Orissa

Jharsuguda

CC/66/2017

Rajendra Prasad Bondia S/O- Late Nagarmal Bondia - Complainant(s)

Versus

WESCO of Odisha Limited. Represented through its Managing Director, Burla. - Opp.Party(s)

R.K. Sharma

20 Dec 2017

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JHARSUGUDA

 

CONSUMER COMPLAINT CASE NO. 66 OF 2017

 

Rajendra Prasad Bondia (55 Yrs.),

Proprietor of M/s Om Shanti Roller Floor Mills,

S/O: Late Nagarmal Bondia, Occu: Business,

R/O: Marwaripada, Jharsuguda,

PO/PS/Dist- Jharsuguda, Odisha……….…..…………………………...…..……. Complainant.

     

                                           Versus 

 

1. WESCO of Odisha Limited,

Represented through its Managing Director, Burla,

Dist: Sambalpur, Odisha.

 

2. The General manager ( Commercial),WESCO, Burla,

AT/PO/PS: Burla.

Dist: Sambalpur, Odisha.

 

3. The Executive Engineer, WESCO, Jharsuguda

Electrical Division, Near Bharat Petrol Pump, Beheramal,

PS/Dist: Jharsuguda, Odisha.......................................................... Opp. Parties.

 

Counsel for the Parties:-

For the Complainant                           R.K.Sharma, Adv. & Associates..

For the Opp. Parties                           B.B. Barai, Adv. & Associates.

 

Date of Order: 20.12.2017

 

Present

                                            

                                       1. Shri Sundar Lal Behera, President.

                                       2. Shri Santosh Kumar Ojha, Member.

                                       3. Smt. Anamika Nanda, Member (W).

 

Shri Santosh Kumar Ojha, Member :- It is the case of complainant against the O.Ps. on electrical connection supplied for a business unit which was purchased by the present complainant, paying the regular electricity bills but due to enhancement of his unit, more electricity energy is required and for that the complainant is ready / has paid the enhancement charges but the O.Ps. did not turn up or not changing the name of connection in the name of new unit running by the complainant.

1. In nutshell, the case of complainant is that he has purchased one business unit and presently running in the name and style as, “Om Shanti Roller and Flour Mill”  from one Sri Jay Bhagwan Agrawal, which was previously in the name and style as “Baba Baijanath Roller and Floor Mill Pvt. Ltd.” by executing Registered Sale Deed vide No.594, dtd.02.03.2007 and recorded the same in his name vide M.S. R.O.R Khata No.117/335 of Mauza Beherapat. The said ‘Baba Baijanath Roller and Flour Mill Pvt. Ltd.’ declared bankrupt and after being attached by State Bank of India, Commercial Branch, Sambalpur, the complainant was advised to pay the lease amount which the complainant paid all the dues of bank and became absolute owner since the year 2007, running the said firm under name and style as “Om Shanti Roller and Flour Mill’ but the electricity connection still continued in previous name of the firm.  Suddenly, the O.Ps disconnected the Electric connection on dtd.17.05.2014 without any prior intimation and demanded Rs.24,88,384/- only as penalty amount due to the previous owner had committed theft of energy and on the same matter the complainant filed a C.C case bearing No. 27 of 2014 before this Hon’ble Forum. The complainant due to save his organization from heavy loss paid the penalty amount of Rs.25,03,285/- only including interest on dtd. 27.05.2014 and again requested the O.Ps to change the name in the new unit but the O.Ps expressed their inability on the ground that there are cases pending in the courts and demanded NOC from the previous owner.  Further the C.C.case No.27 of 2014 was dropped by this Hon’ble Forum on dtd. 24.07.2015 and there is no any case pending in any court.  The complainant installed some new machineries for enhancement of his productivity which required enhancement of load factor of electric energy.  The complainant approached for enhancement of load factor from 243 KVA to 320 KVA and he was demanded Rs.1,18,501/- only as an additional security deposit by the O.Ps. dtd. 24.04.2017 which was deposited by the complainant on dtd.24.05.2017 but till date the O.Ps. neither enhanced the load of electricity energy nor changed the name of owner from previous to the present complainant.  The complainant sustaining heavy loss and finding no other way ultimately knocked the door of this Hon’ble Forum by filing a Misc Case bearing No. 35 of 2017 along with the present complaint case and filed the relevant documents.

