This is an application u/s.12 of the C.P. Act, 1986.

In their case complainant by filing this complaint has submitted that the complainant along with his family jointly residing with one Shri Prem Shankar Mishra in the premises No. 76F, Balaram Dey Street, Kolkata – 6 and complainant consumed the electricity from the Electric Meter installed by the OP in the said name of the Prem Shankar Mishra and the said Meter Box along with other two meter boxes installed by the OP just inside the main entrance of 76F, Balaram Dey Street and the cover of the High Voltage Electric Line/Wire proceeding towards the said meter boxes was lying open since considerable period and the attention of the CESC Authority was verbally drawn so many times by the dwellers of the said premises including the complainant with the request to redress the same but in spite of repeated requests CESC paid no heed to the said serious complaint and the said electric line was lying in such exposed and endangering condition.

 On 26-04-2009 at about 2-30 p.m. a male child of the complainant namely Sujan Dey aged about 3 years old suddenly touched the said high voltage line and died then and there.

Complainant submits that said loss occurred due to the sheer negligence and utter callousness on the part of the OP arising out due to serious lack of maintenance of high voltage electric line lying open and uncovered condition during a considerable period.

Beign aggrieved by the said grievance complainant made a representation on 17-06-2009 to the CESC Authority annexing death certificate of the deceased child, injury report of Medical College and Hospital, Letter of concerned Sub-Inspector of Girish Park Police Station, Kolkata and disposal order accompanying corpses sent for cremation or burial etc. and prayed for compensation of Rs.20 lakhs.  Though OP received the aforesaid letter on 17-06-2009 but did not made any response to the grievances and fact remains complainant falls under the definition of consumer so, defined in the Consumer Protection Act and no doubt it is a deficiency of service to the complainant who is consumer under the OP.

On the other hand the OP CESC by filing written statement submitted that there is no privity of contract between the complainant and company in respect of providing any service resulting the unfortunate incident and such type of complaint cannot be a consumer dispute with the Act. It is further stated that there is no responsibility for the company in maintaining the said line in respect of the allegation frayed wiring company cannot be blamed and there is no question of giving any compensation in view of the fact complainant has failed to prove that he is the consumer and further OP1 by filing written statement denied all allegation of the aid complaint stating that it is not maintainable in the eye of law and Consumer Protection Act is not applicable in this case.

Subsequently, as per order of the National Commission, KMC was made party as OP2 who has filed written statement and submitted that complainant cannot be treated as consumer as per definition as laid down in the Consumer Protection Act and OP1 CESC with ulterior motive shifted their liability illegally upon the KMC and in the complaint practically there is no allegation against KMC for which this complaint should be dismissed.

Further it is specifically mentioned by the OP that accident took place on the road near the street light for which KMC is not responsible as the negligent act of the is caused due to the naked wire of the meter box and in the above circumstances, complaint should be dismissed with cost.

Decision with Reasons

On an indepth study of the complaint and the written version and further considering the argument as advanced on behalf of the complainant including the argument of the Ld. Lawyer for the OP it is clear that in the complaint there is no allegation against the KMC or about negligence or deficiency and at the same time as per KMC Act complainant cannot be treated as consumer under the KMC.  But anyhow the KMC Is added as the party as per order of the National Commission but ultimately has failed to prove any dispute between KMC and the complainant as consumer and service provider for which the complaint against the KMC fails.

          Now, question is whether complainant is a consumer under the CESC.  In this regard we have gone through the document wherefrom we find that Prem Shankar Mishra is the consumer under OP but complainant has claimed that he has been residing with Prem Shankar Mishra jointly and enjoying the electricity but no such document is produced by Prem Shankar Mishra that complainant is his family member and complainant has been enjoying the said consumer line along with his family members.

          The agent of the complainant submitted that complainant is the beneficiary through Prem Shankar Mishra but his interpretation of the law is otherwise.  First and foremost thing is that one must be a consumer at first and on the death of consumer his legal heirs are the beneficiary but in the present case complainant is proved neither a tenant in respect of the room under the landlord or there is no such paper to show by the complainant that complainant and his family has been residing as family members of Prem Shankar Mishra or Prem Shankar Mishra permitted the complainant to enjoy that room in his absence not only that Prem Shankar Mishra the consumer of the CESC has not submitted any such paper or has not submitted any such affidavit in chief in support of the complainant.  So, considering all these facts and materials it is clear that complainant has miserably failed to prove that he is the consumer under the OP and fact remains CESC did not provide any consumer line to the present complainant Tukai Dey or under any circumstances, it cannot be said that Tukai Dey is the consumer under the OP CESC.

          Another point was raised by the complainant’s agent that Prem Shankar Mishra supplied electric connection to him and he has been enjoying the same but for the sake of the argument is accepted in that case it is a clear case of theft of energy by the complainant from the line of Prem Shankar Mishra because as per CESC Rules if any consumer provides any electric connection to any third party who is not consumer of CESC in that case such sort of enjoyment of electricity by a third party like complainant is nothing but theft of energy and considering that principle and applying said principle in this case it is clear that might be illegally and unauthorisedly the complainant has been consuming the electricity unauthorisedly from Prem Shankar Mishra.  Another factor is that complainant has also failed to prove that his any status as tenant under the landlord or permissive possessor of the premises further fact is that as per law, tenant cannot give any permission to the third party without the consent of the landlord.

          So, considering all the above legal position and facts and circumstances, we are convinced to hold that complainant is no way treated as consumer under the CESC on the contrary it is found that as per his version he has been enjoying electricity unauthorisedly after taking it from consumer line of Prem Shankar Mishra which is no doubt an act of theft and for which the complainant cannot get any relief for the death of his son due to electrocution. 

          On plain reading of Clause II of Sub-Section 1 of Section 2 of the Act no doubt statute gives to distinct categories of consumers thereby the first one is original consumer who hired services for consideration and further to bring within its ambit of second category namely any beneficiary of such services when these are available of with the approval of the original consumer.  So, considering the principle of law it is clear that Section 2(1)(d) of the Act also extents its ambit of protection to the lawful beneficiaries of the services hired or the user of goods purchased.  So, as per such definition beneficiaries means he who is enjoying any right with the approval of the original hirer or consumer.  So, considering that fact and the present facts and circumstances, it is clear that complainant is not beneficiary of the electric line which stands in the name of the consumer Prem Shankar Mishra and at the same time complainant is not the tenant in the said premises, complainant has no legal authority to use the said electricity as per provision of the statute the Electricity Act, 2003 and the complainant’s claim that he is enjoying the said electricity with the said Prem Shankar Mishra is not also supported by any document produced either by the complainant or by Prem Shankar Mishra, the original consumer holder of electricity line under the OP.  Further he has not hired the electricity line from the CESC or under any circumstances, complainant cannot be treated as beneficiary of the original consumer and original consumer is out of the picture and he is not the complainant along with the present complainant.

          No doubt his son is electrocuted from the consumer line of CESC but for that reason complainant may file such Civil Suit before the Civil Court for such benefit and redressal but that legal provision has not been complied with but appeared before this Forum but it is proved that the complainant consumed electricity from Prem Shankar Mishra unauthorisedly without the authentication of Prem Shankar Mishra and for which it is nothing but a theft of energy by the complainant and on the basis of which he cannot claim any relief against the CESC as complainant is not consumer or beneficiary but a thief of electricity energy.

          In the result, complaint fails.

Hence,

Ordered

That the case be and the same is dismissed on contest without any cost but complainant may file such case before Civil Court for the sad demise of his son for electrocution.