IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.
CONSUMER CASE NO. : 94/1994. DATED : 17.12.2009.
BEFORE PRESIDENT : SMT. ANITA DEBNATH,
Ex-Member of W.B. Higher Judicial Services and
Addl. Dist. & Session Judge,
President, D.C.D.R.F., Siliguri.
MEMBERS : SMT. PRATITI BHATTACHARJEE
&
SRI ASIT RANJAN DAS.
COMPLAINANT : SMT. KRISHNA KUMARI,
W/O Sri Tek Bahadur Chhetry,
Lok Nath Bal Sarani,
Pradhan Nagar
Siliguri – 734 003.
O.P. : THE ASSISTANT ENGINEER,
W.B.S.E.D.C.L.,
Siliguri Electric Supply,
Hill Cart Road, Siliguri.
Dist.- Darjeeling.
FOR THE COMPLAINANT : Sri P.D. Dalmia, Advocate.
FOR THE OP : Sri Kabindra Bhowmik, Advocate.
J U D G E M E N T
This is a case for realization of money as realized unlawfully by way of excess electric charges, surcharges, meter rent and to remove the defect of the electric meter and other consequential relief.
The case of the complainant, in short, is that the complainant is a domestic consumer of the electricity since 1983-84 having service connection No. being 18040 of Pradhan Nagar Sector. The complainant had been paying rent regularly as per the bills by the OP on the basis of meter reading up to the month of April, 1989. The monthly average electric charges on consumption was 52 units per month from the month of September, 1986 to the month of April, 1989. All on a sudden the OP stopped sending
Contd…….P/2
-:2:-
the electric bill on and from the electric ending July, 89 i.e. for the month of May to July, 89. But subsequently, the OP issued electric bill for 450 units for the quarter ending the month of October i.e. for the months of August to October, 89. When it has brought to the notice to the OP about the erroneous bill with faulty, defective, damaged condition of the electric meter installed in the premises of the complainant. But no effective measure was taken by the OP. Excessive surcharge and other meter rent were added against the said bill but in fact the meter reading was stopped since the month of May, 1989. The electric bills were sent irregularly and without taking meter readings from the month of May, 89 till the month of August, 1994 and the said bill was sent on the basis of average calculation claiming the higher units of 150 units per month as because prior to stoppage of the meter i.e. up to the month of April, 1989. It stood only at 52 units per month on average and thereby the OP realized excess amount in all respect from the month of May, 89 always by way of charges, surcharges, meter rent. Ultimately, on repeated request and thorough persuasion the OP sent one quotation directing the complainant to deposit a sum of Rs.500/- towards security deposit. Ultimately, the complainant deposited the said security money of Rs.560/- on 24.02.84 in respect of temporary connection as per Board’s quotation dated 21.02.84. The complainant was further directed to pay further security amount of Rs.80/- as per quotation dated 30.03.84 and accordingly, it was deposited on 19.04.84. But subsequently, the OP did not adjust the charges as already deposited on 19.04.84 and 24.02.84 against the final quotation made by the Board dated 30.07.84.
It is further case of the complainant that on the basis of the application dated 08.06.92 the meter box was shifted nearest to the place where the meter box stood earlier. But the OP asked to deposit the total sum of Rs.502/- including an additional demand of security deposit of Rs.240/- adjusting the sum of Rs.80/- there from. Accordingly, the balance security amount of Rs.160/- was also deposited on 26.06.92. Hence, this case for refund of the money as deposited in excess towards the security charges, surcharges, meter rent and also for remove the defective electric meter and other charges.
The OP contested the case by putting W/V denying each and every allegation as made therein with a contention that the case is not maintainable.
It is specifically alleged that at the relevant time the nature of dispute is to be dealt with by the District Judge, Darjeeling who acted as President along with nominated member under the Consumer Protection Act, 1986.
The consumer did not make her grievance against the consumption of bills from the quarter bill, 1989 towards either before the competent Civil Court or before the Chief
Contd…….P/3
-:3:-
Electrical Inspector under the Electricity Act, 1910. After lapse of more than nine years the billing dispute and other dispute and difference of the complainant under the instant case can not be entertained before this Forum. The case is barred by limitation as provided under Section 24 (A) of the limitation period as provided under the Consumer Protection Act, 1986 there is no negligence on the part of the OP concerned.
