(Passed on – 21st February, 2019)
As per Hon’ble Member Shri Avinash Prabhune.
1. This complaint is filed u/s Section 12 of the Consumer Protection Act 1986 regarding failure on the part of the Opposite Party (OP) to settle dispute regarding water bills.
2. According to the complaint of the Complainant,
a) The Complainant is resident of the given address & utilising services of O.P. for water supply connection to his residence since 16.04.1974. Complainant had paid all bills regularly.
b) Complainant had paid last bill on 05.12.2011 for Rs 5283/-, thereafter, Complainant did not receive any bill & was shocked to receive disconnection notice dt 06.08.2015 from O P directing complainant to pay Rs 10904/- within 3 days being arrears upto 13.10.2014. Complainant paid bill for amount Rs 10904/- vide receipt number 1078001171 on 07.08.2015. Complainant contended that bill was for the period from Oct 2014 to June 2015.
c) Complainant received further bill dtd 31.01.2016 for consumption of 2429 units for the period of 01.10.2014 to 31.12.2015 amounting Rs.38,148.82/-,which included the period of 9 months from 01.10.2014 to 30.06.2015 & complainant had already paid bill of Rs 10904/- for the above period. Complainant approached O.P. & requested to correct bill by adjusting earlier payment.
d) Complainant received further bill dtd 11.04.2016 for consumption of 262 units for the period of 01.01.2016 to 31.03.2016 amounting Rs.3545/-, which was paid by complainant on 18.04.2016. The said bill showed NMC arrears till date as ‘0’ but the payable bill amount was shown as Rs 42847/- (bill amount before due date). Complainant sent letter dtd 11.07.2016 to O.P. protesting incorrect arrears indicated in the bill but O.P. did not respond to complainant.
e) O.P. sent letter dtd 02.08.2016 to Complainant offering 50% discount in the arrears payment through their special scheme launched for consumers having arrears towards water bills. O.P. offered complainant to pay Rs 22620/- against actual arrears of Rs 42847/- due from complainant. Complainant did not avail offer from O.P. as arrears were incorrectly calculated & shown against him.
f) Complainant received further bill dtd 30.08.2016 for consumption of 367 units for the period of 30.03.2016 to 30.06.2016 amounting Rs.5831.37/-,which was not paid by complainant. The said bill showed NMC arrears till date as ‘0’ but the payable bill amount was shown as Rs 49451/- (bill amount before due date).
g) O.P. issued subsequent bill dtd 10.10.2016 for consumption of 328 units for the period of 30.06.2016 to 30.09.2016 amounting Rs.4987.85/-. The said bill showed NMC arrears till date as ‘0’ but the payable bill amount was shown as Rs 55845/- (bill amount before due date). Complainant sent letter dtd 25.10.2016 to O.P. to settle billing dispute within 15 days & paid part amount of Rs 5063/- vide receipt number 1001900644953 on 15.11.2016. O.P. didnot sent any reply, therefore, Complainant filed consumer complaint before forum on 28.11.2016 praying for declaring deficiency in services & adoption of restrictive trade practise by O.P. by incorrectly calculating arrears & not settling billing dispute. Complainant prayed for awarding compensation of Rs 10000/- & suitable costs in the present dispute.
h) Complainant had filed application under Section 13(3)(b) of the Act for interim relief & submitted documents on records, Notice dt 01.02.2017 issued by O.P. to complainant for paying water billing arrears of Rs.38938.79/-, Letter dtd 09.02.2017 issued by complainant to O.P. regarding not taking any action due to pendency of the dispute before forum.
i) Complainant had filed additional documents on records on dt 17.02.2018, water bill of Rs 39987/- dt 12.07.2017, Request letter dt 21.07.2017 by OP by introducing Abhay yojana & receipt dtd 25.07.2017 for payment of Rs 36330/- by complainant.
j) Complainant filed short written notes of arguments on 19.04.2018.
