Orissa

Debagarh

CC/1/2016

Nabin Behera, aged about 50 years, S/o-Lt. Bansidhar Behera - Complainant(s)

Versus

The Executive Engineer, WESCO, Deogarh - Opp.Party(s)

Susama Manjari Mahapatra

18 Nov 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DEOGARH.

Shri P.Ch. Mahapatra, Member & Smt. Jayanti Pradhan, Member

 

Nabin Behera,

aged about 50 Years,

S/O - Late Banshidhar Behera,

R/O – Vill/PO - Aunli,

P.S- Kundheigola,

Dist/-Deogarh.                                                                                 ....                    Complainant.                                      

                   Versus  

 

1. The Executive Engineer,(WESCO),

         Deogarh Division, Deogarh,

         At/Post/Dist/-Deogarh.

2. The Junior Engineer, (WESCO),

Electrical Section, Budhapal,

            At/Post - Budhapal,

           P.S - Kundheigola,

          Dist -Deogarh.                                                                        ...                     Opp.Parties.

 

C.D.Case No.01/2016.

DATE OF HEARING : 10.11.2016         DATE OF ORDER : 18.11.2016.

 

For the Complainant   :           Smt. Susama Manjari Mahapatra, Advocate.

                        For the Opp.Party       :           Shri Rajat Kanta Pradhan, Advocate.

                                                                       

 

SHRI PRATAP CHANDRA MAHAPATRA, MEMBER : - The genus of the case germane in the fact that the Complainant, a permanent resident of Aunli, Post - Aunli under Kundheigola Police Station in the district of Deogarh is a consumer of WESCO Deogarh Division , Deogarh from the year 2002 vide consumer No.414103050172, whose electricity supply got dis-connected due to heavy rain and storm. Since then it has not been restored and supply is being made in spite of several applications submitted in the office of OP2 until now. On the other hand, at different times, bills have been raised and complainant is being presented to pay electricity charges; (i) on 21.08.2004 for Rs.377/-, (ii) on 05.03.2012 for Rs.3,000/- by the OPs, (iii) a bill of Rs.3040/- from November,2011 to December,2012, (iv) another bill from November ,2012 to December,2013 amount of Rs.5041/-, when there existed no service connection to his house.Being harassed so the petitioner informed OP2 requesting therein to reconnect the Service Connection and rectify the Bill accordingly on dtd.24.01.2013 , on dt.28.04.2014 respectively but to no effect. The second application i.e. application dated 28.04.2014 was sent through registered post with A/D but that letter was returned back with comment addressee absent. An electric bill for the period from November,2015 to June,2016 for an amount of Rs.13,748/- was raised and presented to him again by the OPs. OPs paying no heed to frequent applications and requests to reconnect the disconnected service connection due to storm and lightening are raising Bills and presenting when there is no supply of electricity to his house since 2002 causing thereby mental pain and agony and in this process the arrear has accrued to Rs.13,748/-. Hence the complaint praying therein, after hearing both the sides, to direct OPs to reconnect the service connection and to delete the amount of arrear charges for the period when there is no power supply and direct to pay the cost of Rs.30,000/- towards mental pain and agony and pay Rs.2000/- towards litigation charges,

2.         In response, OPs defended the allegations having admitted averments made by the Complainant so far it is available in the power supply record of the complainant bearing Consumer no.4141-0305-0172 having permitted load of 0.1 KW under domestic category and denied the rest facts stated in the complaint challenging the complaint not being maintainable both in law and facts as the complainant does not come under the purview of C.P.Act since neither the petitioner is a consumer nor the OPs are service providers to the petitioner. It is also contended by the OPs that the complainant is a habitual defaulter of electricity bills which has accumulated against the complainant.OPs came to know about the fact only after they received notice of the Forum and being informed thus, OPs verified in to the fact and found there is no power supply to the premises of the complainant at present. Accordingly prepared the physical verification report of permanent disconnection of the power supply and processed for Bill revision. Complainant, without payment of electricity bill, by filing this complaint is trying to get benefit out of his own latches. Further, averments made in paras 3 to 9 being false, fabricated and baseless are denied and have contended that OPs have committed no fault in raising bills as per tariff applicable to consumers of domestic category for actual consumption recorded in the meter of the complainant above connected load of 0.1 KW allowed. As such the complaint is liable for dismissal.

 

3.         Heard both the sides where in learned advocate for OPs emphasized on the aspect that there is no wrong committed against the complainant in raising electricity bills and the complainant is liable to pay the arrear billed amount after February 2009 without any further delay. The complainant has never applied for permanent disconnection on payment of arrear dues as per direction under the OERC Supply Code, 2004 for which billing was continued against the power supply in the instant case. Hence there are no latches on the part of the OPs. Learned advocate for the Complainant narrating the contents of the petition vehemently submitted it is not just and right on the part of the OPs to press payment of arrears of electicity charges for the period from March 2009 till date when no supply of power was there to the premises of her client even after immediate communication to local authorities soon after occurrence of disruption of power supply due to  heavy rain,storm and lightening some times in February 2007. She assailed the denial of OPs to have been informed about the fact that OP1 as well as his superior authority, the Superintending Engineer, (WESCO), Burla  have been intimated of the fact by Registered Post in support of which Postal Receipts bearing No. 5855 of dated 13.10.2015 and No.5854 of dated 13.10.2015 issued by Aunli Post Office have been filed. (Exbt – P/ & Exbt –P/ ) She also submitted that her client being ignorant of intricacies of law had not thought of to retain acknowledgement of receipt of his applications submitted to OP2 since 2002. So the denial of OPs not to have been informed about the fact of disruption of power supply is far far beyond of truthfulness. OPs have failed to take care of the complain of the complainant and hence are deficient in service agreed to provide to the complainant.  

