Assam

Dibrugarh

CC/1/2016

DEEPANKAR HANDIQUE - Complainant(s)

Versus

A.P.D.C.L NAHARKATIA - Opp.Party(s)

VIJAY PANDEY

01 Feb 2024

ORDER

Date of Argument: 06.01.2018

                                                                                                            Date of Judgement: 01.02.2024

 

This C.P. case has been filed U/S 12 of the Consumer Protection Act, 1986 by the complainant praying for directing the O.P.s not to disconnect the electricity connection, to correct the bill and pay compensation of Rs.1,00,000/- (Rupees one lakh only) for causing physical and mental agony and also monetary loss along with cost of the litigation of Rs.10,000/-.

 

                                                            JUDGEMENT

 

1. The case of the complainant Sri Deepankar Handique, in brief is that he is the son of Sri Parmananda Handique residing at village-Jagoon Gaon, P.O. & P.S. Naharkatia, Dist.-Dibrugarh, Assam and had electricity connection from the O.P.s i.e. APDCL, Naharkatia ESD standing in the name of his grandfather since 28.03.2003 which was obtained by paying requisite connection charge of Rs.4501/- after performing all the formalities. After the death of his grandfather the complainant has been enjoying the electric connection by paying the bills regularly without any default.

 

2. On 14.09.2015 the complainant was served with a disconnection notice showing an amount of Rs.58,691/-, along with a bill of an exorbitant amount of Rs.51,702.40/-for the period from 02.08.2015 to 01.09.2015 (31 days). Complainant was surprised to see the bill and immediately approached to the O.P.s with a request to rectify the aforesaid bill. The O.P.s informed that due to some technical problem the bill amount had been served as excess which will be rectified and a corrected bill will be served to the complainant. Thereafter as per discussion the complainant approached the O.P.s to issue a fresh and corrected bill. However due to heavy work load they expressed their inability to issue the fresh bill but assured that corrected bill will be provided to him. Subsequently the O.P.s again issued another bill for the period of 02.11.2015 to 01.12.2015(30 days) amounting to Rs.63,955/-. Complainant requested the O.P.s to make an enquiry about the said bill but he was asked to deposit the entire bill amount. Complainant apprised about the difficulty to deposit such a huge bill amount but O.P.s refused to consider his request and informed that they would not accept anything less than the bill amount.

 

3. The complainant also produced the previous bills for consideration which are reflected date wise….

1. Bill period 02.01.2015 to 01.02.2015 (31 days) Rs.3057.00
2. Bill period 02.02.2015 to 01.03.2015 (28 days) Rs.3238.00
3. Bill period 02.03.2015 to 01.04.2015 (31 days) Rs.3714.60
4. Bill period 02.04.2015 to 01.05.2015 (30 days) Rs.3020.00
5. Bill period 02.05.2015 to 01.07.2015 (61 days) Rs.3020.00
6. Bill period 02.08.2015 to 01.09.2015 (31 days) Rs.51702.40
7. Bill period 02.11.2015 to 01.12.2015 (30 days) Rs.1827.00

 

4. It is averred that the bill period from 02.08.2015 to 01.09.15(31 days) of Rs.51,702.40 shows that the complainant has used and consumed energy charges of 6848 units which was actually and factually incorrect. Whereas, the average consumption of the complainant never crossed more than 450 units since January 2015 as it appears from all previous bills submitted in this case. It is stated that the complainant is ready to pay the bills of actually consumed units, but O.P.s demanded huge amount showing unreasonable units of energy charges which was actually not consumed by him and further asked to deposit the entire bill amount first and the request of the complainant to correct the inflated bills would be considered only after receiving of the full amount even though the amount is shown abruptly.

