STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

TRIPURA

APPEAL CASE No.F.A-17/2014

1. Tripura State Electricity Corporation Ltd.,

     Bodhjung Chowmuhani, Agartala,

     Represented by,

     The Chairman cum Managing Director.

2. Senior Manager,

     Electrical Sub-Division-1,

     Banamalipur, Agartala.

                                     ….    ….    ….    ….    Appellants.

                          Vs

     Sri Ajoy Saha, S/O. Lt. Satish Chandra Saha,

     Town Pratapgarh, (Near Sarooj Sangha),

     Banamalipur, Agartala.

                                    ….    ….    ….    ….    Respondent.

PRESENT :

             HON’BLE MR.JUSTICE S.BAIDYA,

             PRESIDENT,

             STATE COMMISSION

                  MRS. SOBHANA DATTA,

             MEMBER,

               STATE COMMISSION.

For the Appellants    :      Smt. R.Purkayastha,Adv.

          For the respondent   :      Mr.K.Datta,Adv.

Date of Hearing         :     08.01.2015.

Date of delivery of Judgment  :11.02.2015.

J U D G M E N T

S.Baidya,J,

            This appeal filed on 01.07.2014 by the appellants under Section 15 of the Consumer Protection Act., 1986 is directed against the judgment and order dated 07.03.2014 passed by the Ld. District Consumer Disputes Redressal Forum, (in short District Forum), West Tripura, Agartala in case No.C.C-41 of 2013 whereby the complaint petition filed under Section 12 of the C.P.Act, 1986 is allowed and the O.Ps have been directed to restore the electric connection of the complainant within seven days of the date of payment of Rs.25,000/- as first instalment of outstanding electric bill with a further direction that the rest amount of arrear bill shall have to be paid by the complainant in equal monthly instalment which would start from the following month of the payment of the first instalment as aforesaid and further the O.Ps are directed to pay compensation of Rs.50,000/- in lumpsum to the complainant towards loss of his earning, mental agony and inconvenience caused to him together with Rs.1500/- as cost of litigation within a period of two months from the date of receipt of the copy of the judgment, failing which the amount of compensation shall carry interest @ 9% p.a. till realization.         

2. The case of the appellant-O.Ps as narrated in the memo of appeal, in brief, is that the respondent-complainant was a consumer of an electricity connection No-201040544076-11396 and due to his cardiac problem and then open heart surgery, he was not in a position to undertake heavy work and established a noodles factory at his residence situated in Town Pratapgarh, Agartala and then the factory was registered as SSI Unit with the Department of Industries, Govt. of Tripura financed by Tripura Industrial Corporation Ltd. and the machine installed for production of noodles was power driven and the Tripura State Electricity Corporation Ltd.(TSECL), Electrical Sub-Division-1, Banamalipur arranged for supply of electricity.                                                  
3. It has also been stated that as per provision of the Tripura Electricity Regulatory Commission (standard of performance) Regulation, 2004, the TSECL was required to raise bill for every billing cycle which was monthly.
4. It has also been alleged that the TSECL ignoring the billing cycle raised bill for six months from April, 2011 to October, 2011 for an amount of Rs.59,638.80 and on receipt of the aforesaid huge quantum of bill, the complainant became perplexed and submitted a representation dated 19.11.2011 to the O.P. No-2 followed by several personal approach to allow him monthly instalment @ Rs.6000/-, but he did not get any reply and thereafter, the TSECL raised two other bills for the month of November and December, 2011 following the billing cycle and accordingly, the respondent tendered the bill amount by cheques, but the appellant No-2, instead of accepting the said cheques, returned the same on flimsy ground and after remitting the cheques the respondent met the appellant No-2 who took him to Assistant General Manager, TSECL when he was told that unless the outstanding electric bill of Rs.59,638/- was cleared by him in a single stroke, further payment would not be accepted.
5. It has also been alleged that the respondent had been receiving bills from TSECL for different spells which seemed to be inconsistent and unrealistic and the respondent had every reason to believe that the electric meter supplied to him by the TSECL was defective.
6. It has also been stated that on 17.11.2012, the appellant No-2 issued a notice to the respondent threatening to disconnect the electric connection unless the pending bills were cleared and in reply to that, the respondent wrote a letter dated 29.11.2012 to the appellant No-2 requesting him to reassess the bills in realistic manner and also issue revised bills, but the appellant No-2 without paying any heed to his request disconnected the electric connection on 30.11.2012 resulting in closure of his business and then the complainant filed the complaint before the Ld. District Forum under Section 12 of the C.P.Act, 1986.
7. It has also been alleged that the Ld. Forum considering the pleadings of the parties and the evidences passed the impugned judgment and being aggrieved by and dissatisfied with the impugned judgment the O.Ps as appellants have preferred the instant appeal assailing the said judgment on the grounds that the direction for payment of compensation by virtue of the impugned judgment is not tenable being contrary to the evidence on record, that the Ld. Forum failed to consider that the Tripura Electricity Regulatory Commission (standard of performance) Regulation, 2004 regarding determination of billing procedure was initially framed, but after the establishment of the Tripura State Electricity Corporation Ltd. in the year 2005, the Tripura Electricity Regulatory Commission framed the Electricity Supply Code Regulation, 2011 precisely dealing with billing cycle and payment mode and thus, the earlier Tripura Electricity Regulatory Commission Regulation, 2004 has been repealed automatically, that the Ld. Forum failed to consider that on the basis of the letter of the respondent, a meeting was held in the chamber of the AGM,EC-II where the respondent was also present and on mutual agreement, it was decided that the respondent would in one single stroke clear up the entire pending bill and that the impugned judgment is otherwise bad in law for non-application of judicial mind by the Ld. Forum as there was no deficiency of service on the part of the appellants and hence, the appellants have filed the instant appeal praying for setting aside the direction for payment of compensation by the O.P.-appellants to the complainant-respondent by virtue of the impugned judgment and order dated 07.03.2014 passed by the Ld. District Forum in case No.C.C.41/2013.                   

