JUDGEMENT

Shri A.K.Patra,President:

1. This Complaint is filed by the complainant named above inter alia alleging deficiency in service & unfair trade practice there on the part of Ops for misconduct of their workers towards the complainant & for imposition of  penalty arbitrarily without following norms as prescribed and violating of consumer right  caused  financial burden  & mental agony to the complainant.
2. Complainant seeks for an order declaring the amount received at final assessment as illegal and, to direct the Ops to refund the amount of Rs.7629/- with interest, and, to direct the Ops to pay compensation Rs.3,00,000/-  towards mental agony and physical harassment and , to direct the Ops to pay Rs 10,000/- towards legal expenses and further prayed for all other relief(s) as the Commission may deemed fit & proper .
3. The facts of the complaint in brief are that :-

(i), the complainant is one of the beneficiaries of electricity being supplied by the Ops for consideration under Consumer No.903514070159 there in the name of Rajesh Kumar Dora, the son of the complainant. The complainant has been enjoying the electricity being supply by the Ops since 2003 and has been paying the energy charges regularly every month as per the bills generated by the Ops.

(ii) On dt.13.07.2023 at 11.30 A.M a team of four members said to be TPWODL officials of the Ops without prior intimation and without any identity came to the house of the complainant for physical verification  of the status of the meter installed in the resident of the complainant and asked the complainant to produce the electricity bill of the current month. After verification of the current bill they  entered to the verandah to view the status of the meter and after a short while they ended their inspection/verification. It is alleged that, no norms were followed to test the meter as required U/s 111 of the Electricity Act,2003.  They did not prepare any inspection/physical verification report in presence of the complainant although the complainant was present till they left the premises. Thereafter  a  new meter was installed on 04.08.2023.

(iii) That, again  on 14.08.2023 at about 11.30 A.M all of a sudden three persons stating themselves to be the TPWODL officials without showing  their identity  entered to the house of the complainant to enquire  whether a new meter had been installed and after seeing the new meter  one of the members questioned the complainant, whether he was aware of imposition of a penalty of Rs.50,000/- and on query  what were the reasons of imposition of such amount, without divulging any reason they preferred  to leave the house  advising the complainant to visit SE’s office to ascertain the reason. Immediately the complainant went to SE’s office at 12.30 PM , on enquiry from SE’s office ,  it was found that, neither the SE nor any other official was present to be contacted.

(iv) On dt.21.08.2023 at 11.30 AM the same team again came to the house of the complainant, by the time the complainant was not present.The team members  vehemently told his wife that, they had come to disconnect the electric power supply from their house, unless the penalty amount was paid and when his wife strongly reacted to their unethical behavior asking the probable time of return of the complainant they left the house stating that, they would come again in the afternoon but they did not turn up. On the same of 21.08.2023 at 4 PM the complainant went to SDO’s office and met the SDO Mr.Mishra in his official chamber, enquired whether he had any knowledge about the visit of an unenlightened team of TPWODL officials to their house and threatened of power supply disconnection, unless the penalty amount of Rs.50,000/- was paid  and whether they were authorized by the Ops to do so. The SDO cunningly parried the vital question, in his turn confirmed that, by referring copy of provisional assessment order dt.22.07.2023 stated that, basing on a report of enforcement squad dt.13.07.2023, on the status of the mechanical meter installed in their house was slow by 30% and thus there has been a provisional assessment passed imposing a penalty of Rs.50,862/-  against the complainant vide order No.755121072304 dt.22.07.2023. Till the date of enquiry i.e. 21.08.2023 the complainant was kept in dark without serving the order on him violating Section 126(2) of Electricity Act,2003. This was nothing but poor and arbitrary exercise of powers of the Ops. Whatever observation they have made that, was without following the mandatory requirement laid down under OERC Distribution (condition of supply) Code 2004 & 2019.

(v) On dt.22.08.2023 the complainant contacted the ESO, College Square with whom the order was lying as was told by the SDO and demanded to cause necessary service and on 23.08.2023 the ESO sent the provisional assessment order under seal and signature without any date through Spl. messenger which was illegal on his part and the complainant acknowledged received of the order on 23.08.2023 at  1.30PM.

