National Consumer Disputes Redressal
M/S. National Flask Industries Ltd. vs Gujarat Electricity Board & Ors. on 16 April, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 71 OF 2001 1. M/S. NATIONAL FLASK INDUSTRIES LTD. A - 2 SHED NO. 502 GIDC SARIGAM DISTT. VALSAD GUJARAT ...........Complainant(s) Versus 1. GUJARAT ELECTRICITY BOARD & ORS. BALITHA VAPI - 396 191 DISTT. VALSAD GUJARAT ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR, MEMBER
For the Complainant : Mr. Subodh Gokhale, Advocate For the Opp.Party : Mr. Prasenjit Keswani &
Ms. Puja Singh, Advocates for
Ms. Hemantika Wahi, Advocate
Dated : 16 Apr 2015 ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. "Whether, the part repudiation or alleged part settlement of claim with insurance company, gives rise to a fresh cause of action against the third-party, i.e., the Gujarat Electricity Board (in short ' GEB'), now known as 'Dakshin Gujarat Vij Co. Ltd., to bring the case within the period of limitation, otherwise barred by time?". "Whether, the over/low voltage fluctuation can cause short circuit causing big loss under the facts and circumstances to be detailed herein with?". These knotty problems are to be adjudicated herewith.
2. The above said complaint was filed by M/s. National Flask Industries Ltd., the complainant, on 27.02.200,1 against the Dakshin Gujarat Vij Co. Ltd., (Formerly known as Gujarat Electricity Board) Balitha and its functionaries, viz., Executive Engineer and Deputy Engineer, OPs 1 to 3, respectively. The main allegation against the OPs was that there was constant power voltage fluctuation and erratic supply from the Dakshin Gujarat Vij Co. Ltd., (Formerly known as Gujarat Electricity Board). Many letters were also sent in this respect, but those did not ring the bell. M/s.National Flask Industries Limited, the complainant, transacts the business of manufacturing moulded and insulated plastic articles for household use at Plot No. A-2, Shed No. 502 in GIDC Industrial State, Sarigam. They have also taken the adjoining shed being Plot No. A-2, Shed No. 504 belonging to M/s Crown Industries, which is a sister concern of the complainant.
3. In the year 1987, the complainant, M/s.National Flask Industries Limited (originally known as M/s. Maruti Plastics Industries) at the time of commencement of its business) entered into an agreement dated 13.03.1987, with the then Gujarat Electricity Board-OP-1, for the supply of electricity to its premises, wherein OP-1 agreed to reserve for and to supply to the complainant, electrical energy upto a maximum of 300 KVA for Manufacturing Unit of the complainant. Clause 5 of the agreement stipulated that the electricity would be maintained by the supplier of the electrical energy of the above stated voltage and frequency at the said point of delivery. According to clause 14 of the agreement, reasonable precautions to ensure continuity of supply of power to the complainant/consumer were to be taken by the suppliers/OPs, except under certain 'force majeure' conditions. Copy of the said agreement has been placed on record as Annexure P-1.
4. The complainant used to face constant hardships owing to the fluctuating voltage in the electricity supplied by the then Gujarat Electricity Board to its premises. At times, the electricity fluctuation was so severe that the machinery and other electric gadgets installed in the said premises were required to be instantly shut down for extensive damage was caused to it. On each such occasion, the OPs were apprised of these facts. The complainant also made several representations to 'Sarigam Industries Association' (in short, 'SIA'). It also addressed letters dated 04.05.1993 and 07.05.1993 to the SIA, copies of which were produced on the record as Annexures P-2 and P-3, respectively. The OPs were to carry out a checking program but the same was not materialized. Further, another letter dated 02.07.1993 was sent to OP-1, copy of which has been placed on record as Annexure P-4.
5. The complainant received reply from OP-3 dated 07.07.1993 and another letter dated 27.06.1993 sent by OP-2. These letters reveal that necessary instructions were given to the Deputy Engineer, GEB, Sarigam as regards the action to be taken in future with such voltage fluctuation occurred, copies of which have been placed on record as Annexure P-5. However, no action was taken. The Complainant sent another letter dated 12.08.1993, wherein the grievance was again repeated. Copy of said letter has been placed on record as Annexure P-6. Although, one year had elapsed, yet, there was no improvement in the voltage situation. The situation became worse, since at times, the voltage would shoot-up to more than 500 Volt from the normal 415 Volt. The complainant sent another letter dated 22.04.1994, but no action was taken. Another letter was yet again sent to OP-3 which is placed on record as Ex.P-7. In the meantime, SIA also made a representation upon which a meeting was held with OPs 2 & 3 and the Working Committee of the SIA, on 23.03.1995, in the office of SIA. OPs-2 & 3 agreed that they had received many complaints regarding fluctuation of electricity and assured that needful would be done. A photocopy of the extract of the minutes of the meeting held on 23.03.1995 has been placed on the record as Annexure P-8.
