Orissa

Dhenkanal

CC/93/2017

Subarna Sahoo - Complainant(s)

Versus

The Executive Engineer , CESu, DED Dhenkanal And Others - Opp.Party(s)

30 May 2018

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DHENKANAL

                                                                C.C.Case No. 93 of 2017

Subarna Sahoo, aged about 80 years,

W/o late Chaitanya Sahoo,

Vill: Annapur, PO: Bidharpur, Dist: Dhenkanal              ….....Complainant

                                                                Versus

1) Central Electricity Supply Utility of Odisha,

    Represented through its Executive Engineer, Ehenkanal Electrical Division,

    CESU, Dhenkanal, At: Ananda Nagar,

    PO/PS: Dhenkanal Town, District: Dhenkanal

2) S.D.O. Electrical( CESU), Gondia, At: Gondia,

     PO: Gondia Patana, Dist: Dhenkanal

3) Section-in-Charge, Electrical Sub-Division,]

    Electrical Section Gondia, At: Gondia, PO: Gondia Patana,

    District: Dhenkanal                                                     …........Opp. Parties

Present: Miss Bijayalaxmi Satapathy, Member

                  Sri Purna Ch. Mishra, Member

Counsel: For the complainant:  Sri Avimanyu Sahoo & Associates

                  For the Opp. Party No.1,: D.P.Pattanaik

                  For the Opp. Party No. 2 & 3: None appeared

Date of hearing argument: 16.5.2018

Date of order: 30.5.2018

                                                                                JUDGMENT

Sri Purna Ch. Mishra, Member

                The complainant has filed the present case u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service on the part of the Opp. Parties with a prayer to direct the O.Ps to revise the bills as per meter reading  i.e. average 95 units per month  from January-2017 to October-2017 and to adjust Rs. 17,436/- received from the complainant .  Besides, it is prayed to award compensation and cost of the litigation of Rs. 60,000/-

                1) Briefly, the  fact leading to the case  is  that  the complainant is availing  power supply  from the O.Ps vide consumer No. GN-037-0028  and has installed a meter.  The complainant is the owner of the meter and as per meter reading she was paying the bill in every month to the Opp. Parties towards consumption of electricity.  It is alleged that although the meter status was O.K since December-2016 the Opp. Parties illegally enhanced the existing C.D from 1.5 K.W to 4.5 K.W and charged the bill for 648 units showing the status of the meter as defective.   As per the reading of the meter on 17.11.2016 the meter was showing 9515 units and the previous units as on 17.10.2016  was 9412 units, so the actual consumption was 103 units  from 17.10.2016 to 17.11.2016 and the complainant as per the bill of November-2016 had to pay Rs. 1094/-.  On 21.5.2017 the Opp. Parties replaced the meter forcefully   at the cost of the complainant showing the old meter as defectively illegally and charged Rs. 78,381/- in the bill for June-2017 though the meter was O.K in all respect.  As per the reading of the new meter the average consumption come to 95 units per month.  The O.Ps threated to disconnect the power supply  and illegally collected  a sum of Rs. 17,436/- from the complainant.  The complainant is only liable to pay average 95 units per month from January-2017 to October-2017 along with previous arrear of Rs. 1104/- as per the bill for December-2016, but the O.Ps have charged a sum of Rs. 79,231/- in the bill for October-2017 and also threatened to disconnect the power supply.  On 17.10.2017 the Section-in-Charge, Electrical Sub-Divn., Gondia has charged an outstanding dues of Rs. 79,231/-  and the O.Ps have collected a sum of Rs. 17,436/- illegally without any reasonable cause which amounts to deficiency in service.  Therefore, the complainant has come up before this forum praying for the reliefs as prayed for.

                2) The Opp. Party No.1 appeared through his Advocate who filed vakalatnama  for O.P.No.1 to 3.  But on perusal of the said vakalatnama we find that only O.P.No.1 has authorized the learned Counsel to defend his case and the O.P.No.2 & 3 have not authorized him to appear in their behalf. Therefore, the appearance of the Advocate is treated only for O.P.No.1 who has filed the written version.  No written version is filed on behalf of the O.P.No.2 & 3.   It is in the version of the O.P.No.1 that the case is not maintainable and there is no cause of action to file the case against the O.P.  The complainant has not approached the Forum with clean hands for which the case is liable to be dismissed.  It is admitted that the complainant is a consumer bearing No. GN0370028.  During routine inspection of the premises and the installation, the MRT Officer of the O.P found that the consumer has interfered with metering unit by connecting wires by-passing the meter in order to avoid recording of consumption in the meter for which the meter was declared as by-passed.  It is further stated that during load census it was also detected that the complainant has unauthorisedly enhanced her connected load from 1.5 K.W to 4600 K.W.  For such unauthorized use of power supply the consumer was issued with Provisional Assessment order dated 8.10.2016 as per provisions of Sec. 126 of the Electricity Act, 2003 for a sum of Rs. 71,650/- . On receipt of the provisional assessment order the consumer did not appear and filed no reply to the said show cause for which final assessment was made for  Rs. 71,650/- by the Assessing Officer.  The complainant without assailing the final assessment order before the Appellate Authority U/s 127 of Electricity Act  changed her meter with a new meter  on 21.5.2017 after due testing as the previous meter was found defective.   After receiving electric bill for the month of December, 2016, January-2017, to March-2017, the complainant had made payment of the dues of electricity without any objection acknowledging the final assessment bill amount.  The Opp. Party has never threated to disconnect the power supply.  Accordingly, it is pleaded to dismiss the case.

