Court Judgments

IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANKURA.

Proceeding Case No.06 of 2005.

Smt. Aloka Dey, w/o Sri Utpal Dey, Beliatore, Nutan Bazar, P.O. &

P.S. Beliarote, Dist. Bankura.

……………….Complainant.

V e r s u s

Station Mamager, Beliatore Group Electricity Supply, W.B.S.E.B., P.O.,

P.S. Beliatore, Dist. Bankura.

……….…….Opposite Party.

Present :-

T. Basu. (President).

P.K.Mukhopadhyay. (Member).

A.Agnihotri. (Member).

Judgement  :    Dated 31.07.2009.

The instant case has been instituted by one Smt. Aloka Dey, a resident of Nutan Bazar, Beliatore in the district of Bankura against the Station Manager, Beliatore Group Electric Supply, W.B.S.E.B., Bankura with a specific allegation of deficiency in service.

Case of the Complainant, in brief, is that the Complainant’s husband Utpal Dey and his brother Swapan Dey inherited the house building property situated on Plot No.1138, 1139 & 1140 in Mouja Beliatore.  In Plots 1138 & 1139 there is a two-storied building and by amicable settlement this Complainant is living in the first floor while the ground floor is occupied by one Sanchita Dey, wife of Swapan dey.

On 15.07.2007 Utpal Dey, husband of the Complainant, applied for new connection in the first floor of the house ; quotation was issued by the O.P. and required amount of money was deposited by Utpal Dey.  On 09.08.2002 one letter was issued by the O.P. stating his inability to give service connection on the ground that there was outstanding dues against existing service connection.

Further case of the Complainant is that in the house on Plot No.1140 there was electric connection in the name of Swapan Dey ; but Utpal Dey asked for service connection in the house situated on plots 1138 & 1139.    Utpal Dey and Swapan Dey live separately by way of amicable family settlement.  On getting O.P.’s letter dated 09.08.2002 Utpal Dey met the O.P. and explained the facts.  O.P. advised him to apply afresh in the name of the present petitioner / Complainant and accordingly fresh application was submitted on 12.08.2002 ; quotation was issued and money was deposited.  Till date electric connection has not been given to the Complainant despite repeated reminders.  Hence, this case praying for an order directing the O.P. to give service connection to the Complainant immediately.  She also prays for compensation.

O.P. appeared in the case and contests the same by filing a written version denying the allegation made against him.  His case, in short, is that this Complainant cannot be treated as a consumer as per the definition of the term prescribed in the Consumer Protection Act, that the case is barred by the provision of limitation, as is indicated in the said Act and that there is no deficiency in service from the side of the O.P. whatsoever.  This petition of complaint is also not maintainable as admittedly the husband of the Complainant earlier applied for service connection in respect of the very same flat.  By suppressing the material facts, relief has been sought for by the Complainant.

Further case of the O.P. is that this Complainant filed another case against the present O.P. in this Forum over the self-same subject matter praying for similar and identical relief (P.C. No.01 of 2004).  The case was dismissed for default on 19.07.2004, the said order for dismissal still stands good as the case was not restored.  At this stage, the same petition of complaint is not maintainable in the Forum.  The Complainant enjoyed electricity in the premises whether one service connection exists and against that service connection a huge amount of money is lying unpaid.  It is settled principle that if one intending consumer is having any direct nexus with the erstwhile defaulting consumer, the intending consumer is not entitled to get service connection till the outstanding dues are cleared up.  Here, in this case, husband of the Complainant has direct nexus with the previous consumer Swapan Dey as they are full brothers by relation.  As such, the Complainant cannot get energy line till the dues are paid.  They are residing in the same house and no quotation was issued in the name of Complainant’s husband.  Only in the application fee was deposited by him.  O.P. duly communicated to the husband of the Complainant (the original applicant) that energy connection cannot be given as there is outstanding dues against the existing service connection.  Story of separate tax receipts is baseless.  Besides, the property was not partitioned between the two brothers and the same is not demarcated.   The house property remains in ejmal.  It is added by the O.P. that cause of action has not been disclosed by the Complainant and so, the petition itself is not maintainable.

On such grounds the case of the Complainant is liable to be dismissed.

The main points for consideration before us are -

1)   Whether there was any deficiency in service from the side of the

O.P. and

2)   Whether the Complainant is entitled to get relief, as prayed for.

Decision with reasons

The parties declined to adduce any verbal evidence.  The Complainant

filed few documents in original, as per list while the O.P. did not prefer filing any document.

