Consumer Complaint No.176  of 2016

Date of filing:29.09.2016                                                                           Date of disposal:05.07.2017

Complainant: Jyotirmoy Bhattacharya, S/o. Mohaprasad Bhattacharjee, resident of Vill. &

                          P.O.-Ajhapur, P.S.-Jamalpur, Dist.-Burdwan, Pin-713401.

-VERSUS-

Opposite Party: 1. Memari Customer Care Centre, WBSEDCL, represented by its Station

                                  Manager, having its office at P.O. & P.S.-Memari, Dist.-Burdwan, Pin-

                                  713146.

                              2. WBSEDCL, represented through its Secretary, Bidyut Bhaban, Block DJ, Salt

                                   Lake City, Kolkata-700 091.

Present :  Hon’ble Member :  Sri Pankaj Kr. Sinha

     Hon’ble Member :  Smt. Silpi Majumder

Appeared for the Complainant       :  Ld. Advocate Suvro Chakraborty.

Appeared for the Opposite Parties:  Ld. Advocate, Biswanath Nag.

JUDGEMENT

This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice as the OPs did not bother to change the defective meter in the circuit within due period and issued inflated electric bill on average basis.

The brief fact of the case of the Complainant is that being a consumer of the OPs in respect of domestic electric connection, he used to pay electric bills issued by the OPs as per consumption and meter reading since installation. H e never became defaulter in making payment of the bill to the OPs. On 02.05.2016 the Complainant noticed that the meter in the circuit became stop. He brought the same within the notice and knowledge of the OP-1 verbally. It was observed by by him that the last meter reading was 2143. Thereafter 06.05.2016 the men and agent of the OP-1 took meter reading and noted down the in the yellow card. From the said card it is revealed that on the said date the meter reading was 2143. The Complainant received a bill dated 18.05.2016

from the OP-1 and after going through the same the Complainant came to learn that the OP-1 claimed a sum of Rs.660/- for the month of February-April, 2016 and the OP-1 had mentioned in the said bill the previous reading as 2130 dated 03.02.2016 and the present reading as 2271 dated 30.04.2016. The OP-1 declared the meter as defective. After getting the said bill the Complainant rushed to the office of the OP-1 and requested them for changing the meter. Assurance was given by the OP-1. Thereafter the Complainant on several occasions requested the OP-1 for changing the defective meter, but failed. As such the Complainant submitted a written representation before the OP-1 on 28.05.2016 requesting to change the meter. The Complainant also paid a sum of Rs.660/- on the same day. But the OP-1 did not change the defective meter and without taking any step send another bill dated 19.08.2016 showing the previous and present meter reading as 2271 & 2504 on 30.04.2016 and 04.08.2016. The OP-1 also raised bill amounting to Rs.1,186/- for the period from May-July, 2016 whereas from the yellow card it is appeared that the meter became stopped on or before 02.05.2016. In the bill dated 19.08.2016 the OP-1 also mentioned the meter as defective one. After getting the said bill the Complainant raised objection by filing written representation before the OP-1 on 24.08.2016. Through the said letter the Complainant requested the OP-1 for changing the meter and also stated that without proper meter reading he will not pay any bill amount to the OP-1. But the OP-1 inspite of receipt several written representations and knowing fully well did not bother to change the meter of the Complainant and dragged the matter intentionally with a view to grab some money from him. Till the date of filing of this complaint the OP-1 did not change the meter. As the grievance of the Complainant had not been redressed by the OPs before coming to the Court of Law, hence by filing this complaint the Complainant has prayed for direction upon the OPs to change the meter of the Complainant by holding them liable for their conducts of deficiency in service as well as unfair trade practice, to issue correct bill dated 19.08.2016, to pay compensation to the tune of Rs.50,000/- due to harassment, mental pain and agony and litigation cost of Rs.20,000/- to him.

