State Consumer Disputes Redressal Commission
M/S. Foto Art (M/S. Punch) vs The Sernior Commercial Exe., Cesc Ltd. on 27 January, 2010
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. FA/373/2009 DATE OF FILING: 23.9.2009 DATE OF FINAL ORDER: 27.01.2010 APPELLANT M/s. Foto Art (M/s. Punch) 8/4B, Hati Bagan Road P.S. - Beniapukur Kolkata 700 014 RESPONDENTS The Senior Commercial Executive CESC Ltd. Central Regional Office, CESC House Chowringhee Square Kolkata 700 001 BEFORE : HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT MEMBER : MR. A.K. RAY MEMBER : MRS. S. MAJUMDER FOR THE APPELLANT : Ms. S. Das, Advocate FOR THE RESPONDENT : Mr. S. Nayak, Advocate : O R D E R :
HONBLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT This appeal was filed against order dated 23.6.09 passed by District Consumer Disputes Redressal Forum, Kolkata Unit-II in C.C. No. 453/2007 whereby the complaint was dismissed on contest without cost.
Facts stated in the complaint, in brief, are that the complainant, a proprietorship concern, is a consumer of CESC Ltd. and the OP1 to 5 are Officers of CESC Ltd. A commercial electric meter is being used by the complainant for more than twenty years and bills are not received in proper time. Average monthly consumption of the complainant is around 600 Units at the maximum. Since January, 2005 upto April, 2007 all the bills were paid by the complainant and no amount was pending except the disputed bill for May, 2007. The bill for the month of June, 2007 was not paid by the complainant though it is a combined bill for Rs.14,350/-. The bill for May, 2007 is fictitious bill showing total unit consumption as 1891 but the meter reading is not clear. The complainant issued a legal notice to OPs 1,2,3 & 5 for rectification of the fictitious bill for the month of May, 2007.
On 21.8.07 the Commercial Executive of CESC Ltd. sent a letter acknowledging the letter dated 20.8.07.
The Commercial Executive of CESC Ltd. assured the complainant that necessary adjustment would be made in a subsequent bill based on their finding instead of rectification of the fictitious bill. Moreover, the line of the complainant was disconnected illegally. The complainant filed the present complaint asking for connection of the line within 24 hrs., rectification of the disputed bill for May, 2007, for direction to send bills in proper time, replacement of existing meter, compensation and cost.
Heard Ms. S. Das, the Ld. Advocate through the Appellant and Mr. S. Nayak the Ld. Advocate for the Respondent.
The contention of the Appellant is that the impugned order was wrongfully passed by the Forum below upon wrong interpretation of the various provisions of the Electricity Act, 2003 and without discussing the interpretation made by the Forum. It is argued by the Ld. Advocate for the Appellant that the Forum below wrongfully held that the entire jurisdiction relating to such dispute lies with the authority created under the statute. But as a consumer the Complainant/Appellant is also having right to approach the Forum under the Consumer Protection Act for redress.
Reference was made in this connection to the case of Haryana State Electricity Board-Vs-Mam Chand reported in 2006(2) CLT 14. Reference was also made to the S.C. Case No.99/R/2007 CESC Ltd.-Vs-M/s. Foto Art decided by this Commission on 30.5.08.
Mr. Nayak, the Ld. Advocate for the OPs/Respondents contended that after the amendment of the relevant law and enforcement of Electricity Act, 2003 for redress of any dispute relating to billing or consumption of electricity, cannot be entertained by a Consumer Forum as authorities have been constituted under the said Act for the said purpose.
It is contended by the Ld. Advocate for the Respondent that the dispute relating to making of bills and consumption of electricity as also questions relating to defects in the meter, being of technical nature, cannot be effectively decided by a Forum/Commission and these matters should be left for decision by authorities having expertise in those subjects. As an example Mr. Nayak referred to the authorities who have technical knowledge and expertise in respect of aforesaid disputes and the complainant cannot take the proceeding before a Forum/Commission for a decision by persons not necessarily having such expertise. Reference was also made in this connection to the provisions of the Electricity Act, 2003 as also the judgment in the case of CESC Ltd.-Vs-Shri N.M. Banka reported in 1997(1) CHN 50 decided by the Apex Court, S.C. Case No.FA/293/2009 WBSEDCL-Vs-Safikul Alam & Others decided on 21.12.2009, S.C. Case No.132/A/2003 WBSEB-Vs-Smt. Santi Devi Kataruka decided on 12.4.06 and S.C. Case No. 365/A/2005 WBSEB-Vs-Sakti Kumar Goswami decided on 26.9.06.
