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Dr. Jairaj Behari vs U.P. Electric Supply Co. Ltd.

High Court Of Judicature at Allahabad|19 February, 1941


1. The following points have been referred to us for decision by the learned Judge of the Small Cause Court, Allahabad, under Order 1 of Order 46, Civil P.C.:
1. Whether a person entitled to supply of energy Under Section 22, Electricity Act of 1910, has a cause of action for a suit for damages on account of the ; licensee's failure to supply energy according to Section 22 and para. 6 to the Schedule? 2. Whether the civil Court including the Judge, Small Cause Court, has jurisdiction to entertain such a suit?
2. It appears that the plaintiff, Dr. Jairaj Bihari, recently built a house in a locality which is known as George Town Extension Scheme. The defendant, the U. P. Electric Supply Co. Ltd., is the licensee for the distribution of electric energy in the town of Allahabad. It is admitted that the house of the plaintiff is within the "area of supply."
3. In January 1989 the plaintiff sent a requisition to the defendant to supply electric energy. The defendant was informed that the plaintiff was desirous to occupy his newly built house on 14th February. In anticipation of the supply of energy the plaintiff alleges that he got his house installed for alternating current. The defendant however failed to connect the plaintiff's house. The plaintiff has brought the present action against the defendant company alleging a breach by the defendant of the statutory obligation imposed by Section 22 of Act 9 of 1910 and para. 6 of the Schedule appended to the Act, and damage ensuing as the result of that breach. The plaintiff has assessed his damage at Rs. 5 per day from 1st April 1939 to 14th September 1939. The defendant resisted the claim on a variety of grounds. The only point with which we are concerned at this stage relates to the question of jurisdiction. The defendant alleges that even if it be assumed that the plaintiff has suffered damage and that the defendant was bound to supply energy, the only remedy open to the plaintiff is to make a complaint under Section 42(b) of the Act. It is emphatically denied that the plaintiff has any right to claim damages in a civil Court. It is further contended that no civil liability is imposed upon the defendant by the Act. It is argued that the Act exhaustively provides remedies for every contravention of the provisions of the Act and the rights and the liabilities of the parties are limited to the provisions of the Electricity Act. The case has been argued at length with great ability by learned Counsel for the parties. Before examining the authorities cited before us, it would be convenient to refer to the relevant provisions of the Act. Section 22, Electricity Act, provides:
Where energy is supplied by a licensee, every person within the area of supply shall, except in so far as is otherwise provided by the terms and conditions of the license, be entitled, on application, to a supply on the same terms as those on which any other person in the same area is entitled in similar circumstances to a corresponding supply.
4. Section 23 enjoins that charges for energy should be made without undue preference. Paragraph 6 of the schedule to the Act says:
Where... a requisition is made by the owner or occupier of any premises situate within the area of supply requiring the licensee to supply energy for such premises, the licensee shall, within one month from the making of the requisition or within such longer period as the Electric Inspector may allow, supply....
5. The above quoted provisions lay down the rights and obligations of the prospective consumer and the licensee respectively. It is manifest that the defendant was bound to supply energy to the plaintiff unless he had a reasonable cause for failure to do so. What is reasonable cause will be determined by a reference to the "Act and is a question that will be subject of enquiry by the trial Court. Section 42(b) of the Act says:
Whoever being a licensee, in contravention of the provisions of this Act or of the rules thereunder or in breach of conditions of his license and without reasonable excuse, the burden of proving which shall lie on him, discontinues the supply of energy or fails to supply energy.... shall be punishable with fine which may extend to one thousand rupees and, in the case of a continuing offence or default, with a daily fine which may extend to one hundred rupees.
6. The aforesaid section does not make any provision to indemnify the applicant for the supply of energy for any loss that he might have sustained in consequence of failure of the licensee to supply energy. It is conceivable that the licensee may deliberately and with the intention to cause damage to the party concerned, may refuse to supply energy. Such failure may result in causing serious loss and inconvenience to the applicant. The penalty provided by law will in no way satisfy the aggrieved party. It is true that the Magistrate trying the case may direct that a portion of the fine may be paid to the complainant by way of compensation but the complainant cannot claim as of right compensation from the criminal Court. The only Court that may award compensation, on proof of damage, is the civil Court. In the absence of a clear provision barring the jurisdiction of the civil Court, we see no reason why the plaintiff should not seek redress from that Court. We have not been referred to any section of the Act which bars the jurisdiction of the civil Court. It is however argued that the scheme of the Act indicates that it was not intended that the licensee should be harassed in defending numerous civil suits that may be brought by the residents within the area of supply. It is contended that a summary remedy is provided by Section 42 for the enforcement of the right which has been conferred upon the resident of the area of supply by Sections 22 and 23 of the Act. Our attention has been drawn to several sections of the Act where provision has been made for the award of compensation in case of loss or damage by a reference of the dispute to arbitration. Sections 13 to 16 of the Act prescribe directions which have to be followed by the licensee in the execution of the work of laying down electric supply lines, etc. Where the licensee makes default in complying with any of the provisions Lal laid down in those sections, he is to make full compensation for any loss or damage and in case of difference or dispute as to the amount of compensation, the matter is to be determined by arbitration. It is manifest that in such cases a civil suit is impliedly barred because a remedy is provided by the Act itself to compensate the party suffering any damage or loss. Section 19 of the Act enjoins:
A licensee shall, in exercise of any of the powers conferred by or under this Act, cause as little damage, detriment and inconvenience as may be, and shall make full compensation for any damage, detriment or inconvenience caused by him or by any one employed by him.
