Date of filing:-20/07/2013.
Date of Order:-01/12/2017
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (COURT)
B A R G A R H.
Consumer Complaint No. 36 of 2013.
Y. Srinibash, Son of Y.Krishna Murty, aged about 43 (forty three) years, Occupation:- Business, resident of Attabira, Po. Attabira, Ps/Tahasil- Attabira, Musifi/Dist. Bargarh. ..... ..... ..... Complainant.
- V e r s u s -
Sub-Divisional Officer, Electrical, WESCO, Attabira, At/Po. Attabira, Ps/Tahasil- Attabira, Munsifi/Dist. Bargarh. ..... ..... ..... ..... Opposite Party.
Counsel for the Parties:-
For the Complainant :- Sri M. Bhoi, Advocate with others Advocates.
For the Opposite Party :- Sri J.P.Singh, Advocate with others Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... M e m b e r.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.01/12/2017. -: J U D G E M E N T:-
Presented by Sri Pradeep Kumar Dash, Member(M):-
The complaint pertains to deficiency in service enumerated under the provision of Consumer Protection Act-1986. The brief facts of the complaint is described here under.
The Compliant contends that the petitioner resides at village Attabira under N.A.C Attabira. In the year 1964 his father came to Attabira from Andhra Pradesh and settled there. Since than he was a consumer of electricity bearing Consumer No. 512211050025 and was paying electricity dues regularly. The petitioner's father was dealing with electricity connection supplied to their house and earlier the electricity bill was raising from Rs. 300/-(Rupees three hundred) only to Rs.500/-(Rupees five hundred) only which were being paid regularly. The father of the petitioner died out of heart attack and while entire family was in grief the electricity squads from Burla came to the house of Petitioner and told his electricity load has been enhanced and meter also found to be defective and imposed fine amount of Rs.48,522/-(Rupees forty eight thousand five hundred twenty two) only which was to be paid within 7(Seven) days failing which electricity supply ought to be disconnected.
Further the complaint contends that there was no allegation of tempering with the meter as it was intact and the load verification papers supplied to the Complainant was also normal and for no fault of petitioner and his family members the vigilance squad imposed the penalty amount of Rs.48,522/-(Rupees forty eight thousand five hundred twenty two) only on the Complainant. That when the inspection was done, the petitioner's father was died by then and he was not given any opportunity to put forth his case, the proceeding initiated against him. That the complaint further contends that the proceeding made against a dead man is nullity and illegal and the penalty imposed need to be waived. The Complainant was ready to pay genuine electricity bill. The petitioner has sought for the redressal of the Forum to direct the Opposite Party to waive the penalty bill amount of Rs.48,522/-(Rupees forty eight thousand five hundred twenty two) only imposed against him and further the Opposite Party be directed not to disconnect the electricity connection to the premises of the petitioner till finalization of matter in the Forum and further direction to pay cost of the proceeding to the Petitioner.
The Petitioner in support of his contention relied upon the xerox copies of the following documents;
Letter No.836 Dt 01.07.2013 issued in the name of Y Krishna Murty(one sheet).
Inspection report, Veg-Burla in the name of Y Krishna Murty(one sheet).
Electric bill issued in the name of Y Krishna Murty(two sheets).
Being noticed the Opposite Party appeared through his legal counsel and filed his version denying all the allegation of the Complaint.
The version filed by the Opposite Party contends that the averment contained in the complaint petition did not amount to “Complaint” described under the provision U/s 2(1)(c) of Consumer Protection Act-1986 and the Complainant is not a consumer U/s 2(1)(d) of the Act. Then the Honorable Forum has got no jurisdiction to adjudicate the matter, the electrical inspector alone has the jurisdiction to try this case, hence deserved to be dismissed. Further the version contends that Complainant has neither made any agreement with the Opposite Party company to avail electricity nor filed any legal heir certificate from the competent authority to show his legacy with Y. Krishna Murty. That the Complainant has lodged this vexatious complaint with malaise intention and has also suppressed material fact to play fraud upon the Court. Further the version contends that the Complainant is not a consumer of the Opposite Party, rather his father was a consumer and use of electricity through a connection in the name of a dead person does not confirm the status of consumer of the user. More over the Complainant has also not filed the death certificate of his father Y. Krishna Murty and with the death of his father as per electricity law the contract between Y. Krishna Murty and the Opposite Party as to electricity connection ceases and the contractual obligation ceases there. That on the death of the father of the Complainant there is no relationship between the Complainant and the Opposite Party company as there exist no agreement or contract between them as the Complainant neither intimated the Opposite Party about his father's death nor applied for new agreement with the Opposite Party.
