National Consumer Disputes Redressal
Aruna Digambarrao Maval & Anr. vs Maharashtra State Electricity Board & ... on 5 July, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 100 OF 2004 1. ARUNA DIGAMBARRAO MAVAL & ANR. R/o. Samarth Nagar, Akola Road, Tal Mehkar Buldhana, Maharashtra 2. Akash Digambharrao Maval R/o. 20 Sahah Colony, Pratap Nagar A/P Tal. & Distirct Nagpur Maharashtra ...........Complainant(s) Versus 1. MAHARASHTRA STATE ELECTRICITY BOARD & ANR. (O&M)Division, Khamgaon Division, Maharashtra State Electricity Board, Old Power House, A/P, Mehkar, Dist. Buldaha Maharashtra 2. Deputy Executive Engineer Sub Division (O & M), Mehkar Sub- Division, Maharashtra State Electricity Board,Old Power Hous A/P Mehkar, Dist. Buldana, Maharashtra ...........Opp.Party(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Complainant : Mr. Digamber Mawel in person For the Opp.Party : Mr. Ajit S. Bhasme, Advocate with
Mr. Pankaj Kumar Mishra, Advocate
Dated : 05 Jul 2019 ORDER
This original petition has been filed by Aruna Digambarrao Mawal & anr. against the opposite parties Executive Engineer,(O & M) Division, Khamgaon Division, Maharashtra State Electricity Distribution Company & anr.
2. The complainants have alleged the following points in their complaint:-
(i) The complainants in their complaint have alleged that on 12.12.1991, the complainants had first applied for the electricity connection for 12.5 H.P tubewell to the opposite parties for the cultivation of the multiple crops in their agricultural land in the name of Mrs.Aruna Mawal as the applicant. On 23.12.1993, the complainants had again applied for the second electricity connection in the name of Akash Mawal (son of the complainant No.1) as the applicant. On 30.8.1994, the opposite party No.1 on the basis of the approval sanctioned electricity connection in favour of Aruna Digamber Mawal. It has been alleged that the electrical supply was only on paper and the opposite party No.1 had illegally raised the bill. On 04.05.1997 and 17.5.1997, the complainants had supplied the test report for the connection for agro pump. On 19.12.2000, the electricity supply for the first application was connected. On 08.12.2000, the energy bill was received by the complainant which was for the period from 19.11.2000 onwards. The complainant had sent their objection to the said bill on the ground that the connection was actually materialised on 19.11.2000, and the bill from 1998-19.11.2000 was not payable. On 06.01.2002, the complainant had submitted three applications to the opposite party No.1 and first being for the issuance of a bill as per the meter reading from 19.11.2000 onwards. 2) for the replacement of the meter 3) and for the losses caused due to delay in supply of connection by the opposite parties. Being aggrieved by the losses suffered by the complainant due to alleged deficiency in service by the opposite parties by not providing the connection on time the complainants decided to file a consumer complaint.
(ii) The existing transformer at Hivara Ashram which was of 25 KVA was not sufficient to sustain the new connection and therefore, the proposal for the installation of another transformer was suggested by the complainants to the opposite parties. But the proposal was kept pending by the opposite parties on the ground that the project was not technically feasible.
(iii) On 30.10.1994, the complainants converted their original applications into Krishi Ganga Scheme for the sanctioning of the connection. Under the said scheme, the Govt. recovers the complete installation and material cost from the consumer and provides the connection within 15 days. On 15.6.1995, the opposite parties had issued the payment advise/quotation against the above sanctioned electrical connection after the closing down of Krishi Ganga Scheme.
(iv) On 12.06.1995, the complainants had planted 1000 mango trees on the commitment of the opposite parties for the power supply but the crop was spoiled due to non-supply of the electricity by the opposite parties.
(v) On 29.06.1996, the complainants had applied for a loan for the completion of their project to the Buldana Gramin Bank and got sanctioned loan of Rs.3.92 lakhs. In February, 2000, a recovery suit was filed by the Buldana Gramin Bank against the complainants for the outstanding loan amount which came to Rs.1,84,480/- with interest @ 24% p.a.
