Dt. 13.08.2015
JAGANNATH BAG, MEMBER
The present appeal is directed against the order dated 22.05.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Uttar Dinajpur, in Consumer Complaint No. 44/2013, whereby the complaint was allowed on contest against OP No.1 and dismissed ex parte against the other OP.
The Complainant’s case , in brief, was as follows:
The Complainant, being the proprietor of M/s. Jaya Flyash Brick Industries situated at Shergram, Kaliyaganj P.S. of Uttar Dinajpur , applied for a new industrial electric connection along with necessary documents on 04.11.2009. Initially a quotation of Rs.1,45,293/- was issued on 19.03.2010 by Kaliyaganj Customer Care Centre, survey being done over the private land, instead of through road side . The Complainant submitted an application for re-survey. No response being received , inspite of reminders , the Complainant made another application and a quotation of Rs. 1,73,172/- was issued by the OP service provider, survey being done by Tushar Enterprises ,i.e. , OP No. 2. The said amount was deposited on 08.06.2012. The Complainant made several communications, but the connection was not provided. On 03.12.2012, the OP No.1 informed that due to some dispute / objection raised on 29.11.2012 at the site , the OP 2 was prevented from providing the electric connection. On 15.05.2013, a legal notice was served upon the OP No.1. But , no response was forthcoming. In the said circumstances, complaint was lodged with prayer for direction upon the OP to provide service connection and also for payment of adequate compensation on the ground of huge loss in the business of the Complainant.
The complaint has been contested by the OP No.1 who in their W.V. submitted that the complaint case was not maintainable . It was stated that the work order was issued and their authorized agent, i.e., OP No.2 collected materials for erection of 17 number of 9 mt. PCC poles with all fittings at the site, but one of the poles was not erected due to resistance from one Jayanta Kumar Das and others. The Complainant was informed of such resistance/objection through letters time to time and lastly on 08.05.2013. The complainant was also requested to solve the problem as any objection in the matter of effecting new connection is required to be solved by the intending consumer as a norm. Due to repeated resistance / objection raised by the local people, PCC poles could not be erected causing non-completion of the work, but there was no latches on the part of the OPs. The case was liable to be dismissed.
OP No.2 did not appear for contesting the case. Accordingly, the case was heard ex parte against them.
Ld. Forum below having perused the materials on record including evidence produced by both parties and upon hearing the parties observed that the OP No.1 took no legal steps to resist the objectors involved in the matter of erection of poles required for the purpose of electric connection in question. Even in the W.V., the OP No.1 has not stated that they made arrangement for police help in erecting the poles and for providing energy supply to the Complainant. Ld. Forum below was of the considered view that the Complainant suffered a loss of heavy amount as she was forced to install costly Diesel Generator for her Unit and as her unit has gradually become non-profitable. The OP No.1 was held liable to pay compensation to the Complainant. Accordingly, the complaint was allowed with direction upon the OP to provide industrial electric connection in the unit of the Complainant and to pay a compensation amounting to Rs.10,000/- (ten thousand only) to the Complainant within one month from the date of order, failing which the compensation amount would carry interest @ 8% p.a. from the date of filing of the complaint till full realization.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below, the OP has come up before this Commission with prayer for setting aside the impugned order.
Ld. Advocate appearing for the Appellant submitted that the Complainant / Respondent is not a consumer under the Consumer Protection Act as her application was meant for industrial electric connection having commercial purpose. Further, it was also submitted that the Complainant /Respondent was repeatedly informed through letters for solving the problem in regard to the resistance / objection raised by the local people , but no solution could be arrived at and the OP No.2 had to withdraw from the work site leaving the work incomplete under compelling circumstances. The Complainant was required under Regulation 46 / WBERC Clause 3.2.1 to submit certain documents including Way Leave Permission in the specified format in Form-1, but such Way Leaved was not provided by the Complainant as a result of which the erection of poles could not be carried out to effect the electric connection to the unit of the Complainant / Respondent. They repeatedly tried for completion of the work but as the Complainant/Respondent failed to take proper step in regard to providing Free Way Leave .There was no deficiency on the part of the OP/Appellant. Ld. Forum’s order deserves to be set aside .
