Date of filing:- 16/05/2018.
Date of Order:-02/03/2020.
DISTRICT CONSUMER DISPUTES REDRESSAL FOURM(COURT)
B A R G A R H
Consumer Complaint No. 43 of 2018
Tusharakanta Nandi, aged about 25(twenty five) years, son of Rama Chandra Nandi, resident of At- Subash Nagar, Ward No. 14(fourteen), Bargarh, Po/Dist. Bargarh, PIN-768028, Parter, M/s Hotel Royal Palace, At- Near Ganesh Mandir, Railway Station, Bargarh, Po/Dist. Bargarh. ..... ..... ..... Complainant.
WESCO, represented through its Executive Engineer, Bargarh Electrical Division, Bargarh, Ps. Bargarh(Town), Post and Dist. Bargarh.
..... ..... ..... Opposite Party.
Counsel for the Parties:-
For the Complainant :- Sri S. Panda, Advocate with associate Advocates.
For the Opposite Party :- Sri T.C.Tripathy, Advocate with associate Advocates.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.02/03/2020. -: J U D G E M E N T:-
Presented by Sri Krishna Prasad Mishra, President:-
Brief Facts of the case;-
The case of the Complainant is that, he being member of a partnership firm along with some others members of his family have been doing the Hotel Business by the name and style as Royal Palace under self employment scheme to earn their lively hood. In connection with such of their business have taken an electric service connection from the Opposite Party vide his consumer No-512001110836. And on his consumption of the electricity have been paying the bills issued by the Opposite Party regularly without any default leaving no arrear bill pending against his said Consumer Number, but suddenly the Opposite Party issued him with an additional bill for an amount of Rs.2,76,045/-(Rupees two lakh seventy six thousand forty five)only without mentioning the number or date on the said bill and threatening to disconnect his connection in case of the non –payment of the same.
Thus the cause of action for filing the case arose while the additional bill for an amount of Rs.2,76,045/-(Rupees two lakh seventy six thousand forty five) with a notice to disconnect the service like in the event of non-payment of the same was served, the Complainant as one of the partner of the partnership firm has filed the case against the Opposite Party with an allegation of unfair trade practice and arbitrary action on their part with a prayer to declare such action of the Opposite Party as illegal and to quash the same amount of bill and also has filed an application U/s 13 (3)b to grant an order to restrain the Opposite Party from disconnecting his service line till the disposal of the case. And in substantiating his claim has relied upon some documents such as:-
Xerox copies of Electricity hills with receipts from Dt.10/01/2014 to Dt.14/04/2018.(Ninety nine sheets)
Additional Bill rest for non-imposing TRF loss unit.(one sheet)
Having gone through the complaint petition and the documents thereof and on hearing the learned counsel for him the case was admitted and the petition to restrain the Opposite Party from disconnecting his service line was allowed and they are directed not to disconnect the said service line of the Complainant till their appearance and filing of version, and notice was served on him to appear before the forum and in response the Opposite Party appeared through his Advocate before the Forum and filed his version.
The rival contention of the Opposite Party as per the averments made in his version is that the case is not maintainable in view of his averment that the Complainant is not a consumer in accordance with the amended relevant provision of law in the Forum, and also in furtherance to his denial has made averment that the case is not maintainable in the Forum citing the decision of the Honorable Supreme Court with a plea that the case is involved U/s 14,126,135 to 140,145,173,174, & 175 of Electricity Act, beside that also has denied to have been deficient in rendering service and having practicing unfair trade practice, and has made averment that the bill in question is issued with the Complainant is justified in view of the nature of agreement entered in to by the Complainant and the nature of service connection of the electricity power is supplied with him, quoting the related provision of law and facts in relation to the bill supplied with him as justified having no fault on their part beside so many other voluminous references to different facts and Law in relation to the case.
And in substantiating his pleas has relied on the following documents.
The copy of the agreement entered in to by both the parties in relation to the installation of transformer.
The details calculation sheets of the Account of the bill and payments made thereto.
Having gone through the complain petition and it’s accompanied documents and the version filed by the Parties we are of the view that the following issues are there to be adjudicated for the proper appreciation of the case such as.
Whether the Complainant is a consumer or not, and whether the case is maintainable before the Forum or not ?
Whether the Opposite Party has committed unfair trade practice against the Complainant and whether the Complainant is entitled to any relief.
While the hearing of the case commenced the learned counsels for the parties placed their respective arguments in support of their pleas and also the counsel for the Opposite Party has filed a voluminous notes of arguments substantiating with a numbers of decisions and Law in relation to the case. The learned counsel for the Complainant placed his arguments and also has filed a notes of argument with respect to the status of the Complainant justifying him as a consumer with an argument that since the Business is being carried out by the members of a nucleus family for earning their livelihood having being a partner status in the said business with due registration of the firm under the Company Act as a partnership firm as such the Complainant is a consumer and the same is maintainable under the Act.
On the contrary the learned counsel for the Opposite Party also vehemently argued on the point of law stating that the Complainant has been provided with the electricity connection for commercial purpose and as have entered in to an agreement for the same and also tried to justify his such claim, as the same electrification has been provided in the name of the personal name instead of the name of the Hotel concern and as has been obtained the same for the commercial purpose contravening the provision of Act as such is not a consumer, and in support of his such claim has relied on a decision of the Honorable State Commission Delhi reported in the decision C.P.J. and in supplementing the same has also relied on a decision of the Bombay State Commission reported in (1997)A.I.R.160 with others.