6. Again, another letter was sent on 11.9.1995 to the SIA since the needful was not done. The copy of the said letter has been placed on the record as Annexure P-9. Thereafter, another letter was sent to Sarigam Industrial Association, GIDC Sarigam on 20.11.1995 in which the complainant registered its protest regarding power fluctuations and the resultant loss in production. Request was made to take up the cause with Dakshin Gujarat Vij Co. Ltd. (the then Gujarat Electricity Board) regarding its grievance about voltage fluctuation about erratic power supply. Another letter was sent on 14.12.1995 wherein, again, this grievance was repeated. The said letter was annexed with the complaint as Annexure-10. Furthermore, a letter dated 15.04.1996 detailing the above said grievance with copy to OP-3 was sent on 15.4.1996 which has been placed on the record as Annexure 11. Thereafter, another meeting was held between the OP-2 & OP-3 and the members of the working committee of SIA on 19.09.1996 to discuss the above said matter. It was discussed that the matter was put up for discussion on a number of times and the needful would be done at the earliest. The copy of the minutes of meeting was annexed as Annexure-12. Thereafter, several other letters were sent in this regard, which were annexed as Annexure 13 (Colly). Letters sent during the years' 1997-1998 were annexed as Annexure-14 (Colly) & Annexure-P15 (Colly).
7. The complainant had installed several capacitors as required and approved by Dakshin Gujarat Vij Co. Ltd (formerly known as Gujarat Electricity Board) at its said unit. The said capacitors were fully functioning from the date of installation. It is explained that the purpose of installing these capacitors is to maintain the power factor at the Unit in respect of the power supply to the Unit.
ABOUT THE INCIDENT :
8. However, unfortunately, on 03.11.1998, at about 6-45 PM, a major fire broke out in the factory premises of the complainant which caused severe damage to the premises as well as the stocks/machinery/building, etc. The fire brigade took several hours to control the fire. The fire broke out due to an explosion in the capacitors installed in the complainant's premises owing to a sudden surge in the electricity voltage to the premises, thereby causing the Capacitors to explode. The resultant sparks and fire emanating from the Capacitors caused the raw material lying in the premises and finally into a full scale inferno. The Watchman noticed the fire. It transpired that the reason for the occurrence of the fire was due to fluctuation of voltage and blast of the capacitors was because of the spark igniting the inflammable material lying in the packing/machinery room. The report of the fire brigade has been placed on the record as Annexure P-16 dated 06.11.1998. The Factory Inspector inspected the premises of the complainant and confirmed that "the most probable cause of the fire was due to the surge in the voltage supply from the then Gujarat Electricity Board (in short ' GEB), resulting in a short circuit".
9. The manufacturers of the Capacitors, M/s SAIF Electronic Ltd. inspected the said Capacitors and certified that the Capacitors were examined by them, upon which, it was found that the only probable cause for the capacitors to explode was due to irregular and sudden surge of voltage. They issued a certificate, which was placed on record as AnnexureP-17.
10. An internal investigation Committee was constituted to investigate the matter. The report of the said Committee was also placed on record as Annexure P-18, which supports the above said findings.
11. The Oriental Insurance Company inspected the said premises and the Surveyor submitted his final report dated 13.05.1999, in which he mentioned that "the most probable cause of fire was due to a sudden high voltage from Dakshin Gujarat Vij Co. Ltd., (Formerly known as Gujarat Electricity Board)".
12. Although, the complainant suffered losses upto Rs. 15.00 crores, yet, it had made claim on its insurer's only for a sum of Rs.12,47,73,557/-. The Oriental Insurance Company agreed to pay a sum of Rs.9,71,17,233/- and assessed the loss, after deducting under insurance and salvage of an amount of Rs.5,52,90,518/-. Out of that amount, the complainant had received a sum of Rs.4,83,00,000/- and now an amount of Rs.69,90,518/- is due and payable by the Insurance Company.
13. The cause of the fire was due to severe power fluctuation and erratic supply from the then GEB, therefore, all the OPs are jointly and severely liable to pay compensation to the complainant to the tune of Rs.8.37 crores, with interest @18% from 03.11.1998. A legal notice was also sent to the OP on 17.09.2000. The OP sent reply in response to the said notice and denied all these allegations. It is contended that the cause of action is a continuous one and subsists till the Opposite Parties make good the principal claim amount. The complainant contended that it had to obtain cash credit facilities and loans from various institutions. At the time of incident, the complainant had export order commitments to the tune of US$7,54,493.75 and owing to the rejection/cancellation of orders the complainant had suffered a financial loss to the tune of Rs.50,60,000/- and Rs.61,50,000/- in its local business. Though, the fire accident had completely halted the complainant's production, it has suffered statutory liability in terms and Government/Semi-government dues, minimum electricity charge, workers' wages, etc., to the tune of Rs.32,15,000/-. The complainant had to engage third-party business to fulfil its own export commitments and the complainant has suffered financial liability in the sum of Rs.45,05,000/-. The complainant had to apply for subsidies from the Government of Gujarat, therefore, it suffered a loss for Rs.15,10,000/-. Consequently, the said complaint was filed with the following prayers:-
"A. Pass an order direction the Opposite Party to forthwith pay a principle sum of 8.37 crore on account of the loss and damage caused to the machinery, stocks and property in the Complainant's premises as a result of the deficiency of service on the part of the Opposite parties in not supplying constant voltage to the Complainant's premises.
