DATE OF DISPOSAL: 25.11.2024

PER:  SRI SATISH KUMAR PANIGRAHI, PRESIDENT (I/C)

The factual matrix of the case is that the complainant has filed this consumer complaint Under Section 35 of the Consumer Protection Act, 2019, alleging deficiency in service against the Opposite Party (in short the O.P.) and for redressal of his  grievance before this Commission.

2. The complainant is a user of the electricity supplied to the premises where he is residing now which stands in the name of his father RaghunathGoudobearing SC No. 342102110062/Old Account No: 10-H-17/Acc. No. 12111016130. Sometime in August 2022 some of the staff of the O.P.No.1 & 2 approached the complainant for replacement of the electric meter installed on his premises. The complainant asked the said official staffs of the O.P.No.1 & 2 that the electric meter which is installed in the premises is correct and the status of the meter is mentioned ’U’ i.e. O.K. in bills issued by the O.P.No.2 in every month. The complainant asked to show him the order if any passed and/or accompanied with them on which basis they are replacing the correct electric meters installed in the premises of the consumers in his street and Berhampur city arbitrarily. To stop such arbitrary action, the complainant has issued notice dated 12.08.2022 to both the O.P.No.1 & 2 and the O.P.No.3 and the OERC. The said notices were posted on 13.08.2022 through Registered post. All the O.Ps including the OERC have acknowledged the said notice but did not choose to reply till the filing of this case, the reasons best known to them. The statues of the OERC Distribution (Conditions of Supply) code, 2004 is well settled by the legislature that, “Under Section 59(4)-The repair or adjustment of a meter found to be defective should be done to bring the percentage of the error within the stipulated limit of accuracy.  In case adjustment or repair is not possible the defective meter shall be replaced by another tested meter within thirty working days”. But in the instant case, the O.P.No.1 & 2 failed to show that, the electric meter installed on the premises of the complainant is having errors beyond the stipulated percentage fixed by the appropriate commission and/or central electricity authority. The O.P.No.1 & 2 also failed to bring the percentage of the error within the stipulated limit of accuracy if there is any error by adopting statutory procedures laid down by the CEA and appropriate commission and the O.P.No.3. Further the O.P.No.1 & 2 are both also measurably failed to declare that, the meter which is correct at present installed in the premises of the complainant is defective and not adjustable or repairable at all on the date when the official staffs on behest of the O.P.No.1 & 2 approached the complainant. The very act of the O.P.No.1 & 2 speaks volumes and is tantamount to deficiency in services for which the complainant along with the public at large are facing untoward problems and suffering uncountable trauma at present. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.P.No.1 & 2 to stop the replacement of correct meter installed on the premises of the complainant, compensation of Rupees one per day to the complainant from the date of the inspection of the meter till realization of the actual amount, litigation costs of Rs.10,000/- and Rs.1500/- towards stationary expenses incurred to the complainant in the best interest of justice.

