Orissa

Jajapur

CC/105/2015

Sri Sanjay Kumar Muduli - Complainant(s)

Versus

J.E,NESCO,Duburi - Opp.Party(s)

Pratap Kumar Ray

11 Sep 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 11th day of September,2017.

                                                      C.C.Case No.105 of 2015

Sri Sanjay kumar Muduli  S/O Late Ananda ch.Muduli

Vill. Nimapal, P.O. pingal, P.S .kalinganagar

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

                   (Versus)

1.J.E.NESCO,Duburi ,At/P.O/Duburi ,P.S.Kalinga nagar, Dist. Jajpur.

2.S.D.O,NESCO,Duburi Sub-division,At/P.O.Duburi ,P.S.Kalinganagar,Dist.jajpur.

3.Executive Engineer,NESCO,Jajpur Road Division,At/P.O/P.S.Jajpur Road,Dt.Jajpur.

                                                                                                                            ……………..Opp.Parties.                  

For the Complainant:                           Sri P.K.Ray,Advocate.

For the Opp.Parties :                            Sri P.K.Daspattnaik,Advocate.

                                                                                                     Date of order:   11.09.2017.

 

SHRI JIBAN BALLAV DAS ,PRESIDENT  .

The petitioner filed the present dispute against the o.ps. alleging not only deficiency of service but also alleged unfair trade practice .

            The fact relevant for the complaint petition are that the petitioner is a bonafied electric consumer under the O.Ps bearing consumer No.25633 (D). During the month July-2012 i.e on 06.7.12 the electricity   connection from the residence of the petitioner has been disconnected owing to lightening .  The petitioner intimated the said fact to the O.P.no. 1 in  writing on dt.07.07.12 and 10.7.12 for restoration of power supply .

            Thereafter the petitioner  has sent  several application to O.P.no. 1 and 2 on dt. 05.12.12.              16.02.13,13.05.13,14.09.13 and 12.12.13  for the same purpose. Later as per the advice of O.P.no.1 the petitioner  deposited a sum of Rs.200/- for testing of the meter which will be   installed in the  premises of the petitioner . As such inspite of all efforts by the petitioner when the O.p remained silent the petitioner issued a lawyers notice to O.P.no. 2 on dt.21.3.14 for immediate restoration of power supply to his premises but it did not give  any result.

            Subsequently the petitioner on a sudden  received a bill of Rs.82,732/-  as arrear up to  the month of October- 2015 . Thereafter the petitioner intimated the O.P.no. 2 regarding the arrear bill  when there was no  power supply. Accordingly  finding no other way the petitioner filed the present dispute with the prayer to direct the O.P not to claim of  Rs.79,261/- and pay compensation of Rs.20,000/- for mental  agony and restore  power supply to the premises of the petitioner .

After appearance the O.Ps filed  their written version  taking following stands:

That the C.C.Case  is not maintainable in the eye of law and this Hon’ble Forum has no jurisdiction to try this case .

            That as per record on 19.7.12 inspection was made in the premises of the petitioner by the official of O.Ps  U/S 126 and 135 of Electricity Act 2003  and found that the complainant  was using power supply other than his contract load and also by passed  the power supply through extra loading . As per inspection report,  the O.Ps made provisional assessment on 21.8.12 which has been send to the petitioner on dt.23.8.12 , calling upon him to file any objection to the said provisional assessment . After receipt of the provisional assessment report the petitioner filed his own objection on 01.9.12 and  being not satisfied in the reply of the complainant the provisional assessment amount has been finalized and the assessed amount has been reflected in the ledger account of the petitioner in the month of  oct-12 . Accordingly the matter was within the knowledge of the petitioner but he has not  taken  any proper steps in due time in proper forum. As per appex court view  the present C.D. Case is not maintainable before the Hon’ble Fora . Accordingly  the present circumstance the C.C.Case is not maintainable and  liable to be  dismissed.

            Owing to the above contradictory  statement of both the parties on the date of hearing we heard the argument form the learned advocates for both the sides. After perusal  of the record and documents from both the side in details we observed that :

1Admittedly it is undisputed fact that the petitioner is a domestic consumer under the O.Ps bearing consumer No. 25633(d)

2. It is also a fact that there is an  amount of Rs. 82,732/- has been shown as arrear by the O.P against    the petitioner.

            In this  present dispute the petitioner alleged that from 06.7.12 the power supply has been disconnected  from his premises due to lightening .Thereafter he has written several requesting letter to O.P.no. 1 and 2 with the grievance for restoration of power supply . Subsequently the petitioner send a legal notice to O.P.No.2 and as per advice of O.P  deposited Rs.200/ on dt  17.12.12 for meter testing charges . The petitioner filed the following documents in support of his grievance  .

1.Written application on dt.7.7.12., 10.07.12, 05.12.12, 16.2.13., 13.05.13, 14.9.13 and 12.12.13 without any acknowledgement  .

2.Registered written application dt. 12.12.12

3.Registered   legal notice to O.P No.2  dt.21.3.14

4.Money receipt of Rs.200/ as meter testing charge.

5.Three no. of electricity  bill for different year and months

6.Affidavit  of purna ch khilar Ex-line man of  NESCO utility of Duburi Sub-division .