Sub-clause (2) of the section provides:
Save in the case provided for in Section 12, Sub-section (3), where any difference or dispute arises as to the amount or the application of such compensation, the matter shall be determined by arbitration.
7. Here again the jurisdiction of the civil Court is impliedly barred and the remedy of the aggrieved party is limited to arbitration. All the sections referred to above relate to the stage anterior to the commencement of supply. Part 2 deals with the stage when the supply of energy is commenced. Section 24 deals with a case where the supply of energy is discontinued to a consumer by the licensee in consequence of non-payment of the charge for energy. The licensee is given the power by this section to discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid. In case of difference or dispute between the consumer and the licensee, the matter is to be referred to an Electric Inspector who shall be appointed by Government for the settlement of the dispute. This section again provides a speedy remedy for the settlement of the dispute. We however find no provision in the Act under which the aggrieved party may be compensated for the inconvenience, loss or damage suffered by him in consequence of the breach of Sections 22 and 23. It is permissible therefore to infer that in such cases the party suffering damage or inconvenience would be entitled to seek his remedy in the civil Court which alone is vested with the jurisdiction to try all suits of a civil nature excepting suits the cognizance of which is expressly or impliedly barred. Our examination of the provisions of the Act does not lead us to the inference that the jurisdiction of the civil Court is barred in cases where a breach of statutory duty has been made by the licensee in declining to supply energy upon a proper requisition made to him by a resident within the area of supply.
8. Now, we proceed to examine the authorities that have been cited before us by learned Counsel for the parties. The only case of an Indian High Court that has been cited before us is Municipal Committee, Amritsar v. Shankar Das (26) 13 A.I.R. 1926 Lah. 349. A learned single Judge of that Court in interpreting Section 22, Electricity Act, held that there was nothing in the Electricity Act which barred, either expressly or impliedly, a suit for damages against licensee for failure to supply energy. In the absence of any authority of our own Court or of other High Courts in India, we have to seek guidance from the principles enunciated by the British Courts. The case that has been very strongly relied upon by the defendant is Atkinson v. Newcastle and Gateshed Waterworks Co. (1877) 2 Ex. D 441. This was a case for recovery of damages from the defendant company. The defendants were incorporated with certain powers of taking land and supplying and maintaining waterworks. The duty of the defendants was defined by various sections of the Act. Section 42 of the Act enacted:
The undertakers shall at all times beep charged with water under such pressure as aforesaid (which by Section 35 is such a pressure as will make the water reach the top storey of the highest houses within the limits), all their pipes to which fireplugs shall be fixed and shall allow all persons at all times to take and use such water for extinguishing fire, without making compensation for the same.
9. The plaintiff was the owner and occupier of a dwelling house, etc., situate within the limits prescribed by the defendants' Act for the supply of water by the defendants. The plaintiff's house caught fire and was burnt down. It was alleged that the defendants did not perform their statutory duty by getting their pipes charged with water at the requisite pressure. In consequence of the negligence of the defendants the plaintiff did not get sufficient supply of water to extinguish the fire. The facts were found in favour of the plaintiff and a decree was passed by the trial Court for damages. The Court of appeal however reversed the decree and held that the Statute gave no right of action to the plaintiff. Certain observations of Lord Cairns, L. C, have been very strongly relied upon in support of the defendant's contention and in particular the following passage:
Apart, then, from authority, I should say without hesitation that it was no part of the scheme of this Act to create any duty which was to become the subject of an action at the suit of individuals,, to create any right in individuals with a power of enforcing that right by action; but that its scheme was, having Lal d down certain duties, to provide guarantees for the due fulfilment of them, and where convenient to give the penalties, or some of them to the persons injured, but where not convenient so to do, there simply to impose public penalties, not by way of compensation but as a. security to the public for the due performance of the duty.