3. Forum issued notice to O.P. after registering Complaint. O.P. filed reply on 03.04.2017 through Shri Prakash Govindrao Barde without giving his designation & authority to file reply.
a) OP had admitted the claim of Complainant as regards to water connection, regular payment of bills consumer, receipt of payment from Complainant as referred in para No 1 to 4 of complaint.
b) OP denied Complainant’s contention of issuing bills of 9 months overlapping period from 01.10.2014 to 30.06.2015. O.P had admitted documents filed by complainant as matter of records.
c) O.P. denied deficiency in services. OP denied prayer clause & prayed Forum to dismiss complaint with cost.
d) Counsel for the O.P. filed his vakalatnama on 30.01.2018 enclosing document dtd 22.05.2017 regarding ‘delegation of powers’ issued by Municipal Commissioner in favour of Sh Suraj Premlal Paroche, Civil Court agent.
e) OP filed written notes of arguments on 17.02.2018.
4. Heard Ld counsel for the complainant. O.P. & its counsel remained absent on all dates since 20.06.2018 & did not avail opportunity of oral hearing. Perused documents filed on records. Both parties have filed written notes of argument. We record our findings for the reasons given below.
FINDINGS AND REASONS
S.N. Points : Finding
1 Whether the complainant is a ‘Consumer’
& complaint Maintainable before Forum? : Yes.
2 Whether deficiency in the services
of O.P. is established ? : Yes
3 Whether the complainant is entitled
for Claim/Compensation ? : Yes
4 What Order? : As per Final Order
5. This matter is the typical example of insensible, adamant bureaucratic approach of OP officials showing total disregards to own practise/procedures causing unwarranted hardship to 75 years old Senior citizen complainant forcing him to initiate litigation in the matter of water supply billing for water connection at his residence.
AS TO THE POINT NO.1 – (Consumer & Complaint maintainability)
6. It is clearly evident from documents filed on records that Complainant is resident of the given address & utilising services of O.P. for water supply connection to his residence since 16.04.1974. Complainant has paid water bills regularly to O.P. O.P. has also admitted this fact in the written statement. Complainant is ‘Consumer’ within the definition of 2(1)(d) of the Consumer Protection Act 1986 (in short ‘CP Act’) has availed services of O.P. for water supply to his residence by paying water bill charges, therefore O.P. is service provider as per Section 2(1)(O) of the CP Act. Complaint is filed alleging deficiency in services of O.P. (under Section 2(1)(g) of the CP Act). The complainant & OP are covered under the jurisdiction of this forum, therefore, present complaint is maintainable before this forum. Accordingly we answer above Point No 1 in affirmative. We rely upon the observations recorded by Hon NCDRC in the following matter
Revision Petition No1612-1698 of 2010, State of Maharashtra, Through the Secretary in the Irrigation Department & Ors –Versus – Shri Shantaram Karbhari Pangavhane & 86 Ors, Order Dated 23.09.2010.
13. In the cases in hand, going by the entirety of facts and circumstances, there is no escape from the conclusion that the petitioners having undertaken to supply irrigation water to the agriculturists and receiving consideration, either in the form of fee or water charge, will be deemed to have rendered service within the meaning of section 2 (1) (o) of the Act. However, whether there was any “deficiency” in providing this service in this specific set of cases is a question of fact to be determined by the Forum concerned when the complaints are put to trial. We are, therefore, in agreement with the findings of the State Commission that the water rate is nothing but a fee charged by the petitioners for the service provided to the block holders and that the complaints filed by the respondents before the District Forum on the allegation of deficiency in service due to non-supply or deficient supply of irrigation water are maintainable.
AS TO THE POINT NO 2 – (Deficiency in services of O.P.)
