Date: 29-07-2015
Sri Debasis Bhattacharya
The instant appeal arises over Order dated 23-06-2014 of the Ld. District Forum, Howrah in C. C. No. 323/2013, whereby the complaint case has been allowed. Being aggrieved by and dissatisfied with the same, the OPs thereof have preferred this appeal.
Case of the Complainant, in brief, is that owing to non-receipt of energy bill for the period from March to May, 2013, she could not clear the bill for that period. Thereafter, although she has received the electric bill for the consumption period from June to August, 2013 (billing date 03-09-2013), when she went to the office of the OP No. 3 to pay the same, they refused to receive the amount. Subsequently, on 13-09-2013, they disconnected her electric service connection. She wrote several letters to the OPs, but to no avail, so the case.
Case of the OPs, in short, is that their authorized agent, after taking meter reading in the premises of the Complainant, handed over the bill for the consumption period from March to May, 2013 to the husband of the Complainant on 03-06-2013. The meter reader also recorded the same in the yellow card lying at her premises. Considering the litigant nature of the Complainant, as per the advice of the higher office, the next bill for the consumption period of June to August 2013 was sent to the Complainant by Registered Post. However, the Complainant has not paid the billed amount. The OP No. 3 repeatedly issued and intimated the disconnection notice to the Complainant which was refused by the Complainant on continuous basis. On 13-07-2013, disconnection notice as per Sec. 56 of the Indian Electricity Act, 2003 was sent to the Complainant through registered post which was duly received by the husband of the Complainant. Vide such notice, the Complainant was categorically directed to clear the outstanding dues by 27-07-2013, else such service would be disconnected without further notice. But, in spite of such disconnection notice, the Complainant failed and neglected to pay the outstanding dues. Accordingly, on 13-09-2013, service connection was disconnected. As per the order of the Ld. Ombudsman dated 29-10-2009 and subsequent order dated 18-06-2012, the meter of the Complainant was replaced on 30-06-2012 and on the basis of average consumption of the replaced meter; the past bill was recasted against which the consumer paid only 1/3rd amount along with the previous bill. Service connection was re-connected to the Complainant on 20-09-2013, but the Complainant has not deposited the energy and disconnection reconnection charges, and also refused to sign on the reconnection memo, for which the OP was compelled to lodge a written complaint before the local police station.
The Ld. District Forum decreed the case in favour of the Complainant directing the OP No. 3 to ensure timely delivery of energy bills and handover the outstanding bills together with compensation and litigation cost for a sum of Rs. 5,000/- and Rs. 1,000/-, respectively.
The question which requires consideration in this appeal is whether the impugned order suffers from any sort of infirmity, or not.
Decision with reasons
Ld. Advocate for the Appellants has submitted that the Ld. District Forum has no authority to adjudicate billing related dispute and such matters are to be referred to Chief Electrical Inspector. In terms of the Electricity Act, 2003, all billing disputes are to be referred to RGRO first and thereafter, in case of dissatisfaction, an appeal can be preferred before the Ld. Ombudsman. As special remedy is available under the Electricity Act, 2003 and Regulations thereunder, the Respondent should not have filed the complaint before the Ld. District Forum and such complaint is bad in law. He has further submitted that the only dispute remains to be adjudicated in the present case is about non-receipt of energy bill by the Respondent. In case, she indeed did not receive any particular bill, she could have approached the OP No. 3 either personally visiting its office or through her authorized representative and collected duplicate copy of such bill. In case, the postal authorities or the courier service neglects to ensure proper service of bill to the bona fide consumer, they are helpless. The Appellants cannot be held liable for the negligence on their part. In such circumstances, the Ld. District Forum should not have imposed any cost upon the Appellants, and the impugned order be set aside.
Authorized representative of the Respondent has submitted that despite verbal as well as written requests, the Appellants have not supplied the energy bill for the period from March to May, 2013 to her. Subsequently, although she has received the bill for the period from June to August, 2013 from the OPs through registered post, the OP No. 3 did not accept payment of said bill from her. Thereafter, although the first due date of payment of energy bill for the period from September to November, 2013, was due on 13-09-2013, the OP No. 3, without any prior disconnection notice, disconnected her domestic service connection on the very same day, i.e., on 13-09-2013. Although it is stated by the Appellants in their WV that their authorized agency handed over the disconnection notices on different dates, it is totally false. Since there were several anomalies in the energy bills issued by the Appellants for the billing periods April – May, 2012, Aug.-Sept., 2012 and Jan.-Feb,2013, she requested the Appellant No. 3 to rectify the same on several occasions, but to no avail. Therefore, she lodged a complaint with the Ld. Ombudsman. Accordingly, the Ld. Ombudsman, by issuing notice, asked both sides to attend hearing on 07-11-2013. However, ignoring such notice, the Appellants disconnected her service connection without serving any valid disconnection notice. The Respondent has been subjected to step-motherly behavior from the side of the Appellants on several occasions without any rhyme or reason. Finding no other alternative, the Respondent filed the instant complaint case before the Ld. District Forum and after a hot contest, the instant case was decreed in her favour, which be upheld for ends of justice. She visited the office of the OP No. 3 several times, but could not procure the bill. Although by registered post, bills were sent to her subsequently, the same were full of anomalies, which have still not been rectified.
