O.P. No. 29/2003
Environment Support Group ...Petitioner
REJOINDER OF THE PETITIONER TO THE STATEMENT OF OBJECTIONS FILED BY THE RESPONDENT:
The Petitioner submits the following:
1. The Petitioner submits that the letter dated 10th June 2003 has been considered as an original petition and hence the objection regarding non-mentioning of the Provision, under which the present Petition is filed, is purely technical and cannot be sustained.
2. The allegation regarding non-residential use is not relevant for the adjudication of the present dispute and the petitioner reserves liberty to furnish detailed objections if and when action is initiated before an appropriate forum. Without prejudice, it is submitted that the petitioner is a charitable institution and hence the applicable electricity tariff is under the 'Domestic' category. Copies of the certificate issued under Section 12 A and 80 G of the Income Tax Act is enclosed as Annexures A and B, respectively.
3. The third objection regarding the Petitioner not being a registered consumer is not sustainable. Under the KERC EC and D code, any person who or whose installation is supplied with electricity is a registered consumer in contradistinction to any person who has executed an agreement with the License for the supply of electricity. Hence the technical objection regarding the consumer is not sustainable.
4. With respect to the allegation that safety devices do not exist or they are ill maintained are made without any basis and are mere conjectures. The Petitioner's apartment unit has an Earth Leakage Circuit Breaker (ELCB) of requisite capacity and that is properly maintained. There is an additional circuit breaker as well. Furthermore, a separate UPS that is being maintained acts as a safety device that can protect electronic equipment in case of voltage fluctuations. The extensive damage caused by the surge on 2nd of June, despite such precautions, is res ipsa loquitur.
5. The final objections that the damage, if any caused, was due to reasons beyond the control of the respondent, since the power surge is due to the falling of a tree, are incorrect. As per Section 68(5) of the Electricity Act 2003, there is an obligation on the part of the Licensee to see that the said tree, which may obstruct the conveyance or transmission of electricity, be removed or dealt with appropriately. Therefore, the lack of action by the Respondent to either prune the tree branches or to cut the tree, if necessary, is a proven lapse on the part of the Respondent.
In fact, the Honorable Karnataka State Consumer Disputes Redressal Commission in the case of K.E.B vs. H.S. Sitaram (February 2002), reported in I (2000) CPJ 508, held the K.E.B. responsible to reimburse the cost of repair in case of damage caused to a television set due to high voltage resulting from a tree falling on the supply wires. The K.E.B's defense that it was an act of God was turned down and it was held that it was the duty of K.E.B. to anticipate damages that may be caused by falling of trees or tree branches, and hence had to have taken appropriate action to prevent the same.
6. Further, the
Petitioner states that though the estimated value of the caused damage was stated
to be Rs. 22,500/, the actual cost of the damage is much higher and has amounted
to Rs. 32,495/-. The relevant bills in support of the actual cost are produced
at Annexures C-G.
The expenditure for the UPS repair amounted to Rs. 3,280/-. An attempt to repair the damaged computer was unsuccessful, and thereby the Petitioner was constrained to acquire a new machine. The expenses incurred for the attempted repair amounted to Rs. 2,130/-, including spares and labour charges. The cost of the new machine is Rs. 27,525/-. Hence, the total damages amounted to Rs. 32,935/-.
Wherefore in the light of the above it is submitted that the above said petition may be allowed in the interest of justice and equity.
Advocate for the Petitioner Petitioner