 

5. The complainant also averred that in the modern days no one can survive without electricity and therefore the right to electricity is also a right to life and liberty in terms of fundamental rights and depriving the complainant on the above mentioned manner is a clear violation of fundamental rights. The cause of action for the complainant’s grievances arose w.e.f. 02.01.15. Further stated that the unlawful act of the O.P.s, the complainant has suffered sufficient damages in terms of loss of physical, mental and monetary loss and hence the complainant prays for the following relief/ relies-

1. To direct the O.P. not to disconnect the electricity connection of the complainant.
2. To direct the O.P. to correct the bills.
3. To pay a sum of Rs.100000/- for causing harassment and mental anguish.
4. To pay a sum of Rs.10,000/- for cost of litigation.
5. Any other relief deem fit and proper in the interest of justice.

 

6. After receipt of the notice the O.P. appeared before this Commission and filed Written Statement on 11.03.2016 stating interalia that the complaint is not maintainable in law as well as in facts and the complainant has no right to file the instant case. It is stated that the petition filed in the case has not disclosed the particulars i.e. Consumer No, Meter No. etc. of the concerned electric connection, however from the documents filed in the case it appears that the particular electric connection stands in the name of Sri Khireswar Handique and not the complainant as such the complainant is not a consumer of the O.P. within the meaning of Section 2(i)(d) and as such it is liable to be rejected in lemine.

 

7. The O.P.s further stated that the consumer of concerned electricity connection is very irregular in payment of regular power bills and he failed to pay the due amount of consumption of power for the period from the month of October 2012 to September 2014, amounting to Rs.67,570/-. However on 24.09.14 and 12.06.15 the consumer made payment of Rs.33000/- and  against surcharge waived which was given to him on 01.06.14. Thereafter on 12.06.2015 he paid another amount of ₹ 34,576/-.

 

8. It is also stated that the consumer was served disconnection notice dated 14.09.15 for Rs.58,691/- and also the bill for the period of 02.08.15 to 01.09.15 amounting to Rs.51,702.40. Further stated that the bill dated 10.09.15 for the period 02.08.15 to 01.09.15 was raised on the basis of meter reading collected from the energy meter installed in the consumer premises. It appears from the bill that the previous meter reading was 9638 and the present reading was 16486 so the O.P. prepared a bill for (16486-9638) =6848 units. Accordingly the bill amount was calculated at Rs.58,691/- along with the arrear amount of Rs.6063.84. But the consumer deliberately failed to pay the said bill amount and therefore the O.P. subsequently served the bill dated 10.12.15 amounting to Rs.68,847/- which is inclusive of the amount of Rs.63,955.55. It is also admitted that upon the receipt of the aforesaid bill the complainant made his complaint in respect of the bill amount, O.P.s asked him to deposit meter testing fees of Rs.80/- as per clause 4.2.1.42 of the AERC supply code but the complainant did not pay the testing fees and never attended the O.P.s office again. It is stated that the referred amount was calculated on the basis of the meter reading installed in the consumer’s premises and calculation of the said amount cannot be termed as technical defect nor due to heavy duty works as frivolous alleged by the complainant. The O.P. notified the consumer to clear the bill within the due date to avoid disconnection however the consumer deliberately failed to pay the aforesaid just due bills stealthily filed the instant case contending all falls baseless and frivolous contention.

 

9. The O.P.s further stated that the consumer was served with the bill of Rs.68,847/- from the period of 02.11.15 to 01.12.15 which was inclusive of the outstanding amount of Rs.63,955.55 but the consumer did not pay the said bill. Since the complainant is default in making payment of the due power bill as per requirement of clause 4.3.2(a) of AERC supply code, the O.P.s initiated for disconnection of electricity as per clause 4.22.3 of the AERC supply Code. The total outstanding of the consumer till the month of January 2016 comes to Rs.73,798/- but the consumer failed to pay the amount of the bill.

 

10. The O.P. also alleged that the consumer used the power line only for commercial purpose in running his hotel business as such the petition is barred by Section 2(1)(d)(ii) of the C.P. Act. Further the complainant is not consumer of electricity as the concerned electricity connection stands in the name of Sri Khireswar Handique and apart from that the consumer is very irregular in payment of the energy bill for which the O.P. had to served notice of disconnection to the consumer due to his deliberate failure to pay the energy bills as such there is no deficiency in service on the part of the O.P.s and wilful negligence. Hence the O.P.s prays to dismiss the case filed by the complainant with cost.

