R.R. GOPALA RAJAGOPAL vs Chairman, Tamil Nadu Electricity Board

THIS is a complaint under Section 17 read with Section 12 of the Consumer Protection Act.

THE complainant is the owner, publisher and editor of the Tamil political weekly "Nakkheeran". This weekly is engaged in investigative journalism and has incurred the wrath of the State Government and its officials. THE business premises of this weekly is the entire upstair portion of the house bearing door No. 49, Harrington Road, Madras-31. THE ground floor is occupied by the house owner Mr. Vijayakumar. A separate electricity meter is installed for the upstair portion occupied by the complainant. Electricity charges are paid by the complainant, but the bills and receipts are in the name of the house owner. THE premises occupied by the complainant has air-conditioners, tape recorders, TV sets and all other facilities. THE case of the complainant is briefly as follows: In the evening on 18.12.91 the workmen of the opposite party, Tamil Nadu Electricity Board were digging the electric cables nearby and shortly thereafter the electricity supply to the complainant''s premises and several other buildings in the surroundings was cut off. Telephonic calls were made to the Assistant Engineer, Chetpet Electricity Board Office and the complainant and others were told that there was cable fault. Phone calls were made on the next day also and the staff of the complainant made personal visits to the Assistant Engineer''s Office at Chetpet, but in vain. THE complainant thereafter installed a generator in his premises on 19.12.91 for carrying on the work. THE version of the officials that there was cable fault was not convincing and according to the complainant this was a political and bureaucratic victimisation. On 19.12.91 electricity supply to M/s. Dhanam Printers, where the complainant was carrying on printing and binding work was cut off. Enquiry revealed that it was cable fault. THE complainant sent telegrams on 21.12.91 to the opposite party, Assistant Engineer, Chetpet, concerned Minister and other influential people. Again on 23.12.91 the complainant sent a telegram. THE matter was reported in Tamil dailies "Dinamani" and "Dinakaran" and English daily "Statesman". On 24.12.91 a registered letter was sent to the opposite party. Advertisements were also made by the complainant in ''Malai Murasu'', ''Dinakaran'' and ''Dinapuratchi'' stating the reasons for nonpublication of Kakheerah. THE owners of the neighbourhood houses became restive and raised protest. THE Electricity Board office at Chetpet restored electricity connection to the neighbouring 5 houseson24.12.91 by temporary overhead cables from the main boards of distant houses. On 30.12.91 the ground floor of the house occupied by the complainant was given electricity connection by such overhead wire. But the owner of the house was warned against helping the complainant by lending electricity supply to the upstair portion. THE complainant was therefore constrained to file a writ before the High Court on 3.1.92 and notice was ordered. At 3.25 p.m. on that day the copies of the petitions were served on the Assistant Engineer, Chetper. At 4.30 p.m. on that day electricity supply was given to the complainant''s premises. On 6.1.92 the electricity supply was restored to M/s. Dhanam Printers. On account of the conduct of the opposite party, the complainant has been put to much hardship, loss and agony. He has therefore come forward with this claim for compensation in the sum of Rs. l,64,8l0/-. The Superintending Engineer, Tamil Nadu Electricity Board has filed a counter affidavit by way of reply denying all the allegations of the complainant. It is pointed out that the electricity connection to the premises in question has been given in favour of Mr. P.R. Vijayakumar, who is the owner of the premises and the complainant is not the account holder. It is denied that there was any digging work by the workmen of the opposite party on 18.12.91 near the complainant''s premises. On 19.12.91 complaints were received from few consumers of Harrington Road that there was no supply to their premises. The fuse call gang declared in the afternoon that the main cable feeding to a length of 200 metres of the area was faulty and this affected supply not only to the complainant''s premises but to others as well. The Corporation of Madras was applied for approval for digging the road and finding out the fault. Meanwhile all the affected consumers including the complainants premises were given supply by temporary extension from neighbouring consumers by overhead wires. The work on the cable rectification by digging the road could not be carried on because of the intervening holidays on 22.12.91 (Sunday), 25.12.91 (Christmas), 29.12.91 (Sunday), 1.1.92 (New Year''s Day) and 2.1.92 (State Bandh). On account of the temporary connection there was uninterrupted supply. The cable fault rectification was completed only on 3.1.92 and regular connections were given thereafter. It is emphatically denied that there was no cable failure and supply was disconnected at the instance of political bosses to satisfy revenging instincts. It is also denied that electricity connection was disconnected to M/s. Dhanam Printers. There was interruption of supply due to cable fault to M/s. Dhanam Printers also. It is denied that any threat was meted out to any printing press if it come forward to help to Nakkheeran. As already stated, temporary connection was arranged to all affected consumers'' in Harrington Road and the connection to the complainant''s premises was also restored. The owner Mr. Vijayakumar is having two electricity service in his premises. Supply was extended to him and if supply was not given to the tenant in the upstairs, that might probably be due to some dispute between the owner and the tenant, namely the complainant. Nobody from the Electricity Board threatened the owner against giving connection to the upstair portion. The allegations of victimisation motivated by malice, vengeance and oppressive attitudes are denied and disputed. It is further contended that even according to the complainant there was no negligence on the part of the opposite party and hence the complaint under the Consumer Protection Act is bound to fail, and the complaint is liable to be rejected. The allegations about damages suffered by the complainant are denied and disputed. It was prayed that the complaint should be dismissed with costs.

Exhibits Al to A37 and B1 are marked. P.W. 1 and P.Ws. 1 to 3 are examined.

