1. This is a plaintiff's application in revision under Section 25, Small Cause Courts Act. The plaintiff, Pandit Ladli Prasad Zutshi, claimed to recover a sum of Rs. 5, plus Re. 1, as interest by way of damages from the opposite party, the U.P. Electric Supply Co. Ltd., Allahabad, on the ground that the said amount had been illegally exacted from him by the said Company. The relevant facts of the case may briefly be stated:
The plaintiff has entered into an agreement with the company for the supply of: electrical energy to his premises No. 22, George Town, Allahabad. The terms of the agreement are embodied in a formal document which is Ex. P on the record. It is not contested that under the terms of this agreement the plaintiff is bound by the company's conditions of supply and also by the company's official scale of charges for the time being in force in respect of his liability to pay to the company for the electrical energy supplied to him or for other services performed by the company. It appears that the plaintiff had a 2 H-P motor installed in his premises for drawing water from a well in his compound for irrigation purposes. He decided to change that motor and to install a smaller one of 1 H-P in its place. On 31st December 1937, he gave a notice to the company to send some one on its behalf to examine the new motor which he was intending to install in place of the old one. After some correspondence between the parties the company sent one of its representatives who tested the whole installation in the plaintiff's premises and for that service the company charged a sum of Rs. 5 from the plaintiff. This was done in spite of repeated protests by the plaintiff who was ultimately compelled to pay the amount in question. Hence the suit out of which the present application arises.
2. The plaintiff's case is that the company had no right under the agreement between, the parties to test the plaintiff's installation and to charge any fee therefor. The defence taken by the company was two-fold: firstly, that the plaintiff had changed his motor and before the new motor could be connected it was absolutely essential for the company to inspect and test the whole installation including the motor and the fittings in order to be satisfied that leakages and other defects did not exist and secondly, that the plaintiff had in this case himself requested the company to test his installation and the company having performed that service for him was entitled to charge some reasonable amount. It may be noticed here that the company did not indicate in its written statement any rule contained in the conditions of supply under which the testing of the plaintiff's installation could be justified. There are however several letters addressed by the company to the plaintiff from which it is clear that the position taken by the company was that the testing of the installation was justified by para. 9(2) of the conditions of supply which runs as follows:
Connexion to the mains will be made by the company after the inspection and test has proved satisfactory and no charge will be made for the first test made by the company but subsequent tests due to faults disclosed at the initial test or failure of the contractor's representative to keep the appointment as indicated in sub-para 1 will be charged for in accordance with the company's scale of charges.
3. It further appears from the judgment of the learned Small Cause Court Judge that the same line of reasoning was adopted by the company in the course of the argument in the lower Court. The learned Small Cause Court Judge appears to have arrived at the result that para. 9(2) of the conditions of supply was not applicable to the test of the plaintiff's installation made by the company in the present case, but he found that the charge made by the company for that purpose was justified by item 3 of miscellaneous charges to be found on page 3 of the Scale of Charges which runs as follows:
Testing and installation other than initial test under the terms of para. 9(2) of the Conditions of Supply.
4. Taking that view of the case the learned Small Cause Court Judge has dismissed the plaintiff's suit, hence this application in revision. The first question for consideration is whether para. 9(2) of the Conditions of Supply has any application to the test of the plaintiff's installation made by the company in the present case. I have already set out the wording of the said sub-paragraph and I have no hesitation in holding that the plain meaning of the rule is that the company is entitled to make an initial test before it gives connexion to the consumer and thereafter certain other tests provided they become necessary owing to faults disclosed at the initial test or in consequence of the failure of the contractor's representative to keep the appointment as indicated in sub-para. 1 of para. 9. There is no suggestion in the present case that any defect had been found in the plaintiff's installation at the initial test or that any default had been made by the plaintiff's contractor. It is therefore clear that the test made by the company in the present case was not justified by sub-para. 2 of para. 9 of the Conditions of Supply as the authority for making a test must be derived from some rule contained in the Conditions of Supply or in the original agreement between the parties. The Scale of Charges cannot possibly authorize the company to make a test if it is not authorized by some rule in the Conditions of Supply or in the original agreement between the parties. I may also point out that on a strict interpretation of the language of item 3 of the Miscellaneous Charges referred to above it is open to the plaintiff to argue that it refers only to a test made under the terms of para. 9(2) of the Conditions of Supply though it may be a test subsequent to the initial one. On the other hand, it is possible to interpret the item in the sense in which the learned Small Cause Court Judge appears to have taken it, viz. that any test made by the company other than the initial test as required by para. 9(2) of the Conditions of Supply would justify the company in charging a reasonable fee therefor. It is obvious that the latter interpretation can be accepted only if it is found that there is any rule in the Conditions of Supply other than rule 9 authorizing the company to test a consumer's installation. It cannot be suggested with any show of reason that the company has the right to test a consumer's installation whenever it chooses to do so and to charge a fee therefor. I have therefore carefully perused the Conditions of Supply in order to see if it contains any rule other than Rule 9 authorizing the company to test a consumer's installation and I find that there is none. The only other rule which might be suggested on behalf of the company as an authority for the purpose is contained in para. 11 of the Conditions of Supply which runs as follows:
Should the consumer at any time after the supply of energy has been commenced desire to increase the number or size of lights, fans or motors, etc, on his premises or in any way alter the position of his wiring therein notice in writing must be sent to the company who will advise whether the alteration may be sanctioned and whose representative will call and inspect the alteration and if necessary change the meters and. fuses and alter the service line on completion of the alteration.
5. It must be noted in the first instance that this rule authorizes only an inspection of the alteration and not a test of the whole installation. There is obviously a difference between inspecting an alteration and testing the whale installation. The distinction is made clear by the use of different language in paras. 9 and 11. Again, it must be noted that the inspection authorized by para. 11 depends on one of the two conditions mentioned therein, viz. either a desire on the part of the consumer to increase the number or size of lights, fans or motors, &c.; on his premises or to alter the position of the wiring in his premises. In the present case, the plaintiff had proposed to decrease the size and power of his motor and not to increase it and there is no suggestion on behalf of the company that it necessarily involved an alteration in the position of the wiring in the plaintiff's premises. It is therefore evident that none of the two conditions which also alone can justify an inspection under para. 11 was present in this case. For these reasons I am satisfied that the strict interpretation of item 3 of the Scale of Charges which is suggested on behalf of the plaintiff is correct and the company in this case had no right or authority to test the plaintiff's installation.
6. The only other point which remains for consideration is whether the company can justify their action and the charge therefor on the ground that it acted on the plaintiff's own request. This plea on behalf of the company rests on two letters written by the plaintiff, one on 31st December 1937 and the other on 1st January 1938. On a perusal of those letters it is clear that the plaintiff only desired the company to examine the new motor which was being substituted for the old one. There is nothing in either of these two letters to suggest that he requested the company to test his installation. The plaintiff was being charged on the basis of a 2 horse power motor and as he was changing the motor which necessarily involved a reduction of the charge to which he was liable it was only fair on his part to inform the company of the proposed change and to request the company to examine it. Such a request on his part could not possibly justify the company in testing the whole of his installation and in demanding a fee for doing so. I therefore hold that the company had no right or authority in the present case to test the plaintiff's installation and to demand any fee for doing so. The result therefore is that I allow this application in revision and decree the plaintiff's suit with costs throughout.