3. The Commission admitted the case and issued notice to the Opposite Parties.

4. The O.P.No.1 & 2 filed written counter version through his advocate. It is stated that the instant proceeding filed by the complainant is not maintainable in the eye of law. The complainant is not a consumer of electricity of TPSODL on record. The actual consumer on record of the O.Ps is Raghunath Gouda having Consumer No. 3421-0211-0062. In Para 3,4& 5 of the complaint petition, the staffs of the O.Ps approached the complainant for replacement of meter is true. The O.Ps are duty bound to follow the rules and regulations framed by OERC (Odisha Electricity Regulation Commission) and CEA (Central Electricity Authority) for installation of meter in the premises of consumers. As per Reg. 97(iv)(3) of the OERC Distribution (Conditions of Supply Code, 2019 read with Reg 4 (1) (b) of the Central Electricity Authority (Installation and Operation of meters) (Amendment) Regulations, 2019, the staffs of the O.Ps approached the complainant for replacement of meter by a new smart meter, but due to protest of the complainant it was not installed. The action taken by the O.Ps for installation of the smart meter in the premises of the complainant is not arbitrary. The O.Ps are duty bound to oblige the rule and regulations of OERC and Electricity laws framed from time to time. The smart meters are to be installed in the premises of consumers within the stipulated time frame and the consumers including the complainant should have to accept and adopt the new technology in electrical sector for installation of smart meter in the premises of any consumer replacing the old meter even if the old one is correct and is working, as the smart meters are replaced as per the provisions of law and guidelines issued by the Government. Smart metering provides rapid access to all customer transaction and payment records. In smart metering the day to day bill will be available and thus it will effective for load management by using appliances at off peak hours which will also result in lesser bill to consumer. Any tampering with meter is immediately reported to central control for which it will reduce theft so tariff rates will go down. Due to remote reading, there is no need for site visits and hence increases customer’s privacy. Smart metering provides easy pre-payment facility. The smart meter will empower the consumers to save and manages their energy consumption. Further smart metering eliminates need for sites visits to read the meter and thus it reduces the human labour. It provides timely and accurate meter reading which will result into correct billing avoiding consumer complaints in smart metering. Smart metering will also eliminate costs like meter readings, quality checks, billing complaints, payment collection in case of prepayment meters. Due to the aforesaid reasons and benefits to the customers, the Government also promotes to install smart meters in the premises of consumers within a specified time and as per the directives of the Government, the O.Ps have taken steps to install the smart meter in the premises of the complainant. So, there is no deficiency in service occurred on the part of the O.Ps in taking steps for installation of smart meter in the premises of the complainant. The complainant had misconceived the facts and misused the process of law, which is otherwise liable for dismissal with cost.

5. The issue of the case in hand is whether the OP nos. 1 & 2 replace the correctand working meter of a consumer on the basis of a directive of a government and without due consideration of the statute as well.”

6. The present case is roaming around Chapter – V – of the OERC Distribution (Conditions of Supply) Code, 2019; Electricity Act, 2003;

7. The complainant adduced evidence in his credit on the following grounds:
   1. The staffs of O.P. No. 1 & 2 have not approached the complainant in August 2022, and to that effect, O.P. No. 1 & 2 have not filed any document. The complainant issued a notice on 12.08.2022, but the O.P. Nos. 1 & 2 did not reply to that notice.
   2. The O.P.s have violated the statutory provisions under OERC Code, 2019, Reg-108(vi) regarding “Replacement with the correct meter.” The O.P.s failed to substantiate it.
   3. In the absence of any report, the O.P.s inspected and tried to remove the working meter from the premises of the complainant.
   4. The O.P.s have not adhered to the terms and conditions of the agreement for the supply of energy as per code, 2019 (erstwhile 2004).
   5. The O.P.s have not produced any report on the existing working meter that is defective, and no report has been obtained from the NABL-accredited government laboratory about the working meter in question as not repairable, produced before the commission for kind perusal.
   6. The O.P.s have issued a bill marked as “U” of the meter status after inspection, and at no point in time have the O.P.s reported that the meter is defective and needs repair or advised the complainant for replacement.
   7. The O.P.s have initiated the replacement of existing and working meters on the basis of the notification of the department as Annexure 2 & 3. But the said annexures are an afterthought and not related to existing consumers, especially the domestic category, whereas Annexures 1 & 2 did not contain any title, date, or number on the face of it when filed before the Commission. It cannot be treated as documentary evidence on behalf of the Ops in the case. And neither the staff nor O.P. No. 1 & 2 have produced the same on the date of inspection and/or replied to the notice accordingly.
   8. The O.P. No. 1 & 2 further did not adduce any evidence in their credit and also failed to bring to the record any supportive documents on the point of the issue; rather, the O.P. No. 1 & 2 relied upon its counter version without document as evidence on affidavit.

Whereas the O.P. No. 1 & 2 adduced the following evidences as reflected in their counter version—

