In these complaints, though the complainants are different persons, they are represented by the same person as their authorized representative. The Opposite parties in these cases are same and they are also represented by one and the same counsel. These complainants are similar. The relief sought for is also similar. The law applicable to these cases is common. In these circumstances, with the consent of the parties, all these cases are clubbed and consolidated together for common consideration and determination for the sake of convenience and they are being disposed of through this common order.
The factual matrix as found from the complaint cases are that the complaint cases are that the complainants are bonafide resident of vill.- MV-65 &MPV – 10 which comes under that kalimaela police station in the District of Malkangiri. The opp. Parties are the executives of a power distribution company, which supplies electricity and the complainants are consumer shaving domestic/commercial category. Being discipline consumers they are paying electric bills regularly. It is alleged that due to breakdown/brunt of their village, on 29.12.2013 the complainants along with other consumer of the village MV-64 & MPV-10 met the junior Engineer[O.P No-1] for restoration of electricity in their village to which the junior engineer demanded Rs. 4,000/- from each complainants and assured that, afterdemanded Rs 4,000/- from each consumer the Opposite will install a new transformer and provide the electricity in their village. It is further alleged that for the restoration of power supply the complainants are running to the office of the Opposite parties time and again yielded no result. It is alleged that due to the disconnection of power supply the complainant’s family members have suffered a lot in darkness, because now a days electricity plays a vital role in the day to day living of human being. The above action of the Opposite parties caused mental agony and physical harassment. It is alleged that, the opp.parties have knowingly, negligently and intentionally remained callous in restoring electricity to the detriment of the public at large. Finding no other alternative the complainants took shelter before the forum for protection under the provisions of Consumer protection Act., 1986 with prayer to supply the electricity under the provisions of OERC guideline, Pay Rs. 200/- per day of default in supply of electricity under the provisions of OERC, compensation of Rs. 50,000.00 due to mental agony and harassment and cost of litigation to the tune of Rs. 5,000.00 and other relief as the forum dims fit and proper in the interest of justice.
The Opp. Parties entered appearance through their counsel Mr. Anwar Shah, Advocate, filed written version through the OP nO-3 and contested the case. In his written version the Opposite Party No-3 denied each and every allegation of the complainants and submitted that it is false to say that due to deficiency in service the complainants have been deprived of to get the electricity, It s false to say that on 29.12.2013 the complainants along with the other consumers met the Opposite Party No-1 for restoration of electricity in which the Op-1 demanded Rs. 4,000/- from each complainants, It is false to say that the complainants are running to the Office of the Opposite parties time and again for the last two months for supply of electricity but the O.P paid no heed to the request of the complainants, the later prayed to dismiss the case of the complainants.
Heard the arguments advanced by the authorized representative Mr Laxmi nath Moharana appearing for the complainants and Ld. Counsel Sayed Anwar Shah appearing for the Opposite Parties. Documents as well as pleadings were examined with their assistance
-:Issues:-
(1) Whether the complainant is a consumer under the Opp. Parties within the meaning of Consumer Protection Act ?
(2) Whether there is deficiency of service by the Opp. Parties by not providing power supply to the complainant for days together ?
(3) Whether the amount of compensation claimed by the complainants are just and proper within the meaning of Consumer Protection Act ?
FINDINGS:
Issue No. 1 :- There is no dispute that, the opp. Parties used to supply electricity power to the residence/shop of the complainants and thus stands in the footing of a service provider. There is also no dispute that the complainants used to pay for consumption of power supply in their residence./shop. Thus, clear relationship of service provider and consumer has been established between the parties.
Issue No. 2&3 :- The Opposite Party No-3 in his written version disputed the allegation of the complainants on the question of brunt of transformer and the complainant remains as such months together. In the course of hearing the authorized representative appearing for the complainant submitted that on the same cause of action there are as any as 11 cases were filed before the forum out of which in Misc. case No.3 of 2014 arrised out of CC No-14/2014, the Opposite Party No-2 Mr. Malya Kumar Sethy, the Sub-Division Officer in his petitions admitted the fact of brunt of transformer and on the strength of a petition filed by the authorized representative of the complainants, the record of Misc Case No-3/2014 was was called for. On perusal of the petition dated 3.2.2013 and 13.2.2013 filed on by the Opposite Party No-2 the Sub-Divisional Officer which is available in Misc. case No.3/2014, it is crystal clear that the transformer remained brunt for about the months and above and the same was restored on 11.2.2014 in order to comply the interim order passed on 27.1.2014 by the Forum. On the question of contact of complainants along with other consumers on 29.12.2013 with the J.E., Kalimela (O.P No.1) and his demand of Rs. 4,000/- from each consumer for restoration of power supply, the Opposite Party No-3 in his written version denied the allegation of the complainants. In this connection the Opposite parties neither examined the Junior Engineer, Kalimela before the Forum nor filed his separate statement in shape of affidavit. Hence, we can not disbelieve the allegation of the complainants on the question of demand of Rs. 4,000/- from each complainants. Here we failed to understand what prevented the Opposite Parties to examine the said Junior Engineer, Kalimela before the Forum and also to examine the other consumers of MV-64 &MPV-10 on the conduct of the said Junior Engineer. The Opposite Parties No-3 being the head of the Malkangiri Electrical Division also did not choose to enquire in to the allegation against the delinquent Junior Engineer.
In course of hearing it is brought in to the notice of the Forum that at present 63 domestic and Commercial consumers are depending on the said transformer and when there is need of at least 63 KV powered transformer for the use of the consumers, in that place the Opposite Parties have installed a 26 KV powered repaired transformer for which all the consumers who are depending on the said transformer are remaining in low voltage in between 50 to 100 volt for years together.
