1.      This revision petition under section 19 of the Consumer Protection Act, 1986 (in short, the “Act’) assails the order dated 06.09.2017 in Appeal No. A/1181/2015 of the State Consumer Disputes Redressal Commission, West Bengal, (in short, the ‘State Commission’) allowing the appeal of the respondent against order dated of the District Consumer Disputes Redressal Forum, Paschim Midnapur (in short, the ‘District Forum’) dated 18.08.2015 in Consumer Complaint no. CC/25/2013.

2.      The facts as per the petitioner are that he is a consumer of the West Bengal State Electricity Distribution Co. Ltd. (WBSEDCL). Manikpara, P.S. Jhargam, West Bengal and that he received a bill of Rs 62,737/- for the period June 2010 to April 2012 which was stated by the respondent to be the bill based on reading of the meter since previous bills were based on estimations in view of extremist activities by the Mao in the area during the period. Petitioner contends his average electricity consumption was 40 to 50 units per month and hence this was very excessive. However, the WBSEDCL rejected his representation and therefore he approached the District Forum which allowed his complaint. The State Commission, on appeal, set aside this order on the ground that the petitioner did not approach the Regional Grievance Redressal Officer (RGRO) as per Regulation 3.5 of the West Bengal Electricity Regulatory Commission and that the order of the District Forum was not based on any report of an Expert to rectify the bill. The assail in this petition is against this order of the State Commission. 

3.      I have heard the learned counsel for both the parties and carefully considered the material on record.       

4.      The petitioner argued that the order of the State Commission was erroneous and had incorrectly appreciated the evidence. It was argued that the respondent had not been issuing bills based on actual reading of the meter in respect of his Service Connection No. K/2018/D and Consumer No. K019887. The bill dated 07.07.2012 was illegal and arbitrary and in response to his request to rectify the bill, his electricity connection was cancelled. His complaint no. 136/2012 before the District Forum was dismissed for default in appearance as he was keeping unwell. However, CC/25/2013 filed subsequently was allowed. Petitioner states that his house comprises three rooms of which two are being used as a Studio, Xerox centre and Dispensary of a local doctor. The agency for recording meter readings was one ‘Royal Bengal’. The room in which the meter was located was under lock and key for a long time and due to extremist activities in the area between 2009-11 meter readings were not undertaken and bills were prepared on average usage basis. As the meter reading on 03.05.2012 was found to be 10073 indicating consumption of 9583 units, a check meter was installed on 16.06.2012 which indicated consumption on 03.07.2012 of 80.7 units whereas the actual meter indicated consumption of 81 units. Hence, the meter was found to be working satisfactorily and the bill was found to be justified and legal by the respondent. The petitioner contends that the respondent had admitted that they had not visited the premises for recording meter reading and bills had been raised for years on the basis of assumption.

5.     The order of the State Commission is assailed on the grounds that (i) the State Commission failed to exercise its jurisdiction under the law and allowed the appeal on the ground that an application was not filed before the RGRO to appoint a technical expert to assess the bill generated under the Electricity Act, 2003 since the remedy under the Consumer Protection Act, 1986 was an additional remedy to adjudicate such a dispute; (ii) the State Commission failed to appreciate that there was a clear negligence by the respondent and dereliction of duty since it was admitted that they failed to visit the premises between 2009-11 to record the meter reading to establish the actual consumption; (iii) the installation of a check meter was a burden on people of meagre means in villages; (iv) the State Commission failed to appreciate that the bills for January to July, 2010, August 2010 to October 2010 and November 2010 to January 2012 showed a total consumption of 156 units as recorded by the opposite party. Hence, the bill dated 07.07.2012 could not be for 416 units per month; (v) failure to record meter readings regularly was a deficiency in service on part of the respondent; (vi) the finding of the State Commission that the petitioner had installed a 2 HP submersible pump for agriculture is stated to be not supported by any evidence and, without prejudice, that the charge levied was not as per the lower tariff permitted for agriculture. The grounds urged for setting the order of the District Forum are (a) lack of jurisdiction and (b) the petitioner not praying for appointment of an Expert. The prayer is to allow the revision petition.

6.      Learned counsel for the respondent submitted that the order of the State Commission was dated 06.09.2017 and that the complaint was filed after 86 days without any application for condonation of delay. It relied upon the order of the State Commission that held that the appropriate forum for the redressal of the grievance was the Regional Grievance Redressal Officer (RGRO) as per Regulation 3.5 of the West Bengal Electricity Regulatory Commission under the Notification issued by the Government in terms of the Electricity Act, 2003 and there was an opportunity of appeal before the Ombudsman, WBERC. It was also contended that the petitioner had failed to seek the appointment of a Technical Expert to assess the disputed bills and therefore the order of the District Forum was flawed. It was admitted that bills were on an average of previous consumption on account of constraints of law and order conditions and that the bill had now factored in the actual reading based upon the verification of the meter.

