Jaipur Vidhyut Vitran Nigam Limited and ors. Vs. Ram Bharosi Kedarnath - Court Judgment

SooperKanoon Citationsooperkanoon.com/754916
SubjectElectricity
CourtRajasthan High Court
Decided OnApr-02-2009
Judge Narendra Kumar Jain, J.
Reported inRLW2009(3)Raj2670
AppellantJaipur Vidhyut Vitran Nigam Limited and ors.
RespondentRam Bharosi Kedarnath
Cases ReferredBombay Electricity Supply & Transport Undertaking v. Laffans
Excerpt:
- - 3. both the parties, in support of their respective case, led oral as well as documentary evidence. i have considered the submissions of the learned counsel for the parties and examined the impugned judgment as well as the record of the trial court.narendra kumar jain, j.1. heard learned counsel for the parties. the point to be adjudicated in the present appeal is - whether the electricity bill raised by the defendants-appellants from the plaintiff-respondent for the month of january, 1989 was correct, or not?2. the plaintiff-respondent filed a suit for declaration to the effect that electricity bill raised by the defendants for the month of january, 1989 may be declared as void and without jurisdiction, and that the defendants are not entitled to recover the amount of the said bill. the case of the plaintiff was that in the last three years neither he receive nor the defendants raised an electricity bill of such a huge amount showing 16720 units of electricity consumption, therefore, it appears that ten thousand units have wrongly been shown in the meter. the last meter reading was 45354 units and the present meter reading is shown to be 62104 units showing the consumption of 16720 units which is exaggerate and instead of 62104 the meter reading should have been 52104 units; it appears that instead of 5 the first digit '6' has been shown in the meter reading. the case of the defendants was that the meter was showing correct units of electricity consumed by the plaintiff; there was no such complaint in respect of meter being defective made by the plaintiff asking for referring the matter to be examined by the electrical inspector under sub-section (6) of section 26 of the electricity act, 1910; in absence of any written-complaint on behalf of the plaintiff, the meter reading showing electricity consumption for the month of january, 1989 should be treated as correct and no interference is called for and the plaintiff's suit is liable to be dismissed. the trial court framed eight issues.3. both the parties, in support of their respective case, led oral as well as documentary evidence. the trial court, while deciding issues no. 1 and 2, recorded a finding that the meter has shown incorrect reading of the electricity consumption and consequently decided both the issues in favour of the plaintiff and against the defendants, and decreed the suit of the plaintiff and declared that the electricity bill raised by the defendants for the month of january, 1989 is invalid and without jurisdiction.4. the submission of the learned counsel for the appellants is that the finding of the learned trial court in respect of issues no. 1 and 2 is illegal and perverse. the pleading of the plaintiff was that on 24th january, 1989 an information about defective meter was given to the defendants whereas the said fact was not proved from oral or documentary evidence of the plaintiff. he referred the cross-examination of pw-1 ram bharosi and submitted that the plaintiff specifically admitted that he has not placed on the record the complaint made by him on 24th january, 1989, in the court. he further admitted that he did not send any written notice through registered post in respect of the meter, if it was defective. he, therefore, contended that in such circumstances the reading recorded by the meter reader was binding on the plaintiff and, as such, the impugned judgment and decree passed by the trial court be set-aside and the plaintiff's suit be dismissed.5. on the other hand, the learned counsel for the plaintiff-respondent contended that the judgment passed by the trial court is based on oral and documentary evidence produced by both the parties. the plaintiff placed on the record the details of electricity consumption for last three years i.e. january, 1986 to december, 1988 in order to show that bill of such a huge amount was never issued to the plaintiff; the above details make it clear that there was defect in the meter and the trial court rightly decreed the suit and no interference in the said finding of the trial court is called for by this court. i have considered the submissions of the learned counsel for the parties and examined the impugned judgment as well as the record of the trial court.6. the plaintiff himself pleaded in the plaint that after receipt of the bill on 24th january, 1989 he requested the defendants to get the meter tested by electrical inspector but they did not pay any heed thereto and gave a threatening to disconnect the electricity connection. the defendants specifically pleaded that the plaintiff did not make any complaint in respect of any defect in the meter or recording of wrong units of electricity consumption. in case the electricity meter was defective then it was open for the plaintiff to get the meter tested under section 26 of the act of 1910 by the electrical inspector. pw-1 ram bharosi in his statement specifically admitted that the application which was given by him to defendants was returned back to him and he has not placed the same on the record of the case. he has not stated specific date i.e. 24th january, 1989 in his statement which has been mentioned by the trial court in its finding that pw-1 made a complaint to the defendants about defective meter on 24th january, 1989. the particular date i.e. 24th january, 1989 is neither available in oral evidence nor documentary evidence produced on behalf of the plaintiff.7. in order to show the average electricity consumption in the previous years, the plaintiff has filed schedule a and a bare perusal thereof would show that there is no consistency in respect of electricity consumed by the plaintiff even in seasonal period; schedule a shows that in january, 1986 the plaintiff consumed 9965 units whereas in january, 1987 the consumption was of 4235 units and in january, 1988 it was of 9070 units. it further shows that in march, 1986 the consumption was only of 5 units, whereas in september, 1986 it was of 11750 units. from the record of the case it is not proved that any written complaint or notice in writing about defective meter was given by the plaintiff to the defendants.8. the hon'ble supreme court in bombay electricity supply & transport undertaking v. laffans (india) (p) ltd. and anr. : air2005sc2486 , considered the provisions of section 26 (6) of the electricity act, 1910, and observed that what is contemplated under section 26(6) of the act of 1910 is a running meter, but which on account of some technical defect registers the amount of energy supplied or the electrical quantity contained in the supply beyond the prescribed limits of error. it contemplates a meter which is either running slow or fast with the result that it does not register the correct amount of energy supplied. there is an additional reason for coming to such a conclusion. section 26(6) confers power upon the electrical inspector to estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months, as the meter shall not, in the opinion of such inspector, have been correct. where the meter is running slow or fast, it will be possible for the electrical inspector to estimate the amount of energy supplied to the consumer by determining the extent or percentage of error in recording the supply, whether plus or minus. however, where the meter is burnt or is completely non-functional, such an exercise is not at all possible. therefore, section 26(6) can have no application in a case where a meter has become completely non-functional on account of any reason whatsoever. the hon'ble apex court further observed that where the meter was not correct as per allegation of the consumer but none of the parties has referred the dispute to the electrical inspector, then according to section 26(6) the readings would bind both the parties.9. the ratio of the aforementioned judgment of the hon'ble apex court does apply in the present matter as in the present case there is no dispute that no written complaint or notice in writing was ever served by the plaintiff upon the defendants for the meter being defective and, therefore, the matter was not referred to the electrical inspector. it is not a case of complete non-functional of the electricity meter where section 26(6) is not applicable; it is a case where the meter was running but according to the plaintiff it was not showing correct reading, however, in absence of any writtencomplaint or notice in writing by the consumer, the matter could not be referred to get the meter tested by the electrical inspector under section 26(6) of the act of 1910 and, in these circumstances, the meter readings would bind the appellants and the respondent both. thus, i am of the view that the learned trial court committed an illegality in deciding issues no. 1 and 2, both, and in recording the finding that the bill raised by the defendants for the month of january, 1989, in view of the meter readings of earlier months bill, is not tenable and the same is liable to be set aside.10. consequently, the appeal is allowed. the impugned judgment passed by the trial court is set-aside and the plaintiff's suit is dismissed with no order as to costs.
Judgment:

