SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)

            The Complainant, being the Branch Manager of Kalinga Gramya Bank, Barunasing Branch, has filed this complaint petition, U/s-12 of erstwhile C.P. Act, 1986, (here-in-after called as the “C.P. Act - 1986”), alleging “deficiency-in-service” by the Ops, where OP No.1 is the Junior Engineer, Electrical, Sergarh Section, OP No.2 is the S.D.O (Electrical), NESCO, Nilgiri, OP No.3 is the Executive Engineer, NESCO, CED, Balia, Balasore and OP No.4 is the C.E.O, NESCO, Januganj Golei, Balasore. 

2.         The case of the complainant, in short, is that their Bank is a consumer under the Ops and their Bank used to pay the electric dues as per the bill regularly. The meter supplied by the Ops was out of order from April, 2009 to January, 2011. The complainant has intimated the Ops in several times through registered letters about this matter. In the bill for the month of January, 2010, the bill was received showing outstanding of Rs.10,537.56 paisa out of which the complainant paid Rs.5,000/- on 24.1.2010. Further, a sum of Rs.18,043.43 paisa was outstanding till the month of January, 2011, out of which the complainant paid Rs.10,000/- on 13.1.2011.

            It is further averred that the complainant had intimated the Ops vide letter dated 15.3.2011 to the effect that a sum of Rs.1,716/- has not been accounted for and some errors in computation of their bill for the period from October, 2007 to May, 2008 along with other periods. On 21.3.2011, the complainant paid Rs.5,000/- against the outstanding of Rs.12,105.78 paisa shown in the bill for the month of March, 2011. Similarly, the complainant used to pay the current bill for the month of March, 2011 amounting to Rs.1833/- on 30.4.2011, Rs.1205/- on 30.5.2011 for the bill for the month of April, 2011.

            The further case of the complainant is that without paying any heed to their letter dated 15.3.2011, Ops have illegally disconnected the power supply to the Bank without any prior notice and left the Bank in dark for which customers could not make any transaction with their account. On being demand, agitated by the customers, OP No.1 restored the power supply at about 4.30 PM; by that time the complainant could not extend any service to the customers. Some customers have left their Bank. For such whimsical act of the Ops, the Bank suffered a financial loss of Rs.10,00,000/-.

            It is further averred that OP No.2 admitted in the letter No.809 dated 3.9.2011 to have withdrawn an amount of Rs.4240.49 paisa from their bill as complained by the Bank, then why the Ops disconnected the power supply on 20.6.2011 without serving any notice to the Bank. In spite of that, the complainant had also deposited the bill for the month of June, 2011.

            Lastly, the complainant has averred that the OP No.1 in connivance with other Ops lodged one FIR in the Energy PS, Balasore alleging that the complainant has connected the power supply from electric pole. Such allegation of the Ops was totally a false one and only with a view to get rid from deficiency in service, the Ops have foisted the above false case. For this type of overt act of the Ops, not only the Bank suffers from financial loss, but also lost its reputation in the locality.      

            The cause of action arose for filing of this case on 20.6.2011, when the Ops disconnected the power supply to the complainant-Bank. Therefore, the complainant was constrained to file the present case. Hence, this case.

            To substantiate its case, the complainant relied upon the following documents, which are placed in the record-

1. Photocopy of letter dated 18.9.2011.
2. Photocopy of letter No.809 dated 3.9.2011 of the Ops for revision of electric bill.
3. Photocopy of letter No.92 dated 4.1.2011 of the Regional Manager of complainant Bank.
4. Photocopy of receipts of payment.
5. Photocopy of letter dated 16.8.2011 of Dy. Manager, Electrical to complainant Bank.
6. Photocopy of letter dated 25.7.2011 of Bank to S.D.O., Electrical, Nilgiri.
7. Photocopy of letter of Bank to CEO, NESCO.
8. Photocopy of letter to Collector & DM.
9. Photocopy of A.D. of registered letter.
10. Photocopy of letter dated 15.3.2011 of Bank to S.D.O., Electrical, Nilgiri.
11. Photocopy of FIR dated 20.6.2011 lodged by the Bank before Khantapada PS.
12. Photocopy of letter dated 4.4.2011 of the Bank to R.M., Balasore.
13. Photocopy of receipts in token of sending of letters to S.E., NESCO and SDO, Elect, Nilgiri.
14. Photocopy of letter of Bank to R.M., Balasore.
15. Photocopy of the Bank to Executive Engineer, Electrical, Balasore.
16. Photocopy of letter of Executive Engineer, Electrical, Balasore to the Bank.
17. Photocopy of letter of the Bank to Executive Engineer, Electrical, Balasore.
18. Photocopy of letter of the Bank to Executive Engineer, Electrical, Balasore.
19. Photocopy of letter dated 4.7.2011 of Bank to CEO, NESCO, Balasore.

