The instant appeal under Section 15 of the Consumer Protection Act, 1986 (here-in after referred to as ‘the Act’) is at the behest of opposite party to impeach the final order/judgment dated 10.08.2017 passed by the District Consumer Disputes Redressal Forum, Paschim Medinipur (in short ‘Ld. District Forum’) in Consumer Complaint No. 48 of 2013. By the impugned order, the Ld. District Forum allowed the complaint lodged by respondent Shri Mihir Kumar Chanda under Section 12 of the Act with a direction upon the opposite party/appellant to send electric bills only as per actual meter reading from August, 2012 to 19.03.2013 besides any outstanding, subject to adjustment of Rs. 40,000/- paid on 27.01.2016 without imposing interest and penal charges within forty-five (45) days from the date of order, to pay compensation of Rs. 30,000/- and litigation cost of Rs. 3,000/-.
The respondent herein being complainant lodged the complaint before the Ld. District Forum asserting that being a resident of Vill.-Dakshindiha, P.O.- Junbalda, P.S.- Keshiary, Dist.- Paschim Medinipur is a consumer under the West Bengal State Electricity Distribution Company Limited (W.B.S.E.D.C.L.) having SC No. KSY – AG11735 and Consumer No. S010263 and was enjoying electricity since 2010 to run his deep tube well for cultivation of paddy. The complainant used to pay bills of electric energy regularly and paid the bills up to July, 2012 as per meter reading. However, opposite party raised a bill for the month of August, 2012 to September, 2012 of Rs. 74,986/- which according to complainant is exorbitant and illegal. Complainant raised objection and made a complaint to the opposite party against such illegal bill but opposite party did not pay any heed to the same. The opposite party further raised subsequent bills up to the month of February, 2013 but the complainant could not pay his arrear bills and due to non-payment of inflated bills of Rs. 74,986/- the opposite party disconnected the service connection for which the complainant faced huge loss amounting to Rs. 3,50,000/- for non-cultivation of crops. Therefore, the complainant approached the Ld. District Forum with prayer for several reliefs, viz.- (a) a direction upon the opposite party to send proper electricity bill as per meter reading for the month of August, 2012 to February, 2013 immediately; (b) to pay Rs. 3,50,000/- for damages of Boro cultivation; (c) Rs. 40,000/- as litigation cost etc.
The appellant herein being opposite party by filing a written version resisted the claim of the complainant by stating that the complainant prayed for installation to pay the bills and accordingly instalments were given to the complainant to pay the arrear bills but the complainant did not pay the amount of instalments till 19.03.2013 and as such they compelled to disconnect the electric connection of the complainant. The opposite party has categorically stated that the meter in question was tested and it was found that the accuracy of the meter was within permissible limit and as such as there was no deficiency on the part of them the complaint should be dismissed.
After assessing the materials on record, Ld. District Forum by the impugned order allowed the complaint with certain directions upon the opposite party, as indicated above. To assail the said order, the opposite party has come up in this Commission with the present appeal.
Mr. Debesh Halder, Ld. Advocate for the appellant has submitted that the instant dispute being a billing dispute, in accordance with the Regulation No. 3.5 of West Bengal Electricity Regulatory Commission (W.B.E.R.C.) published in Kolkata Gazette dated 07.08.2013 being Notification 15 dated 07.08.2013, the Ld. District Forum should not have entertained the complaint. He has further submitted that on the consent of both the parties by Order No. 34 dated 01.12.2015 the disputed meter was tested by the competent authority and no defect was found in the electric meter and as such when with the consent of both sides the meter was tested and no defect was found therein, the Ld. District Forum should have dismissed the complaint as there was no deficiency on the part of the W.B.S.E.D.C.L. and when the Ld. District Forum proceeded in wrong way by imposing compensation upon the appellant, the impugned order should be set aside.
Per contra, Mr. Barun Prasad, Ld. Advocate for the respondent has drawn my attention to the impugned order and submitted that the appellant/W.B.S.E.D.C.L. could not give any clarification or explanation as to how the bill of Rs. 74,986/- was raised. He has further submitted that the appellant has raised the bill whimsically without maintaining any proper procedure and as such the impugned order should not be interfered with.
I have given due consideration to the submission advanced by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
Undisputedly, the respondent is a ‘consumer’ as defined in Section 2(1)(d) of the Act. Therefore, the Ld. District Forum was under obligation to consider whether there was any deficiency in services on the part of appellant/opposite party in raising the bill of Rs. 74,986/- for the month of August, 2012 to September, 2012. So, essentially it was a billing dispute.