3)            The petitioner  in support of his case has filed Xerox copies of the bills issued by CESU from October-2016 to November-2016 and December-2016 and from June-2017 to October-2017,  money receipt dated 20.12.2016, 26.1.2017, 27.2.2017,19.3.2017,31.3.2017, 21.6.2017, 20.8.2017 and 21.10.2017, installation report of a new meter dated 21.5.2017, bill for the month of April-2018 and money receipt against the Bill for April-2018 and an affidavit of the petitioner.  On the other hand the Opp. Party has filed the copy of the physical verification report dated 8.10.2016, copy of provisional assessment alongwith calculation sheet, copy of the final assessment and copy of the consumer billing statement and an affidavit of the O.P.No.1.

4)          That on the basis of pleadings and counter pleadings of the parties, the following issues are framed.

                1) Whether the petitioner is a consumer?

                2) Whether there was any physical verification in the premises of the petitioner on 8.10.2016?

                3) Whether the case is maintainable?

                4) Is there any deficiency in service on the part of the O.Ps?

                5) To what relief, if any, parties are entitled?

5) Issue No.1

                The Opp. Party in his written statement has challenged the status of the complainant as a consumer.  It is seen from the documents on record that the petitioner is availing power supply for his domestic use and the category of the consumer as mentioned in the body of the bill is “domestic”.  The petitioner has been paying the dues of consumption charges of electricity from time to time for which she has filed the copies of bills showing payment of electricity charges.   Since the petitioner is paying a charge for availing their services the petitioner is a consumer and the objection raised by the O.P is not sustainable in the eye of law. Hence rejected.

6) Issue No.2

                The next issue whether there was any physical verification in the premises of the petitioner or not on 8.10.2016.  The Opp. Party in his written version has mentioned in para-3 that the M.R.T Officer of O.P.No.1 has visited the house of the petitioner and conducted physical verification in the presence of the consumer’s representative.  This fact is corroborated in para-5 of the evidence in chief filed by the O.P.No.1.  On the other hand the petitioner has denied this fact in his evidence in chief in para-  10    In the face of affidavit and counter affidavit the physical verification report dt. 8.10.2016 needs examination. On perusal of the physical verification report it goes to show that the column meant for MRT officer has been left blank.  When the column meant for MRT Officer on the physical verification report dated 8.10.2016 is left blank and it does not bear the signature of anybody we are unable to accept the statement of the O.P.No.1 that this report has been prepared by the concerned MRT Officer.   It appears that this document has been prepared for the purpose of this case as the information’s recorded in the report varies from column to column.  In one column it has been mentioned that the meter has been bypassed whereas in another column it has been mentioned that the meter is defective.  Had the report been prepared on the spot after actual verification the report would have been all the same throughout all the columns?  Since there is no signature or seal of any MRT Officer we are unable to hold that there was any physical verification in the premises of the complainant on 8.10.2016 and the issue is accordingly answered in favour of the petitioner.

7)  Issue No.3

                The next issue is whether the case is maintainable or not? The Opp. Party No.1 in his written version has specifically challenged the maintainability of the case since it is a case U/s 126 of the Electricity Act. It is the specific case of the Opp. Party that the provisional assessment is based on the physical verification report conducted in the premises of the complainant on 8.10.2016.   As discussed above, since the physical verification report dated 8.10.2016 has been held to be void  the question  of  provisional assessment on the basis of that report is also void and all subsequent actions  consequent thereto are also void.  Further it is seen from the documents on record that the provisional assessment has been prepared by the Assessing Officer of  one M/s Enzen Global Solutions Pvt. Ltd,.  The provisions of Electricity Act, 2003 clearly provides  that any officer of the Board, or any officer  of  the State Govt. or any officer  of the license can only act as the Assessing Officer in terms of Section 126 of the Act.  From the perusal of documents on record it is revealed that the Assessing Officer belongs to one Private Limited Company who is no way authorized under law to issue a notice of assessment to the petitioner.  The O.P.No.1 is totally silent as to who these people are and how he is competent to issue a provisional assessment order to a consumer and on what basis he has relied on those documents.  In the absence of any pleadings to that effect it cannot be accepted as a provisional assessment order  in terms of Sec. 126 of the E.C.Act-2003  and there is no evidence on record to show that even this  illegal order prepared by one unauthorized person was duly served on the petitioner.  In the absence of any physical verification report conducted by the M.R.T Officer  of O.P.No.1   as pleaded in the written statement we are unable to hold that the petitioner was indulged in unauthorized use of electricity for which he is liable  U/s 126 of the Indian Electricity  Act to be assessed for such unauthorized use and in the absence of any physical verification report the allegation of penal assessment does not arise and therefore, the plea of the Opp. Party No-1 on this score stands rejected.

