Santosh Kumari vs Bses Yamuna Power Ltd.
2012 Latest Caselaw 5826 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            RFA NO. 140/2009

         SANTOSH KUMARI                                   ..... Appellant

                    versus

         BSES YAMUNA POWER LTD.                         ..... Respondent

                                                Date of Decision: 27.09.2012

Advocates who appeared in this case:

For the Appellant                 :    None
For the Respondent                :    Mr.Manish Srivastava, Advocate

CORAM:
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

SUDERSHAN KUMAR MISRA, J. (ORAL)

1. This appeal has been instituted by the plaintiff-Smt. Santosh Kumari, against the decision of the court below declining grant of damages caused due to closure of the appellant's shop for two years, i.e., from 05.10.2001 to 10.9.2003, allegedly due to illegal removal of electricity meter.

2. To begin with, the appellant had instituted a suit bearing CS No.655/2006 praying for declaration/mandatory permanent injunction, as well as recovery against the defendant, BSES Yamuna Power Ltd. It was the case of the plaintiff that she was operating an Atta Chakki on the

premises bearing No.C-449 (Old No.48/1), Main 100 Ft. Road, Chajjupur, Shahdara, Delhi-110032. Initially, the premises had an electric connection supplied by the respondent for a load of 2 HP. Later, the appellant obtained a license from the Municipal Corporation of Delhi for running a 10 HP Atta Chakki. On that basis, she applied for enhancement of the connected load to 10 HP. This was sanctioned and, as a consequence thereof, the electric meter installed in the premises was changed from 10 AMP to 20 AMP rating by the respondent. However, despite the increase in load from 2 HP to 10 HP in June, 1983, the respondent/defendant continued to charge misuse charges from the appellant.

3. By the suit, the plaintiff claimed refund of Rs.1,10,000/-, illegally recovered by the respondent towards the aforesaid misuse charges and a further Rs.2 lakhs towards, "loss & damage for defamation, mental agony, Tortures and financial & social set back due to illegal removal of power meter of Atta Chakki", along with interest.

4. On the pleadings of the parties, the following issues were framed by the trial court:

"(i) Whether the meter No.8900053 has not been removed, if so to what effect? (OPD)

(ii) Whether the plaintiff is entitled to Rs.2 lacs for loss, damage and mental agony? ((OPP)

(iii) Whether the plaintiff is entitled to Rs.1,10,000/- as claimed towards misuse charges and minimum charges paid by the plaintiff? (OPP)

(iv) Whether the plaintiff is entitled to the declaration as prayed for? (OPP)

(v) Whether the plaintiff is entitled to the mandatory injunction as prayed for? (OPP)

(vi) Whether the plaintiff is entitled to permanent injunction as prayed for"

5. After trial, the court below held that the appellant was entitled to recover a sum of Rs.1,10,000/- towards refund of misuse charges and minimum charges illegally levied by the respondent, along with a further sum of Rs.20,000/- for loss, damages and mental agony. A decree of declaration was also passed declaring that the misuse charges and minimum charges on the power meter pertaining to the aforesaid Atta Chakki of the appellant were illegal, and that the plaintiff was not liable to pay the same with effect from June 1983. It was also held that the act of the respondent of for removing the power meter bearing K.No.NN-612-1308850 for non- payment of the above was wrong and illegal. Consequently, the respondent was directed to either reinstall the meter, or in the alternative, to install a new meter in place of the said meter. The respondent was also injuncted permanently from claiming misuse charges, minimum charges or effecting any other illegal recovery from the plaintiff. The respondent was also restrained from disconnecting the power meter in question. Proportionate costs were also awarded in favour of the plaintiff/appellant.

6. While deciding the issue No.2, the court below was conscious of the fact that levy of misuse charges as well as minimum charges upon the

appellant were illegal and unjustified, and that the appellant was entitled to refund of the same and since the appellant had suffered mental agony and harassment on account of these illegal acts of the respondent, she shall also be entitled to compensation/damages. However, the appellant had not given any basis or yardstick for claiming the same. In other words, according to the court below, no evidence was led by the appellant in this behalf. Consequently, the court below awarded a notional amount of Rs.20,000/- to the appellant on this account.

7. This finding of the Court below has been impugned by the appellant on the ground that the court below has, "adopted a very unusual yardstick to quantify the damage suffered....."

8. I notice that the grounds of appeal do not refer to any evidence whatsoever that may have been led by the appellant in support of her claim for damages to the tune of Rs. 2 Lacs on account of defamation, mental agony etc., as mentioned above.

9. Counsel for the respondent states that, in fact, no evidence whatsoever was led by the appellant in this regard. The trial court record also does not show any evidence apart from a bald statement on affidavit by way of examination-in-chief that the appellant has suffered a loss of Rs. 2 Lacs. No attempt has been made to substantiate this amount by way of evidence. The appellant has also not bothered to appear before this Court even though the appellant had herself applied for early hearing in the matter and the matter was placed today for final hearing by orders passed by this Court on 12.07.2012.

10. I notice that in the grounds of appeal it is the case of the appellant herself that, "the damage caused is actual when the shop has remained closed". If this is so, then the onus lay heavily on the appellant to demonstrate through evidence, the actual loss caused to her due to the closure of the shop. The period of closure, the volume of business and goodwill lost, etc. ought to have been properly proved. None of this has been done.

11. Under the circumstances, the appeal is without merit and is dismissed.

SUDERSHAN KUMAR MISRA, J.

SEPTEMBER 27, 2012 dr/rd