Orissa

Debagarh

CC/9/2016

Smt. Rita Mahapatra, aged about 50 years, S/O-S.K. Mahapatra - Complainant(s)

Versus

The S.D.O. Electrical Deogarh, Electrical Division Deogarh - Opp.Party(s)

15 Dec 2016

ORDER

DITRICT CONSUMER DISPUTES REDRESSAL FORUM, DEOGARH.

 

C.C.NO.09/2016.

 

(Shri P. C. Mahapatra, Member and Smt. Jayanti Pradhan, Member)

 

              Smt.Rita Mahapatra,

              aged about

              Wife of S.K. Mahapatra,

              R/O.Vill/-LaluSahi,Deogarh.                        ….       Complainant.

 

                      Versus

 

1. The S.D.O(Electrical)

Deogarh Electrical Division, Deogarh,

At/Post/Dist/-Deogarh.                                                 

2. The Executive Engineer,

Deogarh Electrical Division,

At/Post/Deogarh                                    ….       Opp.Parties.

 

Date of hearing: 07.12.2016   Date of decision: 15.12.2016.

              

               Counsel for the parties:

                            For the Complainant                      :  Nemo

                            For the Opposite Parties                :  R.K. Pradhan, Advocate.

 

SHRI PRATAP CHANDRA MAHAPATRA, MEMBER: - Succistinctly facts of the case is that the complainant, a permanent resident of Lalu Sahi, PO/PS/Dist.-Deogarh, is a consumer of electricity related to Account No.4141-0403-0352 under the electrical Sub-division, Deogarh. On 28.4.2016 O.P.No.1 presented a bill for an amount of Rs.1,72,412/- towards the electricity charges with pay by date.30.4.2016 and on 7.5.2016 she received  the Disconnection Notice under rule 56(1)  vide letter No.444(3) of dated 04.05.2016, wherein she was directed to pay a sum of Rs.1,40,016.72/- outstanding against her in relation to consumer No.4141-0403-0352 within 15 days of receipt of the said notice, failing which the electricity connection is liable for disconnection. The outstanding amount relates to the period of disputes i.e. from 1.1.2002 till date. The complainant had filed an appeal petition before the Ombudsmen-II, Qrs. No.3R-(S), Gridco colony, Post/-Bhoinagar, Bhubaneswar being aggrieved with the order dated 02.11.2007 of Grievance Redressal Forum, WESCO, Burla in GRF Case No.30/2007, registered under C.R.Case No. OMB (WZ)-8 of 2007-08 (WESCO), there in it was stated:

 “that-(1) she had purchased the old house from the then Raja Pradipta Ganga Dev of Deogarh(2). Prior to such purchase, the house was occupied by DFO, Afforestation Division, Deogarh, (3). After taking possession by her, the house remained mostly locked since the family of the petitioner was residing at Rourkela, (4) the family member returned to Deogarh and stated residing in this house only since March, 2007 (5). The complainant was surprised to receive an electric bill of Rs.71,906.68/- in March, 2007, she is challenging to this arrear bill with objection. (6). The O.P has manipulated in preparing many fictitious documents without the knowledge of the complainant and the complainant had never signed in such documents nor had produced any such letters/ documents. These are: -(a) the letter No. Nil of the complainant addressed to S.D.O., Deogarh Electrical Division, Deogarh. The S.D.O. had endorsed it to Sri U.M. Sahu with signature dtd.15.2.2007; (b). Vigilance squared report dtd.15.2.2007 the petitioner had not put her signature on above two documents. The O.P has made fraud in fabricating such documents. Moreover, the complainant was at Rourlkela on the date of visiting of vigilance squad. The pre-revised bill produced by the respondent to GRF with signature and without date is prepared by the respondent to harass the petitioner. The husband of the complainant Mr. S.K.Mahapatra was a franchise of WESCO for Deogarh who was authorized by WESCO to take meter reading, preparing bills, servicing same to consumer and to collect revenue from consumer on behalf of WESCO up to June,2006. Mr. S.K.Mahapatra is an honest man and he has never made any suppression of meter reading during this period. The final meter reading as on 31.05.2007 was 2989. With above facts, the complainant prays to direct the respondent to correct the erroneous bill.”

That, Honble Ombudsmen has held :

•  

1. The consumer name has to be considered as Smt. Rita Mahapatra against consumer No.4141-0403-0352 with effect from 01.01.2002.
2. No outstanding dues in the name of “For Off.Co. Smt. Rita Mahapatra” can be passed on to Smt. Rita Mahapatra as a consumer.
3.  The consumer name has to be revised as “Smt. Rita Mahapatra” with effect from 01.01.2002. The above solution address the first two issues raised at 6(1) above.