In case of billing dispute this Forum has got no jurisdiction to entertain the instant case.
It is specifically pleaded that from the meter reading card right from 19.06.85 starting with initial reading as 0003 (IR) but the quarterly reading as were noted with progressive reading as 0150; 0300; 0450; 0600; 0780; 0930; 1080; 1239; 1419 and 1599 (stopped) and 0379 stopped up to 04.08.93. Thereby it continues reading as on 28.11.88 was 1599 whereas on 14.02.89 meter reading was 0379 which is absurd by virtue of the characteristic of a meter as because reading which always be progressive and in an ascending manner. For the first time the respective meter reader went to the premises of the complainant for meter reading physically and it was observed that the meter was stopped with a reading of 0379 units i.e. the reading as on 14.02.89 was 0379 whereas previous reading as on 28.11.88 was 01599 units. It is further alleged that the meter which was stopped was replaced on 04.08.93 by a new meter recording with initial reading as on 04.08.93 as 00003 and next reading as on 02.02.94 was 00603. But again subsequent reading as were recorded on 01.03.94; 03.06.94; 17.09.94; 25.01.95 as units 00003 stating meter as stopped and claimed average assessed bills. Subsequently, on 25.10.94 the said second meter was replaced by a new one where initial reading was 1949 (IR) and final reading was 9112 (FR) and the complainant paid all the bills without any objection up to 1172 units as on 30.03.2000. Ultimately, on 20.05.01 the third meter was replaced as it was found as sticky or other wrong when the consumption for the months 07.12.2000 to 09.03.2001 was only 19 units. While the consumption for subsequent 2 months 10 days i.e. 09.03.01 to 20.05.01 was 694 units and the same was increased constantly to a considerable quantity 886 units to 1318 units. So long, the service connection is not permanently disconnected or surrendered the refund of security deposit can not stand.
As there is no deficiency in service on the part of the OP the case is liable to be dismissed with cost.
Upon consideration of the pleadings of the respective parties the following points are framed for adjudication :-
1) Is the case maintainable ?
Contd…….P/4
-:4:-
2) Has the Forum any jurisdiction to try the instant case ?
3) Is there any deficiency in service or Unfair Trade Practice on the part of the OP?
4) Is the complainant to get decree as prayed for ?
5) To what other relief/reliefs as prayed for ?
Decision with reason
All these points are taken up together for the sake of convenience.
The Ld. Advocate on behalf of the complainant argued that the Electricity Act of 2003 is not applicable in the instant case.
There is no time limit provided in the Consumer Protection Act, 1986 and before amendment of the C. P. Act, 1986 introducing the Section 24(A) by way of amended C.P. Act, 1986. The cause of action for sue has already been arose and Section 24 (A) was enacted and applicable from 18.06.93 when the cause of action already started and filed the instant case long before enactment of Section 24(A) of the C.P. Act, 1986 as amended.
It has been further urged that the complainant being a consumer hires electricity from the OP on consideration and meter was installed and it is the duty of the OP to check and verified the meter periodically and to take the meter reading and noted it down in time. But in the instant case from the meter reading card it may be ascertained that the meter reading was not taken time to time and all along the meter was found fault as a result of which it was also found stopped or sticky meter. Thereby it can be ascertained easily that meter bill was sent on the basis of average noting and excess meter reading was taken and bill was sent accordingly without proper reading. Thereby the OP intentionally sent bill exaggeratedly in order to illegal gain. It has been further argued that no proper reading was taken on and from 14.09.89. The bill as raised for 450 units i.e. 150 units per month it ought to have been 60 units per month. Thereby the OP all along from the very beginning the bill had been made on average basis and it has firstly been detected long after 42 months when meter reading was found 0379. thereby it means that the meter has already been stopped in the year 1985 but OP did not take proper steps by replacing a new one and bill was taken or raised all along on average basis. Thereby the conduct and activity of the OP amounts to deficiency of service on their part. There was no proper duty as performed on the part of the OP. It has been further argued if all along meter card be read continuously it can be ascertained that time to time the meter was found fault by incorporating stopped or sticky. Further it has been argued that this Forum has jurisdiction to entertain the case.
