DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
BIRBHUM (SURI).
C. F. CASE NO.-CC/50/2008.
PETITIONER =Vs. = O.P
Rudrendra Kumar Ghosh, West Bengal State Electricity Distribution
S/o. Lt. Rabindranath Ghosh, Company Ltd.,Rep.by Asst. Engineer and
Vill.Kainjuli,P.O.&P.S. Md.Bazar, Station Manager,WBSEDCL,Md. Bazar,
Birbum. Gr.E/Supply,P.O.&P.S. Md.Bazar,Birbhum.
PRESENT :-Shri M.K.Pal————— President.
:- Smt.Bula Koley ———–Member
:: J U D G E M E N T ::
Dated: 24.08.2009
In a nutshell the complaint case filed u/s 12 of the C.P. Act.1986 is that complainant is consumer under the o.p. (consumer no,0016170) having his domestic electric service connection no. DOM/ 13262 effected from 11.11.06 and since them he is consuming electric energy on payment of e/bills as per meter reading. The meter reader of the o.p. department after his visit on 16.2.08 after reading the meter at the premises of the complainant noted the same as 1051 units in the yellow card which on his subsequent visit on 31.5.08 found to have the same reading as 1051 units. Meter reader noted the said unit in the yellow card along with the remark as (stop). There after the O.P. – department sent an absent bill 17.6.08 amounting to Rs. 329,329,329 on average basis assessing the amount on 375 units though the connected load is 0.36 K.W. There after the complainant visited the O.P. Department office, requested to rectified the excess bills raised with a prayer for assessing the average units on the basis of previous years consumption, as also for installation of new meter. That getting assurance from the O.P. Department of adjustment of excess payment in the next bill and assurance for installation of a new meter the bill amount were paid in two installments and filed an application in writing on 4.8.08 with a request for taking necessary steps. But any step the O.P. department further sent an absent bill dt. 6.9.08 and accordingly the complainant has field further an application on 30.10.08 with a request for charging the average bill which should be around his earlier bills as also for arranging a new meter but without yielding of any fruit ful result. On the contrary the complainant faced threading in case of non payment of the bill dt.6.9.08 his service senction would be disconnected. Hence is the case with the prayer for direction upon O.P. not disconnected the service connection, to pass an order directing to cancel the bill dt. 17.6.08 and 6.9.08 and for issuing fresh bills as per law after adjusting the amount paid in respected of bill
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dt,.17.6.08, for passing an order directing the O.P. party to install a new meter in favour of complainant and for other reliefs. The cause of action stated to have been arose on and form 16.2.08 and lastly on 4.11.08 with in the jurisdiction of this Forum.
The O.P. contested the case by filing a written version , wherein it has taken a few legal objections, denied all materials allegations made in the petition of complaisant and has stated that the disputes raised by the complainant is out side the jurisdiction of the Foruim and according to the electricity Act and billing dispute raised by the parties should be addressed to the Electric Inspector and there is no such step taken by the comp;lainant for referring by the meter to the prescribed authority by the complainant further contending the inter alia that due to non ability of the meter the defective meter could not be replaced in time for which average bill has been raised on the basis of maximum consumption of the last year of successive period i.e. 375 units for 09-07 dto 11-07 and there after the defective meter was replaced on 15.1.09 with a new meter no. E021948. It is contended that further during physical verification on 14.1..09 at the premises of the petitioner it was found that the complainant used unauthorized load of 2090 watt. against sanction load of 360 watt., thus excess load of 1730 was used by the complainant. It is stated that according the calculation of the connected load the average consumption for 90 days will be 90X8X2.09= 15004.8 units ( considering 8 hours consumption) which is much that the 375 units taken in to consideration for raising the disputed bills. So there is nothing wrong in the bills assess by the O.P. and contended further that to deprive the Board from their legitimate claim the complainant has filed the instance case with falls and frivolous grounds. It is contended further that the petitioners family consist of 10-12 members and he uses the above noted load, as also that the complainant has signed in the inspection note dt.14.1.09 which was done in presence of the complainant. The O.P. prays thecae to have no merits and is liable to dismissed with cost.
