U.P.RAJYA VIDYUT PARISHAD, LUCKNOW vs GAYATRI POLY PACK

THIS is an appeal against the order dated 6th January, 1992 passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh at Lucknow by which the complaint filed by the present respondent No. 1, i.e., M/s. Gayatri Poly Pack Industries, Bhojipura (for short the Company) was accepted and the present appellants, who are Chairman and other officers of the U.P. State Electricity Board and who were Opposite Parties No. 1 to 4 in the complaint, were directed to pay Rs. 50,000/- to the Complainant as compensation. It was further ordered that in case the above amount was not paid by 15th February, 1992 the amount will carry interest @ 15% p.a. with effect from 16th February, 1992. Present Respondent Nos. 2 and 3 are General Manager, District Industrial Centre and Regional Manager, U.P. Financial Corporation respectively and they had been arrayed as Opposite Parties Nos. 5 and 6 in the complaint. No relief has been granted against them.

FEELING aggrieved by the order of the State Commission, the appellants have come before this Commission by way of this appeal. The case of the Complainant company is that it had started an Industrial Unit under the name of M/s. Gayatri Poly Pack Industries at Bhojipura Industrial Sansthan, Bareilly for manufacturing HDPE plastic bags. It had been assured that electric supply and other facilities would be made available at the above place regularly as compared to other places. As per the assurance given to them they started the production on 11.12.1986 after making necessary provisions for the funds. They however found that the supply of electricity at Bhojipura was made just for 7 to 8 hours each day and that too irregularly. According to the Complainant, its industry is totally dependent upon electricity and is being affected due to its non availability. According to it the information given by the Department in their letter issued in 1976 is that this industrial feeder was exempt from electricity cuts. The Complainant met the officers of the Electricity Department and held the Divisional Industrial Seminar. The Government directed the Electricity Department to ensure regular supply of electricity to the Bhojipura industrial feeder and that the feeder be exempted from electricity cut for a period of five years. The Complainant has further stated that whereas other two Industrial Estates namely Parsakhara and C.B. Ganj, Bareilly were supplied electricity throughout 24 hours, electricity supply to Bhojipura feeder was far less. Despite written orders, the Bhojipura Industrial Sansthan was supplied electricity just for 11 to 12 hours. According to it, its unit requires continuous supply of electricity in its industry and that the production can be taken in hand only after the heater is put on for two hours before starting manufacturing process and if electricity fails, the production comes to a halt. According to the Complainant on account of the irregular supply of electricity by the Electricity Board as well as due to their carelessness, its unit continuously sustained losses for which the Board was responsible. The Complainant assessed the loss at Rs. 6,60,466/- and Rs. 50,000/- were claimed as compensation for mental torture.

THE complainant was contested by the appellants. A preliminary objection was taken to the effect that the Complainant was not a "consumer" on the date of the filing of the complaint as vide its letter dated 18.12.1989 the Complainant had requested to disconnect the electric connection permanently and the same was done on 15th January, 1990 while the complaint was filed on 25th May, 1990. On merits it was pleaded that according to the application for electric connection, the Complainant had asked for 8 hours supply of electricity and if the electricity for more than 8 hours daily was supplied to the Bhojipura Industrial area the Complainant should have no grievance.

THE State Commission found that the Complainant company could not prove in detail as for what periods and to what extent the electricity supply was curtailed and how much loss they sustained due to this. However, it was held that due to non-supply of electricity to the Complainant company, the production in the unit must have been appreciably affected and the Complainant sustained losses. Consequently the Complainant was awarded an amount of Rs. 50,000/- as compensation. Feeling aggrieved, the officers of the Electricity Department have filed this appeal before this Commission.

BEFORE we proceed further, we mention here that there has been a delay of 25 days in the filing of this appeal. The Complainants have filed an application for condonation of delay. Considering the circumstances mentioned in that application, we condone the delay.

IT may also be mentioned here that the Complainant respondent has filed a reply to the memorandum of appeal as well as cross objections under order XLI Rule 22 of Code of Civil Procedure for the enhancement of the compensation amount. However, Order XLI Rule 22 of the Civil Procedure Code has not been made applicable to the proceedings under the Consumer Protection Act, 1986 (for short the Act). In case the Complainant was aggrieved by the order of the State Commission it ought to have filed an independent appeal. Hence the cross-objections are liable to be rejected and we order accordingly. The learned Counsel for the Appellant placed reliance upon Clause 10 of the application filed by the Respondent company for giving the electric connection. That clause when freely translated into English somewhat reads as follows : "I am fully aware that during the next few years the supplier is unable to maintain uninterrupted supply daily as per the agreement and he i.e. the supplier, might be compelled to apply cuts. I have no objection for the same and in case I suffer any loss for want of electricity the supplier would not be liable for the same". The learned Counsel for the Appellant, in our opinion rightly argued that the consumer company was fully aware of the fact that there was acute shortage of electricity in the State and the cuts were applied for meeting the demand and hence, he is now estopped from claiming damages on the ground that on account of frequent cuts in the electricity his process of manufacturing plastic bags could not be profitably carried on.