 

11. In this case complainant Sri Dipankar Handique has submitted his evidence on affidavit as P.W.1 and exhibited as many as eight numbers documents in support of his claim. In the evidence, the complainant reiterated the same facts as has been narrated in this complainant petition. It is stated by the P.W.1 that he is a consumer of APDCL Naharkatia ESD having his resident at village-Jagoon Gaon, P.O. & P.S. Naharkatia, Dist. -Dibrugarh, Assam and had electricity connection from the O.P.s for his premises is standing in the name of his grandfather since 28.03.2003 which was obtained by paying the requisite connection charge of Rs.4501/-(Ext. No.1 and 2) after performing all the formalities. After the death of his grandfather, the complainant has been enjoying the electric connection by paying the bill regularly without default. On 14.09.2015 the complainant was served a disconnection notice for Rs.58,691/- along with a bill for the period from 02.08.2015 to 01.09.2015 (31 days) amounting Rs.51,702/-. He immediately approached to the O.P.s with a request to rectify the bill which the O.P.s informed that fresh and corrected bill will be served to the complainant. But subsequently O.P.s issued another bill for the period from 02.11.2015 to 01.12.2015(30 days) for an amount of Rs.63,955/-. Thereafter the complainant requested the O.P.s to make an enquiry about the said bill but he was asked to deposit the entire bill amount. However the complainant express his inability to deposit such a huge bill amount but the O.P. refused to consider his request and informed that they would not accept anything less than the bill amount and also stated that the bill period from 02.08.2015 to 01.09.15(31 days) of Rs.51,702.40 shows that the complainant has used and consumed energy charges of 6848 units which is actual and factually incorrect. It appears from all previous bill submitted by the complainant that the average consumption never crossed more than 450 units since January 2015. The complainant is ready to pay the bills of the actually consumed units, but the O.P.s demanded huge amount showing unreasonable units of energy charges which was actually not consumed by him.

 

12. The complainant produced the previous bills as exhibits for consideration which are reflected date wise….

Ext. No.2 is the bill for the period from 02.01.2015 to 01.02.2015 (31 days) Rs.3057/-

Ext. No.3 is the bill for the period from 02.02.2015 to 01.03.2015 (28 days) Rs.3238/-

Ext. No.4 is the bill for the period from 02.03.2015 to 01.04.2015 (31 days) Rs.3714.60

Ext. No.5 is the bill for the period from 02.04.2015 to 01.05.2015 (30 days) Rs.3020/-

Ext. No.6 is the bill for the period from 02.05.2015 to 01.07.2015 (61 days) Rs.3020/-

Ext. No.7 is the bill for the period from 02.08.2015 to 01.09.2015 (31 days) Rs.51,702.40

Ext. No.8 is the bill for the period from 02.11.2015 to 01.12.2015 (30 days) Rs.1827/-

 

13. On the other hand Sri Parthapratim Hazarika, Sub Divisional Engineer, Naharkatia Sub-Division submitted his affidavit on behalf of O.P.s as D.W.-1 and exhibited eight numbers of documents to rebut the case of the complainant. The O.P. stated in the evidence that the complainant is not a consumer of the concerned electricity connection as the aforesaid connection being Consumer No.219000002464 stands in the name of Khireswar Handique. The complainant was very irregular in payment of the regular power bills and failed to pay the due bill amount for consumption of power for the period from 02.05.15 to 01.07.15 amounting to Rs.3355/-. The complainant also failed to pay the subsequent bill for the period from 02.07.15 to 01.08.15 for the amount of Rs.6064/- including the outstanding amount of Rs.3355/-. Further the consumer consumes (present reading 16486 - previous 9638)=6848 units of power during the period from 02.08.15 to 01.09.15 and hence the bill was prepared for the amount of Rs.58,691/- including arrear amount of Rs.6063.84 for the said period on the basis of meter reading collected from the energy meter installed in the consumer premises. Upon receipt of the aforesaid bill the complainant had visited the office of the O.P. to make complaint in respect of the said bill amount where he was asked to deposit an amount of Rs.80/- as meter testing fees as per clause 4.2.1.4.2 of AERC supply code, but the complainant did not deposit the said meter testing fees and never attended the O.P.s office again.

