Orissa

Jajapur

CC/10/2016

Biswanath Das - Complainant(s)

Versus

Executive Engineer NESCO,Utility Kuakhia Division. - Opp.Party(s)

Alok Kumar Pane

22 Dec 2017

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.                         

                                                Dated the 22nd day of December,2017.

                                                      C.C.Case No.10 of 2016

Biswanath Das , S/O Jogendranath Goswami  

At. Kharilo  , P.O. Antia

Dist.-Jajpur.                                                                            …… ……....Complainant .                                                                       .

                   (Versus)

1. Executive  Engineer, NESCO Utility Kuakhia Division, At/P.O. Kuakhia

Dt. Jajpur.

2. Sub-divisional Officer , NESCO Utility ,Dharmasala  Sub-division ,At/P.O. Jaraka  

            Dt.jajpur.

3. Junior Engineer,NESCO Utility Kabatbandha  Section ,At/P.O. Kabatbandha

      Via. Jaraka, Dt.Jajpur .                                                                                                             ……………..Opp.Parties.                  

For the Complainant:                           Sri A. Ku. Pani, Advocate.

For the Opp.Parties :                               Self.

                                                                                                     Date of order:   22.12.2017.

MISS  SMITA  RAY, LADY   MEMBER  .

The petitioner has filed the present dispute against the O.Ps not only alleging  deficiency in service but also unfair trade practice due to illegal assessment of penalty of Rs. 21,881/- under section 126(3) of Electricity Act 2003 as well as enhanced the contract load from 1 k.w to 2.5 k.w.

            The fact relevant as per complaint petition are that the petitioner is an inhabitant of village Kharilo under Dharmasala P.S  within the Dist of jajpur who  is availing   power supply from the O.ps  bearing consumer A/C No.615214030015 having the contract load of   1 k.w for  domestic purpose . The petitioner also  paying the electricity  dues regularly but it is a matter of great regret that though it is settled  principle of law as per Electricity   Act that without  installing a correct meter the o.ps are not authorized  to provide power supply,  but in the present case the O.Ps  collecting the dues from  the petitioner on average basis instead of actual meter reading  which is gross deficiency in service on the  part of the O.Ps.  Further from  the initial stage of power supply till the month of Oct-15 the O.Ps have provided power supply for domestic purpose with contract load 1 k.w.  But in

the month of nov-15 without any justification as well as  without following the proper procedure  of law have enhanced the contract  load from 1 k.w to 2.5 k.w  as well as imposed penalty amounting to  Rs.21,881/- which not only comes under the  purview of deficiency in service but also unfair trade practice.

            That as against such assessment of electricity dues enhancing the load factor though the petitioner served  the legal notice dt.18.1.16 to the above cited o.ps by R.P  but after receipt of  notice the o.ps without taking any action have remained silent which  also comes under the purview of deficiency of service . Accordingly owing to the above arbitrary action of the ops the petitioner  finding no other way  has filed the present dispute with the prayer that  the O.Ps may be directed to reduce the load factor from 2.5 to 1 k.w  and pay compensation  of Rs. 20,000/-  for mental agony.

            After notices the o.ps entered appearance and filed their written version  taking the following stands :-

1.The petitioner is a domestic consumer having  con.no.Kb5384d under Kabatbandha section of Dharmasala Electrical  sub-division.

The total outstanding against him is Rs.2871.00 up to Dec-2015.

On dt.4.7.15 a physical verification made by Sri Asit ku.JM(E) Kabatbandha and found that the consumer is availing power supply unauthorizedly  to the tune of Rs.2.5 k.w without meter against the contract demand of 1 k.w.

Accordingly Provisional assessment for the above un authorize use of electricity amounting to Rs.21.881 served to the  consumer vide letter no. 583  ondt.7.7.15.

Since on verification the total connected load found as  2.35 k.w hence from the month of Nov-15 the connected load has been  increased to 2.5 k.w.

            However, as the consumer is availing power supply by unauthorized means the dispute is liable to be dismissed  as per observation of Supreme court vide SLP ( Civil)  No.35907/2011)  which finally decided that  the consumer complaint is not maintainable in this Fora.

            Owing to the above contradictory statement of both the parties on the date of hearing we heard the argument from the learned  advocate  from the side of the petitioner and after perusal of the record and documents filed from  both the sides we observed that :

*Admittedly it is undisputed fact that the petitioner is a domestic consumer under the o.ps bearing consumer no. 615214030015.

