Dt. 11.05.15

J. Bag, Member

The present appeal is directed against the order dated  25. O07.2013, passed by the Ld. District Consumer Disputes Redressal Forum , Birbhum , in the CF Case No. 21 of 2012 , whereby the complaint was allowed on contest in part against the OP .

The Complainant’s case, before the Ld. Forum below, was as follows:

The Complainant took a temporary electric connection for running a submersible pump (STIS 202), for which he deposited a sum of Rs. 20,892/- on 05.02.2011. The bills for running the submersible pump amounting to Rs. 3,131/- and Rs.15,780/- were paid on 19.04. 2011 and 01. 08.2011 respectively. Thereafter,  the Complainant applied for permanent connection with the deposit of Rs. 200/- . Though the OP by their letter dated 28. 11. 2011 informed that the application (No. 500214666) along with documents were found to be in order, no quotation was supplied to the Complainant. A letter being sent by the Ld. Lawyer of  the Complainant seeking information as to why quotation was not issued, the OP sent a reply asking the Complainant to clear outstanding bills.  Allegedly, the Complainant having paid a total sum of Rs.38,812/- against 2611 units, the total bill for units consumed should not have been more than Rs.21,000/-.  Being aggrieved by the fact that though excess payment against the bills was made, the O.Ps neglected to give permanent connection, the Complainant filed a consumer complaint with prayer for direction upon the OP, inter alia, to issue quotation for permanent connection, to send complete account in respect of the amount paid by the Complainant for his temporary connection with return of excess deposit and to pay compensation for nor entertaining application under Section 6(1) of the RTI Act, 2005, and to pay compensation of Rs.5,000/- for harassment, suffering etc. apart from other relief. 

The complaint was contested by the OP who, in their Written Version, contended, inter alia, that the Complainant did not have any locus standi or cause of action to file the complaint case.  Though he had deposited the application money of Rs.200/- for permanent connection, a criminal case of theft of energy was filed under Section 135(1)(a) of the Electricity Act vide Panrui P.S. Case No. 111 dated 18.11.2011 and a sum of Rs.1,05,087/- assessed and admitted as penal bill remained unpaid.  The criminal case was pending in the Special Court under the Indian Electricity Act.  In the said circumstances, no permanent connection could be given to the Complainant.  Hence, there was no  question of deficiency in service on the part of the O.P.

Ld. Forum below, upon perusal of the pleadings of the parties, documents on record and the written arguments submitted by each of them and after having heard the Ld. Lawyers, observed that the relief, as prayed for in regard to the billing disputes cannot be awarded by them, but the O.P. failed to take action in regard to the application for permanent connection for the submersible pump  on the ground of the pending criminal case of theft of energy instituted in the name of Amit Ghosh , being the son of the Complainant.  It was also observed that there is no law that the father shall be liable for any offence perpetrated by his son, unless any nexus of the father with his son is established.  It was further observed that the intended permanent connection was sought for a submersible pump  which is situated at a different location from that of the alleged premises to which any nexus of the petitioner could not have been established.  Ld. Forum below also noted that a sum of Rs.14,789/- which was assessed as shortfall payable by the Complainant was paid on 01.08.2011 vide Receipt No. 64653 and as such, there was no further encumbrance to issue quotation for new permanent connection to the submersible pump of the Complainant.  Ld. Forum below having found no evidence in support of compensation of loss and damage suffered by the Complainant, decided to award a sum of Rs.3,000/- as  compensation for harassment and cost against the O.P. whose inaction and fake plea compelled  the Complainant to initiate the consumer complaint. 

Being aggrieved by and dissatisfied with the order of the Ld. Forum below, the O.P./Appellant has come up before this Commission for setting aside the impugned order.  

