Delhi

North East

CC/44/2015

Shri Niranjan Lal - Complainant(s)

Versus

BSES Yamuna Power Limited - Opp.Party(s)

31 May 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 44/15

 

In the matter of:

 

	Shri Niranjan Lal R/o 1/11532 A, Gali No. 9 Subhash Park Extension, Shahdara Delhi-110032	Complainant
	Versus
	Business Manager/ Executive Engineer B.S.E.S. Yamuna Power Ltd. Dilshad Garden District Delhi-110093	Opposite Party

 

	DATE OF INSTITUTION:	30-10-2014
	DATE OF DECISION      :	31-05-2017

 

N.K. Sharma, President :

Order

1. Present complaint is moved by the complainant for grant of compensation from the OP for deficiency and harassment on its part with respect to electricity connection in complainant premises. It relates to a dispute between complainant and OP over Bill of Rs. 2,52,450.57p issued on dated 5-12-2005 on the connection of electricity in premises No. 1/11532 A Gali No. 7, Subash Park Delhi in the name of complainant. This complaint is filed in pursuance of the liberty granted by Hon’ble National Commission vide its order dated 17.09.2014 in Revision Petition No. 3491 of 2013. Complainant has also annexed copy of the aforesaid order of National Commission.
2. Notice of this complaint was duly served on OP who by filing its reply has challenged the maintainability of present complaint, inter alia on two legal grounds :

i.Barred by principle of Res judicata ; and

ii.Barred by limitation

In support of these two grounds OP referred a previous complaint being no. 67/2006, filed by complainant. OP says that the parties in previous and present complaint are the same. Matter in issue in both the complaints is directly and substantially the same. The previous complaint has already been disposed of by this Forum vide order dt 28.07.2006. Against that order complainant has not preferred appeal. Cause of action, subject matter of this complaint arose in the year 2006 while present complaint is filed in the year  2015, after seven years, beyond the time allowed for filing the complaint.

3. In rejoinder to this reply complainant retreating contents of complaint specifically denied the grounds taken by OP on the maintainability of complaint. Both the parties filed their respective affidavits of evidence.
4. Heard and perused the records.
5. For disposal of this complaint we have gone through the copies of, complaint no. 67/2006 Order dated 28.07.2006 passed by this Forum in this complaint, execution application no. 127/10 and the order dated 31.12.2010 thereon, Appeal against this order on execution F.A. No. 33/2011 and order thereon dated 17.12.2012, Review application No. 2 of 2013 and order thereon dated 16.01.2013, Revision Petition No. 3491 of 2013 and order thereon dated 17.09.2014.
6. Perusal of all these records show that in original complaint No. 67/2006 complainant challenging the alleged illegal bill, prayed for the grant of directions for OP to withdraw the alleged illegal bill and issue revised bill after removing misuser charges and LPSC thereon. In addition to it directions to restore the electricity supply in the premises with compensation of Rs. 25,000/- and Rs. 5,000/- as litigation cost were also prayed for. This Forum vide its order dated 28.07.2006 has disposed of this complaint thereby holding that complainant shall pay the revised bill within a week and after depositing the bill OP shall restore the supply of complainant within 10 days of completion of commercial formalities. In compliance of the order of this Forum complainant paid revised bill within 3 days. Thereafter, for about 4 years complainant didn’t turn up till the year 2010 when he filed an application for execution of this order, which was dismissed by this Forum, stating that since complainant has not fulfilled commercial formalities there being no cause of action against OP, the execution is dismissed. Against  this dismissal order complainant preferred appeal before Hon’ble State Commission which was disposed off on the basis of OP’s undertaking to install the connection within 15 days.  But complainant again filed a review petition of this order in State Commission praying for grant of compensation also which was dismissed by Hon’ble State Commission for want of powers of review with it. Against which complainant preferred revision before National Commission which was also dismissed as withdrawn with the liberty to the complainant to file the present complaint for grant of compensation.
7.   Looking into the facts and circumstances aforesaid we have first to see as to whether even after grant of main relief of revised bill and installation of electricity connection by this Forum in the previous complaint, the present complaint is maintainable or not. If so, as to whether complainant is entitled for the grant of compensation also at this belated stage.
8. As per OP the present complaint is not maintainable being, hit by the principle of Res judicata barred by time. Going through section 11 of CPC we find three conditions to be fulfilled for application of principle of Res judicata

i. in both the complaints parties should be the same,

ii.matter in issue in both the complaints should be directly and substantially the same; and

iii.the previous complaint should has been finally heard and decided by a competent court.

9. First two conditions are shown fulfilled in both the complaints. With respect to third condition, going through the order dated 28.07.2006 we find that though the Court who passed that order was competent enough to pass the same but that seems a formal order only, without going into merits of the case and without considering the legality or illegality of the bill in dispute, without going into the fact as to whether there is any deficiency or unfair trade practice on the part of OP or not, without going into the facts as to whether there is any harassment at the hands of OP or not, without going into the question of complainant’s entitlement for any compensation as prayed for. Thus, in our considered view this condition of the section, of being heard and finally decided, is not fulfilled. Hence, principle of Res judicata does not apply in present case and complainant is very much entitled for filing the present complaint.
10. Regarding barred by time, we find that though complainant has not filed any appeal in appropriate manner against the original order of this Forum in the previous complaint, but also it is a fact that in compliance of the order complainant has paid the revised bill within 3 days and thereafter, he had to run before OP, for continuous four years, to get the meter installed and only thereafter, he being constrained to file execution application in which OP by taking the plea of non fulfillment of commercial formalities was successful in getting the order dismissed from this Forum.  As an equity Court we find it difficult to believe as to whether a person who, has immediately acted upon to pay the revised bill within 3 days in compliance of order, will be unwilling to fulfill the commercial formalities, and leave himself further harassed without electricity for continuous four years. We also find that in every application / appeal / revision petition complainant has continuously been praying for  compensation also and is in continuous litigation before this Forum, Hon’ble State Commission and lastly Hon’ble National Commission, who vide its order dt 17.09.2014 granted liberty to the complainant to grant another complaint for compensation. Here the rule of merger applies. According to which all the orders merge into the appellate order. Thus, the time to file the present complaint starts only after 17.9.2014 while the present complaint was filed on 13.11.2014, just two months thereafter. Thus, this complaint is very much within limitation and maintainable.
11. On the basis of above said facts and circumstances even after passing order, for installation of electricity meter, on 28.7.2006 the meter was installed only on 1.1.2013 after seven years of the order. We find no evidence on behalf of OP that complainant was asked by it for the fulfillment of commercial formalities. No notice/ demand letter for the same is placed on record on behalf of OP while complainant is shown running from pillar to post for getting the electricity connection in compliance of order. Hence, we find, deficiency and unfair trade practice on the part of OP’s officials and, continuous harassment of complainant at their hands.
12. Therefore, holding OP guilty for deficiency in service and unfair trade practice and harassment of the complainant, we direct the OPs to pay to complainant a compensation of Rs. 20,000/-, Rs. 3,000/- as litigation cost.
13.  This order shall be complied by the OP within 30 days from the received this order failing which interest thereon @9% per annum shall be charged thereafter till the final compliance of this order
14.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
15.  File be consigned to record room.

(Announced on  31.05.2017)    

 

(N.K. Sharma) President

(Nishat Ahmad Alvi) Member