B. Pass an order directing the Opposite Parties to pay interest at the rate of 18% on the said principal sum from the date of occurrence of fire till the date of payment.
C. Pass an order directing the Opposite Parties to pay a sum of Rs.20,00,000/- as compensation for the loss, harassment and mental torture suffered by the complainant.
D. Pass any other order(s) as this Hon'ble Commission may deem fit and proper in the facts and circumstances of the present case".
CLAIM AMENDED :
14. Amended complaint was filed wherein the claim was reduced to Rs.389.78 lakhs, with interest @ 18% p.a., and compensation in the sum of Rs.20.00 lakhs. It is explained that the complainant submitted a claim with the Oriental Insurance Co. Ltd., for the losses caused due to fire in the factory premises, on 03.11.1998 and the Surveyor appointed by the Insurance Co. had assessed the loss, after visiting the site, at Rs.872.18 lakhs. The Insurance Company also paid the amount of claim in the sum of Rs.482.40 lakhs in terms of the insurance policy, leaving a balance of uncovered loss in the sum of Rs.389.78 lakhs.
DEFENCE:
15. In their reply, the OPs have listed the following defences. The complainant Company is not a Consumer U/s 2(1)(m) of the Consumer Protection Act, 1986. The OPs cannot be held liable for the loss as per Clause 14 of the agreement entered between the parties. Section 14 (a) runs as follows:-
"(14) (a) The supplier shall take all reasonable precautions to ensure continuity of supply of power to the consumer but shall not be responsible or liable to the consumer for any loss to him or damage to his plant and equipment due to interruptions in supply of power due to Damage to the suppliers plants and equipment for reasons including but not limited to war, mutiny, riot, earthquake, cyclone, tempest, strike, civil commotion, lockout, lighting, fire, flood, accident or break-down of plant and machinery or causes beyond control of the supplier".
16. It is contended that fluctuation of the voltage will itself does not give rise to any cause of action. This matter requires leading of detailed evidence, examination and cross-examination, therefore, the remedy available to the complainant lies with the Civil Court. It is explained that as per Rule 65 (7) of the Indian Electricity Rules, 1956, it is the responsibility of the complainant to maintain and operate the installation in a condition free, from danger. The police did not call for any report from the Electrical Inspector.
17. The record regarding power cut or power failure, namely time, duration etc. is being strictly maintained by the Board at each feeder sub-station, Feeding power to M/s National Flask Industry was connected on GIDC feeder No.2. On 03.11.1998, it being a staggering day, there was power- cut in the area from 9.50 hrs. to 17.30 hrs. There was no complaint regarding power fluctuation. There was no interruption of power or fluctuation of voltage on that day, as alleged. This fact can be verified from the log-sheet maintained by Sub-station Sarigam, copy of which has been placed on record as Annexure-I. The list of industries at Sarigam having HT connection and LT connection were placed on the record collectively as Annexure-A. No other complaint was received by any other Industry. The Minutes of the alleged meeting has also been called into question. It is averred that these are not the correct proceedings. It is pointed out that even the Insurance Company who has passed the claim, never called for any report from the then GEB and Electrical Inspector (E & P Department), Valsad, as required under the Rules -Annexure J.
18. Again, the power supply of M/s.Crown Industries at Plot No. A-2, Shed No. 504 was permanently disconnected by the OPs on 28.02.1996. The then GEB neither gave any authorization or permission to the complainant to avail power supply at the aforesaid plot nor the complainant had ever approached the then GEB seeking requisite permission or approval i.e., unauthorized use of the electricity. Copy regarding disconnection of the electricity has been placed on the record as Annexure D.
19. Again, on 12.2.1998, the complainant addressed a letter to the General Manager (Commerce), Head Office, Baroda, with a copy to the then Gujarat Electricity Board, Vapi, requesting for reduction in contract demand from 200 KVA to 125 KVA, due to shifting of machines to another unit. This request was further repeated by a letter dated 16.03.1998. It is thus clear that the complainant had already shifted the costly machinery to their unit, situated elsewhere. Copies of this request were placed on the record as Annexure-E (Colly). The claim made by the complainant is highly exaggerated and based on fake and fictitious documents. The OP has denied the receipt of letters regarding voltage fluctuation and erratic power. All the other allegations have been denied, however, they have admitted having received the letter dated 07.05.1993, which according to the OPs, it primarily dealt with unfounded allegation of power failure and voltage fluctuation. The OPs denied having received letters dated 22.02.1994 and 01.05.1994. Further, the alleged letters, according to the complainant, were addressed to OP3 but the same were never served upon or received by OP3. It is further contended that letter dated 11.09.1995 was allegedly addressed to SIA and hence the then GEB had no knowledge about it. The capacitors had been installed by the complainant under Rule 29(1) of the Indian Electricity Rules 1956, and therefore, as per the said Rule, it was the responsibility of the complainant, to ensure that the installed capacitors were of sufficient rating for power, insulation and estimated fault current of sufficient mechanical strength.