4.         Having heard and after perusal of documents adduced by both the sides we find as follows :

1. The question raised by the OPs that the instant case is not maintainable since Complainant is not a Consumer according to provision of the C.P.Act,1986, needs to be looked in to at the outset. We quote here the definition of “Consumer” & “Service” as provided under Sec.2(1)d & Sec.2(1)

 

Sec.2(1)(d) - "consumer" means any person who-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) 4[hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment when such services are availed of with the approval of the first mentioned person; (but does not include a person who avails of such services of any commercial purpose;)

Explanation.-For the purposes of sub-clause (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 

Sec.2(1)(o) - "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction or entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;

       Further we take in to account of the statement of OPs made in their written version that “ That, the facts stated by the complainant is admitted by the opp.party so far it is available in the power supply record of the complainant bearing consumer no.4141-0305-0172 having a permitted load 0.1KW under domestic category.”

 

On conjoint reading of the provisions of the Act and the admitted fact i.e. complainant is a consumer of electricity with consumer No.4141-0305-0172 to hold complainant not a “Consumer” under the purview of the Act shall jeopardise this benevolent legislation. We are, therefore of the firm view that Complainant is a Consumer entitle to benefits provided under the Act, while OPs are Service Providers. We do not like to dwell upon rest nice-tices labelled for dismissal of the complaint petition by OP,as we find nothing detrimental to provisions of law.

 

2. From documents adduced by the complainant marked as Exbt - P/1 to Exbt-P/ it is seen that complainant has for the first time brought in to knowledge of OP2 about disruption of power supply to his house since 18.05.2007 and thereafter he has been requesting OP2 through his communications of 21.08.2004, 24.01.2013 and 28.04.2014 to reconnect/restore power supply to his house and to revise electricity bills raised from time to time as there is no power supply to his house. This fact has been denied by OPs but at the same time they(OPs) have failed to adduce any evidence to the fact that they have acted upon the complaint of the complainant brought to their notice on 18.05.2007. Even though a fact it is that the communications made to OP2 on the afore said dates are not substantiated with acknowledgement of receipt and on the other hand , OPs have failed to establish on record that there was supply of power to the premises of the complainant during the period from 18.05.2007 till date which is substantiated from the fact that  no bill raised at different times, shows the actual meter reading and if the meter was out of order, no advice/instruction ever was made to the complainant to change the meter, we have to believe there was no power supply to the premises of the complainant since  May 2007. This fact is fortified by third party – villagers including Sarpanch, Ward Members by affixing their signatures on Exbt. P/ .
3. Exbt.P/  makes us to believe that complainant was provided with the Service Connection in the year 2004 as the receipt bearing No.07-0789-147 of dated 21.08.2004 entells and not since 2002, as stated by complainant in his petition. This, in our opinion, attributes nothing to the instant dispute as the dispute is after April 2007. Also OPs have not made any comment upon it. May be a typographical mistake.
4. It is well settled in law communication made through Regd. Post is sufficient to be presumed to have intimated duly. Hence we feel that complainant has no latches to communicate his grievance timely to authorities.

            Hence we have believe that there is deficiency of services on the part of the OPs. Also it unjust to press complainant to pay Electric dues for the period when no electricity is supplied to his premises  for circumstances beyond his control and negligent act of the OPs. As such I order as under:

 

ORDER

 

The complaint is allowed. The Bill raised for payment of Rs.13,748/- (Rupees thirteen thousand seven hundred and forty-eight) and any amount thereafter till restoration of power supply to the premises of the complainant is quashed. O.Ps are directed to reconnect the Power supply to the premises of the complainant on receipt of reconnection charges from the complainant along with arrear amount until April 2007, if any, within 15 (fifteen) days and jointly or severally pay the complainant Rs.3,000/- (Rupees three thousands) to the complainant as litigation expenses to the Complainant  within 45 ( Forty five) days of receipt of this order failing which the O.P. shall have to pay in addition, an interest of 9% per annum till actually the amount is paid in course of Law.

            Office is directed to supply the free copies of the order to the parties free of costs receiving acknowledgement of the delivery thereof.

Order is pronounced in the open court today i.e. on 18^TH Day of November 2016 under my hand and seal of this forum.

             

                              I agree                              

 

                        (Jayanti Pradhan)                                                        (P.C. Mahapatra)

                          MEMBER (W)                                                                MEMBER

 

            Dictated and Corrected by me.

 

 

                              MEMBER