Ld. Advocate appearing for the Respondent submitted that the Complainant was a consumer in so far as the electricity service for which application was submitted was for the use of the Complainant’s Fly Ash Brick Unit and not for resale of such electricity. It was incumbent upon the Appellant/OP to provide necessary electric connection as the application was received by them whereafter survey was made and quotation was raised. After deposit of the quotation value , the service provider was under obligation to provide the electric connection and if necessary, with police help. The Appellant miserably failed to do their duty in providing electric connection and thereby committed deficiency in service and caused huge loss in the business of the Complainant/Respondent, for which Ld. Forum below has assessed a compensation which must be paid, apart from having the desired electric connection.
The point for consideration before us is whether the impugned order suffers from any legal infirmity, material irregularity or jurisdictional error.
Decision with Reasons :
We have gone through the memorandum of appeal together with copies of the impugned order , the petition of complaint and the W.V. filed by the OP No.1 / the Appellant. BNA filed by the Respondent has been perused.
The Complainant’s case is that as she deposited the quotation amount of Rs.1,73,172/- as raised by the OP No.1/Appellant after survey / inspection of the site of her industrial unit , the service connection should have been provided without shifting the responsibility of solving the issue of resistance / objection of some local people on the Complainant.
On the other hand, the Appellant’s case is that the Complainant/Respondent did not provide Way Leaved Permission in regard to erection of the poles for facilitating the electricity connection to the industrial unit of the Complainant/Respondent. It has been noted in the W.V. that the OP No.1 /Appellant herein entrusted the work of erection of poles to OP No.2 who started the work after collection of all necessary materials but could not complete the same due to resistance from the local people. This was attempted to be sorted out in every possible way and the matter was intimated to the Complainant/Respondent for a solution. All the attempts went in vain. It is understandable that the Appellant / OP tried in their duty to erect the poles, there being no counter claim by the Complainant /Respondent in that regard. Ld. Forum below , however, held that the OP did not ask for police help in the matter of sorting out the resistance by the local people. Ld. Forum below also observed that the plea of the OP that as per norm such issue of resistance is sorted out by the intending consumer was not tenable as such norm was not a rule or law.
It has, however, been rightly pointed out by the Ld. Advocate appearing for the Appellant that under Regulation 46 /WBERC vide Notification of the West Bengal Electricity Regulatory Commission, dated 31st May 2010, Way Leave Permission , where applicable, has to be provided in proper form. The OP / Appellant did not ask for such Way Leave Permission from the Complainant even after their survey in regard to providing electricity to the Complainant/Respondent’s unit, but still, if such Way Leave Permission is not provided, there may be some problem in effecting the required erection of poles, particularly if such poles are to be erected in the land of persons other than that of the intending consumer .
Ld. Forum below observed that the OP/Appellant did not ask for police help in solving the issue of objection by local people. If that be the lacuna on the part of the OP / Appellant , Ld. Forum should have issued a direction upon the OP and /or the Complainant to seek police help for effecting the erection of poles. In that view of the matter, we are inclined to hold that the impugned order may be modified with instruction upon both the Appellant and the Respondent to seek police help in the matter of sorting out the objection of the local people. Further, there being no assessment of loss due to non-supply of electricity to the Complainant/Respondent’s unit the amount of compensation of Rs.10,000/- as allowed by Ld. Forum below does not appear to be just and fair. The impugned order needs to be modified .Hence,
Ordered
That the appeal be and the same is allowed in part on contest with modification of the impugned order to the effect that the Appellant shall provide electricity to the unit of the Complainant/Respondent with necessary police help from the local police for which the Complainant /Respondent and the Appellant /OP shall move the local police for necessary help . The order for payment of compensation stands deleted. There shall be no separate order as to costs.