Contd…….P/5
-:5:-
In support of his contention reliance has been placed upon II 2008 CPJ 284 N.C.; III 1999 CPJ 285 (H.P.); III 1997 CPJ 217 (Punjab); I 2003 392 (Punjab) and several other decisions.
On the other hand the Ld. Advocate on behalf of the OP argued that this Forum has got no jurisdiction to entertain the instant case as because when the instant case relates with billing dispute the relief is to be made before the Chief Electrical Inspector under Section 26 (6) of the Indian Electricity Act, 1910 and there was provision of three set Tier proceeding the present Forum has got no jurisdiction to entertain the instant case. It is further argued what ever may be the case relates with old or new Act, the Forum can not assumed jurisdiction to calculate the billing process as per provision under the Act and when there is three Tier system under the Act, it ought to have been raised before the proper authority as set up under the Law. It is further argued that the case is hit by law of limitation as provided under Section 24(A) of the Consumer Protection Act, 1986. It has further been argued that if the units be checked and considered from the card it can be ascertained that time to time the meter became stopped. Consumption of the electricity can not be reversed back but all along it would be progressive system. But when the meter be read together it could be gathered that there was reversing back of the meter reading. Thereby it can be ascertained that the calculation as made or the claimed for was a wrong one by which proper reading can not be determined as reading should always be progressive and in an ascending manner. So, after going through the meter reading the complainant’s claim of 52 units per month can not at all be believable and liable. Further it has been argued that from the document it can be ascertained that the load consumption has already been extended and under the law when permissible limit would be crossed the OP has authority to raise additional security deposit and can claim it from the consumer. But in the instant case it is evident that the power load has already been extended from the initial consumption at the time of installation of the meter in the premises of the complainant. There is no wrong on the part of the OP to claim additional security charge for the load as consumed. Therefore, the question of refund of security amount does not arise and the case is liable to be dismissed.
The complainant in support her case filed several documents relating to the grievance as ventilated by her. By several letters dated 10th April, 1995’ 6th march, 95; 09.02.95 and other letters all along she claimed that total consumption per month not more than 60 units. The billing dispute starts from May, 1989 up to 1994 as it appears from the case of the complainant. From the card in connection with Service Connection No.18040 standing in the name of the complainant goes to show that on 22.05.89
Contd…….P/6
-:6:-
consumer reading was 0379 (stopped) prior to that on 14.02.89 there was remark in the reading column as 0379 stopped. Last reading was then 1599 and average unit was taken 180 (60 X 3). The average unit started from 04.02.89 as 150 x 3 and such entry of 0379 was continued up to 04.08.93 against which average unite of 150 unit per month was noted. Stopped meter was removed on 04.08.93 and initial recording has been recorded as 00003. Next on 16.11.93 meter reading was 00303. So, in that quarter average unit of 100 x 3 was mentioned therein. Subsequently, on the next meter reading was taken on 02.02.94 as 603. So, for that quarter total consumption was 300 units i.e. 100 x 3 was noted therein.
It further reveals on the next recording dated 01.03.94 reading was reversed as 00003 and meter stopped noted therein. So, that stopped meter was continued up to 03.06.94 and again the stopped meter was removed on 25.10.94. Then initial recording was noted therein as 1947. On 01.11.95 the meter reading was 1966. From subsequent period it further reveals that on the next reading on 10.12.94 meter reading was noted therein as 2189 = 240 units total thereby average would be 80 x 3. Since the meter reading up to 07.12.2000 more or less 637 to 835 and 520 near about 200 units per month were consumed. But again on 09.03.01 meter reading was 8418 and there is noting sticky. So, meter card goes to show that time to time the meter was found faulty with the endorsement stopped meter or sticky meter which legally in true sense shows defect in meter. The nature of meter generally runs by way of progressive system that can not be run back wise or reversed system and all along meter reading was taken average basis and after replacement of the stopped meter the meter reading then goes more than 300 units in a quarter. So, from this characteristic it can be said that consumption of the electricity in the premises of the complainant is not 52 units or 60 units per month but it was more than 100 units and extended in nature.
