SCA/5036/2008 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5036 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= LAKHABHAI POPATBHAI SORATHIYA - Petitioner(s) Versus IMBUDSMAN OF ELECTRICITY C/O O/O GUJARAT ELECTRICITY & 1 - Respondent(s) ========================================================= Appearance : MR BM VAISHNAV for Petitioner(s) : 1, MR BD KARIA for Respondent(s) : 1, MR MD RANA for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 07/07/2008 ORAL JUDGMENT 1. Rule. Mr.Rana, learned Counsel appears and waives service of notice of rule for respondent SCA/5036/2008 2/12 JUDGMENT No.1 and Mr.Karia, learned Counsel appears and waives service of notice of rule for respondent No.2. With the consent of the learned Counsel appearing for both the sides, the matter is finally heard today. 2. The only question, which arises for consideration is that would the petitioner – consumer be entitled for compensation as per the regulations framed under Electricity Act, 2003 and the Gujarat Electricity Industry (Reorganization and Regulation) Act, 2003, if the complaint is not attended within a period of 10 days from the date of making complaint ? 3. The short facts, which may be relevant for the purpose of this petition, read as under:- 3.1 The petitioner, who is a consumer of respondent No.2 Electricity Company, submitted a complaint on 13.2.2007 to the Executive Engineer of the respondent No.2 Company about no proper reading of the unit, etc. It is an admitted position that the said complaint was attended on 22.6.2007 i.e. roughly after a period of about four months. The petitioner, thereafter made an SCA/5036/2008 3/12 JUDGMENT application to the Consumer Forum of the Electricity Company, which was also attended and the Consumer Forum directed that the December/January bill, which was given on average basis be cancelled and fresh bill be issued based on the unit shown in the meter. The Electricity Company also acted upon the order passed by the Consumer Forum. 3.2 It appears that thereafter the petitioner submitted complaint to the Ombudsman of the Electricity for awarding of the compensation. The same was ultimately registered as Case No.1 of 2008 and vide order dated 13.2.2008, the application was rejected. It may also be recorded that prior to the making of the complaint the petitioner also, for such purpose, approached before the Consumer Forum, but the fact remains that he was not granted compensation. Under these circumstances, against the decision of the Electricity Lokpal (Electricity Ombudsman) the petitioner has approached this Court by the present petition. 4. Heard Mr.Vaishnav, learned Counsel for the SCA/5036/2008 4/12 JUDGMENT petitioner, Mr.Karia, learned Counsel for respondent No.1 and Mr.Rana, learned Counsel for respondent No.2. 5. It appears that the following factual positions are the admitted facts:- (1) The complaint was made by the petitioner on 13.2.2007. (2) Regulation No.13.4 reads as under:- “Any other complaints (including those of recurring nature) shall be enquired into within 10 days of complaint and rectified within 30 days thereafter. However the licensee shall make the best efforts to identify and rectify the fault ahead of the prescribed time limit having regard to the nature and the severity of the complaint.” (3) Applicability of the aforesaid regulation to the present compliant of the petitioner is also admitted. (4)Chapter XIV of the Regulation (Compensation in case of under performance) provided for compensation at Sr. No.6 as under:- SCA/5036/2008 5/12 JUDGMENT Sr. No. Events Compensation payable 6. Responding to consumer's complaints Rs.25 for each day of delay subject to a maximum of Rs.500/- (5) The complaint is attended not only after the period of 10 days, but only on 22.6.2007, after about four months and 10 days. (6) The question of alleged tampering with the electricity line is not prior to the complaint, but is only after the petitioner approached the Forum as per the above referred litigation. 6. In view of the aforesaid admitted position, it does appear that the complaint was not attended within the period of 10 days as per the Regulation by the officers of the Electricity Company and it also appears that the Regulation expressly provided for payment of compensation in case if such complaint is not attended within the prescribed period of 10 days. The compensation is Rs.25/- for each day of delay, subject to the maximum of Rs.500/-. Therefore, the petitioner, as per the regulation, in view of the under performance of the licensee, would be entitled for compensation and it will be SCA/5036/2008 6/12 JUDGMENT required for the electricity company to pay compensation of Rs.25/- for each day of delay, subject to the maximum of Rs.500/-. As, in any case, the delay has exceeded 20 days and the complaint was attended after four months and ten days, the petitioner – consumer would be entitled for the compensation to the maximum amount of Rs.500/-. The aforesaid regulations are mandatory in nature so far as the electricity company is concerned vis-a-vis its right with the consumer and when it is expressly provided under the statutory regulations, the electricity company cannot get away from its liability to pay compensation. 