G.FRANCIS, SUB ENGINEER, ELECTRICAL MAJOR SECTION vs SAJIKUMAR, MANALIL, MANGAD P.O. KOLLAM

THE second opposite party in O.P. No. 460/96 on the file of Consumer Disputes Redressal Forum, Kollam is the appellant.

THE complainants alleged deficiency of service on two grounds one is that the electric supply to Consumer No. 15301 and Consumer No. 2364 was disconnected without any cause or reason, an other is that he was made liable for 15 days'' penalty for no fault of his. THE facts are : the first complainant is the Consumer No. 15301 that was for the sawmill of which the first complainant is the proprietor. THE second complainant was the proprietor of a fibre processing mill for which he was the consumer of Consumer No. 2364. THE complainants- alleged that, opposite parties 1 and 2 disconnected the power supply on 14.3.1996 on the allegation that they have exceeded the quota allotted to them. Though the power supply was restored on 16.3.1996 again that was disconnected on the ground that there was theft of energy from 51301 and also that the second complainant has exceeded the units allotted to him for Consumer No. 2364. THE complainants maintained that the allegation of theft of electric energy in meter No. 15301 as well as the allegation that excess consumption of energy in Consumer No. 2364 are not correct or true. Consequently, according to them the disconnection was without any basis, which would constitute deficiency of service. THE opposite parties denied the aforesaid allegation in the complaint and maintained that the action taken by them was justified. THEy maintained that, whereas for Consumer No. 15301 the quota allotted was 35 units and for Consumer No. 2364 the quota allotted was for 48 units on 6.2.1996, the second opposite party found that the meter No. 15301 was not working and on 6.2.1996 the reading of Consumer No. 2364 was found to be above the allotted quota. On being informed the Assistant Executive Engineer directed to disconnect the supply and the supply was disconnected on 4.2.1996. Though on 27.2.1996 the second opposite party took the reading of Consumer No. 15301 it was discovered, there was no change of reading from the reading on 6.2.1996. As per the direction of the Asstt. Executive Engineer, the meter in Consumer No. 15301 was changed. Though reading was taken for Consumer No. 15301 on 7.3.1996 the same was found to be not working. THE Asstt. Executive Engineer thereupon inspected the premises of the complainant on 14.3.1996 and it was found that a film found introduced in the meter was removed from the side of the meter which created obstruction to the working of the meter. As per the direction of the Assistant Executive Engineer the supply was disconnected. THE complainant man handled the officials and on reporting the matter to the police they registered a crime against the complainants. THEre are : they maintained that the claim made by the complainant is not correct. P.W. 1 and P.W. 2 were examined on the complainant side and Exts. Al to A10 were produced by them. THE first opposite party was examined as R.W. 1 and the second opposite party was examined as R.W. 2. THE opposite parties produced Exts. Rl to R4. The District Forum found deficiency of service and therefore directed the opposite parties to pay the complainant Rs. 5,000/- as compensation and Rs. 500/- as costs within one month of the order.

It was urged by the learned Counsel for the appellant that even if there is deficiency of service, since the appellant and opposite party No. 1 were carrying out only the direction of the Asst. Executive Engineer/they could not have been made liable for the compensation, and if at all, the direction could be only against the 3rd opposite party-the electricity board. The learned Counsel also sought to maintain that the case of the complainant that no theft was committed, with due regard to the evidence on records, could not have been accepted, as according to the learned Counsel, there was acceptable evidence to show that, theft of energy was committed from Consumer No. 15301.

IN this connection it has to be noted that though notice was served from the appeal and the respondents remained absent. As regards the case that Consumer No. 2364 was found to have exceeded the units allotted, a reading of para 10 of the impugned order would demonstrate that the view taken by the authority that there was excess consumption of energy from Consumer No. 2364 was on account of an entry made by the Assistant Executive Engineer, whereas instead of recording 10 HP he recorded 10 KW. The District Forum relied on the evidence of RW 2, which the District Forum says would clearly go to prove that it was on account of the said mistake, disconnection was ordered with respect to Consumer No. 2364. Therefore, so far as deficiency with respect to the disconnection of Consumer No. 2364 is concerned the said finding of the District Forum that there is deficiency, cannot be assailed.

THEN the other question for consideration is whether the finding of deficiency so far as Consumer No. 15301 is concerned can be supported. The finding of the District Forum is that, the evidence on records could not support the case of the opposite party that there was theft of energy from Consumer No. 15301. The main piece of evidence that was sought to be relied by the opposite parties was a mahazar prepared on 15.3.1996 which was marked in the proceeding as Ext. R2. The theft was allegedly found on 14.3.1996, on that day no mahazar was prepared. Ext. R2 mahazar was prepared only on 15.3.1996. The same was prepared by one Rajasekharan but the impugned order itself notes that the person who prepared Ext. R2 was neither cited nor was examined. Before acting on Ext. R2 it was necessary that the complainant was given an opportunity to cross-examine the person who prepared the same. Another circumstance also is relied by the District Forum in support of its conclusion, and that is the circumstance under which the said mahazar was prepared. It was submitted by the learned Counsel for the appellant that the alleged assault on the appellant by the complainant was on 14.3.1996. Naturally therefore, there was hostility between the complainant and the opposite parties 1 and 2. The appreciation of evidence by the District Forum on this aspect has to be evaluated taking into account the said circumstance also. When Ext. R2 is considered in the aforesaid context one cannot find fault with the finding of the District Forum as regards the finding as regards the alleged theft. Therefore, the disconnection of Consumer No. 15301 on the ground that there was theft of energy cannot be said to be supported by acceptable reason. Consequently the finding that there is deficiency of service on that account also cannot be called in question. Now having found that there is deficiency of service the question is whether the appellant No. 2 can be made liable for the compensation. It is pointed out by the learned Counsel that the disconnection was made as per the direction of the Asstt. Executive Engineer. When there is nothing in record to suggest that the said evidence of R.W. 2, the appellant, is not reliable, since he only has executed the direction of the superior, he cannot be held to be liable for any compensation on account of the act done by him on obedience to the direction of the superior. Therefore, while we have to uphold the finding that there is deficiency of service, and therefore the complainant is entitled to compensation and to have the penalty quashed, it may not be possible to uphold the direction of the District Forum that the appellant / second opposite party also is liable for the compensation. In view of the above, the appeal is allowed in part and the direction by the District Forum is modified to the effect that, the appellant/second opposite party will not be liable for the compensation awarded by the District Forum. The compensation awarded against the other parties will stand confirmed. In this appeal there will be no order as to costs, so far as the appellant/second opposite party is concerned he will not be liable for the cost awarded by the District Forum. In this appeal there will be no order as to costs. Appeal partly allowed. _______________