Narendra Kumar Jain, J.

1. Heard learned Counsel for the parties. The point to be adjudicated in the present appeal is - whether the electricity bill raised by the defendants-appellants from the plaintiff-respondent for the month of January, 1989 was correct, or not?

2. The plaintiff-respondent filed a suit for declaration to the effect that electricity bill raised by the defendants for the month of January, 1989 may be declared as void and without jurisdiction, and that the defendants are not entitled to recover the amount of the said bill. The case of the plaintiff was that in the last three years neither he receive nor the defendants raised an electricity bill of such a huge amount showing 16720 units of electricity consumption, therefore, it appears that ten thousand units have wrongly been shown in the meter. The last meter reading was 45354 units and the present meter reading is shown to be 62104 units showing the consumption of 16720 units which is exaggerate and instead of 62104 the meter reading should have been 52104 units; it appears that instead of 5 the first digit '6' has been shown in the meter reading. The case of the defendants was that the meter was showing correct units of electricity consumed by the plaintiff; there was no such complaint in respect of meter being defective made by the plaintiff asking for referring the matter to be examined by the Electrical Inspector under Sub-section (6) of Section 26 of the Electricity Act, 1910; in absence of any written-complaint on behalf of the plaintiff, the meter reading showing electricity consumption for the month of January, 1989 should be treated as correct and no interference is called for and the plaintiff's suit is liable to be dismissed. The trial court framed eight issues.

3. Both the parties, in support of their respective case, led oral as well as documentary evidence. The trial court, while deciding Issues No. 1 and 2, recorded a finding that the meter has shown incorrect reading of the electricity consumption and consequently decided both the Issues in favour of the plaintiff and against the defendants, and decreed the suit of the plaintiff and declared that the electricity bill raised by the defendants for the month of January, 1989 is invalid and without jurisdiction.

4. The submission of the learned Counsel for the appellants is that the finding of the learned trial court in respect of Issues No. 1 and 2 is illegal and perverse. The pleading of the plaintiff was that on 24th January, 1989 an information about defective meter was given to the defendants whereas the said fact was not proved from oral or documentary evidence of the plaintiff. He referred the cross-examination of PW-1 Ram Bharosi and submitted that the plaintiff specifically admitted that he has not placed on the record the complaint made by him on 24th January, 1989, in the Court. He further admitted that he did not send any written notice through registered post in respect of the meter, if it was defective. He, therefore, contended that in such circumstances the reading recorded by the meter reader was binding on the plaintiff and, as such, the impugned judgment and decree passed by the trial court be set-aside and the plaintiff's suit be dismissed.

