J U D G E M E N T
Mr. Sankar Kumar Ghosh, Hon’ble President ─ This consumer complaint under section 11 & 12 of C.P. Act, 1986 has been filed by the complainant against the OP named above alleging deficiency in service on the part of OP.
Complainant’s case, in brief, is as follows: - That complainant is a permanent resident of Vill. Dakshin Jhapordah(Sibtala), P.O. Dakshin Jhapordah, P.S. Domjur, Howrah – 711 405 and residing in the said address with his family members since birth.
That complainant in the month of May, 2014 made an application for new electric connection before the office of the OP i.e. Station Manager, Domjur CCC, WBSEDCL, P.O. & P.S. Domjur, Howrah for his residential house in the aforementioned address vide Application No. 1002040217.
That on the basis of the said application OP issued a quotation in favour of the complainant on 24/06/2014 with a direction to deposit a sum of Rs.877/- only which includes service connectin charges and security charges for the purpose of new connection/supply of electricity and accordingly complainant paid the said amount i.e. Rs.877/- with proper receipt on 07/07/2014 before the office of the OP, as a result, complainant became the consumer of the OP being Consumer ID No. 101734687.
That after complying with all such formalities complainant repeatedly visited the office of the OP for immediate electric connection for his residential building and on every visit since August, 2014 complainant had been assured by the office of the OP for immediate connection but all such assurances on the part of the OP have been proved in future till this date.
That upon such negligence or to make such electric connection in the house of the complainant on the part of the OP complainant sent a written complaint by registered post on 04/09/2017to the OP, WBSEDCL.
Under such compelling circumstances and finding no other alternative way in regard to get such new election connection complainant filed this case before this Commission praying for direction upon OP to make new electric connection to the residential house of the complainant and also praying for direction upon OP to pay compensation of Rs.30,000/- (Rupees thirty thousand) to the complainant for such delay/negligence to make new electric connection to the house of the complainant.
OP has contested the case by filing W/V denying all material allegations and contented inter alia that: -
That complainant has got no cause of action or right to sue as alleged because of suppression of fact and the instant case is not maintainable either in law or in fact. The OP also stated that OP received a requisition for supply for new service connection and accordingly as per the mandate of statute OP made spot quotation, thereafter complainant deposited the quotation amount of Rs.877/- on 07/07/2014 but after inspection in order to ascertain the feasibility of giving such supply it was observed that the premises in which complainant applied for new service connection, is a electric disconnected premises and an outstanding amount is lying in respect of Panchananda Kundu being Consumer ID No. 135001439, which was informed to the complainant vide Letter No. 353 dated 20/08/2014. However, being the permanent resident of the aforesaid property, it transpires that complainant has enjoyed the benefit of service which was standing in the name of Panchananda Kundu and complainant has filed the instant case in collusion and conspiracy with the said Panchananda Kundu, the erstwhile consumer who has defaulted in payment of charges and as per provision of law the OP cannot give supply to the premises where outstanding dues are lying and accordingly one letter was issued to the complainant narrating the reason for non effecting the service connection since there is OSD lying pending in connection with the said premises. OP also stated that complainant deposited outstanding amount only Rs.2220/- on 12/11/2014 and submitted a prayer on 14/11/2014 for effecting the electric service connection in respect of him, but OP submits that total outstanding amount was Rs.54,007.13p in the name of Panchananda Kundu being Consumer ID No. 135001439 and the said bill was served to the applicant, Mr. Narayan Kundu. Moreover, non-paying of final bill i.e. total outstanding amount complainant again asked for said new electric service connection by submitting a letter dated 06/09/2017 to the office of the OP and one further inspection was made by the OP and accordingly OP informed the complainant by a letter bearing No. DMCCC/2312 dated 01/11/2017 that the outstanding amount has not been cleared and as such he was requested to resolve the same and total outstanding amount against Consumer ID No. 135001439 in respect of Panchananda Kundu is Rs.59,313/- as on 13/07/2008.
OP further stated that as the outstanding amount at the premises was not cleared thus as per Clause No. 13.9 of Notification 40 of WBERC, the electric connection was remained as pending and complainant has admitted that he is a permanent resident of the said premises and accordingly complainant has enjoyed the benefit of service in the premises. OP is a creation of statute and it has its own rules and procedures which cannot override at the instance of the complainant and complainant in collusion with the above Panchananda Kundu and other occupants of the premises has applied for service connection without making payment of outstanding dues in order to defraud the OP/Company from its legitimate dues. OP also stated that in order to check mate the fraud the statute has provided to clear outstanding dues in a premises before giving fresh electric connection and OP being a creature of statute cannot be allowed it to be defrauded by consumers who have defaulted in payment of dues. Thus, there is no deficiency in service or any unfair trade practice on the part of the OP and as such, OP has prayed for dismissal of the instant case with heavy cost against the complainant.