(b) The old meter could not be produced by the Respondent before this examine whether the meter reading were suppressed. Hence, the issue to resolve through a reasonable process is only to treat that-the meter is assumed to be defective for entire period of the disputes i.e. from 1.1.2002 till the date of replacing of old meter i.e. on 1.3.2008.

With such scenario and under the prevailing legal provision, I am of the opinion that:-

1. Till 31.03.2004, the electricity charge has to be calculated monthly on the basis of load factor.
2. From 1.4.2004 to 29.2.2008, it has to be based on the monthly average of the meter reading of the new meter, considering two billing cycle after it is installed. This addresses the third issue stated at (1) above:

(c)  The respondent is directed to computer the arrear bill accordingly as above and shall to the petitioner within two months maximum from the date of the order and the petitioner is directed to clear, it within another one month, the Respondent is free to take the legal action as is admission under existing law. If both the parties agree, the arrear may be paid in suitable installment.

                   The response of the license to resolve the case is considered to be not satisfactory.”

Further, Sri S.K. Mahaptara, husband of the complainant was franchisee of Deogarh Electrical Division, Deogarh (WESCO) who was authorized to take meter reading, preparing bills, servicing same to consumer and to collect revenue from consumers on behalf of WESCO up to June,2006. Instantly, he is under active consideration for being appointed as a franchisee by the Department of Energy, Govt. of Odisha. Perhaps, to falsify such an appointment presently O.Ps for reason best known them, have plotted and agitated this disputes, in spite of clear cut direction of Hon’ble Ombudsmen to settle within 2 months from the date of pronouncement of their order, after elapse of approximately 8 years.

With crystal clear direction to amend the name of the consumer on 30.2.2016 O.PS have presented a bill for Rs.1,58,269/- in the name of FOR.OFF.CO Smt. Rita Mahapatra, this indicates the intention of the O.Ps that they are not bounden to direction of the Honble Ombursmen, when complainant protested it a fresh bill was issued in the name of Smt. Rita Mahapatra for an amount Rs.1,62,412/-.

The course of action very clearly brings out that act of the O.Ps is malicious, harassing and contrary to judicious action dictated by Honble Ombusmen, on the other hand also O.Ps such course of action, is deficient in providing service under Consumer Protection Act, 1986. Hence the complaint is filed.

2.  The answering Opp.Parties in their written version submitted challenging maintainability of the case both in law and facts since the petitioner does not come within the purview of C.P.Act, as follows:

            That, the facts stated by the complaint is admitted by the Opp.Party so far it is available in the power supply record of complainant bearing Consumer No.4141-0403-0352 having permitted load of 1.75KW under domestic category. Other facts stated in the complaint petition is denied by the Opp.Party. The complainant is a habitual defaulter of electricity bill, for which the arrear of same has been accumulated against complainant and by filing this complaint the complainant is trying to get benefit from her own wrongful action.

That, in reply to the para-3 to 5 of complaint , it is to state here that the fact of service of dis-connection notice on demand of arrear electricity dues is admitted by the O.Ps and all other fact raised against the above lawful action is hereby denied as false , fabricated and baseless. The true affair is that the complainant earlier had filed CR Case No-OMB(WZ)-08/2007 before the Ld. Ombudsman-II,OERC and an interim measure the Forum vide its order dtd.16.2.2008 directed the complainant to pay Rs.5000/- in addition to regular payment of electricity dues by 15.3.2008 and the present O.P were directed to install a new meter to raise current bill as per meter reading but, the complaint neither deposited the directed amount nor co-operated with the Forum and finally above case was disposed of vide order dtd. 26.4.2008 with following direction:-

1. The consumer name has to be considered as Smt. Rita Mahapatra w.e.f. 1.1.2002 and no outstanding of previous occupant be passed to present consumer.
2. The meter is assumed to be defective for entire period of dispute I,e, 1.1.2002 to till replacement dtd.1.3.2008 and the monthly electricity charges till 31.3.2004 to be calculated on load factor and then from 1.4.2004 to 29.2.2008 is to be raised on average reading of two month billing cycle of new meter.
3. That, the respondent/Opp.parties is directed to revise the bill and service to petitioner/complainant within two month from the date of order and the petitioner is to pay the same within one month of receipt .