 

2. This Hon’ble Forum pleased to pass a Misc case order bearing No. 35 of 2017 on dtd.20.07.2017 as follows;-

 

“Hence, the objection petition filed by the O.Ps is rejected. The O.P.No.3 (Executive Engineer WESCO, Jharsuguda Electrical Division) is hereby directed to enhance the electric contract demand from 243KVA to 320KVA in the firm of complainant within 07(seven) days after completion of all the required formalities for the said enhancement and not to disconnect the electricity connection of the Petitioner / Complainant until further order. The complainant is also directed to abide by all the required formalities and shall pay the electricity charges regularly without fail”.

 

3. On the said Misc. Case order the O.Ps. being aggrieved preferred for revision before the Hon’ble State CDR Commission, Cuttack bearing RP No.90 of 2017 where the Hon’ble State CDR Commission, Cuttack held that,

 

“Thus, we find no merit in the contention raised on behalf of the revision petitioners to assail the impugned order. Therefore the revision petition is dismissed”.

     

4. The O.Ps. in their contention submitted on the ground of maintainability of the case as the complainant is not real consumer of WESCO Utility rather the previous owner and the complainant indulged commercial operation.  The O.Ps. further submitted that the demand of enhancement of load by the complainant was rejected on the ground of non-settlement of issues between the two applicants which relates to change of consumer name and refund of security deposit.  The pursuant to the interim order dtd.20.07.2017 passed by this Hon’ble Forum in Misc Case No. 35 of 2017 arising out of the present case, permission for enhancement of contract demand has accorded to the complainant by the O.Ps. vide letter No. 1276(3) dtd. 01.08.2017, with certain stipulation in accordance with provisions of Section-72 to Section-74 read with other enabling provisions of OERC Distribution (Conditions of Supply) Code, 2004. The complainant has not yet responded to the said letter of permission.  The complainant has to deposit full security deposit for the entire load of 320 KVA because the available security deposit is in the name of Baba Baijnath, the real consumer who has also requested for termination of agreement and refund of security deposit. The complainant can also approach a special Forum for redressal of his grievance and by filing supporting documents prayed for the case to be dismissed.

 

5. Matter is heard in length from both the sides, perused the available documents of case record. The O.Ps raised question on maintainability of case as a “consumer” and always mentioned the complainant as “not a real consumer” of WESCO Utility. On the said question Hon’ble State CDR Commission, Cuttack in deciding the Revision Petition bearig No. 90 of 2017, dtd. 24.08.2017 (preferred by O.Ps in Misc. Case No. 35 of 2017)  cleared the cloud and held that,

 

“xxxxx. However, on being confronted by the learned counsel for the opposite party with the definition of ‘consumer’ as provided under section 2(d)(ii), learned counsel for the revision petitioners conceded that beneficiary of the service other than the person who hires and avails of the service for consideration is also a ‘consumer’ with the approval of the person who hires or avails of any service for consideration, xxxxxx.”

 

6. In the present case the complainant has taken over the entire assets by means of purchasing and paid all the liabilities of previous owner to the O.Ps by executing Registered Sale Deed mentioning there under so also his name has been recorded in M.S RoR. The previous owner has also declared to the O.Ps the facts of sale and purchase through the letter dtd. 01.05.2007. The complainant was / is paying all the electrical energy charges regularly which have been received by the O.Ps without any objection. The entire activities fits well within the purview of U/S. 2(1)(d)(ii) of the Consumer Protection Act, 1986 reads as :   “hires or avails of any services for a consideration which has been paid or promised or partly paid and partly prom­ised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;

Explanation.— For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment;”

 

The complainant hires the services of O.Ps by using electricity energy for his use and not for resale of the said electricity energy to any others.  As such the complainant has been established as a ‘consumer’ in this case.