POINTS FOR DECISION
- Whether the complainant is the consumer to the OP or not?
- Whether this Commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any unfair trade practice on the part of the OP or there is any deficiency of service on the part of the OP.
- Is the complainant entitled to get relief/reliefs as prayed for?
DECISION WITH REASON
On close scrutiny from the materials on record, it reveals that the complainant is a consumer under Section 2(i)(d)(i)(ii) of the C.P.Act, 1986 to the OPs.
Complainant appears to be the resident of district Howrah whereas OP is residing or having their office within the district of Howrah. Considering the nature of the case and prayers of the complainant it straightway gives clear signal that pecuniary value of the case is within Rs.20,00,000/- i.e. within the limit of this Commission (formerly Forum). So, this Commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try this case.
The point of dispute in short is that being a permanent resident complainant is entitled to get new electric connection in his name in the above said premises whereas OP has challenged the version of complainant and specifically contented that relating to the premises in question an outstanding amount of Rs.54,007.13p was standing in the name of Panchananda Kundu being Consumer I.D. 135001439 and the said bill was served to the complainant by the OP. Moreover, non-paying of final bill i.e. total outstanding amount, complainant paid Rs.2220/- on 12/11/2014 in respect of that outstanding as alleged by the OP and finally OP tried to highlight that only to defraud the OP complainant has made such new application to have electricity afresh.
We find that complainant in support of his case furnished evidence-in-chief. That apart complainant also filed counter affidavit against the W/V of OP. Further, it reveals that complainant filed affidavit in reply against the questionnaire of OP. That apart complainant filed questionnaire against the evidence on affidavit of the OP and complainant also filed BNA.
On the other hand, OP filed evidence on affidavit in support of its case. That apart OP filed questionnaire against the evidence on affidavit of complainant. OP also filed reply against the questionnaire of complainant. OP also filed BNA.
It will not be out of place to mention that both complainant and OP in their evidence on affidavit tried their best to highlight the version they have highlighted in their respective petition of complaint and W/V respectively.
On close scrutiny of the questionnaire on the part of the OP it reveals that OP put direct question to the complainant whether complainant impleaded the owner(s) in respect of the above property and also asked whether complainant will file document to prove the ownership of the property in question.
It is specifically questioned by the OP that whether complainant will implead Panchanan Kundu/Panchananda Kundu who is defaulted consumer in this case. Again OP put question whether complainant will show the status of Panchananda Kundu in respect of the property in question in which complainant applied for electricity. Again OP put question – is complainant agreeable to pay outstanding amount in respect of the above premises? It is specifically questioned by the OP whether complainant has denied in his counter affidavit or affidavit in reply that you (complainant) have not deposited an amount of Rs.2220/- (a part of outstanding amount) in respect of the outstanding amount.
Again OP put question whether complainant is disputing the outstanding bill amount as stated by the OP in the W/V of the premises in question.
From the reply of complainant it reveals that complainant stated that his father, Kanailal Kundu became the owner of premises by inheritance in which he (complainant) applied for electricity. Regarding proof of ownership complainant stated that he will file documents in proving of ownership but record reveals that complainant did not file any document for proving his ownership. Complainant further answered that the question of licensee/licensor put by the OP is irrelevant. Complainant straightway gave answer that he has not impleaded in this case the owners of the property in question. Again he(complainant) stated that he cannot recollect at this moment whether he has filed document to prove the ownership of the property in question in which he applied for electricity.
It is pertinent to mention that complainant straightway answered that Panchananda Kundu already died since long/long years ago. He added that OP has misunderstood his case. Complainant added that Panchananda Kundu was his “Jathamosai” and he died since long but he(complainant) could not file document to that effect. He also stated that he(complainant) is not responsible to file any document.
It may be noted that it is the complainant who has prayed for relief and he is not able to file the document wherefrom it will be evident that Panchananda Kundu died since long years ago.
Complainant further adduced that he has a separate family and the premises in which he applied for electric connection is in their possession since long years and the premises is/was not at all in the possession of Panchananda Kundu and/or his legal heirs.
It is very pertinent to note that complainant answered that he is not agreeable to pay outstanding amount in respect of the above premises. Again, he stated that he cannot recollect whether he has denied in his counter affidavit in reply that he has not deposited a sum of Rs.2220/- (a part of outstanding amount) in respect of outstanding amount.
