Date of Filing: 18-11-2015 Date of Final Order: 31-03-2017
Sri Gurupada Mondal, President.
This is an application under Section 12 of C.P. Act, 1986, filed by Benoy Biswas against the Divisional Manager, W.B.S.E.D.C.L, Cooch Behar, Station Manager, W.B.S.E.D.C.L, Tufanganj and Station Manager, Customer Care Centre, W.B.S.E.D.C.L, Boxirhat praying for compensation of Rs.1,20,000/-, Security Deposit of Rs.62,880/- and Rs.25,000/- for mental pain and agony.
The case of the Complainant in short is that he set up an Oil Mill namely “Swasti Oil Mill” at Chhat Balakuthi under Boxirhat P.S in the year 1992 for his livelihood and at that time, he deposited Caution Money of Rs.62,880/- for electric connection. It is the case of the Complainant that the said Oil Mill was closed in the year 2005 and on the basis of his application, W.B.S.E.D.C.L disconnected the electricity but they did not remove their Energy Metre and for that reason, he could not use the godown for his own use. It is also alleged that the Oil Mill was the only source of his income.
Further case of the Complainant is that he wrote two letters to the W.B.S.E.D.C.L on 20/04/2010 & 04/06/2010 with a request to remove the electric metre and refund the security deposit of Rs.62,880/- but W.B.S.E.D.C.L did not pay any attention. Thereafter, the Complainant went to the Office of the W.B.S.E.D.C.L, Tufanganj in the year 2015 and he was given information that the Office of Tufanganj W.B.S.E.D.C.L was divided into two and New Station Manager, W.B.S.E.D.C.L, Customer Care Centre, was created at Boxirhat. The Complainant further wrote a letter to the Divisional Manager, W.B.S.E.D.C.L, Cooch Behar with a request to refund the security deposit but the Divisional Manager did not respond to it. Accordingly, the Complainant lodged a complaint to the Consumer Affairs Dept. on 10/08/2015.
It is the further case of the Complainant that the electric metre was lying abundant in the alleged Oil Mill and on 07/08/2015, he visited his abundant Oil Mill and came to know that the electric metre being No. SB 985265 was stolen by someone and to that effect, he lodged a G.D Entry at Boxirhat P.S. on 08/08/2015. The O.Ps, W.B.S.E.D.C.L did not pay him the security deposit and did not remove their electric metre and for that reason, he could not use the godown for any other purpose. Accordingly, the Complainant has filed the instant case for compensation of Rs.1,20,000/-, security money of Rs.62,880/- and Rs.25,000/- for his mental pain and agony.
The summons upon the O.P. No.1 & 2 were duly served but they did not turn up to contest the case. Accordingly, the case was heard in ex-parte against them.
The O.P. No.3, in order to contest this case, had filed written objection denying all allegations contending inter-alia that the instant petition is not maintainable in law. The Complainant has no cause of action to file this case and the case is liable to be dismissed under Section 26 of C.P. Act, 1986.
Specific case of the O.P. No.3 is that the Complainant is not a consumer as per provision under Section 2(1)(d) of C.P. Act, 1986. The O.P disconnected the electric connection as per request of the Complainant. It is also alleged that the Complainant wrote a letter addressing the Divisional Manager, W.B.S.E.D.C.L., Cooch Behar praying for refund of security money and removal of electric metre from the Complainant’s premises and on 10/07/2015 the Technical Staff of Boxirhat Customer Care Centre inspected the factory of the Complainant and found the electric metre missing. Thereafter, the O.P personally visited the factory of the Complainant but did not find the electric metre. Thereafter, on 13/08/2015, the O.P sent a letter vide Memo No. BHT.CCC/2015-16/402 dated 13/08/2015 asking favourable response from the Complainant within three days from the date of receiving the letter but the Complainant did not pay any attention. On 31/08/2015, the Complainant sent a reply to the O.P and expressed that the electric metre was stolen and to that effect he lodged a Diary at Boxirhat P.S and alleged that he was not responsible for theft of the electric metre.
It is the further case alleged by the O.P that in order to pay the security deposit, the O.P had to check the electric energy metre to take final reading to generate electric bill and after receiving of the said final bill from the customer, the process of refund could be initiated. Due to non-availability of the electric metre, the O.P could not prepare the final bill. The Complainant is the custodian of the electric metre and he is liable for any damage, theft and destroy. The Complainant did not file any FIR against the stolen electric metre.
On the basis of the aforesaid facts, the O.P. No.3 prays for dismissal of the case with costs.
In the light of the contention of the Complainant, the following moot points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully and perused the evidence on affidavit of the Complainant. Perused the entire documents on record also heard the argument advanced by the parties at a length.
Point No.1.
The Ld. Agent for the O.P submits that the Complainant is not a consumer as per provision U/S 2(1)(d) of the C.P. Act, 1986. The electric connection was taken for commercial purpose and as such this Forum has no jurisdiction to try this case.
