Date of filing: 19.02.2015 Date of disposal: 05.07.2016
Complainant: 1. Niyoti Chowdhury, W/o. Late Krishna Dhan Chowdhury.
2. Sujata Roy, W/o.Madhabendra Nath Roy.
3. Suchorita roy, W/o. Sunil Roy.
4. Sushmita Hui, W/o. Saroj Hui.
5. Mousumi Gupta, W/o. Samir Gupta.
All D/o late Krishna Dhan Chowdhury of 21 Nabab Dost Kayem Lane, Near B.C.
Road, P.O., P.S. & District-Burdwan, Pin-713101.
-VERSUS-
Opposite Party: 1. West Bengal State Electric Distribution Company Limited Services,
represented by Chairman having its office at Bidyut Bhaban, Sector-III,
Salt Lake City, Kolkata-71.
2. Station Manager, Burdwan Group Electricity Supply, West Bengal State
Electric Distribution Company Ltd., having its office at Power House Para,
Frazer Avenue, P.S. & District-Burdwan.
Present : Hon’ble Member : Smt. Silpi Majumder
Hon’ble Member : Sri Pankaj Kr. Sinha
Appeared for the Complainant: Ld. Advocate Arindam Mukherjee.
Appeared for the Opposite Parties: Ld. Advocate Biswanath Nag.
JUDGEMENT
This complaint is filed by the Complainants u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs have issued inflated electric bills in respect of the admitted defective electric meter and inspite of
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replacement of the said meter, the OPs did not take any action to revise the said inflated bills and also due to non-payment of the said disputed amount the OPs have disconnected the electric line prior to the dead line time and date.
The brief fact of the case of the Complainants is that the husband of the Complainant-1 and the father of the Complainants-2-5 i.e. Late Krishnadhan Chowdhury was a consumer of the OPs and after demise of Late Chowdhury on 28.07.1997 the present Complainants as his only legal heirs are enjoying electricity service connection and used to make payment of the electric bills raised by the OPs from time to time. All on a sudden the OPs issued a bill for the consumption period from September, 2014 to November, 2014 to the Complainants for 1273 units. In the said bill it was written by the OP-2 that the meter no-E548952 seems to be defective. As the said bill amount was inflated one the Complainants upon receipt of the same sent a letter to the OP-2 on 24.11.2014 requesting to replace the defective meter immediately with a new defect free one and to revise the said inflated bill amount. On 27.11.2014 the OPs replaced the defective meter with a new meter. Thereafter bill was sent for the period from December, 2014 to February, 2015 for 79 units only claiming for Rs.668/- in total along with an outstanding amount of Rs.10,166.26/- for the previous period i.e. September, 2014 to November, 2014. The Complainants against sent another letter to the OP-2 on 16.12.2014 requesting for issuance of revised bill, but unfortunately nothing was done by the OPs. Thereafter the Complainant-1 went to the office of the OP-2 for making payment of the bill for month of January and February, 2015, but the OP-2 has denied to receive the same and she was informed that she should pay the bill for the month of December, 2014 first and then only she can pay the bill for the rest months. When the complainant-1 repeatedly requested for the revised bill then she was told by the OP-2 that they will look after the said matter and accordingly she will be informed. But all on a sudden on 17.02.2015 without serving any notice as per law the OPs have disconnected the electric connection of the Complainant and due to such disconnection the widow of the registered consumer i.e. the Complainant-1 aged about 70 years, who is also suffering from several ailments are passing her days in the said premises without any electricity. On 19.02.2015 the Complainants were served with a notice under 56 (1) of the Electricity Act, 2003 with a direction to pay the outstanding amount within 26.02.1015, in default the service connection will be disconnected as per the rules
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and Regulations. But surprisingly before the schedule time the OPs have already disconnected the electric service connection of the Complainants. According to the Complainants without issuing any revised bill prior disconnection of the electric service connection is an example of unfair trade practice on behalf of the OPs. As their grievances have not been redressed by the OPs, hence having no alternative they have approached before this Ld. Forum by filing the complaint praying for direction upon the OPs not to claim the bill amount of Rs.10,166.26/-, to issue the revised bill for the period from September, 2014 to November, 2015, to pay them Rs.40,000/- towards compensation due to mental agony, harassment, Rs.40,000/- for unfair trade practice as electric connection was disconnected prior to the schedule period and litigation cost of Rs.10,000/-.
