In the District Consumer Disputes Redressal Forum, Murshidabad
Berhampore, Murshidabad.
Case No. CC/03/2015
Date of filing: 06/01/2015 Date of Final Order: 16/03/2016
Rahima Bewa &othrs.
Vill.-Bilbari, P.O.- Bhattabati
P.S.-Nabagram,Dist- Murshidabad,
PIN-742149.(W.B.)……………………………...Complainant
- Vs-
Assistant Station Manager,
Nabagram Customer Care Centre,W.B.S.E.D.C.L,
P.O.&P.S.-Nabagram.Dist.- Murshidabad.
PIN-742184.(W.B.) ………..…………….………. Opposite Party
Mr.Gourab Nath Saha. Ld. Adv..…………………….…………………. for the complainant.
Mr.SiddharthaSankarDhar Ld. Adv……………………………………….for the Opposite Party.
Present: Hon’ble President, Anupam Bhattacharyya.
Hon’ble Member, Samaresh Kumar Mitra.
Hon’ble Member, Pranati Ali.
FINAL ORDER
Samaresh Kumar Mitra, Member.
This complaint has been filed by the complainant u/s 12 of C.P. Act, 1986 praying for an order directing upon the OP to restore the electric connection in the Mill premises. The case of the complainant, in brief, is that Abdul Rahaman since deceased was carrying on business of wheat grinding and oil seed crushing at his Mill Premises on Plot No.1350 at Mouja Bhattabari. The said business is a small venture of the complainants for their livelihood. The complainant No.2 has been authorized by his mother and other brothers to carry on the said business. On 13.10.14 the said connection was disconnected by the OP on the allegation of theft of electricity. A criminal case u/s 135 of I.E. Act bearing Nabagram P.S. Case No. 456 of 2014 was started. He surrendered before the Special Court and got bail. Thereafter, he got a letter dated 22.11.14 from the OP asking him to pay a sum of Rs.15, 86,097/-. The average monthly energy charges varied from Rs.15,000/- to Rs.20,000/- so long the bill was running. The said criminal case been falsely filed. So, the provisional assessment bill of Rs.15, 86,097/- is not payable by the complainants. The method of assessment of the said bill is illegal. The amount of provisional assessment is excessive, inflated, exorbitant, imaginary and baseless. The complainant many a times requested the OP to restore the electric connection of the mill but the OP did not pay any heed to their request. The OP is insisting upon paying the provisional bill amount of Rs.15, 86,097/- . Hence the instant complaint filed by the complainant before this Forum for redressal as prayed for in the prayer portion of the complaint.
The OP appeared by its advocate filed written version in which he denied the allegations as leveled against him and averred that the disputed meter stands in the name of deceased Abdul Rahaman but present user is the OP No.2 that on 13.11.2014 at about the 8.30 am. the officials of WBSEDCL hold an inquiry at the complainants business place and found that Electricity was being consumed by way of bypassing the existing meter by using three numbers of single core extra PVC cable from WBSEDCL’s L.T. overhead line near the said industry and therby causing huge loss of revenue of WBSEDCL. The FIR was lodged at Nabagram police station on 15.11.2014 being No.456/2014 and the clectric line disconnected. Thereafter a provisional bill of pilferage of electricity prepared amounting to Rs.15,86097. So the complainants are not consumer within the definition of consumer protection Act. As such the case is not maintainable as there is allegation of theft against the OP No.2.
The complainants are absent on a few dates and no steps taken on their behalf and no evidence on affidavit filed till date as such the case has taken for argument. The argument as advanced by the advocate of the Opposite Parties heard in full and he in his turn filed a few documents. None argued on behalf of the complainants so the case taken on merit.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainants Rahima Bewa & othrs. are ‘Consumers’ of the Opposite Party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainants Rahima Bewa &others are ‘Consumers’ of the opposite party?
From the materials on record it is transparent that the Complainants are “Consumers” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. As the complainants herein are enjoying electricity supplied by the OP Company and it is admitted by the OP Company being the service provider.
(2).Whether this Forum has territorial / pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite party are residents/carrying on business within the district of Murshidabad. The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainants?
The opposite party being the largest Electric Supply Company throughout the state having a lot of offices, power stations, substations and power generating stations decorated with a lot of expert hands and running its business with goodwill for a long period and providing/rendering service for development of society as well as implementing a lot of Govt. programs. So the role of OP Company for the development of the society is unquestionable.
The O.P. herein is the Station Manager of an office of the largest electric supply company throughout the State of W.B. The Company WBSEDCL running its business throughout the state except territorial jurisdiction of Kolkata Corporation. The O.P. Company is providing power in the rural areas in different projects for a long period. That is why the consumers in the rural areas are highly grateful to the Company.
