Date of Filing: 01-08-2016                                        Date of Final Order: 15-06-2017

Sri Gurupada Mondal, President.

This is a case u/s 12 of CP Act filed by Bablu Dakua against the Station Manager, Mathabhanga Customer Care Centre, WBSEDCL and other praying for direction to the OPs to install electric connection in the house of the Complainant, to determination the real matter in dispute, direction to waive the provisional assessment bill of Rs.25,821/- for direct hooking of electricity, also direction to pay Rs.25,000/- for deficiency of service, Rs.25,000/- for mental pain and agony and cost of Rs.10,000/-.

The case of the Complainant in short is that he constructed a Tin shed building in his own land and after completion of the said house and electric wiring, he applied for electric connection in his house in the month of January, 2015.  As per requisition, he deposited Rs.406/- for obtaining electric connection and the Op No.1 issued two money receipts on 14.08.15 in his favour.

Further case of the Complainant is that after depositing the said amount in favour of OP No.1, the Complainant went to the Office of OP No.1 & 2 for installation of electric connection but electric connection was not given at his newly constructed premises.  As a result, the Complainant has been suffering a lot and has been compelled to live in the darkness.  It is further alleged by the Complainant that in the month of February, 2016, the Complainant went to the Office of Op No.1 for obtaining electric connection in his house and after discussion, the OP No.1 disclosed that they installed Metre in the month of December, 2015 and on 11.02.16, Op No.1 and his staff visited his house and they threatened with dare consequence including prosecution and arrest.  Then on 13.02.16, the Complainant received a provisional assessment bill of Rs.25,821/- with a charge of direct hooking of electricity in lieu of installation of electric connection.  The allegation of direct hooking of electricity as levelled against him is false and baseless and issued as per sweet will of the OP, which amounts to deficiency of service.  On the basis of the aforesaid allegations, the Complainant has filed the instant case against the OPs for proper relief/reliefs.

The OP No.2 received summons from this Forum but did not turn up to contest this case and as such the case was heard ex-parte against the OP No.2.

The OP No.1 has filed w/v denying all material allegations contending inter-alia that the instant case is not maintainable.  The Complainant has no cause of action to file this case and the case is barred u/s 26 of CP Act.

Specific case of the OP No.1 is that the Complainant deposited Rs.406/- for installation of electrical connection in his premises at the Office of OP No.1 and thereafter the OP No.1 issued work order No.225998 dated 15.09.15 to M/s Kar Enterprise for installation of electric connection and M/s Kar Enterprise visited the premises of the Complainant on 17.09.15 and found wiring and earthing incomplete and to that effect M/s Kar Enterprise submitted a report to the OP No.1 on 18.09.15.  It is also alleged that the OP No.1 vide his Office Memo No.MTB/CCC/7078 sent a letter to the Complainant informing that due to incomplete wiring and earthing M/s Kar Enterprise was unable to effect the electric connection and also requested to complete wiring and earthing in his premises to provide service connection.  The Complainant did not inform the OP No.1 regarding the completion of wiring and earthing.

It is further alleged by the OP No.1 that on the basis of source information, the OP No.1 alongwith his staff conducted a raid in the premises of the Complainant and found that the Complainant was enjoying electricity by direct hooking and an FIR was lodged with the I.C, Mathabhanga P.S. on 12.02.16 and a provisional assessment bill of Rs.25,821/- u/s 126 of the Electricity Act, 2003 dated 13.02.16 was sent to the Complainant, who received the same on 18.02.16.  It is also alleged that no civil court shall have jurisdiction to entertain a suit or proceeding in respect of any matter assessed by Assessing Officer.  The Consumer Forum has no jurisdiction to entertain the present case. On the basis of the aforesaid facts and circumstances, the OP No.1 prays for dismissal of the case with costs.

In the light of the contention of both the parties, the following points necessarily come up for consideration to reach a just decision.

POINTS  FOR  CONSIDERATION

1. Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?

