PER SHRI P.N. KASHALKAR, HON’BLE PRESIDING JUDICIAL MEMBER
(1) By this common judgment, we are disposing of both the appeals, one preferred by Original Complainant being Appeal No.1513/08 and the other preferred by Executive Engineer, MSEDCL being Appeal No.234/09 against judgment and award dated 18/10/2008 passed by District Consumer Forum, Thane in CC No.46/2005.
(2) The facts to the extent material may be stated as under…
The complainant Harilal Jamnadas Bhatia (hereinafter referred to as Bhatia) had filed consumer complaint alleging deficiency in service on the part of MSEDCL officials. According to him, he is a Consumer of MSEDCL Company and taking electric supply from meter No.9000914728. It is a single phase meter. It is in the name of Hardasani Manohar and the complainant is using it and is paying the bills, and, therefore, he is the Consumer as such occupier of the premises. He pleaded that on 13.09.2004, the MSEDCL Officials came to his premises and made investigation of his meter by acu-check instrument and found that it was running slowly. Therefore, he was issued bill of Rs.18533.94 as arrears of bills. When enquired with the MSEDCL officials, he was told that the MSEDCL has conducted inspection and panchanama U/s 135 of the Indian Electricity Act,2003 and has issued the bill accordingly. Thereafter, again he was issued bill of Rs.12,560/- on 5/12/2004 and he was told that if the bill is not paid his electric supply would be discontinued. He met Dy.Executive Engineer, Sub Dvn.No.3 who directed that the meter of the complainant should be re checked by acucheck instrument in presence of the Consumer. But ignoring this direction, he was required to pay Rs.7000/- on 5/11/2004 and other arrears of Rs.1020/-. Thereafter, his electric supply was discontinued on 28.1.2005. On 31.1.2005 disputed bill was again sent to him. He, therefore, filed Consumer complaint alleging that bill of Rs. 18533.94 should be declared as illegal and the amount recovered from him totaling to Rs.10000/- be refunded back to him with interest @18% p.a.. He also claimed Rs.5000/- towards compensation.
(3) O.P. filed written statement and pleaded that all of a sudden the meter of the complainant was checked and it was found that the meter was running slow and since the meter was defective, it was replaced by another meter on 10/09/2004. Thereafter, action was taken U/s 135 of the Indian Electricity Act against the complainant by issuing bill to him. The complainant did not file any appal U/s 127 against said action but filed consumer complaint before the Forum. MSEDCL asserted that the bill issued to the complainant was proper. On 10/09/2004, the meter was found running slow to the extent of 82.13% and as such they had issued the bill properly. It pleaded that the meter was checked on the spot in presence of the complainant under acucheck machine and it was found to be running slowly by 82.13%. The complainant has signed said report. Said report is enclosed with the documents submitted by the MSEDCL Company. The meter was again directed to be checked but the complainant did not appear and, therefore, rechecking could not be made. According to O.P. it has the power to discontinue electric supply since the complainant had not paid the bill. It, therefore, pleaded that the complaint should be dismissed with cost.
(4) It appears that the complainant had paid Rs.7000/- previously out of which Rs.4000/- was compounding fee U/s 152 of the Indian Electricity Act,2003 and Rs.3000/- was towards the arrears of bills. But, thereafter, he was issued bill of Rs.18533.04. On approaching MSEDCL officials, Rs.6945/- were deducted and a reduced bill of Rs.12,550/- was issued. Both these bills have been challenged.