7. It appears that the regulation has been incorporated with two-fold purposes; one is to ensure that if any complaint of any consumer is not attended well in time as per the regulation i.e within 10 days of its receipt, he is suitably compensated. When there is express amount quantified for compensation by the regulation, the question of demonstration of actual loss or damage caused to the complainant SCA/5036/2008 7/12 JUDGMENT may not arise and in any case, the validity of regulation is not under challenge in the present proceedings, nor is it the contention of the electricity company that the regulations are not binding to it. The second aspect appears to be that if the electricity company is required to pay compensation to the consumer for not attending the complaint, it would encourage efficiency amongst its own staff. In any event, if any staff of the electricity company has shown lethargy in attending the complaint well in time as prescribed in the regulation i.e. within 10 days from its receipt, the liability can be fastened upon such employee(s) for delay caused in attending the complaint. 8. In light of the aforesaid observations, it does appear that the Ombudsman has declined to exercise the power on irrelevant and extraneous considerations, inasmuch as for awarding of the compensation, attending of the complaint within the period of 10 days would be germane consideration for exercise of the power and not the subsequent incident, if any, after attending SCA/5036/2008 8/12 JUDGMENT of the complaint. When it was an admitted position that the complaint was attended after a period of about four months and ten days, it was required for the Ombudsman to enforce the regulations and the subsequent aspects after the inspection could not be made as valid ground for declining relief for awarding of the compensation when the regulations otherwise are mandatory and binding to the electricity company. If the lenient view for enforcement of the regulations in the matter of relationship of the electricity company vis-a-vis consumer is given to avoid the liability to pay compensation as per the regulations, on the ground of subsequent detection, after attending of the complaint, it may frustrate the very basis of enforcement of the liability as per the regulations to attend the complaint and would also frustrate the rights of the consumer to get compensation in case of under performance by the electricity company. Therefore, it appears that the decision of the Ombudsman of declining to award compensation is on a ground extraneous and SCA/5036/2008 9/12 JUDGMENT non-germane for awarding compensation as per Chapter XIV of the Regulations. 9. Mr.Rana, learned Counsel appearing for respondent No.2 Electricity Company contended that in the event this Court finds that the power is exercised on extraneous consideration, this Court may remand the matter to the Ombudsman for reconsideration and, therefore, he submitted that this Court may not award compensation or may not direct Electricity Company to pay compensation, which otherwise is not directed by the Ombudsman. 10.Keeping in view the above referred admitted position on factual aspects and the existence and applicability of regulations, I find that no useful purpose would be served in remanding the matter to the Ombudsman for awarding the compensation based on the regulations, more particularly when the compensation is for a small amount of Rs.500/-. If for petty amount, consumers are dragged into litigation by the Electricity Company on technical aspects, the same may not be encouraged by this Court while SCA/5036/2008 10/12 JUDGMENT exercising its power under Article 226 of the Constitution of India, keeping in view the larger public interest in the field of electricity supply by the electricity company and so as to balance the enforcible rights of the consumer as per the regulations. 11.Therefore, I find that, keeping in view the aforesaid peculiar circumstances, instead of remanding the matter to the Ombudsman for reconsideration based on the observations of this Court, since the consumer who is the petitioner herein is entitled for compensation, such relief can be granted to render complete justice to the parties of the proceedings. However, at the same time, it deserves to be clarified that if the electricity company – respondent No.2 finds that it is required to pay compensation on account of any lethargy or lapse on the part of its staff, it should equally be at liberty to recover the amount from its erring employee(s). 12.In view of the above discussions and observations, the impugned order of the SCA/5036/2008 11/12 JUDGMENT Ombudsman in Case No.1 of 2008 is quashed and set aside with the further observations and directions that the petitioner shall be entitled to compensation of Rs.500/- from respondent No.2 – Electricity Company for non-attending of complaint within the prescribed period and delay caused therein. Consequently, respondent No.2 Electricity Company shall pay the amount of Rs.500/- to the petitioner within a period of four weeks from the date of receipt of the order of this Court. It is also observed and clarified that it will be open for respondent No.2 Electricity Company to recover the aforesaid amount of compensation from its erring officer after undergoing the procedure known to law. 13.The petition is allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, the Electricity Company shall also pay the cost of Rs.250/- to the petitioner. 7.7.2008 (Jayant Patel, J.) SCA/5036/2008 12/12 JUDGMENT vinod