Further the version of the Opposite Party contends that the vigilance team of Opposite Party has visited the premises of Y. Krishna Murty on Dt. 28/06/2017, found the meter was defective and enhanced load factor which was officially received by the Complainant. That on Dt.30/06/2013 a provisional assessment of Rs.48,522.24/- (Rupees forty eight thousand five hundred twenty two and twenty four paise)only as per inspection report was communicated and received by the Complainant. The Complainant did not come for final assessment and on Dt.20/07/2013 a final assessment was made for Rs. 16,024.32/-(Rupees sixteen thousand twenty four and thirty two paise)only. That on Dt.06/08/2013 the meter was replaced as per vigilance report and it was found on inspection report of the S.D.O., that in the same premises there was a commercial connection bearing Consumer No. 512011050026 in the name of Y. Krishna Murty. Further version contend that the line was disconnected then due to outstanding payment as the Complainant was using the domestic connection in the said commercial premises which fact was suppressed by the Complainant and a copy of inspection report is sent to be annexed duly signed by the Complainant.
Further version of the Opposite Party contend that as per Honorable Supreme Court in it's judgment in Civil Appeal No. 5466 of 2012 arising out of SLP ( c) No. 35906 of 2011 on Dt.01/07/2013 at Para 47 (ii) has categorically ordered that a “ Complaint” against the assessment made by assessing officer under section 126 or against the offences commuted under Section 135 to 140 of Electricity Act-2003 is not maintainable before a Consumer Forum and further the humble Supreme Court has clarified that use of excess load then the sanction load for any other purpose for which connection has been granted, comes within the meaning of theft of electricity. That the Complainant has cunningly filed this complaint to avoid outstanding heavy dues and is enjoying uninterrupted power supply. The Opposite Party prays before the Forum to dismisses the complaint against him, being devoid of any merit.
Gone through the entire case record, documents available in the case record and heard pleadings of the Parties, the Forum found that on the petition Dt.21/04/2014 filed by the Opposite Party, objection field to it on Dt.01/09/2014 by the Complainant, a preliminary hearing on the maintainability of the complaint before the Forum was done on Dt.18/03/2015 and a preliminary order was passed on Dt.06/05/2015 regarding maintainability of the complaint by this Forum.
Gone through the order Dt.06/05/2015, passed by this Forum, wherein it is found that the Opposite Party objected the maintainability of the complaint mainly on two grounds i.e. (1) Complainant is not a consumer as per Consumer Protection Act-1986 and Electricity Law. (2) Complaint is a case of theft of electricity based on the vigilance report of the Opposite Party Dt.28/06/2013 followed by penal bill and disconnection notice Dt.01/07/2013 and here not maintainable under the per view of Sec-126 of Electricity Act-2003 as prohibited by Apex Court of India in decision vide Civil Appeal No. 5466 of 2012 arising out of SLP (c )35906 of 2011.
The conclusive findings of the Forum regarding the Complainant to be the Consumer of the Opposite Party is held, both on the provision of Sec-2(1)(d) of Consumer Protection Act-1986 as of beneficiary of such services which is being available to his father who was a consumer of Opposite Party and also U/s 2(15) of Electricity Act-2003 in the category of person included whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee. Hence, the Complainant is held to be the consumer of Opposite Party.
So far as the allegation of theft of electricity U/s 135 of Electricity Act-2003 basing on the vigilance inspection report Dt.28/06/2013 containing the remarks (a) defective meter (b) meter to be changed (c ) load enhanced 1.0 kw is out rightly rejected by the Forum vide order Dt.06/05/2015 as use of defective meter does not fall into the category of theft so also other remarks of the vigilance report. The Forum vide its order Dt.06/05/2015 also categorically analyzed the provision of OERC Distribution Condition of Supply Code-2004 and no where it is found use of defective meter so also enhanced load amounts to theft of electricity for which assessment to be made U/s 126 of Electricity Act-2003. Moreover this Forum has also discussed Sec-145, 173 and 175 of Electricity Act which reveals that the provision of Electricity Act are in addition to and not in derogation of any other law for time being in force. Hence the Forum arrived at a finding that the complaint is well within the jurisdiction of this Forum.