7.      The order of the District Commission had, on contest, concluded as under:

Admittedly, the complainant is a bona fide consumer under the opposite parties. Main point for consideration in this case is whether that disputed bill of Rs.62,737/- has been drawn as per actual consumption and whether there is deficiency in service on the part of the opposite parties. From the disputed bill dated 07.07.2012 we find that the said bill is for the consumption period from month of June 2010 to April 2012 and the total unit of consumption was shown as 9538 units. According to the opposite parties, as we find from their w/o that at the relevant time, their ‘agency’ could not take meter reading of the disputed meter as room of the complainant, where the meter exists was under lock and key for a long time and besides that, several movements were going on in the locality from 2009 to 2011 and as such bills were prepared for the period on the basis of table reading. There is no evidence on record that the meter room of the complainant was under lock and key for a long time and that was any such movements in the locality which prevented the ‘agency’ of the opposite party from taking meter reading of the disputed service connection. Without taking meter reading for such a long years, the opposite party installed check meter and prepared a bill of Rs.62,737/- showing consumption of 9583 units from the month of June 2010 to April 2012 which means consumption of 416 units per months. But from the bill dated 17.08.2010, 11.11.2010 and 13.02.2012 for the consumption period of January 2010 to July 2010, August 2010 to October 2010 and November 2011 to January 2012 respectively we find that total units of consumption in those three bills was 156 units. Those bills were prepared and sent by none else than the opposite parties. So under no stretch of imagination it can be presumed that the average consumption of electricity in the said meter would be 416 units per months as claimed in the disputed bill dated 07.07.2012. It was the duty of the opposite parties to take meter reading of the disputed connection regularly and send bill accordingly. If that is not done by the opposite parties than such failure amounts to deficiency in service on the part of the opposite parties and the opposite parties cannot prepare bill showing apparent excessive consumption of electricity. In the w/o opposite parties have made out a case that it was found by them that the complainant utilizes electricity unauthorizedly by installing 2 H P submersible pump for cultivation by exceeding the load capacity. There is no evidence on the part of the opposite parties regarding unauthorized installation of submersible pump and consumption of electricity in such a manner. So the said case of the opposite parties justifying consumption apparent excessive unit of electricity is not believable. It therefore, held that opposite parties are liable for deficiency in service on their part as they did not take regular meter reading for such a long period and thereby sending a bill of huge amount showing consumption of excessive unit of electricity. It therefore, held that the complainant’s case is proved he is therefore, entitled to get the relief, as prayed for.

8.      The finding of the State Commission vide the impugned order is that:

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., and 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 providers has charged a price in excess of the price fixed by or under any law.

The materials on record indicate that challenging the authenticity of the disputed bill, the respondent did not approach Regional Grievance Redressal Officer (RGRO) as per Regulation no.3.5 of West Bengal Electricity Regulatory Commission published in Kolkata Gazatte (extra-ordinary) dated 12.09.2007 being Notification no.36/ WBERC. Needless to say, the said Regulation has a statutory force and as such the respondent had opportunity to approach the RGRO for ascertaining the authenticity of the dispute bill. In the said Regulation, there is an opportunity to prefer appeal before the Ombudsman, WBERC at Salt Lake City, Kolkata within 60 days from the order of RGRO or the action taken thereof.  In any case, the respondent/ complainant did not approach the authorities as provided in the Regulation Flows from the Electricity Act, 2003.

The non-filing of any application before RGRO obviously is not fatal. But when the respondent/ complainant approached the District Forum with an allegation of billing dispute, in all fairness he should have filed an application for appointment of technical expert to ascertain whether the bill generated by the WBSEDCL for the period from June 2002 to April 2012 amounting to Rs.62,737/- was correct or not. The officials of WBSEDCL are discharging their duties in official course of business and there is no allegation whatsoever by the respondent that the Station Manager, Manikpara CCC of WBSEDCL or any other employee has any hostile animus with him. In such a situation when the appellant/ licensing authority has unequivocally stated that there was no defect in the meter, a Consumer Forum has no mechanism to solve the dispute unless any report by any expert contrary to the report of Station Manager of Manikpara CCC is forthcoming.