To prove the complainant case the complainant above has sworn and filed an avitavit on evidence and documents exts. 1 to 6. On the other hand one Tapan Kr. Sow Mondol, Stan. Manager, Md. Bazar, WBSEDCL has sworn and filed counter affidavit on evidence to substantiate the defence case and filed and copy of report (bearing heading as; Inspection notes for miter and metering installation checking) dated 14/1/09 in respect of service connection no.13262/Dom and consumer no.C016170 along with a Meter Reading Card (called as blue card) rejoinder on affidavit as been filed by the complainant. Written arguments have been filed by the Ld. Advocates of both the parties, as also heard the arguments advanced by Ld. Advocates of
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both the parties. Case referred by the OP WBLR 1997(VOL-1) (SC) – 44 & 88; AIR1997(CAL) Page-I. Ld. Advocate to the complainant also cited decisions of cases while he was advancing his arguments.
Upon hearing the submissions of both sides Ld. Advocates, their written arguments as well as the arguments advanced by them during hearing, perusal of written version filed by the OP, the evidences on affidavit and upon perusal of documents on record the following points within (issues) are framed for consideration :
1) Is the complainant a Consumer as defined in the C.P. Act1986?
2) Is the case maintainable in its present form and in law?
3) Is the forum competent to try and adjudicate the present dispute?
4) Is the case bad for defect of parties?
5) Is the case barred u/s 24 of the C.P. Act 1986?
6) Are the bills in question correct and genuine?
7) Is there any deficiency of service on the part of the OP?
8) Is the complainant entitled to the reliefs prayed for?
D E C I S I O N
Point no. 1,2 & 3 : This points are taken up togatether for convenience of discussion and brevity. There is no dispute that the complainant has the electric service connection in ghis residential house and the OP uses to receive charges for consumption of energy from the complainant.
Sec.2(1)(O) of the C.P. Act.1986 defines service as follows;
-“ Service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with Banking, Financing, Insurance, Transport, Processing, supply of electrical and other energy, Board, or lodging for both, Housing construction, Entertainment, Amusement or the purveying of news or other information, but does not include rendering of any service free of charge or under a contract of personal service.”
Further, relevant portion of definition of consumer under section 2(1)(d)(ii) of the C.P.,1986, is coated here in under:-
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“Consumer “ means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficial of such services other than then person who hire or avails or the services for consideration paid or promised, or partly paid or partly promised or under any system of deferred payment, when such services are availed of with approval with the first mentioned person but does not included a person who avails of such services for any commercial person:
Explanation.- For the purpose of this clause “commercial purpose “ does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning lively hood by means of self employment”
In the present case WBSEDCL Md. Bazar Gr. E/Suply bearing the supplier of electrical energy to the complainant is the services proved, while the complainant being a consumer of the electric city for his domestic uses on payment of e/charges against the bills raised by the O.P. department in my opinion is a consumer in terms of section 2 (d)(ii) of C.P.Act,1986[2008(2)C.P.C.(NC)491505]
Mere non-payment of a few bills amounts in time can not change the status of a consumer- mere so in case the nonpayment be the any in respect of the disputes bills.
Though they are separate provision Electricity Act, but in view of Sec.3 of C.P. Act the case is quite maintainable in its present form and in law, since the provision of the C.P. Act,1986 are in addition to and not in derogation of the other act.
As the disputes relates to the allegations of the excess billing and not for theft or defect meter etc., the Consumer Forum is competent to entertain the dispute which has jurisdiction over the bill dispute.
