H.S.E.B. vs PIRTHI SINGH

WHETHER the District Forum can entertain a complaint where the value of the goods or services and the compensation claimed is precisely a sum of rupees One lac only? This inter alia is the significant question arisen in this set of appeals.

FIRST Appeals No. 346 & 352 of 1992 are directed against the same order of the District Forum, Kaithal and the learned Counsel for the parties are agreed that this order will govern both of them. Pirthi Singh, complainant had averred that way back on the 30th of December, 1987, he had applied for an electiricty connection in the general category for his tubewell for purposes of the irrigation of his fields in Village Barsana and had furnished the necessary security and completed the requisite formalities. Nearly 11/2 year thereafter in June, 1989, he was required to submit a test report which he did on the 29th of June and the same was duly verified by the authorities. It is the case that the Haryana Electricity Board (hereinafter called the ''Board'') had framed a clear-cut policy to provide electricity within a period of one year of the submission of the test report but despite the same, the complainant was denied the facility, A deep grievance was made that the Board was arbitrarily giving priorities to special category applicants to the detriment of the general category. It was pointed out that the complainant had invested Rs. 30,000/- on account of the electric meter and ancilliary equipment, building of a Kotha and the boring of the tubewell etc. on the hope of energising his tubewell. The heavy loss suffered by the complainant because of his inability to irrigate his fields for want of electric connection had been highlighted. A compensation to the tune of rupees One lac was there- fore, claimed. 3. A. The Board in its written statement raised pecuniary objections to the jurisdiction and also that the complainant had no cause of action. On merits, the plea taken was that no assurance was given to the complainant for the supply of the connection immediately and further it depends upon the availability of material etc. It was further the plea that the Board had withdrawn minimum 60% connections from the general category and the priority will be given to those consumers who had submitted test reports before the 31st of March, 1989 on a seniority basis. A vague hope was extended that the connection would be given to the consumer on his turn, and that no loss had been suffered by the petitioner nor was the Board liable therefor.

In the replication filed by the complainant he reiterated his stand the parties supported their respective cases by affidavits evidence and the documentary-record.

THE District Forum in its considered order rejected the stance of the Board that the connection was being held up because of lack of material as also this plea that despite the filing of the test report on the 29th of June, 1989, the complainant''s turn had not matured. Consequently it directed the release of the electric connection to the complainant''s tubewell against test report No. 3118 dated the 29th of June, 1989, within three weeks on paying of compensation @ Rs. l00/- per day in the event of delay beyond the said period. Both the Board and the complainant have come up by way of separate appeals against this order. Mr. Ajai Lamba, the learned Counsel for the appellant-Board in First Appeal No. 346 of 1992, faced with the uphill task of assailing the considered findings of the District Forum first fell back on a somewhat hypertechnical submission. Clutching at a straw, it was contended that Section 11(1) had fixed the pecuniary jurisdiction of the District Fourm to entertain complaints where the value of goods or services of the compensation if any claimed is less than rupees One lac. It was sought to be argued that herein the complainant had sought relief for the full sum of rupees One lac and the before, this was not within the jurisdiction of the District Forum.

WE are unable to find any merit in the aforesaid sumbmission. It is true that Sub-section (1) of Section 11 is not very well drafted and is not a model of precision. However, what first meets the eye herein is that the alleged objection of the pecuniary jurisdiction was not apparently pressed at all before the District Forum. The order under appeal does not even remotely indicate that any grievance was made with regard thereto. In view of the exhaustive order of the District Forum dealing meticulously with the two specific points raised on behalf of the appellant-board it would follow that no such plea was seriously urged before it. It is other- wise elementary that objections to the very jurisdiction of the Redressal Forum have to be taken at the threshold and it is not open to a party to sit on the fence and when the matter turns against them on merits, to then revert to such technical pleas. WE are therefore, wholly disinclined to entertain such an objection at the appellate stage. Now apart from the above, Section 11(1) has been the subject-matter of consideration by other State Commissions and they have scrupulously avoided a hypertechnical construction thereof to which a reference is made hereafter. However, to put the matter in the correct perspective, it is first necessary to notice the relevant statutory provisions in extenso: - "11. Jurisdiction of the District Forum -(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation if any, claimed is less than rupees One lakh. 17. Jurisdiction of the State Commission - Subject to the other provisions of this Act, the State Commission shall have jurisdiction, - (a) to entertain- (i) complaints where the value of the goods or services and compensation; if any, claimed exceeds rupees One lakh but does not exceed rupees Ten lakhs; and"