            On the other hand the O.Ps mainly  taken the stand that  this Fora has no jurisdiction to entertain this dispute as per observation of Honble Appex court because the inspection was done as per section 126 /135 of Electricity  Act- 2003 and subsequently the penalty amount of Rs.14,478/- was added  in the electricity ledger of the petitioner  in the month of Oct-12 .  It is alleged by the petitioner that though  there  was no power supply to the house of the petitioner but  the O.Ps illegally issued a bill of Rs.82,732/- and the petitioner also intimated the matter to the O.Ps.  The O.Ps also field the following  documents in support of their  defence .

1.Spot verification report of the premises of the petitioner.  (without any date)

2.Show cause notice against provisional assessment U/s 126(3) of Electricity Act -2003 dt. 23.8.12.

3.Reply of the petitioner clarification regarding theft  of energy dt. 01.09.12 .

4.Ledger copy of the consumer No. 25633(d)

            In the above peculiar circumstances ,owing to assertions and counter assertions of both the  parties we are inclined to decide the dispute as per our observations below:

1.when we verified  the complaint petition,  we observed that the petitioner has stated in the complaint petition that as per affidavit of purna ch. Khilar the Ex-line man the power supply of the premises of the petitioner has been disconnected on 06.07.12 due to lighting and till 2014 ,there was no power supply to the premises of the petitioner. As against such affidavit of purna ch.khilar ,the O.p has not filed any counter affidavit though  several opportunity was given by  this Fora.

2. Similarly after verification of the  ledger copy,  it is observed that  from Oct-2000  to Oct-2015 the total billing was done on average/ load factor basis  which was clear violation of Regulation -                  86 of OERC Code-2004.

3.Thereafter we verified  the payment structure of the petitioner filed by the O.Ps and similarly it is also observed  that there  was no payment  by the petitioner regarding electricity  dues from Dec-2012 till Oct-2015 .In this situation we do not understand under what circumstances the O.Ps continued  the power supply of the premises of the petitioner though  it is settled principle of law that when a consumer/ petitioner fails to pay consecutive two months of electricity dues it is presumed that the power supply has been disconnected .

4. On verification of the Inspection report ( no date) it is observed that  the inspecting officer has mentioned  that the consumer unauthorizedly by  hooking from the L.T line  was availing power supply and  it is not understood how the O.Ps have assessed such hooking  under section-126(3) assessment under electricity Act-2003 which violates the observation of hon’ble Odisa state commission reported in 2004(2)-CLT-77 .

Further why the O.P did not inform the local police ?

5.Thereafter we verified  the Regulation 86,100(2) ,93(8) ,94(2) of OERC Code-2004 where it is stated that :

86- Energy charges are decided in the licensee  tariff shall be payable by the consumer on the basis of actual consumption of energy.

100(2)

            “Notwithstanding anything contained herein above ,no sum due from any consumer, under this section shall be recoverable after a period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrears of charges for electricity supplied and the licensee shall not cut off the electricity for non payment of such sum which became non recoverable .”.

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 morethan one meter reading at a stretch if the meter remain 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 after 24 hour notice .

94(2):-

The licensee shall not be eligible to recover any sum dues from any consumer after a period of two years from the date when such sum became first due unless such sum has been shown continuous as recoverable as arrear of charges for electricity  supply and the licensee  shall not cut off the supply of electricity as per provision laid down U/S  56 (2) of Act .

5.Thereafter we verify the apex court judgment 2013(3) CPR-670(S.C) U.P ,Power Corporation ltd and others Vr.Anis Ahamed) ,wherein it is held that: 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 officers  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 Regulation and citation recorded above , it is cristal clear that when the petitioner did not  pay the monthly Electricity  dues  from  the month of Oct-12 till Oct-2015 ( as available in the  ledger copy) under what circumstances, the O.P has  taken the plea that  such power supply is available in the premises of the complainant till the date of filing of written version. More over supply of electricity bill without meter reading on average / load factor basis is a clear violation of regulation -54(1) and 86 of OERC Code-2004.

            Under the above circumstances , as evidence observed above ,when there was no power supply from the petitioner residence i.e on 6.7.14 the O.Ps  taken the stands there is a penalty under 126 (3)  of Electricity  Act,2003 is not sustainable as per law 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  the O.P has committed patient deficiency  of service as well as unfair trade practice , for which the petitioner has been debarred to avail the electricity supply  which is essential in the present human life . As such to meet the ends of justice we allow the dispute.

Hence this order

            The dispute is allowed  against the OPs. The arrear amount shown against the petitioner by the O.Ps is not  sustainable as per law. Hence ,without drawing any adverse inference the O.Ps are directed to restore the power supply to the premises of the petitioner within 48 house after receipt of this order, the O.Ps   also directed to install a new tested meter in the premises of the petitioner .and revised the load factor arrear bill from Oct-2000 to July-2012 as per section -97 of OERC Code 2004 within four months after receipt of this order . The petitioner is also directed to pay the arrear electricity dues if any  after receipt of the revise bill from the O.Ps, failing which the O.P can take steps as per law . No cost .

                        This order is pronounced in the open Forum on this the 11th day of September,2017. under my hand and seal of the Forum.