The Tamil Nadu Electricity v. R.Palanisamy,S/O.Rangasamy,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 29.06.2018 PRONOUNCED ON:17.07.2018

CORAM:

THE HON'BLE MR.JUSTICE T.RAVINDRAN S.A.No.1999 of 2004 and C.M.P.No.16904 of 2004 1.The Tamil Nadu Electricity Board, Rep. by its Superintending Engineer, Erode Electricity Distribution Circle, Erode.

2.The Executive Engineer, (Urban) T.N.E.B Erode, Electricity Distribution Circle, Erode 9.

3.The Assistant Executive Engineer, (O & M ) Erode North, T.N.E.B., Erode 3.

4.The Junior Engineer (O&M), Chithode East, T.N.E.B. Chithode.

... Appellant/Defendant Vs.

R.Palanisamy ... Respondent/Plaintiff Prayer:Second Appeal filed under Section 100 of C.P.C., against the judgment and Decree dated 31.07.2003 made in A.S.No.42 of 2002 by the I Additional District Judge, Erode, confirming the judgment and decree dated 17.09.2001 made in O.S.No.630 of 2000 by I Additional District Munsif, Erode.

For Appellants : Mr.V.Viswanathan For Respondent : Mr.V.Raghavachari for M/s.M.A.P.Thangavel

J U D G M E N T

In this second appeal challenge is made to the judgment and decree dated 31.07.2003 passed in A.S.No.42 of 2002 on the file of the I Additional District Judge, Erode, confirming the judgment and decree dated 17.09.2001 passed in O.S.No.630 of 2000 on the file of the I Additional District Munsif, Erode.

2. The Second Appeal has been admitted on the following substantial question of law When there is a binding contract between the Electricity Board and the consumer (when the elector magnetic meter was changed into electric meter) that the consumer in this case must maintain the power factor not falling below 0.85 level and when the consumer allows the power factor to go below such limit fixed on account of non utilization of full power supply to him, would not the Electricity Board entitled to enforce the term of the contract to recover penalty as demanded in this case?

3. The scope of controversy involved between the parties in the matter lying in a narrow compass, the factual matrix of the case need not be detailed at length.

4. Suffice to state that it is not in dispute that the plaintiff/respondent is provided with the electric service connection in Service Connection.No.259/ III B of Maravapalayam section with sanctioned load of 100 H.P for running the tannery in the village. It is found that the defendants' Board had fixed the electronic meter replacing LTCT meter to the above said service connection. With reference to the same, i.e., the fixation of the electronic meter, it is found that an agreement had been entered into between the defendants Board and the plaintiff. From Ex.A1 order dated 23.06.2000 issued by the second defendant to the plaintiff, it is found that the plaintiff would be liable to pay the compensation charges, if the power factor falls below 0.85 level.

In this connection, it is found that according to the defendants' Board, at the time of reading the electronic meter provided to the tannery unit of the plaintiff on 31.07.2000, the same recorded only a low power factor of 0.55 and as the said reading is found to be below the power factor of 0.85, which the plaintiff has to maintain, demanding the compensation for the same, it is found that the defendants' Board had issued the notice calling upon the plaintiff to pay the compensation/penalty with reference to the recording of the low power factor as abovestated, failing which, threatened disconnection of the service connection.

the same, the suit has come to be laid by the plaintiff.

5. The plaintiff has challenged the electronic meter provided to the tannery unit run by him contending that the same had been introduced for the first time by the defendants' Board and further according to the plaintiff as he had also installed 40 KVAR power capacitor and according to him, the recording of the low power factor, was not due to the fault of the power capacitor erected by the plaintiff and only due to the defect in the electronic meter fitted by the defendants' Board, hence according to the plaintiff, he is not liable to pay any compensation/penalty as determined by the defendants' Board and hence according to the plaintiff, preventing disconnection on the part of the defendants' Board, it is case that he had been necessitated to institute the suit for appropriate reliefs.

6. Per contra, it is the case of the defendants' Board that the power factor reading was low only due to the malfunction of the capacitor fixed by the plaintiff and not due to the electronic meter as contended by the plaintiff and hence as per the agreement entered into between the parties, the plaintiff is liable to pay the penalty and charges as determined by the defendants' Board and hence the suit laid by the plaintiff deserves dismissal.

7. It is not in dispute that the electronic meter had been installed by the defendants' Board for the first time in the State at the relevant point of time. Accordingly, it is found that the electronic meter had been fitted in the tannery unit of the plaintiff and as above stated there is no dispute that the power factor should not fall below 0.85 or else compensation charges/penalty would be levied by the defendants' Board. No doubt, while recording the reading of the meter in question by the defendants' men, the low power factor reading was detected as abovestated and accordingly it is found that the impugned notice has come to be issued.

