ORDER
B.K. Tamini, Member
1. Petitioners were the ‘opposite-party’ before the District Forum where the respondents had filed a complaint alleging deficiency in service on the par t of the petitioners Bihar State Electric Board and others.
2. Briefly stated, the facts of the case are that the second respondent, who is wife of the first respondent, owns a building which was let out to the first respondent-complainant (who is her husband as well) where a “Susruta Surgical Clinic” was started by the first respondent-complainant. As per the report and is not disputed, the complainants had two commercial connections in the said clinic. In the complaint, allegations were made that the petitioner Nos. 4 and 5 deliberately and maliciously were supplying electricity with voltage fluctuation resulting in damage to the CCTV belonging to the complainants. This happened because the complainants did not oblige the respondent Nos. 4 and 5 by way of illegal gratification. This voltage fluctuation resulted in damage to the CCTVs of the Endoscopic unit for which the respondent-complainant had to buy another set as this old equipment was completely burnt and had to spend Rs. 4,00,000 for the replacement. Thus alleging deficiency on the part of the petitioners, the respondent-complainant filed a complaint with following prayers:
(i) The opposite party Nos. 4 and 5 namely, Sri T.N. Sinha and Sri B.K. Sinha respectively, be directed to make payment of Rs. 4,00,000 (Four lacs) as the cost of replacement of Medical Electronics Equipment Endoscopic Accessories–Olympus OES Video System Standard Set, Model CTV-S-5 with accessories after previous one Olympus OES Medical TV. System Model CTV-S-4 was burnt due to sudden voltage fluctuations, the services rendered by them being defective and negligent.
(ii) The opposite party Nos. 4 and 5 be further directed to make payment of Rs. 50,000 (fifty thousand) as compensation for mental agony and physical harassment caused to the complainant-petitioners at their hands (O.P. Nos. 4 and 5).
(iii) The opposite parties 4 and 5 be also directed to make payment of Rs. 40,000 (forty thousand) to the complainant-petitioners as to cost of litigation which the complainant-petitioners had to prosecute due to their (O.P. Nos. 4 and 5) negligent and deliberate act of omission and commission.
3. It is in these circumstances a complaint was filed before the District Forum where the matter was contested. The District Forum, after hearing the parties and perusing the material on record, directed the respondent-opposite party Nos. 4 and 5 namely Shri T.N. Sinha, Electric Executive Engineer and Shri B.K. Sinha, Assistant Electric Engineer to pay Rs. 75,000 each to the complainants along with cost of Rs. 2,000. The petitioners filed an appeal before the State Commission which was also contested by the respondent-complainants and the State Commission after hearing the parties, modified the order to the extent, that all the opposite parties jointly and separately were held liable to pay Rs. 1,50,000 to the complainants along with cost of Rs. 2,000. Hence this revision petition.
4. We heard the learned Counsel for the parties at considerable length and also perused the material on record. We are not going into the question of liability of the petitioners 4 and 5 for the malicious act or otherwise, for the simple reason that State Commission has not really held them guilty of this and to that extent order of the District Forum is modified.
5. The issue before us thus would be, whether the complainants were drawing more power than the sanctioned load? Secondly, whether any equipment was affected/damaged by voltage fluctuation?
6. After perusing the material on record, we find that on three separate occasions inspection of the premises of the complainants were carried out. For the first time it was carried out on 25.3.1998 when against of sanctioned load of 2.72 KW and 9.20 KW (a load of almost 12 KW) the total load based on the details given in the report dated 25.3.1998, detailing the type of equipments, the ‘load’ was found to be 18.39 KW which unquestionably is a load almost 50% more than the sanctioned load, it is based on this that a bill was prepared, which was subsequently revised on representation by the complainants and which was also paid.
7. On the request of the complainants, a second inspection of the premises was carried out by an Inter Departmental Committee to which the complainant was also a signatory. This inspection was carried out on 5.8.1998 and this Committee found that against a load of 2.72 KW the total load was found to be 22.10 KW and in respect of the second connection, against a sanctioned load of 9.20 KW, the total installed load was found to be 19.176 KW. Thus, in all, against a total sanctioned load of 12 KWs, the total load of all the equipments in the clinic was found to be more than 41 KW which is more than 300% of the sanctioned load. The complaint was filed some time in 1999 and order of the District Forum was passed on 25.7.2001. During the pendency of the complaint before the District Forum, another inspection was carried out by the petitioners on 28.8.2000, by a different set of Officers and as per their report on record (at Pages 146-148 of the paper book) the total load of the various equipment and other light material was found to be 54.83 KW against sanctioned load of 3 KW and a Toad’ of 38.17 KW against sanctioned load of 10 KW in respect of the second connection. Thus as per the last report on record, against a sanctioned load of 13 KW, the load of all the equipments in the clinic was 93 KW which is more than seven time of the sanctioned load. If in these circumstances, the enhanced bill was issued, we find no deficiency in service on the part of the petitioners.
8. We are unable to appreciate the plea advanced by the learned Counsel for the respondent-complainants, that while all these reports specially the second and third report are not challenged, but it is nowhere stated by the petitioners that the complainants were using all the equipments at the same time. In our view it is not the case of the complainant, that he was not using all the equipments installed in the clinic. Even if at a given time 50% of the equipment was being used, then as per second report, he was still using almost double the sanctioned load of 12 KWs, not to say about the third report, where against the sanctioned load of 13 KW, the total load of all the equipment was 93 KW and in that context we find that even if 50% of the equipment was being used, we leave the calculation to the imagination to the respondent-complainants. We are in no doubt that the complainants were grossly misusing the power connection given to them and, in order to save them, and perhaps relying upon maxin “findings is best forward defence”, made allegations against the petitioners 4 and 5. Since the State Commission has settled the issue against these two officers, in this view we are not going in this question at this stage.