10. The above quotation at first sight certainly supports the defendant's contention, but from a close study of the ruling and the particular provision of the Act which was the subject of consideration it would appear that the exposition of law is limited to the facts of the particular case. It may be mentioned that this ruling has held the field up to the present time and has never been dissented from. It has however been explained in numerous cases, some of which will be noticed presently. I may first refer to Section 43, Waterworks Clauses Act. It provides:
If, except when prevented as aforesaid, the undertakers neglect or refuse to fix, maintain, or repair such fireplugs, or to furnish to the town commissioners a sufficient supply of water for the public purposes aforesaid, upon such terms as shall have been agreed on or settled as aforesaid, or if, except as aforesaid, they neglect to keep their pipes charged under such pressure as aforesaid.. they shall be liable to a penalty of £10, and shall also forfeit to the town commissioners, and to every person having paid or tendered the rate, the sum of 40 shillings, for every day during which such refusal or neglect shall continue after notice in writing.
11. The first distinguishing feature is that a provision has been made to compensate the injured party. Section 42, Electricity Act, however makes no such provision. As stated above, the insertion of a penal clause would not compensate the injured person and therefore it is only just and fair that he should be allowed to claim compensation by instituting a suit in a proper Court. In Read v. Croydon Corporation (1938) 4 All. E.R. 631, Atkinson v. Newcastle and Gateshead Waterworks Co. (1877) 2 Ex. D. 441 was discussed at length and it was held that it was authority for holding that a civil suit for recovery of damages for breach of duty enjoined by Sections 35 and 42, Waterworks Clauses Act, was barred. It was however no authority for the general proposition that in no case an individual had a civil remedy if he suffered damage in consequence of the negligence of the licensee or for non-performance of a statutory duty imposed upon him. The correct principle appears to have been Lal laid down by Stable J. in Read v. Croydon Corporation (1938) 4 All. E.R. 631 at p. 652:
... and that one of the means of determining what that intention is, is to ascertain whether the duty is a duty owed primarily to the state or community, and only incidentally to the individual, or primarily to the individual or class of individuals, and only incidentally to the state or community. Adopting that statement of principle, while there is no doubt that, for breaches of some of the statutory duties imposed by the Waterworks Clauses Act, the penalty is exclusive, it is difficult to believe that the Legislature intended that it should be exclusive in the case of every breach of duty under the Act.
12. Applying this principle to the present case, it is manifest that Section 22 is for the benefit of individuals and has no concern with the state or community as such. It was purely for his own convenience that the plaintiff applied for the supply of energy and the failure of the defendant to supply energy was a breach in relation to the plaintiff alone. The next case cited by the defendant is Clegg, Parkinson and Co. v Early Gas Co. (1896) 1 Q.B. 592. In this case it was held:
An action will not lie against a gas company, to which the provisions of the Gasworks Clauses Act, 1871, apply, for damages sustained by a consumer by reason of their failure to give him a supply of gas sufficient in amount and in purity to satisfy the requirements of the Act. The consumer's only remedy is to proceed for penalties under 8. 36 of the Act.
At p. 594 Wills J. remarked:
In my opinion this is one of those cases in which the principle applies, that, where a duty is created by statute which affects the public as the public, the proper remedy if the duty is not performed is to indict or take the proceedings provided by the statute.
13. This principle has been more fully enun-ciated in Read v. Croydon Corporation (1938) 4 All. E.R. 631. In our opinion, this case is no authority in support of the defendant's contention. The next case is Stevens v. Aldershot Gas, Water and District Lighting Co. (1933) 102 L.J.K.B. 12. In this case it was held by a learned Judge on the original side:
Where a statutory duty imposed on undertakers t6 supply electricity and default is made in ensuring a proper and sufficient supply which causes loss to a consumer who has received his supply by virtue of the statutory right and not under a special contract, no action lies at common law for damages for negligence against the undertakers. The only remedy is to enforce against the undertakers the penalty provided by statute.
14. The defendant had undertaken to supply current at 100 volts. Later on they increased the pressure on their mains from 100 to 200 volts and supplied the plaintiff with a transformer in order that current should continue to be available to her apparatus at 100 volts pressure. As a result of this, the plaintiff claimed that the apparatus was thrown out of action, and consequently several assistants could not work, and takings of her business were reduced. The plaintiff's suit was dismissed. The learned Judge in summing up his conclusions remarked:
It may be said that they have failed to put in an adequate transformer and that this may be negligence. That is only saying again that they have failed to comply with a statutory duty to supply current at 100 volts.
