Urban Council, Beruwala, and Fernando.
1943Present: Moseley A.C.J. and Jayetileke J.
URBAN COUNCIL, BERUWALA, Appellant, andFERNANDO, Respondent.
376—D. C. Kalutarai 22,186
Electric Installation—Connection of series of small bulbs—Additional installa-tion—.Breach of contract—Right of Urban Council to disconnect' installation.
The plaintiff entered into a contract with the defendant—the UrbanCouncil of Beruwala—to supply electricity to plaintiff’s shop. One ofthe conditions of the contract was as follows:
Should the consumer, at any time after the supply has been given,wish to use lamps, fans- or motors of greater size or install additionallamps or other consuming apparatus, either temporarily or permanently. . . . he must notify the Council in writing …. Theplaintiff on one occasion connected a series set of small bulbs to one ofthe plugs in his installation without notice to the Council.
Held, that the act of the plaintiff constituted a breach of the conditionand that the Council was entitled to disconnect the plaintiff’s installationin terms of condition 5 (c).
^ PPEAL from a judgment of the District Judge of Kalutara.
H. V. Perera, K.C. (with him Jayasuriya), for defendant, appellant.
C. Thiagalingarri. (with him E. B. Wickremanayake), for plaintiff,respondent.
3 24 Queens Bench Div. 13.• 32 N. L. R. 35.
3 35 y. L. R. 239.
» 21 N. L. R. 17S.» 26 N. L. R. 381.
JAYETILEKE J.—Urban Council, Beruwala, and Fernando.
March 5, 1943. Jayetileke J.—
The facts of this case are discussed in the judgment of the learnedDistrict Judge and it is only necessary shortly to state the circumstanceswhich gave rise to this action.
The plaintiff is a small trader who carried on business at Beruwala in ashop called “ The Excelsior Store ”, The defendant is the Urban Councilof Beruwala.
On December 13, 1937, the plaintiff and the defendant entered intoa contract, the terms of which are embodied in D 1 and D 2, whereby thedefendant agreed to supply electricity to the plaintiff’s shop. On thiscontract the plaintiff agreed to pay the defendant on the unit rate system,that is to say, at the rate of 50 cents per unit for all energy consumed.
On or about March 30, 1938, the petitioner was placed, at his request,on the domestic two part tariff system according to which he had to paya fixed charge based on the lighting and fan connected load and, in addi-tion, 6 cents per unit of energy consumed for all domestic purposes.
On the night of May 20, 1940, .the plaintiff connected a series set ofsmall bulbs to one of the plugs in his installation for temporary illumina-tions. On the next day the defendant requested the plaintiff to notifyin writing if he wished to install temporary additional lamps on hispremises. There was a charge for temporary illuminations at 50 centsper unit.
The plaintiff refused to accede to the request and the defendantthereupon disconnected the plaintiff’s installation.
The plaintiff has brought this action for the recovery of Rs. 900 asdamages alleging that the act of the defendant was wrongful. Severalissues were framed at the trial the majority of "which appear to me to beirrelevant.
The learned District Judge held in favour of the plaintiff and awardedhim Rs. 250 as damages and costs in that class. He was of opinion, that theinsertion of a plug of a series set into a .socket was not an “ extension ofinstallation” within the meaning of the heading of condition 5 in D 2.
To my mind the result of the action depends on the meaning and effectof condition 5 and not of the heading which is not part of the condition.
For convenience of reference I have divided condition 5 into clausesreferred to by letters of the alphabet, and it is in these words :
“ Extension of Installation.”
Should the consumer at any time after the supply has been givenwish to use lamps, fans or motors of greater size, or installadditional lamps or other consuming apparatus, either tempo-rarily or permanently, or in any way extend the wiring on hispremises he must notify the Council in writing giving suchnotice, at least, two days before the contractor commences work.
<f>) The Council will arrange to inspect^ work on completion, and, ifsatisfactory, will connect to original installation.
234JAYETILEKE J.—Urban Council, Beruwala, and Fernando.
Failure on the consumer’s part to give such notice, of connectionof extension, or alteration by anyone other than the Council’srepresentative renders the whole installation liable to disconnec-tion from the Council’s mains without further notice.
The conditions in D 2 have been drafted many years ago and have beenembodied in the contracts entered into by the defendant up to date.
There is implicit in clause (a) that the work referred to therein must bedone by a contractor. It may well be that the defendant considered itessential for the safety of consumers in a remote town like Beruwalathat no one but an approved contractor should meddle with an installation.
It was suggested in argument that the provision regarding notice inclause (a) must be restricted to an extension of wiring, otherwise it wouldnot be permissible for anyone but a contractor to replace a bulb andthat would result in great inconvenience and hardship.
Although it is always right to give full weight to arguments based on.considerations of this kind, it is not permissible for the mind to be soaffected by the inconvenience and hardship that would follow as to leadto a forced construction of words which have a clear meaning in theordinary use of language.
I am unable to construe clause (a) in such a way as to avoid thatinconvenience and hardship without doing to the language of that clausea violence which is not justified. To hold that the provision regardingnotice must be restricted to an extension of the wiring would be to waterdown the provisions of that clause which, in words as plain and as strongas the draftsman could use, place an absolute obligation on the consumerto give notice in all the cases referred to therein.
Of course, it would be open to the defendant to waive notice in sucha case if it chooses to do so, but we are not concerned with that. All wecan do is to construe that clause.
The plaintiff admits that he connected a series set of small bulbs toone of the plugs in his installation. That act would fall within thewords “ install additional lamps on other consuming apparatus. ”
According to the Oxford Dictionary the word “ install ” when used> with reference to. a heating or lighting apparatus means “to place inposition for service or use”. The plaintiff hot only installed the seriesset but actually used it on May 20, 1943.
The consequence of installing additional lamps or other consumingapparatus without notice to the defendant would be to render the wholeinstallation liable to disconnection under clause (c). As a pure matterof construction I can see no escape from that conclusion in examiningcondition 5.•
It was also suggested that on a strict interpretation of clause (b) aconsumer would have to make an application every time he wishes touse a plug. That clause has, no doubt, not been happily worded, but Ido not think that the language used would lead to such an absurd result.
It- seems to me that the object of inserting that clause was to give thedefendant the opportunity of examining all appliances and work donebefore the connection is made. Once the connection is made there wouldbe no necessity to make any further application in respect of suchappliances or work.
WIJEYEWARDENE J.—Luvineris and Vandriesen.
It is obviously regrettable that the relations between the defendantand the consumer should be regulated by a condition drafted in languageso unhappily chosen, and it is to be hoped that any amendments willgive simpler expression to the intentions of the defendant.
For these reasons I would set aside the judgment appealed from anddismiss the plaintiff’s action with costs in both Courts.
Moseley A.C.J.—I agree.
URBAN COUNCIL, BERUWALA, Appellant , and FERNANDO, Respondent