BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 12 of 2016

Date of Institution: 04.1.2016

Date of Decision: 05.07.2016  

Smt.Gurmit Kaur wife of late Amlook Singh Ex.W72, son of Piara Singh resident of H.No. 498-C, B-Block, Railway Colony, Amritsar

Complainant

Versus

Senior Section Engineer, NorthernRailway Electric Power, Amritsar

Opposite Party

Complaint under section 12 and 13 of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant: Sh.Rahul Sabharwal, Advocate

              For Opposite Party   : Sh.P.K.Mody,Advocate

Coram

Sh.S.S.Panesar, President

Ms.Kulwant Kaur Bajwa, Member

Mr.Anoop Sharma, Member  

Order dictated by:

Sh.S.S. Panesar, President.

1.       Smt. Gurmit Kaur has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that Amlook Singh son of Piara Singh was Railway Employee having employee code W-72 and was in grade Technician-I at Amritsar. Amlook Singh was allotted a railway quarter No. 498-C in B-Block, Railway Colony, Amritsar by the railway authorities. Unfortunately Amlook Singh, husband of the complainant died on 20.4.2015 and after his death the complainant has retained the possession of the government quarter with due permission of the railway authorities, thus she is in lawful possession of the said quarter. The electricity supplied to the railway quarters which are occupied by its employees, by the opposite party and opposite party used to deduct electricity charges from the salary of the employees. Salary slips for the period Feb,2014 to October 2014 are annexed herewith. Vide these salary slips, opposite party used to charge Rs. 2200/- per month for the electricity consumed. However w.e.f. April 2014 to October 2014, the opposite party had charged Rs. 3411/- per month for the electricity consumed by the complainant. Thereafter also the electricity bills were being charged at the rate of Rs. 3411/- per month. Salary slips of this period are not traced out due to death of the husband of the complainant. As such , the complainant is the consumer of opposite party and  has to invoke the provisions of the Consumer Protection Act. Opposite party  issued  an electricity bill for the period 1.4.2015 to 16.10.2015 of Rs. 39,287/- at the rate of Rs. 5500/- per month without explaining  the electricity units consumed by the complainant and without disclosing the rates of electricity charges per unit. No method of calculation  of electricity charges @ Rs. 5500/-  per month has been given by the opposite party. Copy of bill/demand notice is attached. The complainant approached the opposite party in their office  but on threat of disconnection of electricity, they received a sum of Rs. 39,287/- from the complainant, but failed to give details of electricity units consumed during  the period and the rate of per unit of electricity charges . The opposite party has charged Rs. 5500/- per month at flat rate  without considering/bifurcating the summer and winter seasons during the said period. Thus  the demand of Rs. 39287/- is arbitrary, illegal and unlawful and liable to be set-aside. The complainant has sought the reliefs that  the excess amount charged and recovered for the electricity consumed by the complainant for the period 1.4.2015 to 16.10.2015 over and above the rate of Rs. 3411/- per month as earlier charges may be ordered to be refunded back to the complainant with interest  @ 12% p.a. to the complainant. Opposite party be also directed to pay compensation to the tune of Rs. 10000/- for deficiency in service, unfair trade practice , harassment and mental tension to the complainant besides cost of the complaint. Hence, this complaint.