20. The complainant has not complied with Rules 54, 42, 45, 29(3) 43 (6), 64(A) (2) & 65(7), 67(7) of the Indian Electricity Rules, 1956. It is contended that complainant had mis-used the rubber stamp and forged the signatures of the officers of the Board in an attempt to concoct and support their false story. Again whenever, there was a short-circuit, it is mandatory to inform the Electrical Inspector so that he may inspect the site and give his report. Sh.S.F. Rangwala, Director of SAIF Electronics Ltd., has confirmed that letter dated 08.12.1988 was not issued, after inspecting the burnt capacitors. The certificate issued by M/s. SAIF Industries related to the Capacitors sold by them to M/s. Flask Industries, on 06.09.2000 i.e., long after the date of alleged incident, which occurred on 03.11.1988. The case of the complainant is that Watchman, Sh.Kamlesh Yadav, was present at the site whereas, the information given to the surveyor of Oriental Insurance Company was that two watchmen were present at the site of incident. As a matter of fact, Mr. Mahesh Joshi, Supervisor and Mr.Kamlesh Yadav, the Watchman, were present, outside the industry premises. The report of the Surveyor is not relevant as it is not a report by the Electrical Inspector or an Expert.
ABOUT SUBMISSIONS AND FINDINGS :
21. We have heard the counsel for the parties for 3-4 days and have also gone through their lengthy synopses of about 100 pages. Although, this case involves intricate and complicated questions to be decided by the Civil Court, yet, as the case is pending, since 2001, so we have pulled up our sleeves and made up our mind to decide it, as per law and within the purview of Consumer Protection Act, 1986. The learned counsel for the OPs did not pick up a conflict with the fact that the complainant is a consumer. This point is decided in favour of the complainant.
ABOUT LIMITATION :
22. Counsel for the complainant submitted that this case is within time. It was contended that the judgements of Kandimalla Raghavaiah & Co. Versus National Insurance Co. Ltd. & Anr. [III (2009) (7) SCC 768 and HUDA Vs. B.K. Sood, (2006) 1 SCC 164, are not applicable to this case. First of all, this fact was never pleaded in the affidavit of evidence and written submissions of OPs. The complainant has explained that the Insurance Company made the payment in the month of May 2000 and notice to the OP was issued on 17.09.2000, i.e., after four months and the reply to the notice was received on 24.12.2000. Consequently, this complaint is within time. It was opined that the time of limitation will start from May 2000, when the payment was made to the complainant.
23. For the following reasons, we clap no value to these contentions. It must be borne in mind that the incident took place on 03.11.1998 and the present complaint was filed, on 27.02.2001. It is not incumbent to set up such like pleas in the written statement. The cause of action will arise from the date of incident and not from the date, when the Insurance Company has given a decision on the complaint/claim. The complainant should have filed the complaint immediately, within two years and should have given the notice to the OPs, within the said two years, in order to file the complaint within time.
24. It is also surprising to note that the complainant wants to have benefit of both the worlds. The insurance company has thoroughly considered the pros and cons of the claim made by the complainant. The Surveyor has partly rejected its claim on valid, just and reasonable grounds. It is abhorrent from the principles of law to raise the same rejected claim, time and again, against one party or the other. There lies a rub in making the same rejected claim against GEB particularly when the complainant has no objection against Insurance Company. Neither the complainant nor the Police nor the Surveyor made an attempt to call for the report of Electrical Inspector. He was the best witness in this case. Legal notice sent after the expiry of two years', carries exiguous value. We see no reason to discard the report of the Surveyor, neither it was ever called into question. The complainant has accepted the same. The case is barred by time and hence not maintainable on that count.
ABOUT THE CONSTANT VOLTAGE FLUCTUATION :
25. The main question which swirls around the instant petition is, whether due to constant power voltage fluctuation and erratic supply from the Dakshin Gujarat Vij Co. Ltd., (Formerly known as GEB), the loss was caused to the complainant. The complainant has placed reliance on as many as 26 documents, which are discussed, as follows :-
"1. Agreement / contract between complainant and the OP (pg. 18) + D1. [The relevant stipulations have already been noted above].
2. Complainants complaints regarding voltage fluctuation (pgs 25-30, 35-40, 55-58A, 64-68, 86-90).
3. Minutes of meetings with SIA in presence of OP officers with Affidavit of SIA member regarding voltage fluctuation in power supply (pg. 41-50, 51-53, 59-63, 69-85, 832-843, etc., (pg.24)
4. Report & affidavit of handwriting expert Mr.Anil Mathur who had examined and certified that the signatures of OP Mr.Hiralal B. Shah on the complainant's letter are genuine (pg.844-861)
5. Admission by OP regarding voltage fluctuation in power supply by letter dated 07.07.1994 (pg.34)
6. Complainant's letter dated 22.04.1994 found in Inward Register of OP (pg.38 & 1167)
7. Inward Register of OP showing the inter-office communication of the OP regarding internal complaints on voltage fluctuation upto 1996 (pg. 1165, 1187, 1197 & 1198).