At the very outset, it requires to be stated that Section 3 of the Consumer Protection Act stipulates that the provisions of this Act are in addition to and not in derogation of the provisions of any other law for the time being in force. In our considered opinion, therefore, every effort should be made to harmonize the provisions of the two Acts, viz., the Electricity Act, 2003 and the Consumer Protection Act, 1986, and, if the colliding effect cannot be harmonized, then only the provisions of one Act are to be read down in preference to the provisions of the other Act. The test of inconsistency is not that two Acts say different things but the effect cannot be given to the provisions in one Act without committing violation or breach of the other.
Insofar as the authority of the Consumer Fora to adjudicate billing related dispute has been questioned by the Appellants, in order to decide this question, we would first refer to Sections 173, 174 and 175 of the Electricity Act, 2003, which are as under:
Section 173 :
Inconsistency in laws – Nothing contained in this Act or any rule or regulation made thereunder or any instrument having effect by virtue of this Act, rule or regulation shall have effect in so far as it is inconsistent with any other provisions of the Consumer Protection Act, 1986 (68 of 1986) or the Atomic Energy Act, 1962 (33 of 1962) or the Railways Act, 1989 (24 of 1989).
Section 174 :
Act to have overriding effect – Save as otherwise provided in section 173, the provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
Section 175 :
Provisons of this Act to be in addition to and not in derogation of other laws – The provisions of this Act are in addition to and not in derogation of any other law for the time being in force.
A bare reading of the aforesaid Sections makes it abundantly clear that –
(a) The legislative intent has not been to block the jurisdiction of the Consumer Fora under the Consumer Protection Act. The Electricity Act also impliedly does not bar the jurisdiction of the Consumer Fora; rather, it saves the provisions of Consumer Protection Act, 1986.
(b) By non-obstante clause, it has been provided that if anything in the Electricity Act, Rules or Regulations is inconsistent with any provisions of the Consumer Protection Act, it shall have no effect ; and
(c) Provisions of the Electricity Act are in addition to and not in derogation of any other law for the time being in force. The Act supplements the existing Redressal Forum, namely, the Consumer Fora.
(d) Section 174 provides that in case of inconsistency, the provisions of Electricity Act would have overriding effect over the provisions contained in any other law, except the three laws as mentioned in Section 173 of the Electricity Act, i.e., the Consumer Protection Act, 1986, the Atomic Energy Act, 1962, and the Railways Act, 1989.
This clearly establishes the fact that the jurisdiction of the Consumer Fora is not curtailed or barred in any manner to adjudicate electricity related disputes.
Although Section 145 of the Electricity Act, 2003, bars the jurisdiction of Civil Court to entertain any suit or proceeding in respect of any matter which an assessing officer referred to under Section 126 or an appellate authority referred to under Section 127 is empowered to determine, the nature of instant dispute being totally different, the Ld. District Forum has committed no wrong by adjudicating the instant complaint case.
That apart, Section 2(i)(o) of the Consumer Protection Act, 1986 specifically includes supply of electrical or other energy in the definition of the word ‘service’.
“Service” means service of any description which is made available to potential [users and includes, but not limited to, the provision of] facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, [housing construction,] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”
Also, u/s 2(1)(d)(ii), a person who avails of any service including the supply of electrical or other energy, would be a ‘consumer’ and is entitled to file complaint for any deficiency in service as provided under Section 2(1)(g) of the 1986 Act.
Accordingly, it cannot be said that for alleged deficiency in service on the part of the Electricity Board or its officers, complaint is not maintainable under the Consumer Protection Act, 1986.
The Appellants have not disputed authenticity of any of the correspondences of the Respondent which she annexed along with her BNA. It transpires from the copy of letter dated 17-07-2013 of the Respondent that she apprised the Appellant No. 3 about referring the dispute to the Ld. Ombudsman and even mentioned the date of hearing to it. Yet the Appellants disconnected the service connection to the premises of the Respondent on 13-09-2013. It is claimed by the Appellants that they issued disconnection notices on several dates and also issued a notice u/s 56 of the Indian Electricity Act, 2003. However, the Respondent has strongly disputed such claim. Against this backdrop, it was incumbent on the part of the Appellants to provide cogent documentary evidence to drive home such point. For the reasons best known to the Appellants, they refrained from filing the same. Therefore, it left us with no scope to verify the veracity of such claim of the Appellants.
The series of correspondences placed on record by the Respondent go to show that the dispute is going on over a prolonged period of time. The Appellants should have taken due measures to put an end by initiating due measures in this regard, which they did not do. Therefore, we find no incongruity in the direction and order of the Ld. District Forum.
In the result, the instant appeal fails.
Hence,
ORDERED
That the appeal be and the same is dismissed on contest against the Respondent, but without any order as to costs. The impugned order is hereby affirmed.