 

14. The O.P.s further stated that they served the bills upon the consumer for the subsequent period i.e. from 02.09.15 to 01.10.15 total amounting Rs.62,116/- inclusive of the aforesaid arrear amount of Rs.58,691.06 but the consumer deliberately failed to pay the same. The next bill was served for the period from 02.10.15 to 01.11.15 amounting to Rs.65,891/- including the above arrear amount of Rs.62,116.41 but the consumer again failed to pay the same. The consumer was again served with the bill amounting to Rs.68,847/- for the period from 02.11.15 to 01.12.15. The said bill amount was inclusive of the outstanding amount of Rs.63,955.55 which the consumer failed to pay. Since the consumer under the requirement of clause 4.3.2(a) of AERC supply code is statutorily liable to pay the due amount of the bill and he deliberately failed to comply therewith and defaulted in payment of the due power bill as such the O.P. initiated for disconnection of electricity  as per clause 4.2.2.3 of the AERC supply code. It is to be mentioned herein that the total outstanding of the consumer till the month of January 2016 comes to Rs.73,798/- but the consumer failed to pay the said amount of bill. It is also stated that although the consumer has been enjoying the electricity facility, he failed to pay the due energy charges and he took no step for testing of the meter. The D.W.1 exhibited following documents to support his claim-

 

1. Ext. A is the bill dated 04.10.15 from the period of 02.09.15 to 01.10.15
2. Ext B is the dated 07.11.15 from the period of 02.10.15 to 01.11.15
3. Ext C is the bill dated 10.12.15 from the period of 02.11.15 to 01.12.15
4. Ext D is the dated 06.01.16 from the period of 02.12.15 to 01.01.16
5. Ext E is the bill dated 08.02.16 from the period of 02.01.16 to 01.02.16

 

15. It is to be mentioned that the complainant has failed to submit written argument inspite of giving several opportunities and as such, vide order dated 04.03.2021 this Commission closed the written argument of the complainant and fixed the case for judgement. The O.P. has filed written argument on 06.01.2018 reiterating the averments made in their written statement and evidence and stated that the complainant has no right to file this complaint as the complainant is neither consumer nor heirs of the consumer, or any attorney holder of the consumer Khireswar Handique. It is submitted by the O.P.s that a stranger cannot file a complaint on behalf of the consumer, whose interest is/was cause injury by the act of the O.P. It is further submitted that Khireswar Handique (consumer) was very irregular in payment of monthly bills. The said consumer paid his earlier arear bill after disconnection in two instalments Rs.33,000/- on 24.09.2014 and Rs.34,567/- on 12.06.2015 and his connection was activated. The O.P. raised bill on the basis of the meter reading collected from the meter installed in the consumer’s premise. The previous reading was 9638 and subsequent reading was 16468 i.e. (16468-9638)= 6848 unit. Accordingly bill was calculated at Rs.58,691/- along with the arear amounting to Rs.6063/-. On receipt of the bill complainant visited the office and raised objections, the O.P. asked the consumer to deposit Rs.80/- for meter testing charge as per clause 4.2.1.4.2 AERC Supply Code, so as to ascertain any defect of the meter and correct the bill accordingly but the consumer did not revisit the office. It is further stated that as the rules and law of the Electricity O.P. served disconnection notice cum bill and the present complainant who is neither the direct owner nor any of his heirs to file this complaint petition before the Forum and obtain ex-parte order against the O.P. by misrepresenting himself as consumer.