*It is also the  fact that an amount of Rs. Rs.21,881/- has been imposed as penalty by the O.Ps against the petitioner U/S  126(3) of  Electricity Act-2003.

*It is also the  fact that the contract load of the petitioner has been enhanced  by the O.Ps  from 1 k.w to 2.5 k.w from  the month of Nov-15

            In the present dispute the petitioner has alleged that the O.ps without following the proper procedure of law has enhanced the contract load from 1.kw. to 2.5 k.w . The petitioner also has alleged that there was no such physical verification on dt.4.7.15 in the residence of the petitioner .As such physical verification of Sri Asit ku. JM (E)  on dt.4.7.15 is quite false .The spot verification  report dt. 04.7.15 which has been filed by O.P.no.2  neither has been signed by the petitioner/ consumer  nor representative of the consumer . It is also stated by O.P.no.2  that physical assessment   order dt.7.7.15 has been served to the petitioner vide letter no..583. dt.7.7.15   but practically such provisional assessment order has not been served to the petitioner for which the petitioner did not get any opportunity to file show cause within 30 days as per law as the o.ps have not filed any documentary evidence in support of provisional assessment order supplied  to the petitioner .  Accordingly it violates the provision of Electricity Act-2003 and Regulation- 52 of OERC code Distribution Condition of supply 2004 and   section -126 (3) of Electricity Act- 2003. The petitioner filed following  documents / citations in support of his grievance :-

1.Copy of Regd. pleader notice  dt.18.1.16

2. Electricity bill of Oct-15 and Nov-15

3 .2006-AIR-Calcutta -59-p;ara-8

4 2008(1) CLT-237-pra-8

5. 2012(1) CPR-930-N.C –para-9  to 14.

6 2012(1)CPR-85-para-2-p-88

7. 2012(2)-CPR-195-para-5

8. Affidavit of the petitioner stating that he has not received any assessment report .

             On the other hand the O.Ps mainly have taken the stand that this fora has no jurisdiction to entertain the dispute  as per observation of Hon’ble Appex court  ie. (    U.P power corporation Ltd and others  Vr.Anis Ahamed )  reported in 2013(3) -CPR-670 (SC) because the inspection was done as per section 126(3)  of Electricity Act-2003 and  subsequently the penalty amount of Rs.21,881/ has been  added in the electricity  ledger of the petitioner in the month of Nov-15 so also  the

contract load has been  enhanced from 1 k.w to 2.5 k.w . The  O.Ps  also filed the following documents in support of their defense:

1. Spot verification report of  the premises of the petitioner dt.7.7.15
2. Show cause notice against provisional assessment U/S  126(3) of Electricity Act-2003 dt.7.7.15
3. Provisional assessment order dt.7.7.15
4. Ledger copy of the consumer no.KB5384D

            In the above peculiar circumstances owing to assertion and counter assertions  of both the parties we are inclined to decide  the dispute as per observations given  below.

1.On  verification of  the complaint  petition we observed that the petitioner has stated in the complaint petition  as well as in the affidavit that  there was no such verification was done by  the O.Ps in the premises of the petitioner on dt.7.7.15 and no such inspection report or provisional  assessment order  was served to the petitioner . Similarly  the monthly bill has been  prepared on load factor/ average basis from the date of power supply .On the other hand  when we verified the inspection report as well as assessment report  along with ledger copy we observed  that the total billing structure  prepared by the o.ps on load factor on average basis from the date of initial power supply . The O.Ps  only have  taken the stand that the dispute is not maintainable before this fora as per observation  of Hon’ble appex court .We do not found any single scrape of paper or any mode of service which will establish  that the O.Ps have  served the provisional assessment report to the petitioner in absence of which  the petitioner did not get an opportunity to file show cause  against the  above provisional assessment before the O.Ps. Hence ,  it Is not under stood how the O.Ps  have assessed the penalty   bill U/S  126(3) of electricity Act-2003 which violates the provision of section 126(3) of electricity Act 2003 .  

            More over on verification of  the Regulation – 86 and 93(8)  of OERC code -2004 where it is stated that 86-eneergy charges are decided in the licenses  tariff shall be paid on the actual consumption of energy .