 

7. Before adjudicating the matter, the root of disputes are to be found out first. It is not disputed that, the complainant has purchased the said business firm in question from the previous owner namely, Jay Bhagwan Agrawal, who was running his said unit under the name and style as “Baba Baijanath Roller and Flour Mills Pvt. Ltd.” The complainant purchased the said unit / firm by executing Registered Sale Deed vide No.594, dtd.02.03.2007  which is recorded his name vide M.S. R.O.R Khata No.117/335 of Mauza Beherapat. It is also not disputed that the complainant is now running the said business unit/firm in the name and style as, “ M/S. Om Shanti Roller  Flour Mill”. The O.Ps never disputed on any amount in relation to any pending electricity bills.  Rather the only points of disputes are that while demanding the extension of load factor which is extremely required in installing new machineries for development of productivity and after abiding by / agreed to be abiding by any formalities for necessary such enhancement of electricity energy the O.Ps feel their inability so also expressing their inability to change the name of present owner / complainant.
8. The O.Ps very much cleared that after executing Sale Deed between the previous owner and present complainant the name has also been recorded in the MS RoR vide MS Khata No. 117/335 having Plot No. 199, Ac.0.620 Dec of land of Mouza Beherapat, Tah/Dist- Jharsuguda. Not only that the O.Ps are also very much aware on the letter issued by the previous owner, Jai Bhagwan Agrawal, to the O.Ps, where he made cleared on dtd. 01.05.2007 as follows :

“xxxx. I humbly that to submit in the meantime my above said mill alongwith the fixed assets have been sold to Sri Rajendra Prasad Bondia & Smt. Prema Devi Bondia vide Sale Deed No. 594 & 593 dtd. 02.03.2007.

In the above premises since the mill has been sold to third party. I request your good self to kindly cancel the agreement and treat the same as terminated and please take steps to refund my security deposit which were made with you in terms of the agreement.”

9. There were several correspondence made by the O.Ps with the complainant mentioning the name of M/S. Om Shanti Roller Flour Mills regarding change of ownership such that,

1. Letter No. WESCO/Com-1528(3) dtd. 28.10.2014 stating that, “since cases of your industry are pending before different courts, name change cannot be possible until the disposal of all cases.”
2. Letter No. WESCO/Com-431(2), dtd. 22.08.2015 stating that, “You are hereby requested to submit following necessary documents for further comply at this end. Necessary action will be taken after receipt and comply of all documents in proper shape”.
3. And also issued letters in the name of previous firm and asked to the complainant through Letter No. 1749(3) dtd. 24.04.2017 demanding Rs.1,18,501/- only of Additional Security amount and sent reminder through e.mail  by one Alok Kumar Dhal, WESCO Utility, Jharsuguda dtd. 24.05.2017. The complainant has rightly deposited the said demanded amount via UTR No. N144170299044526. The complainant has also deposited the processing fee of Rs. 1,000/- only on dtd. 02.06.2015 vide Money Receipt No. 11576 towards 77 KVA “Additional Contract Demand”. The complainant is presently using electrical energy of 243 KVA and demanded 77 KVA additional load of energy and paid the required fee also.

10. The O.Ps filed a citation of judgment of between U.P.Power Corporation Ltd. & Ors. Vrs. Anis Ahmad 2013(II) CLR (SC)-365 where in Hon’ble Apex Courts held that,

“Complaint against the assessment made by assessing officer under Section 126 or against the offences committed under Section 135 to 140 of the Electricity Act- Not maintainable before a Consumer Forum.”