Now the complainant claims the difference on the basis of average 60 units from the reading of the earlier recording dated 18.11.88. So, the nature of dispute clearly indicates billing dispute coupled with defect in meter.
In this regard considering the nature of dispute it is fit and proper to decide first whether this Forum has jurisdiction to entertain this when such defence was taken by the OP.
The Electricity Act of 2003 i.e. under 30 of 2003 came into force on and from 26.05.03. The case has been instituted in the month of August’94 i.e. before coming into force of Electricity Act of 2003. In old Act of 1910 there is provision of Section 24 (2) wherein it has been laid down as where any difference or dispute which buy or under
Contd…….P/7
-:7:-
this Act is required to be determined by an Electrical Inspector has been referred to the Inspector before notice as aforesaid has been given by the licensee, the licensee shall not exercise the powers conferred by this Section until the Inspector has given his decision. So, this provision clearly provides for determination of difference or dispute with regard to billing system is to be determined by an Electrical Inspector and such dispute shall be determined within a period of six months. By substitution of Section 24 (A) new provision has been incorporated as bar to jurisdiction of Court etc. The said provision lays down as not with standing anything contained in the court of Civil Procedure 1908 or in any other law for the time being enforce no court Tribunal or other authority shall have jurisdiction to determine any difference or dispute which is required to be determined or which has been enquired into by the Electrical Inspector or any other authority under the provision by this Act under West Bengal Act 55 of 1994. Section 42 (5) of the Electricity Act of 2003 lays down that every distribution licensee shall within six months from the appointed date or date of grant of license which ever is earlier so that a Forum for redressal of grievances of the consumers in accordance with the guidelines as may be specified by the State Commission. Sub-Section (6) provides any consumer who is aggrieved by non-redressal of his grievance under sub-section (5) may make a representation for the redressal of his grievance to an authority to be known Ombudsman to be appointed or designated by the State Commission.
Sub-Section (6) provides for such grievance shall be decided by the Ombudsman within such period as specified by the State Commission.
Sub-Section (8) provides for the provision of Sub-Section (5), (6), (7) shall be without prejudiced to right which the consumer may have apart from the rights conferred upon him by those sub-section.
The instant case coupled with the document it is noticed that the dispute related with the electricity bill for the period May’89 to August’94 which were according to the complainant exorbitant and excessive reading was held contrary to the correct recording.
Under the Act new or old when the Act of 1910 has been repealed determination of billing dispute can not be adjudicated by any court of law since the Statute provides specifically the relief for such billing dispute and under the statute billing dispute is to be considered by Ombudsman i.e. three Tier system as set up.
In the case of Jharkhand State Electricity Boad Vs Anwar Ali reorted in II (2008) CPJ 284 (N.C.) it has been held Electricity Act and Consumer Protection Act run bilateral regarding limited purpose in respect of arbitrary illegal unjustified action against rules and regulations of Electricity code. When complainant alleges the defence in service on
Contd…….P/8
-:8:-
the part of the Electricity Board case is quite maintainable as because the jurisdiction of Fora can not be curtailed in absence of express provision prohibition system. Section 3 of Consumer Protection Act and Section 175 of electricity Act not any derogation of provision of any other law. By insertion of provisions of Sub-Section (5), (6) and (7) it is an additional remedy and is without prejudice to the right which the consumer may be having under any other law. This would also establish that the jurisdiction of the consumer Fora is not curtailed or barred or any manner as held by Hon’ble National Commission in the decision as stated above.
In this regard the case of the complainant is that it is the duty of the OP the erstwhile board which is now known as WBSEDCL is to check the meter and take the reading regularly on proper physical verification. But all along the OP recorded the reading on the basis of stopped meter on average. If physical verification be made shortly such dispute may be detected then and there and the OP is to rectify their defect accordingly and thereby correct reading is to be recorded by the reader. The document speaks that for a considerable period reading was taken on average on the basis of stopped meter or sticky meter. Al though on several times defective meter was replaced by a new one and then the meter reading was found in a progressive way i.e. the consumption more than 100 units per month. Even it is also noticed more than 150 units per month was also noted therein.