Now a bare reading of the aforesaid two provisions when read together (as they must necessarily be) would bring forth the patent lacuna which has surfaced in the drafting of the statute. If viewed over strictly the net result would be that a complaint of the pecuniary value of rupees One lakh precisely can neither be entertained by the District Forum because the same is obviously not less than rupees One lakh and equally cannot be entertained by the State Commission either because the said sum would not exceed rupees One lakh. A hypertechnical construction would lead to a somewhat mischievious result because such a complaint of precisely One lakh would be not entertainable by either of the two Redressal Forums and would be left in the limbo. It needs no great erudition to see that this could never possibly be the intent of Parliament in enacting the statute. Inevitably, faced with such an anomaly, it is necessary to resort to the hallowed canons of harmonious construction.

IT appears to us that the matter herein is not res-lntegra and since we are entirely in agreement with the view expressed in I (1991) CPJ 455, State of M.P. & Anr. v. Sh. Tribhuvan Chaturvedi & Anr. by the learned Members of the Madhya Pradesh Commission, it would be obviously wasteful to repetitively tread the same ground again. IT amply suffices to quote the succinct enunciation of law in their own words: - "7. A bare reading of these Sections 11, 17 and 21 shows that the expression "subject to the other provisions of the Act" is common. But the words ".... less than rupees One lakh" are not happily worded. According to rule of grammatical or literal construction, if the claim is for rupees One lakh being not less than One lakh" (per Section 11), the consumer has no remedy in District Forum. And since it does not exceed One Lakh, he has no remedy to seek redressal before State Commission. This interpretation would lead to anamolies, hardship, and absurdities which are to be avoided by rule of harmonious construction. All these Sections must be read as parts of an integral whole and as being interdependent. An attempt should be made to reconcile them if it is reasonably possible to do so, so as to avoid repugnancy. In the words of Lord Denning, when a defect appears in a statute, a Judge cannot simply fold his bands and blame the draftsman, that he must supplement the written words so as to give force and life to the intention of the legislature..." "a Judge must not alter the material of which the Act is woven, but he can and should iron out the crease." On examining distinct provisions aforesaid and the pecuniary jurisdictional scheme under the Act, the legislatives" intent is ment by reading "does not exceed rupees One lakh", in place of "less than rupees One lakh" we, accordingly affirm the finding that the claim of rupees One lakh was within the pecuniary Jurisdiction of the District Forum."

WE may pointedly record that we unhesitatingly agree with the aforesaid observations and the ratio thereof. In the light of the above, the answer to the question posed at the very outset is rendered in the affirmative. It is held that the District Forum can entertain a complaint where the value of the goods or services and the compensation claimed is precisely a sum of rupees One lac only.

Repelled on his primal technical ground, Mr. Ajai Lamba had then taken up a somewhat equally hypertechnical plea that the complainant- respondent herein did not fall within the ambit of the definition of a consumer and consequently was disentitled to maintain the complaint. The belated plea was that since as yet the electricity connection had not been actually released to the complainant- respondent, he was therefore, not a consumer of electrical energy and therefore, in common parlance could not be termed as a consumer. The doctrinaire stand taken was that until and unless the electiricty current is transmitted to the respondent''s premises he would remain beyond the pale of consumer jurisdiction.