2. Has this Forum jurisdiction to entertain the instant complaint?

3. Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?

4. Whether the Complainant is entitled to get relief/reliefs as prayed for?

DECISION  WITH  REASONS

We have gone through the record very carefully, peruse the entire documents in the record also heard the argument advanced by the parties at a length.

Point No.1.

The Complainant applied for electric connection in his premises before the OPs and as per direction of the OP No.1, the Complainant deposited Rs.406/- in favour of OP No.1.  The Op No.1 appointed M/s Kar Enterprise to install electric connection in the premises of the Complainant but electric connection could not be given to the Complainant due to incomplete wiring.  Therefore, there is a transaction in between Complainant and the OP, It relates to supply of electricity on consideration, and consideration was paid.  Hence, we hold that the Complainant is a consumer.  This point is decided in favour of the Complainant.

Point No.2.

The Complainant is the resident of Cooch Behar and the Offices of the OPs are situated within the district of Cooch Behar.  The cause of action arose at Cooch Behar and as such, we hold that this Forum has territorial jurisdiction to try this case.

The claim of compensation and other reliefs are within the prescribed limit of pecuniary jurisdiction. Hence, this Forum has territorial as well as pecuniary jurisdiction to try this case.  Hence, this point is decided in favour of the Complainant.   

Point No.3 & 4.

Both the points are taken up together for consideration of discussion as well as the points are related with each other.

The case of the Complainant is that he applied for electric connection in his premises and as per requisition, he deposited Rs.406/- in favour of the OP but he was not given electric connection inspite of much persuasion.  Thereafter on 13.02.16, he received a provisional assessment bill issued by OP No.1 amounting to Rs.25,821/- alleging a direct hooking of electricity.

On the other hand, the case of the OP No.1 is that the Complainant deposited Rs.406/- for taking electric connection in his premises and to that effect he engaged M/s Kar Enterprise to give electric connection in the premises of the Complainant, who visited the house of the Complainant to give electric connection but electric connection could not be given due to incomplete wiring and earthing .  The matter of incomplete wiring and earthing was informed to the Complainant by an official Memo asking him to inform OP No.1 in writing after completion of earthing and wiring.  In the meantime, the OP received information that the Complainant was consuming electricity by direct hooking and then the OP No.1 and his staff conducted a raid at the house of the Complainant and the Complainant was caught red-handed.  PVC wire and one bulb with holder were seized and an FIR was lodged with the I.C. Mathabhanga P.S.

Admitted fact is that the Complainant deposited Rs.406/- for taking electric connection in his premises.  According to OP No.1, he engaged M/s Kar Enterprise to give electric connection and due to incomplete wiring and earthing, electric connection could not be given and the said matter was informed to the Complainant with a direction to inform the OP No.1 after completion of electric  wiring and earthing.  The OP No.1 has produced the information given by M/s Kar Enterprise, information given to the Complainant by the OP No.1, the copy of FIR, the seizure list and the Provisional Assessment Bill.

Ld. Advocate for the OP No.1 cites three case decisions reported (2013) CJ921 (SC), 2016 (3) CPR 581 (NC) and a Revision petition No. RP/30/2016.  Ld. Advocate for the OP submits that this case is not maintainable in law and this case should be dismissed.

Hon’ble Apex Court held that a consumer may file valid complaint in respect of supply of electric or other energy.  If the Complaint contains allegation of unfair trade practice or restrictive trade practicing or there defective goods; deficiency of service; hazardous services or a price in excess of price fixed by or under any law.  In absence of any allegation as stipulated u/s 2(1)© or Consumer Protection Act,  Complaints filed by the respondents were not maintainable before the Consumer Forum.

National Consumer Disputes Redressal Commission, New Delhi held in a case reported in 2016 (3) CPR 581 (NIC), Consumer Forum has no jurisdiction to entertain Complaint concerning power theft.