The citation vide Civil Appeal No. 5466 of 2012 is connected with prohibition for filing of trail of Electrical disputes at Consumer Foras if they fall U/s 126 to 140 of Electricity Act-2003. The citation is not at all applicable in this complaint having not fallen under the provision of Sec 126 to 140 of Electricity Act-2003.
Upon perusal of the documents and evidences available in the case record there are so many discrepancies and inconsistency found in the documents generated and supply by the Opposite Party to the Complainant. The Electricity bill for the period August, September, November-2012 and January, February and May-2013 supplied by the Opposite Party in the name of the father of the Complainant are found to be based on “actual” meter reading reflecting no previous arrear bill amount. So it is disgraceful and unworthy mentioning the meter to be defective in the vigilance report Dt.28/06/2013 wherein it is specifically mentioned that the meter was displaying no reading. As per provision of law enumerated U/s 97 of the OERC Distribution (Con. of Supply) Code-2004, the Opposite Party could have calculated the electricity bill on the basis of average meter reading for the consecutive three billing periods succeeding the billing period in which defect in meter was found. Again there is inconsistency regarding the load verification in vigilance report Dt.28/06/2013 (total assessed load 2110 wt) and inspection report Dt.06/08/2013 (total assessed load 1565 wt) by S.D.O, Electrical WESCO, Attabira.
Moreover the Complainant in his cross examination by the advocate for Opposite Party Dt.23/08/2017 has contented that he has applied for electricity connection in his name before the authority of Opposite Party and in the meantime on Dt.31/07/2013 the defective meter has also been replaced by the authority of Opposite Party as per the inspection report Dt.06/08/2013 by the S.D.O., Electrical WESCO, Attabira. More so the vigilance inspection report Dt.28/06/2013, S.D.O., electrical Attabira inspection report Dt.06/08/2013, so also the entire complaint case is based on consumer bearing No. 512211050025, there is no relevancy of the commercial connection bearing Consumer No. 512211050026 which was earlier in the same premises of Complainant as alleged by the Opposite Party which has already been disconnected by the Opposite Party. Again in the deposition, cross examination of the Complainant reveals that as per final assessment made by the Opposite Party the penal bill has been reduced to Rs.16,024.52/-(Rupees sixteen thousand twenty four and fifty two paise)only which clearly proves the arbitrariness of the Opposite Party towards fixing liability of the consumer/complainant.
The citation field by the Opposite Party in this case are perused by the Forum which is not squarely applicable in the case because 2014(3) CPR 534(NC) IS relating to tempering of meter seals and 2010(3)CPR 139 relates to complainant not making application for change in name of consumer which are not the case of the present complaint.
In the discussion made above there found to discrepancies latches in lawful in following the provision of law in Electricity Act-2003, OERC Code-2004 by the Opposite Party inducting penal bill against the Complainant which itself a deficiency in rendering service by the Opposite Party to the Complainant. More particularly the Forum vide its order Dt.06/05/2015 in the preliminary issue as to maintainability of the Complaint before this Forum and on the vigilance report of the Opposite Party Dt.28/06/2013 where in order has been passed convincingly, hence there is no necessity of any other finding by the Forum against its own order which this Forum is not at all entitle to do so as per provision of law enumerated in Consumer Protection Act-1986 and also other provision of law described in Electricity Act-2003 and OERC Code-2004.
Hence the Forum, following all the provisions of law in different Acts connected to this complaint held the Opposite Party to be liable for deficiency in rendering service to the Complainant and order as follows:-
O R D E R
The Opposite Party is hereby directed to waive the penal electricity bill raised against the Complainant bearing Consumer No.512211050025 and further directed to supply electricity bill as per provisions of law in the Electricity Act-2003. The order should be carried out within 30(Thirty days) of receipt of this order. Failing which law will take its course. There is no order as to cost
The Complaint allowed and disposed off accordingly.
Typed to my dictation
and corrected by me.
( Sri Pradeep Kumar Dash)
M e m b e r (M).
I agree, I agree,
(Sri Krishna Prasad Mishra) ( Ajanta Subhadarsinee)
P r e s i d e n t. M e m b e r (W)