Considering the above contentions, provisions of law and the cases cited I find that law in respect of taking cognigence of such dispute by Forum/Commission under the Consumer Protection Act has been decided in various cases. In the case of CESC Ltd.-Vs-Shri N.N. Banka (Supra) while considering the old law the scope of Writ Court to entertain such dispute, was considered. It was held in the said case that the Writ Court could not come to a finding on the disputed question of fact and, therefore, Writ Court should not have proceeded to decide the dispute in Writ jurisdiction. But the said limitation of a Writ Court does not exist in the case of a Forum/Commission under the Consumer Protection Act.
It is true that law has undergone a change and the Electricity Act, 2003 has been enforced providing for authority to decide such dispute between consumer of electricity and the authorities. But by virtue of the provisions contained in Section 3 of the Consumer Protection Act, as explained in various cases, mere existence of some authority or Tribunal under a particular statute does not take away the jurisdiction of the Forum/Commission under the Consumer Protection Act. Law in this regard was decided in the case of Jharkhand State Electricity Board-Vs-Anwar Ali reported in 2008(2) CPJ 284 laying down the law in this respect upon considering all relevant provisions as also earlier rulings by various Courts including the Apex Court and it was held as follows:
In the result, we hold as under:
(i) Section 3 of the Consumer Protection Act and Section 175 of the Electricity Act provide that they are in addition and not in derogation of rights under any other law for the time being in force. Therefore, the rights of the consumers under the Consumer Protection Act are not affected by the Electricity Act.
(ii) A bare reading of Sections 173, 174, 175 makes it clear that the intent of the Legislature is not to bar the jurisdiction of the Consumer Fora constituted under the Consumer Protection Act. The provisions of the Electricity Act have overriding effect qua provisions of any other law except that of the Consumer Protection Act, 1986, the Atomic Energy Act, 1962 and the Railways Act, 1989.
(iii) Section 42(8) of the Electricity Act specifically provides that the remedies conferred on consumer under Sub-Sections (5),(6) and (7) of Sec.42 are without prejudice to the right which the consumer may have apart from the rights conferred upon him by those sub-Sections.
(iv) Section 145 of the Electricity Act specifically bars the jurisdiction of the Civil Court to entertain any suit or proceedings in respect of any matter which an assessing officer referred to in Section 126 or an Appellate Authority referred to in Section 127 of the Electricity Act or the Adjudicating Officer appointed under the Electricity Act, is empowered to determine.
Second part of Section 145 provides that no injunction shall be granted by any Court or Authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. For this purpose, if we refer to Sections 173 and 174 and apply the principle laid down thereunder, it would mean that qua the consumer fora there is inconsistency and, therefore, other Authority would not include consumer fora.
(v) Consumer of electrical energy provided by the Electricity Board or other Private Company, is a consumer as defined under Section 2(1)(o) of the Consumer Protection Act and a complaint alleging any deficiency on the part of the Board or other private company including any fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance which is required to be maintained by or under any law or in pursuance of any contract in relation to service, is maintainable under the Consumer Protection Act.
Against the Assessment Order passed under Section 126 of the Electricity Act, a consumer has option either to file Appeal under Section 127 of the Electricity Act or to approach the Consumer Fora by filing complaint. He has to select either of the remedy. However, before entertaining the complaint, the Consumer Fora would direct the Consumer to deposit an amount equal to one-third of the assessed amount with the licensee [similar to Section 127(2) of the Electricity Act].
(vi) Consumer Fora have no jurisdiction to interfere with the initiation of criminal proceedings or the final order passed by any Special Court constituted under Sec.153 or the civil liability determined under Section 154 of the Electricity Act.
Hence, the issue of law which was required to be determined is decided as stated above.
In above view of the position I am of the opinion that the Forum/Commission under Consumer Protection Act has not lost the jurisdiction over such dispute even after the Electricity Act, 2003 came into force. But in case a dispute involves such questions which cannot be decided by such a Forum/Commission and required experts for a decision, undoubtedly the Forum/Commission will refuse to entertain complaint involving such questions.
In the present facts I find that the complainant is using electricity through the same meter for a long time and it is not denied by the OPs that particulars about consumption averaging in the region of Rs.600/- per month, are wrong or contrary to the records. Therefore, in such a case when bill for a particular month shows a disproportionate higher consumption than the previous months and the subsequent months, the complainant can make a grievance and the same is required to be given due weight. The OPs did not consider even the said grievance though complainant made representations. In the circumstances the impugned order cannot stand and the same is hereby set aside. The Forum below is directed to decide the complaint in accordance with law after granting all due opportunities to the parties to bring forward their respective cases. Appeal is allowed and there will be no order as to costs.
(S. Majumder) (A.K. Ray) (Justice A. Chakrabarti) MEMBER(L) MEMBER PRESIDENT