During course of argument Ld. Counsel appearing for the complainant has placed a decision [2003(2)CLJ, Page 489] being a decision of Hon’ble High Court, Kolkata. Complainant also filed another decision II(2004)CPJ 225 of West Bengal Consumer Dispute Redressal Commission, Kolkata.
Ld. Counsel appearing for the OP during his argument has categorically argued that the dispute involved in the instant case is a billing dispute and complainant has not exhausted his remedies as provided by the statute and as such the complainant cannot invoke the jurisdiction of this Commission (formerly Forum) and this Commission has no jurisdiction to try the instant case. He also argued that the premises in which complainant applied for new service connection is electric disconnected premises and an outstanding amount of Rs.54,007.13p in respect of Panchananda Kundu being Consumer ID No. 135001439 is due and payable and the matter was duly informed to the complainant vide Letter No. 353 dated 20/08/2014. However, complainant, being the permanent resident of the aforesaid property in question and it transpires that the complainant has enjoyed the benefit of service of electricity which was standing in the name of Panchananda Kundu. He added that complainant has instituted this case in collusion and conspiracy with the said Panchananda Kundu who happened to be his “Jathamashai”. He candidly vouched that said Panchananda Kundu has defaulted his payment of dues and in order to deprive the OP from its legitimate dues and at the same time only to defraud the company this case has been introduced by the complainant. He also pointed out that as per provision of law OP cannot give supply where outstanding dues are lying. He also argued that inspection was held upon the application of complainant and complainant was informed by a letter bearing Memo No. DMCCC/2312 dated 01/11/2017 mentioning that outstanding amount of Rs.54007.13p has not been paid and as such complainant was requested to resolve the same. He also drew attention of this Commission that it is needless to mention that complainant in his petition of complaint admitted that he is a permanent resident of the aforesaid premises and complainant has enjoyed the benefit of service of electricity in the premises. He also argued that there is not at all any deficiency in service and there is no negligence on the part of the OP neither it is guilty of any unfair trade practice nor it is guilty in any manner whatsoever.
Going through the said two decisions highlighted by the Ld. Counsel of the complainant and keeping in mind the submissions advanced by Ld. Counsel of the complainant and Ld. Counsel of the OP, it will be noted that at present, right to electricity is a constitutional right under the ambit of Article 21 of the Constitution of India. We may recall a reported decision of Hon’ble High Court, Calcutta in 2011(2)CHN768 (Abhimanyu Mazumdar-Vs-Superintending Engineer and Another) that is a full bench decision of Hon’ble High Court, Calcutta wherein it is observed that a person in settled position of property is free to apply for supply of electricity without consent of the owner and is entitled to get electricity and enjoy the same until he/she is evicted by due process of law.
We should keep in mind that the C. P. Act being a social beneficial legislation and it is our duty to take a liberal view to achieve the avowed object to protect the interest of consumer. Accordingly, we are of the view that though complainant has proved his case but at the same time we must say that OP has succeeded in proving that an amount of Rs.54000.13p is lying outstanding in respect of electricity bills to the premises in question where complainant resides.
It is pertinent to mention that it is conclusively proved that complainant has paid Rs.2220/- towards outstanding dues. Now, question will arise what prompted complainant in making such outstanding dues and from the answer of the complainant relating to the question of OP, we find divergent statements, some time complainant stated that he will file document relating to the ownership of the premises and again he stated that he cannot recollect whether he has paid any amount of Rs.2220/-.
In view of the foregoing discussions, we are constrained to hold that complainant has succeeded to prove his case and at the same time OP has succeeded to prove the outstanding amount mentioned above relating to said premises in question.
Hence, it is,
O R D E R E D
That the instant Complain Case being No. 183 of 2018 be and the same is allowed on contest against the OP without cost.
OP is directed to effect supply of electricity to the premises in question where complainant resides within 8(eight) weeks from the date of this order subject to completion of necessary formalities by the OP including complainant has to make payment of the proportionate outstanding dues out of total outstanding dues of Rs.54,007.13p within 4(four) weeks from the date of this order and said proportionate dues to be calculated by the OP rationally and fairly within 2(two) weeks from the date of this order and OP must communicate the consumer immediately after assessment of such proportionate dues within 2(two) weeks from the date of this order.
Let free copy of this order be given to the parties free of cost.
Dictated & Corrected by me
(Mr. Sankar Kumar Ghosh)
President, DCDRC, Howrah