(vi) Due to delay in giving the electrical connection to 12.5 pump of the complainants, there has been loss to the complainants, which has been estimated at Rs.16,60,50,000/- by the complainants as the complainants could not grow the multi-crop in their agricultural field.
(vii) That the opposite parties have not given any connection in the name of second complainant Akash Digambharrao Mawal inspite of his application being completed.
3. The present complaint has been filed with the following prayers:-
"(a) All this petition by calling record and proceeding of the case.
(b) direct the respondents to pay Rs.16,60,50,000/- to the petitioners towards loss of income during the period from 16.12.1993 to 31.3.2003.
(c) direct the respondents to pay the petitioners amount of Rs.1,84,480.00 plus interest as per the Civil suit filed by the Buldana Gramin Bank and necessary charges being paid to Buldana Gramin Bank and compensatory damage to the tune of Rs.5,00,000/- for loss of reputation.
(d) direct the respondents to pay the petitioners compensatory damage of Rs.5,00,000/- for mental torture and harassment.
(e) direct the respondents to pay the petitioners interest @ 24% per annum on the above mentioned amount from the date of filing of petition till actual realization.
(f) Grant an injunction restraining respondents from issuing incorrect electricity bills for the period before 19.11.2000 and restraining them from disconnecting electricity connection of the petitioners on account of non payment of charges in connect electricity bills for the period before 19.11.2000.
(g) direct the respondents to issue fresh bill from 19.11.2000 to the petitioners.
(h) award cost of this petition to the petitioners from the respondents.
(i) pass other appropriate orders."
4. The complaint has been resisted by the opposite parties by filing the written statement. It has been stated by the opposite parties that on 05.03.1992, complainant No.1 purchased Gut No.142. On 16.12.1993 submitted permission from irrigation department. On 24.12.1993 submitted the application for power supply. It was stated by the opposite parties that the complainant No.1 submitted on 4.9.1994 demand note was issued (which complainants did not pay/no eligibility certificate was issued). Opposite parties stated that on 02.4.1995 complainant submitted application under Krishi Ganga Scheme for Gut No.147 for which demand note was issued on 14.6.1995. But she did not pay the amount therefore, supply could not be provided. Validity of demand was extended and on 16.03.1996, complainant No.1 paid the demand note. On 20.2.1998, connection was released. Opposite parties stated that on 24.7.1996 complainant submitted two applications for power supply in Gut No.142 but electric line to the supply point is 0.84km i.e. more than permissible limit. Complainant never submitted extra payment therefore, both applications remained pending. Complainant admitted that power has reached his end but due to certain technical fault at his end motor pump could not start. It was further stated by the opposite parties that for changing the tariff of billing and for providing meter, demand note for meter cost was issued and after payment of meter cost meter is provided to complainants' connection. Before bill charged was as per horse power tariff but after meter, tariff is changed. Meter tariff is effect from 17.11.2000. On 7.11.2000, complainants submitted that he is using electricity without meter and on 7.11.2000 he also submitted that he is taking supply for higher capacity of motor i.e. complainants were interfering in the work of opposite parties and he was using power supply without taking permission. Complainants were informed regarding correctness of bill. It is for this reason, bills were sent and due to non-payment of bills from 1.9.2003 power supply to the connection of the complainant was disconnected. It was stated by the opposite parties that Bills under Krishi Sanjivani Scheme was also issued to complainant on 15.1.2004 and 15.9.2004 but he did not pay.
5. Both parties led their evidence by way of filing affidavits, which have been taken on record.
6. Heard the complainant No.2 in person and learned counsel for the opposite parties. Complainant No.2 stated that this Commission vide order dated 22.3.2018 passed the following order:-
"On 29.09.2015 the following proceedings have been recorded.