In III 1999 CPJ 285 the Hon’ble State Commission of Hariyana and Himachal Pradesh it has been held that it is not the complainant’s duty to check the meter and take its reading. No doubt when a considerable period bill was issued on the basis of stopped meter and on average basis it is not reasonable. But it should not be lost sight of that after replacement of new meter the meter reading was progressive one and it gives more than 100 – 150 units per month. This characteristic of meter reading as reflected above supported by the documentary evidence comes to show that meter was all along faulty or defective in nature. When defective meter is apparent and the complainant claims the difference in the billing system on the basis of initial reading i.e. 52 units per month or 60 units per month the complainant has not come before this Forum in time to check the meter through expert. Even the complainant sat tight or kept mum for a long time without taking proper recourse or go before the Chief Electrical Inspector for redressal about the billing system allegedly caused by defective meter. After lapse of more than six years all on a sudden they have come before the Consumer Forum with the allegation of deficiency in service cause of difference or dispute in the billing system and it is evident that the meter was found therein defective.
Contd…….P/9
-:9:-
In old or new Act under the Electricity Act there is specific provision in the old Act of 1910 in Section 26 (6) where any difference or dispute arises as to whether any meter referred to any sub-section (1) is or is not correct the meter shall be decided upon the application of either party by an Electrical Inspector and whether the meter as in the opinion of a such inspector ceases to be corrected. Such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply during such time not exceeding six months as the meter shall not in the opinion of such Inspector have been corrected. But save as aforesaid the register of the meter shall in the absence of fraud be conclusively proof of such amount or quantity. So, in all respects either in old or new Act there is provision for redressal with regard to difference or dispute in the billing system line upon the Electrical Inspector and presently Three Tier as set up.
In CHN Vol.-I 1997 Page-50 in the case of CESC Vs N.M. Bonka the Apex Court held the consumer should have approached the Electrical Inspector straightway if he was aggrieved by the bills. The court should have declined to intervene when the consumer approached the court. The court should have directed the consumer to avail of the statutory remedy. So, when there is a question of dispute regarding the billing system difference or dispute it is required to be adjudicated by the dispute redressal machinery as held by our Hon’ble Supreme Court.
Considering all the facts and circumstances, in the light of reasoning as reflected above we are constrained to hold that dispute or difference in billing system when there is allegation of defective meter it should be considered by the Electrical Inspector or at presently three Tier system as set up.
The complainant’s further case is that the OP did not refund the excess security deposit as taken despite repeated request.
In this context from the documents it reveals there is a case of extension of load and the complainant was asked for deposit of Rs.500/- towards a new meter.
It has already been reflected above from the trend of the meter reading it is evident that it was in progressive in nature and all along meter reading was increased.
Admittedly, from the document it reveals that the meter has been changed by way of installation of a new meter and cost was taken for it. Under the law in case of extension of loading than that of the power as installed initially the OP can charge additional amount towards security.
It is not the case of the complainant disconnection of the power or electric connection and when there is no case of disconnection of power with notice to the OP
Contd…….P/10
-:10:-
and when it is evident the characteristic of loading system i.e. increasement of the power the question of refund of security money as sought for does not arise and thereby the case of the complainant is not tenable in that score also.
There is no doubt that the complainant is a consumer as provided under the Consumer Protection Act, 1986. From the decisions as reflected above there is not doubt that this Consumer Forum has jurisdiction to entertain the case of the complainant. But when it is a case of defect in the meter in question and when there is specific relief as provided under the Electricity Act and in view of the decision as made by the Hon’ble Supreme Court we are of the view that the relief as sought for by the complainant towards the billing system with defective meter the relief is otherwise and not in the Consumer Forum.
Considering all the facts and circumstances, we find and hold that the case of the complainant fails.
Thus, the issues are disposed of accordingly.
In the result, the complaint fails.
Hence, it is,
O R D E R E D
that the Consumer Case No. 94/S/1994 is dismissed on contest but without cost.
Let Xerox copies of this Judgement and Order be supplied to the parties free of cost.
-Member- -Member- -President-