15. It is difficult to reconcile some observations in this case with those in other cases. It may however be mentioned that in this case the defendants had undertaken to supply current at 100 volts for the benefit of the general public and not for a particular in 269 dividual. Learned Counsel for the plaintiff has relied upon several cases, some of which may be noticed now. One of them is Ross v. Rugge-Price (1876) 1 Ex. D. 269. In this case it was held that the specific remedy provided by Section 29, Forest of Dean Act, for enforcing the rules did not exclude the right of action for injuries caused by a breach of them. At p. 273 Amphlett, B. remarked:
If that is the case, then we are driven to that general principle of law which is not disputed, that, unless you find some remedy given in the statute where a benefit is given to an individual, or find in the statute clearly that it was not intended to give him any such remedy, the law there implies that he may have his common-law remedy.
16. We are not concerned with the facts of this case and therefore we have only referred to the principle of law adumbrated By the learned Judge. The only point against this case is that Atkinson v. Newcastle and Gateshed Waterworks Co. (1877) 2 Ex. D. 441 was decided a year later by the Court of appeal which reversed the judgment of the trial Court. The latter judgment has been cited with approval in this case. We are however of the opinion that Atkinson v. Newcastle and Gateshed Waterworks Co. (1877) 2 Ex. D. 441 is not opposed to the case of the plaintiff and that this case is a good authority for the plaintiff. The next case referred to is Groves v. Wimborne (Lord) (1898) 2 Q.B. 402. In this case the Court of appeal held:
An action will lie in respect of personal injury occasioned to a workman employed in a factory through a breach by his employer, the ocoupier of the factory, of the duty to maintain fencing for dangerous machinery imposed upon him by Section, 6 Sub-section (4), Factory and Workshop Act, 1878.
17. At page 407 A.L. Smith L.J. said:
On proof of a breach of this statutory duty imposed on the defendant and injury resulting to the laintifi therefrom prima facie the plaintiff has a good cause of action .. Could it be doubted that if Section S stood alone and no fine were provided by the Act for contravention of its provisions, a person injured by a breach of the absolute and unqualified duty imposed by that section would have a cause of action in respect of that breach. Clearly it could not be doubted. That being so unless it appears from the whole 'purview' of the Act, to use the language of Lord Cairns in Atkinson v. Newcastle and Gateshed Waterworks Co. (1877) 2 Ex. D. 441 that it was the intention of the Legislature that the only remedy for breach of the statutory duty should be by proceeding for the fine imposed by Section 82.... The Act now in question as I have said was clearly passed in favour of workers employed in factories and workshops, and to compel their employers to perform certain statutory duties for their protection and benefit. It is to be observed in the first place that under the provisions of Section 82 not a penny of the fine necessarily goes to the person injured or his family.... It seems to me that the fine is inflicted by way of punishment of the employer for neglect of the duty imposed by the Act.... This consideration and the fact that whatever penalty the Magistrate inflicts does not necessarily go to the injured workman or his family lead me to the conclusion that it cannot have been the intention of the Legislature that the provision which imposes upon the employer a fine as a punishment for neglect of his statutory duty should take away the prima facie right of the workman to be fully compensated for injury occasioned to him by that neglect.
18. We cannot do better than apply the reasoning given by the learned Judge to the facts of the present case in order to decide whether a right of action is or is not barred. The penalty provided by Section 42 apparently is for the enforcement of the statutory obligation undertaken by the licensee. Not a penny of the fine inflicted by the Magistrate may go to the plaintiff. In the circumstances the prima facie right of the plaintiff to seek relief from the civil Court remains unimpaired as nothing is said to the contrary in the Act. We now come to a case decided by the House of Lords in Butler (or Black) v. Fife Coal Co. Ltd. (1912) 1912 A.C. 149. In this case the husband of the plaintiff was killed by an outbreak of poisonous gas while working in the employment of the defendants, a limited company, in a coal mine of which they were owners. In an action for damages at common law and alternatively under the Employer's Liability Act, 1880, the sheriff, substitute found that the defendants were liable inasmuch as they had failed to appoint officials competent for the working of the mine and he assessed the damages at £ 100. One of the question for consideration was whether a suit at common law was maintainable. The defendants pleaded that the penalty provided in the Act was exclusive and no civil liability existed. Lord Kinnear at page 165 said:
If the duty be established I do not think there is any serious question as to the civil liability. There is no reasonable ground for maintaining that a proceeding by way of penalty is the only remedy allowed by the statute. The principle explained by Lord Cairns in Atkinson v. Newcastle and Gateshed Waterworks Co. (1877) 2 Ex D 441 and by Lord Herschell in Cowley v. Newmarket Local Board (1892) A.C. 345 solves the question. We are to consider the scope and purpose of the statute and in particular for whose benefit it is contended. Now the object of the present statute is plain. It was intended to compel mine owners to make due provision for the safety of the men working in their mines and the persons for whose benefit all these rules are to be enforced are the persons exposed to danger. But when a duty of this kind is imposed for the benefit of particular persons there arises at common law a correlative right in those persons who may be injured by its contravention. Therefore I think it is quite impossible to hold that the penalty clause detracts in any way from the prima facie right of the persons for whose benefit the statutory enactment has been passed to enforce the civil liability.