8. Complaints of other units in same locality regarding electrical supply problems in Inward Register of OP upto 1996 ( pg. 1173, 1174, 1182, 1203, etc).
9. Inward Register of OP showing the blank lines or spaces left with malafide motive, shows manipulation of records upt 1996 (pg. 1160, 1170, 1172, 1164, 1189, 1204, 1164, 1189, 1204, etc)
10. Inward Register only upto 1996 produced as all records after 1996 burnt in fire at OP's Sarigam office. Even no proof of fire, i.e., FIR, date, time, cause, etc., produced by OP (pg. 1272)
11. Intimation to OP after fire accident on 04.11.1998 and to take necessary action (pg. 547).
Form for reporting electrical accidents (As per Rule 44-A)
On Point No.11: Details/causes leading to the accident are mentioned as follows, by the Complainant.
"On the day of fire accident, it was power-off day for maintenance by GEB. In the evening, around 5.30PM, it was reported that power supply was restored but it went off twice and was restored resulting in frequent switching condition. Due to frequent switching on & off of the power supply to the plant, the lighting load, capacitor units and other appliances which were connected to the 415V, bus on PCC were subjected to voltage surge condition due to the capacitors not being allowed to discharge its voltage. Under such a situation, the capacitor units, which were connected for correction during light load, were subjected to excessive voltage rise condition leading to bursting of the capacitor units. This led to electrical sparks in the system resulting in a major fire especially in the absence of any personnel within the factory".
"12. Also notice to OP under Rule 44A (Electrical Accident ) on 05.11.1998 (pg. 548-553)".
However, letter dated 05.11.1998, reveals that only intimation was given to the OPs, which reads as follows :
"Dear Sir,
We have reason to believe that the fire accident occurred owing to a fault in the supply of electricity to the capacitor installed in our unit. It may not be out of place to mention our grievance in this regard, we also addressed to you in writing, on several occasions in past.
In view of the above and as required by law, we are giving you the intimation so that you may take necessary steps / action at your end.
We also enclose along herewith details of the loss in the prescribed form".
13. Fire Brigade report of Gujarat Industrial Development Corporation (GIDC - Sarigam), for cause of fire due to voltage fluctuation in power supply by OP (pg. 92-95).
14. Joint Survey report of Oriental Insurance Co. for cause of fire and assessment of claim (pg. 103 & 130).
The report of the Surveyor is crucial. He has mentioned the cause of damage at page 103 of paper-book, Vol. I, which reads as follows :-
"CAUSE OF DAMAGE
Exact point of origin of fire and cause of damage could not be pinpointed, as the fire had left nothing intact or there were no tell-tale marks.
Insured had appointed a committee to investigate into the cause of fire.
Committee's report is attached as ANNEXURE-III to this report.
Most probable cause as mentioned in this report is sudden high voltage from Gujarat Electricity Board.
Based on our interaction with Insured, we found that in the past, 2/3 times Insured had suffered problems with the power factor capacitors. The capacitors had burst.
This is a typical sign of over voltage.
Knowing this and the fact that on Tuesday (day of fire) the power must have come 'ON' at 17.30 hours (about 1 hour prior to noticing of fire), we are of the opinion that, high voltage may have come across the line, sometime after 17.30 hours.
Such high voltage may have caused phase to phase short circuit in any of the switches or failure of the PF capacitor, leading to sparking and starting a fire.
The plastic material and paper etc. must have subsequently fed the fire which spread rapidly. Premises being closed at the time, only after it had resulted into an inferno, same was noticed."
"This report is not authentic. It is based on 'ifs and buts'. There is no evidence worth the name that the Surveyor had knowledge about the electric engineering. His report is based on reports of others.
15. Forensic laboratory report of chemical & physics for cause of fire (two reports) pg. 331-350).
The following opinion was given by the Regional Forensic Science Laboratory, Surat, on 27.08.1999 :
"Upon the above scientific test, the opinion is given that in sample-1/A, Sample-2/A, Sample-3 and in Sample-4, short circuits marks were appeared".
The following certificate, dated 23.09.1999, was given by Umergaon Police Station :-
"Hereby, applicant, Shri Bharatbhai Maganlal Gandhi, inhabitant of Mahuva, District: Bhavnagar, near Haveli Sheri, Mumbai - 18, Gangadwar, has given advertisement / information that at Sarigam in GIDC situated National Flask Industries Ltd., dated 03.11.1998 at 18/45 hour approximately by accidental fire was caused in which during enquiry due to short circuit, fire was caused. In that, all machineries and goods made - raw materials were burnt. For that work, Umergaon Police Station has done entry No.90/98 dated 04.11.1998 at 12/45 hour for knowledge. In this work, by doing enquiries, statements of witnesses were taken and from Surat Science Forensic laboratory certificate was demanded, on receiving opinion. A police Inspector, Valsad, has done report to file papers / documents. For filing that papers / documents, order is done. Therefore, at present, this enquiry is completed.
Sd/-
Police Inspector".