On the other hand the Ld. Agent for the Complainant submits that the Complainant took the electric connection for his oil mill and to that effect he deposited a sum of Rs.62,880/- at the office of the O.P.
The Complainant himself filed the instant complaint. He had not taken the help of the Ld. Advocate of the Agent to file this complaint. The Complainant in his complaint stated that the oil mill (Sasti Oil Mill) was the only source of income. The Complainant has filed evidence on affidavit. As per Section 2(1)(d), consumer means any person, who buys any goods for consideration which has been paid or promised or partly paid or partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose. “Commercial Purpose” does not include the use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment. Commercial purpose means, the purpose when it is used for large scale profit making activity. The Complainant established the oil mill for his livelihood and it was his only source of income. The Complainant is a layman and has no specific knowledge, how to draft a complaint. At the time of filing the complaint, he did not take the help of any lawyer. Therefore, we hold that the said oil mill business was the only source of income and the same was not established for large scale profit making.
The Ld. Advocate for the O.P submits that this case is not maintainable and cites case decision reported in 2013 CJ 921 (SC). We have perused the said case decision carefully where in Hon’ble Apex Court held – A consumer may file valid complaint in respect of supply of electrical or other energy. In absence of any allegation as stipulated U/S 2(1)© of the C.P. Act, 1986, complaint filed by the Respondent is not maintainable before Consumer Forum. We have gone through the above mentioned case decision and find that the fact of this case and the fact of the reported case are totally different and as such this case decision is not applicable here.
The Ld. Advocate for the O.P. No.3 further submits over and again that the Complainant is not a consumer as he took the electric connection for commercial purpose i.e. to run his oil mill. In our earlier decision, we hold that the Complainant being a layman filed the instant case to get back his security deposit. The Complainant in his complaint stated that the business was his only source of income. It is fact that availing service for commercial purpose do not fall within the meaning of consumer. We do not find that the alleged oil mill was of large scale commercial purpose for large scale profit making activity. As such setting up of an oil mill for the purpose of one’s livelihood does not come within the purview of commercial purpose. Therefore, we are not at one with the submission of the Ld. Advocate for the O.P. This point is decided in favour of the Complainant.
Point No. 2.
The alleged oil mill and the office of the O.Ps, where the Complainant deposited the security money are situated within the territorial jurisdiction of this Forum. The claim of compensation as well as refund security deposit are less than 20 lac. As such, this Forum has territorial as well as pecuniary jurisdiction to try this case. This point is decided in favour of the Complainant.
Point No. 3 & 4.
Both the points are taken up together for the convenience of discussion as well as the points are related with each other.
The Complainant has produced some documents before this Forum. Some Xerox copies, money receipts issued by W.B.S.E.B (Exbt.1), Letter written to the Station Manager, Tufanganj Group Electric Supply, W.B.S.E.B dated 20/04/2010, 04/06/2010 and 18/06/2015, Letter written to the Divisional Manager, W.B.S.E.D.C.L by the Complainant, Letter written to the Consumer Affairs Dept., Cooch Behar dated 06/08/2015, G.D. Entry 293 dated 08/08/2015 of Boxirhat P.S which are marked as “Exbt.1 to 9”.
On the other hand, the O.P has produced one letter written by A.E. & Station Manager, Boxirhat, Customer Care, W.B.S.E.D.C.L dated 27/08/2015 and a letter written by the Complainant to A.E & Station Manager, W.B.S.E.D.C.L Boxirhat.
It is the case of the Complainant that he deposited a sum of Rs.62,880/- as security deposit to take electric connection for his oil mill and the said oil mill was closed in the year 2005 and thereafter he made several communications to remove the electric metre from his premises and to return back the security deposit of Rs.62,880/-. But the O.Ps declines to return back the security deposit and in the meantime the miscreants stole away the electric metre.
On the other hand, the O.P. No.3 alleged that the Divisional Manager sent some technical staff of Boxirhat CCC to inspect the oil mill of the Complainant and found missing of the electric metre and sent a letter to the Complainant vide Memo No. BXT. CCC/2015-16 402 dated 13/08/2015 asking for favourable response from the Complainant within three days, but the Complainant did not pay any attention. The Complainant sent a letter informing that he was no way responsible for such theft/loss of electric metre. The O.P. No.3 also alleged that in order to generate Final Bill, checking of metre is necessary and the security money would be refunded on the payment or adjustment of the Final Bill.
It is evident from the documents that the Complainant deposited a sum of Rs.62,880/- as security deposit in the office of the O.Ps before taking electric connection in his oil mill. The O.P. No.3 has not raised any dispute over the deposit of security money amounting of Rs.62,880/-. The fact not denial in W/V amounts to admission. Therefore, from the documentary evidence as well as evidence on affidavit and by implied admission by the O.P. No.3, it is established that the Complainant deposited a sum of Rs.62,880/- as security deposit for taking electric connection at his oil mill.