Points for consideration.

8.       The points for consideration are (1) whether the Ld. District Forum was proper, legal and justified in passing the impugned judgment  and (2) whether the impugned judgment which is under challenge in this appeal should be set aside so far it relates to the direction to make compensation to the complainant as prayed for.       

                         Decision with Reasons.

9.  Both the points are taken up together for the sake of convenience and brevity.
10. On perusal of the pleadings of the parties, the evidences both oral and documentary, the impugned judgment and the memo of appeal, we find certain admitted facts. Admittedly, the respondent has established a noodles factory at his residence situated in Town Pratapgarh, Agartala which has been registered as SSI Unit with the Department of Industries, Govt. of Tripura and the machine installed for production of noodles was power driven. It is also admitted fact that the appellant-Tripura State Electricity Corporation Ltd., Electrical Sub-Division-1, Banamalipur, Agartala arranged for supply of electricity for operating the machine installed in the said noodles factory of the respondent-complainant. It is also admitted fact that TSECL was required to raise electricity bill for every billing cycle. According to the complainant-respondent, the billing cycle was monthly. On the other hand, according to the TSECL, that there was no hard and fast rule that the billing cycle should be monthly.       
11. It is also admitted fact after the establishment of the said factory the TSECL raised the first bill dated 18^th February,2011 covering the period from 09.12.2010 to 10.02.2011 for an amount of Rs. 5,726/- and the second bill dated 17^th March,2011 covering the period from 10^th February, 2011 to 10^th March,2011 was also raised for an amount of Rs.5391/-. It is also admitted fact that no dispute arose regarding the raising of bill upto March, 2011. It is also admitted fact that the TSECL thereafter raised a bill covering the period of six months from 10.04.2011 to 10.10.2011 on 17.10.2011 for an amount of Rs.59,638.80. It is also admitted fact that on getting the said electric bill for such a huge amount the respondent-complainant made a representation to the O.P.-appellant No-2 vide letter dated 19.11.2011 requesting to allow him to make payment by monthly instalment at the rate of Rs.6,000/-. It is also admitted fact that the O.P.-appellant No-2 thereafter, raised two further bills for the month of November and December, 2011 following the monthly billing cycle for an amount of Rs.8,896/- and Rs.8,043/- respectively and in response to that, the complainant-respondent remitted the said two amounts through cheques drawn on the Tripura State Co-operative Bank, but the O.P. No-2 did not accept the said cheques. In this regard, according to the appellants, the cheques were sent after the expiry of due date and in that case the consumer required to deposit the gross amount of the bill, but complainant remitted the cheques only for net amount and not for the gross amount and for that reason the O.P. No-2 returned the said two cheques to the complainant-consumer.
12. The learned counsel for the appellant-TSECL referring to Section 50 of the Electricity Act, 2003 submitted that State Commission meaning the State Electricity Regulatory Commission shall specify an electricity supply code to provide for recovery of electricity charges, intervals for billing of electricity charges, disconnection of supply of electricity for non-payment thereof, restoration of supply of electricity, measures for preventing tempering, distress or damage to electrical plant or electrical line or meter, entry of distribution licensee or any person acting on his behalf for disconnecting supply and removing the meter, entry for replacing, altering or maintaining electric lines or electrical plants or meter and such other matters. Miss R.Purkayastha, learned counsel for the appellants also submitted that the substituted Section 50 as mentioned above has come into force w.e.f. 15.06.2007 and following that the Tripura Electricity Regulatory Commission has prepared the Electricity Supply Code Regulation-2011 in which the system for preparation of billing has been provided under Regulation No-6. She also referring the Regulation 6.1 submitted that the licensee i.e. the TSECL shall intimate the consumer, in the beginning of the financial year, of the following :- (1). probable week in which bill shall be issued by the licensee in every billing cycle; (2). probable due dates for payment of bill ; and (3). Rebates applicable to consumers, if any. She also submitted that from the raising of first two bills of the complainant, it is clear that the billing cycle was monthly. She also submitted referring to regulation 6.6 that if the consumer does not receive the bill within seven days of the bill issue date, he may obtain a duplicate bill from the concerned billing office of the licensee and the licensee shall issue a duplicate bill immediately, if the consumer contacts the licensee’s office in person/telephonically, or on the date of acknowledgment if received by post. It has also been provided by the said Regulation that non-receipt of the bill shall not entitle the consumer to delay payment beyond the due date.         