7. It is evident that dispute in the present matter was started when Complainant received disconnection notice (Annex C2) dt 06.08.2015 from O P directing complainant to pay Rs 10904/- within 3 days being arrears upto 13.10.2014. Complainant paid bill of Rs 10904/- vide receipt number 1078001171 on dt 07.08.2015 (Annex C3). Complainant contended that bill was for the period from Oct 2014 to June 2015 (9 months) based on the bill period (Oct to Jun) printed in the receipt issued by OP. OP denied it & submitted that disconnection notice considered arrears upto Sept 2014. We agree with OP’s contention but it is surprising & shocking that OP took 9 months to issue disconnection notice in the present case. It can be seen from the subsequent bill (Annex C4) that it was issued for the period from 30.09.2014 (previous Meter reading 3310) to 31.12.2015 (current Meter reading 5739) (15 months 2429 Units consumption). It is noticed that water charges for 2429 units were billed & total bill was issued for amount Rs 38148.82/-. It was noticed that previous payment details were printed on the bill (Receipt No 203400043035, dt 07.08.2015, Rs.10086/- & credit amount of Rs 818.88 was indicated in the bill. (OP has mentioned different receipt number & different amount as seen from Annex C3), which shows careless working prevailing at OP’s office. OP has not given any clarification for the above deviation in receipt number as well as amount. OP had admitted in the written notes that billing cycle of water bill was quarterly i.e. bill was generated for each three months but remained conspicuously silent for failure in adhering to its own quarterly billing cycle. No justification was provided for OP’s failure for not issuing bills for 15 months from 30.09.2014 to 31.12.2015, which clearly establishes the deficiency in the services of OP on this count.
8. It can be seen that OP remained in deep slumber for about 3½ years after receipt of payment Rs.5283/- on 05.12.2011 from complainant & suddenly woke up to issue disconnection notice (Annex C2) dt 06.08.2015 directing complainant to pay Rs 10904/- within 3 days without providing any details of arrears to complainant as well as in the written statement filed before forum. OP ought to have provided all details to Complainant. It is matter of investigation that when the meter was working properly, why the water bill arrears of Rs 10904/- were accumulated & reasons for not taking any actions by the concerned officials when it was specifically admitted by OP in reply that the billing cycle of water bill was quarterly i.e. bill was generated for each three months. It is serious default/deficiency on the part of OP.
9. It can be seen that deficiency on the part of OP continued in issuing subsequent bills for further period. It is noticed that OP did not provide any details/clarification about the arrears in the reply filed on 03.04.2017 before forum. The reply of OP is not only evasive but unfortunate also as OP baldly denied the contentions of complainant without giving satisfactory clarification about the arrears (Rs 42847, Rs 49451/-, Rs 55845/-) accumulated in the subsequent water bills.
a) Complainant received further bill dtd 11.04.2016 (Annex C5) for consumption of 262 units for the period of 01.01.2016 to 31.03.2016 amounting Rs.3545/-, which was paid by him on 18.04.2016. The said bill showed NMC arrears till date as ‘0’ but the payable bill amount was shown as Rs 42847/-. Complainant sent letter dtd 11.07.2016 (Annex C7) to O.P. protesting incorrect arrears indicated in the bill but O.P. did not respond to complainant.
b) O.P. sent letter dtd 02.08.2016 (Annex C8) to Complainant offering 50% discount in the arrears payment through their special scheme launched for consumers having arrears towards water bills. O.P. offered complainant to pay Rs 22620/- against actual arrears of Rs 42847/- due from complainant. Complainant cannot be expected to accept such offer without getting any details of arrears.
c) Complainant received further bill dtd 30.08.2016 (Annex C9) for consumption of 367 units for the period of 30.03.2016 to 30.06.2016 amounting Rs.5831.37/-. The said bill showed payable bill amount was shown as Rs 49451/-.
d) Complainant received subsequent bill dtd 10.10.2016 (Annex C9) for consumption of 328 units for the period of 30.06.2016 to 30.09.2016 amounting Rs.4987.85/-. The said bill payable bill amount was shown as Rs 55845/-.(bill amount before due date).
e) Complainant sent letter dtd 25.10.2016 (Annex C10) to O.P. to settle billing dispute within 15 days & paid part amount of Rs 5063/- but O.P. did not bother to send any reply to complainant, therefore, Complainant was constrained to file present complaint.
f) Complainant had filed application dt 03.04.2017 under Section 13(3)(b) of the Act for interim relief & submitted documents on records, Notice dt 01.02.2017 issued by O.P. to complainant for paying water billing arrears of Rs.38938.79/-, Letter dtd 09.02.2017 issued by complainant to O.P. regarding not taking any action due to pendency of the dispute before forum.