16. Factory inspector report for cause of fire (pg.593-594)
17. Police final report for cause of fire (pg.585-594).
18. Report of internal investigation committee for cause of fire (pg. 97-100).
19. Opinion of technical person, Mr.T.R.Sapre of M/s. SAIF Electronics for burnt capacitor (pg. 97-100).
The Inspector reported as follows, vide his report dated 08.12.1998:
"To,
Harish Bhai,
I have inspected and examined your capacitor. In my opinion, the probable cause for the capacitor to damage is due to irregular and sudden surge of voltage. We cannot repair this capacitor.
Sd/-".
It is noteworthy that no reasons were given for reaching this conclusion.
20. Certificate given by OP regarding quality and rating of capacitors installed at time of accident (pg.141).
21. Proof of regular visit of Electrical Inspector to the complainant's factory under 46(1) (a) of the Indian Electricity Rules, 1956 (pg.375-376).
22. OPs' certificate dated 10.11.1998 that on the date of accident (i.e. 03.11.1998), 11KVA - feeder No.2 was shut down for maintenance work during 0950 to 1730 hrs (pg 717).
The said certificate dated 10.11.1998, runs as follows :-
"This is to certify that 11KV , Folio No. 1 & 2, from 66KV Sarigam s/s were under shut down for maintenance WORK ON 03.11.1998 from 9.50 hrs to 17.30 PM. H. Y. conn. Of National Flask Ind. Ltd. Is given from Feeder No.2.
Sd/-
Dy. Engineer (O&M), GEB, Ind. Sub-Dvn, Sarigam".
23. Transformer was damaged due to High Voltage in power supply by OP (pg.130- Surveyor's report).
24. Voltage Regulator not installed at the time of accident, i.e., 03.11.1998 and was installed on 16.02.1999 by OP after the fire accident (pg. 1098).
25. OP admits in affidavit that voltage fluctuation is a common phenomenon (pg. 1275).
26. Expert opinion / report along with affidavit of Expert, Mr. Dhirubhai Laxmanbhai Pujara - Chartered Electrical Engineers, Ahmedabad, dated 13.04.2011 stating that most proximate cause of fire was on account of fluctuation in voltage (pg. Part-III), Misc. Application No. 366 of 2011).
26. It was further argued by the Counsel for the complainant that the allegation of fabrication by complainant is not proved. The OPs did not ask for inspection of documents as per procedure to be followed under Section 13 (4) of the C.P.Act, 1986. The report of the Handwriting Expert clearly proves that there was no fabrication or forgery. The correspondence record was not filed by the OPs on the plea that all the records were burnt in the fire in OPs' premises, during the year 1996. It is also clear that voltage regulator was not existing at the time of accident and was installed on 16.02.1999, by OPs, after the fire accident.
27. It was also argued on behalf of the complainant that the OPs have proved the log-sheet dated 03.11.1998. However, it is not the conclusive evidence. No relevance should be placed on it. It gives hourly data only at every completed hour and does not give record of voltage at 6.45PM. The fluctuation can take place in a split second, at a split time, and the record showing permissible voltage at 1800 hours or 1900 hours cannot be established to find the voltage level at 1845 hours. It is a voltage record of 11 feeders and does not show voltage record of feeder No.2, connected to the complainant's factory. The voltage record is always with the supplier and he was duty bound to produce the same at the earliest.
28. Again, the I.I.T. report submitted by the OPs is not acceptable because, firstly, the Experts are from other fields, like combustion, heat, transfer, etc., and not from the Electrical Engineering. Secondly, that report is not conclusive for want of documents and lastly, the report contains everything else, except the cause of fire. As per the Court's order, the OPs were directed to file 11 KVA diagram at the time of peril, i.e. on 03.11.1998, but the OPs have filed 11 KVA diagram of the year 2007, instead of 1998. The OPs have suppressed the material facts.
29. The complainant has placed reliance on the following authorities. There can be short circuit due to voltage fluctuation, this was so held in the judgments reported in Haryana State Electricity Board Vs. Anand Medicos & Anr., 2003 (3) CPR 38 (NC) and Rajendra Kumar Tripathi Vs. Uttar Pradesh State Electricity Board & Anr., I (2007) CPJ 264 (NC).
30. It must be borne in mind that in those two authorities, it was proved that there was heavy fluctuation of line.
31. It was further argued that Fire Brigade report is material, as per the judgment reported in National Insurance Co. Ltd. Vs. M/s. Arihant Packaging, First Appeal No.617 of 2007, decided on 22.02.2013, it is contended that the complainants have not produced the relevant documents and, therefore, adverse inference should be taken against it, as per law laid down in S.P. Chengalvaraya Naidu (Dead) Vs. Jagannath (Dead), 91994) 1 SCC 1. Emphasis was laid upon the report of its Expert, as per the law laid down in State of Himachal Pradesh Vs. Jai Lal & Ors., AIR 1999 SC 3318. It was also argued that the complainant has, prima facie, discharged its initial burden as per Shobika Attire Vs. New India Assurance Co. Ltd., IV 92006) CPJ 3 (SC). The voltage fluctuation is the most proximate cause as per the law laid down in New India Assurance Co. Ltd. Vs. Zuari Industries Ltd. & Ors., (2009) 9 SCC 70 and Urban Improvement Trust, Bikaner Vs. Mohan Lal, 2009 STPL (Web) 177 SC.
