PER: HON’BLE MR. SAMARESH PRASAD CHOWHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Party to impeach the Judgement/Final Order dated 05.05.2017 passed by the Ld. District Consumer Disputes Redressal Forum, Darjeeling (for short, Ld. District Forum) in Consumer Complaint No. 15/D/2016. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent Sri Paras Thapa under Section 12 of the Act with direction upon the Appellant/Opposite Party to cancel the bill showing exorbitant amount of Rs.46,215/-, to pay compensation of Rs.15,000/- and litigation cost of Rs.8,000/- within 30 days from date, failing which the Appellant/Opposite Party shall be liable to pay additional interest @ 6% p.a. on the entire decretal amount.
The Respondent herein being Complainant lodged the complaint before the Ld. District Forum asserting that his father Daya Ram Thapa, since deceased was a consumer under the West Bengal State Electricity Distribution Company Limited (WBSEDCL) being Consumer Id. No.412165391and on account of death of his father on 19.03.2010 the complainant became beneficiary of the said electric connection. On 02.01.2012 the complainant has stated that he was going on paying the electric bills regularly. On 28.02.2012 the complainant received a quarter bill for the month of March, 2012 to May, 2012 which shows a consumption of total units of 6018 unit as ‘adjustment units’ amounting to Rs.45,054/-. According to the complainant, the said excess units and the amount is totally unjustified, irregular and unbelievable for the domestic consumption in a small residence like him. On 06.06.2016 the complainant wrote a letter to OP for cancellation of the said abnormal and false bill and subsequently, he filed a complaint case being No.11/D/2016 to which judgement was delivered on 30.11.2016. But on 06.02.2016 the complainant has received a notice from OP dated 28.11.2016 demanding to pay the amount of Rs.46,215/- for payment of post-agitation period from March, 2012 to May, 2012. Hence, the respondent approached the Ld. District Forum with prayer for a direction upon the OP to cancel the excessive bill, to pay Rs.20,000/- as compensation for harassment and mental agony and Rs.15,000/- as litigation cost.
The Appellant being Opposite Party by filing a written version has stated that a single phase electric meter being Meter No.147515 was installed at the premises of Late Daya Ram Thapa on 18.06.2003 and it was replaced by a newly introduced electronic meter being L 1572496 on 20.12.2011. After agitation period is over, the old meter No.147515 was replaced by new and modern electric meter and during the said replacement, it was noticed that the consumer had already consumed electricity of 95452 units under the previous old meter (final reading 9552) which means the consumer had consumed total 9552 units in a tenure of 102 months (from 18.06.2003 to 20.12.2011) i.e. a monthly consumption of 94 units approximately which is quite reasonable and justified. Therefore, the complaint should be dismissed.
After perusal of the record and the documents filed by the parties, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the opposite party, as mentioned above. Challenging the said order, the opposite party has come up in this Commission with the present appeal.
Mr. Suvendu Das, Ld. Advocate for the Appellant has submitted that it was a purely billing dispute and the Ld. District Forum should not have entertained the complaint in view of Notification No.55/WBERC dated 07th August, 2013. He has further submitted that in case of any dispute in respect of billed amount, in accordance with Regulation 3.5.1, the respondent/complainant should have approached the Grievance Redressal Officer or the Central Grievance Redressal Officer of the respondent and thereafter to the Ombudsman in appeal against that order. As the Ld. District Forum has no machinery to ascertain the correctness of reading of meter and further when the respondent/complainant in the prayer clause of the petition of complaint did not seek any inspection or testing of the meter in question, the Ld. District Forum should have dismissed the complaint.
Per contra, Mr. Suman Kr. Mukherjee, Ld. Advocate for the Respondent/complainant supporting the decision of the Ld. District Forum has drawn our attention to Regulation No. 11.1 of Notification No.46/WBERC dated 31st May, 2010 and contended that the Ld. District Forum has rightly passed the order. He has also contended that as the bill of Rs.46,215/- in a domestic connection was quite exorbitant and in this regard when correspondences could not alter the situation, the Ld. District Forum has rightly observed that there was deficiency in services on the part of appellant and as such the impugned order should not be interfered with.
We have given due consideration to the submission made by the Ld. Advocates appearing for the parties and scrutinised the materials on record.
The overwhelming materials on record make it quite clear that the respondent is a resident of Teachers’ Colony, Joredhara, P.O. + P.S. + Dist. – Kalimpong and he is a consumer under WBSEDCL bearing Consumer. Evidently, on 06.12.2016, a bill of Rs.46,215/- for payment of post-agitation period from March, 2012 to May, 2012 had been issued. In this regard, the appellant/OP has clarified that the said bill had been issued for the period from 18.06.2003 to 20.12.2011 showing consumption of total of 9552 units for the period of 102 months with a monthly consumption of 94 units approximately. Therefore, it is quite evident that the dispute between the parties is a billing dispute.