 

16. It is to be mentioned here that the complainant filed a petition U/S 13(3-B) of Consumer Protection Act praying for interim order restraining the O.P.s from disconnection the electricity connection of the complainant till disposal of this case and after hearing of the parties this Commission vide order dated 04.01.2016 directed the O.P. not to disconnect electricity connection till disposal of the case. But the O.P. violating the interim order dated 04.01.16 disconnected the electricity of the complainant on 26.07.16. However after payment of Rs.13,200/- along with disconnection charge of Rs.150/- O.P. reconnected the electricity after charging of Rs.150/-. Complainant again filed a petition that the O.P. has disconnected the electricity from his premises on 01.08.2016 hence praying to direct the O.P.s to reconnect the electricity. Considering the prayer of the complainant this Commission vide order dated 03.08.16 directed the O.P. to reconnect the electricity within three days from passing of the order and after receiving the notice O.P. has restored the electricity connection.

      Points to be decided

 

1. Whether the complainant is a consumer of the Opposite Parties under the Consumer Protection Act 1986?
2. Whether the Opposite Parties are liable for deficiency of service?
3. Whether the complainant is entitled to the reliefs prayed for in the complaint?

 Decisions and Reasons thereof

1. We have carefully gone through the averments of the complainant, written statement, affidavit along with annexed documents exhibited and written argument on record by both the parties, it is found that the complainant has made specific averments in para 2 and 4 of the complaint petition as well as in the affidavit that he had an electricity connection from the O.P.s which was obtained by his grandfather Khireswar Handique after being paid of Rs.4501/- on 28.03.2003 and after the death of his grandfather, complainant has been enjoying the electric connection by paying bills regularly without any default. In support of his plea complainant submitted original copy of the aforesaid payment receipt made by Late Khireswar Handique in the year 2003 to the ASEB as Exhibit No.1. On the other hand a preliminary objection has been raised by the O.P.s of non-maintainability of the present complaint filed by complainant as he is not consumer of O.P.s and the said electric connection stands in the name of Khireswar Handique which is corroborated by bills placed on record. It is also submitted by the O.P.s that the complainant is neither consumer nor heirs of the consumer, or any attorney holder of the consumer of Late Khireswar Handique. Further submitted that a stranger cannot file a complaint on behalf of the consumer, whose interest is/was caused injury by the act of the O.P.s Hence, the complainant had no locus standi to file the consumer compliant. Considering the rival contention of both the parties it is found that the concerned electric connection stands in the name of Khireswar Handique whom the complainant projected as his grandfather. To prove his contention complainant submitted original copy of the payment receipt made by Late Khireswar Handique in the year 2003 to the ASEB as Exhibit No.1. In the periphery of the aforesaid facts and more particularly when the exhibits are produced in original the sanctity of the document cannot be negated. That being so, complainant did not disclose as to when his grandfather had died and after his death complainant did not get his name substituted. Further it is also noticed that complainant did not produce any link document to establish relation between him and said Khireswar Handique whom he projected as his grandfather to ascertain by this Commission that complainant being a legal heir of Khireswar Handique is the beneficiary of the said electric connection. Furthermore perusal of all the exhibits filed by both the parties transpires that the O.P.s have issued all the electricity bills in the name of Khireswar Handique. Hence it is clear that the complainant failed to produce any document to establish that he being a legal heir of Khireswar Handique is a consumer of the electric connection in question.

 

Thereafter it is also alleged by the O.P.s that the consumer used the power line only for commercial purpose in running hotel business as such the complaint petition is barred by Section 2(1)(d)(ii) of the Consumer Protection Act. In support of this plea, the O.P. have placed on record the copy of electricity bills filed as Document No.1 to 41 and Exhibit No. A to E wherein it reflects that the concerned electric meter is LT commercial category. It is noteworthy to mention that the complainant did not adduce any evidence to show that he is not running any hotel business. Since the electricity meter in question is enjoyed for the purpose of commercial activity, therefore, the complainant is not a consumer for the purpose of Consumer Protection Act, 1986. As Section 2(d) of the C.P. Act has made it clear that a consumer does not include a person, who avails any service for commercial purpose.

