U.P. STATE ELECTRICITY BOARD vs SHEO BHAROSHE

THIS is an appeal against the judgment and order dated 11.7.1996 passed by District Consumer Forum, Mirzapur in Complaint Case No. 129/1993.

THE complainant Sheo Bharoshe of Village Dugauli of District Mirzapur had an Electric Connection No. 007036 and he was an industrial consumer of the opposite party-U.P. State Electricity Board. THE complainant has been paying his electricity dues in time. THE electricity provided under the connection was being used for running the flour mill (Aatta Chakki). THE line running to the campus of the complainant from the transformer to the pole was loosely connected by the opposite parties and due to this sparking often took place. On 18.3.1993 two wires broke out and fell on earth due to the sparking as a result of high velocity of wind. THE complainant''s employees re-connected the wire on 19.4.1993 in a loose manner. THE information of this was given to the Igna feeder staff on 19.4.1993 but the electricity department did not take action and the wires remained loose. On 4.5.1993 the wind was blowing with high velocity but as per rules of the U.P. State Electricity Board, the electricity was not disconnected with the result that, because of this negligence, the loosely connected LT line wires came into contact with the stay wire and heavy sparking took place and his Aatta Chakki caught fire. THE complainant sustained loss of property amounting to Rs. 95,000/-. A claim was, therefore, made through the complaint in question before the District Consumer Forum, Mirzapur. The opposite parties contested the complaint case before the Forum that no information or complaint was made by the complainant as alleged by him on 19.4.1993. The stay wire is made of such material that if it comes in contact with the phase wire, it will become red hot and will utmost get melted and cannot created fire due to sparking. The sparking could not have travelled from the wires to the premises of the Aatta Chakki of the complainant. The location of the Aatta Chakki and the distance from the stay wire is such that the occurrence of the incidence was not possible. In case of a short circuit, the fuse wire fixed on the phase wire would be melted but in this case this had not happened. It is quite possible that there must have been some defect in the complainant''s premises in the internal wiring or some improper insulation or use of material of sub-standard quality and that could have been the reason for the breaking out of the fire. The complainant''s Aatta Chakki is situated at a distance of 50 metres from the stay wire and hence the sparking if any took place could not have reached the factory. The complainant was getting supply from Hergarh feeder where the system of automatic tripping starts and in case of any short circuit and the sparking at any place the supply is automatically tripped or terminated. The opposite party is not responsible for this type of loss. The complainant used the electric load more than the sanctioned load and this could have been the reason for not lodging the FIR as well. The distance between the phase wire and the stay wire was such that the safety precaution had been taken. The wires were not loose and no report was lodged in regard to break down of wires with the opposite party and the fire could have broken out because of the negligence of the complainant.

It was also stated in the written statement alongwith affidavit filed by the opposite party that the case was not triable by the District Forum and is not related to supply of defective goods or deficiency of service of any kind. The case was in the nature of damage suit which is not maintainable in the Consumer Court. The complainant is an industrial consumer and does not come in the ambit of the Consumer Protection Act.

THE District Consumer Forum, after hearing the case, allowed the complaint and ordered that an amount of Rs. 98,000/- be paid to the complainant within four months. Aggrieved against this order of the learned District Forum, the appellant has come in appeal. In the memo of appeal the points raised before the District Consumer Forum in the written statement have been reiterated. In addition it has been alleged that there is no mention of the FIR in the memo of complaint and no evidence was produced by the complainant to establish that the complaint regarding the loose wire was made by him on 18.4.1993 and 19.4.1993 or at any other time prior to the occurrence of incidence. The District Consumer Forum did not consider the points raised in the written statement and passed a non-speaking and incorrect order. It was necessary to conduct a thorough investigation. Oral and third party evidence was also necessary. Spot inspection was also necessary which was not done. The District Forum has entertained the complaint which was beyond its purview as the case involved complicated and complex questions of facts. The complainant has tried to build up the entire case with the allegation that the opposite parties were informed of the condition of the wire on 19.4.1993 and later on the wires were deliberately connected loosely, which resulted into the fire incident on 4.5.1993. The District Forum ought to have ensured whether the opposite parties were aware of the poor condition of the wires and whether the information was given to them or not. It was also stated in the grounds of appeal that the Fire Brigade has assessed the loss amount in to Rs. 30,000/- only instead of the loss accepted by the Forum as Rs. 98,000/-.

WE have gone through the evidence on record which includes the complaint, written statement and the affidavits filed by the two parties alongwith other records. WE have also heard the arguments of the learned Counsel for the appellant, Mr. Deepak Mehrotra and the learned Counsel for the complainant Mr. M.H. Khan. It is argued by the appellant''s Counsel that the wire was at a distance of 50 metres from the Aatta Chakki premises and is in such a position that sparking, if any could not have resulted into the fire in the premises of the complainant. The report could have been sent to the Electrical Inspector under Section 33 of the Indian Electricity Act but the same was not done. The facts contained in the written statement were not discussed by the Forum below and the report of the Fire Brigade indicates that four others are also named in the report who are reported to be the owner of the property reported to have been damaged/lost as a result of fire. It is also argued that the U.P. State Electricity Board was not liable for the loss. On the other hand, the learned Counsel for the respondent has argued that the constant sparking in the high velocity wind may cause fire. It was admitted that loss of property of five persons was supported by the Lekhpal and the Fire Brigade. But we find that the report of Lekhpal is not on record. From the perusal of the report of Fire Officer dated 12.5.1993, it is clear that in addition to the complainant four others are involved and only a loss of Rs. 30,000/- has been reported. Therefore, in the absence of any other document or evidence, it is difficult to come to any conclusion in regard to quantum of loss. The learned Counsel for the respondent has also argued that the distance between the place of sparking and the premises, where the loss was reported to have been occurred, was not 50 metres but only 5-7 metres. But in the normal circumstances, even if the distance is expected to be 5-7 metres, the sparking will not cause fire. He has also argued that the loss reported as a result of occurrence of fire, was not rebutted by the UPSEB. The U.P. State Electricity Board could have connected the wires on their own even if the report was not made and since the fire broke down because of the negligence of the appellant, there was deficiency of service on their part. From the perusal of records and evidence, we find that the complainant has claimed damages for the loss occurred as a result of breaking out of the fire. It is not possible for the Consumer Forum or State Commission to determine as to how the sparking of the wire could have caused loss to the property situated in the premises of the complainant. Claims and counter-claims filed in the form of complaint, written statement and affidavits etc. can be decided only after a thorough examination of the spot in addition to other relevant evidence which is not on record. It cannot be decided in a summary proceeding supposed to have been adjudicated upon by the Consumer Courts. Deficiency of service has not been clearly brought out and the judgment of the learned District Forum has not dealt with the detailed aspects of the matter. It can only be dealt with by a proper Civil Court. In the circumstances the proper course of action could have been to file a civil suit of damages and Consumer Court is certainly not the Forum for decision of such cases where complicated questions of facts and detailed spot inspection regarding a number of technical grounds are involved.

IN view of the aforesaid discussion, the judgment and order of the learned District Forum is not sustainable and the complainant should have approached the proper Court. Order

THE appeal is decided accordingly and the judgment and order passed by the District Consumer Forum, Mirzapur in Complaint Case No. 129/1993 dated 11.7.1996 is set aside. THE complainant, however, will be free to move the proper Court of jurisdiction to seek relief of the alleged damages. The interim order passed in this appeal is vacated.

Let copy of this order be made available to the parties as per rules. Order set aside.