93(8)- provisional billing : The amount thus bills shall be adjusted against the bill raised on the basis of actual meter reading during subsequent billing cycle such provisional billing shall  not continue more than one meter reading at a stretch if the meter  not accessible even if the next cycle the consumer will be served with a 24 hour notice U/S  163(3) of the Act to open his premises for

reading of the meter  and fixed time and date if the meter is not accessible  at the time fixed in the notice the supply may disconnect  after serving   24 hour notice .

Similarly on verification of the Appex court judgment 2013(3) -CPR-670-_(SC) U,P. Power Corporation Ltd  Vrs.  Anis Ahamed,  Wherein  it is held that  vide para-46 and 47

46-  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 “ 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 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 U/S 126 is not maintainable  before the Consumer Forum. The Commission has already noticed that the offers referred to in section 135 to 140 can be tried only by a special court constituted U/s  153 of the Electricity Act,2003. In that view of the matter also the complaint against any action taken U/S 135 to 140 of the Electricity Act 2003 is not maintainable before the Consumer Forum.

47(iii)

             The Electricity Act,2003 and the C.P.Act,1986 runs parallel for giving redressal to any person ,who falls within the meaning of “consumer “ U/S 2(1)(d) of C.P.Act,1986 or the Central Government of the State Government or association of consumer 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 excess of the price fixed by or under any law “.

            On the above citation and regulation recorded above it is cristal clear that when the petitioner claimed that there is no such verification by the o.ps on dt.7.7.15 and no such provisional assessment report received by him and in  such circumstances the O.Ps  fails to provide any documentary evidence  that such provisional assessment report  has been served to  the petitioner . Besides this  the ledger copy filed from the side of the O.P  established that the power supply was supplied by the O.Ps  without any meter which violates the  Regulation -86  and 93(8) of OERC code-2004 and 54(1) of OERC Distribution  Condition   of supply code -2004.

            In addition to it the O.Ps in the objection dt.11.3.16 admits that verification has been made by Sri Asit ku. (JM) Electrical kabatbandha  in the premises of the petitioner on 4.7.15 .Hence the

S.D.O(Elect) O.p.no.2 is not entitled to issue provisional assessment order since S.D.O 9E) is not the inspecting officer which violates the provision of section 126(5) of Electricity act-2003 and observation of Calcutta High Court reported in AIR-2006-59 .

            Similarly  before filing of this dispute the petitioner served a Regd. Pleader notice to the O.Ps stating the grievance on the notice but the O.Ps remained silent in this point it  may draw adverse inference in view of the observation of Hon’ble  N.C -2013(1) CPR-456-N.C

            Besides this  the petitioner filed an affidavit on dt.28.6.17 wherein stated that the O.P has not conducted any spot verification / inquiry  in the premises of the petitioner on dt.04.07.15 as well as the O.P has not served any assessment order to the petitioner where as this Fora  has given several opportunity to the O.ps for filing counter affidavit but the O.Ps did not choose to file the same or any evidence to prove that the such assessment report  served to the petitioner . The reason behind is best known to the O.Ps. Hence, this For a is empowered to entertain the present dispute U/S 126(3) of Electricity Act-2003 in view of the observation of Hon’ble national Commission vide R.P.No.67/2010 decided on 1^st June-2015 ( Ashok Ojha Vrs. Jhadakhanda Electricity Board & others) since the petitioner alleges that he has not received the notice of provisional assessment order .

 

            Under the above circumstances as  observed above the stand taken by the O.Ps  that imposition of  penalty U/S  126(3)  of electricity Act-2003 is not sustainable as per law  in view of the  observation of  Hon’ble N.C mentioned above   and the O.P utterly fails to establish that this is a case of section  126 (3) of Electricity Act-  2003. Hence, in  our considered view  that the O.P  has committed patient deficiency of service  in assessing the penalty U/S  126 (3) of Electricity Act -2003 for which a common man like the petitioner has been harassed which is not permissible in a sovereign  democratic Welfare Society  for which the petitioner has  suffered mental agony. As such to meet the ends of justice we allow  the dispute.

Hence this Order

            Without taking any adverse inference treating the contract load of the petitioner as 1 K.W  we quashed the penalty of Rs.21,881. U/S 126(3) of Electricity Act-2003 as per observation of Hon’ble National Commission reported above   . The O.Ps are directed to  revise the load factor bill of the petitioner by installing a new tested meter in the premises of the petitioner  as per section - 97 of OERC Code-2004 treating the contract load as 1 k.w within four months after receipt of the order . No cost.

                        This order is pronounced in the open Forum on this the 22nd day of December,2017. under my hand and seal of the Forum.