State Consumer Disputes Redressal Commission
Tamil Nadu Electricity Board, Ctc ... vs K. Lalitha, on 24 November, 2009
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT THIRU Pon. GUNASEKARAN B.A.,B.L., MEMBER - I F.A.NO.152/2006 (Against order in C.C.No.170/2003 on the file of the DCDRF, Coimbatore) DATED THIS THE 24th DAY OF NOVEMBER 2009 The Assistant Electricity Engineer (South), | Tamil Nadu Electricity Board, CTC South, | Podanur, | Appellant/Opposite Party Coimbatore 641 023. | Vs. K. Lalitha, | W/o. Subbaiyan, | D.No.11/12, Annai Indira Nagar, | Respondent/Complainant Madukkarai Market Road, | Sidco Post, | Coimbatore 641 023. | The respondent as complainant filed a complaint before the District Forum against the appellant /opposite party praying for the direction to the opposite party to pay a sum of Rs.1 lakh as compensation and to return a sum of Rs.63545/- paid towards shifting of the electric posts. The District Forum allowed the complaint, directing the opposite party a sum of Rs.25,000/- as compensation towards mental agony. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.08.11.2005 in CC No.170/2003. This appeal petition coming before us for hearing finally on 11.11.2009. Upon hearing the arguments of the counsels on eitherside, this commission made the following order: Counsel for the Appellant / Opposite Party : Mr.N.Saravanan, Advocate. Counsel for the Respondent/Complainant : M/s.R.Dhanalakshmi, Advocate. HONBLE M. THANIKACHALAM J, PRESIDENT 1.
The opposite party before the lower forum is the appellant.
2. The complainant/respondent who is owing a building in S.F.No.527/4, Podanur-Chettipalayam Road, Sri Ram Nagar, had submitted an application on 06.05.1999, to the opposite party, for the shifting of three electric posts, which stood adjacent to his building. Pursuant to the same, an estimate was prepared and the said amount of Rs.63,545/- was deposited by the complainant on 03.06.2000.
The opposite party having received the amount, failed for the past 2 years without any valid reason, to shift the posts, which should be construed as deficiency in service. Therefore, a complaint came to be filed before the District Forum, for the return of the above said amount of Rs.63,545/- as well for a sum of Rs.1 lakh by way of compensation.
3. The opposite party/appellant opposed the complaint on the grounds with among other grounds, denying the averments against them, specifically, that as agreed, a pole situated very near to the property of the complainant on the western side, was shifted and when the opposite party was taking further steps to shift other two poles, an advocate notice was received on 10.05.2000, raising objection, that there was dispute between one Venkatachalam, who is the trustee of the temple and the complainant, for which, a Suit also came to be filed that though there was no injunction order, because of the objections, the opposite party was unable to shift the poles, that on 25.09.2003, the objector Venkatachalam gave a consent to shift the two poles and accordingly two poles were also shifted and in view of the facts narrated above, there is no deficiency or wanton delay in shifting the poles and therefore question of compensation or return of the money does not arise, thereby praying for the dismissal of the complaint.
4. The District Consumer Disputes Redressal Forum, Coimbatore, evaluating the pleadings as well perusing the documents relied on by either side, came to the conclusion that there was sufficient delay in executing the work which can be described as negligent, for which, it is further held that the complainant is entitled to compensation. Thus concluding, a direction came to be issued on 08.11.2005, directing the opposite party to pay a sum of Rs.25,000/- as compensation towards mental agony and other sufferings, ordering cost of Rs.2,000/- which are under challenge.
5. Heard the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.
6. In the complaint, the prayer sought for is, for compensation of Rs.1 lakh and for the return of Rs.63,545/-. The relief granted is only Rs.25,000/- with cost.
After the filing of the application, it seems, elsewhere in the month of September or October 1999, the request of the complainant, to shift the electric poles was complied with. Only under the said change of circumstances, the prayer sought for the return of Rs.63,545/- was not granted, for which, there is no grievance. The grievance of the opposite party is only the grant of compensation. The reason recorded by the lower forum, for the grant of compensation are, that there was inordinate delay in shifting the poles and that the delay was wanton and negligent. On these two grounds, a seal of deficiency in service was affixed upon the opposite party.
