Date: 31-07-2015

Sri Debasis Bhattacharya

This appeal is directed against the Order dated 28-07-2014 of the Ld. District Forum, Howrah, passed in C. C. No. 433/2013, whereof the complaint case has been decreed in favour of the Complainant.  Being aggrieved by and dissatisfied with the same, the OPs thereof have preferred this appeal.

Case of the Complainant, in a nutshell, is that on going through the energy bill for the period from July, 2013 to September, 2013, she found that in that bill although same meter reading was noted in respect of previous reading vis-à-vis present one, i.e., 7528, the OPs raised a bill for a sum of Rs. 11,528/-.  The Complainant lodged a written complaint with the OP No. 1 on 30-10-2013, but to no avail.  Hence, the complaint case.

Case of the OPs, in short, is that the instant case is a billing dispute and the Complainant has not exhausted her remedies provided by the statute and so, the Ld. District Forum has no jurisdiction to try the complaint case. In response to the letter dated 30-10-2013 of the Complainant, the existing meter was replaced on 20-11-2013 with a new one.  As per the statement of the Complainant, total consumption was divided into six meters, but she did not extend her load at the time of undivided load as the contractual load was 0.44 KW.  As per her consumption pattern, the load was more than 3 KW at the time of undivided load.  Moreover, as there was no prior intimation from the Complainant towards deviation of load, the bill was raised for the BLP in question as per the norms and/or provisions of law. 

The Ld. District Forum, vide its impugned order, directed the WBSEDCL Authority to regenerate the bill for the period from July to September, 2013 taking into consideration the last three months consumption recorded in the new meter and further they were directed to pay compensation and litigation cost to the tune of Rs. 2,000/- and Rs. 1,000/-, respectively.

It is to be considered in this appeal whether there is any infirmity with the impugned order, or not.

Decision with reasons

Ld. Advocate for the Appellants has submitted that it is beyond the jurisdiction of the Ld. District Forum to adjudicate billing dispute under the Electricity Act, 2003.  The Ld. District Forum did not appreciate that bills were raised on average basis when the meter was totally non-functional and such bills were raised as per WBERC Regulations and guidelines and also on the basis of consumption pattern during the previous years and the defective meter was replaced by a new one on 20-11-2013.  Therefore, the impugned order has got no legal sanctity, which be set aside to impart natural justice to the Appellants.

Ld. Advocate for the Respondent, on the other hand, has submitted that in the dwelling house in question, where the Respondent is residing along with her five sons, separate meters in the individual names of her sons were installed on 10-09-2012 and on 12-04-2013.  After installation of separate meters in the names of her sons, connected load was split up from the meter stood in the name of the Respondent.  The Respondent was surprised to receive a bill for a sum of Rs. 11,528/- for the consumption period from July, 2013 to September, 2013 because although present and previous meter reading in that bill remained same, i.e., 7528, still a bill of such staggering figure was raised by the Appellants.  A complaint to this effect was lodged on 30-10-2013, but the Appellants did not bother to rectify the concerned inflated bill.  Finding no other alternative, the Respondent approached the Ld. District Forum for redressal of her grievance and after hearing both sides, the Ld. District Forum vindicated her position and directed the Appellants to regenerate the disputed bill.  The impugned order is fully justified in its content, which be upheld for the ends of justice.  In support of his contention, the Ld. Advocate has referred to a decision of the Hon’ble National Commission, reported in I (2012) CPJ 476 (NC), and another decision of Delhi State Commission reported in IV (2013) CPJ  6 (Del.).

First, we would like to deal with the issue raised by the Appellants, whether Consumer Fora has got any authority to adjudicate billing related dispute.  Before we proceed with our discussion, let us append below the relevant provisions of the Electricity Act, 2003.

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.

          On going through the aforesaid provisions of the Electricity Act, 2003, we can reasonably come to the following conclusions.

(a)    The intention of the legislators has never been to prohibit Consumer Fora from adjudicating electricity related disputes under the Consumer Protection Act.  In fact, the Electricity Act itself does not bar the jurisdiction of the Consumer Fora; rather, it supplements the provisions of Consumer Protection Act, 1986.

(b)    By virtue of 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. 

Notwithstanding 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 u/s 126 or an Appellate Authority referred to u/s 127 is empowered to determine, the present dispute being totally different, the Ld. District Forum has justifiably adjudicated the complaint case in question.

Further, 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).  

             The Hon’ble Supreme Court in the matter of U. P. Power Corporation Ltd. & Ors vs. Anis Ahmad in Civil Appeal No. 5466/2012 held as under:-

“(i) In case of inconsistency between the Electricity Act, 2003 and the Consumer Protection Act, 1986, the provisions of Consumer Protection Act will prevail, but ipso facto it will not vest the Consumer Forum with the power to redress any dispute with regard to the matters which do not come within the meaning of “service” as defined under Section 2(1)(o) or “complaint” as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.

(ii) 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.

(iii) 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" under Section 2(1)(d) of the Consumer Protection Act, 1986 or the Central Government or the State Government or association of consumers 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.”

In the light of our foregoing discussion, we have no qualms holding that the Ld. District Forum has committed no jurisdictional error by adjudicating the instant complaint case.

Now coming to the dispute, admittedly, the meter in question was not working properly during the billing period from July, 2013 to September, 2013.  Accordingly, average billing was done taking into consideration the consumption pattern of the Respondent during the previous years. 

It is important to note here that prior to installation of individual meters in the names of the sons of the Respondent on 10-09-2012 and again on 12-04-2013, there was only one common meter installed in the said dwelling house for all the inhabitants residing over there, including the sons of the Respondent. 

There can be no dispute as to the fact that individual consumption of energy vis-à-vis combined consumption would be far less under normal circumstances.  Given the fact that during the disputed billing period, separate meters in individual names were in place, the Appellants ought to have taken into consideration this vital aspect while figuring out average consumption of energy.  Surprisingly, the Appellants, without considering such fact, proceeded with in a mechanical manner and taken into consideration the consumption pattern of the period when there was only one single meter in the said dwelling house.  No wonder, the method applied for by the Appellants to derive at the average billing resulted in huge billing.  By doing so, the Appellants did gross deficiency in service towards the Respondent. On the contrary, the method suggested by the Ld. District Forum, without any hesitation, is more relevant, reasonable and practical and as such, we see no reason to interfere with the same.

In the result, the 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.