2.       Upon notice opposite party contested the complaint by filing written reply taking certain preliminary objections therein inter alia that the complainant is not covered under the definition of consumer as per Consumer Protection Act and the   complaint, as such, is not maintainable ; that there are disputed and complicated questions of facts and law involved as per allegations contained in the complaint, the same cannot be adjudged by this Forum and requires adjudication from the Civil court, the complaint, as such, is not maintainable before the Consumer Forum and the same may be dismissed ; that the present complaint is false and malafide and as such is not maintainable ; that this Forum has got no jurisdiction to try and entertain the present complaint in view  of the peculiar facts and circumstances, which are material as the complainant herself is neither an employee of the railway department nor she herself carries right title or interest to occupy the railway accommodation  in her individual capacity after the demise of her husband. The husband of the complainant as per the averments in the complaint itself died on 20.4.2015 and after his death the railway accommodation since  was to be vacated by the complainant soon thereafter  as per service rules applicable for entitlement of official accommodation being an employee of the railway. The facts otherwise have not been correctly mentioned by the complainant in the complaint regarding charging of the electricity charges so consumed in the official accommodation through electricity connection with electric meter  specifically provided for the particular accommodation. As per railway circular the electricity department of the railway is to record the electricity  consumption every six months i.e. the reading based on Ist of March and Ist of September  in every year respectively as per standing order No. 54 of the railways department. The bills for consumption  recorded for previous six months are to be realized with average  charges on monthly basis for the beneficiary employee on month to month basis. Accordingly, the bills for the charges of electric consumption were issued on the basis of actual consumption so recorded in the aforesaid manner for the previous six months on Ist of March and Ist of September respectively  every year. After the demise of Amlook Singh, the husband of the complainant the railway accommodation since was vacated on 16/11/2015 by the complainant which infact was allotted in the name of her deceased husband. As such at the time of vacation of accommodation by the complainant,  the railway authorities were to finalize the final settlement of service benefit as payable in lieu of the service of deceased husband of the complainant and  the uptodate electricity dues w.e.f. 1.4.2015 to 16.11.2015 for Rs. 39287/- under the circumstances was to be recovered in total and not on average basis calculation on monthly basis. The electric consumption  for 5557 electric units for the period from 1.4.2015 to 16.11.2015 for Rs. 39287/- as per railway circular has correctly been demanded which is legally recoverable by the railways from the user of the electric connection concerned. The instant complaint in these circumstances is not maintainable being an abuse of the process of law and courts. The same as such, deserves dismissal ; that there is no privities of contract between complainant and the railways. The complainant in the circumstances is not covered under the definition of consumer as per provisions of law. The complaint, as such deserves dismissal ; that even otherwise the instant complaint against the answering opposite party, who is  merely an employee of Northern  Railway and is discharging his official duties and functions in his official capacity cannot be sued by means of present complaint. It is the concerned railways through its General Manager of the Zonal Railways as per provisions of CPC alone can be sued and no official or officer in its individual capacity can be sued before any court of law or Forum. Even a prior notice of two months is mandatory requirement before filing any proceedings against the railways to be served through its General Manager as per the statutory provisiosn of the law, in the absence whereof no proceedings can be initiated against the railways or its officers. In the instant case no such prior notice has either been served prior to filing of the present complaint, as such complaint as framed is not maintainable ; that complainant has not come to the Forum with clean hands. The complainant is guilty of concealing the material and true information from this Forum and therefore, the complaint is liable to be dismissed ; that complaint deserves dismissal being not maintainable and being without cause of action even otherwise, the accrual of the cause of action has falsely stated with malafide intention with a view to file a baseless and frivolous complaint. On merits facts narrated in the complaint have been specifically denied and  a prayer for dismissal of the complaint with cost was made.

3.       In his bid to prove the case Sh. Rahul Sabharwal,Adv.counsel for the complainant tendered affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-5 and closed the evidence on behalf of the complainant.

4.       To rebut the aforesaid evidence Sh.P.K.Mody,Adv.counsel for opposite party tendered affidavit of Sh. Deepak Kumar, SSE Ex.OP1/A, copy of statement of billing Ex.OP1 & Ex.OP2, copy of standing order No. 54 Ex.OP3, copy of letter dated 16.11.2015 Ex.OP4, copy of work order Ex.OP5 and closed the evidence on behalf of opposite party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file.

6.       From the appraisal of the evidence on record, it becomes evident that the instant complaint is not maintainable. The complainant has already deposited Rs. 39287/- regarding consumption of electricity pertaining to the electricity connection in dispute to the opposite party, as per circular No. 54 of the railways department, copy whereof is Ex.OP/3. The complaint as framed is not maintainable because the complainant  has not arrayed General Manager of Northern Railways rather she has chosen to array Sr. Section Engineer,Norther Railway Electric Power, Amritsar as opposite party, who is not a competent person. No prior notice under section 80 of the CPC has been issued before initiating the present proceedings against the railways. The complaint filed without service of requisite prior statutory notice is also bad in law. The complainant has raised complicated questions of law and facts vide instant complaint which cannot be adjudicated  in a summary manner because  that require a lot of evidence as well as cross examination of the witnesses at length which is not permissible in summary proceedings. Moreover, instant case relates to settlement of accounts, which is also not entertainable by the District Forum . We draw support in this connection from Ashok Leyland Finance Limited Vs. Himanshu S.Thumar 2005(II) CPJ page 92 , wherein the Hon’ble Gujarat State Consumer Disputes Redressal Commission, Ahmedabad  has  held that account dispute is not a consumer dispute and the complaint should not have been entertained by the  District Consumer Forum.

7.       From the aforesaid discussion, it transpires that instant complaint is not maintainable before this Forum. Consequently instant complaint fails and the same is dismissed accordingly. However, the parties, if so desire , may approach the Civil Court for adjudication of the matter in accordance with law. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated : 5.7.2016

/R/