It is matter of records that OP received notice in the present Consumer complaint on 12.01.2017 but OP failed to appear before forum on scheduled date 03.03.2017. It is further astonishing to note that instead of appearing & filing reply before forum, OP preferred to issue disconnection notice dtd 01.02.2017 directing complainant to pay Rs 38938.79/- (arrears upto 31.12.2016) within 3 days without providing any details of arrears to complainant. It is further beyond understanding that OP showed arrears as Rs 55845/- in bill (Annex C9) upto 30.09.2016 but suddenly brought down arrears amount to Rs.38938.79/- (arrears upto 31.12.2016) in the disconnection notice dtd 01.02.2017. OP had not provided any justification in the reply filed before forum on 03.04.2017 for such huge reduction in (from Rs 55845/- to Rs.38938.79/-) arrears amount. It is certainly deficiency on the part of OP.
10. It is noticed from the additional documents filed on records on dt 17.02.2018 by complainant that water bill of Rs 39987/- dt 12.07.2017 was issued & OP issued request letter dt 21.07.2017 by introducing Abhay yojana & penalty on arrears was 100% waived. OP requested complainant to pay Rs 36328/- arrears upto 07.08.2017. Complainant had paid Rs 36330/- vide receipt dtd 25.07.2017 under protest for avoiding disconnection of water supply.
11 It is also evident that OP filed evasive reply on 03.04.2017 through Shri Prakash Govindrao Barde without giving his designation & details about authority to file reply, which shows casual approach of the concerned authority. It is further confirmed from ‘delegation of powers’ issued by Municipal Commissioner on 22.05.2017 (filed before forum on 30.01.2018) that concerned official had no authority to file reply on 03.04.2017 before forum as the authorisation was issued much later after filing reply on 03.04.2017 by OP. Counsel for the O.P. filed his vakalatnama on 30.01.2018 enclosing document dtd 22.05.2017 regarding ‘delegation of powers’ issued by Municipal Commissioner in favour of Sh Suraj Premlal Paroche, Civil Court agent, who filed Written notes on 17.02.2018 revealing new facts & clarifications, which was not mentioned in the Written statement/reply filed earlier on 03.04.2017 by different official. OP cannot be permitted to cover up lapses & to fill lacunae of Written statement through Written notes of argument after 10 months. Moreover, Written statement/reply filed earlier on 03.04.2017 was without authorisation & could have been rejected earlier but in the interest of justice, forum has considered it.
12. OP admitted through written notes filed on 17.02.2018 that abnormal consumption was shown for the period from 30.09.2014 to 31.12.2015. (i.e 2429 Units- Complaint Annx C4) , however, no explanation was given for issuing bill for such abnormal consumption. OP further admitted that less bill was issued to complainant. It is clearly evident that OP slept over for the period for 7 years (year 2010 to 2017) to realise less billing in the present case & did not bother to take cognizance of the letters (dt 11.07.2016 Annex C7 & dt 25.10.2016 Annex C10) given by Complainant before filing consumer complaint. It is matter of records that meter installed at complainant’s premises is working properly, therefore, OP ought to have resolved dispute by taking proper meter reading at scheduled quarterly frequency & correcting bills by giving due attention to the complainant’s representations. It is true that Complainant has consumed water, therefore, he is liable to pay charges for the consumed water as per meter reading but OP cannot be permitted to woke up after 7 years & claim arrears from complainant as per whims & fancies of the OP officials. It was OP’s responsibility to take reading, issue bills & take actions in case of any default on the part of complainant. Instead of taking corrective actions, OPs action of issuing two disconnections notices (dt 06.08.2015 Annex C2 & other dt 01.02.2017 during pendency of complaint before forum) directing complainant to pay arrears within 3 days is absolute abuse of the powers delegated to officials of OP.