Ld. Advocate appearing for the Appellant submitted that the Complainant and his son were involved in a case of theft of electrical energy used through the temporary STW connection and a sum of Rs.1,05,087/- was assessed by the service provider but not paid by the consumer on record.  No appeal was filed by the Complainant against the assessment as provided under the Electricity Act.  Further, though for getting STW connection, a certificate has to be obtained from the District Level Committee under West Bengal Ground Water Resources Management and Control Act, 2005, no such certificate has been obtained and submitted.  In referring to the judgment of the Hon’ble Supreme Court in U.P. Power Corporation Ltd. & Ors. – vs.- Anis Ahmed, it was asserted that no fora or court other than a Special Court under the Electricity Act is empowered to decide any dispute relating to theft of Electrical Energy (Vol. III/2013/CPJ/SC).  There being a clear nexus between the Complainant and his son in the matter theft of electrical energy, the Respondent/Complainant cannot disown responsibility in the matter of payment of the final assessment bill of Rs.1,05,087/- and the dispute as reported being in the nature of a billing dispute  is not within the jurisdiction of the Consumer Forum.  Application for permanent connection to the submersible pump of the Complainant cannot be entertained until and unless the criminal case of theft of electrical energy is disposed of and the payment of the final assessment bill is paid.  Ld. Forum’s order in regard to payment of compensation of Rs.3,000/- on ground of harassment is arbitrary and direction to give quotation for permanent connection is beyond their jurisdiction. 

Ld. Advocate appearing for the Respondent/Complainant submitted that in spite of payment of all dues, the Appellant/O.P. raised an allegation about theft of electrical energy which has not been proved.  Application for permanent electric connection for his submersible pump is a separate issue and the said application has been received along with necessary fee of Rs.200/- without raising any objection.  In that position the Respondent, as a consumer, is entitled to get quotation for permanent connection under the Electricity Act.  Ld. Forum’s order may be upheld  particularly in view of the fact that the billing dispute has been kept aside from the adjudication process and the deficiency in service on the part of the O.P./Appellant has been decided in a  reasoned manner.   

    DECISION WITH REASONS:

We have gone through the memorandum of appeal together with copies of the impugned order, the petition of complaint, the written version filed before Ld. District Forum below and the case law as reported in Vol. III (2013) CPJ SC. 

It is a fact that the Respondent/Complainant applied for  permanent electric connection for his submersible pump prior to which he had been enjoying temporary connection.  He deposited Rs.200/- as application money which has not been denied by the O.P./Appellant.

As stated in the petition of complaint  vide Paragraph 7, the total bill for units consumed should not have been more than Rs.21,000/-,  but he paid Rs.38,812/- against 2611 units consumed.  Apprehending that unreasonable amount has been realized from him by the O.P. (Paragraph 9 of the complaint petition), he filed the complaint on alleged ground of deficiency in service, praying for direction upon the O.P. to issue quotation for permanent connection, to pay compensation for causing harassment, suffering etc., apart from return of excess deposit made in respect of his temporary connection.

The petition of complaint itself shows that the Complainant’s grievance against the O.P. is mainly about the correctness of the bills raised by the O.P., his prayer for issue of quotation for permanent connection notwithstanding.  Though Ld. Forum below observed that ‘billing dispute cannot be awarded’ (adjudicated) by them, they dealt with the issue of payment of the final bill dated 28.05.2011 relating to the  temporary connection No. STIS 202 and went to the extent of holding that the Complainant having cleared the outstanding dues, there was no further encumbrance to issue quotation for new permanent connection to the submersible pump of the petitioner.  Such observation of the Ld. Forum below suffers from jurisdictional  error in so far as the basic  billing dispute as brought up in the petition of complaint appears to have been dealt  with as a matter of fact for decision which goes against the principle of law as set out in the  judgment of the Hon’ble Supreme Court in Civil Appeal No. 5466 of 2012 (U. P. Power Corporation Ltd. & Ors – vs. – Anis Ahmed)  holding that a complaint against the assessment made by assessing officer under Section 126 or against the offences committed under Sections 135 to 140 of the Electricity Act ,2003, is not maintainable before a consumer forum .

Going by the above discussion, we are inclined to hold that the appeal succeeds.

   Hence,

ORDERED

 that the appeal be and the same is allowed on contest but without any order as to cost.  The impugned order  is set aside.  Consequently, the petition of complaint stands dismissed.