Date of filing:- 19/03/2015.

Date of Order:- 25/09/2017.

DISTRICT CONSUMER DISPUTES REDRESSAL FOURM (COURT)

B A R G A R H.

Consumer Complaint No. 18 of 2015

Jay Prakash Dash, aged about 63 (sixty three), son of late Radheshyam Dash, Occupation- Retired Teacher, R/o. Village- Back side of Mini Stadium, Bargarh, Po. Bargarh, under P.s. Bargarh, Dist. Bargarh.

..... ..... ..... ..... Complainant.

• V e r s u s -

1. Executive Engineer, WESCO, Bargarh, At/Po/Ps/Dist. Bargarh.

2. Sub-Divisional Officer, WESCO, Bargarh, At/Po/Ps/Dist. Bargarh.

3. President Grievance Redressal Forum (WESCO), Bargarh, Burla, At/Po/Ps/Dist. Bargarh.

4. Collector-Cum-Chairman, District Electricity Committee, Bargarh, At/Po/Ps/Dist. Bargarh.

5. Chairman, Odisha Electricity Regulating Commission, Bidyut Niyamak Bhawan, Nayapalli, Bhubaneswar, Dist. Khurdha.

   ..... ...... Opposite Parties.

Counsel for the Parties.

For the Complainant:- Sri S.P.Mahapatra, Advocate with other Advocates.

For the Opposite Party No.1(one):- Sri T.C.Tripathy, Advocate with other Advocates.

and No.2(two)

For the Opposite Party No.4(four):- Sri S.K.Naik, Associate Lawyer.

For the Opposite Party No.3(three):- Ex-parte.

and No.5(five)

-: P R E S E N T :-

Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.

Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.

Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r(w).

Dt.25/09/2017 -: J U D G E M E N T :-

Presented by Sri P. K. Dash, Member:-

The Complaint pertains to deficiency in service envisaged under the provision of Consumer Protection Act-1986 and the brief fact of the complaint is described here under:-

The Complaint contends that the Complainant is a bonafide consumer bearing Consumer No. 5121-2216-0052 under the Opposite Parties for supply of electricity to his dwelling house. That in the month June-2012 the Complainant was supplied with a electricity bill of Rs. 25,025/-(Rupees twenty five thousand twenty five)only by the authority of Opposite Parties and when inquired into the matter by the Complainant before the Opposite Party No.1(one) and No.2(two) reason of such bill was not explain to him for which the Complainant lodged a Consumer Complaint bearing No. 21 of 2012 challenging the enhanced electricity bill. Further the complaint contends that being received notice the Opposite Parties appeared before the Forum and explained the alleged bill to be a penal bill on account of unauthorized used of electricity.

Further the complaint contends that, the Dist. Consumer Forum, Bargarh basing on the citation of the Hon'ble Supreme Court of India dismissed the complaint holding the same to be assessment under section 126 of Electricity Act-2003. That as the matter in dispute was for provisional and final assessment order, the Complainant after disposal of the Consumer Complaint No. 21 of 2012 approached the Opposite Party No.1(one) and No.2(two)for grant of final assessment order but the said Opposite Parties deffered the matter on some pretext or other and grievance was also made to the Opposite Party No.3(three), No.4(four) and No.5(five) by the Complainant for grant of final assessment order which they did not take notice of the fact. Under the circumstance considering the acts of the Opposite Parties to be deficiency in service the Complainant in his complaint seeks the direction of the Forum to direct the Opposite Party No.1(one) and No.2(two) to furnish the final assessment order by affixing therein the date of delivery of such order to the Complainant. The Complainant further seeks the direction of the Forum to direct all the Opposite Parties to pay Rs. 50,000/-(Rupees fifty thousand)only for non compliance of statutory duty in shutting out grievance of the Complainant also Rs.10,000/-(Rupees ten thousand)only towards litigation expense.

The Complainant in support of his contention relied upon the copies of following documents.

1. Order passed by the D.C.D.R.F., Bargarh in C.C.No.21 of 2012 (one sheet).

2. Xerox copy of application to SDO, Electrical for grant of final assessment order(one sheet).

3. Xerox copy of application to Collector-Cum-Chairman, DEC, Bargarh (one sheet).

4. Xerox copy of application to the President, Grievance Redressal Forum, Wesco, Burla(one sheet).

5. Xerox copy of application to the Chairman, OERC, Bhubaneswar(one sheet).

6. Xerox copy of postal receipt and AD issued against sending application by Regd. Post with AD (one sheet).

Being noticed the Opposite Party No.4(four) appeared through his counsel and filed his version stating therein that this Opposite Party has no role in rendering service to the Complainant and is also not answerable to any cause attributable to the authorities of WESCO and this Opposite Party having no knowledge of dispute between the Complainant and the WESCO authorities, besides not being a necessary party in this case, the complaint liable to be dismissed against him.

Further the Opposite Party No.1(one) and No.2(two) appeared through their counsel and filed version denying the allegations of the Complaint.