However, when it is the specific case of the plaintiff that the recording of the low power factor was only due to the defect in the new electronic meter fixed by the defendants' Board and not due to the malfunction of the power capacitor fixed by him and therefore, the plaintiff has come forward with the case that he is not liable to pay the compensation/penalty demanded by the defendants' Board. In this connection, the fourth defendant, who has been examined as D.W.1 has admitted that the electronic meter had been put up for the first time in the State by the defendants' Board and accordingly, it is seen that, even the defendants' Board had ventured into a new technique for recording the consumption of power by the consumers at the relevant point of time. Further, it is also seen from the evidence of D.W.

defects. Further, D.W.1 has also admitted that the low power factor would also erupt if there is any defect in the meter. Not only that, D.W.1 has also admitted that the power capacitor installed by the plaintiff, as regards the service connection, is more than sufficient. Such being the evidence of D.W.1 and accordingly it is noted that the Courts below had taken same in the right perceptive and finding that the plaintiff had installed the requisite power capacitor and when there is also the possibility of the low power factor due to the defect in the electronic meter and when according to the evidence of D.W.

1, the defect in the meter would be known only if the same had been examined by the technicians of MRT and in such view of the matter, at the outset, as rightly put forth by the plaintiff's counsel, the defendants should satisfy themselves that the low power factor was not due to the defect in the electronic meter fitted by them, particularly, when they had ventured into the exercise for the first time in the State. In such view of the matter, when according to the the defendants' Board, the power capacitor installed by the plaintiff is more than the required capacity and when there is no material placed by the defendants as such that the low power factor had occurred on account of the malfunctioning of the power capacitor installed by the plaintiff and on the other hand, as per the evidence of D.W.

1 the low power factor would also occasion due to the defect in the electronic meter and further more, when the materials placed on record would go to show that after the institution of the suit, the defendants Board had noting the defects in the electronic meter in the tannery unit, had rectified the same and in such view of the matter, when it is found that it is the specific case of the plaintiff that the low power factor had occasioned only due to the defect in the meter and noting that the meter had been found to be defective after the institution of the suit, thus, it is seen that the defendants' Board before issuing the impugned notice directing the plaintiff to pay the compensation/penalty should have satisfied themselves that the low power factor had not occasioned due to the defect in the electronic meter.

proper appreciation of the materials placed on record, held that the assessment and demand made by the defendants Board directing the plaintiff to pay the compensation charges/penalty is not as per law and accordingly granted the appropriate reliefs in favour of the plaintiff.

8. In the light of the above discussions, though, there is a contract between the plaintiff and the defendants Board as regards the maintenance of the power factor that the same should not fall below 0.

85 level and when it is noted that the low power factor which had occurred in the plaintiff service connection was not due to any fault on the part of the plaintiff as such and on other hand, the same had occasioned due to the defect in the meter as per the materials placed on record and the defendants having not come forward to determine the same before issuing the impugned notice and on the other hand, when they had ventured to issue the impugned notice to the plaintiff as if the low power factor had occasioned due to the fault of the plaintiff, particularly, when there is no material placed on record to evidence the same on the part of the defendants, the Courts below are justified in upholding the plaintiff's case, considering the fact that the plaintiff has not been shown to be responsible for the low power factor which had occurred in the plaintiff service connection.

In such view of the matter, the defendants cannot be allowed to rely upon the agreement alone, particularly when it has failed to establish that the low power factor had occasioned due to the fault of the plaintiff and on other hand, in the preponderance of probabilities, it is found that the low power factor involved in the matter had occasioned due to the defect in the electronic meter introduced by the defendants' Board for the first time in the State. In such view of the matter, the defendants' Board are found to be not entitled to demand the compensation/penalty from the plaintiff by way of the impugned notice and also not entitled to disconnect the service connection of the plaintiff, as above seen, the same is found to be not issued by the defendants as per the terms of the agreement and in accordance with law.

The substantial question of law formulated in the second appeal is accordingly answered against the defendants/appellants and in favour of the respondent/plaintiff.

9. In conclusion, the second appeal fails and is accordingly dismissed. No costs. Consequently, connected miscellaneous petition, if any, is closed.

-s/d- Assistant Registrar(CS-II) True Copy Sub-Assistant Registrar

To

1. The I Additional District Judge, District Court, Erode.

2. The I Additional District Munsif, I Additional District Munsif Court, Erode.

Copy to The Section Officer, VR Section, High Court.(2 copies) +1 CC to Mr.Ma.P. Thangavel, Advocate sr 47142. +1 CC to Mr.V. Viswanathan, Advocate sr 46764 S.A.No.1999 of 2004 KJI(CO) SP(14/08/2018)