Date of filing:-18/10/2016.
Date of Order:-12/02/2018.
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (COURT)
B A R G A R H.
Consumer Complaint No. 19 of 2017.
Maheswar Ratha, S/o-Late Jagadish Ratha, aged about 77(Seventy seven) years, Occupation-Bussiness, R/o-Bargarh Ward No-11(eleven), Po/Ps/Dist- Bargarh.
..... ..... ..... ..... Complainant.
Vrs.
S.D.O. WESCO, Electrical, Bargarh, Sub-Division, At/Po/Dist- Bargarh.
..... ..... ..... ..... Opposite Party.
Counsel for the Parties:-
For the Complainant :- Sri R.S.Hota, Advocate with others Advocates.
For the Opposite Party :- Sri T.C.Tripathy, Advocate with others Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.12/02/2018. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President:-
Brief Fact of the case ;-
The Complainant has preferred to file the case in pursuance of the provision of the Consumer Protection Act 1986 pertaining to the allegation of deficiencies of service and unfair trade practice against the Opposite Party on the following ground.
The case of the Complainant is that he is a Consumer of the Opposite Party having been issued with a Consumer No-51212204-0111 and has been using the Electricity connection provided with him by the Opposite Party for his Domestic use and that he has been paying the regular billing amount, but suddenly on Dt-22.03.2017 was served with an excessive billing amount by the name of a provisional assessment bill amounting to Rs.48,286.45/-(Rupees forty eight thousand two hundred eighty six and forty five paise)only to which as per him, made objection before the authority but to no effect, without giving an opportunity of hearing him hence caused deficiencies in rendering service on their part and that after his several request to the Opposite Party to issue him with a final assessment order and to reduce the amount but he did neither provided him with Final assessment order nor taken any action hence claimed to be the deficiencies in rendering service to him as such has filed the case for it’s redressal claiming before the Forum to direct the Opposite Party to reduce the present bill with Nil assessment and to pay compensation against the deficiencies of service on the part of the Opposite Party caused to him & for his mental agony and harassment, and to substantiate his case has filed these following documents .
Bill receipt No-B1 4137053 of Rs.2,460/-(Rupees two thousand four hundred sixty)only of Wesco Utility, head office, Burla-768017, Sambalpur.
Current Bill Dt-27.03.2017 for the Month of February 2017.
Electricity bill for the month of December 2016 and receipt for Rs.1,842/-(Rupees one thousand eight hundred forty two)only vide Money Receipt No-190112.
On Perusal of the complaint, the documents and on hearing the counsel for the Complainant the case was admitted a nd notice was served on him, and on being noticed the Opposite Party appeared before the Forum and filed an application before the Forum challenging the maintainability of the case on the ground stated therein to which objection was also filed by the Complainant but the Forum was pleased to opine to take up the case on merit after filing of version by the Opposite party, at the time of final hearing of the case as such he filed his version .
The gist of the rival contention of the Opposite Party as per it’s version is all evasive to the case of the Complainant so far his allegation of negligence of his duty towards rendering of service to the Complainant with counter allegation against him that during the usual regular course of the inspection on Dt.19.05.2015 to the premises of the Complainant by the Sectional Officer No-II, Bargarh along with his Staffs, it was detected by them that the service wire of the Complainant was tempered before the Meter and the existing Meter was by-passed for a total Load of 3(three) K.W. though the Complainant was allowed with only 2 K.W. Load of electricity Energy under the Domestic use category, And also it has been contended in it’s version that the same Inspection was conducted in presence of the Complainant and he has acknowledged with that but did not challenge before the Proper authority within the stipulated period of such assessment as per the provision ,so as per the said provisional assessment was assessed a loss of Rs.48,328/-(Rupees forty eight thousand three hundred twenty eight)only for twelve months vide it’s order No-223 Dt-29.05.2015 and as the Complainant did not file any objection as such the Opposite Party issued Final penal assessment order of the same amount and was communicated to him vide Letter No-2054 Dt.22.12.2016 for early payment or else to disconnect his connection, but as the Complainant neither took any steps nor made payments of the same hence the succeeding bills are followed with the same amount as arrear along with the current billing amounts and his further case against the Complainant is that since the Opposite Party is authorized under the Electricity Act U/s 126, to take action as per the provision and as such has claimed to dismiss the case of the Complainant as not maintainable in the consumer Forum. And has filed a written notes of arguments at length and has filed some Documents in support of his pleas as follows,
Physical verification report Dt.19.5.2015.
Final assessment order,Letter No.2054 Dt.22.12.2016.
Copy of a hand written register containing the entry of the amount of the Complainant.
Having gone through the Complaint, documents filed by him, the version filed by the Opposite Party and his supporting documents and on hearing the submission of the Counsels of the respective Parties, the following points for determination have cropped up for adjudicating the case.
Whether the case has arose out of u/s 126 of the Electricity Act 2003 ?
