SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The Complainant has filed this complaint petition, U/s-12 of C.P. Act, 1986, (here-in- after called as the “Act”), on dated 4.3.2020, alleging a “deficiency-in-service” by the Ops, where OP No.1 is the Junior Engineer, NESCO Utility, Gogalgan Section, OP No.2 is the SDO, NESCO Utility, Supply-I, BED, Balasore whereas OP No.3 is the Executive Engineer, Electrical, NESCO Utility, Supply-I, BED, Balasore. As per the complainant’s petition, the cause of action arose on 28.2.2020.
2. The case of the complainant, in a nutshell, is that the deceased husband of the complainant was a bonafide domestic consumer under the Opp Parties. The complainant, after the death of her husband, used to consume the electric energy as such and has been paying the dues regularly as per monthly bill served against her. It is averred that the Ops demanded energy charges on average basis from the year 2005 till October, 2015 without taking meter reading. Thus, the complainant requested the Ops to install a new meter and revise the bills. But the OP No.1 issued a new meter in the month of January, 2016 and assured to correct the bills, but no steps have yet been taken by them. On 28.2.2020, the OP No.1 along with other staffs had been to the house of the complainant and threatened the complainant to disconnect the electric supply unless the outstanding dues have been paid.
To substantiate her case, the complainant relied upon the following documents, which are placed in the record -
- Photocopy of Electric bills.
- Photocopy of one application addressed to OP No.1.
3. In the present case, although the Ops have appeared but their written version was not accepted. However, during course of hearing, the Ops have produced the following documents, which are placed in the record -
- Photocopy of provisional order.
- Photocopy of final order of assessment.
- Photocopy of spot verification report.
- Photocopy of the order dated 5.9.2017 passed in C.C.No.103/2016.
4. In view of the above averments, the points for determination in this case are as follows:-
- Whether the complainant is a consumer or not?
- Whether there is any cause of action to file this case?
- Whether the present case is maintainable?
- Whether there is any deficiency of service on the part of the Ops?
- To what other relief(s), the complainant is entitled to?
5. First of all, it is to be decided as to whether the complainant is a consumer under the Ops or not. It is the case of the complainant that her deceased husband was a domestic consumer bearing No.53954 under the Ops and after his death, she has been availing the electricity supply to her premises as such. To substantiate her case, she has produced documents vide Annexure-1 series to establish that the complainant is a consumer under the Ops. Hence, it is held that the complainant is a consumer.
6. For the shake of convenience and for better appreciation, issue No.ii to v are taken up together. As it reveals from the complaint petition that electricity supply has not been disconnected to the premises of the complainant, but the Ops have threatened to disconnect the electric supply. Before delve into the merit of the case, it is felt necessary to discuss as to why the Ops have threatened to disconnect the electricity supply to the premises of the complainant. The complainant has specifically stated in her complaint petition that she has been paying electric energy dues regularly as per bills supplied to her. But the Ops have claimed energy dues in erratic manner without taking meter reading and the energy charges are being made on average basis from the year 2005 to October, 2015. On being requested, the Ops issued a new meter in the month of January, 2016 and assured to correct the bill according to the actual meter reading, but till the filling of case they have not taken any step for the purpose. Thereafter, she submitted application before OP No.1 on 6.1.2020 for correction of the energy bill, but in vain.
7. On the other hand, learned counsel for the Ops has submitted, inter alia, that the complainant has suppressed the real facts regarding the assessment made by the assessing officer U/s 126 of I.E.Act. Further, for the self-same cause of action, the complainant has filed C.D. Case No.103 of 2016 before this Commission which was dismissed on 5.9.2017 (vide Annexure-4). It is specifically submitted that the complainant is availing power supply for 1.00 KW load since 1990. But on spot verification made by the authorized officer on 22.9.2015, it came to light that the complainant used to avail power supply unauthorizedly to the tune of 5.5. KW load. It was also found that the meter has no terminal cover seal. Therefore, provisional assessment order (vide Annexure-1) was passed for Rs.1,06,264.00 which was served on the complainant on 29.9.2015 (vide Annexure-3) and opportunity was given to the complainant for her show cause and hearing by 8.10.2015. Thereafter, final assessment of Rs.84,666.00 was made (vide Annexure-2) and the complainant paid Rs.25,000.00 in the month of December, 2015 and agreed to pay the rest amount within 15 days. Then, one new meter was installed on 19.1.2016. Therefore, deficiency of service does not arise on the part of the Ops.
8. From Annexure-4 filed on behalf of the Ops, it is made out that the present complainant has initiated Consumer Case No.103 of 2016 against the present OP No.2 & 3 which was dismissed for default on 5.9.2017. The complainant has not stated a single word in her complaint petition regarding the fact of filing of the case in the year 2016 and dismissal of the said on 5.9.2017. Therefore, it is held that the complainant has not come to this Commission with clean hand and suppression of the material fact may affect the case of the complainant adversely.
9. In the above premises, it is to be decided as to whether the complaint of the complainant is maintainable and is there any deficiency of service on the part of the Ops towards the complainant.
In this context, the Hon’ble Apex Court in a decision reported in III (20213) CLT-55 (SC) in the case of Uttar Pradesh Power Corporation Limited & others –v- Anis Ahmad have been pleased to observed that complaint against assessment made U/s 126 of Electricity Act, 2003 is not maintainable before a Consumer Forum. It is the Civil Court to sit upon the matter with respect to the decision of the assessing Officer. After notice of provisional assessment to the person alleged to have indulged in unauthorized use of electricity, the final decision by an assessing Officer, who is a public servant, on the assessment of “unauthorized use of electricity” is a quasi-judicial decision and does not fall within the meaning of “consumer dispute” U/s 2(1)(e) of Consumer Protection Act. Offences referred to in Sections 135 to 140 can be tried only by a Special Court constituted U/s 153 of Electricity Act, 2003, thus, also the complaint against any action taken U/s 135 to 140 of Electricity Act, 2003 is not maintainable before Consumer Forum. By virtue of Section 3 of Consumer Protection Act, 1986 or Section 173, 174 & 175 of Electricity Act, 2003, Consumer Forum cannot drive power to adjudicate a dispute relating to assessment made U/s 126 or offences U/s 135 to 140 of Electricity Act, as the acts of indulging in “unauthorized use of electricity” do not fall within the meaning of “complaint” as defined U/s 2(1) (c) of Consumer Protection Act, 1986. In the present case, neither the complainant complied the assessment order made by the Ops nor knocked the door of the GRF. From the foregoing discussions, it is held that the complaint filed by the complainant is not maintainable. Consequently, deficiency of service on the part of the Ops does not arise at all.
Hence, it is ordered -
ORDER
The complaint of the complainant be and the same is dismissed on contest against the Ops. In the peculiar facts and circumstances of the case, no cost.
Given under my hand and seal of this Commission, this the 6th day of June, 2023.
