Dated this the 8th day of January 2004
Present
1.
Sri. Philipose Matthai - Chairman
2. Sri. H.S Subramanya - Member
3. Sri. S.D. Ukkali - Member
Case No. OP- 29/2003
Between:
M/s
Environment Support Group,
S-3, Rajashree Apartments,
#18/57, 1st Main Road, S.R.K. Gardens
Bannerghatta Road,
Bangalore 5600 041 petitioner
(By Sri. Sunil Dutt Yadav, Adv)
and
Managing
Director,
BESCOM,
K.R. Circle,
Bangalore - 560 001 Respondent
(By Sri. S.S Nagananda, Adv.)
1. The petitioner claims to be a Non Governmental Organization and functions from the address given above. This organization sent a letter dated 10th June 2003, addressed to the Consumer Advocate of the Commission. Te letter inter alia, stated as follows:
"On Monday June 2nd, a voltage spike hit out building sometime between 10:30 am and 12:30 pm. We noticed the spike when our UPS, which is connected to about 5 computers in our office, broke down with electrical sparks and loud sound. At the same time, an extension-cum-surge protector connected to the UPS also sparked and destroyed one of the computers. The surge-protector connected to the UPS also sparked and destroyed one of the computers. The surge-protector and the computer were burned and the office was full of smoke. The motherboard in the computer in the computer was completely damaged and the computer had to be replaced. The UPS was also badly damaged, although we tried to get it repaired, it is still not working properly"
The commission
considered this letter as a petition to the Commission and initiated a suo motu
case. A notice was issued to the petitioner and respondent to present their
case in the public hearing.
2. The petitioner and respondent have put in appearance and were represented
by their respective Counsels. The respondent has opposed the petition and has
filed a statement of objection denying responsibility for the incident and for
the payment of compensation for the damages alleged by the petitioner. In a
nutshell, the following are the objections:
i. The petitioner is not a registered consumer, and hence the petition is not
maintainable.
ii. The petitioner's installation is in the residential area, and he is using
it for unauthorized commercial purposes. Therefore he is not entitled to any
relief.
iii. Every installation has to be provided with a mini circuit breaker (MCB)
and Earth Leakage circuit breaker (ELCB) to protect it from surges. Damage,
if caused due to ill/non-maintenance of such protective equipments does not
entitle the petitioner any relief.
iv. The surge on 2.6.2003 was caused by a falling tree in the vicinity. There
is no negligence/lapse on the part of the respondent.
3. The petitioner
has rebutted these arguments in his rejoinder. He contends that the organization
is charitable in character and has received concessions as such under various
acts and has to be treated as such for the electricity tariff. He further contends
that the premise was equipped with protective devices and in addition UPS was
also installed which also serves as a protector against the surges. He adds
that the institution is within the definition of a consumer and has a right
to claim compensation from the license.
4. We have fully heard both the counsels and considered various issues that
were agitated before us. Sri. Sunil Dutt Yadav, learned Counsel for the petitioner
argued that the surge was the result of falling of a frond on the 11 kV line
which short circuited the 440 volts line which runs on the same pole. He stated
that there was no guard between these two lines to prevent them coming into
contact with each other following any event. He produced a copy of log sheet
maintained by the respondent to show that the surge was the result of falling
of a coconut frond. He stressed the point that the events like falling of fronds
can be anticipated and cannot be equated to 'an act of God'. He relied upon
the decision of the Hon'ble Supreme Court in the case Divisional Controller,
KSRTC v. Mahadev Shetty and another (2003 AIR SCW 3797), wherein the expression
'act of God' is explained. He also relied upon the decision of the Karnataka
State Consumer Disputes Redressal Commission, Bangalore in the case KEB v. H.S.
Sitaram (1(2000) CPJ 508), wherein it is held that a duty is cast upon the licensee
to protect supply lines from any source that may hamper, fluctuate, or cut off
power supply. He contended that Section 57 of the Electricity Act 2003 prescribes
that the Commission may specify the standards prescribed. He also pointed out
that the licensee may approach the state government for the removal of offending
tree or buildings which may interfere with the overhead lines under Section
68(5) of the Act to deal with the present case and pass orders granting relief.
5. The learned counsel for the respondent reiterated the grounds of objections
raised in his statement of objections. He contended that the petitioner is not
a registered consumer and is not entitled for any relief. He maintained that
certain obligations are cast upon the consumers and they are required to install
and maintain in good condition certain protective devices like MCB and ELCBs
to guard against any surges. He contended that the petitioner has not produced
any evidence in support of his case and that mere academic discussion will not
entail him any compensation. He requested that the petition may be dismissed
with costs.
6. We have carefully considered the various points urged before us. It is an
admitted fact that there was a surge in the 440 V supply lines due to falling
of a coconut frond on the 11kV lines which resulted into11kV lines coming into
contact with supply lines causing short circuit and a resultant surge of voltage
in the supply lines. The respondent states that the surge was due to falling
of a tree in the vicinity, which was beyond his control, and there was no negligence
or lapse on his part. The respondent indirectly attributes the event on natural
forces and an act of God. The petitioner has relied upon the case law The Divisional
Controller KSRTC v. Mahadeva Shetty & another reported in 2003 AIR SCW 3797.