1. The O.Ps have taken steps in accordance with Reg. 97 (iv) (3) of the OERC Distribution (Conditions of Supply) Code, 2019, read with Reg. 4 (1) (b) of the Central Electricity Authority (Installation and Operation of Meters) (Amendment) Regulation, 2019, and the notification dated 17.08.2021 for replacement of the meter of the complainant.
2. The O.P.No.1 & 2 further pressed specifically in the evidence-cum-counter version at Para 5 that, “as per the rules and regulations as mentioned above, the smart meters are to be installed on the premises of consumers within the stipulated time frame and the consumers including the complainant should have to accept and adopt the new technology in electrical sector for installation of smart meter, and there should not be any impediment from anybody else to install smart meter in the premises of any consumer replacing the old meter even if the “old one is correct and in working”, as the smart meters are replaced as per the provisions of law and guidelines issued by the Government. For benefits to the consumer as described in the different provision, the Government also promotes the installation of smart meters in the premises of consumers within a specified time, and as per the directives of the Government, the O.P.s have taken steps to install the smart meter in the premises of the complainant. So there is no deficiency in service occurred on the part of the O.P.s in taking steps for the installation of a smart meter in the premises of the complainant. There is no cause of action to file the present case against the O.P.s, and the prayer of the complainant is not admissible as the complaint itself is not maintainable.

8. The Ld. Counsel for the Opposite Party Nos. 1 & 2 and the Complainant in person were present on the date of the hearing and submitted their argument. The Commission heard at length on the point of issues from the parties and minutely verified the complaint, counter version, and evidence on affidavit and documents available in the case record.
9. To decide the above issue, the Commission relied upon the decision of law laid down by the Hon’ble Supreme Court of India inCIVIL APPEAL NO. 1939 OF 2004–Glaxo Smith Kline Pharmaceuticals Limited (Formerly known as Smith Kline Beecham Pharmaceuticals (India) Limited) – versus –Union of India &Ors.citation AIR 2014 SC 410“Departmental circulars cannot override statutory provision. In our view, it is well settled that if the departmental circular provides an interpretation which runs contrary to the provisions of law, such interpretation cannot bind the Court.” Similarly, in the instant case, the OP no. 1 & 2 took up the task to replace the existing correct and working meter from the premises of the complainant on the plea of the old meter and adoption of technology in accordance with a mere notification of the Ministry of Power vide No.: 23/35/2019-R&R, dated 17.08.2021. Hence the action of the O.P. No. 1 & 2 is not at par with the statute laid down by the Odisha Electricity Regulatory Commission in the OERC Distribution (Conditions of Supply) Code, 2019.
10. On analyzing the evidence of both parties as available in the case record, the O.P.s failed to bring to the record that on the material dates and/or prior to that, the O.P.s had issued any notice to the complainant consumer for replacement of the existing, correct, and working meter. There is nothing to suggest that the very act of the O.P.s is as per law.
11. The O.P.s have admitted in their counter version-cum-evidence in the shape of an affidavit that they have taken steps as per Regulation 97 of the OERC code, 2019 CEA Regulations 2019, and notification 17.08.2021. In the said notification, Regulation and Code (Supra), it is nowhere reflected that the O.P.s should discard the rest of the Regulations of the Code, 2019. There is no statutory provision laid down by the OERC in the Code, 2019, for replacement of a working meter. For replacement of the meter, the OERC Code, 2019 at Reg. 108 of Chapter V -Meters - Reg. 97 to Reg. 116 enacted as a complete Code and Procedure for the Electricity licensee/distributor for replacement of the meter. But in the instant case the O.P.s have intentionally avoided the said procedure and forcefully imposed their own wish upon the complainant, violating the principle of natural justice. On the above discussion on factual aspects and law, the complainant proved the deficiency in services in the present case on the part of O.P. No. 1 & 2 that they have taken steps merely on a notification of the Ministry but not as per statutory provisions of law.
    13. The OERC Distribution (Conditions of Supply) Code, 2019, and Electricity Act, 2003, upon which O.P. No. 1 & 2 have relied, speak about mandatory notice to consumers under different regulations and Sec. 163 of the Electricity Act, 2003, that prior to taking any action, O.P. No. 1 & 2 should issue notice to its consumer. In the absence of the notice, an action can be prejudicing a party, and an end of justice shall be defeated. In the instant case, the O.P. No. 1 & 2 did not substantiate why notice was not issued prior to the inspection of the meter and proposed installation of the new meter in the premises of the complainant/consumer No. 3421021100629 as per Reg. 108 of the OERC Distribution (Conditions of Supply) Code, 2019.