 

2. As regards the allegation of the complainant that the exorbitant electricity bills were issued, it is found that on 14.09.15 the O.P.s sent disconnection notice of Rs.58,691/- and also issued electricity Bill No.M138A00T-3000172903 for the period from 02.08.2015 to 01.09.2015 amounting to Rs.51,702.40 as such the complainant approached to the O.P.s and requested to remove the defects and provide him the fresh corrected bill but he was asked to deposit the entire bill amount. On contrary O.P.s submitted that the complainant did not deposit the electricity bills for the period from 02.08.15 to 01.09.15 of Rs.51,702.40/- as such the O.P. issued disconnection notice dated 14.09.15 for non-payment of the electricity bills. It is also submitted that the said consumer paid his earlier arear bills after received of disconnection notice dated 14.09.15 in two instalments Rs.33,000/- on 24.09.2014 and Rs.34,567/- on 12.06.2015 and his connection was activated. On the other hand the complainant submitted that he paid the electricity bills regularly but he neither produce any payment receipt of his electricity bills nor any evidence on record to reveal that the electricity bills are duly paid to the O.P.s.  At the same time, the affidavit as well as documentary evidence filed by the O.P.s are revealing that the complainant was not regular in making payment of electricity bills in respect of electric connection. As a result, the outstanding amount kept on accumulated. It is also notice that O.P.s have been issuing the bills regularly by carry forward the arrears in the next bill, as is evident from the statement of outstanding bill which is filed by the O.P.s as Document No.1. O.P.s submitted that the complainant has failed to pay the due bill amount for consumption of power for the period from 02.05.15 to 01.07.15 amounting to Rs.3355/- and also failed to pay the subsequent bill for the period from 02.07.15 to 01.08.15 of Rs.6064/- including the outstanding amount of Rs.3355/-. Further submitted that the bill dated 10.09.15 for the period 02.08.15 to 01.09.15 amounting to Rs.51,702.40/- was raised on the basis of meter reading collected from the energy meter installed at the consumer premises. The previous meter reading was 9638 the present reading was 16486 so the O.P. prepared a bill for (16486-9638)=6848 units. After receipt of the aforesaid electricity bill, the complainant approached the officials of the O.P.s to complain regarding in respect of bill amount, the O.P.s asked him to deposit meter testing fee of Rs.80/-, so as to ascertain any defect of the meter and correct the bill accordingly but the complainant did not deposit the amount and never visit the office again. After that, complainant did not pay the outstanding dues, electric connection was disconnected by the O.P.s. As such, it seems that the complainant himself is a wrong doer, who has filed the present complaint by concealing the material fact of not depositing the electricity bills and in this respect, there is no deficiency in service on the part of the O.P.s. Moreover, there is no expert evidence on behalf of the complainant to show that the unit consumed showed in the data of the aforesaid bill filed by him is showing the exorbitant units. As such the complainant is under legal obligation to make the payment of entire outstanding amount of his electricity bills.    

 

3. In view of  above discussion, we feel that the complainant has totally failed to prove any deficient service on the part of the O.P.s. Moreover, we have found it difficult to treat the complainant as a consumer of the O.P., as the electricity connection, in dispute, still stands in the name of  Khireswar Handique. Hence, the complainant is not entitled to the reliefs claimed. Therefore, we have no option but to dismiss the present complaint and the same is hereby dismissed. However, as the electricity connection of the complainant has been restored by the O.P. as per the order of this Commission dated 03.08.2016, the O.P.s are directed not to disconnect the electricity connection of the complainant subject to depositing of remaining amount in six instalments with current electricity charges. If the complainant fails to deposit the same then the O.Ps. are at liberty to proceed further as per rules.

               This instant C.C No.01/2016 is accordingly disposed of on contest.

               Send copies of this judgement to both the parties for compliance.