5. On the other hand, the learned Counsel for the plaintiff-respondent contended that the judgment passed by the trial court is based on oral and documentary evidence produced by both the parties. The plaintiff placed on the record the details of electricity consumption for last three years i.e. January, 1986 to December, 1988 in order to show that bill of such a huge amount was never issued to the plaintiff; the above details make it clear that there was defect in the meter and the trial court rightly decreed the suit and no interference in the said finding of the trial court is called for by this Court. I have considered the submissions of the learned Counsel for the parties and examined the impugned judgment as well as the record of the trial Court.

6. The plaintiff himself pleaded in the plaint that after receipt of the bill on 24th January, 1989 he requested the defendants to get the meter tested by Electrical Inspector but they did not pay any heed thereto and gave a threatening to disconnect the electricity connection. The defendants specifically pleaded that the plaintiff did not make any complaint in respect of any defect in the meter or recording of wrong units of electricity consumption. In case the electricity meter was defective then it was open for the plaintiff to get the meter tested under Section 26 of the Act of 1910 by the Electrical Inspector. PW-1 Ram Bharosi in his statement specifically admitted that the application which was given by him to defendants was returned back to him and he has not placed the same on the record of the case. He has not stated specific date i.e. 24th January, 1989 in his statement which has been mentioned by the trial court in its finding that PW-1 made a complaint to the defendants about defective meter on 24th January, 1989. The particular date i.e. 24th January, 1989 is neither available in oral evidence nor documentary evidence produced on behalf of the plaintiff.

7. In order to show the average electricity consumption in the previous years, the plaintiff has filed Schedule A and a bare perusal thereof would show that there is no consistency in respect of electricity consumed by the plaintiff even in seasonal period; Schedule A shows that in January, 1986 the plaintiff consumed 9965 units whereas in January, 1987 the consumption was of 4235 units and in January, 1988 it was of 9070 units. It further shows that in March, 1986 the consumption was only of 5 units, whereas in September, 1986 it was of 11750 units. From the record of the case it is not proved that any written complaint or notice in writing about defective meter was given by the plaintiff to the defendants.

8. The Hon'ble Supreme Court in Bombay Electricity Supply & Transport Undertaking v. Laffans (India) (P) Ltd. and Anr. : AIR2005SC2486 , considered the provisions of Section 26 (6) of the Electricity Act, 1910, and observed that what is contemplated under Section 26(6) of the Act of 1910 is a running meter, but which on account of some technical defect registers the amount of energy supplied or the electrical quantity contained in the supply beyond the prescribed limits of error. It contemplates a meter which is either running slow or fast with the result that it does not register the correct amount of energy supplied. There is an additional reason for coming to such a conclusion. Section 26(6) confers power upon the Electrical Inspector to estimate the amount of energy supplied to the consumer or the electrical quantity contained in the supply, during such time, not exceeding six months, as the meter shall not, in the opinion of such Inspector, have been correct. Where the meter is running slow or fast, it will be possible for the Electrical Inspector to estimate the amount of energy supplied to the consumer by determining the extent or percentage of error in recording the supply, whether plus or minus. However, where the meter is burnt or is completely non-functional, such an exercise is not at all possible. Therefore, Section 26(6) can have no application in a case where a meter has become completely non-functional on account of any reason whatsoever. The Hon'ble Apex Court further observed that where the meter was not correct as per allegation of the consumer but none of the parties has referred the dispute to the Electrical Inspector, then according to Section 26(6) the readings would bind both the parties.

9. The ratio of the aforementioned judgment of the Hon'ble Apex Court does apply in the present matter as in the present case there is no dispute that no written complaint or notice in writing was ever served by the plaintiff upon the defendants for the meter being defective and, therefore, the matter was not referred to the Electrical Inspector. It is not a case of complete non-functional of the electricity meter where Section 26(6) is not applicable; it is a case where the meter was running but according to the plaintiff it was not showing correct reading, however, in absence of any writtencomplaint or notice in writing by the consumer, the matter could not be referred to get the meter tested by the Electrical Inspector under Section 26(6) of the Act of 1910 and, in these circumstances, the meter readings would bind the appellants and the respondent both. Thus, I am of the view that the learned trial court committed an illegality in deciding Issues No. 1 and 2, both, and in recording the finding that the bill raised by the defendants for the month of January, 1989, in view of the meter readings of earlier months bill, is not tenable and the same is liable to be set aside.

10. Consequently, the appeal is allowed. The impugned judgment passed by the trial court is set-aside and the plaintiff's suit is dismissed with no order as to costs.