(vi) On dt.29.08.2023 the complainant filed comprehensive written objection petition u/s 165 of Odisha Electricity Regulatory commission Distribution (Condition of Supply) Code 2019 challenging the arbitrary action of the service provider TPWODL. Being found him absent in his office, on 30.08.2023 the same was sent by Speed post with AD on 31.08.2023 which was said to be delivered to the addressee on 02.09.2023.

(vii) On 15.09.2023 at about 10AM the ESO College Square over telephonic call and SMS informed the complainant to attend a settlement camp scheduled to be held in SE’s office at 10.30AM for hearing of his objection petition dt.29.08.2023.  The complainant attended the camp at 11AM on 15.09.2023. After going through the objection petition, the head of the team questioned the complainant whether new meter was installed, the reply being affirmative asked to state what he wants in regard to settlement. In his reply the complainant stated that, since the provisional assessment order generated against him was illegal, improper, arbitrary, and unethical and against the trade practice, the complainant denied the liability imposed on him. After being heard  the head of the team stated that  though the objection petition filed by the complainant in response to the provisional assessment order was genuine, in view of the limitation of powers vested in him he could not wave the entire amount provisionally assessed and decided to settle the matter on normal assessment basis and worked out amount was Rs.7629/- and two options were given, one if the complainant agrees to pay the amount at the camp the matter would be closed and 2^nd  options was that, if he fails to pay the said amount  would be included in the next month’s energy bill. This was nothing but a farcical settlement camp. The decision of assessment was made abruptly without considering his objection petition was much painful for the complainant to get rid of the physical and mental harassment  and apprehending  threats of disconnection  of power supply by the Ops  the complainant decided to  pay the amount of Rs.7629/-. On payment a computerized money receipt was generated by the HOD, CAE, Mr.Pankaj Gupta, the complainant stunned to see the purpose which reads    “amount received towards Theft of electricity & Meter Tempering,” when the complainant strongly protested against the accusation of electricity theft and meter tempering and he wanted to refund the money so paid, Mr.Gupta immediately corrected the money receipt by erasing the accusation and instantly entered “Normal Assessment” on the said money receipt .  After one week of final assessment on dt.22.09.2023 the complainant visited the office of the SDO to enquire whether a final order was received yet, in his turn the SDO handed over a copy of final assessment. From the facts narrated above, it is clear that, the Ops are found deficient in service and also committed unfair trade practice for which the complainant suffered a lot of mental agony and physical harassment. Hence , this complaint.

