DATE OF DELIVERY
OF JUDGMENT : 24th June, 2016
: J U D G M E N T :
The petitioner, Sri Laxman Biswas, the Secretary, Habibpur Large Sized Pry. Agril. Co-Operative Credit Society Ltd. has filed the instant case against the opposite party, Station Manager, West Bengal State Electricity Distribution Company Ltd., Aishtala C.C.C., P.O. Ranaghat, Dist. Nadia, u/s 12 of the Consumer Protection Act, 1986.
The facts of the case to put in a nutshell, are as below:-
The petitioner is an agricultural credit society and it was established to promote cultivation in the backward area by giving loan to poor farmers by supplying agricultural seeds, fertilizers, pesticides and irrigation facilities. They paid the electric bills regularly to the OP electricity company, i.e., W.B.S.E.D.C.L. but the OP did not make entry of the payment in their record. The petitioner requested the OP time and again to update the payment in their office record and refund the excess payment. In this regard, the petitioner produced the original payment receipts for the perusal of the OP. But every time the request of the petitioner was turned down by the OP W.B.S.E.D.C.L. The petitioner also filed the case being No. CC/2015/73 dtd. 05.06.2015 before this Forum, but it was dismissed for non-prosecution by the petitioner. This instant case is a second complaint on the same cause of action. The petitioner prays for a direction from the Forum upon the opposite party to adjust the extra payment in the subsequent bills or refund the same in cash / cheque.
The OP has contested the case by filling written version on 21.12.2015. The OP has denied the most of the allegations. They admitted that the petitioner paid the electric bills but it was not for one single connection but for different connections as reflected in the photocopies of the bills submitted by the petitioner at the time of institution of the case. In such a situation the question of double payment by the petitioner does not arise at all. They also opined that when the bill is accepted and paid by a consumer the right of the consumer to file a case regarding irregularity of the bill gets waived under the provisions of the Consumer Protection Act, 1986. Hence, the prayer of the petitioner is not maintainable in the present form and is liable to be rejected with cost.
The petitioner filed affidavit-in-chief in support of their claim and it was also met by the OP by way of the interrogatories. The petitioner replied the queries. The OP did not adduce any evidence, but both of them filed their respective BNA. Parties were heard a claim on 16.05.2016 & 31.05.16.
From the pleadings, written version and the documents filed by both parties, we frame the following points for proper adjudication of the case.
- Point No. 1: Is the petitioner is a consumer?
- Point No. 2: Is the case maintainable in this Forum under the provisions
of Consumer Protection Act, 1986?
3) Point No. 3: Does the petitioner suffer from deficiency in service?
4) Point No. 4: What relief the petitioner is entitled to get?
DECISIONS WITH REASONS
For the purpose of brevity and convenience all the points are taken up together for discussion.
Section 2(d) defines the term ‘consumer’. In the instant case the complainant does not buy goods or electricity for a consideration for individual purpose. The cultivators who use electricity have not approached the Forum. The point of sole livelihood have not also been established. Agriculture activity comes under commercial purpose. Hence, we are constrained to hold that the petitioner does not come under the definition of Section 2(d) of the Consumer Protection Act, 1986 and we hold that the petitioner is not a consumer.
We have gone through 1997 (1) CHN SC 50 wherein it has been held by the Hon'ble State Commission that in view of Section 24 (4) & (6) the Electrical Inspector should be approached for relief. Moreover, Rules 3.6 and 3.5.1 of West Bengal Electricity Regulatory Commission bar filing of complaint at this Forum. The ombudsman is to be moved. Thus, we hold that the case is not maintainable in this Forum.
It is the cardinal principle of law that the complainant has to establish his case in order to get relief. Now let us see how far the complainant is succeeded his own case. Habibpur Large Sized Pry. Agril. Co-Operative Credit Society Ltd. has claimed for double payment of electric bill to the tune of Rs. 22,644/-. It has pleaded in the complaint that in order to promote cultivation in the backward area the Habibpur Large Sized Pry. Agril. Co-Operative Credit Society Ltd. was created. We find no pleading that the agriculture is the livelihood of the co-operative society. Moreover, the cultivators are not coming forward to claim their relief against the Station Manger. Hence, representation by Laxman Das does not entitle the co-operative credit society Ltd. to get any relief against the opposite party.
The present complaint is the second complaint and the first one was CC/2015/73 which was dismissed for default and not dismissed on merit. According to the decision held by the Supreme Court in Panjab and Hariyana State vs. Dear Commission Chandigarh, the second complaint is maintainable in the consumer Forum if the first one is dismissed for non-prosecution. In this ground the present case was taken up. The alleged bills are related to the period 2001, 2002, 2003 and the petitioner is claiming that the OP charged extra amount in the alleged bills and the claim was lodged in the year 2014 and 2015 vide letters dtd. 08.12.2014 and 15.02.2015 which were also received by the OP, W.B.S.E.D.C.L. The petitioner is claiming the amount after expiry of two years from the date of generation of the bill which is a statutory period of filing a case under the provision of Consumer Protection Act, 1986. But from the scrutiny of the documents filed by the petitioner, it appears that the OP has claimed the bills for year 2001, 2002, 2003 in the year 2014. Hence the cause of action is continuing till 2014. So the case is not time barred and hence maintainable on this ground too.
We have meticulously gone through Annexure – 1 to Annexure – 4 filed by the complainant along with the claim but we regret to hold that the complainant is not a consumer as defined under Consumer Protection Act, 1986.
The complainant could not establish double payment of Rs. 751.50 and Rs. 522/- on different dates in the office of the opposite party. Thus, we are inclined to hold that the complainant will not get any relief against W.B.S.E.D.C.L. Thus, all the points are decided against the complainant.
Hence,
Ordered,
That, the case CC/2015/114 be and the same is disallowed on contest without cost.
Let a copy of this judgment be delivered to the parties free of cost.
