main switch the initial reading was 24 units. Electric connection was given to the complainant after installation of 100 KVA Transformer drawing 1.5 KW branch 11 KV line and LT line of 500 m. There was no other tansformer or consumers in the branch line. According to them the reading recorded (658 units) indicated that motor installed worked for more than 34 hours. Opposite parties denied the asserted fact of stopping motor due to insufficient voltage and contended that the motor installed by the complainant was damaged due to its low quality or its manufacturing defects. They also contended that complainant had installed diesel pump for irrigating his estate before making application for getting electric connection. They refuted the charge of deficiency on their part and contended that the complainant who has executed the minimum guarantee agreement committed default in making payments under the minimum guarantee agreement and he would be entitled to restoration of the supply of energy only on payment of arrears which amounted to approximately Rs. 2 lakhs.

In support of his case the complainant got himself examined as P.W. 1 and also examined P.W. 2. On his side the complainant also produced documentary evidence and got marked Exts. P1 to P4 in support of his case.

THE lower Forum on a consideration of the evidence adduced by the complainant in support of his case held that even if the case of the complainant trotted out during the course of trial or inquiry that there was mental agony for him due to the illness of his wife and son (wife suffered from renal failure and there was carebral haemorrhage for his son). It is evident from the materials on record that his wife and son died in the year 1997 and he got remarried in the year 1999 and that fact clearly shows that it was not on account of the mental agony suffered he was not able to file the complaint before the Forum below at least within a reasonable period after his remarriage and no acceptable explanation is forthcoming from him for not filing the complaint within the period of two years stipulated by the Act under Section 24A for filing a complaint before the Forum below. We heard the learned Counsel for the appellant on the question whether the appeal is to be admitted or not i.e., whether the appeal is to be dismissed at the threshold on the ground that the complaint is barred by limitation. At the outset itself we may say that we do not find any error committed by the Forum below in holding that the complaint was barred by limitation as it was not filed within two years of arising of cause of action as provided under Section 24A of the Consumer Protection Act.

UNDISPUTED facts are that electric connection was given to the complainant on 26.8.1994 and from the evidence given by the complainant as P.W. 1 it is clear that power supply to the appellant/complainant was cut off completely from the year 1995 (from the month of January, 1995) as a result of falling of a tree on the line drawn for giving electric connection and it is clearly asserted by him in the complaint itself that the cause of action arose in the year 1995. It is the common case of the parties that the supply was not restored till this date. It is true that complainant made complaint to the respondents for restoration of electric supply and it is established by evidence that written complaint was made on 26.2.1988 (Ex. P2) (no documentary evidence has been produced to prove that on earlier occasion written complaint was made, though P.W. 1 asserted that complaints were made by him). It is to be inferred from his evidence that earlier complaint alleged to be made by him on the date of giving electric connection to him was about insufficient voltage for working the motor (his allegation is that motor when worked stopped to work after 20 minutes due to overheating for the reason the voltage was insufficient). From his evidence in re-examination it is clear that his grievance is about non-restoration of supply and not about low voltage. He issued a Lawyer''s notice to the respondents evidenced by Ex. P3 dated 1.6.2000 and the respondents sent a reply Ex. P4 dated 31.7.2000. Mere sending of a Lawyer''s notice will not give rise to a fresh cause of action and, therefore, we cannot hold that sending of Lawyer''s notice in the year 2000 also extended the period of limitation on the ground the cause of action arose in the year 1995. No case is pleaded in the complaint by the complainant that there was mental agony for him on account of the illness of his wife and son. Such a case is attempted to be proved to get over the period of limitation and it is a clear afterthought. Even if we proceed on the assumption that he suffered mental agony on account of illness or ailment of his wife and son, his wife and son died in the year 1997 (she died on 1st January, of 1997 and son died 45 days after his wife''s death) and he got remarried in the year 1999 and it is not the case of the complainant that even after his remarriage there was mental agony for him. So there was no difficulty for him to file complaint either in the year 1999 or 2000. The complaint was filed by him in 2001 i.e., in the month of March, 2001. So evidently the complaint was filed two years after arising of cause of action and no explanation is given in the complaint for filing the complaint after expiry of the period of limitation provided under Section 24A of the Act nor has he filed any separate petition for condonation of delay. In view of our affirming the finding of the lower Forum we need not dwell on the question whether supply was not restored on the ground of default in payment of the amount agreed to be paid under the minimum guarantee agreement executed by the appellant. We find no ground to admit the appeal filed by the complainant. The appeal is not admitted and hence dismissed. Appeal dismissed.