9. It is the case of the complainants that since the demand of the illegal gratification of respondent Nos. 4 and 5 was not being made, they caused voltage fluctuation resulting in damage to his CCTVs for which State Commission like the complainants relied upon the report of J. Mitra & Company who have observed “checked and found CTV unit has gone defective due to sudden voltage fluctuations and spikes”. This report is not proved either by producing the person who wrote this or by way of any affidavit in support of the said allegation. The respondent-complainants also relied upon the letter written by the State Minister of Energy directing to the Chief Engineer PESU, Patna to instal one more transformer. There is nothing on record whether the complainants, whose clinic the Hon’ble Minister is alleged to have visited, was also told that they were already overdrawing the energy i.e. more than the sanctioned load? In our view the State Commission was in error in holding the petitioner deficient, by merely relying upon the paper, which could easily be obtained by the complainants, who would be influential enough–being Doctors. Hence in our view the order of the State Commission, relying upon those documents and also the letter of the Minister directing PSEU to instal another transformer cannot be sustained for the reasons mentioned earlier, with the observation that an unproved document of any supplier, who would be more interested in supplying a new equipment in furtherance of his business, and without any evidence has no legs to stand on in the eyes of law. We will not like to say any thing on the letter written by Minister for the reasons already mentioned earlier.
10. It is common knowledge that if the whole of the wiring and supply is designed to take a certain load and if it is overdrawn it is bound to result in fluctuation, as is happening in day-in and day-out with many citizens of the country including Delhi. There is sufficient evidence on record that the complainants had installed equipment with far greater load than the sanctioned load. Even if they were using 50% of the counted/installed load, as stated by the two Committees, they were still violating the law as also causing themselves an injury as a result of fluctuation, concomitant to overdrawal of energy by the equipments. In any case, other than the self serving report of an equipment supplier, there is no evidence on record, that there was any evidence led on the point of voltage fluctuation by the complainants.
11. It may be germane or otherwise to mention that no material is on record that the equipment said to have been damaged on account of alleged fluctuation, was indeed with the complainant. We have carefully gone through the material on record, specially the three inspection reports, which enumerates the type of equipment and its load fact or CCTV for endoscope is not referred to anywhere.
12. Learned Counsel of the petitioners has also drawn our attention to the Tariff Notification of Bihar State Electricity Board, Patna dated 23rd June, 1993. Clause 9 of this reason as follows:
9. Unless otherwise provided specifically in the agreement entered into with the consumer, the Board shall in no case, have any liability for any compensation, whatsoever, to him on account of failure of supply/ quality of electrical energy.
13. We have gone through this provision carefully and find that in view of the discussion above we will refrain from making any observation on this. The learned Counsel for the petitioners has also drawn our attention to a judgment of this Commission in the case of R.R. Gopal @ R. Rajagopal v. The Chairman, Tamil Nadu Electricity Board passed in FA 64/1993 vide this Commission’s order dated 3rd January, 1996 which reads as follows:
14. Intentional is doing for a purpose with an ultimate aim. The intentional act is the natural consequence of something consciously done. The Legislature by using the words “deficiency” and “negligence” clearly intended that the remedy for intentional malicious acts are outside the jurisdiction of Consumer Forums under the Act. What the Legislature intended to be done or not to be done can only be legitimately ascertained from what it has chosen to enact, either in express words or by reasonable and necessary implications. In this case, the complainant says that “it was not negligence, it was not delinquency of duty, it was not ruthlessness in rectifying the cable fault. But it was cold-blooded victimization motivated by sheer malice, vengeance and oppressive attitude”. This type of complaints are not to be considered and decided by the Consumer Forums as the negligence and intentions are contradictory terms, in fact negligence is the ante-thesis of intention and so intention is not an element of negligence. The reliefs which could be granted under Section 4(1)(d) is solely dependent on the establishment of the negligence in the performance of deficiency in service.
14. Since in the present instance the State Commission has set aside the allegation relating to fluctuation and has dealt with deficiency in service, in view of which we think that Consumer Forums have the jurisdiction to entertain this case.
15. Respondent/complainant in his written submissions has relied upon the judgment of the Hon’ble Supreme Court in L.D.A. v. M.K. Gupta III on the point of involvement of petitioners 4 and 5 in the case. It needs to be appreciated that State Commission has exonerated them for the reasons given in the order and respondent has not filed any appeal against the impugned order. Hence, it has become final, qua the respondent, in view of which, he cannot (re)agitate the issue before us. For the respondent, it is a closed chapter.
16. Learned Counsel for the petitioner has also drawn our attention to the judgment of the Patna High Court in the case of Usha Beltron Ltd. v. Bihar State Electricity Board and Ors. in C.W.J.C. No. 223 of 2000(R) decided on 27.1.2000 in which it held:
7. Moreover, in the case of Shiv Shambhu Hard Coke v. Bihar State Electricity Board and Ors. (1999) 2 PLJR 665, a Bench of this Court, while considering a similar question regarding disconnection of electric supply under Clause 16.9 of the Tariff, has held that when the consumer consumed electricity beyond the sanctioned load, it will amount to theft of electricity and for that reason disconnection of electric supply by the Board without notice to the consumer cannot be violative of Article 14 of the Constitution and the principle of natural justice does not apply.
17. In view of the discussion above, we refrain from stating anything on this point.
18. In view of the aforementioned discussion, we are unable to sustain the order passed by the State Commission. Revision petition is allowed. The orders of lower Forums are set-aside and complaint is dismissed.
19. In the peculiar facts of the case, parties are left to bear their own costs.