8) Issue No.4

                The next question is  whether there is deficiency in service and unfair trade practice on the part of the Opp. Parties.  It is the case of the complainant that his meter was in perfect running order and she has been forced  to change the meter.  The Opp. Parties have declared the meter to be defective w.e.f December-2016  and have prepared load factor bills @ 648 units per month till May-2017 and has enhanced the connected load from 1.5 K.W to 4.5 K.W. There is nothing on record to show that  the meter was declared defective following  the procedures prescribed under the provisions of O.E.R.C Conditions of Supply & Distribution Code, 2004.  So the action of the Opp. Parties in declaring the meter to be defective lacks sanction of law behind such action resulting in  unfair trade practice.

                It is the case of the Opp. Party No.1 that physical verification was conducted in the house of the petitioner on 8.10.2016 .  But it is seen from the statement of accounts that the meter has been declared defective from the month of November-2016.  In the month of November-2016 the base reading has been stated as 9412 and reading at the end of the month has been recorded as 9515 and the total consumption has been shown as 103 units. It is the case of the O.P No.1 that the meter was declared defective by the M.R.T Officer on 8.10.2016.  If the meter was actually defective how the meter reader was able to record the readings for the month of November-2016.  So  there is no truth in the version of the Opp. Party No.1 that the meter was defective and it  is a clean case of harassment to an old lady of 80 years old.   

                So also the Opp. Party No.1 has mentioned that the petitioner was assessed for Rs. 71,650/- as penalty.  But the bill for the month of November-2016 goes to show that this amount has been added in the bill under the head “adjustments”.  When the petitioner has been paying his bills as per actual meter reading there is no reason on the part of the Opp. Parties to include this amount in his energy bill from the month of November-2016 and reflect it as an arrear in the subsequent bills and collected a sum of Rs 17,436/- from her illegally.  This also amounts to unfair trade practice.

                As discussed above,  there was no physical verification at all in the premises of the complainant by any MRT Officer as claimed by the O.P.No.1 on 8.10.2016 .   The Opp. Parties  inspite of repeated approaches did not rectify the bills  and also  created  such an environment so as to compel the petitioner to replace her meter by a new one without any justifiable reason.  The Opp. Parties also did not listen to the grievance of the petitioner who is an old lady  of 80 years and dragged her to a litigation for which the Opp. Parties are liable for causing deficiency in service to the petitioner.

9)  Even though a new meter has been installed  since June-2017  the Opp. Parties have not revised the energy bills in accordance with law for which it needs revision.

10)  From the aforesaid discussions it is crystal clear that the MRT Officer of the O.P.No.1 has not visited the house of the petitioner nor prepared any physical verification report on 8.10.2016 by inspecting the premises of the complainant and the documents filed by the O.P.No.1 relating to provisional and final assessment has not been prepared by the persons authorized to do so  and such assessment has been made without any basis, the meter installed in the premises of the complainant was declared defective  without following due procedure of law and her load factor bills  for the period from  December-2016 to May-2017  was not revised in accordance with law after installation of a new meter which makes out a clean case of deficiency in service and unfair trade practice on the part of the Opp. Parties and hence the order.

                                                                                ORDER

                The complaint petition is allowed on contest against O.P.No.1 and exparte against O.P.No.2 & 3.  The Opp. Parties are jointly and severally liable for causing deficiency in service and for practicing unfair trade practice with the petitioner.  The load factor bills for the period from December-2016 to May-2017 be revised in terms of Regulation-  97 of the O.E.R.C (Conditions of supply & Distribution) Code-2004.  The amount of  which has been received in excess of her actual consumption be refunded to the complainant A  fresh and correct bill be issued to the complainant within 30 days from the date of order after proper revision as directed. The O.P. is further directed to return a sum of Rs. 17436/- ( Seventeen thousand four hundred thirty six) which has been collected in excess from her . Parties to bear their own costs.

                Pronounced on this open Forum on this 30^th day of May-2018

 

                (Miss Bijayalaxmi Satapathy)                          ( Sri Purna Ch. Mishra)

                          Member                                                     Member