Date of Filing – 25.11.2016
Date of Hearing – 18.08.2017
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Party to impeach the Judgement/Final Order dated 03.10.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Purba Medinipur at Tamluk (for short, Ld. District Forum) in Consumer Complaint no. 43/2016. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent Sri Uttam Das @ Uttam Kumar Das under Section 12 of the Act on contest in part with a direction upon the opposite party to recast and send the bill against actual consumption of electricity on average basis to the complainant within one month from the date of order or allow the complainant to pay the disputed bill @ Rs.50/- till final payment, to pay litigation cost of Rs.5,000/- within one month otherwise the OP will be liable to pay Rs.100/- daily as punitive charges.
The Respondent herein being Complainant initiated the complaint before the Ld. District Forum asserting that he is a BPL Card holder having an electricity connection with West Bengal State Electricity Distribution Company Limited (WBSEDCL) being Consumer Id. No.223116393. The complainant has stated that he was consuming two fan points at the summer season, two essential points and one 60W lamp on emergency basis for domestic purpose only and his usual average consumption was within 16-20 units. In the bill for the month of December, 2014 to February, 2015 the total units were shown 458 units, which according to the complainant is abnormal, false and concocted. Regarding the alleged inflated bill, he made several correspondences but went in vain and ultimately his electricity was disconnected by the OP on 24.06.2015. The complainant appealed to the Ombudsman on 03.07.2015 but the Ombudsman Authority remained silent over the matter. Hence, the respondent on the allegation of deficiency in services on the part of the OP/appellant approached the Ld. District Forum with prayer for several reliefs including a prayer to recast and send the bill against actual consumption of electricity on average basis for making payment of dues besides the claim of compensation and litigation cost etc.
The Appellant being Opposite Party by filing written version has stated that due to non-payment of the bill, they had to disconnect the electricity connection of the complainant/respondent after service of notice.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the OP to the extent as indicated above. To assail the said order, the opposite party i.e. the Assistant Engineer and Station Manager, Marishda Customer Care Centre, WBSEDCL, Purba Medinipur has come up in this Commission with the present appeal.
Mr. Srijan Nayak, Ld. Advocate for the appellant has submitted that the impugned order cannot be allowed to stand as the order against the WBSEDCL has been passed without examination by any expert whether the meter in question was defective or not and further when on the basis of order of Regional Grievances Redressal Officer (RGRO), no defect was found in the meter and the respondent/complainant did not challenge the said order of RGRO before the Ombudsman, the complaint was a premature one and Ld. District Forum should have dismissed the complaint.
Per contra, Mr. Debanjan Mukherjee, Ld. Advocate with the assistance of recorded advocate has contended that the respondent is a BPL card holder having no sufficient means to bear the cost of appointment of an expert and further when the disputed bill is apparently on higher side, the Ld. District Forum was quite justified in passing the order impugned. In support of her contention, Ld. Advocate for the respondent has placed reliance to two decisions – (1) a decision reported in (2015) 3 CPR 334 (Ashok Ojha – Vs. – Jharkhand SEB & Ors.) and (2) a decision of Co-ordinate Bench of this Commission in A/1121/2014 (CESC Ltd. – Vs.- Smt. Nilima Ghorui).
I have considered the rival contention of the parties and scrutinised the materials on record.
Undisputedly, Respondent being a consumer under WBSEDCL/Appellant was enjoying electricity connection in his residence situated at Village-Khalsiberia, P.O.-Kajli, P.S.-Marishda, Dist- Purba Medinipur being Consumer Id. No.223116383. The dispute cropped up when a bill for the month of December, 2014 to February, 2015 was generated by the Appellant Company showing total consumption of 458 units. It is also in dispute that the respondent is BPL card holder. According to the Respondent that the bill generated for those three months is higher and it should not exceed from 16 to 20 units a month.
It is 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 Ahmad) 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.
It is evident that challenging the alleged inflated bill, the respondent approached the RGRO in accordance with Regulation No.3.5 of West Bengal Electricity Regulatory Commission published in Kolkata Gazette (Extra-ordinary) dated 12.09.2007. Needless to say, the Regulation has statutory force. The RGRO held a hearing on 17.04.2015 in presence of (1) Junior Manager (HR&A), PMRO, WBSEDCL; (2) Station Manager, Marishda CCC and (3) the respondent/complainant. The RGRO after hearing, passed an order directing the Assistant Engineer and Station Manager, Marishda CCC to install a challenge/check-meter side by side of the existing meter of the complainant/consumer and if there is no abnormality in the meter reading of both the meters, consumer have to pay the disputed bill otherwise the bill will be regenerated from the CCC. In the said order, it has been made clear that if the order does not satisfy or order not received within 60 days, the respondent/complainant has liberty to apply before the OMBUDSMAN directly giving the address in details. The record reveals that subsequently on the basis of the said order vide Memo No.ROPM/E-24B/132 dated 17.04.2015, the Assistant Engineer and Station Manager, Marishda CCC installed one challenged meter and on inspection it was found that there was no abnormality on previously installed meter and by letter dated 17.06.2015 requested the respondent to pay the dues. Ultimately for non-payment of dues, the service connection was disconnected.
The respondent/complainant did not avail the opportunity to prefer appeal before Ombudsman against the order of RGRO. The non-filing of the said appeal is not fatal but when the respondent/complainant approached the Ld. District Forum with an allegation of filling dispute, in all fairness he should have filed an application for appointment of a technical expert to ascertain whether the report filed by the Assistant Engineer and Station Manager, Marishda CCC which was communicated to the respondent dated 17.06.2015 was correct or not. The Assistant Engineer and Station Manager, Marishda CCC was discharging his duties in official course of his business and there is no allegation whatsoever that the said officer has any enmity with the respondent. Moreover, the report submitted by an official cannot be discarded unless any contrary report from any other expert is forthcoming.
The respondent/complainant did not approach the Ombudsman and the Ld. District Forum has mis-directed itself in observing that Ombudsman ordered and directed the appellant to install a challenge/check meter. In fact, the respondent/complainant did not prefer any appeal challenging order of RGRO and further after filing of the complaint, respondent did not pray for appointment of any expert from any Engineering College to verify the report of the appellant. Therefore, it is quite apparent that the complaint was a premature one.
It is true that the respondent is a person living below the poverty line. A person who lives below poverty line may take assistance for appointment of an advocate at the cost of State through Legal Services Authorities Act, 1987 but when there is law, it has to be applied in all its rigour and inconvenience of the parties is an irrelevant consideration.
Considering the above, I have no hesitation to hold that the Ld. District Forum has totally failed to understand the actual proposition of law as well as the facts of the case. The Ld. District Forum has imposed punitive damages of Rs.100/- per day but it is apparent that there was no averment in the petition of complaint or any prayer to that effect. Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered. Such a claim has to be specially pleaded. The decisions referred by the Ld. Advocate for the respondent are totally mis-match with the facts and circumstances of the present case.
For the reasons aforesaid, the appeal is allowed on contest. However, there will be no order as to costs.
The impugned Judgement/Final Order is hereby set aside.
The complaint being CC/43/2016 stands dismissed.
However, this does not debar the respondent/complainant to approach the Ombudsman, WBERC, Bikalpa Shakti Bhawan at Salt Lake City, Kolkata – 700091 and in the process to overcome the delay for the period of pendency of the dispute before the Ld. District Forum as well as in this Commission he may take advantage of the decision of Hon’ble Supreme Court reported in (1995) 3 SCC 583 (Laxmi Engineering Works – Vs. – PSG Industrial Institute).
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Purba Medinipur at Tamluk for information.