It is now well settled that in view of the decision of Hon’ble Supreme Court reported in (2013) 8 SCC 491[U.P. Power Corporation Ltd. & Ors. –Vs. – Anis Ahmed] the Electricity Act, 2003 and the Consumer Protection Act, 1986 runs parallel for giving redressal to any person, who falls within the meaning of ‘consumer’ as defined in Section 2(1)(d)(ii) of the Act but it is limited to the dispute relating to ‘unfair trade practice’ or a ‘restrictive trade practice’ adopted by the service provider or if the ‘consumer’ suffers from deficiency in service or hazardous service or the service provider has charged a price in excess of the price fixed by or under any law.
Now, the Regulation No.3.5 of West Bengal Electricity Regulatory Commission published in Kolkata Gazette (Extra-Ordinary) dated 07.08.2013 being notification No. 55, which has a statutory effect provides –
“3.5.1(a) – In case, there is any dispute in respect of the billed amount, the consumer may lodged a complaint with the Grievance Redressal Officer or the Central Grievance Redressal Officer of the licensee and thereafter to the Ombudsman in appeal against the order of the Grievance Redressal Officer or the Central Grievance Redressal Officer, in accordance with the provisions of the concerned Regulations. In such a case, the aggrieved consumer, pending disposal of the dispute, may, under protest, pay the lesser amount out of the following two options: -
- an amount equal to the sum claimed from him in the disputed bill, or
- an amount equal to the electricity charges due from him for each month calculated on the basis of average charge of electricity paid by him during the preceding six months,
the amount so calculated provisionally as per Clause (ii) above by the licensee and tendered by the consumer shall be accepted by the licensee against that bill on provisional basis”.
The provisions of Regulation 3.5.2 reads as under:-
“3.5.2. If any aggrieved consumer makes a provisional payment, as aforesaid, no penal measure including disconnection for non-payment shall be taken against him till the dispute is settled either at the level of the Grievance Redressal Officer or the Central Grievance Redressal Officer or the Ombudsman, as the case may be. However, imposition of a delayed payment, surcharge, if applicable shall not count towards a penal measure for this purpose”.
The Ld. District Forum in the operative part of the order directed the appellant to cancel the bill amounting to Rs.46,215/-. In this regard, it would be pertinent to record that Regulation 3.6.1 of Notification No.55/WBERC dated 07.08.2013 which reproduces below –
“3.6.1 – If, on inspection by the distribution licensee on its own or on the basis of a complaint of a consumer, the meter of a consumer is found defective or defunct for a reason other than theft of electricity as provided in Section 135 of the Act and no theft of energy can be reasonably suspected, the consumer shall pay provisionally, for such consumption of electricity for the period during which the meter has been suspected to have been defective or defunct, on the basis of average consumption and other parameters for the preceding and/or succeeding three months or during any previous and/or subsequent period that may be reasonably comparable before the meter has been found to be defective or defunct. If, however, the period during which the meter has been defective or defunct cannot be ascertained, such period shall be limited to a period of three months immediately preceding the date of inspection”.
Admittedly, the Respondent did not pay the amount of bill issued by the licensing authority. On the contrary, he has simply prayed for cancellation of bill without any prayer for inspection of the same to ascertain whether the bill raised by WBSEDCL was correct or not.
If we have a look to Regulation 11.1 of Notification No.46/WBERC (as cited on behalf of respondent) it would be apparent that the meter in question should be inspected or tested first and unless it is so inspected or tested, the claim of a consumer to change or replace of existing meter does not arise. The Ld. District Forum has simply cancelled the bill without any inspection or report from any authority or expert. There is no machinery before a Forum constituted under the Act to ascertain as to whether the meter in question was defective or not. The respondent/complainant did not make any prayer for inspection of the meter through any expert to ascertain its correctness. The Regulation Nos. 3.5.1 or 3.6.1 of Notification No.55/WBERC dated 07.08.2013 was made in exercise of the power conferred by Section 181(1)(2)(x) read with Section 50 of the Electricity Act, 2003 and as such it has statutory force and it is well settled that a Court of law should not interfere with such statutory legislation.
After giving anxious consideration to the entire facts and circumstances, we are of the view that the Ld. District Forum had proceeded in a wrong way to decide the complaint without asking the respondent/complainant to approach the appropriate authority in accordance with Notification No. 55/WBERC dated 07.08.2013. In other words, when the Regulation has a statutory force, the respondent/complainant had/has ample opportunity to avail the procedure prescribed therein. Therefore, when the Ld. District Forum passed the order without appreciating the actual proposition of law, we are constrained to interfere with the order impugned.
For the reasons aforesaid, the appeal is allowed on contest. Considering the facts and circumstances, the parties do bear their respective costs.
The Final Order/Judgement dated 05.05.2017 passed by the Ld. District Forum in CC/15/D/2016 is hereby set aside.
The Respondent/Complainant shall have liberty to approach the appropriate authority in accordance with Notification No. 55/WBERC dated 07.08.2013 and if such application is filed with requisite amount and if it is found on examination that the meter is a defective one, the Appellant/OP shall provide a new meter within 10 working days from the date of such inspection in accordance with Regulation No.11.1 of Notification No.46/WBERC dated 31.05.2010.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, Darjeeling for information.
