Date of Hearing the 4th Day of November, 2015
Date of Judgment Wednesday, the 18th Day of November, 2015
JUDGMENT
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) is at the behest of the Opposite Party to impeach the Final Order dated 07.05.2015 passed by the Ld. District Consumer Disputes Redressal Forum, Uttar Dinajpur at Raiganj (For short, Ld. District Forum) in Consumer Complaint No.01 of 2014.
The Respondents herein being Complainant initiated the the Consumer Complaint under Section 12 of the Act alleging that he is a bonafide Consumer under the Opposite Party having a domestic electric service connection being Consumer ID No.432065405. He was regularly depositing his electrical consumption bills from the inception of service connection which is in existence for about 30 years. Surprisingly, on and from January, 2005 his consumer category was arbitrary changed by the Opposite Party from domestic category to commercial category and accordingly, bills were raised by the Opposite Party as per commercial unit rate. The Complainant duly informed the matter to the Opposite Party but the Opposite Party did not take care and charges commercial unit rate till January, 2013. Hence, the Complaint for getting back the entire excess amount on and from January, 2005 to January, 2013, to pay a sum of Rs.1,00,000/- as compensation for mental pain and harassment and also a further sum of Rs.5,000/- as litigation cost with interest.
The Opposite Party by filing a Written Version has disputed the claim by stating that the Consumer Complaint is not maintainable as it is barred by limitation. It is further been stated that the Complainant had been running a laundry by using electric connection from his domestic meter. According to Opposite Party, since there is no deficiency in service on the part of them, the Petition of Complaint should be dismissed with costs.
Both the Parties have adduced oral as well as documentary evidence and on perusal of those and having heard the Ld. Advocates appearing for the Parties Ld. District Forum allowed the Complaint in part on contest without costs directing the Opposite Party to refund the excess amount of bills for the period from January, 2005 to January, 2013 of the electric connection of the Complainant together with 9 per cent interest thereon from the date of payment of excess amount till realisation, to pay Rs.10,000/- as compensation for harassment and mental agony etc. and also to pay Rs.2,000/- as litigation costs which prompted the Opposite Party to prefer this appeal.
We have scrutinized the materials on record and considered the submissions advanced by the Ld. Advocates appearing for the Parties.
Upon hearing Ld. Advocates appearing for the Parties and on going through the materials on record it emerges that the Complainant had an electric connection at his residence lying and situated at N.S. Road, Raiganj, Uttar Dinajpur for domestic purpose being Consumer ID No.432065405. However, on and from month of January, 2005 the consumer category of the Complainant was changed by the Opposite Party from, ‘A (DM-U) to A (CM-U)’ and accordingly, bills were raised by the Opposite Party as per commercial unit rate. Needless to mention, that the rate of domestic unit is much less than commercial unit rate.
It has been alleged by the Opposite Party that the Complainant was running laundry business using electric connection from his domestic meter and as such, they were compelled to change the category of unit consumption and consequently, the bills were raised. In support of such contention, the Opposite Party have failed to substantiate before Ld. District Forum that the laundry business was going by using electric connection from the domestic meter of the Complainant. When the Complainant has denied the same certainly the Opposite Party cannot absolve their responsibility in proving the same.
There is no evidence whatsoever to show that on the basis of what the Opposite Party has converted the electric connection of the Complainant from the domestic unit to commercial unit.
Mr. Alok Mukherjee, Ld. Advocate for the Appellant has submitted that as per Electricity Act, 2003 and regulations thereunder all billing disputes are to be referred to CGRO/RGRO first and in case of any dissatisfaction about the Order of such authority any of the parties being aggrieved may prefer an appeal before OMBUDSMAN taking recourse to the Electricity Act and the Consumer Court has no jurisdiction to entertain the same in accordance with the provisions of the Act. On the other hand, Mr. Subrata De, Ld. Advocate appearing on behalf of the Respondents has placed reliance to a decision of Supreme Court of India in connection with IJP Power Corporation Ltd. and Ors. – Vs. – Anis Ahmed (AIR 2013 SC 2766). The reported decision indicates that the question arose before the Hon’ble Apex Court whether the Consumer Forum has jurisdiction to entertain the Complaint filed by a Consumer against the assessment made u/s. 126 of the Electricity Act, 2003 or action taken under Sections 135 to 140 of the Electricity Act, 2003.
In the paragraph 47 of the referred Judgment the Hon’ble Apex Court has held –
(i) In case of inconsistency between the Electricity Act, 2003 and the Consumer Protection Act, 1986, the provisions of the Consumer Protection Act will prevail, but ipso facto it will not vest Consumer Forum with the power to redress any dispute with regard to the matters which do not come within the meaning of ‘Service’ as defined u/s. 2(1)(o) or ‘Complaint’ as defined u/s. 2(1)(c) of the Consumer Protection Act, 1986;
(ii) A ‘Complaint’ against assessment made by assessing officer u/s.126 or against the offences committed under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before the Consumer Forum;
(iii) 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’ u/s. 2(1)(d) of the Consumer Protection Act, 1986 but it is limited for the dispute including charge the price in excess of the price fixed by or under any law.