13. The learned counsel for the appellants further submitted that when the complainant did not receive electricity bill on and from April, 2011, it was incumbent upon the complainant-consumer to obtain a duplicate bill from the concerned office of the O.P. No-2, but the complainant waited for six months without making any payment for the electricity consumed for running his noodles factory. She also submitted that practically the complainant was at fault for not making any payment following the rules contained in regulation 6.6 of the Electricity Supply Code Regulation-2011.
14. She also submitted that in response to the letter of the complainant dated 19.11.2011 by which the complainant requested for allowing him to make payment by instalment at the rate of Rs. 6000/-, the O.P. No-2 informed the complainant to remain present in the chamber of AGM,EC-II on 16.02.2012 for discussion about the prayer for monthly instalment and on that date the complainant was present to settle the dispute and it was decided as agreed upon by the complainant that the bills as raised by the O.Ps would be paid by a single stroke, but the complainant did not comply such decision. She also submitted that the allegation of the complainant in not making any response to his letter dated 19.11.2011 is, therefore, not correct. She then further submitted that there was no deficiency in service on the part of the O.P.-appellants, but the Ld. District Forum, in spite of that, passed the impugned judgment directing the present appellant-O.Ps to pay a lumpsum amount of Rs.50,000/- to the complainant as compensation which not being proper, legal and justified is not sustainable in the eye of law and as such the impugned judgment containing the direction for making payment of Rs.50,000/- to the complainant by the O.P. is liable to be set aside by way of allowing the appeal.  
15. Mr.K.Datta, learned counsel for the respondent–complainant submitted that following the direction given in the impugned judgment the complainant has deposited the entire amount through instalments. He also submitted that during the pendency of the appeal the respondent-complainant filed an application on 14.10.2014 supported by an affidavit along with two cash memos and eight money receipts showing that due to the sudden disconnection of the electricity in the noodles factory, the complainant suffered a lot as he had to make payment to the two workers remaining idle and also for damages of the raw materials required for preparation of noodles, copy of which has been served upon the learned counsel for the appellant-O.Ps.. He also submitted that the respondent have filed above mentioned documents to establish that really the respondent suffered financially. He also submitted that the Ld. District Forum allowed a compensation of Rs.50,000/- by the impugned judgment in favour of the respondent-complainant and the instant documents have been filed to substantiate the claim of the complainant as upheld by the Ld. District Forum by the impugned judgment. He then submitted that the Ld. District Forum properly considered the quantum of damages suffered by the complainant and passed the order directing the O.P.-appellants to make payment of Rs.50,000/- to the complainant-respondent as compensation by the impugned judgment which being proper, legal and justified should be affirmed.       
16. The learned counsel for the appellants drawing our attention to the Second cash memo submitted that there is an over-writing in respect of the year of issue of the said cash memo. She also submitted that the respondent being the appellant did not prefer any appeal. She also submitted that the documents filed by the respondent in this appeal practically had no existence while the case was pending before the Ld. District Forum, otherwise the same would have been produced in that proceeding. She also submitted that as the respondent did not prefer any appeal concerning the quantum of compensation as awarded by the impugned judgment, there is no scope to enhance the said amount of compensation in this appeal. She also submitted that the respondent somehow got the above mentioned documents manufactured and filed the same before this Hon’ble Commission with a view to justify the quantum of compensation as granted by the Ld. Forum. She also submitted that having at least an interpolation in one cash memo and, not only so, the said cash memo even after interpolation has got no relevancy for the period when disconnection of electricity in the noodles factory of the complainant was made. She also submitted that in the above facts and circumstances, the documents was submitted after manufacturing cannot be accepted and relied on by this Hon’ble Commission. She lastly submitted that the Ld. Forum without any basis awarded an amount of Rs.50,000/- as compensation by the impugned judgment whimsically against the O.P.