In a Revisional application being No. RP/30/2016, Hon’ble State Commission held that the observation of the highest court of the land, a Complaint against the assessment made by the Assessing Officer u/s 126 or against the offence committed u/s 135 to 141 of Electricity Act, 2003 is not maintainable before a Consumer Forum.

Ld. Advocate for the Complainant cites a case decision reported in (2012) CJ 727 (NC), wherein National Commission observed that the seal of metre was not sent to appropriate laboratory for checking.  Since it was considered that detained report of Vigilance Team was adequate to prove theft of electricity.  Power theft cannot be concluded on the basis of the report of Vigilance Report.  We have perused the cited case decision carefully of the Complaint.  The fact of this case and the cited case decision are totally different and as such, this case decision is not applicable in this case.

We have also perused the other case decisions cited by the Ld. Advocate for the OP No.1.  The sum and substances of all the case decisions is that in absence of any allegation as stipulated u/s 2(1)C of CPC Act, Complainants filed by the respondents were not maintainable before the Consumer Forum and theft of electricity does not come within the purview of Consumer Protection Act.  But, this case is different from the other cited case decisions.  In this case, there is an allegation of theft of electricity by way of direct hooking and at the same time, the Complainant prays for a direction to the OP to install electric connection in his house.  The Complainant deposited Rs.406/- for getting electric connection in his premises.  In view of above mentioned case decision, this Forum cannot waive the provisional assessment bill of the Complainant as this Forum has no jurisdiction to try a case of theft of electricity.

The documents filed by the OP No.1 cannot be over-looked.  The said documents are required to be considered.  Admitted fact that the Complainant deposited Rs.406/- in favour of the OP to take electric connection in his premises.  It is evident from the document of the OP No.1 that he engaged M/s Kar Enterprise to install electric connection in the house of the Complainant and M/s Kar Enterprise went to the house of the Complainant to give electric connection and found wiring and earthing incomplete.  M/s Kar Enterprise informed the matter to OP No.1 and then the Op No.1 by a letter being Memo No.MTB/CCC/7078 dated 18.09.15 informed it to the Complainant.  The OP further requested the Complainant to inform him in writing to the Office of Mathabhanga CCC after completion of earthing and wiring.

The documents as produced by the OP cannot be thrown out.  But, we have to consider the total circumstances of the case.  The Op No.1 has not filed any documents before this Forum that the matter of alleged incomplete wiring and earthing was informed to the Complainant by any means.  Unless it is communicated to the Complainant, then it cannot be taken into consideration that wiring and earthing were incomplete in the premises of the Complainant.

This Forum cannot adjudicate the allegation of theft of electricity by direct hooking.  The OP No.1 lodged an FIR before the IC, Mathabhanga P.S. but I.C. received the Complaint but from the said FIR we do not find that a criminal case was started against the Complainant.  Moreover, we find from the documents of the OP that a seizure list was prepared in presence of witnesses.  The witnesses, who signed on the seizure list, are all the employees of the OP No.1.  There was no impediment to take the signature of the Complainant and other independent witnesses in the seizure list prepared by the OP No.1.  Therefore, it creates a doubt about the criminal case and seizure.  This Forum cannot deal with the criminal case as well as Provisional Assessment Bill.

But the Complainant has deposited Rs.406/- to take electric connection in his premises on 14.08.2015.  The matter of incomplete wiring and earthing was not informed to the Complainant.  Therefore, the Complainant has the every right to get electric connection in his premises.  It amounts to deficiency of service on the part of the OP No.1.

Both the points are disposed off accordingly.

Hence,

            Ordered,

                        That the present complaint is allowed in part on contest with cost of Rs.500/- against OP No.1 and ex-parte against OP No.2.

The OPs are hereby directed to install electric connection in the house of the Complainant within 30 days from the date of the order, failing which the OP shall pay Rs.100/- per day and the said accumulated amount shall be deposited to District Consumer Legal Aid Account.

Other reliefs are declined.

Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.

Dictated and corrected by me.