The District Forum has observed that the contention of the WBSEDCL regarding table reading of the meter for the period from 2009 to 2011 on account of extremist activities is not acceptable as there is no such evidence to that effect. In order to prove the allegation of extremist movement in the year 2009-2011 in the Jhargram area, no such evidence is required and judicial notice may be taken to this fact. The District Forum has also given emphasis on account of failure on the part of opposite parties to prove unauthorized installation of submersible pump by the respondent. The failure on the part of the opposite party does not indicate that complainant has proved his case. It is the complainant who has brought the allegation and as such the burden of proof lies upon him and when despite opportunity, the complainant/ respondent either did not approach the RGRO in accordance with Regulation 3.5 as noted above and further when did not pray for appointment of any expert before the District Forum, the District Forum had no reason to pass any order directing the opposite parties to rectify the dispute bill and to issue a fresh bill, as per the average consumption of previous meter reading of six months or one year. Such a finding appears to be an erroneous one and as such the impugned order being not sustainable in the eye of law, liable to be set aside.

9.      From the material on the record, it is apparent the State Commission set aside the order of the District Forum relying on the decision of the Hon’ble Supreme Court in UP Power Corporation Ltd. & Ors. Vs. Anis Ahmad, (2013) 8 SCC 491 that while the Electricity Act, 2003 and the Consumer Protection Act, 1986 run parallel for redressal to any person who falls under the definition of a ‘consumer’ as defined under section 2(1)(d)(ii) of the Act, it is limited to a dispute relating to ‘unfair trade practice’ or a ‘restrictive trade practice’ adopted by the service provider or ‘deficiency in service’ or hazardous service or if the service provider has charged a price in excess of the price fixed by or under any law. It was held that while the non-filing of any application before the RGRO was not fatal, the case before the District Forum should not have been without an application for a Technical Expert in all fairness. Accordingly, the appeal was allowed.

10.    Reliance was placed by the petitioner on judgment of this Commission in Ashok Ojha Vs. Jharkhand State Electricity Board & Ors. Revision Petition No. 67 of 2010 dated 01.06.2015, 2015 SCC OnLine NCDRC 2565 wherein it was held that a complaint against an assessment under section 126 or a decision of an appellate authority under section 127 or offences under section 135 to 140 does not lie to a Consumer Fora as per Anis Ahmad (supra); however, where no notice is sent to the petitioner under section 126 or sections 135 to 140 of the Electricity Act, 2003 with respect to “unauthorized use of electricity”, “pilferage” or “theft of electricity”, the Consumer Fora have jurisdiction to adjudicate.  

11.    From the record, it is evident that the State Commission’s order does not mention any notice under section 126 or 135 to 140 of the Electricity Act, 2003 having been issued by the respondent. In terms of Ashok Ojha (supra) the complaint is therefore maintainable under the Consumer Protection Act, 1986. The moot issue in the instant complaint pertains to the basis of the billing done by the respondent. Admittedly, the bills issued were on the basis of an approximation for nearly 2 years between 2009 to 2011. The correctness and accuracy of the meter installed has been tested by the respondent by means of instalment of another meter. It is not the petitioner’s case that the meter reading is flawed. Rather, it is that the respondent was deficient in not having recorded the reading on a regular basis and is now presenting a bill on the basis of actual reading which is a large amount. However, in view of the fact that the area was admittedly infested with extremist elements and the agency appointed by the WBSEDCL was unable to record the actual meter readings through physical visits, merely because the bill amount is high it cannot be argued that there was deficiency in service or unfair trade practice by the respondent. There is no allegation that the tariff was incorrect indicating any unfair trade practice or deficiency in service involving any interruptions of power supply. The contention of the respondent that the electricity connection was used for energizing a submersible pump for irrigation cannot be accepted in the absence of any evidence or affidavit to that effect.   However, as stated by the petitioner himself, there was a xerox centre and a Doctor’s consulting room as part of his residential house. The bill for the period in question after adjustment of the charges already paid is the legitimate due of the respondent and the petitioner is liable to pay for it. Thus, while the issue need not be adjudicated under the Electricity Act, 2003 as held by the State Commission, no case of ‘unfair trade practice’ or ‘deficiency in service’ under the Consumer Protection Act, 1986 is made out by the petitioner to warrant interference with the impugned order.

12.    In view of the foregoing, and in the facts and circumstances of this case, the petition is liable to fail. It is therefore ordered accordingly. The revision petition is disallowed and dismissed as without merits. Parties will bear their own costs. Pending IAs, if any, also stand disposed with this order.