By filing this appeal, an attempt is made to remove that seal, thereby, to nullifying the grant of compensation also.
7. The learned counsel for the appellant submits that immediately after the deposit was made for shifting the poles, necessary steps have been taken, but due to intervention of others, unavoidably and unexpectedly, that too, because of filing of a case, though one post was shifted, other two posts were unable to be shifted, which cannot be termed as wanton delay or negligent, warranting awarding of compensation.
8. Per contra, it is the submission of the learned counsel for the respondent/complainant, that the inordinate delay of more than three years is not at all explained and it should be construed as wanton, for which, the grant of compensation by the lower forum is justifiable, thereby, he prayed for the dismissal of the appeal.
9. By going through the pleadings, documents produced on either side, as well perusing the Written Submissions, supported by the oral submissions, giving our deep and anxious thought, considering the public duty performed by the opposite party, we are of the considered opinion that there was no deficiency in service on the part of the opposite party/electricity board, whereas the delay had occurred only due to the objections raised by one Venkatachalam, who has also filed a case against the complainant, as well issued a legal notice, objecting the shifting of the poles, which were not at all, properly considered by the lower forum.
10. The lower forum, prima facie, taking the delay, namely, that the shifting of poles has not been completed within the reasonable time, from the date of depositing the amount, failing to analyze why there was a delay, landed in an erroneous conclusion, which should be eschewed, according to us.
Admittedly, on the application given by the complainant on 06.05.1999, and upon the estimation, for shifting of three poles, the complainant deposited a sum of Rs.63,545/- on 03.06.2000. It is the specific case of the opposite party, not denied, as seen from Para 8 of the Written Version, that on 17.06.2000, he applied for commercial service to her building and her application also processed by the Department. It is the further case, that on 10.05.2000 as seen from Ex.B11, an advocate notice was received by the opposite party, objecting the shifting of the poles also.
Even before that, as stated, one pole was shifted and to shift the other two poles, there was objection. It is the further case of the opposite party, the other two poles were transported to the site and available near the house of the complainant. Thus, it is seen, on receipt of the amount, immediately all the necessary steps have been taken, to shift the poles and in fact one pole also shifted. Therefore, it cannot be said, there is wanton delay or willful delay as the case may be.
11. As seen from Ex.B4, one Venkatachalam has filed a case against the Electricity Board, including one Subbammal as a party, not to shift the pole which is the subject matter. Though there was no injunction, when the matter was pending before the Judicial Forum, there was some hesitation on the part of the Electricity Board, to shift the Poles, in which, we cannot find any fault. If there was no litigation between the parties, if there was no legal notice against the shifting of the poles, requesting the opposite party not to shift the poles, then the delay had been caused, it can be said, that the delay was wanton, having collected so much of amount, not performing their duty immediately or forthwith. Only because of the application, for new service and only because of the legal notice and litigation between the parties, there was delay, as rightly submitted by the learned counsel for the appellant. Despite the objection, as stated in their Written Submission, the opposite party having obtained consent from Venkatachalam, shifted the remaining two poles, thereby, completing their duty, satisfying the requirement of the complainant, though there was some delay which is explained. As repeatedly said by us, the delay was not due to the slackness on the part of the Electricity Board, but due to the issuance of the legal notice and pendency of the cases, for which, we are unable to fix any seal of deficiency, upon the Electricity Board. Unfortunately, the trial forum has not considered the above facts and in our opinion, committed an error as if that the opposite party has to be held responsible for the deficiency in service, as if they have acted negligently, which is not at all available. Further, after completion of the work, as observed by the lower forum under the heading Point No.2, when the complainant has not explained how he had incurred loss, taking into consideration, the delay in shifting the poles alone, fixed the quantum of compensation at Rs.25,000/-, which is, in our considered opinion, legally not sustainable. For the foregoing reasons, we conclude, the appeal deserves acceptance.
10. In the result, the appeal is allowed, setting aside the order of the District Forum in O.P.No.170/2003 dt.08.11.2005, and the complaint is dismissed. There will be no order as to cost, throughout.
The Registry, is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellant/ opposite party, duly discharged.
PON GUNASEKARAN M. THANIKACHALAM MEMBER-I PRESIDENT INDEX : YES / NO Ns/d/mtj/E.B.