Taking into the consideration the submissions advanced by the Ld. Advocates for the respective Parties and relying upon the authorities mentioned above the submission raised on behalf of the Appellant appears to have no force at all.
Ld. Advocate for the Appellant has also seriously challenged the maintainability of the proceeding on the ground that it was time barred. The written argument filed on behalf of the Opposite Party before Ld. District Forum wherein it has been categorically stated that the Consumption category as alleged by the Complainant was changed for the first time in the year 2005 and as such, the cause of action arose in the month of January, 2005 but the Consumer Complaint has been filed in the year 2014 after a long delay of 9 years from the date of accrual of cause of action and which is contrary to the provisions of Section 24A of the Act and as there was no application for condonation of delay, in accordance with Section 24A (2) of the Act, the Petition of Complaint should be dismissed.
Now, in the Petition of Complaint the Complainant did not spell out anything as to cause of action. In the Order, Ld. District Forum has observed – ‘in the Written Argument the Opposite Party raises question of limitation but in the instant case from the date of cause of action the Complainant raised verbal objection, written objection and objection through legal notice up to the date on 03.10.2013 which amounts continuing cause of action as per law the cause of action’.
In order to ascertain the actual state of affairs, it would be pertinent to reproduce the provisions of Section 24A of the Act which runs as follows:-
‘Limitation period –
(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.’
The language of Section 24A(1) of the Act emphasis the words ‘shall not admit the complaint’ indicates legislative mandate to the consumer court to examine on its own whether the complainant has been filed within the prescribed period of limitation and if it is not filed within 2(two) years from the date of accrual of cause of action, sufficient cause has to be shown for condonation of such delay. Admittedly, the Complainants did not file any application u/s. 24A (2) of the Act for condonation of delay.
Though Ld. Advocate for the Appellant did not refer any decision in this regard but we think for the purpose of ascertaining the actual position of law, it would be profitable to refer the decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi reported in 2014 (4) CPR 255 (NC) (The Assistant General Manager, Reserve Bank of India – Vs. – Karumu Subba Reddy). Paragraph 18 of the said Judgment runs as follows, – ‘It is well settled that by serving the legal notice or by making representation, the period of limitation cannot be extended by the respondent. In this context, reference can be made to Kandimalla Raghavaiah & Co. (supra), in which it has been held:
‘By no stretch of imagination, it can be said that Insurance Company’s reply dated 21st March, 1996 to the legal notice dated 4th January, 1996, declining to issue the forms for preferring a claim after a lapse of more than four years of the date of fire, resulted in extending the period of limitation for the purpose of Section 24A of the Act. We have no hesitation in holding that the complaint filed on 24th October, 1997 and that too without an application for condonation of delay was manifestly barred by limitation and the Commission was justified in dismissing it on that short ground.’
In facts and circumstances of the case indicate that the Opposite Party has converted the electric meter from domestic unit to commercial unit long back in January, 2005. The Complainant did not take any measure for redressal of his grievances by way of any legal action before any authority whatsoever. The explanation advanced by the Complainant that had there been any objection on the part of them there was possibility for disconnection of the electric connection is not at all a well reasoned excuse. The Complainant had sufficient scope to highlight his grievances before the appropriate authority about the illegal action of the Opposite Party and masterly inactivity on the part of the Complainant in this regard is a clear dent to their own case in as much as provision of Section 24A of the Act is mandatory and peremptory and mandatory in nature. Had there been any reply against the legal notice issued by the Complainant, the cause of action would have been accrued therefrom. But a mere legal notice without any reply does not absolve the responsibility of the Complainant to initiate Consumer Complaint in accordance with Section 24A of the Act. Admittedly, the Complainant did not file any application u/s. 24A (2) of the Act for condonation of delay. The reason given by the Ld. District Forum is totally against the spirit and mandate of the legislature. In other words, the Consumer Complaint filed before the Ld. District Forum was hopelessly barred by limitation. Therefore, Ld. District Forum has committed a grave error and irregularity in entertaining the Consumer Complaint itself on the ground as it is not maintainable being time barred.
For the reasons aforesaid, we allow the instant appeal by setting aside the impugned Final Order passed by the Ld. District Forum.
Accordingly, the Consumer Complaint filed on behalf of the Respondent before the Ld. District Consumer Disputes Redressal Forum, Uttar Dinajpur at Raiganj stands dismissed being barred by limitation. However, we do not make any order as to costs.