It is to note here that even after disposal of above referred case the complainant never co-operated for further action as per the direction of forum and continued to consume electricity without payment of monthly electricity bill on average billing and in consequence of same no further action/compliance could be carried out by the Opp.Parties. Due to such latches on part of complaint an outstanding arrear due of Rs.1,40,016.73 paisa accumulated till Feb,2016 and the O.P accordingly served demand-cum-disconnection notice vide Lt.No.444 dtd.4.5.2016 for payment of same within 15 days of receipt. But the complainant without payment of the arrear dues has filed the complaint and is trying to get benefit out of her own latches.

In consideration of aforesaid facts, the action of the Opp.Parties in the case is lawful and there is no such intentional harassment or unfairness as alleged by the complainant. Rather the complainant un-necessarily and for no reason on her part is disputing the demand notice without payment of arrear electricity bill, in consideration of which the complaint may be dismissed for said sole reason.

            The copy of order dtd.26.4.2008 passed by Ld. Ombudsman-II,OREC in C.R.Case No.OMB(WZ)-08/2007 is annexed herewith as Annexure-1 for reference.

            The copy of demand – cum- disconnection notice vide Lt.No.444 dtd.4.5.2016 is annexure herewith as Annexure-2 for reference.

That, in reply to the para-6 to 6 of the complaint is to state here that the facts narrated are false, fabricated and baseless, accordingly hereby denied by the Opp.Parties . It is to note here that on receipt of notice in the case from the Hon’ble Forum, the Opp.Parties inquired into the fact and ascertaining the current meter reading with reference to order dtd.26.4.2008 of Ld. Ombudsman-II, OERC in C.R.Case No.OMB(WZ)-08/2007 have processed for a bill revision of complainant electricity bill in two phases. In first phase the bill from Jan-2002 to Feb-2008 are revised as per the direction of Ld. Ombudsman-II and after giving due account to the payments, debit of Rs.26,114.27 paisa has been raised . In second phase the bill from March,2008 to March,2015 further also been revised as per three month average of current meter reading and after giving due account to the payment , debit of Rs.1,39,273.68 paisa has been raised and accordingly for both of bill revision period a total debit of Rs.1,65,387.95 paisa is to be given . After the two revisions , the total outstanding arrear will be Rs;.2,92,872.67 Paisa up to March,2015.

The copies of bill revision statement referred above are annexure herewith as Annexure-3 for reference.

3.         Heard and on perusal of documents tagged in to the case records it is found as follows:

1. 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-

(i)  xxxxxxx; or

(ii) 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;”

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.

2. Section 2(15) of the Electricity Act,2003 provides definition of “Consumer” which is as under:

 “consumer” means any person who is supplied with electricity for his own use by a licensee or the Government or by any other person engaged in the business of supplying electricity to the public under this Act or any other law for the time being in force and includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, the Government or such other person, as the case may be”

Section2(49) of the Electricity Act, 2003 provides definition of “person” as under :

“person” shall include any company or body corporate or association or body of individuals, whether incorporated or not, or artificial juridical person;”

            Now, we intend to visualise “ Name and Address of the Consumer” , which is, as per the above said definitions, an individual, a group of individuals incorporated or not, a corporate company, an association or an artificial juridical person, which means a person who can sue or be sued can be a consumer. “FOR. OFF. CO SMT.R.MAHAPATRA” neither an individual, a group of individuals incorporated or not, a corporate company, an association nor any artificial juridical person.

3. OPs have been raising Electricity Bills in the Name & Address of “FOR OF CO SMT. R. MAHAPATRA” until 30.03.2016.[Exhbt.-C/1] We take in to consideration, the award pronounced by Hon’ble Ombudsman in Consumer Representation Case No. OMB (WZ) -08/2007 which goes as hereunder: [Exhbt.-C/2]

“6.(2) For foregoing reasons, discussions and considerations I am inclined to hold that -

(a) for all practical proposes name of the consumer aims to Smt. Rita Mahapatra against consumer No.4141-0403-0352. The name i.e. ”For off.co. Smt. Rita Mahapatra” cannot be the name of a consumer. Such consumer name creates confusion in mind. Perhaps, the Forest Office in the same building with the address of C/O. Smt. Rita Mahapatra has been remaining to continue as a consumer after purchasing the building by Smt. Rita Mahapatra. Also probably after vacating by the above forest office, the same consumer number is being enjoyed by the petitioner under the same consumer name. However, these are possibilities. However, both parties failed to produce any documentary evidence in their support to side the merit in his/her favour. In view of this position. I place opinion as below.