32. For the following reasons, it is extremely difficult to countenance the contentions raised by the counsel for the complainant. The namby pamby pleas raised by the complainant are not bolstered by solid and unflappable evidence. There is not even an iota of evidence to show that the above said loss occurred due to constant power voltage fluctuation and erratic supply from the then GEB. On 03.11.1998, it being a staggering day, there was power cut in the area, from 9.50 hrs to 17.30 hrs. The Electricity Board did not receive any complaint on that day regarding power fluctuation and there was no fluctuation of voltage, as alleged, after charging the line at 17.30hrs. The log-sheet produced before this Commission clearly proves this fact. The relevant entries made in the log-book are reproduced here, as under :-
TIME IN HOURS
BHILAD
NO.1
BHILAD
NO.2
DAMAN
GANGA
Out Going
DAMAN
GANGA
Incoming
110 VDC
BATTERY
AMP
MWH
AMP
MWH
AMP
MWH
AMP
MWH
AMP
VOLTS
18.00
70
13558.4
-
252.2
-
4234.6
-
3768.8
2-0
110
19.00
95
13558.6
-
252.2
-
4234.6
-
3768.8
2-0
110
33. Counsel for the complainant raised two objections. First of all, there are over-writings in other entries, but not in these entries and secondly, this Register was in the possession of the OPs and the possibilities of it being manipulated cannot be ruled out.
34. The logic trotted out by the counsel for the complainant does not help the legal proceedings. Due to lack of solid and concrete evidence, it may be assumed that there may be over voltage at 6.45PM, but assumptions cannot take place of evidence. There is no evidence on record that except for informing the OPs, regarding the above said loss, no further proceedings were initiated against the OPs, by the complainant, at the nick of time. No claim was ever made. No legal notice was ever given, within time. No effort was made to request the Electricity Board to appoint an Electrical Inspector to give the exact report about the loss. The loss by short circuit, simpliciter, does not bring the OPs into the picture. It is the complainant and nobody else, who has to prove that due to power voltage fluctuation and erratic supply from the then GEB, the above said incident took place. As a matter of fact, there is no evidence at all to prove this point. In the instant case, the entire evidence, if taken together, the clear picture, yet, does not begin to jell. The most material evidence would have been from the Electric Inspector, from the Electricity Board, itself. Mere ipse dixit will not do. The log sheets show the low voltage and not the high voltage, as alleged.
35. Secondly, it is surprising to note that the complainant is the only industry in the said area which made such a complaint. In the event of high voltage or surge in voltage in the main line, then in that event, the neighbouring sheds would also have been affected. The stand set up by the OPs is that they did not receive a single complaint of any such kind from any other consumer. It clearly goes to show that there was no high voltage at all.
36. There is affidavit filed by Sh. Kantibhai Bhaghubhai Patel, Executive Engineer (O & M), Dakshin Gujarat Vij Co. Ltd. (the then GEB), Vapi Industrial Division. He contended that the affidavit dated 13.11.2011 filed by Mr. Dhirubhai Laxmanbhai Pujara, on behalf of the complainant, does not reflect the correct state of affairs and carries on incorrect conclusion only with a view to help the complainant. Further, he stated on Oath and we hereby reproduce the relevant paras ( 3,6, 8 and 9) of his affidavit dated 03.11.2011, as under :-
"3. I state that I am a qualified Electrical Engineer having secured Bachelor of Engineering (Electrical) degree from South Gujarat University in the year 1981. I thereafter, joined the services of the respondent Electricity Board as an Engineer in the year Sept-1981. Thereafter, I have served in various capacities in the Gujarat Electricity Board (for short ' GEB) now known as Dakshin Gujarat Vij Co. Ltd. (for short ' DGVCL'). I state that I have vast experience as an Engineer dealing in transmission and distribution of electricity and that over a period of time, I have gained sufficient expertise and experience in the field of transmission and distribution of electricity including supply of electricity of HT consumers.
6. I state that the DGVCL (formerly known as GEB) has maintained uniform power supply and voltage in the Sarigam Industrial Area. I say that I have perused and considered the documents pertaining to the instant case as also the relevant documents maintained by the Respondent. I say that the documents maintained by the Respondent are official documents, register and records which are maintained by the officers and employees of the Respondent (who are public servants) in discharge of their official duty.
8. I say that at the time the fire took place in the complainant's factory, the reading of voltage on 11 KV bus was 10.8 KV at 19.00 hrs. The log sheet for the relevant date establishes that the reading recorded on 03.11.1998 was 10.8 KV which was the minimum voltage recorded during 24 hours in the log sheet at the Sub-station. I say that the value of voltage recorded at the Sub-Station and the value of the voltage received at the complainant's factory has to be the same. As the voltage recorded at the Sub-Station at the time of the out-break of fire was the minimum, therefore, it is not possible that the complainant's factory received a high voltage as alleged. I say that as a HT consumer the complainant entitled to get 11KV that is 11,000 Volt Electric Supply with a permissible variation of +6% and -9% as per the clause No.54 of the Indian Electricity Rules, 1956 and thereafter, it is the responsibility of the respondent herein to step down the voltage to the voltage level it requires. I say it is clear from the perusal of the log sheet and other contemporaneous documents that there was no over-voltage as has been alleged by the complainant.