Furthermore the Advocate for the Complainant placed his argument in connection with the bill in question for an amount of Rs.2,76,045/-(Rupees two lakh seventy six thousand forty five)only as an arbitrary one in contravention of the provision of the Electricity Act U/s 56(2) citing the provision has stated that the same is barred by limitation as the Opposite Party has not provided the bill in time within two years from 2013 nor has reflected about the same in any of his regular bill issued prior to that but has supplied the same for the first time which in his view is an act of unfair trade practice and deficiencies of rendering service on their part and also has tried to justify his such plea stating that he was ready to pay the same in consonance with the agreement entered in to by both the Parties time to time but was not able because of the non-supply of the bill to him in time as such the present bill in question is barred by the relevant provision of the Electricity Act as has been cited. On the contrary the learned counsel for the Opposite Party vehemently objected to his plea that unless and until a statute limits right of an Authority to assess, compute or to serve a bill, it cannot be said that the authority losses it’s right to demand the money due to it, by serving a bill in this connection has also cited a decision reported in 2010(supp-11) OLR-972.
Having gone through the pleadings of the Parties and their respective documents in connection with the case in hand and on hearing the learned counsels for the respective Parties it came to our observation that the Complainant has obtained the electricity connection and has been running the hotel concerned as a member of the partnership firm constituted with the members of his nucleus family under the scheme of self employment and the same has been reflected in the said agreement entered in to by both the parties wherein it’self the Complainant along with other members his firm have been described as consumer so admittedly the same facts is very much within the knowledge of the Opposite Party while entering in to the agreement which is fortified with the definition of the Consumer U/s 2 (b)(d)(m) of the Consumer Protection Act 1986 along with the amended provision of the same too with a certain limitation that the consumer does not include a person who obtain any good or service for resale or for commercial purpose in this connection to our observation the Complainant being a member of the said partnership firm constituted by the members of their nucleus family has obtained the electricity connection entering in to the agreement with the Opposite Party for earning their lively hood furthermore the same electricity connection is not being used for resale which is more particularly has been restricted by the Act, and the same is beyond any ambiguity for which the decision cited by learned counsel for the Opposite Party is not applicable to this case, hence in view of our such aforesaid observation we are of the consensus view that the Complainant is a consumer and the case is maintainable in the Forum as such answered accordingly in favor of the Complainant.
Secondly while dealing with Issue No-2(two) as to whether Opposite Party has committed unfair trade and whether the Complainant is entitled for any relief, in this context after careful scrutiny of the documents of the parties and provision of law of Electricity Act U/s 56 (2) relating to the issues as has been relied upon by both the parties, it reveals from the agreement executed by the parties it is distinctly agreed upon by the parties which is embodied in paragraph three of the clause No.6(six) of the terms and condition pertaining to the charges to be paid by the Consumer i.e the Complainant, which is reproduced here “as provided further that the consumer shall pay electricity duty, or such other levy, tax, or duty as may be prescribed under other law in addition to the charges, fuel surcharge and transformer loss payable under the OERC distribution (Condition of supply) code 2004”besides other and also it reveals from the said Agreement that all the charges would be levied upon the Consumer within certain limited period, but in this case it is found that the alleged charges amounting to Rs.2,76,045/-(Rupees two lakh seventy six thousand forty five)only or any part thereto does not find place in any of the preceding bills issued by the Opposite Party to the Complainant prior to the alleged bill which has been supplied to him suddenly having no date or number of the same, on the contrary it is also observed that the Complainant has been paying all the billing amount without default time to time and also agreed upon by him to have paid had it been issued to him time to time as has been agreed in the said agreement, which is found to be contravening the provision of Electricity Act U/S 56(2) wherein it is clearly envisaged which is reproduced herewith as “Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer ,under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity’’, in view of the aforesaid facts and circumstances and Law we don’t feel any ambiguity in the case of the Complainant and the related law thereto as such the Opposite Party has failed to prove his case against the Complainant hence we expressed our consensus view against the Opposite Parties with a finding that such an action of issuing the alleged bill amounting to Rs.2,76,045/-(Rupees two lakh seventy six thousand forty five)only on his part amounts to unfair trade practice against the Complainant for which he is liable there under in accordance with law of Consumer Protection Act 1986, and the Complainant is entitled to the relief as has claimed for. Hence our Order follows.
O R D E R.
The Bill issued by the Opposite Party amounting to Rs.2,76,045/-(Rupees two lakh seventy six thousand forty five)only in favor of the Complainant is not being within the ambit of law is declared as illegal and the same is declared as inoperative against the Complainant and as such quashed, further the Opposite Party is directed not to disconnect the service line of supply of electricity to the premises of the Complainant vide his Consumer No-512001110836 in connection with this case. Further the Opposite party is directed to comply with this Order within one month of receipt of this Order.
In the result the complaint is allowed against the Opposite Party, and the same being pronounced in the open Forum is disposed off to-day i.e on Dt.02.03.2020, without any cost.
Typed to my dictation
and corrected by me.
( Sri Krishna Prasad Mishra)
P r e s i d e n t.
I agree,
( Ajanta Subhadarsinee)
M e m b e r (W).
Uploaded by
Sri Dusmanta Padhan
Office Assistant, Bargarh.