Whether the Case is Maintainable in the Present Form in the Forum ?
Whether the Complainant is Entitled for any relief ?
Subsequently the Advocate for the Complainant has filed some bills of different years issued with him by the Opposite Party along with a notes of argument.
While dealing with the question as to whether the case has arose out of Section 126 of the Electricity Act 2003 or not, delving deep in to the Complaint the version and the documents available in the record and on hearing the counsels of the respective parties it came to our notice that as per the Opposite Party the physical verification has been conducted by the authorized officer of the Opposite Party along with his staffs on Dt.19.5.2015 in presence of the Complainant and to which the Complainant is also a signatory and on Dt. 29.05.2015 vide it’s No-223 was supplied with the copy of the physical verification report and asked him to file his objection to that effect within the stipulated period but as he failed to file any objection the Opposite Partu declared the provisionally assessed loss of Rs.48,328/-(Rupees forty eight thousand three hundred twenty eight)only as final assessment amount and communicated to him as penal bill vide Letter No.2054 Dt..22.12.2016 and as he did not pay the amount the same amount has been rolling over in each month’s billing amount as arrear amount.
But on the contrary the rival contention is that there has never been any physical verification by any authority of the Opposite Party nor the Complainant has ever put any signature on any documents of the Opposite Party, and the alleged signature of the complainant is put by him and to that effect the Opposite Party has not taken any step to ascertain the said signature as an authentic one of the Complainant, and also the Complainant denies all the mentioned allegation of the Opposite Party rather his case is that he being a consumer was using the supplied energy of electricity by paying the billing amount every month and all of a sudden on Dt.22.03.2017 received a provisional bill for an excess amount of Rs.48,268.45/-(Rupees forty eight thousand two hundred sixty eight and forty five paisa)only without any basis in an arbitrary manner to which he objected and asked for the final assessment bill with a reduced billing amount but to no effect and to meet out the argument advanced by the learned counsel for the Opposite Party with regard to the excess use of electricity is strictly denied by the Complainant as when the alleged physical verification report is not in existence there can not be claim of such hike in such excessive use and to substantiate his case has filed some bills of the preceding months.
Furthermore the Advocate for the Complainant vehemently argued before the Forum in his support relying on the citation of the very case of the Honorable Supreme Court reported in O.L.R (S.C.) 2014 ,U.P. Corporation Ltd & Orissa Vrs Anis Ahmad of course to which the Opposite Party has also relied, on the point that the case is related to the case U/s 126 is not maintainable, but to our observation as per the provision envisaged in the Act U/s126 after the physical verification, in case if it is made and if it is found any Act by any consumer as per the Section 135 to 140 of the Act, is supposed to make a provisional assessment of the same and convey it to the party concerned giving him an opportunity to file any objection and further if he fails or failed to satisfy the authority regarding provisional assessment then final assessment is to be made within a stipulated period of thirty days as envisaged in the observation made by the Supreme court in the referred citation in Para 3(three) of the page 86(eighty six) while discussing the Section 126 of the Electricity Act but in this particular case it is seen from the Materials available in the record filed by the Opposite party after a long gap of filing the case, that the alleged physical verification has been conducted on Dt.19.05.2015 and it has shown to have been served to the Complainant on Dt. 29.05.2015 and the final assessment order has been claimed to have been served upon him on Dt.22.12.2016 after a lapse of more than eighteen months vide letter No.2054 wherein the date of the physical verification report has been shown to have been made on Dt. 19.05.2017 against the provisional assessment order Dt. 29.05.2017 to which the advocate for the Opposite Party has argued as a mere clerical mistake, which is not tenable in the eye of law since it has been repeatedly mentioned in more than one documents which has been prepared by themselves and also the delay for such late supply of the assessment report has not been clarified ,and in furtherance to our observation the bills of the succeeding months of the alleged provisional assessment particularly for the month of June-2016 actual amount of bill against the consumption of the energy amounting to Rs.3,152/-(Rupees three thousand one hundred fifty two)only has been given without mentioning any arrear accompanied by some more bills of the same actual amount, And also it is most pertinent to mention here that the complainant has filed the case on Dt.17.04.2017. with an allegation of excess billing by the Opposite Party after getting the notice in connection with the provisional assessment order on Dt 22.03.2017,which clearly proves that he has got the notice on the said date as otherwise had it been supplied to him prior to the said date he would have come to the Forum by then.