19. Looking to the scheme of the Electricity Act it would appear that some of the provisions are for the benefit of the public while others are for the comfort and convenience of private individuals. The penalty clause is only for the enforcement of the obligation undertaken by the licensee in para. 6 of the schedule. That penalty, if imposed will not and could not absolve the licensee of the breach of a duty which he owed to an individual. Simmonds v. Newport Abercarn Black Vein Steam Coal Co. Ltd. (1921) 1 KB 616 also lays down a similar proposition and holds that a civil suit will lie. The next case to be examined is Monk v. Warbey (1935) 1 KB 75. This was an appeal from a judgment of a learned single Judge. The respondent, Warbey, was the owner of a motor ear in respect of which he had an insurance policy covering damage caused by its use, but it was conceded that the policy did not cover the events which happened. The action was brought against Warbey for damages alleging a breach by him of the statutory obligation imposed by Section 35, Eoad Traffic Act, 1930. Greer L. J. discussed several authorities some of which have been noticed above. At p. 81 his Lordship summed up his conclusions as follows:
The result of the above construction may be stated as follows : Prima facie a person who has been injured by the breach of a statute has a right to recover damages from the person committing it unless it can be established by considering the whole of the Act that no such right was intended to be given. So far from that being shown in this case, the contrary is established. To prosecute for a penalty is no sufficient protection and is a poor consolation to the injured person, though it affords a reason why persons should not commit a breach of the statute.
The same learned Judge at p. 84 observes:
At various times doubts have arisen as to the circumstances which will enable the Court to determine whether or not in any particular case there can be a remedy other than or in addition to the special remedy provided by the Act. The intention of the Legislature is to be gathered from the particular Act under consideration and I doubt whether anything more lucid can be found on the subject than in the passage in Lord Cairns' judgment in Atkinson v. Newcastle and Gateshead Waterwork Co. (1877) 2 Ex D 441. I think, however, one may say this that is the Act provides a special remedy for a contravention of its provisions the prima facie rule is that that is the only remedy and the question whether that rule applies in any particular case depends upon the purview of the legislation and the language employed. The Court has sometimes resolved that question in one way and sometimes in another.
20. In Square v. Model Farm Dairies (Bourne mouth) Ltd. (1939) 2 K.B. 365 similar observations have been made and the judgment in Monk v. Warbey (1935) 1KB 75 has been quoted with approval. It will serve no useful purpose to cite any further authorities. We have given our serious consideration to the arguments addressed by learned Counsel for the parties and we have also carefully examined the authorities that were placed before us. We can find no justification whatsoever for holding that the plaintiff has no cause of action in civil Court, although he may be able to prove that he has suffered injury from non-performance of a statutory duty undertaken by the defendant. If the Act had provided a remedy as it has done for the contravention of other rules, it could be asserted with confidence that a civil remedy was barred; but for the breach of Section 22 no remedy is provided at all. There is no doubt that under the Act the defendant may be fined for the breach of the rule. This, however, is not a remedy as far as the plaintiff is concerned. We may respectfully borrow the language of Greer L.J. in (1935) 1KB 75 and say that to prosecute for a penalty is no sufficient protection and is a poor consolation to the plaintiff though it affords a reason why the defendant should not commit a breach of the statute. If the Legislature intended to bar a civil remedy if would have been so mentioned in some of the provisions of the Act. From the general scheme of the Act it appears that most of the disputes are to be decided by arbitration. If the intention was to bar the civil remedy a similar provision would have been inserted for the breach of Section 22 also. It is argued that the defendant would be harassed if numerous suits are brought by different prospective consumers; but the same result will follow if numerous prosecutions are launched against the defendant. It is, how-ever, our duty to interpret the Act and not to speculate upon the possible intention of the Legislature which cannot be inferred from the language of the Act. For the reasons given above our answer to the points referred to us is in the affirmative and we decide accordingly. Let the record be returned.
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Dr. Jairaj Behari vs U.P. Electric Supply Co. Ltd.


High Court Of Judicature at Allahabad

19 February, 1941