The version of the Opposite Party No.1(one) and No.2(two) reveals that the Opposite Parties have admitted the fact that the present Complainant is a consumer of the WESCO/Opposite Parties for supply of electricity to his premises. That the Complainant has suppressed the fact that penal bill of Rs.25,057.85/-(Rupees twenty five thousand fifty seven and eighty five paise)only is electricity bill for the month of June-2012 along with the penal bill as on Dt.03/06/2011 the vigilance squad of the distribution licensee i.e. WESCO inspected the premises of the Complainant and found out unauthorized consumption of electricity by tempering the meter and accordingly inventory Dt.03/06/2011 was prepared. Further the version contends that for such unauthorized consumption of electricity by the Complainant the Opposite Party No.2(two) prepared a provisional assessment of the loss of Rs.49,710/-(Rupees forty seven thousand seven hundred ten)only the same was served on the consumer on Dt.06/07/2011 as of penal bill and against such bill the Complainant neither filed any objection within the stipulated period before the assessing authority nor deposited the penal amount within the time limit and the Opposite Party No.2(two) under compulsion declared the provisional assessment amount as final assessment of the penal bill, issued the same to the Complainant vide BED/REV/278 Dt.24/05/2012.

Further the version of the Opposite Party No.1(one) and No.2(two) contends that as the Complainant did not cooperate with the distribution licensee as provided under the law in regard to unauthorized consumption of electricity the Opposite Parties bound to add the penal amount to the monthly billing account of the Complainant for recovery of the same. More so the Opposite Parties having a lineal view reduced the penal bill to 50%(fifty percent) of the total and an amount of Rs. 24,855/-(Rupees twenty four thousand eight hundred fifty five) only had been raised as against the penal amount of Rs.49,710/-(Rupees forty seven thousand seven hundred ten)only. The Consumer Complaint No. 21 of 2012 filed before this Hon'ble Consumer Forum, Bargarh was disposed of directing the Complainant to agitate before the appellate authority as per provision under section 126 and 127 of the Electricity Act-2003 holding same to be penal assessment for unauthorized use of electricity. In view of above circumstance the Opposite Parties seek the redressal of the Forum to dismiss the complaint against them.

The Opposite Party No.1(one) and No.2(two) in support of their contention relied upon the copies of following documents.

1. Xerox copy of final assessment order U/s 126(1) & (2) of Electricity Act-2003(one sheet).

2. Xerox copy of 2004(II) OLR (CSR) page No.22 & 23(two sheet).

Notice have been served and received by the Opposite Party No.3(three) and No.5(five) but they did not appeared before the Forum for so many dates and according to the provision of law service sufficient against the Opposite Party No.3(three) and No.5(five) and they have been set ex-parte in this complaint as per order Dt. 08/12/2015.

Having gone through the pleadings of the Parties, documents available in record and delving deep into the matter the Forum found that this being a dispute U/s 126 of Electricity Act 2003 as to assessment orders passed by the assessing officer designated under the Electricity Act.

The Hon'ble Apex Court of our land in a landmark judgment in “Civil Appeal No. 5466 of 2012 arising out of SLP ( C) No.35906 of 2011” between appellants UP Power Corporation Ltd and others Vrs Anis Ahmed has decided the matter very convincingly U/s 126 of Electricity Act in its factual and legal aspect by comparing both the Acts i.e. Electricity Act-2003 and Consumer Protection Act-1986. The lordship have held in above referred decision in para 45(forty five) and 46(forty six) that Consumer Complaint can be filed before the Consumer Fora for matter involved as to unfair trade practice, for defective goods, hazardous service and for price in excess fixed under any law. The complaint against the assessment order passed U/s 126 of Electricity Act-2003 for unauthorized use of electricity by a person do not fall under the ambit and scope of Consumer Protection Act-1986 explained above. Further the Lordship have held in para 47(forty seven) of the above referred decision that in case of inconsistency between Electricity Act-2003 and Consumer Protection Act-1986, the provision 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 as to “service” as defined U/s 2(1)(o) or “Complaint” U/s 2(1)(c) of the Consumer Protection Act-1986. The Lordship have conclusively held in para 47(ii) that “a complaint against the assessment made by assessing officer U/s 126 or against the offenses committed U/s 135 to 140 if the Electricity Act-2003 is not maintainable before a Consumer Forum.

In the light of Judgment referred above this Consumer Forum earlier has dismissed the consumer complaint No. 21 of 2012 arising out of same cause of action and between the same parties. Now as per the averment of complaint as to fresh cause of action does not sparkle from a single fact and incidence but from a bundle of facts and matter in issue and in this case the cause of action was same in Consumer Complaint No. 21 of 2012 and there is no fresh cause of action to be decided now which has already been decided earlier by this Forum in Consumer Complaint No. 21 of 2012.

In view of the above facts and law the complaint is dismissed without having any merit and on the point of maintainability before the Forum.

Typed to my dictation

and corrected by me.

      (Sri Pradeep Kumar Dash)

               M e m b e r.

                                                                                   I agree,                                                I agree,

                                                                     (Ajanta Subhadarsinee)                     (Sri Krishna Prasad Mishra)

                                                                                M e m b e r(w).                                P r e s i d e n t.