3.         After receipt of notice, OP No.1 & 4 remained absent for which they were set ex parte whereas OP No.2 & 3 made their appearance and filed their joint written version challenging the maintainability of the case and cause of action for filing the case. They have specifically challenged that the complainant Bank is a commercial consumer, so the complaint petition is not maintainable. They have stated, inter alia, that the complainant-Bank is a consumer under commercial category bearing No.BG-59201. The Bank is a regular defaulter. The meter installed in the premises was out of order from April, 2009 and for non-availability of meter, the meter could not be replaced and in January, 2011 one new meter has been replaced. Thus, the bill for the defective period i.e. from 4/2009 to 12.2010 has been prepared as per regulation of average/load factor basis @ 216 units per month and thereafter bill has been prepared as per consumption. When the complainant Bank has not cleared up the arrear dues, disconnection notice has been served in the bill of each month, thus, separate disconnection notice is not required. So, disconnection of power supply on 20.6.2011 is not illegal.

4.       These contesting Ops have further stated that after disconnection, without making any payment against the arrear dues, the complainant Bank forcibly reconnected power supply at their own arrangement without the knowledge of the Ops for which OP No.1 has lodged FIR on 23.6.2011. Therefore, there is no deficiency of service on the part of the Ops. Therefore, the present Ops have prayed to dismiss the case with cost.

To substantiate their case, the contesting Ops relied upon the following documents, which are placed in the record-

1.                   Photocopy of extract from Disconnection Register.

5.         In view of the above averments of parties, the points for determination in this case are as follows:-

(i)         Whether the complainant is a consumer, as required under C.P. Act?

(ii)         Whether the complainant has cause of action to file this case?

(iii)        Whether this consumer case is maintainable?

(iv)        Whether there is any deficiency in service on the part of the OPs?

(v)        Whether the complainant is entitled to get the relief, as sought for?

(vi)        To what other relief(s), the Complainant is entitled to? 

F  I  N  D  I  N  G  S

6.         So far as point No.(i) is concerned, it is the case of the complainant Bank that their Bank is a customer under the Ops bearing Consumer No. BG-59201. On the other hand, the Ops have not disputed that the complainant Bank is not a consumer under them. Thus, it is held that the complainant is a bonafide consumer, as required under the provisions of C.P. Act.

7.         As regards the Point No.(ii), it is to be seen how far the complainant Bank is satisfied this Commission about the maintainability of the case. No doubt the complainant was supplied with electric connection in commercial category, but it cannot be said that the complainant is a commercial establishment and use the power supply for the commercial purpose. Commercial connection is not always be estimated as commercial consumer. Here, in this case the complainant is none other than a Bank and not comes under any kind of small scale industry or large scale industry who deals with import and exports, rather, the functions of the Bank is to render service to the general public, keeps deposits of them for growing interest on it and also issue drafts, fixed deposits for the benefit of the customers under the guidelines of the Reserve Bank of India.

8.         On the other hand, learned counsel for the contesting Ops submitted that the complainant Bank is a commercial consumer and this Commission has no jurisdiction to sit over the matter. Add to it, it is further submitted that the complainant Bank has committed theft of electric energy for which an FIR has been lodged before the Energy Police Station, Balasore. So, the complainant is not at all maintainable before this Commission.

9.         From the above rival submissions, it is clear that the Ops have challenged that the complainant is a commercial consumer. In this connection, burden of proof shifts on the Ops to establish the contrary. This has to be discharged by adducing counter evidence relating to the financial circumstances, etc. of the complainant Bank, the nature and volume of the business proposed to be transacted by the complainant Bank as may be adjudged by proof of the number of machines and other equipment that have been purchased or intended for the said business. In this connection, not a single document is produced on behalf of the Ops to satisfy this Commission that the complainant Bank is a commercial consumer who sales of the electricity to any other establishment or person to earn profit. In the case of Laxmi Engineering Works v. PSG Industrial Institute, the Hon’ble Apex Court did not accept the view repeatedly taken by the National Commission that where a person bought goods with a view of using it for carrying on a largescale for earning profit, it was to be treated as for commercial purpose. The Hon’ble Apex Court held, “The Explanation reduces the question what is ‘commercial purpose’ to a question of fact to be decided on the facts of each case.

            Further, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal No.159 of 2004 (M.s Harsolia Motors v. M/s National Insurance Co. Ltd), First Appeal No.160 of 2004 (M/s Diwakar Goiram Porkhayat v. M/s National Insurance Co. Ltd), and First Appeal No.161 of 2004 (M/s Tractor House v. M/s National Insurance Co. Ltd) have been pleased to observe that –

                 “It is apparent that even taking wide meaning of the words for any commercial purpose it would mean that, goods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose.”