In that case the Complainant / Respondent was alleged to be using more than the sanctioned load in his factory. He challenged and prayed to direct the appellant to correct the bill but in the instant case the complainant has never challenged the penal bills of using the excess sanctioned load rather requesting / approaching to the O.Ps to extent the load factor for his smooth functioning of productivity. This Hon’ble District Forum appreciate the aforesaid landmark judgment of our Hon’ble Apex Court of India but the facts and circumstances are not properly matching with the present case.

11. In a case between Karnataka Power Transmission Corp. Ltd & ANR. Vrs. Ashok Iron Works Pvt. Ltd (2009) INSC 252 (9 February 2009) filed by the complainant in which while Hon’ble Supreme Court of India has finally held that,

“In what we have discussed above, the complaint made by the company before the District Forum cannot be said to be not maintainable and we hold, as we must, that complaint is maintainable.”

So also in another case between Ajay Kumar Agrawal vrs. OSFC and others 2006(Supp.-II) OLR-407. In this landmark judgment the Hon’ble Apex Court of India while deciding has held in para 18 that,

“xxxxxxxx. But since such demand was made by the WESCO which is enjoying a monopoly status, and the petitioner had no other means of obtaining electricity, the petitioner was compelled to accept those conditions under duress. The duress on the petitioner is writ large in this case.” 

And also held that,

“Supply of electricity - obligation of WESCO, a distribution licensee, to supply electricity is a mandatory obligation under the statute. Any failure on the part of a distribution licensee to supply electricity within the time fixed in the statute will expose the license to penal consequences.”

12. After observing the abovementioned activities of both the parties it is crystal cleared that there is no any dispute regarding any outstanding/arrear bills or any penal charges raised by the O.Ps rather the complainant genuinely paying or is ready to pay the further charges of electricity energy he wants to use. The complainant only demands the extension of his load factor for which he has already paid the required fees. Further the complainant also wants the said electricity connection in his name which was not transferred since the date of purchase / taken over all the assets and liabilities of previous owner. The O.Ps have forcefully recovered the penal charges (which the previous owner was only liable to pay) from the complainant or else he was warned to disconnect the electric connection. The complainant compelled to deposit all the penal charges with interest for smooth functioning of his business. The security deposit which was deposited by the previous owner must also be adjusted as per the settled principles of law as because the complainant has taken over all the liabilities in his shoulders. The O.Ps should come forward to settle such matter where the consumer / complainant is not raising any dispute regarding any pending bill or any penal charges but the O.Ps neither making extension of the required load factor of the complainant nor changing the name of complainant.
13. The aforesaid facts and circumstances denotes committing of deficiency in services towards the complainant with unfair trade practices. Hence, this Hon’ble Forum extended its hands in order to provide proper relief keeping within the purview of the Consumer Protection Act,1986  allow the compliant case of complainant directing following orders as follows :
14. The O.Ps are here by directed to close the electric connection of complainant which was / is in the name of previous owner / firm i.e “ M/S. Baba Baijnath Roller Flour Mill Pvt. Ltd.” and provide a new electric connection in the name of “M/S. Om Shanti Roller Flour Mill” of present firm/owner by adjusting the security deposit deposited by previous owner in the name of present complainant with fulfilling the required formalities except asking about obtaining of any No Objection Certificate from the previous owner.
15. The O.Ps are hereby directed further to enhance the electric load factor from 243KVA to 320 KVA of the complainant by observing of the formalities if any by the complainant along with pay a sum of Rs. 50,000/-  (Rupees fifty thousand) only to the complainant towards harassment, mental agony including cost of the case.
16. The above mentioned orders are to be  carried out within 30(thirty) days from date of receipt of this order failing which the O.Ps shall be liable for interest @10 % per annum on the above mentioned awarded amount till realization.

Accordingly the case in hand is disposed of.

Order pronounced in the open court today the 20^th  day of December’ 2017. Free copy of this order be communicated to the concerned parties as per rule. 

       

I Agree.                                   I Agree.                                                                                          

                                         

1. Nanda, Member( W)         S. L. Behera, President           S.K.Ojha, Member                

                                     Dictated and corrected by me

 

                                           S.K.Ojha, Member