4. . Being notice, the Ops appeared through their learned counsel Sri N.R.Mishra but failed to file their written version within the stipulated period of time as prescribed under C.P.Act 2019 . However, Ops are allowed to take part in the hearing & further proceeding of this case without written version.
5. . Here ,the doctrine of non –traverse will rightly applicable as non of the allegation made by the complainant are ever disputed or traversed by the O.Ps in any manner .Law is well settled that ,where the O.ps have not filed a pleading it shall be law full for the court to pronounced judgment on the basic of the fact contend in the plaint except as against the person under a disability (Reliance placed upon the judgment of the Hon’ble Supreme Court passed in  M.Venkataramana Hebbar Vs M. Rajagopal Hebbar & Others, Lohia Properties (P) Ltd Vs. Atmaram Kumar).
6. However, Section 38(6) of C.P.Act, 2019 casts an obligation on the District Commission to decide a complaint on the basis of the evidence brought to its notice by the complainant and the service provider, irrespective of whether the service provider adduced evidence or not the decision of the District Commission has to be based on evidence relied upon by the complainant. Thus, onus through is on the complainant making allegation.
7. The complainant, to  substantiate his claim, has filed the self attested true copy of following documents:- (i) Copy of provisional assessment order, (ii) Copy of objection petition to the provisional assessment order, (iii) Copy of final assessment order, (iv) Copy of the money receipt showing payment of Rs.7629/-, (v) Copy of six numbers energy bills pertaining to the period preceding to the date of illegal inspection made on 13/07/2023 , (vi) Copy of the Judgement passed by the Hon’ble Commission dt.25.11.2016 in case of Karunakar Parida Vrs. Superintending Engineer, WESCO, Kalahandi. The complaint petition is supported by an affidavit of the complainant.
8. During hearing of the complainant the complainant has filed a memo stating there in that, his complaint petition is supported by his affidavit be treated as his evidence which this commission has taken in to consideration.
9. Heard. Peruse the material available on record. We have our thoughtful consideration on the submission of rival parties present.
10. No affidavit evidence as prescribed under C.P. Act 2019 is filed by the Ops. However, the Ops, to substantiate their claim, has filed the self attested true copy of physical verification report dt.13/07/2023 conducted over the meter installed there in the resident of the complainant vide consumer no. 903514070159 along with details of the final assessment settled by their committee dt.02/11/2023 which are received by the complainant on protest stating there in that those were not served to him earlier is taken in consideration.
11. . The Ld. Counsel for Ops submits that, this District Consumer Commission should not entertain the dispute relating to the Electricity Act as because there is an alternative forum available under the Electricity Act 2003 to redress the grievance of the consumer and further draws our attention over section 127 of the Electricity Act 2003 which provide the provision of appeal to the appellate authority against a final order made there under section 126 Electricity Act 2003 and it is  not invoked by the complainant.
12. Admittedly, the complainant in this case  is aggrieved upon the conduct & manner of workers of Ops while inspecting the electrical installation there in the residential building of the complainant and protested against the provisional assessment  order passed U/S 126 read with Section 135 of Electricity Act 2003 for unauthorized use of electricity read with Regulation 161 of Odisha Electricity Regulatory Commission Distribution (Condition of Supply) Code 2019 and also aggrieved on the final assessment order dt. 23/08/2023 passed U/S 126(3) and 126 (5) read with section 135 of under of Electricity Act 2003  for an amount of Rs.7629/ .

13. It is seen that, the complainant has protest against the aforesaid provisional assessment order U/S 126 in writing and have availed an opportunity of being heard before the competent authority. The complainant has already complied the final assessment order dt. 23/08/2023 paying the amount of Rs.7629/-. Nothing cogent evidence is placed on record to hold that, the complainant has complied the final assessment order dt. 23/08/2024 paid the amount of Rs.7629 on protest .So also nothing placed on record to hold that, the complainant has ever approached the appellate authority as prescribed U/S 127 of the Electricity Act 2003 within thirty days of said order so also not approached this Commission within the said stipulated time period as prescribed under U/S 127 of the Electricity Act 2003.

14. Ld. Counsel for the Ops draws our attention on the judgement dt.30.03.2012 passed by the Hon’ble SCDRC, Cuttack in Appeal No. 1342/2003 , the judgement passed by the Hon’ble Supreme court in Whirlpool Corporation vrs Registrar of Trade Mark, Mumbai, the  Judgement  passed in Haryana State Electricity Board vrs Mam Chand, the  judgement passed in U.P Power Corporation Ltd vrs. Anish Ahmed and on the latest order  dt.16/05/2023 passed by the  Hon’ble High Court Odisha in W.P( c )  No. 1704 of 2020 urged to dismiss this complainant as  not maintainable before this Commission, which this commission   have gone thoroughly.

15. The complainant has cited the judgment of this Commission /Forum in the case of KARUNAKARA PARIDA VRS. SUPERINTENDENT ENGINEER,WESCO, KALAHANDI which we have gone thoroughly where in this forum/Commission  has not considered the settled principle of law discussed above as such said judgment cited by the complaint is not applicable  in this case so also not binding to this commission while deciding this  complaint in a different facts & circumstances .  

16. In view of afore aforesaid settled principle of law we are of the opinion that, this complaint against the final assessment made by the assessing officer under Section 126(3) and 126(5) of Electricity act is not maintainable before the consumer forum. As such this commission is of the opinion that, the prayer  of the complainant for an order declaring the amount received at final assessment as illegal and, to direct the Ops to refund the amount of Rs.7629/- with interest is not acceptable.