9. I say that it is not correct to state that the readings mentioned in the log sheet pertain to the entire Sarigam region. The reading of voltages of all feeders connected to common bus are same and are not average one. I say that the readings are taken every hour and instantaneous voltage at particular hour is noted and entered into the log sheet. I say that in the log sheet there are entries of the maximum and minimum voltage is which reflects the overall picture of the voltage level. I say that if there is any voltage fluctuation during the intermittent time, that is between 18.00 hours and 19.00 hours, the same over-voltage will be available on all feeders connected to the 11KV bus. I say that there would have been damaged to the other HT consumers installations which are connected on other feeders also, if there had been a case of over-voltage but at the relevant time, no untoward incident was noted on the date of the accident on other feeders".
37. It may be mentioned here that this Commission referred the matter for examination by IIT, Delhi and requested the Director, IIT, Delhi, to appoint a panel of Experts. Accordingly a panel of three Experts in Fire Engineering, who are super specialists in the field, was appointed, who examined the entire records of the case and submitted its report. The relevant extract of the report given by the I.I.T. Delhi, dated 23.11.2011, is reproduced here as under:
"3.Findings based on the information provided so far :
There is no conclusive evidence that a surge occurred.
The explosion of the capacitor could have been caused by either an external surge or a surge internal to the premises or by a fire already burning in the vicinity of the capacitor. The resultant fire in the stored materials as a result or capacitor explosion indicates that the capacitor was not placed in a separate fire-proof room. The progression of the fire to completely consume the materials over a period of about six hours indicates that large quantities of flammable materials were stored in the factory without adequate safeguards. There is no mention of the fire suppression efforts by NFI guard/staff or by an automatic fire suppression system. Presumably the latter were not installed or if present, were dysfunctional or out of service.
Some was noticed by a person away from that of the guard. This suggests that automatic fire alarm systems were not installed or if installed were dysfunctional.
The collection of evidence for forensic analysis was unscientific (e.g. what was collected and from which location and are not mentioned). The reports of the forensic laboratory are inconclusive and are of no value".
38. Learned counsel for the complainant vehemently argued that none of the members is an Expert and have no knowledge about the electricity. The complainant had objected to their report. It is stated that Dr. Sunil R. Kale, one of the members is a Faculty Member in the Department of Mechanical Engineering at I.I.T. Delhi. His research interests are heat transfer, fluid mechanics, particle laden flows, combustion and energy conversion. Dr. Anjan Ray is a Faculty Member in the Department of Mechanical Engineering at I.I.T. His research interests are in Combustion and Heat Transfer. Dr. Vasant Matsagar is an Assistant Professor. His areas of interest are Structural Engineering, Earthquake and Wind Engineering, Offshore Structures, Fibre Reinforced Polymer Composites, Finite Element Analysis, Blast and Fire Engineering.
39. Instead of touching the heart of the problem, the learned counsel for the complainant just skirted it. It is apparent that everybody is connected with electricity. They have got the expertise to know about the things and position. It must be borne in mind that the word 'combustion' as per "The New Shorter Oxford English Dictionary", means, "consumption or destruction by fire". This is their main research interest. The Members appointed at the behest of this Commission are independent, reliable and guileless. Their report overshadows the rest.
40. From the report of I.I.T. Experts, it is also apparent that the loss was caused due to fault on the part of the complainant itself. The complainant being the H.T. Consumer is, under the Electricity Rules 1956, required to maintain his own equipment and the responsibility of GEB/DGVCL is upto the premises only. There is not even an iota of evidence that there was high voltage. The complainant has tried, in vain, to make the bricks without straw. The complainant's niddy-noddy stand does not go to prove its case.
41. It also stands proved that Mr. Sabbir Rangwala had issued mis-leading certificate. Mr. Sabbir Rangwala specifically stated that the certificate was typed on their letter head just to help the Complainant. Mr.Sabbir Rangwala also stated that they have never received any capacitor from the complainant. The complainant had filed the criminal complaint against Mr.Sabbir Rangwala, which was subsequently dismissed by the Ld. Judicial Magistrate.
42. From the record, it also appears that the cause of fire was due to negligence on the part of the complainant in keeping inflammable material near the electricity equipment in contradiction with the Electricity Rules.
43. Last, but not the least, Clause 14(A) of the Agreement comes to the rescue of the OPs.
44. The duty cast on this Commission is to tweezering (plucking) the trash. The evidence adduced by the complainant is not worth a whoop. The case of the complainant does not stand proved and there is not even a scintilla of doubt in mind of this Commission, about the same. The case is, therefore, dismissed. No order as to costs.
......................J J.M. MALIK PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER