DATE OF DISPOSAL: 12.12.2023

PER:   SMT. SARITRI PATTANAIK, MEMBER (W)

            The fact of the case in brief is that the complainant has filed this Consumer Complaint Under Section 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the Opposite Parties  (in short O.Ps.) and for redressal of his  grievance before this Commission.

2. The complainant is a bonafied consumer of south co, Chhatrapur since long. He has been paying the electric bill amount every month regularly. He has a domestic electric connection in his house bearing consumer No. 2111.0143-2175 and meter No. 01033284. In the month of May 2017 the electric department (SOUTHCO) suddenly inspected his house and levied an amount of Rs,.43,764/- showing the cause of slow running of meter of the complainant. The meter is in O.K. condition and it is not tampered by the complainant.  So the complainant raised a protest against the levied amount and filed a consumer case. The S.D.O Electrical Sub-Division, Chhatrapur sent disconnection notice U/S-56(1) of Electricity Act 2003 & Regulation 171(1) laid in chapter XII of OERC supply code 2019 claiming the clearance of above mentioned arrear amount in spite of regular payment of monthly electric bills by the complainant. The complainant get current bill for Rs.1000/- usually to a maximum of Rs.1673/-. If the electric meter is not functioning properly, department can replace his meter but without any intimation they issued a huge amount which was non tolerable. Hence the complainant prayed to rectify the bill amount, meter and actual bill amount be issued, compensation of Rs.10,000/- and litigation costs of Rs.3000/- in the best interest of justice.

3. The Commission admitting the case issued notice to the opposite parties. Duly acknowledging the notice, the opposite parties appeared and filed their written version through their Advocate.

4. The O.Ps stated in their written version that meter installed in the premises of the consumer was inspected on 8.2.2017 by the experts of SOUTHCO i.e. Asst. Executive Engineer, Vigilance & Enforcement Cell, Southco, Berhampur and during course of inspection it is detected that the meter of the consumer is tampered for which the meter was running slow by (-)56.05% and the consumer was  availing power supply though a tampered meter unauthorisedly.  After the inspection, provisional assessment order U/S 126 (2) of the Electricity Act, 2003 is passed by the Assessing Officer on 21.2.2017 and calling upon the consumer vide letter dated 21.2.2017 to file his objection against the provisional assessment order within seven days from the receipt of the letter and further asked the consumer to appear before the assessing officer for an opportunity of being heard on 10.03.2017 at about 12.00 P.M. Due to such unauthorized use of electricity by the consumer, it is provisionally assessed the liability of the consumer to the extent of Rs.44,704/-. The initiation of the proceeding Under Section 126 (2) of the Electricity Act initiated against the consumer/complainant is not disclosed in the complaint petition mischievously in order to admission of the complaint petition before this Hon’ble Forum. In view of the proceeding U/S 126 of the Electricity Act, the consumer or the aggrieved person as the case may be shall have to await till the final assessment ordered and thereafter only the consumer shall have to file Appeal before the Appellate authority to challenge the order, but such dispute cannot be agitated before any court of law, Forum or any authority in view of jurisdiction bared defined in the Electricity Act, 2003. In the instants case the complainant has not mentioned the earlier proceeding as stated above and the present proceeding cannot be treated as an erroneous bill. This Hon’ble Forum has got no jurisdiction to entertain the present dispute in view of Section-145 of the Electricity Act, 2003. The proceeding is bad for non-joinder of necessary parties as the complainant has not made the Assessing Officer i.e. Asst. Executive Engineer (Vig.) Berhampur as a necessary party to the present proceeding.Hence the O.Ps prayed to dismiss the case with cost in the interest of justice.

5. On the date of hearing the advocates for both the parties are present. We perused the complaint petition, written version and written argument and the materials placed on it and have also thoughtfully considered the same in interest of the justice. The inspecting officer of the opposite parties inspected meter installed in the premises of the complainant and found that the box seal of the meter is intact and whereas the meter has been running slow by (-) 56.05% and stated at cl. 9 of the inspection report dated:08.02.2017 bearing no.896/sl.no.44791 that, ‘meter found slow by 56.06%. S/c wire to be changed and meter to be changed’. The inspecting officer instead of taking any tangible steps to replace the said meter left it as it position to use by the complainant. But the inspecting officer did not reflect any reasons ‘why meter needs to be changed?’ in the said ‘Details of single phase meter inspection and load census’ report dated:08.02.2017. For which the inspecting officer instead of remove the meter no:01033284 from its original place of installation. On the basis of the inspection report submitted by the inspecting officer, the assessing officer of the opposite parties assessed the unauthorized use of electricity to the tune of Rs.44704/- for the nature of unauthorized use of electricity: meter found slow by 56.06% & S/W to be replaced (sl.no.9 of the Provisional Order dtd:21.02.2017.In accordance to such inspection report and provisional order, the assessing officer has issued notice to the complainant u/s.126 of the Electricity Act, 2003 but the opposite parties not filed any documents and affidavit that, the assessing officer has completed the hearing accordingly within stipulated period of 30 days as contemplated under the said Act, 2003. And prior to passing any final assessment order by the assessing officer, the opposite parties started claiming of the said provisional assessment amount from the complainant by adding to the billing cycle of the consumer No. 2111.0143-2175 and meter No. 1033284 and issued monthly consumption bill as per reading of the units recorded in the meter no:1033284 till date by the qualified meter reader of the opposite parties.

Further, it is apparent from the case record that, in regular interval the opposite parties have issued disconnection notice under Sec.56(1) of the Act, 2003 to collect the said provisional assessment amount from the complainant. To stop such arbitrary action, the Commission has passed an interim order dated:24.05.2023 in the interest of justice. It is manifest from the case record that, no final assessment order has been passed by the assessing officer of the opposite parties in accordance to the Sec. 126 of the Electricity Act, 2003 till date in accordance to the written version and evidence of the opposite parties. The opposite parties relied upon the citation reported in Indian Kanoon – http://indiankanoon.org/doc/55216283 which is distinguishable from the present case and not applicable in the instant case as no quasi-judicial order has been passed by the assessing officer of the opposite parties. The issuance of monthly consumption bill by adding of Rs.44,704/- towards unauthorized consumption amount is nothing but issuance of erroneous bill by the opposite parties to the complainant against the consumer No. 2111.0143-2175 and meter No. 1033284 intentional and deliberate. The opposite parties should strictly follow the Reg. 91/92 of the OERC Distribution (Conditions of Supply) Code, 2004, to resolve the disputed bill of the consumer/complainant. The said regulations are read as follows:-

“The OERC Distribution (Conditions of Supply) Code, 2004 Disputed/Erroneous Bills –

91. In the event, of any dispute in the billed amount, the consumer may lodge a complaint before the designated officer/agency as determined by the Licensee and pay the average of last 6 months consumption or the billed amount whichever is less within due date pending settlement of the dispute. The licensee shall resolve the dispute or communicate its decision with reasons to the consumer within a maximum period of one month as per Regulation 92.

92. (i) If the licensee finds the bill to be erroneous, a revised bill shall be furnished to the consumer indicating a revised due date. Excess amount paid by the consumer shall be refunded by way of adjustment in the subsequent bill. Such excess amount shall be refunded together with interest at the rate of 1 (one) % per month from the date of payment of excess amount. (ii) If the licensee finds the bill to be correct, the consumer shall be intimated accordingly and notified to pay the balance, if any, within fifteen days with interest at the rate of 1 % per month from the due date. If the engineer does not resolve the dispute within two months stipulated in Regulation 91, the consumer will not be liable to pay the interest on the balance amount.”

In the instant case, the complainant has intimated several times regarding issuance of erroneous bill orally in person but no action taken accordingly by the opposite parties were tantamount deficiency in services. Further, claiming of more than the current energy amount from the consumer without issuing of correct bill to the consumer or its users issuing of the disconnection notice under Sec.56(1) of the Electricity Act, 2003 are termed as unfair trade practices on the parts of the opposite parties in accordance to the Consumer Protection Act, 1986.

Further the opposite parties were submitted in their written version and written argument that, this Hon’ble Forum has got no jurisdiction to entertain the present disputes in view of Sec.145 of the Electricity Act, 2003. The law is well settled by the Hon’ble National Commission in Jharkhand State Electricity Board & ANR.—Petitioners versus ANWAR ALI—Respondent reported in II (2008) CPJ 284 (NC) that, (i) Consumer Protection Act, 1986 — Sections 2(1)(g), 2(1)(d), 2(1)(o), 3 — Electricity Act, 2003 — Sections 42, 50, 126, 127, 145, 154, 156, 157, 173, 175 — Electricity — “Service” — “Consumer” — Jurisdiction of Fora to deal with grievances of consumers in case of deficiency in service by electricity supplier — Supply of electrical/other energy included within definition of “Service” under Consumer Protection Act — Person availing such service would be “Consumer” — Jurisdiction of Fora not barred by provisions of Electricity Act — Electricity Act and Consumer Protection Act runs parallel regarding limited purpose in respect of arbitrary, illegal, unjustified action against rules and regulations of electricity code — Complaint alleging deficiency in service on part of Electricity Board/Private Company maintainable.

(ii) Jurisdiction of Fora — Electricity dispute — Electricity Act and Consumer Protection Act runs parallel regarding limited purpose in respect of arbitrary, illegal, unjustified action against rules and regulations of electricity code — Jurisdiction of Fora cannot be curtailed in absence of express provision prohibiting jurisdiction — Section 3, Consumer Protection Act and Section 175, Electricity Act, not in derogation of provisions of any other law — Consumer has option either to file complaint under Consumer Protection Act or under Electricity Act against order passed under Section 126 Electricity Act — No complaint can be entertained by Fora against final order passed by Appellate Authority under Section 127, Electricity Act — Jurisdiction of Fora not barred even if provision of other statute provides alternate remedy to consumer — Jurisdiction of Fora expressly saved under Sections 174, 175 of Electricity Act — Complaint alleging deficiency in service on part of Electricity Board/its officers, maintainable.

In view of the above principles of laws, the legislatures have declared that, the Consumer Commission (erstwhile Consumer Forum) is having jurisdiction to entertain the disputes related to the electricity services extended to the consumers at large.

The present opposite parties have submitted in their written version and written argument that, the proceeding is bad for non-joinder of necessary parties as the complainant has not made the Assessing Officer i.e., Asst. Executive Engineer (Vig.), Berhampur as a necessary party to the present proceeding. In view of the above discussion, it is derived from the case record that, the assessing officer has not executed its duty properly in accordance to the Electricity Act, 2003 and the consumer protection act, 1986. And the cause of action arose when the present opposite parties claimed arrear amount along after adding of provisionally assessed amount as per provisional order u/s.126(2) of the Act, 2003 in the bill for the month of May 2017 dated: 18.08.2017 – Annexure A4 with the current energy charges from the complainant and to recover the said arrear amount, the op no.1 has categorically issued the disconnection notice to the complainant under Sec.56(1) of the Electricity Act, 2003.

In view of the tests laid down by the larger bench of the Hon’ble Supreme Court for determining whether a person is a necessary party, the present proceeding is not bad for non-joinder of necessary parties.

In the light of the above discussion, we allowed the case of the complainant. The opposite parties are directed to delete the outstanding amount of Rs.44704/- entered as Sundry details in the bill dated:18.08.2017 for the Month of May-2017 and its interest if any added to the billing cycle of consumer No. 2111-0143-2175 along with pay compensation of Rs.10,000/- and litigation cost of Rs.3,000/- to the complainant within a period of the 45 days from the date of receipt of this order failing which the complainant is at liberty to recover the said dues at the rate of 12% pa interest from both the opposite parties in accordance to the Consumer Protection Act, 2019.

The case of the complainant is disposed of accordingly.

The interim order is pending, if any, stands disposed of in terms of the aforesaid order.

The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.

A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019 or they may download same from the www.confonet.nic.in to treat the same as if copy of the order received from this Commission.

              The file is to be consigned to the record room along with a copy of this Judgment.

PRONOUNCED ON: 12.12.2023.