RAJANI KANTA MISHRA vs SUB-DIVISIONAL OFFICER (ELECTRICAL)

THE appeal arises out of C.D. Case No. 117/1996 disposed of by the District Forum, Ganjam, Berhampur. THE complainant in the said case is the appellant before us. His grievance is that the Orissa State Electricity Board represented by its officers, opposite parties 1 and 2 is deficient in providing service which the Board was bound to render under an agreement with the complainant. THE complainant has stated in his complaint petition that an agreement was entered into by him with the S.D.O., Electrical, Khallikote, opposite party No. 1 on 17.12.1993 for supply of electrical energy to his Lift Irrigation Point at Village Gokulapali and the pump started operating from May, 1994. His further assertion is that he had been paying the tariff regularly to the Electricity Board. THE purpose of irrigation was to raise an orchard covering three acres of land where he had grown different varieties of plants and trees at an expense of Rs. 3,30,000/-. Unfortunately the transformer from where the power was being supplied to the Lift Irrigation Project was destroyed by a lightning stroke on 12.5.1995. He approached the Electricity Board on several occasions and also issued a registered notice to the opposite parties on 23.1.1996 to repair/replace the transformer and restore power supply to his L.I. Point, but no action was taken by the opposite parties as a consequence of which he suffered a loss to the extent of Rs. 2,69,325/- which he claims to be awarded in his favour as compensation.

THE opposite parties filed their version jointly and resisted the claim. THEir case is that the breakage of the transformer was due to lightning stroke and the damage was to such an extent that it was beyond the scope of repair. THE only alternative available for restoration of power was to replace the transformer by a new one and for doing the same there was an official delay by following the procedures provided for the same. Admittedly the replacement of the transformer and restoration of power has been made on 25.3.1996. In this back ground their contention is that there has been no deficiency in service on the part of the Electricity Board, for the delay in restoration of the power. The complainant filed three affidavits in support of his claim that he sustained loss to the extent of about Rs. 2,50,000/-. He also relied upon some decisions decided by some State Commissions that non-supply of electricity due to defect in the transformer amounts to deficiency in service. The opposite parties relied on several provisions of the Orissa State Electricity Board (General Conditions of Supply) Regulation, 1981 and some provisions of the Electricity (Supply) Act, 1948 and contended that failure to supply electricity due to force majeure which is beyond their control would not amount to deficiency in service and therefore they are not liable to pay any compensation.

The District Forum after hearing both parties held that the opposite parties before the Forum are not guilty of any deficiency in service or negligence and therefore the complainant is not entitled to any compensation as claimed by him. Simultaneously the District Forum observed that if so advised the complainant may have his remedy in the Civil Court having jurisdiction. In the result, the complaint petition was dismissed against which the present appeal has been filed.

IT is the admitted fact that there was an agreement between the complainant and the Electricity Board for supply of power to his Lift Irrigation Point for irrigation of his land. IT is also admitted by both parties that the transformer got damaged by a lightning stroke on 12.5.1995 where after there was disruption in the supply of power. IT is also admitted that the restoration of power could be possible on 25.3.1996. Thus there has been a delay of about eleven months in restoration of power. IT is not disputed that if supply of power is disrupted due to any force majeure, the Electricity Board cannot be found fault with. But reasonable care and attention was required to be given for restoration of power without which irrigation of the land would be seriously affected. The opposite parties have not come forward with a case except saying that there was delay in following the official procedures for replacement of the transformer. The present respondents have not given any further details as to at what stage the delay was and as to whether such delay is reasonable. In normal conditions if a party is duty bound to perform his part of duty pursuant to the terms of a contract and there was any contract and force majeur prevented him to perform the same, it is his duty to make all efforts to get over the difficulties so that it would not cause any harassment or loss to the other party. In the present case the replacement of a transformer would obviously take some time depending on its availability and depending upon various other factors about which nothing has been said in the show-cause filed by the opposite parties. IT was strenuously argued by Mr. B.K. Nayak, the learned Counsel appearing for the respondents that even then the complainant would not be entitled to any compensation unless he proves the actual loss sustained by him for non-supply of power during the aforesaid period. His further contention was that some arrears were also outstanding against the complainant which in the decision of the District Forum has been mentioned to be about Rs. 77.27 p. We are not considering the latter ground as stated by Mr. Nayak for the reason that restoration of power was not due to non-payment of the outstanding dues specially when the outstanding dues was almost a negligible amount. So far as the other contention referred to above by Mr. Nayak is concerned, it is true that the complainant is also guilty of not providing the details of his loss. He has merely stated in his complaint petition that he had planted various trees and plants such as cocoanut, mango, lemon, orange, guava, sapeta, lichu, jack fruit, banana, papeya and some spices trees and also had raised paddy crop in some portion of the land covering three acres. Neither the details of the plants and trees have been furnished nor as to how many trees or plants got damaged due to non-supply of water is also mentioned. Three affidavits filed in support of his claim are stereotype affidavits and do not furnish any details for quantification of the damages if any suffered by the complainant. As to the other possible plea of absence of any details which the complainant could not furnish about the number of trees and plants damaged and the extent of damages caused to the plants for non-supply of water, it can be stated that the complainant was deprived of utilising his land in raising the crops or trees for lack of water supply. It has however been argued by the learned Counsel for the respondents that if the loss or damage was to the extent as stated by the complainant he could have made alternative arrangements for irrigation of his land either by using a diesel pump for the purpose temporarily till the power was restored or engaged labourers for watering the plants. The complainant however does not offer any explanation in that behalf and merely submits that he was prepared for hiring diesel pumps but the pumps were not available in the meantime. His explanation however does not find mention in his complaint petition and it is not proved by any other document or affidavit. Examining the matter from all angles our conclusion is that the complainant must have suffered inconvenience for want of scope of either watering the plants already raised or from planting or raising further crops on the land because of non-supply of water. As already stated above eleven months of time for replacement of a transformer can be said to be inordinate delay on the part of the Electricity Board. If official procedures are too lengthy, ways and means must have been found out by the Board to restore supply of power with promptitude.

TAKING into consideration the rights and liabilities of either of the parties in the given circumstances, we assess the damage suffered by the complainant at Rs. 3,000/- (Rupees three thousand) at the rate of Rs. 1,000/- (Rupees one thousand) per acre which we direct the present respondents to pay within one month from the date of receipt of the order. It is also clarified that during the period when supply was not given from the transformer no charges shall be levied on the complainant. After restoration of power on 25.3.1996 if there are any dues outstanding against the complainant in respect of the supply of power the same may be adjusted against the compensation awarded by this Commission. In the event the awarded amount is not paid or adjusted within the time as specified above it would carry interest at the rate of 12% per annum from the date of default fill the date of payment. The appeal is disposed of with the aforesaid observations. Mrs. Mrinalini Padhi, Member-I agree. Appeal disposed of.