-appellants and as such the direction of making payment to the complainant for an amount of Rs.50,000/- as compensation in the impugned judgment should be modified.
17. Admittedly, the first electricity bill for February, 2011 prepared on 18.02.2011 covers a period of consumption of electricity from 09.12.2010 to 10.02.2011 and the second electricity bill for the month of March, 2011 prepared on 17.03.2011 covers the period of consumption of electricity from 10.02.2011 to 10.03.2011. There was no dispute regarding these two bills. The second bill indicates that the billing cycle for raising electricity bill was monthly. The first bill indicates that the billing cycle was almost two months. In this regard, the deposition of O.P.W.1 Sathi Chatterjee, a Senior Manager, Electrical Sub-Division No-1 is vital who clearly admitted in her cross-examination that it is true that the corporation raises electric bill for a consumer for every billing cycle and the billing cycle may varies from 25 days to 35 days. In view of the above deposition of O.P.W.1, it can be accepted that the billing cycle for raising electric bill in the noodles factory of the complainant was monthly. In this regard, the O.P.W.1 made a voluntary statement before the Ld. District Forum stating that as per rule, they are supposed to prepare bill of the consumer for every month and in the case of failure, duty casts upon the consumer to collect the bill from the concerned office. Rule 6.6 of Electricity Supply Code Regulation-2011 also speaks that if a consumer does not receive the bill within seven days of the bill issue date, he may obtain a duplicate bill from the concerned billing office of the licensee. But in the case in hand, we find that the third electricity bill was prepared on 17.10.2011 covering a period from 10.04.2011 to 10.10.2011 i.e. for six months at a time. Undoubtedly it establishes that following the billing cycle the electricity bill was not prepared per month from April to October, 2011. That being the position, it can be said without any hesitation that the complainant as consumer had no scope to obtain any duplicate bill from the concerned office of the O.P. No-2 to make payment for the consumption of electricity regularly and month by month. The argument advanced by the learned counsel for the appellants to the effect that the Regulation casts a duty upon the complainant to obtain duplicate electricity bill from the concerned office of the O.P. No-2 when he did not get the electricity bill as per billing cycle, does not hold good.
18. The ELECTRICITY SUPPLY CODE REGULATION-2011 has come into force w.e.f. 13.03.2012 i.e. the date on which the said Regulation has been published in Tripura Gazette extraordinary issue, but in the case in hand, the dispute has been cropped up regarding the raising of a bill covering a period from 10.04.2011 to 10.10.2011 prepared on 17.10.2011 in violation of billing cycle. So, it is palpable that the disputed electricity bill was during the enforcement of the Tripura Electricity Regulation-2004 and prior to the enforcement of the Electricity Supply Code Regulation-2011 and as such the above Electricity Supply Code Regulation-2011 is not applicable in the instant case.
19. Admittedly, prior to the introduction of the Electricity Supply Code Regulation-2011, Tripura Electricity regulatory Commission (standard of performance) - regulations-2004 was in force. It means this regulation of 2004 has been repealed on and from 13.03.2012 and as such the billing matter concerning the electricity would be governed by the regulation of 2004 and not by regulation of 2011. The Rule 10 of regulation of 2004 clearly provides that the licensee shall notify billing and payment schedule area-wise, district-wise or circle-wise as may be decided by the licensee who would raise the bill for every billing cycle based on actual meter reading. So, it is found that there was no specified period indicating the period of every billing cycle in the Electricity Supply Code Regulation-2004 for raising electricity bill. In this regard, the deposition of O.P.W.1 helps us and the same establishes that the billing cycle varies from 25 days