R. Sethumadhavan vs The Executive Engineer Operation and Maintenance Tamil Nadu Electricity Board, Assistant Executive Engineer Operation and Maintenance Tamil Nadu Electricity Board and Assistant Engineer Rural Tamil Nadu Electricity Board

A.K. Rajan, J.—This Second Appeal is filed by a consumer of electricity. The appellant herein has a service connection No.220 in

Puduppai village; he is running a rice mill, by name Sri Krishna Rice Mill. On 14.5.1987, there was an inspection by the Department. It was

informed that in a three phase connection, one phase was not functioning. Therefore, the Department presumed that there was a theft of electricity.

Hence, they calculated the loss sustained to the department as per the formula given under the Terms and Conditions of the supply of Electricity

and served notice of demand for a sum of Rs.11,623.25. The said amount was subsequently paid by the appellant herein.

Thereafter, the appellant herein filed a suit for declaration that he need not pay the amount demanded by the Department. The trial court

accepted the case and granted a decree that the consumer need not pay the amount as claimed by the department. The trial court decreed the suit

on the ground that the inspection was held on 14.5.1987 without serving notice. But, the notice of demand was served only after 15 months, i.e.,

on 23.9.1988.

On appeal, the lower appellate court reversed the findings of the trial court and dismissed the suit, which resulted the appellant herein paying the

aforesaid sum to the department. Aggrieved the plaintiff has filed this second appeal.

At the time of admission, the following substantial questions of law were formulated for consideration in this second appeal:

i) Whether the lower appellate court is right in holding that the appellant herein is liable to pay the amount of Rs.11,623.25?

ii) Whether the lower appellate court was right in interpreting the provision of the Electricity Board Terms and conditions of supply in favour of the

respondents herein?

iii) Whether lower appellate court is right in accepting the contention of the respondents herein that no prior notice need be given before the alleged

inspection of the appellant''s premises on 14.5.1987?

iv) Whether the lower appellate court is right in holding that the non inspection of the electricity meter in question for defectiveness is not fatal to the

claims of the respondents with regard to the liability of the appellant?

The learned counsel for the appellant submitted that the inspection was conducted without serving any notice. Further, though the case of the

department is that the meter was defective, and therefore, it did not record the consumption, the meter was not sent for testing. D.W.1 admits in

his cross examination that the meter was not sent for testing. D.W.1, the Assistant Executive Engineer, has further stated that every two months,

the factory would be inspected; but the inspection report for the period January 1987 to September 1988 was not marked. It is further stated that

the meter was fixed in the year 1986. From the evidence it is clear that the meter was not sent for testing.

Even D.W.2, the Engineer, who actually inspected the meter, has not stated that the supply was disconnected and the defective meter was

replaced. Therefore, there is no evidence on record to show that the meter, which was alleged to be defective, was replaced. Therefore, there is a

presumption that the meter was not defective and it continues to be recording the consumption. D.W.2, who inspected the premises on 14.5.1987,

in his evidence has stated that ""kpd; ,izg;gpy;; 3 ng!py; 1 ng!; ,a'';ftpy;iy"". He does not say anything more than that. It is not as if any contrivance

was used to record lesser consumption. Further, the meter was not sent for testing. D.W.1 says in his evidence that 14-5-1987e; njjp jhth kpd;

,izg;ig v'';f mjpfhhpfs; ghh;itapl;ljpy; 3 ng!py; 1 ng!; ntiy br;a;any vd;W brhd;dh'';f"". Therefore, it does not mean that the meter was not functioning.

It only means that in the electricity connection out of three phases one phase was not functioning. It appears that there was no supply in one of the

phases. Probably, the consumer has used some device, thereby he made the meter running when they get supply in two phases. In the absence of

any material to show that there was any mechanical device which was used to prevent the consumption of electricity, it is not possible to conclude

or presume that the consumer was using some device and thereby committed theft of electricity by preventing the meter recording the actual

consumption. There is also no evidence to show that the meter was defective. When that being the case, the department has no power to collect

the damages. In the absence of any such proof, there is no right to collect damages. Therefore, the amount demanded by way of compensation has

no basis. Therefore, the trial court''s judgment, which decreed the suit, appears to be correct, and the lower appellate court''s judgment dismissing

the suit does not appear to be legal and valid. Hence, the lower appellate court''s judgment is liable to be set aside.

The learned counsel appearing for the electricity Board has submitted that the amount already paid may be adjusted in future consumption.

Therefore, the amount paid by the consumer shall be adjusted in future consumption. The substantial questions of law are answered accordingly.

In the result, this second appeal is allowed. The judgment and decree of the lower appellate court is set aside. Consequently, connected CMP is

closed.