In the said case the Hon'ble Supreme Court has explained the meaning of the
expression ' act of God'. The Hon'ble Court observed -
"The expression 'act of God' signifies the operation of natural forces
free from human intervention, such as lightening, storm, etc. it may include
such unexpected occurrences of nature as severe gale, snowstorms, hurricanes,
cyclones, tidal waves and the like. But every unexpected wind and storm does
not operate as an excuse from liability, if there is a reasonable possibility
of anticipating their happening. An act of God provides no excuse unless it
is so unexpected that no reasonable foresight could be presumed to anticipate
the occurrence, having regard to the conditions of time and place known to be
prevailing at. For instance, where by experience of a number of years, preventive
action can be taken. Lord Westbury defined act of God (damnum fatale in Scotch
Laws), as an occurrence, which no human foresight can provide against and of
such human prudence is not bound to recognize the possibility. It appears to
be the nearest approach to the true meaning of act of God. Lord Blancaburgh
spoke of it as "an irresistible and unsearchable providence nullifying
the human effort."
Falling of mature fronds from the coconut tree is an expected natural occurrence and an anticipated event of routine nature. It cannot be considered as an act of God. The licensee cannot simply point the accusing finer towards the Almighty and escape from liability.
7. The provisions of law relating to overhead lines may be examined in this context. Sub sections (5) and (6) of section 68 of the Electricity Act, 2003 are as follows:
"(5) Where
any tree standing or lying near an overhead line of where any structure or other
object which has been placed or has fallen near an overhead line subsequent
to the placing of such line, interrupts or interferes with, or is likely to
interrupt or interfere with, the conveyance of transmission of electricity or
the accessibility of any works, an Executive Magistrate or authority specified
by the Appropriate Government may, on the application of the licensee cause
the tree, structure or object to be removed or otherwise dealt with as he or
it thinks fit.
(6) When disposing of an application under sub section (5), an Executive Magistrate
or authority specified under that subsection shall, in the case of anuy tree
in existence before placing of the overhead line, award to the person interested
in the tree such compensation as he thinks reasonable, and such person may recover
the same from the licensee.
Explanation - For the purposes of this suction, the expression "tree"
shall be deemed to include any shrub, hedge, jungle growth or other plant"
Section 185(1) and (2) of the Electricity Act 2003 are as below:
1. Save as otherwise provided in this Act, the Indian Electricity Act 1910 (9
of 1910), the Electricity (Supply) Act, 1948, (54 of 1948) and the Electricity
Regulatory Commissions Act, 1998, (14 of 1998) are hereby repealed.
2.
(b) The provisions contained in sections 12 to 18 of the Indian Electricity
Act, 1910 (9 of 1910) and rules made there under shall have effect until the
rules under Section 67 to 69 of this act are made.
This implies that the Indian Electricity Rules, 1956 framed unde the Indian
Electricity Act 1910 are still in force, since the State Government have not
made the rules under section 68 of the Electricity Act 2003. Rule 30(1) of the
Indian Electricity Rules 1956, on general safety requirements, is as under:
" The supplier shall ensuire that all electic supply lines, wires fittings, and apparatus belinging to him or under his control which are on a consumer's premissis are in a safe condition and in all respects fit for supplying energy, and the supplier shall take due precautions to avoid danger arising on such premises from such supply lines, wires fittings and apparatus."
8. It is clear
from the above that the law places heavy responsibility on the licensee and
makes him duty bound to protect the supply lines. The licensee is expected to
take due precautions to avoid danger to the supply lines from any source. Failure
to take such precautions will certainly entail the licensee of consequential
damages. Therefore we do not accept the contention of the respondent that there
is no negligence/ lapse on his part that caused the alleged loss. The respondent
has failed to anticipate the event and consequently failed to take precautionary
measures to prevent its occurrence.
9. The respondent has raised the issue of the petitioner not being the registered
consumer. The petitioner's installation is being supplied with electricity and
that makes him a consumer under law. The argument that the installation was
not provided with safety instruments like ELCB and MCB is not supported with
any evidence. The petitioner contends that he did use the safety apparatus.
There is no reason why we should disbelieve the petitioner. The petitioner is
a NGO and is granted the status of a charitable trust under the Income Tax Act,
according to the copy of the certificate produced by the petitioner. The petitioner
has produced a certificate to this effect. Therefore we reject the plea of the
respondent that the petitioner is engaged in commercial operations and is not
entitled to any relief.
10. The petitioner has produced copies of bills relating to repair charges to
his damaged equipments. He has revised the cost of damages to Rs. 32,935/- through
his memo dated 28.8.2003. The respondent has not raised any objections to this
amount but on the contrary contended that the petitioner has made academic discussions
of his case and has not presented the facts. We do not agree with the contention
of the respondent. We feel that the respondent ought to have taken this case
more seriously, instead of making light hearted averments.
11. this is one of the many cases of frequent occurrence which could have been
avoided, if the licensee were to care for the responsibilities cast on him by
the law. Many such cases do not see the light of the day because of 'grin and
bear it' attitude of majority of consumers. It is for this anxiety that the
laws relating to the protection of life and property of the consumers of electricity,
should not remain dormant in the statute books, we took up this case suo motu.
12. In view of the discussions in the earlier paragraphs, we allow the application
before us and direct the respondent to compensate the damages to the tune of
Rs. 32,935/- within 90 days from the date of this order.
13. The petition is allowed. Ordered accordingly. The parties will bear their
own costs.
(Philipose Matthai) (H.S.
Subramanya) (S.D.
Ukkali)