The case of the Complainant is that the electric connection was disconnected in the year 2005 as per his request. The Complainant has not produced any document to show that the electric connection was disconnected from his premises. The O.P. No.3 has not denied the same in their W/V. Therefore, we have no hesitation to hold that the electric connection was disconnected.
The fact established that the electric connection was disconnected from the oil mill of the Complainant in the year 2005. But we find that the electric metre was still lying there and to that effect, the Complainant wrote a letter on 20/04/2010, 04/06/2010 (after a gap of five years) with a request to remove the electric metre. We do not find any document or evidence from the end of the O.P. No.3 that they look initiative to remove the electric metre from the premises of the Complainant.
We further find from the document filed by the Complainant as well as evidence that he wrote one another letter to the O.P. No.3 on 18/06/2015 with a request to remove the electric metre and to refund the security deposit. But there was no response from the end of the O.P. No.3. We further find from the document as produced by the Complainant that he wrote one another letter to the Divisional Manager, W.B.S.E.D.C.L., Cooch Behar Division on 07/07/2015 with a request to remove the electric metre, copy of which was forwarded to the O.P. No.2 & 3. Thereafter, the Complainant lodged a complaint before Consumer Affairs Dept., Cooch Behar on 06/08/2015 for amicable settlement. We further find that the Complainant lodged a G.D. entry bearing No. GDE No.293 dated 08/08/2015 with Boxirhat P.S alleging that he visited the oil mill side premises on 07/08/2015 at about 10.00/10.30 a.m. and found missing of energy metre.
We find from the evidence of the Complainant that the Complainant wrote several times to remove the electric metre, installed in his premises by the O.P on the ground that the electric connection was disconnected and he also wrote to the O.P to remove the electric metre. But no initiative was taken from the end of the O.Ps except writing a letter dated 13/08/2015, informing the Complainant that the Office of the A/E & Station Manager, Boxirhat Customer Care Centre, Boxirhat that his office visited the premises of the Complainant for taking final energy metre reading as per norms but the metre was not found. The O.P also alleged that the consumer is the custodian of his metre and he is liable for damage, theft and destroy. Thereafter, the Complainant wrote one letter on 31/08/2015 informing that he wrote two letters on 20/04/2010 & 04/06/2010, asking to remove the electric metre as the said metre was lying unprotected. Thereafter, he wrote a letter on 10/07/2015 with a request to remove the electric metre but no action was taken from the end of the O.Ps. The men of the O.Ps visited the premises of the Complainant on 13/08/2015 and they did not find the same. The O.P in his petition mentioned that he visited the premises of the Complainant on 07/08/2015 and the electric metre was not found and as such the same was informed at Boxirhat P.S by a G.D entry.
Therefore, from the above made discussion, we find that the Complainant took electric connection in his oil mill by making security deposit of Rs.62,880/- and the electric connection was disconnected at the request of the Complainant in the year 2005. Immediately after the disconnection of the election line, the O.P did not take the metre reading to prepare the final bill and also did not remove the electric metre from the premises of the Complainant even after expiry of 10 years inspite of the fact that the Complainant wrote several times for removal of the energy metre and did not repay the security deposit after deducting the final bill or last bill. Therefore, we find that the O.Ps have deficiency in service.
We do admit that the consumer is the custodian of his energy metre and he is liable for the damage, destroy and theft. We find that after disconnection of the electric line, the O.P did not remove the electric metre and even they did not take the metre reading for preparation of the final bill. Even, after several requests of the Complainant, the O.Ps did not remove the electric metre. It shall be the duty of the Consumer/Customer to clear all outstanding payments payable by him to the licensee except the last bill for supply till the date of disconnection before making a request for disconnection. The consumer shall collect the last bill from the licensee and make payment. In default the amount shall be adjusted by the licensee against the security deposit. In this case, the O.Ps did not perform their duties inspite of several reminders. In such circumstances, the liability of the custodian is nil. The O.P did not refund the security deposit to the Complainant.
We have failed to understand as to why the O.P sent their men after 10 years for energy metre from the oil mill of the Complainant. Therefore, the O.P had negligence and deficiency in service and the Complainant is entitled to get back his security deposit of Rs.62,880/- along with statutory interest and other reliefs.
Both points are decided in favour of the Complainant.
Hence,
Ordered,
That the present Case No. CC/105/2015 be and the same is allowed on contest against the O.P. No.3 and Ex-parte against the O.P. No.1 & 2 with cost of Rs.5,000/-.
The O.Ps are hereby directed to refund the security deposit of Rs.62,880/- along with compensation of Rs.10,000/- to the Complainant for his mental pain and agony. The entire order shall be complied by the O.Ps jointly and/or severally within 45 days from this date, i/d the O.Ps shall pay cost of Rs.50/- to the Complainant for each day’s delay.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
Dictated and corrected by me.
