Orissa

Debagarh

CC/13/2016

Sri Sankarsan Sahu, aged about 58 years, S/O-Lt. Duryadhan Sahu - Complainant(s)

Versus

The J.E. Electrical Section Barkote - Opp.Party(s)

10 Feb 2017

ORDER

 

IN THE COURT OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DEOGARH.

                                                C.D.CASE NO.13/2016.

Present: Sri Dipak Kumar Mahapatra, President, Sri Pratap Chandra Mahapatra, Member and Smt. Jayanti Pradhan, Member (W).

Sri Sankarsan Sahu, aged about 58 Years,

Son of Late Duryadhan Sahu,

At/-Jharakandhal, Post/-Kadapada,

P.S/-Barkote, Dist/-Deogarh.                                             …                      Complainant.

 

                        Versus

1. The J.E.,Electrical,

Barkote Section, Barkote,

At/Post/-Barkote, Dist/-Deogarh.

2. The Sub-Divisional Officer,WESCO,

At/Post/Dist/-Deogarh.

3. The Executive Engineer, WESCO,

At/Post/Dist/-Deogarh.                                          …                      Opp.Parties.

 

For the Complainant:-Nemo.

For the Opp. Parties: - Sri R.K. Pradhan, Advocate.

 

DATE OF HEARING: 02.02.2017, DATE OF ORDER:10.02.2017.

SRI DIPAK KUMAR MAHAPATRA, PRESIDENT:- The petitioner has initiated the Consumer Dispute Case on the brief facts that, the complainant  is a permanent resident of his native place under Deogarh District. He is a consumer of Electricity provided by WESCO Deogarh vide I.D.No.414101100222. He was regularly paying Electricity Charges raised by WESCO by due dates and hadcollected receipts there on. The O.Ps has supplied a meter on rent which was running improperly and the complainant on several times had brought this fact to the notice of the OPs requesting to replace the same. On dtd.14.5.2009, unexpectedly and surprisingly, the Opp.Partiesraised an illegal bill vide No.1818 demanding wherein, a sum of Rs.3835/- to the complainant which is 4 to 5 times higher than the usual monthly consumption. The complainant had approached the O.P for correct bill several times but the Opp.Parties neglected the matter. But on dtd.28.3.2016 the Opp.Parties disconnected the power supply of the complainant without giving any prior notice and opportunity for hearing. Due to this illegal and unexpected disconnection, the complainant along with his family members sustained serious loss, mental pain and agony for deficiency in service on the part of the Opp.Parties and seek redressal from this forum.

            On the other hand the learned Advocate for the Opp.Parties vehemently objected the complaint petition on the ground of limitation as the matter relates to year 2009 and this delay is within the knowledge of the complainant. Also the complainant has not taken any steps towards the replacement of defective meter till filing of this consumer petition and to escape from the burden of electric bill, he has filed a false petition. The Advocate for the Opp.Parties also stated that, the complainant is a habitual defaulter in paying the electric bill regularly; he has never communicated any point of time with Opp.Parties to settle the arrear lying outstanding in his name and hence filed a false, fabricated and baseless case against the Opp.Parties and the complaint petition should be dismissed.

            In the above facts and circumstances this points need to be decided by the forum,.

1. Whether the instant case is maintainable under Consumer Protection Act, 1986 ?
2. Whether the instant case is barred by limitation?
3. whether there is deficiency in the services of the Opp.Parties?
4. Whether the complainant is entitled to any relief?
5. whether the complainant is entitle to cost and compensation?

In answering the first question as afore sated, we reproduce relevant definitions of “Consumer” & “Service” as provided in Consumer Protection Act,1986, hereinafter termed as Act.

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

1. xxxxxxx ; or
2. 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];”

3. 2.(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, 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;

The complainant is a consumer of electricity and the OPs represent WESCO, the licensee for distribution and supply of electricity and as such complainant is a Consumer and OPs are Service Providers as under provisions of the Act. As such the complaint is maintainable under the Act.

            The second objection raised by OP is that the case suffers from limitation since the matter relates to a fact happened in the year 2009 is now raised in the year 2016. Limitation always arises from Cause of Action and Cause of Action has not been defined in any legislation, since it is so vast, it cannot be zipped in to some words and phrases. In the case of Givaji Vrs. Gurumath Gaud [AIR 1939, Bombay] Hon’ble Bombay High Court have given a manning of Cause of Action as under:

            “A Cause of Action briefly means “Right and Infringement of that Right” where a party has an undoubted right and that right is infringed, a Cause of Action at once accrues to him.”

Hence Cause of action is a bundle of events and disconnection of Power supply without serving clear 15 days’ notice to complainant, which is his right granted/ assured by Regulation 100 of OERC Distribution (Conditions of Supply) Code, 2004, infringed his rights only on 28.03.2016. The instant petition is filed on 10.05.2016, which falls well within the limitation period. Therefore it does not suffer from limitation.

            It has been submitted by P.O in his show cause Para-8 that it is the duty and responsibility of the complainant to replace the defective Meter. In this connection we site the case of Y.G.Goapal –Versus-DESU (1993 (!) C.L.T 655: 1993 (!) CTJ 1.3: 1(1992) CPJ 25(NC)) Defective meter – Even if a meter has been defective for, say, a period of five years , the revised charge can be for a period not exceeding six months . It was the duty and obligation of the licenses to maintain and check the meter. It there was a defect committed the that behalf by the license and the defective meter is not replaced, then it is obvious that the consumer should not be unduly penalized at a later stage and a larger bill revised .The respondent DESU would have suo-motto billed the applicant is accordance with law .From above it is well settled that responsibity to replace a defective Meter lies with        the Ops ,not with the complainant.