to 35 days. It means that the billing cycle was monthly at the relevant time. Going through the regulation of 2004, we do not find any Rule like Rule 6.6 of the regulation of 2011, rather the rule 10 (iii) of the Regulation- 2004 provides that the delivery of each bill shall be effected at least 15 days before the last date of payment of the bill. Therefore, it is found that non-raising of any electricity bill in respect of the noodles factory of the complainant on and from 10.04.2011 month-wise as per billing cycle following the regulation of 2004 is obviously a deficiency of service on the part of the appellant-TSECL. Accordingly, we are in agreement with the findings of the Ld. District Forum to the effect that the TSECL was negligent and deficient in service towards the complainant as a consumer in this regard.
20. As regards the letter dated 19.11.2011 filed by the complainant-consumer in the office of the O.P. No-2 seeking instalments at the rate of Rs.6,000/-, the learned counsel for the appellants submitted that a meeting was held in the office-chamber of the A.G.M.,E.C.-II on 16.02.2012 where the complainant agreed to make payment of the entire due amount by a single stroke and as such instalment was not allowed, but the complainant did not make any payment as agreed by him in the said meeting. On the other hand, it is the specific case of the complainant that the appellant-O.Ps did not make any response in respect of his letter dated 19.11.2011. In this regard, O.P.W.1 admitted in her cross-examination that no resolution was adopted to the effect that the complainant was ready to pay the whole amount of the disputed bills at a time. The complainant as P.W.1 categorically denied this case of the O.P-appellants, rather he stated in his cross-examination that on receipt of electricity bill for the period of six months at a time, he met the A.G.M.,E.C-II, electricity department. This P.W.1(complainant) further stated in his cross-examination that he did not give any undertaking to make payment of the bill for six months at a time as suggested by the learned counsel for the O.Ps. Going through the Tripura Electricity Regulatory Commission (standard of performance) – Regulation 2004, we are of the view that the provision to allow to the consumer to make payment of the electricity bill for a disputed amount by instalment is not unknown to the said Regulation.
21. The learned counsel for the respondent submitted that the complainant is a small entrepreneur and it was very difficult for the complainant to make payment of a huge amount towards electricity charges for six months at a time and that is why the complainant made a representation seeking for making payment by instalments. He also submitted that instead of making any response to his representation dated 19.11.2011, the O.P. kept themselves mum. He also submitted that this is nothing, but a sheer deficiency in service on the part of the O.P.-appellants towards the complainant.
22. It has already been mentioned that the provision for allowing instalment for making payment of electricity bill is not unknown to the Supply Code Regulation-2004. We also get a hint in this regard going through the Rules 24 and 25 of the said code. When the complainant as a consumer made such a representation before the O.P-appellants by letter dated 19.11.2011, it was incumbent upon the said O.Ps to hear the complainant and dispose of his representation. Admittedly, no resolution was adopted in respect of the alleged meeting dated 16.02.2012. No document whatsoever was produced from the side of the O.Ps to show that actually any meeting was held on 16.02.2012 in the chamber of the A.G.M.,E.C-II concerning representation of the complainant dated 19.11.2011. There is also noting to show that the complainant was present in the alleged meeting. There is also nothing to establish that the complainant agreed to make payment of the entire sum in a single stroke. Going through the complaint and the deposition of the complainant as P.W.1 and also the cross-examination of O.P.W.1 and the facts and circumstances mentioned above, it has become crystal clear that actually no such meeting was held on 16.02.2012 as alleged by the O.Ps. Therefore, we are of the view that non-making of any response to the representation of the complainant dated 19.11.2011 by the O.Ps is nothing, but a negligence and deficiency in service on the part of the O.P-appellants. In this regard, we are also in agreement with the findings of the Ld. District Forum.
23. We have gone through the findings of the Ld. District Forum regarding negligence and deficiency in service on the part of the O.Ps and we are of the view that the Ld. District Forum meticulously considered the facts and circumstances and rightly arrived at the conclusion that the O.Ps are negligent and deficient in providing service towards the complainant and accordingly, the complainant are entitled to get compensation.       