On careful consideration of the above facts and also the conduct of the Opposite Parties it is found that the Opposite Party No-3 in his written version has suppressed the truth in all respects. A consumer should not suffer from non supply of electricity beyond the mandatory period as per the OERC guidelines and also should not suffer for non supply of standard voltage by the Southco. When a consumer is paying money for the service rendered by the opp. parties, the consumer is entitled to get adequate voltage. So it is the duty of the opp. party to supply standard voltage i.e. 230 volt. Due to non restoration of electricity for months together and due to supply of low voltage the complainants definitely faced harassment due to deficiency in service on the part of the Opposite Parties.
On the question of compensation as claimed by the each complainants we referred the provisions laid down under O.E.R.C (Licensee standard of performance) Regulation-2004 read with schedule- I & III there of It is argued on behalf of the Opp. Party that the aforesaid Regulation holds good and it provides compensation worth Rs. 100.00 payable to each affected consumer in rural areas and that to on a claim made by the persons affected. We have gone through the provision of law as enumerated under the aforesaid Regulation and observe that the compensation provided is very nominal as also negligible. N case of break down of power supply, such type of negligible quantum of compensation as against delayed restoration of power supply would discourage the affected persons and encourage the inaction of the personnel of power supply department (Service Provider). The authorized representative appearing on behalf of the complainant has placed reliance in the case of Kamla Prasad Tiwari -Vrs- Junior Engineer, judgment of which was delivered by the Hon’ble National Commission reported in IV(2003) CPJ 108 (NC) and another decision in the case of Accounts Officer, Jharkhanda State Electricity Bord Vrs. Anwar Ali, Proprietor & others reported in AIR 2008 (NOC) 2258 (NCC) and ALJ 291 and argued that the right of a consumer under the Consumer Protection Act not affected by the Electricity Act. In other words he argued that provisions of Electricity Act do not override the provisions of Consumer Protection Act. In the case of Kamla Prasad Tiwari (Supra) it has been held that, interrupted supply of power due to fall of electric pole was to negligence of the department and the State Commisssion enhanced compensation from Rs. 2,000.00 which was awarded by the District Forum to the tune of Rs. 25,000.00 with Rs. 4,000.00 as cost. N the case of Accounts Officer Vrs. Anwar Ali (Supra) the Hon’ble National Commission have held that Section-3 of the C.P.Act and Section-175 of the Electricity Act, provide that they are in addition and not in derogation of rights under any other law for the time being in force. Therefore, the rights of the consumer under the Consumer Protection Act are not affected by the Electricity Act.
We have been fortified by a decision of the Hon’ble National Commission reported in 111(2006) CPJ-373(NC), wherein there lord ship held that “interest of consumer if to be protected”. In a reported in 2013(2) CPR 631 (NC) the Hon’ble National Commission held that “Consumer protection Act should be Consumer friendly and not one which works against the Consumer”
The Hon’ble Supreme Court in the Matter of Gazhiabad Development Authority Balbir Sing reported in 1986-2004 CONSUMER 8287 (NS) held that :
“ The provision of the Consumer Protection Act enables a consumer to claim and empower the commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can the determine amount for which the public the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law. It acts as a check on arbitrary and capricious exercise of power. It helps in curing social evil. It will hopefully result in improving the work culture and in changing the outlook of the officer/public servant. Not. No authority can arrogate to itself the power to act in a manner which is arbitrary.”
The Hon’ble Apex Court in the case of Lucknow Development Authority vs. M.K. Gupta 1994(1) SCC 243.
The relevant portion is as under :
A public functionary if he acts maliciously or oppressively and the exercise of power results in harassment and agony then it is not exercise of power but its abuse. No law provides protection against it. He, who is responsible for it, must suffer for it. …………………………….
The Hon’ble Apex court further observed that
“It should further direct the department concerned to pay the amount to the complainant from the public fund immediately but to recover the same from those who are found responsible for such unpardonable behavior by dividing it proportionately where there are more than one functionaries.”
Having regard to the above dictums of the High Court and keeping in view, the provisions of O.E.R.C Regulation 2004. We feel that the pronouncement of the High Court shall be preferred and respected. It has higher degree of importance in the facts and circumstances of the present case.
In view of the above, we came to conclusion that the Opposite Parties have committed gross deficiency in service to the complainants who are definitely put to financial loss, sustained mental agony, physical harassment and finding no other alternative compelled to knock at the door of the Consumer Forum to get proper justice.
In the result, the complainants of the complainants are fit to be allowed and complainants are entitled to an appropriate order in terms of Section 14 of the C.P. Act. Hence, we proceed to pass the following order. Hence it is ordered :
:ORDER:
In the result the therefore the complaint are allowed on contest and Opposite Parties are directed to install at least a 63 KV New transformer free from defects at the locality of the Complainants and ensure standard power supply with in a month on receipt of a copy of this order. Failing which the Opposite Parties are liable to pay Rs. 100/- per day of default of each Complainant till the supply of Standard power supply under the provisions of OERC guideline.
The opp. Parties are further directed to pay a compensation of Rs. 5,000.00 (Rupees Five Thousand) to each Complainant towards harassment and pay Rs. 2,000.00 (Rupees Two Thousand) to each complainant towards litigation expenses within a period of one month from the date of this order. We made it clear that the above awarded amount shall be adjusted in the future bills of the Complainants failing which law shall take its own course.
We would also like to clarify that the above amount Rs. 5,000/- as compensation and Rs. 2,000./- the cost of litigation may be credited to the bill account of the each complainants by the Southco/office concerned from the public fund immediately but the said amount be recovered proportionately from the erring Officials responsible after due enquiry by the authority concerned.
The interlocutory order passed in M.C. No-3/2014 is made absolute.
Copy to the order be sent to the parties free of cost.
Pronounced in open Court on 30th June, 2014.