To assess the merit of the case, let us first take up the question, urged by the O.P., challenging the status of the Complainant.  According to the O.P., Complainant is not a consumer.  She only applied for service connection and so, she does not come under the purview of the term “Consumer”, as defined in the Consumer Protection Act.  Over this question we place full reliance upon a decision of the Hon’ble State Consumer Dispute Redressal Commission, Tamilnadu reported in “Consumer Protection Reporter” 1992 (2) at page 454 (Consumer Protection Council Vs. Chairman Tamilnadu Electricity Board).  The problem is viewed in the following manner :-

“The conclusion of the District Forum that the Complainant is not a consumer because he has applied for electric connection and has not obtained the same cannot stand.  Under section2 (1)(O) of the Consumer Protection Act, “service” means service of any description which is available to the potential user.  Under section 2(1)(d)(ii) of the Act a person is a consumer who hires any service for consideration which has been paid or promised or partly paid or partly promised.  A person who applies for electric connection has to pay the necessary charges after the connection is given.  Therefore, he is a person who has hired the services of the O.P. for consideration which is promised.  It is, therefore, held that the Complainant is a consumer.”

Answer to the question is given in limpid way which does not call for any further clarification.  The decision goes in favour of the Complainant nullifying the O.P.’s interpretation.

Next, we propose to discuss the question relating to another case over self-same subject matter.  Number of case is P.C. 1 of 2004 of this District Forum.  We called for the case record and perused the same.  It has come to our notice that parties to both the cases are same, that two petitions of Complaint in two cases are absolutely identical, that the reliefs sought for by the Complainant in the cases are totally same, that the facts and subject matter in two cases nowhere differs.   It appears that the former case was dismissed for default by an order passed on 19.07.2004.  It is significant to note that prayer for restoration of the case was made by the petitioner, but the same was refused by this Forum on contest.  The petitioner of the said application and the Complainant of the present case is one and the same person.  The matter ended there.  This position does not favour the Complainant, as the order of dismissal of restoration application stands valid and uninterfered with.  On question of limitation, it is getting difficult for us to accept the submission of the O.P..  On perusal of the documents on record it has come to our notice that in fact, the application was submitted by the Complainant on 12.08.2003 (not 12.08.2002, as stated by the Complainant herself in paragraph – G of her petition of complaint).  Strictly speaking, this statement was required to be rectified by way of amendment, but the same was not done.  Here we act upon the documents on record in the interest of justice.  Receipt no.988906 (annexure-E) issued by the O.P. shows that the application of the present Complainant was officially received in the office of the O.P. on 14.08.2003.  This case was filed on 18.01.2005.  It cannot be said by any stretch of imagination that the petition of complaint was presented in the Forum in violation of the provision of section 24(A) of the Consumer Protection Act.

We consider it proper to highlight another significant aspect of the case.  A good number of documents on record indicate that similar application was earlier submitted by Utpal Dey, the husband of the Complaint of this case, in respect of the very same premises.  No relief was granted by the O.P. on the ground of outstanding dues.  This information was duly communicated to Utpal Dey by the O.P. vide his letter dated 09.08.2002.  Thereafter, Utpal Dey did not stick to his application any more which suggests or rather proves that he accepted the point of objection.  Again his wife filed an application asking for service connection in the very same premises when the position of outstanding dues remained unchanged.  This may be described as an attempt to get the facility ignoring the factual aspect of the matter.  It cannot help the petitioner in any way.

It is admitted position that Utpal & Swapan are two full brothers by relation and that the present Complainant happens to be the wife of Utpal Dey.  It is also admitted that they are living in one two-storied house and that Utpal resides in the first floor of the house while Swapan occupies the ground floor.  Be it noted here that Panchayet Tax receipts, filed by the Complainant, do not indicate the relevant holding number / numbers.  So, the claim of the Complainant that Utpal & Swapan are living in separate holding remains clouded.  It is nowhere denied that Swapan is not having the liability of outstanding dues.  In this connection we like to simply  refer to the clause 3.4.2 of the Notification being no.36/WBERC of West Bengal Electricity Regulatory Commission.  It runs as follows :-

“ The licensee shall be eligible to recover from a new and subsequent consumer the dues of the previous and defaulting consumer in respect of the same premises only if a nexus between the previous and defaulting consumer and the new consumer in respect of the same premises is proved.”

The decision of Hon’ble Supreme Court of India reported in AIR, 2005 at page 3475 also supports the case of the O.P. almost in the same light.

Case of the O.P. is also supported by a decision of the Hon’ble Calcutta High Court reported in Calcutta High Court Notes 2007 (1) at page 210 (the relevant page 217).

We are not unmindful of the Ruling cited by the Complainant.  The said decision of a Single Bench of Hon’ble Calcutta High Court was reported in AIR 2004 at page 227.  In our view, this Ruling loses its spirit in view of the decision of the Hon’ble Supreme Court, referred to above, so far as the facts and circumstances of our case is concerned.

Taking all the answers and observations together, we are of opinion that there is no sign of deficiency in service from the side of the O.P. and that the case of the Complainant is not a meritorious one for which the Complainant is not entitled to get relief.  Case of the Complainant fails.  Hence, it is

Ordered

that the present case stands dismissed on full contest without any order as to cost.

Parties be given copy of this Judgement & Order free of cost.

Tags: W.B.S.E.B

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