Pursuant to the direction dt. 9.10.07 issued by the Hon’ble Apex Court in Civil Appeal no. 4734/2007 The decision dt. 10.4.08 of the Hon’ble National Commission in case of Jharkhand State Elevacatairacity Board vs. Anware Ali is also relied upon.[2008(2)(CPC)(NC) P491-505]
Extract of some relevant portion of item no 36 (l) and (5) are coated below:-
Item 36. In the result, we hold as under:
(i) sec. of the Consumer Protection Act, and Section 175 of the Electricity Act, provide that they are in addition and not interrogations of rights under any other
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law for the time being in force. Therefore, the rights of the Consumer under the Consumer Protection Act are not effect by the Electricity Act
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36(5) – Consumer of Electrical energy provided by the electricity Board or other pvt. Co., is a consumer as defined under Sec. 2(l)(O) of the Consumer Protection Act, and a complaint alleging any deficiency on the part of the Board or other Pvt. Co. including any fault, in perfection, short coming or in adequacy in quality, nature and manner which is required be maintain by or under any law or in pursuance of any contract in relation to service, is maintainable under the Consumer Protection Act,…….”
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Thus the state three points are answered in favour of the complainant
Point No.4. The O.P. Department to be represented by the Asst. Engineer and Station Manager, WBSEDCL, Md. Bazar Gr. E/Supply has been made party in this case. Non making of a party of the D.E. and S.E. additionally as raised by the O.P. with due consideration found that it would not materially affect to adjudicate mainly the alleged bill disputes, dispute of replacement of and out of order meter by another one in good working order. In case it was so felt urgent there should have a specific prayer of the O.P. party to be an added party for consideration, in absence of which it would not be judicious to reject the case on that score alone.
This point is answered accordingly in favour of the complainant.
Point no.5 : The e/bills dated 17/6/08 (Ext.1) and dated 6/9/08 (Ext.3) of dispute and the complainant’s application dated 4/8/08 (Ext.4) and dated 30/10/08 (Ext.6) before the OP party along with the prayer for replacement of a new e/meter in place of out of order meter redress sought for but without yielding any fruitful result and filing of the present case on 25/11/08 since after the cause of action / actions (stated to be on and from 16/2/08 and lastly on 4/11/08) – all being well within the period of limitation of two years, the case is not barred by limitation u/s24A of the C.P. Act.1986
This point is answered accordingly in favour of the complainant.
Point no. 6 and 7 : For convenience and brevity this two points are taken up together.
Going through the documents and on records on careful scrutiny of the same, considering the evidences of affidavit meter reading noted in the yellow card (Ext.5 – lying with the complainant) on 16/2/08 was 1051 units and the same 1051 units was noted on 31/5/08 with a remarks as “Stop”. Similar noting existed in the Green Card (lying with OP – party) as per
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Xerox copy of the same filed along with the report (Captioned as: inspection note for meter and metering installation checking) dated14/1/09 of the representative of WBSEDCL.
The disputed bills dated 17/6/08 for Rs.947/- (Ext.1) and the bill dated 6/9/08 for the amount of Rs.970/-(Ext.3)appears to have been raised by the OP department on average basis taken into consideration of maximum consumption of 375 units during the sussessive period of the proceeding year; but no supporting rules and regulation etc. in justification of such assessment is either, cited or documents in support for such consideration has been filed by the OP. From the Xerox copy of the inspection note (Report) dated 14/1/09 filed by the OP and the evidence on affidavit it transpires the complainant was used to use unauthorized load of 2090 watts including an induction hitter of 1800 watt (Which is stated to have been purchased on 17/11/08 – vided no.966081) beyond the sanction – load of 360 watt, 1730 watt thus being the excess and untuthrised load consumption, as alleged. It is also argued by the Ld. Advocate for OP department that in case this unauthorized – load – use by the complainant would have been taken into consideration to assess bill amount would have been far more above the amount of the disputed bills. Be it mentioned in this connection that the date of purchased of the Induction Hitter on 17/11/08 is far beyond the disputed bills for the month of 06 to 08 of 2008 and 9/11/08.
Ld. Advocate for the complainant during argument the cited the decision 2008(1) CPC 723 CNC) in the case of Ajmer Vidynt Vitavan strongly pleading that the procedure was required bills have not been followed the case of the disputed bills.
(Shri M.K. Pal — President)
(Dictated and corrected by me.)
(Shri M.K. Pal — President)
We agree,
(Smt. Bula Koley———Member)