A preliminary point about the maintainability of this complaint for compensation arises for consideration and we shall now deal with it. It is the case of the complainant that he is an investigative journalist who is the owner, editor and publisher of the Tamil political weekly "Nakkheeran", which is dedicated to factual reporting of administrative lapses, corrupt practices, unjust activities etc., of the Government, its officials, industrialists, public persons and unsocial elements. As a result thereof the complainant has incurred the wrath of the State Government and its officials and its active supporters and has been subjected to various harassments catalogued in the complaint. The business of the complainant is carried on in the rented first floor premises of the houses bearing door No. 49, Harrington Road, Madras belonging to P.W. 1. There is a separate electricity meter for the first floor and electricity charges are paid directly by the complainant. On 13.12.91 in the evening some workmen of the opposite party, Electricity Board were found digging electric cables and shortly thereafter there was disconnection of electric supply to the complainant''s building and several other buildings in the surroundings. The Assistant Engineer, Chetpet who was contacted over the phone about the power failure communicated cable fault. On the next day phone calls and personal visits were made to the Assistant Engineer''s Office, but of no use. According to the complainant the alleged cable fault is a take and for the purpose of penalising the complainant and its publication, the supply of electric energy has been disconnected on the pretext of cable fault and in order to conceal the avowed object, several other buildings have also been subjected to this disconnection. It was a case of political bureaucratic victimisation in a bid to oppress the profession and finish off the complainant. On 19.12.91 electric supply to M/s. Dhanam Printers, where the complainant was carrying on printing work was also disconnected and a threat was admnistered by the officials of the opposite party to other printing presses, who come forward to do Nakkheeran''s printing work. Repeated phone calls, personal contacts, telegrams and publications in news papers were of no avail and there was no restoration. As the owners of the neighbourhood became restive, the officials of the opposite party restored electricity connection on 24.12.91 to the neighbouring houses by drawing overhead cables from main boards of distant houses which were not under the purview of the said coercive power cut. The complainant''s premises was singled out and connection was not given. Subsequently on 30.12.91 the officials of the Electricity Board gave connection to the ground floor of the complainant''s premises occupied by the owner, P.W. 1 under a severe warning that he should not lend supply to the upstair portion, where the complainant''s office is situate. On the reopening of the High Court after the Christmas vacation, the complainant filed a writ before the High Court on 3.1.92 for restoration of the electric connection and notice was issued and served on the Assistant Engineer, Chetpet at 3.25 p.m. on that day. Only the reafter at about 4.30p.m. regular electricity connection was restored to the complainant''s premises and other premises.

UNDER Section 14(1)(d) of the Consumer Protection Act, the Forum constituted under the Act is empowered to award compensation to the consumer "for any loss or injury suffered by the consumer due to the negligence of the opposite party". What is negligence? Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Negligence has been defined by Winfield as" the breach of a legal duty to take care which results in damage undesired by the defendant to the plaintiff" (emphasis ours). The term "negligence" has been frequently defined by Courts and Text Book writers in various terms, such as carelessness, want of absence of care, failure to exercise such care and skill as the circumstances require, want of deligence and care reasonably required under the circumstances, failure to use ordinary precautions, failure of duty to take care, omission or disregard of a legal duty, and in many other cognate terms. The definition given by Baron Alderson in the celebrated English case of Blyth v. Birmingham Water Works Company (1850-II Exch. 781) is often quoted with approval by English and American Courts. Learned Baron has defined it in the following terms: "Negligence consists in the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate human affairs, would do, or doing something which a prudent and reasonable man would not do." This is also the definition which has been adopted and followed by Courts in India. From the foregoing discussion it would be clear that the acts attributed to and alleged against the opposite party do not constitute negligence, but intentional and malicious wrong doing inflicted upon the complainant by the officials of the opposite party out of rancour and illwill with the object and purpose of destabilising and sabotaging the complainant''s publication. "Negligence" and "intention" are contradictory terms. In fact negligence is the antithesis of intention. Intention is not an element of negligence. Negligence is only concerned with inadvertant harm and therefore stands in marked contrast to intentional wrong. In negligence, the idea of intention is totally excluded and the absence of an intent or purpose to inflict the injury complained of, is essential to the legal conception of negligence. It is the absence of intent or purpose which distinguishes negligence from other torts. (Law of Negligence by C.K. Rao Second Edition page 11). Negligence is not malice, and they are not confounded together. Malice is distinguishable from negligence in that it arises from some purpose, while negligence arises from absence of purpose. Again malice arises from evil motive or purpose, and negligence arises from failure of purpose. Malice is imputable to the defect of the heart, negligence to a defect of the intellect. (Corpus Juris Secundum Vol.65 page 316 quoted in Law of Negligence by C.K. Rao page 12). Under Section 14(1)(d) of the Consumer Protection Act compensation can be awarded for any loss or injury suffered by the consumer due to the negligence of the opposite party, but not due to any intentional and/or malicious wrong doing. Such intentional or malicious wrongdoing is no doubt an actionable tort, but the remedy lies in the regular Court of civil jurisdiction. The provisions of the Consumer Protection Act cannot be invoked. Hence this complaint claiming compensation for intentional and malicious wrong doing of the opposite party''s officials is not maintainable. In the result, without prejudice to the right of the complainant to seek proper relief in the proper Forum, we dismiss the complaint without costs.

BEFORE parting with this case, we would like to emphasis the need for the amendment of Section 14(1)(d) of the Consume; Protection Act so as to empower the Forums to award compensation for any loss or injury suffered by the consumer not only due to the negligence of the opposite parties, but also due to any illegal act or omission on the part of the opposite parties. Complaint dismissed.