The petition of complaint have been contested by the OPs by filing conjoint written version contending that the Complainant is enjoying an electric service connection under Memari Customer Care Centre of WBSEDCL, Memari, Burdwan and the said connection effected with contractual load of 0.59 KVA on 15.12.2011. Since installation the energy bills were raised in accordance with the meter reading shown in the installed meter and the Complainant paid those bills. Subsequently at the time of meter reading it was found that the meter became defective and hence  the  bill  for  the  period from  February,  2016-April,  2016 of  141 units  was  raised  on

average/estimate basis. The Complainant has paid the said bill amount without raising any objection. At the relevant time as new meter was not available the bill for the period from May, 2016 to July, 2016 of 233 units was raised on average/estimate basis, but the Complainant did not pay the said bill amount rather lodged a complaint before the Deputy Assistant Director, CA & FBP, Burdwan. Accordingly on the date fixed both parties were present wherein the OPs have explained that due to scarcity of meter the defective meter, the defective meter could not be replaced. The OPs tried to explain the procedure as to how the bill was raised and also assured to replace the meter after its availability. Accordingly a new meter was installed on 19.10.2016, but the Complainant knowing everything without making any payment of the bill in question filed the instant complaint, which is liable to be dismissed. It is further submitted by the OPs that in view of the provision of the Electricity Act, Rules & Regulations framed thereunder if there is any grievance against the bill and its payment made thereof that should be ventilated before the Regulatory Commission or before the person or authority empowered by the said Act as  such having an alternative and appropriate Forum as per statute the Ld. Forum has no jurisdiction to try with the instant case. Prayer is made by the OPs for dismissal of the complaint with cost.

The Complainant has adduced evidence on affidavit along with some documents in support of his contention. The OPs have filed written notes of argument.

We have carefully perused the record; documents filed by the contesting parties and heard argument at length advanced by the Ld. Counsel for the parties. At the very outset we are to adjudicate as to whether this complaint is maintainable before this Ld. Forum or not as mentioned by the Ops in their written version. It is mentioned by the Ops that as there is alternative redressal mechanism established by the Electricity Act, Rules & Regulations, the consumer should ventilate their grievance before the said machinery and for this reason such complaint is not maintainable under the Consumer Protection Act, 1986.  The Ld. Counsel for the OPs has placed reliance on the Ruling of the Hon’ble Supreme Court. We have carefully perused the said judgment and it is seen by us that Their Lordships did not mention that complaint/dispute relating to the electric energy/disputed electric bill is ousted from the Consumer Protection Act, 1986. Moreover where there is mentioning in the definition of ‘Service’ in the C.P. Act, 1986 that service in respect of electrical energy will come within the purview of the Consumer Protection Act, 1986 and till today in this regard the C.P. Act, 1986 has not  been  amended,  hence it  cannot be said  that the instant dispute will not come under the

jurisdiction of this Ld. Forum. It is true that in view of the Section 42(5) of the Electricity Act, 2003 the consumers are entitled to approach the appropriate authority, but there is no barring provision for coming to this Ld. Forum. As it is an alternative machinery the consumers can easily approach before this Ld. Forum save and except the subject matters which the Hon’ble Supreme Court has specifically directed not to adjudicate the same. Moreover in view of the Section 3 of the C.P. Act, 1986 the Forum has jurisdiction to try with this matter.

Now we are to adjudicate as to whether there is any deficiency in service on the part of the OPs or not. It is seen by us that admittedly the Complainant is a consumer of the Ops as he is enjoying electricity at his premises, which was effected therein on 15.12.2011, domestic meter was installed in the circuit, the Complainant used to pay the electricity bills since installation as issued by the OPs without any interruption, the meter became defective in the month of May, 2016, in the bill it is written by the OPs that the meter seems defective, inspite of this without replacement of the defective meter the OPs issued the subsequent bills on average basis, for the months from February, 2016-April, 2016 bill amount was claimed for Rs.660/- for 141 units, the said amount was duly paid by the Complainant, for the period from May, 2016 to July, 2016 bill was raised to the tune of Rs.1,186/- showing consumption of 233 units of energy, the Complainant did not pay the said bill, as no step was taken by the OPs for replacement of the defective meter hence this complaint is filed by the Complainant praying for changing the defective meter and revised the disputed bill for the month of May, 2016-July, 2016 to the tune of Rs.1,186/-.  After filing of this complaint the OPs have replaced the defective meter with a new and defect free one. Further allegation of the Complainant is that after replacement of the defective meter the OPs are not sending electric bills regularly, which they are bound to issue as per the Electricity Act, 2003.

 The O.P.s have further mentioned that in case of excess billing or the disputed electric bills remedy has been laid down in the Regulation of WBERC.  As the matter related to the disputed electric bill, the same cannot be adjudicated by the Consumer Forum. Billing dispute has to be settled by the Grievance Redressal Officer as per Electricity Act, 2003 and the Forum has no authority to entertain such complaint.  As the bill for the period from May, 2016-July, 2016 average electric bill was raised due to defective meter, in that respect there was no unfair means or deficiency in service on the part of the O.P.s, the O.P.s are not liable to pay any amount towards compensation and O.P.s have prayed for dismissal of the complaint.

