The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred as ‘the Act’) is at the behest of Opposite Party to impeach the final order/judgment dated 10th February, 2017 passed by the District Consumer Disputes Redressal Forum, Darjeeling (in short, ‘Ld. District Forum’) in Consumer Complaint No. 13/2016. By the impugned order, the Ld. District Forum allowed the complaint lodged by the respondent Shri Yograj Sharma under Section 12 of the Act with the direction upon the appellant to send a revised electricity bill considering the normal consumption of electricity in the previous periods for the domestic connection and to reconnect the electric connection of the complainant at once, to pay compensation of Rs. 20,000/- and litigation cost of Rs. 15,000/-.
The respondent herein being complainant lodged the complaint before the Ld. District Forum asserting that he is a permanent resident of Warling Golai, P.O.+P.S.+Dist – Kalimpong (erstwhile Darjeeling) having domestic electric connection of West Bengal State Electricity Distribution Company Limited (W.B.S.E.D.C.L.) being Consumer ID No. 412168868. On 02.06.2012 the complainant wrote a complaint to the Assistant Engineer, W.B.S.E.D.C.L., Kalimpong praying for replacing the old meter which was not working properly. Accordingly, in the month of December, 2014 the meter in question was replaced. The complainant has been paying electricity bill regularly till September, 2014 where electrical consumption unit was recorded in the meter 6657 but surprisingly enough, the next bill sent by the Department in the month of March, 2015 was excessive which was 20810 unit with a billing amount of Rs. 1,31,150/-. The complainant has made several verbal correspondences with the opposite party and other officials but getting no response, lodged the complaint before the Ld. District Forum with prayer for following reliefs, viz.- (a) to direct the O.P. to issue a reasonable and fair amount of bill; (b) to direct the O.P. to reconnect the electric connection to the resident of the complainant; (c) compensation of Rs. 1,00,000/- for harassment and mental agony; (d) cost of litigation of Rs. 5,000/- etc.
The appellant being opposite party did not contest.
After evaluation of materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the opposite party, as indicative above. To assail the said order, the opposite party has come up in this Commission with the present appeal.
Mr. Debraj De, Ld. Advocate for the appellant has submitted that the complaint was filed before the Ld. District Forum on 08.11.2016 and the same was disposed of on 10.02.2017 within 37 days from the date of filing of the same without giving an opportunity to O.P./appellant to file written version. He has further submitted that the notice of the complaint was delivered in the office of appellant on 16.12.2016 but as the matter was fixed on 14.12.2016 for S.R. and appearance the opposite party could not appear before the Ld. District Forum and further due to official paraphernalia they had to send all the records to head office at Kolkata for obtaining legal opinion. Ld. Advocate for the appellant has further contended that in the prayer clause of the petition of complaint the complainant did not pray for appointment of any expert to ascertain the correctness of the meter in the question and simply prayed for reasonable and fair amount without indicating what would be the reasonable and fair amount in respect of issuance of a bill and therefore, the impugned order should be set aside.
Per contra, Mr. Barun Prasad, Ld. Advocate for the respondent has contended that keeping in view the observation of the Commission in Order No. 04 dated 14.03.2018, the matter is required to be remitted on remand for adjudication afresh.
I have travelled through the documents available on the record and considered the submission advanced by the Ld. Advocates appearing for the parties.
Undisputedly, the respondent is a ‘consumer’ within the meaning of Section 2(1)(d) of the Act, being a resident of Kalimpong having a domestic electric connection being Consumer ID No. 412168868 with W.B.S.E.D.C.L.. Evidently, the meter in question was not working properly as it was not giving proper meter reading and as such on the request of the respondent, in the month of December, 2014 the licensing authority has replaced the old meter.
The main dispute cropped up when the bill in the month of March, 2015 was raised showing consumption of unit 20810 with a billing amount of Rs. 1,31,150/-. The respondent/complainant has alleged that he has been paying electricity bill till September, 2014 where electric consumption unit was recorded on the meter 6657 unit but after replacement of a new meter in place of the old meter, the bill was raised to that extent. Therefore, it is essentially 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 agreed 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 most important aspect of the matter is that in the prayer clause of the petition of complaint, the complainant/respondent did not make any prayer for appointment of a technical person to ascertain whether the bill raised by W.B.S.E.D.C.L. was correct or not. There is no machinery before a Forum constituted under the Act to ascertain as to whether the meter in question was defective or not. In this regard, the Ld. District Forum has observed –
“The maximum consumption unit should not be more than 1145 units for March, 2014 to June, 2015. If we take the maximum consumption unit to be 229 over quarterly and once we find that there is gross negligence and deficiency in service on the part of O.P.”
I am not in agreement with the view of the Ld. District Forum because when there was scope to ascertain the actual meter reading by appointment of an expert and the respondent /complainant did not avail it, the Ld. District Forum should not have come to a conclusion basing upon surmise and conjecture. It is cardinal principle of law that best evidence must always be given. The respondent/complainant could have filed an application for appointment of an expert in electrical engineering from a competent authority like Jalpaiguri Government Engineering College to prove that the alleged bill was excessive and wrongly recorded. There is no statement whatsoever that staff of W.B.S.E.D.C.L. has any ‘hostile animus’ with the complainant/respondent.
In any case, fair procedure is the hallmark of natural justice and when the opposite party/appellant did not get reasonable opportunity to appear and contest the same, the appeal should be allowed and the matter is required to be remitted on remand for a decision afresh keeping in view the decision of the Hon’ble Supreme Court in the case of U.P. Power Corporation Ltd. & Ors. (supra) vis-a-vis the Notification No. 55/W.B.E.R.C. dated 07.08.2013 as recorded above.
For the reasons aforesaid, the appeal is allowed on contest. However, there will be no order as to costs.
The judgment/final order is hereby set aside.
The case is remitted on remand with a direction upon the opposite parties to appear before the Ld. District Forum on 21.06.2018 and on that date the appellants/opposite parties must file written version otherwise the O.P. will be prevented from filing written version. If the written version is filed, the Ld. District Forum will proceed to dispose of the case in accordance with law after reception of evidence of both the parties.
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.