HEREIN again, it deserves highlighting afresh that the threshold objection of the complainant being not a consumer and consequently his complaint being not maintainable, does not appear to have been remotely raised before the District Forum below. The total absence of any reference thereto is proof positive that far from the objection being taken it was not urged at all before the District Forum. It is, therefore, too late in the day and at the appellate stage to raise the ghost of the complainant herein being not a consumer after his lis had been tried and adjudicated upon in full his favour on the merits of the controversy. However, apart from the above, within this jurisdiction it is concluded against the appellant Board by the recent pronouncement of this Commission in First Appeal No. 345 of 1992 [S.D.O. (operation H.S.E.B. Siwan) v. Thakur Dass of District Kaithal], decided on the 11th of December, 1992. Therein also Mr. Ajai Lamba bad raised an identical plea which was considered in depth on principle and precedent and the categoric conclusion arrived at was in the terms following:- "The view of the afore-quoted binding observations and in the light of the earlier discussion, the answer to the question posed at the very outset is rendered in the affirmative. It is held that persons in whose favour an electricity connection has been duly sanctioned by the H.S.E.B. would be consumers squarely within the ambit of its definition under the Act.

INEVITABLY in the light of the above, the second primal submission of Mr. Lamba must be rejected. However, undettered he had then argued that the District Forum had no jurisdiction to advert to the policy matters of the release of the electricity connection or the validity or otherwise of the Circulars etc. issued by the Board which are binding upon it. We regret our inability to find any inherent infirmity in the order of the District Forum on the alleged ground of its disapproval of the Board''s policy matters or circulars. It is true that there is a passing observation here and there in the order which may be construed to such an effect. However, this by itself cannot possibly invalidate the otherwise considered indepth adjudication rendered by the judgment under appeal. As would appear from the record and the order, the heart of the matter is that the Board had itself issued a service connection order in favour of the complainant after nearly 1 years on his application. It is not in dispute that in compliance with the same the complainant had incurred sizeable financial expenses to the tune of Rs. 30,000/- in completing the formalities of the test report etc. It is again common ground that the test report and the consequential action was duly verified and approved by the authorities. It could not be denied before us that both as a matter of policy and the projections of the Board an assurance had been extended out that an electricity connection would be provided within a period of one year of the submission of the test report. Herein, it would appear that even after the passage of three years there from the consumer-complainant has been driven from pillar to post and denied the electricity connection whilst a vague hope is still being dangled before him that the same would be given when according to the whims of the Board''s officials, his turn would arrive. Consequently the District Forum seems amply right in holding that once the test report had been accepted and the consumer had incurred a major financial investment in compliance thereof his seniority cannot be arbitrarily cancelled or deferred and the release of the connection cannot be denied or postponed to a person entitled for the same. Equally the District Forum was right in observing that the pretence that the complainant''s electric connection being withheld due to the lack of materials is wholly untenable in view of the admitted position that innumerable other consumers were being released connections by the Board. For the foregoing reasons, the appellant Board''s First appeal No. 346 of 1992 is patently without merit and is hereby rejected with costs which are assessed at Rs. 300/only.

THE learned Counsel for the appellant Mr. Arvind Singh in cross First Appeal No. 352 of 1992 had now inevitably laid claim to a substantial compensation for the alleged wrongful denial of the electricity connection to him. It was contended that on the findings arrived at by the District Forum the inevitable consequence would be that the aggrieved complainant had to be re-compensed both for harassment, mental agony as also for the tangible financial loss for the consequential inability to irrigate the fields for a full period of three years. It was the stand that pecuniary damage as also harassment and mental agony was consequently writ large on the face of the record when an agriculturist had been denied the where-withal to irrigate his crops tor a prolonged period. It was submitted that the learned District Forum was in error and overly hesitant in not quantifying the monetary amount for the patent loss. It was highlighted that its observation that there was not enough material to evaluate the same in terms of money or that it would not be worthwhile to venture the assessment of damage, was contrary to the principle and precedent within the consumer jurisdiction.

WE find substantial merit in the submission aforesaid. The District Forum in no uncertain terms had come to the following conclusions which we have approvingly affirmed above:- "Certainly, the action of the board in denying connection to the petitioner for the last three years is absolutely unjust and uncalled for. xx xx xx xx The grievance raised by the petitioner is just and deserves redressal by the Forum."