The petition of complaint have been contested by the OPs by filing conjoint written version contending that the service connection having consumer ID no-512026966 stands in the name of Krishnadhan Chowdhury and the connection was effected for domestic purpose at his premises. Before effecting such connection Sri Chowdhury entered into an agreement with the WBSEDCL and as such Sri Chowdhury is/was the registered and recorded consumer of WBSEDCL and it is a purely a contractual relation none has any authority to be a registered consumer automatically of the WBSEDCL after demise of the registered consumer. After the death of the registered consumer it was the primary duty of his legal heirs to complete with all formalities as prescribed for changing the name of the registered consumer, since deceased. But none of the Complainants has taken any fruitful step in this regard, so these Complainants have no locus-standi to initiate the present complaint as the Complainants are not the registered consumer/s of the OPs. Therefore on that score this complaint is liable to be dismissed with cost. The OPs have stated that initially the energy bills were being raised as per reading shown in the installed meter and subsequently the said meter was found defective and the estimated bills have been raised since bill month March, 2013 and six numbers estimated bills have been paid by the consumer without any objection and in similar method one bill was generated on 23.10.2014 where the estimated units came as 1273 depending upon previous consumption pattern for the same consumption period when the meter was properly functioning. The estimated unit was generated by the data base system observing the WBERC guideline. However the total bill came for Rs.10,166/- for
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the period from September, 2014 to November, 2014 and the said bill amount was carry forwarded in the next bill as outstanding dues. So until and unless the first part of the bill amounting to Rs.10,174/- is not paid, the OPs cannot encouraged the Complainants for making payment of the rest part of the bill. The OPs have mentioned that in view of the provision of the Electricity Act, 2003 and Rules and Regulations framed thereunder if there is any dispute regarding the mode of preparation of billing and its payment made thereof the same is to be ventilated before the Regulatory Commission or before the person or authority empowered by the said Act and as such having an alternative and appropriate Forum this Ld. Forum has no jurisdiction to try with the instant case. Prayers have been made by the OPs for dismissal of the complaint with cost.
After submitting the amended complaint by the Complainants conjoint additional written version were filed by the OPs stating the same contention as per the previous written version. The Complainants have adduced evidence on affidavit along with some papers and documents in support of their contention. The OPs have filed written notes of argument with a copy to the other side. The ld. Counsel for the Complainants has placed reliance on some judgments and the copies of the same has been duly filed.
We have carefully perused the record, documents as filed by the contesting parties, rulings on which the Complainants have relied on and heard argument at length advanced by the Ld. Counsel for the parties.
It is seen by us that there are some admitted facts in the case in hand i.e. the husband of the Complainant-1 and the father of the other Complainants, since deceased was the registered consumer of the WBSEDCL, the registered consumer died on 28.07.1997, after his death no written intimation was given by the legal heirs of the deceased to the authority of the WBSEDCL, the present Complainants are enjoying the said electric service connection till today, no step has been taken by the Complainants for changing the name of the registered consumer, since deceased, the Complainants used to pay electric bills regularly, the Complainants got an inflated bill to the tune of Rs.10,166/- for the period from September, 2014 to November, 2014, the Complainants did not pay the said bill amount, in the said bill it was mentioned by the OPs
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that the meter in the circuit became defective, the Complainant-1 made written correspondences with the OPs requesting for changing the defective meter with a new defect free one, request was also made for issuance of revised electric bill as the earlier bill was raised on the basis of a defective meter, though the OPs have replaced the defective meter, but did not bother to raise revised bill, the Complainants did not pay the amount, subsequent bill was issued showing the outstanding dues for Rs.10,166/- along with current consumption for the period from December, 2014 to February, 2015, the Complainant-1 went to the OP-2 for making payment of the later bill amount, but she was told that until and unless the outstanding dues is paid the OP-2 is not in a position to accept the subsequent bill amount, the OPs have issued one notice under Section 56(1) of the Electricity Act, 2003 upon the Complainant-1 directing her for making payment of Rs.10,512/- within 26.02.105, in default of making payment the electric connection will be disconnected, inspite of mentioning the schedule date the OPs disconnected the electric connection of the complainants on 17.02.2015, the notice was delivered to the Complainant-1 on 19.02.2015 i.e. after disconnection of the electric connection, on 19.02.2015 this complaint were initiated by the Complainants praying for certain reliefs along with a prayer for an interim order for reconnection of the electric connection at their residence as early as possible, after admission hearing interim petition was moved by the ld. Counsel for the Complainants, after hearing the petition was allowed subject to direction upon the Complainants for making payment of the 50% of the outstanding amount to the OPs along with reconnection charge, the Complainants paid the said amount along with the reconnection charge of Rs.100/- to the OPs and the electric connection was duly reconnected by the OPs. The allegation of the Complainants is that till filing of this complaint the revised electric bill for the period from September, 2014 to November, 2014 has not been raised by the OPs and the OPs have disconnected their electric connection much prior to the schedule date without serving any notice and according to the Complainants such action can easily be termed as an unfair trade practice on behalf of the OPs. Making such allegations this complaint has been initiated by the complainants praying for certain reliefs.
