KUMAR TEXTILES PVT. LTD. vs TAMIL NADU ELECTRICITY BOARD

COMPLAINANT, Sree Kumar Textiles (P) Ltd. has filed this complaint alleging deficiency in service on the part of the opposite parties, The Tamil Nadu Electricity Board & Others.

SHORN of frills, brief facts of the case are that the complainant Textile unit had a 500 KVA three-phase electricity supply connection from the oppsosite party. There was a power break down on 3.7.1995 - which was restored on 4.7.1995 but only on two-phase power supply which was not adequate to run the complainant''s unit. Complaint of this inadequacy was made to the opposite parties on 5.7.1995 and afterwards. Three-phase connection was restored very briefly on 21.7.1995 but again on account of tripping, on account of some fault recurrence, the third phase was again lost. It is specifically stated that the fault was not deliberately repaired on account of political consideration. When despite repeated requests, several meetings with the opposite parties, and pointing out specifically nature and place of this fault when nothing was happening and labour was getting restive, three separate writs were filed before the High Court on whose specific order three-phase connection was restored only on 24.8.1995, thus, causing huge losses to the complainant unit on account of continued non-supply of three-phase electricity for 52 days, which is a clear case of deficiency which resulted in closure of the unit, loss of production, loss of face in the market when they could not honour their commitment, wages paid to the labour during the closure period and continued to pay minimum charges of electricity on demand. On all these grounds alleging deficiency in service this complaint has been filed claiming Rs. 44,51,750/- along with interest @ 20% p.a. Break up is as follows : With reference to the tangible loss for which Rs. 10 lakhs is claimed the complainant submits that the complainant could not honour its commitment to the parties as promised due to loss of production and hence the reputation of the complainant mill is lost. It can be clearly seen from the yarn parties'' letter dated 20th July, 1995. Opposite parties, upon notices, have filed their common written version and have denied that fault was not deliberately repaired. it is also denied that the factory was not functioning as the electricity was continuing to be consumed. Initial fault was repaired the very next day, factory got started. Third phase was also restored on 20.7.1995 but it tripped on 21.7.1995, on account of some ''undetectable technical difficulties''. Best efforts were always made to rectify the fault but as most of the lines pass through difficult and remote areas - it was not easy to detect the fault. The complainant could have continued to use the generator as the cost of production was coming to Rs. 2.83 per unit against Rs. 2.78 per unit cost to the opposite party. There has been no deficiency on the part of opposite parties. Amount of compensation claimed is on high side as also in any case, minimum charges have to be paid even if no electricity is consumed for any reason whatever. There is no merit in the complaint hence need to be dismissed with cost.

Rejoinder was filed by the complainant rebutting all the points raised in the written version and reiterating all what was said in the complaint. One affidavit each was filed by way of evidence.

WE heard the parties at length. Udisputed facts of the case are that under an agreement between the parties, the complainant had a 500 KVA three-phase connection from the oppsoite party. This supply was disrupted from 3.7.1995 till 21.7.1995. On 21.7.1995 after a brief spell of three-phase supply of electricity, the restored three-phase line again tripped. It is also not disputed that after initial breakdown on 3.7.1995, power supply was restored to the opposite party the very next day but only on two-phases, which is never enough to run heavy machinery like that of a textile unit. Allegation of deficiency and resultant losses relate to non-supply of three-phase electricity. Certain preliminary objections were also taken by the opposite party. We deal with them one by one.

FIRSTLY, the complainant cannot be adjudicated by the Commission as it does not fall under Section 14(1) of the CPA. We are afraid that there has been no proper appreciation of the section by the opposite parties. This section deals with the direction or reliefs which can be granted. Jurisdiction to adjudicate is determined by Sections 2(1)(d)(i) and (ii) and Section 2(O). There is no dispute that O.P. was rendering service to the complainant and there was allegation of deficiency by way of not supplying electricity as per terms of the agreement. There is no disputing the fact that supply of power was under an agreement and admittedly the complainant was without proper supply of power. Deficiency is writ large on the face of it which brings it within the jurisdiction of a Consumer Court. It has also been stated that the complainant having failed to claim any relief for damages in their earlier proceedings cannot claim the same relief by way of separate proceedings. In our view there is a clear misreading of the record. Before the High Court even though not specifically mentioned by opposite party - relief sought by the writ petitioners was to grant interim direction directing the respondents to forthwith restore the three-phase power supply .... whereas before us relief/compensation is sought for being deficient in rendering service. In no way the two clash estopping the complaint to seek relief before a Consumer Forum. We see no merit in the preliminary objections taken by the opposite parties and are rejected. Coming to the merits of the case while it is the case of the complainant that as early as on 10.7.1995, the complainant wrote a letter to the 1st opposite party informing him that the complainant has noticed "that one of the jumpers is kept open in our line...." but no cognizance of this was taken. It is amazing that how cavalier a monopoly supplier could be! In the written version filed by the opposite parties the above has been denied in following terms: "The other allegations that one of the jumpers in one of the poles of the complainant line was deliberately cut open and there was three-phase power supply to all other consumers except to the complainant mill are false."

