PRESS RELEASE: 08 January 2004

KERC orders BESCOM to compensate ESG for power surge damages Landmark ruling supports full claim

In a landmark ruling, the Karnataka Electricity Regulatory Commission, constituted by Mr. Phillipose Mathai, Mr. H. S. Subramanya and Mr. S. D. Ukkali, ordered Bangalore Electricity Supply Company (BESCOM) to compensate Environment Support Group "damages to the tune of Rs. 32,935/- within 90 days from the date of the order". The Commission made this ruling suo moto on the basis of a letter petition from ESG demanding compensation for extensive damage to its computer network caused by a high voltage spike on 2nd June 2003.

ESG demanded this compensation on grounds that BESCOM had failed in its fundamental obligation as electricity supplier to provide power that was free from danger and within the regulated voltage stream. In particular it had not taken due precautions to keep power lines free of interference and danger, and as a result neglected the pruning of a coconut frond, which fell causing the surge. This surge caused extensive damage to ESG's electrical and computer installations, causing a total damage to the tune of Rs. 32, 935/-.

BESCOM moved the Commission to dismiss the petition on many grounds, significant amongst which are:
1. That ESG was a tenant, and thus not a registered consumer to claim damages.
2. ESG's office was unauthorisedly making commercial use of a residential power supply.
3. That surge protectors had not been installed, and thereby the damage was caused "due to ill/non-maintenance of such protective equipments", and thereby, ESG is not entitled for relief.
4. BESCOM admitted the surge was caused by a "falling tree in the vicinity" which it claimed to be an "Act of God" and thus did not constitute "negligence/lapse on the part of the respondent".

The Commission dismissed these charges making the following observations:

"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 the 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."

Supporting the full claim of damages of ESG, the Commission held:

"The respondent has not raised any objections to this amount but on the contrary contended that the petitioner has made academic discussions on 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." (emphasis ours)

The Commission remarkably noted:

"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 moto." (emphasis ours)

In so deciding, the Commission supported the averment of the Petitioner's Counsel that per the ruling of the Karnataka State Consumer Disputes Redressal Commission, Bangalore in the case KEB v H. S. Sitaram (I (2000) CPJ 508), "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". The Commission also supported the Counsel's contention that per the decision of Hon'ble Supreme Court in Divisional Controller, KSRTC v Mahadev Sheetty and another (2003 AIR SCC 3797), the expression 'act of God' is explained as one that "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".

The Commission, thereby, observed that:

"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 finger towards the Almighty and escape from the responsibility". (emphasis ours)

KERC's landmark order has paved the way for many hapless consumers to now claim their full Right of quality service, free from any deficiency and threat to life and property from service providers.

ESG was represented by its Counsel, Mr. Sunil Dutt Yadav.

Leo F. Saldanha Dr. Ananth Chikkatur
Environment Support Group