The contention of the OPs is that the present Complainants are not the registered consumer/s, hence, they have no locus-standi to initiate the complaint and on that score only this complaint is liable to be dismissed. Further plea of the Ops is that as the complainants did not pay the
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outstanding dues, electric connection was disconnected and in this respect there was no deficiency in service and/or unfair trade practice on their part. Moreover in view of WBERC as there is alternative Forum for redressal of the grievances of the consumers regarding inflated bills, defective meters and payment mode etc, this ld. Forum has no authority to try this complaint. Prayer has been made by the OPs for dismissal of the complaint with cost.
During hearing the Ld. Counsel for the OPs has raised the most vital point that the present Complainants are not the consumers of the WBSEDCL and hence this complaint is not maintainable before this Ld. Forum. So we are to adjudicate at the very outset as to whether the Complainants can be termed as consumers or not. Admittedly the husband of the Complainant-1 and the father of the rest Complainants was the registered consumer of the WBSEDCL and at the time of getting electric connection at the premises Late Krishnadhan Chowdhury, since deceased had entered into an agreement with the OPs. Mr. K. Chowdhury died in the year 1997. But after his death the Complainants did not intimated the OPs about the death of the registered consumer in writing and since inception the present Complainants are enjoying electricity along with their father/husband and after the demise of the registered consumer the Complainants are also enjoying the same without any interruption and without changing the name of the registered consumer. According to the OPs as neither the Complainant-1 nor the others is a registered consumer of the WBSEDCL, she/they are not entitled to file this complaint before this Ld. Consumer Forum, where the primary criteria is that the Complainant should be a consumer. According to the Complainants they can be termed as beneficiaries of the registered consumer because they were/are enjoying electrical energy since inception along with deceased registered consumer and after his death they are also enjoying the energy and used to pay electric bills regularly as per consumption issued by the OPs. In support of such contention the Ld. Counsel for the Complainants has relied on the judgment passed by the Hon’ble SCDRC, Punjab, Chandigarh, decided on 07.07.2006 in the case of Punjab State Electricity Board vs. Parveen Kumar Jain & Others. We have gone through the said judgment and it is seen by us that the said observation of the Hon’ble SCDRC can be applicable in the instant complaint because the facts of the relied judgment is almost similar and identical with the fact of the present case in hand. In the relied judgment the only argument urged therein was that the Complainants cannot be said to
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be consumers under Consumer Protection Act. But the Hon’ble SCDRC could not agree with the submission of the ld. Counsel for the appellants. In the paragraph no-6 it is hold which runs as follows-
6. ‘ ………………Hazur Singh, in whose name the electricity connection was died. After the death of Hazur Singh, the legal heirs of deceased had sold the property to the father of the Complainants, namely, Sat Pal. After the death of Sat Pal, the Complainants, who were residing in the house, continued using the electricity though the electricity connection remained in the name of Hazur Singh. Since the actual user in the premises were the Complainants, they will be beneficiaries of the original person in whose name the electricity connection was existing. They were the persons who were paying the electricity bills though the bills were being issued in the name of a dead person Hazur Singh. If the notice which was issued in the name of dead person Hazur Singh was not challenged by the beneficiaries, i.e. the Complainants, the net result would be that on the non-payment of the amount of the demand notice electricity connection would be disconnected. Naturally the beneficiaries, who were the one who will be affected by any order that will be passed by the PSEB, can challenge the impugned demand. Of course, if they want the transfer of the electricity connection in their names, procedure under Rules and Regulations of the PSEB shall have to be followed by both the parties before actually transferring the electricity connection in the name of the legal heirs or anyone of them.’