(i)        The consumer name has to be considered as Smt. Rita Mahapatra against consumer No.4141-0403-0352 with effect from 01.01.2002.

(ii)       No outstanding dues in the name of “For Off.Co. Smt. Rita Mahapatra” can be passed on to Smt. Rita Mahapatra as a consumer.

(iii)      The consumer name has to be revised as “Smt. Rita Mahapatra” with effect from 01.01.2002.

The above solution address the first two issues raised at 6(1) above.

(b)  The old meter could not be produced by the Respondent before this forum to examine whether the meter reading were suppressed. Hence, the issue to resolve through a reasonable process is only to treat that-the meter is assumed to be defective for entire period of the disputes i.e. from 1.1.2002 till the date of replacing of old meter i.e. on 1.3.2008.

        With such scenario and under the prevailing legal provision, I am of the opinion that:-

(i)        Till 31.03.2004, the electricity charge has to be calculated monthly on the basis of load factor.

(ii)       From 1.4.2004 to 29.2.2008, it has to be based on the monthly average of the meter reading of the new meter, considering two billing cycle after it is installed. This addresses the third issue stated at (1) above:

(c)  The respondent is directed to compute the arrear bill accordingly as above and shall serve to the petitioner within two months maximum from the date of the order and the petitioner is directed to clear, it within another one month, failing which, the Respondent is free to take the legal action as is admission under existing law. If both the parties agree, the arrear may be paid in suitable installments.

          The response of the license to resolve the case is considered to be not satisfactory.”

4. OPs in their reply have submitted that  the complainant never co-operated for further action as per the direction of forum and continued to consume electricity without payment of monthly electricity bill on average billing and in consequence of same, no further action/compliance could be carried out by the Opp.Parties. Inspite of very clean and clear cut direction to OPs to raise Electricity Bills for the disputed period and period thereafter till date, it is not under stood, how non- cooperation of the petitioner tied their hands to comply to the direction of Hon’ble Ombudsman ? Has consumer any role in preparing the Electricity Bill by the licensee? To find an answer to this, we perused provisions contained in Orissa Electricity Regulatory Commission ( Grievance Redressal Forum and Ombudsman) Regulations, 2004, which is reproduce hereunder :

Regulation 10(6):The consumer may furnish to the licensee, within a period of one month from the date of receipt of the award or within such a period the Ombudsman may allow for reasons to be recorded, a letter of acceptance that the award is in full and final settlement of the claim.

Regulation 10(7): The licensee shall comply with the award within 15 days of the receipt of the acceptance letter under clause(6) and the licensee shall intimate the compliance to the Ombudsman.

Regulation 10(8): If the consumer does not intimate the acceptance under clause (6), the award shall not be required to be implemented by the licensee.

Ordinarily consumer has no role in preparing/ raising Electricity Bills but in the event of an award of the Ombudsman, role of the consumer plays the vital role in implementing the award, the deciding factor being the letter of acceptance. In the instant case neither of the sides have stated any thing as regards to the vital letter of acceptance i.e. neither complainant has stated to have submitted it to OPs, nor OPs have denied to have received it. Rather, action of OPs by way of raising Bill on 30.03.2016 for an amount of Rs.1,58,269/- in the name of FOR. OFF. CO SMT. R.  MAHAPATRA   was changed to the name of Smt. R. Mahapatra in the Bill for the period  May 2016 for an amount of Rs.1,67,034/- [Exhbt. – C/3] in itself evinces that award of Hon’ble Ombudsman of dated 26.04.2008 is implemented in the month of May 2016, which ought to have been implemented within 26.06.2008. This fact i.e. implementation of the award of Hon’ble Ombudsman in C.R.Case No. OMB (WZ) – 08 (WESCO) is established beyond any doubt by issuance of Revised Bill up to April 2016 for an amount Rs.1,89,515/- communicated through letter no.1864 of dated 07.06.2016.[Exhbt. – C/4] Also, it is done only after the complainant filed this complaint petition on 07.05.2016 and notice u/s-12 of the Act was received on 10.05.2016 by the OPs. Here we do not forget the concluding comment of Hon’ble Ombdusman that “ The response of the licensee to resolve the case is considered to be not satisfactory”