Even after having held as above, the District Forum had declined to give financial redress despite a firm claim of rupees One lakh therefor. This was on the sole ground that there was no direct evidence led on the quantum of damages and therefore, no material to convert the loss in terms of money or it was not worthwhile to venture the assessment of the damages. We are inclined to hold that now within the four comers of beneficient consumer jurisdiction this is contrary to the firm view taken by the National Commission as also by a number of other State Commissions, In the context of the availability of precedent, it is unnecessary to examine the matter a fresh on principle. It suffices to advert to the prominent enunciations and the law on the point. Pride of place must first go to the National Commission''s judgment in 1991, Consumer Protection Cases 302, Jai Dev Prasad Singh v. Auto Tractors Limited. The relevant observation therein merits notice in extenso:- "On the question of damages, it is, no doubt, true that the complainant has not adduced any material to show the exact extent of loss suffered by him. But even in such a case, when it is abundantly clear that tangible loss must have resulted to the complainant by reason of the defective condition of tractor supplied to him and the failure on the part of the opposite party to rectify those defects which rendered the tractor unfit for use, it is only just and proper that the Redressal Forum constituted under the Consumer Protection Act should quantify to the best of its judgment the loss that can reasonably be estimated as having been suffered by the complainant. The State Commission has only discharged this duty vested in it when it proceeded to assess and award reasonable compensation to the complainant. The direction issued by the Sate Commission that the Opposite Party should pay a sum of Rs. 10,000/by way of compensation, cannot therefore be said to be vitiated by any illegality."

What has been observed above in the context of the absence of a tractor for an agriculturist would apply virtually on all fours with regard to a similar denial of irrigation facility for his crops and fields. However, the aforesaid precedent does not stand alone and in the subsequent judgment in 1991 (1) CPR 107, Smt. Kailash Kumari v. Prop. Shankar &. Co., the National Commission reiterated its view in the following terms: - "But in a case like the present one where it is clearly made out that the petitioner was put to a great deal of "inconvenience, expense and mental suffering on account of his having been supplied a defective T.V. set and the failure on the part of the Opposite Party to setright the defects in spite of the petitioner having repeatedly made representations to the dealer and her having taken the set to the dealer for repairs on two or three occasions. It is not right to insist that the aggrieved party should adduce more concrete and specific evidence regarding the inconvenience etc., suffered by him. In circumstances such as those obtaining in the present case where it is practically impossible to adduce tangible evidence regarding the actual monetary equivalent of the inconvenience, mental suffering etc., caused to the petitioner, it is the duty of the concerned Redressal Forum, to assess and determine in the light of all the evidence available in the case what amount would reasonably go to compensate the petitioner for the inconvenience, mental agony, etc. caused to the complainant on account of the negligence of the Opposite Party."

THE aforesaid observations were inevitably followed and applied by the Rajasthan Commission in II (1992) CPJ 626, THE Rajasthan State Electricity Board v. Roshan Lal Jain, again in the context of denial of the electrical energy. In the light of the aforesaid precedents, it has necessarily to be held that the District Forum''s view that there was either not enough material to evaluate the loss in terms of money or that it would be not worthwhile to venture the assessment of damages cannot be upheld. Inevitably one has therefore, to proceed to quantify the same in terms of money against the background of the fact that the appellant had assessed the same at rupees One lakh and nothing has been brought on behalf of the respondent-board to totally repel the factum and the consequential loss. In such a factual situation, a broad assessment has to be arrived at which may be pictureously described as the rule of the thumb. We are inclined to take the view that the quantum claimed by the appellant is a tall one and it would be appropriate to take a sue from the observations of the National Commission in Jai Dev Prasad Singh v. Auto Tractors Limited (supra) and assess the same at a round figure of Rs. 10,000/only.

FIRST Appeal No. 352 of 1992 is therefore allowed in the terms above and it is directed that the respondent-board shall pay the aforesaid amount to the appellant within a period of one month from today, failing which compliance would have to be enforced under Section 27 of the Act. Appeal No. 346 dismissed with costs. Appeal No. 352 allowed. _______________