17. The complainant is one of the beneficiaries of electricity being supplied by the Ops for consideration under Consumer No.903514070159 there in the name of Rajesh Kumar Dora, the son of the complainant and that, complainant has been enjoying the electricity being supply by the Ops and paying the energy charges regularly every month as per the bills generated by the Ops since 2003 is not disputed.
18. The complainant being the father of the registered consumer Rajesh Kumar Dora, vide Consumer No.903514070159 residing in the same premises has been consuming electricity being supplied by the Ops for consideration is not disputed as such the complainant is coming under section 2(5)(i)  of C.P Act for which  submission of learned counsel for the Ops that, the complainant has no locus stand to file this complaint claiming status of the consumer, is not acceptable rather rejected .
19. This commission is of the opinion that, the Ops being the service provider is duty bound to give intimation to the complainant prior to conducting any inspection of the electrical installation there in the residence of the consumer/complainant. So also the workers of the Ops should well behave to the consumers while conducting inspection. Inspection report if any should be prepared in presence of the complainant following the norms as prescribed.
20.  Here , the allegation of the complainant that, the workers of the Ops  having no identity & without prior intimation enter in to the resident of the complainant on  13/07/2013  behaved rudely  to the complainant & on subsequent days ill-behaved  to his wife in absence of the complainant and that, inspection of electrical installation conducted without following prescribed norms as well as prepared the  inspection/physical verification report on the back & behind of the consumer/the complainant remain unchallenged clearly proved the deficient  service & unfair trade practice there on the part of the Ops certainly caused mental agony to the consumer cannot be denied. Hence, this Commission is of the opinion that, there are sufficient cause exits to present this complaint.
22. Law is well settled that Ops cannot escape its vicarious liability for the acts of its employee. Reliance   may placed on the judgment dt. 12.08.2015 passed by the Honourable National Commission in Punjab National Bank & ANR. Vs. Hari Ram Yadev In Revision Petition No 1923 of 2015 which is also followed while deciding the Revision Petition No 753 of 2018 in Panjab National Bank Vs. Daljeet Singh decided on 19.01.2021 by the Honorable National Commission reported in 2021 NCJ 163(NC) .  
23.  This complaint is presented on 24.11.2023  before this Commission is found well on time as prescribed under C.P. Act 2019.The complainant is residing within the district of Kalahandi as such this complaint is found well within the jurisdiction of this Commission and well maintainable under the C.P.Act 2019.
24. there is deficiency of  service & unfair trade practice on the part of the  employees of the Ops caused mental agony to the old age  senior consumer accordingly the Ops are jointly & severely liable to compensate the complainant and, liable to pay litigation cost . Mental agony & physical harassment suffered by the complainant due to deficient service of the Ops cannot be ascertained in any manner. However, this Commission is of the opinion that, an award of nominal damages of not less than Rs 10,000/- may compensate the complainant some extent. The claim of the complainant is of higher side, as such allowed in part. Hence it is order.

O R D E R

This consumer complaint is allowed in part against the Ops on contest with following directions:-

The Opposite Parties are hereby directed to to pay compensation of Rs 10,000/- towards suffering of mmental agony & physical harassment along with Rs.5,000/- towards cost of this litigation to the complainant.

The Opposite Party  are  further  directed  to make compliance of the  aforesaid order within  four weeks  from the  date of  receipt  of this  order falling which the Opposite Party shall be liable to pay compensation of Rs. 100/-(one hundred) per day to the complainant for  delayed compliance  till compliance of this order.

  Dictated & corrected by me.

       Sd/-

          President.                                                                             

                            I agree.

     Sd/-                                        

 Member.

Pronounced in open Commission today on this 22^nd day of May   2024 under the seal and signature of this Commission.

The pending application if any is also stands disposed off    accordingly.

Free copy of this order be supplied to the respective parties or they may download the same from the Confonet to treat the same as copy of the order receipt from this Commission. Order