24. Going through the impugned judgment, we find that the Ld. Forum has assessed the loss of the complainant merely on guess having no materials to assess the same. The Ld. District Forum has pointed out in the impugned judgment that for disconnection of the electric line, the complainant’s factory had been closed on 30.11.2012 and as a result, a huge amount of financial loss was sustained by him towards loss of earning, payment of wages to the two workers, damage of raw materials etc. and as such the complainant is certainly entitled to be compensated. The Ld. Forum has pointed out that the complainant did not furnish detailed statement of account showing month wise quantum of production of materials in the factory, number of labourers employed there, the amount of wages paid to them and the percentage of profit would have been made by the complainant from the materials to be sold in the market. It transpires that to cover up this matter the respondent in the appeal has produced two cash memos and eight money receipts and nothing more. According to us, to cover up those points the complainant has to produce purchase book of raw materials, the account book, stock book, payment register and the profit and loss account of his noodles factory for the relevant period. In fact, the respondent-complainant miserably failed to produce any of those documents. The cash memos dated 25.11.13 (the number of year is interpolated) is not for the relevant period. Other documents so furnished give no clear and acceptable figure concerning the loss sustained by the complainant at the relevant time and as such, we find no cogent ground to place any reliance upon the documents so furnished by the respondent along with application for additional documents filed in this appeal. As the documents required for assessing loss sustained by the complainant properly are wanting, we are not inclined to accept and place reliance upon the documents so furnished by the respondent in this appeal and accordingly, the application for additional documents filed by the respondent in this appeal having no merit and acceptable ground is rejected.
25. The Ld. District Forum itself has pointed out in the impugned judgment that having no document as mentioned earlier in this judgment it proceeded to assess quantum of loss merely on guess. As per case of the complainant made out in the complaint, the working capital of the complainant in all was at Rs.1,60,000/- only. It is not expected that a small factory of the complainant used to purchase and stock huge quantity of raw materials at a time for manufacturing noodles. In the absence of required document for assessing the quantum of loss suffered by the complainant, we are of the view that awarding an amount of Rs.50,000/- directing the O.Ps to make payment to the complainant is found exorbitant one. Considering all aspects, we are of the view if it is assessed a loss of Rs.25,000/- including for mental agony and harassment on account of negligence and deficiency of service of the O.Ps and accordingly, a compensation of Rs.25,000/- on that score, if awarded, is found justifiable one. In that view of the above, we are of the opinion that the amount of compensation of Rs.50.000/- is also liable to be modified and reduced to Rs.25,000/- and other portion of the judgment will remain unaltered and the appeal is liable to be allowed in part with cost as we find no other points to interfere with the other findings of the Ld. Forum, barring the reduction of the amount of compensation to Rs.25,000/- in lieu of Rs.50,000/-.                          
26. In the result, the appeal is partly allowed with cost. The direction of the Ld. District Forum given in the impugned judgment directing the O.Ps to pay compensation of Rs.50,000/- in lumpsum to the complainant towards loss of his earning, mental agony and inconvenience caused to him is modified and instead of that, the O.P.-appellants are directed to pay compensation of Rs.25,000/- in lumpsum to the complainant on that score. The other portion of the impugned judgment remains unaltered.
27. The appellant-O.Ps are directed to deposit a sum of Rs.5000/- in the Legal Aid Account of this Commission within one month from the date of this judgment, failing which this amount shall carry interest @ 9% p.a. after the expiry of one month till the payment is made.

                      MEMBER                                             PRESIDENT

                            State Commission                                    State Commission

                                    Tripura                                                      Tripura