13. It can be seen from above that OPs conduct in the present matter has not only caused hardship to 75 year old Sr. Citizen, complainant but also caused financial loss to OP, public authority because due to such laxity on the part of OP officials, OP is entitled to recover basic arrears amount only & cannot be permitted to recover any penalty or interest upon those arrears from Complainant. It is important to note that simple sensible intervention of the responsible higher officials of OP would have settled the present dispute without litigation but in the absence of which, OP public authority was required to face present litigation by sustaining financial burden & wasting resources. Hon Supreme court in the matter “Lucknow Development Authority – Vs.- M.K. Gupta, AIR 1994 Sc 787 (AIR 1994 SC 787”, has recorded following observations. Forum is of the opinion that some observations are squarely applicable in the present matter.
“When the court directs payment of damages or compensation against the State
the ultimate sufferer is the common man. It is the tax payers' money which is paid for inaction of those who are entrusted under the Act to discharge their duties in
accordance with law. It is, therefore, necessary that the Commission when it is satisfied that a complainant is entitled to compensation for harassment or mental agony or
oppression, which finding of course should be recorded carefully on material and convincing circumstances and not lightly, then 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 behaviour by dividing it proportionately where there are more than one functionaries.”
In view of the observations recorded above in Para 7 to 13, we answer above Point No 2 in affirmative & held that OP was grossly deficient in providing services to the Complainant.
AS TO THE POINT NO 3 – (Compensation/Cost to Complainant)
14. It is noticed that Complainant has prayed for issuing directions to recalculate arrears & grant 30 days time to pay, if any amount is due from complainant & to award Compensation of Rs 10000/- & suitable Costs. We agree with complainant. We direct OP to recalculate arrears without levying penalty/interest for the disputed water supply connection provided at Complainant’s residence, from 07.06.2010 to till date by providing appropriate credits for the payments already effected by complainant & also by considering reliefs provided under Abhay yojana 2017. OP should provide all details of calculations to complainant. OP will be entitled to recover amount due, if any, from Complainant after completing calculations.
15. It is evident that indifferent attitude & deficiency in services by OP in the present matter has caused unwarranted hardship to 75 year old Sr. Citizen, Complainant, therefore, we are of the opinion that he is entitled to get compensation of Rs 10000/- from OP. Similarly, Complainant had to pursue present litigation; therefore, he is also entitled to get Costs of Rs 5000/- from OP.
16. Before parting with order, we feel that present dispute could have been easily resolved much earlier by timely intervention of the concerned higher authorities. The loss (interest, penalty, compensation, costs, litigation expenses) suffered by the OP Public authority in the present matter is solely due to careless & insensible working by the local field officials. Financial burden/loss suffered by the authority is ultimately indirect burden on the other consumer/tax payers. Forum has rights & responsibility to protect interests of all the consumers of the State under The Consumer Protection Act 1986, therefore, relying upon the observations recorded by Hon Supreme court judgment in the “Lucknow Development Authority –Vs.- M.K. Gupta, AIR 1994 Sc 787 (AIR 1994 SC 787”), we direct OP to conduct departmental enquiry through competent authority & to recover losses from erring employees by fixing responsibility for causing loss to OP Public authority in the present matter.
17. In view of above reasons, we proceed to pass following order-
ORDER
1) Opposite Party is directed to recalculate arrears without levying penalty/interest for the disputed water supply connection provided at Complainant’s residence from 07.06.2010 till date by providing appropriate credits for payments already effected by complainant & also by considering reliefs provided under Abhay yojana 2017. OP should provide all details of calculations to complainant. OP should provide 30 days time to Complainant to pay amount in case if any amount is due from Complainant after recalculations.
2) Opposite Party is directed to pay Rs 10000/- (Ten Thousand only) to Complainant towards compensation for mental & physical agony.
3) Opposite Party is directed to pay Rs 5000/- (Five Thousand only) to Complainant towards Costs.
4) Opposite Party should conduct departmental enquiry through competent authority as per service regulations to fix up responsibility & to recover losses suffered by the OP Public authority in the present matter from erring employees. Compliance report should be submitted preferably within 6 months.
5) Certified copy of this order be supplied to both the parties.