ON behalf of the respondent it was argued that there are various documents on the file to show that there was some discrimination in the supply of electricity to the Bhojipura Industrial Estate in which Estate his Unit is located in comparison with the supply to other Industrial Estates. A Consumer Forum constituted under the Act is concerned with the question as to whether there was any negligence and deficiency on the part of the Opposite Parties which has resulted in inconvenience and loss to the Complainant.

IT was further argued by the learned Counsel for the Appellant that the company had specifically wanted electricity supply only for 8 hours and respondent-company cannot say that it was not supplied electricity for 8 hours per day as asked for by it in the application for electric connection. It was pointed out by the respondent that the supply of electricity for 8 hours was not continuous one and during that period there were instances of shut down of the supply. According to the Appellant such cuts were due to unavoidable circumstances like bird hit etc. and not on account of power cuts and such cuts were for a very short duration. It is to be noted that during the whole period when electricity was supplied to the Complainant till the final disconnection in January, 1990 the Complainant did not make even a single complaint to any of the officers of the Electricity Board about any difficulty experienced by him in the enjoyment of electricity supply. Even the State Commission in its order has remarked that though the Complainant Company had stated that the complaint was made to the Department of Electricity in the month of January, 1987 but in spite of time being given the Complainant could not produce any evidence of any written complaint to the Department. The Complainant brought to our notice a copy of letter signed by the General Manager, Member Secretary-Laghu Udyog Bandhu, Bareilly to the Chief Engineer, System Control, U.P. State Electricity Board, Lucknow, a copy of which was forwarded, to Karambir Singh of M/s. Poly Pack Industries, Industrial Estate, Bhojipura. However, that letter is dated 16th April, 1990 i.e. long after the electric supply had been permanently disconnected to the concerned unit on the request of the Complainant. Thus it is clear that the Complainant did not make any complaint in its personal capacity to the concerned officers during the relevant period. The Respondent-Complainant also brought to our notice letter dated 19th October, 1989 written by the office of the Chief Zonal Engineer, U.P. State Electricity Board, Bareilly to Chief Engineer (SO), U.P. State Electricity Board, Lucknow. Its copy was also forwarded to K.B. Singh, General Secretary, Bhojipura Industrial Estate with reference to his letter dated 18th October, 1989. However, that letter does not show that Karambir Singh had made any complaint about the irregular supply of electricity during 8 hours to his unit.

FURTHER , there is nothing on the file to show that during the agreed period of 8 hours during which electricity was to be supplied to the Complainant for what periods the electricity supply was shut down. The State Commission also held that the Complainant company could not prove in detail as for what periods and to what extent the supply was curtailed and how much loss it sustained due to it. Surprisingly enough the Commission held that due to non-supply of electricity, the Complainant''s unit was appreciably affected and it sustained losses. Thus Rs. 50,000/- in lump sum was awarded as compensation. We are of the opinion that without proper evidence on the file it is difficult to assess the alleged loss said to have been suffered by the Complainant. The Complainant has of course filed some assessment orders of the Income-tax Officers to show that his unit has suffered losses. A unit can suffer loss due to many reasons i.e., mis-management, want of funds etc. and not necessarily due to electricity cuts.

IT would not be out of place to mention herein that the Complainant first applied for connection of 40 HP. Later on in January, 1987 he got it enhanced by 25 HP. Before setting up an industry the Complainant must have seen the position of supply of electricity to the Bhojipura Industrial Estate. Thereafter, he must have applied for the electricity connection. Later on, as noticed above, he got the load enhanced. If the supply of electricity was irregular it is not understood why the Complainant got his load enhanced soon after the original sanction of the load. For the reasons given above we are of the opinion that there is no material on the file to hold that the Complainant company suffered losses due to any deficiency in the supply of the electricity nor was proper data produced for estimating the loss. Hence we accept the present appeal and set aside the impugned order and dismiss the complaint filed by the Respondent Company. In the circumstances of the case we leave the parties to bear their own costs.