Not only that, after receipt of the alleged inflated electric bill to the tune of Rs.10,166/- and after getting knowledge that the meter in the circuit became defective, the Complainant-1, the widow of the registered consumer of the OPs, made written correspondence with the OPs requesting to change the defective meter with a new and defect free one. Accordingly in response to the said letter of the Complainant-1 the OP-2 changed the defective meter. At that point of time no question was raised on the part of the OPs that by which authority the Complainant-1 made written correspondence where she is not a registered consumer of the OPs in respect of the said meter. Moreover the OPs issued the notice u/S 56 (1) of the Electricity Act, 2003 in the name of the Complainant-1 and at that juncture also did not raise any question about her locus-standi.
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Therefore having regard to the aforementioned judgment of the Hon’ble SCDRC, Punjab and considering the facts and circumstances along with the papers and documents we are of the view that the Complainants can easily be termed as beneficiaries of the registered and as per the Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 the beneficiary can file a consumer complaint before the Consumer Forum as she/he is also a consumer.
Next we are to see as to whether this complaint is maintainable before this Ld. Forum or not as per the contention of the OPs mentioned in the written version. In this respect we are of the view that admittedly the Consumer Protection Act was enacted in 1986 with a view to provide better protection of the interests of the consumers and to provide speedy redressal of their grievances inspite of existence of alternative Forum/Civil Court etc. According to the OPs as there is alternative Forum in view of the WBERC guidelines, Rules and Regulations, this complaint cannot be adjudicated by this ld. Forum and the Complainants are under obligation to approach before the appropriate authority as per the WBERC. But in view of the Section 3 of the Consumer Protection Act,1986 this complaint is well maintainable before this Ld. Forum and the Complainants can approach before the Consumer Forum for redressal of their grievances inspite of existence of alternative machinery. So the submission of the OPs does not stand at all.
Now we are to adjudicate as to whether there was any deficiency in service and/or unfair trade practice on the part of the OPS or not. Admittedly the Complainants used to make payment of electric bills regularly issued by the OPs. As per the complaint they received an exorbitant electric bill for the period from September, 2014 to November, 2014 amounting to Rs.10,1666/-. In the said bill the Complainants noticed that the meter in the circuit became defective. In the written version it is stated by the OPs that they used to issue electric bills on average basis since March 2013. No clarification has been given by the OPs to the extent that why average bills were raised. It is true that the Complainants paid those bills without raising any objection or protest. Upon receipt of the disputed bill the Complainant-1 made written correspondence with the OP-2 for changing the defective meter and accordingly the meter was changed by the OPs with a new and defect free one. Therefore admittedly the defective meter is lying under the custody of the OPs. As per the petition of complaint though the defective meter was changed, the disputed bill has not been rectified or revised inspite of verbal assurance given by the OPs. After replacement
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subsequently further bill was raised by the OPs for the months of December, 2014 to February, 2015. Upon receipt of the said bill while the Complainant-1 went to make payment of the bill amount she was told that until and unless the bill amount of the earlier period is not paid, the subsequent amount cannot be taken. Admittedly as the complainant-1 raised objection against the inflated bill, the same was not paid. Thereafter one notice was issued upon the Complainant-1 by the OPs which was received by her on 19.02.2015 claiming an amount of Rs.10,512/-towards outstanding dues and Rs.100/- as disconnection & reconnection charge and through the said notice the Complainant-1 was directed to make payment of the entire amount within 26.02.2015. But surprisingly the OPs have disconnected the electric connection of the Complainants on 17.02.2015. According to us such action of the OPs is arbitrary in nature as without serving any notice the OPs cannot disconnect any electric service connection, which admittedly they did. Moreover, much prior to the schedule date as mentioned in the notice the OPs have disconnected the electric connection of the Complainants, which in our view an example of an unfair trade practice. Due to such unfair trade practice as well as deficiency in service of the OPs the Complainants have to suffer mental pain and agony, so the OPs are under obligation to compensate their unfair trade practice as well as the sufferings of the Complainants by making payment of appropriate compensation. From the documents as filed by the Complainants it is evident that the OPs have received Rs.100/- towards disconnection & reconnection charges on two occasions i.e. on 