In addition to that, to our observation as has been envisaged in para 25(twenty five) of the page 81(eighty one) of the said citation the Honorable Apex court while discussing over the condition where the Consumer Protection Act lies, wherein their Highness has quoted as “Admittedly ,the Complainants made grievance against Final order of assessment passed U/s 126 of the Electricity Act 2003. None of the respondents alleged that the appellant used un-fair trade practice or restrictive trade practice or there is deficiency in service or hazardous service or price fixed by the appellant is excess under any law etc. In absence of any allegation as stipulated under Section 2(1)( C) of the Consumer Protection Act 1986, their complaints are not maintainable’’. But in this particular case in hand in our humble opinion the very complain of the Complainant is against the excess billing amount in comparison to that with the previous billing made by the Opposite Party and also without any physical verification, and without any seizure or any endorsements of the staffs and the severe discrepancy in maintaining the principle as laid down by the Act while conducting the provisional assessment or the Final assessment(which is not yet supplied with the Complainant as per his claim) and also eye catching discrepancies in the dates mentioned in the Provisional assessment, in the Final assessment order and also in the hand written copy of the Ledger as has been mentioned in our discussion earlier to that effect .
In furtherance to that the allegation of the Opposite Party is that the room in which the alleged connection was taken was locked but such a plea cannot be accepted as there is provision in the act it’ self that in such case the Opposite Party is empowered to break open the lock and can also take the help of the police, which is embodied in the observation made by their Lordship in para- 6 and in the last para of page 85 of their Judgment while discussing the section 135 of the Orissa Electricity Act but no such steps have been taken by the Opposite Party which strengthen the pleas of the Complainant that no physical verification has been conducted in his premises but misinterpreted the Decision of the Honorable Supreme Court and to take it’s advantage and further the Opposite Party is silent over the matter in disproving the materials put forth by the complainant that there has not been any physical verification or supply of the order to that effect .
Hence in view of the aforesaid analysis of the total case of the Complainant and the Opposite Party we are of the humble view that the case in hand is not at all similar to the case of the Honorable Court reported in the aforesaid decision from the assertion made by the Opposite party so far as the assessment made by the Opposite Party U/s 126 is concerned as the Complainant has filed the case with an allegation of deficiencies of service caused to him by the Opposite Party by manufacturing the documents U/s 126 without following the procedure laid down in the Provision as such the Complainant has also relied on the same decision of the honorable court to prove that his case is against the deficiencies in rendering service to him and has issued him with an excessive billing amount. Hence in our humble opinion the case in hand does not come within the purview of Section 126 of the Electricity Act 2003, and answered accordingly in favor of the Complainant.
Secondly with regard the question as to whether the case is maintainable in present form in the Forum, As we have already discussed in detail of the case and have opined that the case is not against the order of the Section 126 of the Electricity Act rather the case has been filed against the excess billing amount without having any basis, which of our such view has made it clear from the notice for disconnection Dt.12.01.2018 served on the Complainant for an amount of Rs.89,899/-(Rupees eighty nine thousand eight hundred ninety nine)only without assigning any basis of such amount after such a long gap of years to-gather. Which clearly establishes the arbitrary action of the Opposite Party which tantamount to deficiencies of service on their part, whereby it attracts the Sec-3 of Consumer Protection Act 1986 read with Section 175 of the Electricity Act which con-jointly reads as it is in addition to any and not in derogation of the provision of any other laws for the tune being in force. And since it is apparent in the present case with the materials available in it, it is a case relating to the dispute regarding the excessive billing amount and it’s effect thereby causing deficiencies in rendering service and unfair trade practice on the part of the Opposite party, hence in our humble view, giving utmost regard to the decision passed by the Honorable Apex Court of the Country. The case in hand is maintainable before the Forum in it’s present form as such it is answered accordingly in favor of the Complainant.
Thirdly with regard to the question as to whether the Complainant is entitled to any relief , as we have already discussed the case in details and have opined unanimously that the present case is a case relating to the excess billing dispute but not a case U/s 126 and also have opined that the same maintainable in the present form in the Forum , And we hold it that the case is the outcome of the un-fair trade practice and deficiencies in rendering service to the Complainant , we hold that the Complainant is entitled to the relief as sought for by him, hence order follows.
O R D E R
Hence the alleged provisional assessment order passed by the Opposite Party vide Consumer No-51212204-0111 for an amount of Rs.48,286.45/-(Rupees forty eight thousand two hundred eighty six and forty five paise)only and subsequent billing amount of Rs. 89,899/-(Rupees eighty nine thousand eight hundred ninety nine)only is hereby quashed and the Opposite Party is directed to issue a fresh bill on the actual reading of the consumed amount of energy by the Complainant from the Dt-22.03.2017 within thirty days from the date of receipt of the order and directed not to disconnect the electricity connection to the Complainant, and also directed to pay an amount of Rs.2,000/-(Rupees two thousand)only in lieu of the compensation for the mental and physical harassment and litigation expenses caused to the Complainant in default of which the suitable punitive measure as per the provision of the Consumer Protection Act 1986.
Accordingly in the result the Complaint is allowed against the Opposite Party and pronounced in the open forum to-day i.e.on Dt.12.02.2018. And the case is disposed off.
Typed to my dictation
and corrected by me.
(Sri Krishna Prasad Mishra)
P r e s i d e n t.
I agree
(Ajanta Subhadarsinee)
M e m b e r (w)