(5) The Forum below held that this Commission had directed in F.A. No.2406/08 dated 20/11/2007 that meter should be rechecked in presence of Consumer, but the said compliance was not made by the MSEDCL Company, as such, the forum below was of the opinion that the bill of Rs.18,534/- can not be allowed to be recovered by the O.P. from the complainant. The forum below held that action of the MSEDCL officials was erroneous and illegal and they have no right to recover the said bill from the complainant. The Forum below also held that the MSEDCL officials were not entitled to proceed against the complainant U/s 135 because they had not lodged FIR and, therefore, issuance of bill for Rs.18m534/- by the MSEDCL Co. is bad in law, and, therefore, it ultimately allowed the complaint and quashed the bill issued U/s 135 by MSEDCL Co. and directed MSEDCL Co. to get satisfied with Rs.7000/- already recovered by it from the complainant in view of the bill of Rs.18,533.94 which was issued by it to the consumer. It also quashed the bill dated 30.1.2005 and directed MSEDCL Co. not to recover the current months bill and be satisfied with the amount of Rs.1020/- already deposited by the complainant. In para 5 of the operative order, it directed the MSEDCL Co. to deposit Rs.5000/- as fine amount in the District Forum since MSEDCL Co. had not complied the order passed by this Commission dated 20/11/2007. It also directed payment of Rs.2500/- as cost to the complainant. The complainant, not satisfied with the partial relief granted and the MSEDCL Co. both have challenged this order by filing separate appeals.
(6) We heard Adv.Kadam for the Ori.Complainant and Adv.T.S.Ahuja for the Ori.O.Ps. We are finding that the appeal preferred by Shri H.J. Bhatia, Ori.Complainant is devoid of any substance. He has challenged the clause No.3 of the operative order whereby the total amount deposited by the complainant should be treated as payment in lieu of the bill quashed by the Forum. However, the appeal filed by the complainant is having no merit, as such we are not inclined to allow the same.
(7) As regards appeal of MSEDCL Co is concerned, we are finding that the MSEDCL Co is guilty of not rechecking the meter in presence of consumer as directed by this Commission in A.No.2406/06 decided on 20/11/2007. We are also finding that in operative order in clause 5, the Forum below unnecessarily imposed fine of Rs.5000/- on MSEDCL Co. for non compliance of the order passed by this Commission in A 2406/06 by the MSEDCL Co officials. This order in clause 5 of the impugned order dated 18/10/2008 is per se bad in law. The Forum had no jurisdiction to impose penalty of Rs.5000/- in respect of non compliance of the order of this Commission, passed in A.No.2406/06 decided on 20/11/2007 in as much as it is the case of the MSEDCL Co. that the consumer had not given cooperation for rechecking of the meter in his presence. Moreover, it is rightly contended by Adv.T.S.Ahuja for the appellant that for violation of Commission’s order, the District Forum had no jurisdiction to impose the penalty, like the penalty imposed by the forum below vide order dt.18.10.2008. We agree with the submissions made by the learned counsel for the MSEDCL Co. We are of the view that for the non compliance of the order passed by this Commission, the District Forum had no jurisdiction to impose cost of Rs.5000/-. At the most, the Forum below, when it was seized of the complaint, should have directed the MSEDCL Co. to comply with the order passed by this Commission in A.No.2406/06 and should have not disposed of the same till then. Instead of doing that, short cut was taken by the forum below and it imposed penalty of Rs.5000/- on MSEDCL Co. for alleged violation of the order passed by this Commission. This course was not open for the learned forum. So, said order imposing penalty is required to be quashed by allowing the appeal filed by the MSEDCL Co.
(8) In the course of argument, we direct both the parties to see the reasons and to settle the dispute once for all. Both the advocates agreed that on payment of Rs.8000/- by the consumer complainant towards disputed bill of Rs.18,534/, the dispute involved in this complaint as well as appeal should be resolved.
(9) Looking to the facts and circumstances of the case, in place of order passed by District Forum, by allowing the appeal preferred by MSEDCL Co. partly, we pass the following order:
ORDER
(i) Appeal No.1513/08 filed by original complainant stands dismissed.
(ii) Appeal No.234/09 filed by MSEDCL is partly allowed and it is directed that, in lieu of bill challenged in the complaint, the complainant shall pay amount of Rs.8000/- and MSEDCL shall continue to give regular electric supply and electricity bills to the complainant without asking for other amount over and above Rs.8,000/-for the month of October,2004 which is challenged in the complaint.
(iii) We also quash and set-aside the order passed by District Forum, Thane whereby the Forum had imposed a penalty of Rs.5000/- for violation of this Commissions order.
(iv) Parties are left to bear their own cost.
(v) Inform both the parties accordingly.
Pronounced on 4th March, 2011