21.02.2015, while this Ld. Forum directed the OPs to reconnect the electric connection of the Complainants at the time of providing interim order. But we have noticed that on 01.07.2015 while the Complainants paid a sum of Rs.5145/- towards electric bill for the period from March, 2015 to May, 2015, then also the OPs have charged further Rs.100/- towards disconnection and reconnection charge. It is noticed by us that admittedly disconnection was made by the OPs only on 17.02.2015, but disconnection & reconnection charge was taken by the OPs on two occasions. During hearing the Ld. Counsel for the OPs has failed to provide us any satisfactory reply in this context as to why the abovementioned charge was imposed on the shoulder of the Complainants on two occasions. As the OPs are not entitled to claim disconnection and reconnection charge twice where disconnection was made only on one occasion, hence the OPs are under obligation to refund the said amount of Rs.100/- as received on 01.07.2015 to the Complainants. Admittedly the OPs
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received the said amount on 01.07.2015, but no step was taken by the OPs to refund the said amount to the Complainants or adjust the amount with the subsequent bills. So in our considered view the OPs are also under obligation to make payment of interest on the said amount. Admittedly as the OPs have disconnected the electric connection of the complainants much prior to the schedule date, for which the Complainants approached before the Court of Law and inspite of making requests the OPs did not revised the disputed electric bill knowing fully well that the meter in the circuit became defective. Therefore as the Complainants have to incur some expenditure by filing this complaint, hence in our view they are also entitled to get some amount towards litigation cost.
In the prayer portion the Complainants have prayed for direction upon the OPs not to claim the disputed bill amount of Rs.10,166.94/- and further prayer have also been made to calculate the amount based on average consumption for the last two years per month from them. In this respect we are of the view that in the interest of equal justice we cannot direct the OPs not to claim any farthing from the Complainants towards the disputed bill or to claim the amount on average basis. Moreover we cannot assess the bill as we do not have any machinery to do the same. Regarding disputed electric bill or defective meter what is to be done the same has been clearly mentioned in the Electricity Act, 2003.
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.
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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.
It is an admitted fact that the defective meter being no-E548952 has already been replaced by the OPs in the month of February, 2015. So the said defective meter is lying under the custody of the OPs. So in view of the settled legal position the OPs shall approach before the Grievance Redressal Officer for redressal of the grievance of the Complainants in respect of the disputed electric bill in question i.e. bill dated 23.10.2014. The OPs are directed to redress their grievance preferably within a period of six months from the date of approach by the Complainants before the appropriate Authority. The Complainants are also directed to approach before the said Authority along with all the relevant documents, their complaint regarding disputed bill and a
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copy of this judgment forthwith. Be it mentioned that in case of non-payment of any later electric bill issued by the OPs, the OP.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 OPs shall not disconnect his electric service connection. After completion of the entire procedure the Complainants are hereby directed to take initiative to change the name of the deceased registered consumer as per the WBERC Guideline, Rules and Regulations forthwith.
Going by the foregoing discussion hence it is ordered that the complaint is allowed in part on contest with cost. The OPs shall pay either jointly or severally to the Complainants a sum of Rs. 1000/- towards compensation due to deficiency in service and Rs.1000/- due to unfair trade practice for which the Complainants suffered mental agony and harassment within 45 days from the date of passing of this judgment, in default the amount of Rs.2000/- shall carry interest @6% p.a. for the default period. The OPs are also at liberty to adjust the compensation amount of Rs.2000/- with the subsequent electric bill/s within 45 days. The OPs are also directed to refund Rs.100/-to the Complainants along with interest @6% p.a. from 01.07.2015 to the date of realization within 45 days from the date of passing of this judgment, in default the amount of Rs.100/- along with interest shall carry penal interest @8% p.a. for the default period. The OPs shall pay either jointly or severally a sum of Rs.500/- to the Complainants as litigation cost within 45 days from the date of passing of this judgment, in default the Complainants are at liberty to put the decree into execution as per provision of Law. Both parties are directed to take appropriate steps in respect of the disputed bill as aforementioned.
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