            In the said case laws, Hon’ble National Consumer Disputes Redressal Commission have been pleased to observed further that –

“If the goods are purchased for resale or for commercial purpose then such consumer would be excluded from the coverage of Consumer Protection Act, 1986. Such illustration could be that a manufacturer who is producing one product ‘A’, for such production he may be required to purchase articles, which may be raw-material, then purchase of such articles would be for commercial purpose. As against this, the same manufacturer if he purchases a refrigerator, a television or an air-conditioner for his use at his residence or even in his office, it cannot be held to be for commercial purpose and for this purpose he is entitled to approach the consumer forum under the Act.”

             Here, in this case, the complainant Bank has hired electric energy from the Ops not for resale but for using fans, lights and computers for themselves in office and not at all for commercial purpose. That apart, the complainant Bank is a public sector bank wholly owned by the Government and its aim is not profit but social obligation.

10.        Learned counsel for the contesting Ops further argued that a case U/s 126 of the I. E. Act has already been initiated against the complainant Bank. So, this Commission has no jurisdiction to try the matter. In this connection, not a single document is produced before this Commission to prove if any case under the said provision of Law has been initiated against the complainant Bank. But in the written version, the present Ops have stated that on being detected the forcible reconnection, FIR has been lodged on 23.6.2011. Neither the copy of FIR nor any police papers regarding progress of the matter and its finality have been produced before this Commission to satisfy that actually one FIR has been lodged against the complainant Bank on the alleged date. On the other hand, Annexure-11 shows that on 20.6.2011, the complainant Bank has lodged an FIR against the OP No.1 to the effect that he has disconnected the power supply to the Bank premises according to his sweet will and without following the guidelines. Therefore, it is held that the Ops have lodged the FIR on 23.6.2011, after lodging of FIR by the complainant Bank, with intent to escape from the legal liabilities and lodging of FIR by the Ops subsequent to the lodging of FIR by the complainant Bank is nothing but an afterthought.  That apart, in this case no spot verification is made nor has any assessment order been passed. So, on the basis of bald statement that this case comes under the purview of Section 126 of I.E. Act and not supported with any documentary evidence, it cannot said that the case hit under the provisions of Section 126 of I.E. Act.      

             From the above discussions, this Commissions is of the opinion that the complaint of the complaint Bank is maintainable before this Commission.

11.        To arrive at a conclusion as to whether the deficiency in service, if any, on the part of the Ops is attributed or not, it is to be wise to verify the documents produced on behalf of the complainant Bank. Annexure-10, letter dated 15.3.2011 shows that the complainant Bank has informed the OP No.2 for revision of the electricity. It has been reflected from the said letter that the Bank has paid Rs.10,000/- on 1.2.2011, Rs.1,716/- on 16.5.2001, Rs.292.35 on 20.6.2002. Apart from it, it has been requested for replacement of the meter which was found defective, the bill for August & September, 2003 was found erroneous reading of 2333 against 2312, but the amount has not been rectified. Similarly, the bill for October-November, 2003 was showing reading of 2502 against actual of 2397 which was not rectified till date. The bill amount for June-July, 2006 was faulty. The bill for October-November, 2007 to April-May, 2008 were faulty. The bills for April-May, 2009 to December, 2010 are defective. Annexure-4 series shows itself that the complainant Bank has made payment of Rs.5,000/- on 30.1.2010, Rs.10,000/- on 31.1.2011, Rs.5,000/- on 21.3.2011, Rs.1,205/- on 30.5.2011, Rs.1,833/- on 30.4.2011, Rs.5,000/- on 31.3.2011. Further, it is seen from the bill for the month of November, 2010, the bill amount was Rs.18,822/- out of which Rs.10,000/- was paid on 1.2.2011, from the bill amount of Rs.12,083/- for the month of February, 2011, Rs.5,000/- was paid on 4.4.2011, from the bill amount of Rs.8,881/- for the month of March, 2011, Rs.1833/- was paid on 30.4.2011, from the bill amount of Rs.8,230/- for the month of April, 2011, Rs.1205/- was paid on 30.5.2011. From the above, it can safely be said that the complainant Bank has regularly paid less than the electricity dues to the Ops and the reason best known to them. As the Ops have not rectified the bill amount in the current bills, the letter vide Annexure-10 & 15 to 19 have been issued in favour of the Ops for rectification of the outstanding amount in the electric bills. The commission feels that the complaint has been regularly paying less amounts than the billing amounts

12.        As per Regulation 100 of OERC Distribution (Conditions of Supply) Code, 2004, where a consumer neglects to pay the charges or any other amounts due from him to the licensee, by the due date mentioned in the bill, in respect of supply of energy to him, the License shall serve a 15 clear days notice to the consumer for disconnection of power supply.