It is clear that the receipt of this letter has never been denied. The opposite parties perhaps forgot that in the counter affidavit filed before the High Court of Madras in para 6, this is what they had to say: "The petitioner''s telegram dated 8.7.1995 was received, only on 10.7.1995. Though every effort to restore the power supply was taken from that date, but no visible fault could be located till 18.7.1995 and it was observed on 19.7.1995 that one of the jumpers at the cut point taking off to the petitioners premises has snapped probably due to intermittent fault not visible to the normal inspection." [Emphasis supplied]

HERE there is a clear admission of two points which have been denied in the written version filed before us and they are firstly, that communication of 10.7.1995 was received by the opposite parties, and secondly it is by addressing the fault mentioned in the communication that three-phase supply was restored on 21.7.1995 albeit very briefly. One is at a loss to appreciate as to what prevented the opposite parties to react immediately on the possible fault line indicated by the complainant on 10.7.1995. During the second phase on non-supply of the third phase - the reason espoused by the opposite party is that this was on account of undetectable and invisible technical difficulty in the transmission line from the pole of the complainant Mill. We have very carefully gone through the whole material on record but our combing of the material has not thrown even remotely any hint, as to how finally what was done to restore the ''third phase'' after detecting the so-called ''undetectable and invisible technical difficulty''. Nothing has been shown to us or brought on record by the O.Ps. to make us wise as to how the undetectable became ''detectable and ''invisible'' ''visible'' after getting a rap on their knuckles from the High Court. Either it was a case of rank inefficiency - deliberate or otherwise-or it was a case deliberately harming the complainant by keeping him in a semi-satisfied condition by way of supplying electricity only on two-phases. Hon''ble High Court while disposing of this writ petition vide its judgment dated 22.8.1995 had made the following observation : "Learned Counsel for the respondent Board stated that along the 1.5 k.m. of power lines along which power supply has not been restored so far, there are 22 poles and 23 spans Inspection and testing of lines that distance cannot reasonably require 15 days'' time. The failure on the part of the respondent Board to restore supply even after holding out the promise in the counter affidavit that supply will be restored at the earliest possible time, lends considerable support to the allegations made in the affidavit that the petitioner has been deliberately singled out for hostile treatment."

WE are also unable to appreciate the plea of the opposite party that they showed their bona fides by granting licence/permission to operate the Generator. Opposite party is running an Electricity Board charged with the responsibility of supplying electricity and not granting licences to run a generator. In any case generator at best is perceived, and in view rightly so, as a ''back-up'' rather than the main source of supply of energy. Generators are used to meet an unforeseen contingency for a brief period and not to cover the inefficient conduct of an Electricity Board in not detecting and supplying electricity in three phases in this case. It is of no concern to the complainant that LT customers were supplied with the electricity. Admittedly, the complainant is an H.T. customer - by no stretch of imagination can he be kept deprived of his legitimate three-phase electric connection for 52 days under a specious plea that fault was of ''undetectable'' and ''invisible'' nature. At the cost of repetition, one is constrained to observe that nothing has been brought on record to show as to with what special vision the ''invisible'' defect became visible after the High Court threatened them with contempt of Court proceedings in case three-phase power supply is not restored by 28.8.1995. It was restored on 24.8.1995. In the absence of the said details, we are bound to conclude that the explanation put forth by the opposite party for delay in restoring three-phase power supply is dubious and meant to confound this Commission. We reject this explanation with the contempt it deserves. In view of above we have no hesitation in arriving at the conclusion that this is a clear case of deficiency in rendering service by the opposite party to the complainant.

While the complainant has claimed Rs. 44,51,750/- along with interest but the complainant failed to give proof of loss of production, intangible and tangible losses. We also did not get any reply or details of loss of profit on account of loss of production. However, the complainant shall be entitled to loss on account of wages paid to the workers for 15 days for which factory had to stop production amounting to Rs. 1,75,000/- which is not denied by the opposite party and details of which are on record. We are inclined to grant Rs. 84,000/- collected by TNEB despite non-supply of three-phase power. We see no merit in the plea taken by the opposite party that "with reference to the charges towards KVA Demand of Rs. 84,000/- claimed by the opposite parties it is submitted that Clause 8 of the Agreement provides for minimum amount to be paid by the consumer every month even if no electricity is consumed for any reason whatsoever and also if the charges for electricity actually consumed are less than the minimum charges. Clause 8 of the agreement reads as follows: "The consumer agrees to pay minimum charges every month as prescribed in the tariffs, and terms and conditions of supply even if no electricity is consumed for any reason whatsoever and also if the charges for electricity actually consumed are less than minimum charges. The minimum shall be payable even if electricity is not consumed because of disconnection of supply by the Board due to non-payment of electricity charges, pilferage or other malpractices or for any other valid reason."

PLAIN reading of this clause makes it clear ''no electricity is consumed........'' Reading the clause as a whole leaves us in no doubt that it does not cover the contingency of non-supply of power by the supplier in this case TNEB. This provision exists to cover the cost of the supplier for laying the line and other items to meet the specific demand of a unit. It is to preclude the possibility of under use of agreed-to power load. This is not the case here. Here was a case of non-supply of power for 52 days. Authors of the agreements could not have imagined in their wildest dreams that such a contingency could also arise when TNEB shall be unable to restore breakdown for 52 days under a totally unacceptable plea of undetectable and invisible technical difficulty. This demand in our view is totally unjustified and has to be returned in the facts and circumstances of the case. It cannot be anybody''s case that there was no loss of production and resultant loss. Balance-sheet for the year shows reduction of profit from over Rs. 14 lakhs in year ending 1995 to only Rs. 6.55 lakhs during the year ending 1996. In our view non-supply of proper electricity for 52 days during which period unit could not be run properly, compensation of Rs. 2 lakhs would appear to be just and equitable. Complainant shall also be entitled to Rs. 12,500/- being the difference in the cost of power due to use of generator. This has not been specifically denied by the opposite parties.

AS a result the complaint is allowed and the O.P. is direct to pay, in all, Rs. 4,71,500/- along with interest @ 10% from the date of filing the complainant, i.e., 15.3.1996 along with cost of litigation which we fix at Rs. 20,000/-. All these amounts shall be paid within six weeks of the passing of their order failing which rate of interest shall go upto 12% p.a. Complaint allowed.