5. As per Regulation 15 of the OERC Distribution (Conditions of Supply) Code 1998 every person whose application for initial supply or subsequent additional supply of power has been processed by the licensee, shall before taking such supply execute an agreement in the standard format prescribed in Form No.1 of this Code and will deposit security amount as may be prescribed by the licensee. In the case of non-remunerative schemes, portion of charges as indicated in Regulation 14 (2), will also have to be deposited. Such agreement shall not be required for domestic and commercial consumers and their applications for power supply in the form prescribed in Form No.2, if accepted, shall constitute the agreement between the licensee and the consumer. The duplicate copy of the application in Form No.2 shall be handed over to the applicant with endorsement of acceptance for his reference and record. In the prescribed proforma , if the premises to which supply of electricity is needed belongs to another person i.e. applicant is not the landlord, in such case signature of land-lord is required. In the instant case complainant must have put her signature and OPs have failed to establish that For.Off.CO R.Mahapatra and Smt. R.Mahapatra are the same person by not adducing the Agreement in Form1/Form 2.  
6. It is revealed from [Exhbt. – C/2] that OPs had failed to produce the date when the supply was made to the premises under consumer number 4141-0403-0352, any closing arrear in the name of the previous consumer i.e. Divisional Forest Office, Afforestation, Deogarh was also not traceable. Also, OPs had failed to establish that the consumer no.4141-0403-0352 is continuing from the beginning with previous consumer except the fact that there is an arrear in the name of consumer For.Off.CO Smt. R.Mahapatra as on 01.01.2002. it has been alleged that though the complainant, as an interim measure was directed by the Forum vide its order dtd.16.2.2008 to pay Rs.5000/- in addition to regular payment of electricity dues by 15.3.2008, she failed to do so. Hon’ble Ombdusman had held in this regard that if the complainant remained silent towards payment of Rs.5,000/- the OPs would have gone for disconnection of power supply then under Sec-56 of the Electricity Act,2003. But OPs have not done so. Further, Hon’ble Ombdusman had directed the OPs in its order dated 16.02.2008 (i) to replace the old meter by new OK meter within one week (ii) to produce the old meter before the Forum with proper seals with signatures to be made by both the parties jointly; (iii) To take the readings of the new meter for the period from 01.03.2008 to 15.03.2008 and to produce before the Forum on 18.03.2008. The OPs only replaced the meter on 01.03.2008, which ought to had been done within 23.02.2008 and did not respond to other orders of the Forum. This establishes in itself that the OPs were not serious and sincee in resolving the dispute as recorded by Hon’ble Ombudsman. According to the said order of Ombdusman, it has been stated that the Billing details start from January 2002 only. The arrear is shown as Rs.17,458.95 as on 01.01.2002 and no details in computing this amount of Rs.17,458.95 was available from records. Further it was noticed that a defective meter was replaced with a correct meter on 28.12.2001, the final meter reading of the old meter was 26856. The initial meter reading of the new meter as on 28.12.2001 is not traceable. Thus it has been commented there the OPs are not serious about keeping the vital information i.e. the basic data for billing. It was also not understood on what basis bimonthly bills were raised by charging 696 units from January 2002 to December 2006.

Under premises of findings as above OPs activities are not fair and transparent. Ifs and buts are embedded all the while. They have acted all the along with high handedness. They have with them every scope to resolve the dispute in Billing but never have tried to do so, why it is not known. We are of the opinion that there is element of unfair trade practices and hence there is deficiency in service. We feel if such activities are not checked innocent consumers in general will suffer in this age when electricity is indispensable and mostly essential for every strata of the society. We accordingly order as below:

ORDER

 

Complaint petition is allowed. The amount shown in the Bill raised for the month of May 2016 i.e. Rs.1,63,400.71/- rounded off to Rs.1,63,401/- (Rupees one lakh sixty three thousand four hundred and one) which is outstanding in the name of FOR.OFF.CO SMT.R.MAHAPATRA shall not be passed to the complainant i.e. Smt. Rita Mahapatra, W/O- Shri S.K.Mahapatra in relation to consumer no. 4141-0403-0352. OPs are directed to rectify the Bill for May 2016 accordingly deducting the arrear amount shown and for succeeding months bills should be raised on monthly average basis on actual meter readings which shall have to be paid by the complainant in five equal installments within 15 days from the date this order is pronounced. OPs are directed to pay the complainant jointly and severally an amount of Rs.20,000/-(Rupees twenty thousand) towards compensation of mental agony and harassment and an amount of Rs.3,000/- (Rupees three thousands) towards cost of litigation within 45 days failing which additional amount as interest @12% shall have to be paid till the amount is actually paid in due 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 15^TH. Day of  December 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