We have carefully perused the record and heard arguments advanced by the Ld. Counsel for the parties.  It is noticed by us that the disputed electric bill as alleged by the Complainant was issued by the O.P.s. Admittedly the questioned bill was not paid by the Complainant, but due to non-payment of the disputed bill the electric service connection was not disconnected by the O.P.s.

In the prayer portion of the complaint the complainant has prayed for issuance of fresh reasonable electric bill in lieu of the disputed bill.  Therefore, the Complainant has admitted that the said bill is a dispute electric bill.

We cannot say whether any amount, as claimed by the OPs was correct or not as we have no power to assess the correctness of the bill amount. Moreover we also cannot say or we have no authority to give direction upon the OPs for waiving the electric bill for the period from May, 2016 to July, 2016.   As per Electricity Act, 2003 and West Bengal Regulatory Commission 2004 in case of disputed or erroneous bill the power has vested to the Regulatory Authority to assess the said bill and in this respect the Consumer Forum has no power.  The said Regulation 2004 is as follows:-

3.5.1……..In case there is any dispute in the billed amount, the aggrieved party may lodge a complainant before the designated officer/agency in terms of the grievance procedure and pay under protest an amount equal to electricity charges due from such consumer for the month which shall be calculated on the basis of average charge of electricity paid by the consumer during preceding 6 months or an amount equal to the sum claimed in the bill from the consumer whichever is less than due date pending settlement of the dispute.  The amount so calculated and tendered by the consumer shall be prima-facie accepted against that bill on provisional basis.  The shortfall/difference, if any, shall be notified within 7 days to such consumer by the licensee and the same will be paid by the consumer within 5 days of receipt of such demand.

3.5.2……..If on examination, the licensee finds that the disputed bill is erroneous, a revised corrected bill shall be furnished to the consumer.  The amount paid in excess, if any, by the consumer, shall become refundable with interest at a rate which shall be the same as applicable to security deposit or any other rate as may be decided by the Commission from time to time.  The refund of the excess amount shall be made by the licensee through an adjustment in the subsequent bill in which the amount is adjusted would be treated as date of refund and interest calculated accordingly.

3.5.3……..Likewise, if on examination it is established that the original bill was correct, then the consumer shall be intimated accordingly and notified to pay the balance, if any with applicable surcharge  and  interest  within 7  days of  receipt.    The rate  of   interest   shall   be  same as in

Regulation 3.5.2.  However, consumer shall have a right to take up his complaint as per Grievance Procedure and other relevant provision of the Act and Regulations.

3.5.4…….. The licensee shall resolve the dispute and communicate its decision along with the reasons to the affected party as per the grievance procedure in the manner given therein.

3.5.5………Notwithstanding anything contained under this section, the cases falling under section 126 of the Act or any section which prescribes for any, specific procedure under the act shall not fall under this section.

Going by the foregoing discussion hence, it is

Ordered

 that the consumer complaint being No.176/2016 is allowed on contest without any cost.                     

In view of the settled legal position the Complainant shall approach before the Grievance Redressal Officer as prescribed in the said Regulation of WBSEDCL, for redressal in respect of the disputed electric bill in question.  The O.P.s are directed to redress his grievance preferably within a period of six months from the date of approach by the complainant before the appropriate Authority.  The Complainant is directed to approach before the said Authority along with all the relevant documents, his complaint regarding allegations and a copy of this judgment forthwith. As the defective meter has already been replaced by the OPs, the same is lying under the custody of the OPs. So the OPs the directed to produce the said defective meter for examination before the appropriate authority as mentioned above.  Be it mentioned that in case of non-payment of any subsequent electric bill/s issued by the O.P.s, the O.P.s may take action as per law, but we are also inclined to mention that due to non-payment of the disputed amount, if any the O.P.s shall not disconnect his electric service connection. The OPs are further directed to generate electric bills henceforth to the Complainant on regular basis.

             Dictated and corrected by me.                                                                 

                      (Silpi Majumder)

                           Member

                   D.C.D.R.F., Burdwan

             (Silpi Majumder)                                                               (Sri Pankaj Kr. Sinha)

                    Member                                                                           Member    

            D.C.D.R.F., Burdwan                                                          D.C.D.R.F., Burdwan