Thirdly whether there is deficiency in service on the part of the OPs - ? It appears from the copy of the Bill filed by the complainant  an amount of Rs. 2,835/- where init has been shown that 933 units has been consumed during the Billing Period 01/03/2009 to 30.04.2009 and the Load (Connected) is 0.5 KW. If we assume the consumption of energy in the utmost connected load  continuously for a day (24 hours) uninterruptedly, then the units consumed comes to 1 Unit is recorded in the Meter when 1 KW is utilized for 1 Hour  which implies 0.5 KW utilized for 2 Hours shall record 1 Unit of electricity for the purpose of Billing.  At this  rate in a day 12 units of electricity is recorded and that in a month is 360 units and bimonthly 720 units  is thus computed. This is subjected to use uninterruptedly for 24 hours a day to maximum load of 0.5 KW. On the other hand,  we perused the Bills raised at different times  and summarized in the table given below:

Sl.No.	Period of Bill	Meter Reading			Basis of Billing (Actual/ Average)	Remarks
		Initial	Final	Units consumed
I	II	III	IV	V	VI	VII
1	11/2008 to 12/2008	2817	3020	203	Actual
2	01/2009 to 02/2009	3020	3069	49	Actual
3	03/2009 to 04/2009	3069	4002	933	Actual
4	05/2009 to 06/2009	4002	4019	17	Actual
5	07/2014 to 08/2014			128	Actual
6	09/2014 to 10/2014			107	Actual
7	11/2014 to 12/2014			145	Actual
8	01/2015 to 02/2015			87	Actual
9	03/2015 to 04/2015			77	Actual
10	05/2015 to 06/2015			84	Actual
11	07/2015 to 08/2015			112	Actual
12	09/2015 to 10/2015			85	Actual

 

It is transpired from the behavior of the meter that it is defective. May not be in writing, and though not substantiated with documents we cannot  disbelieve the averment of the complainant in so much to the fact that he has informed the OPs that the Meter is defective consequent upon sudden rise of Electric charges to the tune of thousands from hundreds. Complainant has failed to prove that he had repeatedly approached the Opp.Parties to settle the dispute in raising such a bill. We believe to the extent that the Meter is defective.

We reproduce regulation 100 of OERC Distribution (Conditions of Supply) Code, 2004 :

100. (1) Where a consumer fails to pay any consumption charge for electricity or any other sum due and payable by him to a licensee, by the due date mentioned in the bill,the licensee may, after giving not less than fifteen (15) clear days' notice in writing tosuch person and without prejudice to his rights to recover such charge or other sum, cutoff supply of electricity and for that purpose disconnect any electric supply line or otherworks being the property of such licensee or the generating company through whichelectricity is supplied, transmitted, distributed or wheeled. The licensee may notcommence the supply until such charge or other sum, together with any expensesincurred by him in cutting off and reconnecting the supply, are paid.Xxxxxxxxxxxxxxx

Also we took in to consideration of regulation 102 which provides procedure how to serve notice under Section 56 of Indian Electricity Act, which reads as under:

102. Any order/notice to the consumer by the licensee including the notice under section 56 of the Act, shall be deemed to be duly served by the licensee if it is:

(1) Sent by registered post, under certificate of posting, by courier, or other similar means, or delivered by hand to the person residing at the address notified to thelicensee by the consumer and an acknowledgement taken from any person in thepremises, or

(2) Affixed at a conspicuous part of such premises in case there is no person, to whomthe same can with reasonable diligence, be delivered.

            OPs in relation to averment made in Para – 7 of the complaint have contended that facts narrated are false and fabricated, baseless and stand against records available with OP  and hence denied.  Neither categorically OP has stated that OPs have given not less than (15) clear days’ notice in writing to the Complainant before going for disconnection of Power Supply on 28.03.2016 nor have adduced any document pertaining to such issuance of notice. The above conduct of the Opp.Parties amounts to deficiency in service.          

                       

ORDER.

The complaint petition is allowed. The bill raised for the period March’ 2009 to April’09 is quashed. OPs are directed to restore the Power Supply to the premises of the complainant within a week of this order upon realization of Reconnection and Disconnection Charges. Further OPs are directed to replace the defective Meter with a correct Meter. Bills should be raised from March 2009 till date of Meter Replacement on the basis of average reading of three succeeding months of such replacement of Meter. Balance amount after adjusting payments already received from the complainant during March 2009 to till date shall be collected or adjusted against future Bills to be raised. No compensation is awarded except cost of litigation. OPs jointly and severally are directed to pay the complainant Rs.3,000/- (rupees three thousand) towards litigation cost within 45 days of receipt of this order failing which the Opp.Parties shall have to pay in addition an interest of 9% per annum till actually the amount is paid in course of law .

            Order pronounced in the open court today i,e,on 10^th day of February,2017 under my hand and seal of this forum.

 

I    agree,                  I  agree,

 

MEMBER.                    MEMBER.                                            PRESIDENT.

                        Dictated and corrected

                                    by me.

 

 

                        PRESIDENT.