             As discussed in the foregoing paragraphs, it is made out that the complainant Bank has paid some amount out of the outstanding dues and also regularly paid the current bill amount and intimated the Ops about rectification of the bill amount vide Annexure-10 & 15 to 19. At this juncture, a question crepts in the mind of the Commission as to whether the Ops have registered the complaint lodged by the complainant Bank regarding rectification of the energy bill and change of meter. The Ops are silent with regard to the registration of the complaint made by the Bank. The above complaint was made on 15.3.2011, but the Ops did not take any step to replace the meter within the stipulated period prescribed by the OERC at the same time they have admitted that the meter was not installed due to non-availability of meter in time . Similarly, the Ops have also not taken any step within the prescribed period to rectify the bill amount.

13.        Annexure-2, the letter No.809 dated 3.9.2011 issued by the Deputy Manager (Electrical), Nilgiri Sub-Division, shows that the Ops have taken initiative for adjustment of the amount already paid by the Bank and final bill prepared for the month of June, 2011 @ Rs.11,032.83 paisa. But from Annexure-A, produced on behalf of the Ops, it is seen that only Rs.8,230/- was outstanding as on 20.6.2011. However, on receipt of the said letter, the complainant Bank issued Annexure-1 in favour of OP No.3 in the form of appeal against the adjustment made by the SDO, Nilgiri vide Annexure-2. On receipt of Annexure-1, the Ops remained silent even not taken any step as yet, as record shows.

14.        From the above, it is clear that since 15.3.2011 and prior to it there has been dispute regarding rectification of the bill amount and changing of meter. Whether the meter has been changed or nor, both parties are silent. But the fact remaining that rectification of the bill amount was so decided by the Ops on 3.9.2011. Since 15.3.2011 to 3.9.2011, the Ops have consumed 5 months and 19 days time for rectification of the bill amount. In the midst of the said period i.e. on 20.6.2011, the power supply, as admitted by both parties, said to have been disconnected, that too when the complaint dated 15.3.2011 of the complainant Bank is pending before the Ops for consideration.

15.        It is argued by the learned counsel for the Ops that in the energy bill for the month of February, March, April, May, 2011, disconnection notice was sent to the complainant Bank and the Bank ignored it intentionally. Notice should be served for disconnection of power supply by filling up the details, as required under the OERC Rules. So, the disconnection notices are treated as notice for disconnection of power supply. Thus, the Ops have not failed to satisfy this Commission for sufficient and just cause for disconnection of the power supply to the establishment of the complainant. Therefore, disconnection of power supply to the establishment of the complainant is not intentional and with just cause. From the above discussions, it is held that it is not a clear case of deficiency in service is established against the Ops.

16.        Coming to the point of compensation. It is stated by the complainant Bank that the Ops have illegally disconnected the power supply to the Bank without any prior notice and left the Bank in dark, for which customers could not make any transaction with their account and by the time of restoration of power supply at about 4.30 PM, the Bank could not extend any service to the customers for which some customers have left their Bank. It is further stated that OP No.2 admitted in their letter No.809 dated 3.9.2011 to have withdrawn an amount of Rs.4240.49 paisa from the bill as complained by the Bank, then why the Ops disconnected the power supply on 20.6.2011, that too without serving any notice to the Bank, which is a public sector organization. In spite of that, the complainant had also deposited the bill for the month of June, 2011. For such whimsical act of the Ops, the Bank suffered a financial loss of Rs.6,00,000/-. Here one question arises if power supply is disconnected to the bank for few hours and the bank incurred a loss of Rs.6,00,000/- than it should have power back up system in place. From the discussions made in the foregoing paragraphs, when it has already been held that the Ops are not held liable for deficiency in service. As regards to  rectification of bills the commission relies on the judgment of Hon’ble High Court of Odisha in W.P.(C) No.1704 of 2020,  where it was held that the the grievance redressal forum as per Section 42(5) of the Electricity Act, 2003 is the appropriate authority to approach for the disputes related to meter and billing . So, The complainant is directed to approach the grievance redressal forum as per Section 42(5) of the Electricity Act, 2003.

             Hence, it is ordered –

O   R   D   E   R

             In the result, the complaint is dismissed on contest against the O.Ps No.2 & 3 and on exparte against the O.Ps No.1 & 4 without any cost.

             Pronounced in the open Court of this Commission on this day i.e. the 19^th day of February, 2024 given under my Signature & Seal of the commission.