It is now well settled that in view of the decision of Hon’ble Supreme Court reported (2013) 8 SCC 491[U.P. Power Corporation Ltd. & Ors. –Vs. – Anis Ahmed] the Electricity Act, 2003 and the Consumer Protection Act, 1986 runs parallel for giving redressal to any person, who falls within the meaning of ‘consumer’ as defined in Section 2(1)(d)(ii) of the Act 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 in excess of the price fixed by or under any law.
Now, the Regulation No.3.5 of West Bengal Electricity Regulatory Commission published in Kolkata Gazette (Extra-Ordinary) dated 07.08.2013 being notification No. 55, which has a statutory effect provides –
“3.5.1(a) – In case, there is any dispute in respect of the billed amount, the consumer may lodged a complaint with the Grievance Redressal Officer or the Central Grievance Redressal Officer of the licensee and thereafter to the Ombudsman in appeal against the order of the Grievance Redressal Officer or the Central Grievance Redressal Officer, in accordance with the provisions of the concerned Regulations. In such a case, the aggrieved consumer, pending disposal of the dispute, may, under protest, pay the lesser amount out of the following two options: -
- an amount equal to the sum claimed from him in the disputed bill, or
- an amount equal to the electricity charges due from him for each month calculated on the basis of average charge of electricity paid by him during the preceding six months,
the amount so calculated provisionally as per Clause (ii) above by the licensee and tendered by the consumer shall be accepted by the licensee against that bill on provisional basis”.
The provisions of Regulation 3.5.2 reads as under:-
“3.5.2. If any agreed consumer makes a provisional payment, as aforesaid, no penal measure including disconnection for non-payment shall be taken against him till the dispute is settled either at the level of the Grievance Redressal Officer or the Central Grievance Redressal Officer or the Ombudsman, as the case may be. However, imposition of a delayed payment, surcharge, if applicable shall not count towards a penal measure for this purpose”.
The forgoing Notification flows from Electricity Act, 2003 and as such it has statutory force. A Forum constituted under the Act has no mechanism to ascertain whether the meter in question was defective or not. The complainant also in his petition of complaint did not aver anything that the meter in question was defective. When the legislature in its wisdom has prescribed a matter to be done by a particular authority, it has to be decided by the said authority in the way prescribed under the law and a Court/Forum should not interfere with such legislative command.
In the case before hand, it is quite evident that the respondent/complainant approached the appellant/respondent for instalments and on the prayer the instalments were given to make payment of the arrear electricity bill amount by eight instalments from 24.01.2013 to 24.08.2013. Due to non-payment of such instalments the electricity line of the respondent was disconnected.
In this context, it would be pertinent to record that when the matter was pending before the Ld. District Forum, on consent of both parties, the appellant was permitted to get the electrical meter tested by competent authority.Accordingly, the electric meter of respondent was tested and in this regard the testing report dated 11.05.2017 is available with the record which indicates that testing was conducted at different load points and its results are found within the permissible limits.After examination, it was observed by the expert that Date and Time (RTC) of the meters are showing absurd value with trun-cated display and accuracy of the meter is within permissible limit.
In such a situation, when there was a report of an expert where no defect was found, the Ld. District Forum should not have any occasion to proceed with the dispute any further and in this regard the respondent might have availed an opportunity to highlight his grievances, if any, before the R.G.R.O. or C.G.R.O. or Ombudsman, as the case may be, as per Notification No. 55/W.B.E.R.C. dated 07.08.2013.
From the record it would reveal that in order to decide the matter, the Ld. District Forum proceeded to observe –
“O.P. never disclosed the cause of such huge amount of outstanding in their W/O as well as written argument. O.P. did not adduce any evidence on their behalf to prove their claim and give them explanation regarding showing outstanding amount in the bill for the month September, 2012 and consumption period August, 2012”.
Ld. District Forum further proceeded to observe –
“It is evident from the documents and record that O.P., in this case played a safe game by avoiding the allegation against them and also contested the case not in clean hand. O.P. should have the first duty to clarity or explain how outstanding amount of Rs. 74,897/- has come out, as outstanding of August, 2012 but O.P. avoided of such grave allegation, placed the ball in out ground by way of meter testing which is not at all case of complainant that meter was defective”.
The above observations of the Ld. District Forum indicate that the Ld. District Forum did not consider the matter from actual perspective. The Evidence Act postulates that burden of proof lies upon a person who alleges it and as such it was the bounden duty on the part of the respondent/complainant to prove that the meter in question was defective and that burden can never be shifted upon the opposite party/appellant. Therefore, it is quite apparent that the Ld. District Forum has proceeded in a wrong way in deciding the dispute without appreciating the matter from real perspective because when there was no deficiency on the part of opposite party/appellant, the complaint should have been dismissed.
For the reasons aforesaid, the appeal is allowed on contest, however, there will be no order as to costs.
The impugned judgment/final order is hereby set aside.
Consequently, CC/48/2013 stands dismissed.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Paschim Medinipur for information.