After perusing the case record it appears that the complainant No.2 namely Abdul Gaffar being the user is running the business, husking mill duly permitted by the other complainants and paying electric bills regularly but the electric connection exists in the name of deceased father Abdur Rahaman. During the course of running the business on 13.11.2014 at about 8:30 a.m. the official of WBSEDCL hold an enquiry at the complainants business place and found that Electricity was being consumed by way of bypassing the existing meter by using three numbers of single core extra PVC cable from WBSEDCL’s L.T. overhead line near the said industry and thereby causing huge loss of revenue of WBSEDCL. The FIR was lodged at Nabagram Police Station on 15.11.2014 being No.456/2014 and the electric line was disconnected. Thereafter a provisional bill of pilferage of electricity prepared amounting to Rs.15,86,097.00. During the raid process the said service line has been disconnected and removed from WBSEDCL’s L.T. over head line. But no other electrical attachment like Motor, Motor Starter, Fuse unit etc which were used in committing said unauthorized utilization of electric power could not be seized due to resistance by the accused’s. The w/v as filed by the OP clearly stated the offence committed by the complainant relates to theft of electricity so the petitioner cannot be a consumer under the Consumer Protection Act. The advocate of the OP assailed that there are a lot of ruling of National Commission and Apex Court regarding the non-maintainability of any complaint before Consumer Forum in case of theft or pilferage of electricity.
The National Commission though held that the intention of the Parliament is not to bar the juridiction of the Consumer Forum under the Consumer Protection Act and have saved the provisions of the Consumer Protection Act, failed to notice that by virtue of Section 3 of the Consumer Protection Act, 1986 or Sections 173,174 and 175of the Electricity Act, 2003,
the Consumer Forum cannot derive power to adjudicate a dispute in relation to assessment made under Section 126 or offences under Sections 135 to 140 of the Electricity Act, as the acts of indulging in "unauthorized use of electricity" as defined under Section 126 or committing offence under Sections 135 to 140 do not fall within the meaning of “complaint" as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.
The acts of indulgence in “unauthorized use of electricity" by a person, As defined in clause (b) of the Explanation below Section 126 of the Electricity Act, 2003 Neither has any relationship with "unfair trade practice" Or "restrictive trade practice" or "deficiency in service" Nor does it amounts to hazardous services by the licensee. Such acts of "unauthorized use of electricity" has nothing to do with charging price in excess of the price.
Therefore, acts of person in indulging in 'unauthorized use of electricity', do not fall within the meaning of "Complaint", as we have noticed above and, therefore, the "Complaint" against assessment under Section 126 is not Maintainable before the Consumer Forum. The Commission has already noticed that the offences referred to in Sections 135 to 140 can be tried only by a Special Court constituted under Section 153 of the Electricity Act, 2003. In of the matter also the complaint against any action taken under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before the Consumer Forum.
In view of the observation made above, we hold that:
- In case of inconsistency between the Electricity Act, 2003 and the Consumer Protection Act, 1986, the Provisions of Consumer Protection Act will prevail, but Ipso facto it will not vest the Consumer Forum with the Power to redress any dispute with regard to the matters Which do not come within the meaning of “service” as Defined under Section 2(1)(o) or “complaint” as defined Under Section 2(1)(c) of the Consumer Protection Act, 1986.
- A “complaint” against the assessment made by Assessing officer under Section 126 or against the Offences committed under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before a Consumer Forum.
- The Electricity Act,2003 and the Consumer Protection Act, 1986 runs parallel for giving redressal to any person, who falls within the meaning of "Consumer" under Section 2(1)(d) of the Consumer Protection Act,1986 or the Central Government or the State Government or association of consumers but it is Limited to the dispute relating to "unfair trade Practice" or a "restrictive trade practice adopted by The service provider"; or “if the consumer suffers from Deficiency in service”; or “hazardous service”; or “the Service provider has charged a price in excess of the Price fixed by or under any law”.
From the above discussion we may safely conclude that the complaint is not maintainable before this Forum as it relates to pilferage or theft of energy. So the complaint is liable to be rejected.
4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the complaint is not maintainable in its present form before this Forum.
-
Hence, it is ordered that the Complaint Case No.03/2015 be and the same is dismissed on contest with no order as to cost.
The complaint relates to pilferage or theft of energy which is not maintainable before this Forum so the prayer of the complainant is not tenable in its present form.
No reliefs are awarded to the complainant.
Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/sent by ordinary post forthwith, for information & necessary action.
Dictated and corrected by me.