14. For consideration of adoption of the latest technology of the meter, Reg. 97 is the intention of the legislature to adopt the latest technology while issuing a new consumer meter. But to replace the meter, the legislature laid down the detail code and procedure in Reg. 108 of Chapter V of the Code, 2019. So by overruling the statute and without due consideration of said chapter, nobody, especially the electricity licensees/distributor, can replace the meters of their registered consumers.

15. The meter is the most vital equipment in the power supply system on which everything is dependent, and in the absence of it, electricity distribution cannot be measured. All must know about it and its regulations, laws enacted to control prior to installation and post-operation of it in the premises. The Odisha Electricity Regulatory Commission in Odisha has been regulating the laws for meters in reference to the Central Electricity Authority (Installation and Operation of Meters) Regulations, 2006. The Odisha Electricity Regulatory Commission framed a bunch of procedures scrupulously and carefully in Chapter V of the OERC Distribution (Conditions of Supply) Code, 2019 (erstwhile Code, 2004), which is now itself a complete code to operate electricity consumers’ meters in their premises. The statute speaks about the purchase of, installation of, quality of, uses of, and replacement of the meter in the said chapter under Code, 2019. The head of the different regulation reflects the entire procedure from purchase to replacement of the meter as follows:

Reg. 97 – Purchase of new consumer meter and associated equipment for new connections or replacements. Here replacement means the replacement of a non-functional meter when required but not replacement of the working meter with another working meter [Standard/Smart Meter].

Reg.98 –Standard and Smart Meter.- Quality of the Meter; Reg.99 – Accuracy Class; Reg.100 –Reviewing status of Meter; Reg.101 –Immunity to external factors; Reg.102 –Supply and Installation of Meters and Cut-outs/MCBs/CBs; Reg.103 –Sealing of Meters; Reg.104 –Removals of Seals;

Reg.105 to 108 – Safety of Meters in Chapter V of OERC Distribution (Conditions of Supply) Code, 2019 functioned like a complete code in itself with the legal remedies available to the licensee, the consumer, and beneficiaries. Here the OERC has laid down the procedure of checking of safety of Meters. The replacement can be done at such time when required but not as per Reg.97(3)(iv) of the Code, 2019. The regulation is very clear in said sub-regulation that, the licensee should gradually move on but not instantly as the Ops thought it. It is misinterpretation of the statute in reference to the notification of the Ministry. The notification upon which the Ops relied upon also reflects the conditions on face of it that, ‘in the event of new consumer Meter connection but not in old and working meter connection.’

Reg.109 – Reading of Meters; Reg.110 – Special Reading of Meters; Reg.111 – Testing of Meters; Reg.112 – Additional Meters; Reg.113 – Cost of Replacement of Defective/Burnt/Lost Meters; Reg.114 – Replacement of Defective Meters; Reg.115 – Replacement of Burnt Meters and Reg.116 – Replacement of Lost Meters.

Further, the Odisha Electricity Regulatory Commission nowhere recommended in the said chapter to the Electricity Licensee / Distributors to replace the working meter with Smart/Standard Meter by adopting the new and advanced technology in reference to the departmental notification. 

16. Relying upon the ratio in Glaxo Smith Kline (Supra) the Commission allowed the complaint of the complainant against the O.P.No.1& 2 partly on contest and dismissed against the O.P.No.3. The O.P.Nos.1 and 2 are directed not to replace the existing working meter of the complainant consumer No. 342102110062 in view of Sec.108 of OERC Distribution (Conditions of Supply) Code, 2019. The OP nos.: 1 & 2 are vicariously liable to pay compensation in accordance to the OERC (Licensees’ Standard of Performance) Regulations, 2004 to the complainant. Further it is requested to the OP No.3 to strictly keep an eye on the activities of the OP Nos.: 1 & 2 and take the necessary measures if required in the interest of the justice.

In the event of non-compliance of the above Order by the OP No. 1 & 2 within stipulated time period of 45 days from the date of receipt of the order, the Complainant is at liberty to initiate proceedings against the OP Nos. 1 & 2 under Consumer Protection Act, 2019.

This case is disposed of accordingly.

All the interim orders, if any are pending is disposed of in accordance with the above order.

The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.

A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.

The file is to be consigned to the record room along with a copy of this Judgment.

Pronounced on 25 November 2024.