"After some arguments, on perusal of complaint we find that complaint is drafted in a very confused manner and it is very difficult to comprehend as to what the complainants want to say. One fact is, however, clear that complainant nos. 1 and 2 had applied for separate electricity connection and one of them was provided electricity connection after completion of formalities but the other complainant was not provided with the electricity connection. Grievance of the complainant is that delay in providing proper electricity connection to one of the complainant and non-providing electricity connection to other amounts to deficiency in service. From the above narrated facts, it is clear the causes of action and maintain consumer complaint are entirely different. Therefore, prima facie it appears to be a mis-joinder of parties and causes of action. Counsel for the complainant seeks time to go through the record and make submissions on the issue of mis joinder of parties and causes of action and other issues raised by the opposite party including limitation. Matter is adjourned to 03.03.2016. Parties to file short synopsis of their arguments clearly narrating the facts of the case."
Parties have been directed to file their short synopsis of their arguments clearly narrating the facts of the case in view of the observation made above. Complainant has filed written arguments on 28th March 2017 which runs into more than 20 pages. He has not addressed the observations made in the order dated 29.09.2015. Counsel for the opposite party seeks four week time to file the brief synopsis with reference to the observations and directions dated 29.09.2015. Parties may file their short synopsis with cross references and pagination as per the courts file within four weeks with copy to each other.
List the matter on 12th December 2018."
7. The complainant No.2 stated that he has filed the synopsis in compliance of this order. In respect of misjoinder of parties, he stated that there is no misjoinder of parties because since beginning both complainants were working jointly and completed all statutory compliances of the scheme in various government departments. Moreover, the technical consultant M/s. Jain Irrigation Systems Ltd. has issued the quotation of the scheme in the name of both the complainants. The complainants are mother and son and both have applied for electrical connection for irrigating common land and therefore, both the complainants can be treated as beneficiaries of each other's electricity connection under Section 2(1)(d) of the Consumer Protection Act, 1986. They are the consumers and they can file joint complaint as the land is joint. The complainant No.2 stated that the transformer was not changed for a span of 12 years as the agricultural connection was applied in the year 1993 and the transformer has been charged in the year 2005.
8. It was further argued by the complainant No.2 that as the electric connection supplied to complainant No.1 was not technically feasible because the transformer was not changed, therefore, the complainants suffered loss on various counts. The complainant No.2 further stated that on established norms, the complainants have calculated that the loss on different counts from 1994 till 2003 comes to Rs.19,74,68,000/-.This has been claimed as loss suffered by the complainants due to inordinate delay in release of electricity connection by the opposite parties. Loss has been claimed mainly as loss of investment in agriculture due to crop failure due to lack of irrigation on account of non-supply of power even after completing all the formalities.
9. On the issue of limitation, the complainant No.2 stated that the complainants were trying to resolve the issue amicably with the opposite parties, hence since beginning kept lenient view with opposite parties. From1996 to 2000 complainants tried to resolve the issues through writing letters & oral discussions, but all in vain. On 17.11.2000 opposite parties connected agricultural pump but it was not a technically feasible connection. On 30.10.2002 & 03.03.2003 complainants wrote letters to opposite parties to install the technically required 63 KVA transformer to provide technically feasible agricultural pump connection. But it was of no use. Meanwhile, the bank filed civil suit against both complainants for recovery of their outstanding/unpaid amounts of the loan taken by the complainants. Finally, complainants seeing none of the problems of the complainants getting resolved, immediately filed this complaint before NCDRC on 17.12.2004. Thus, the delay in filing the complaint is only circumstantial and unintentional which needs to be overlooked and condoned.
10. On the other hand, learned counsel for the opposite parties stated that first of all, there are two complainants who have not obtained any permission under Section 12(1)(C) of the Consumer Protection Act to file joint complaint. Hence, the complaint is not maintainable.
11. Learned counsel for the opposite parties stated that prior to 20.2.1998 agreement bond was executed from complainant. From this it is clear that there is no delay from opposite parties' side. Hence opposite parties are not responsible for any damage. It was argued that after execution of agreement bond from complainant No.1, connection was released to the 12.5 HP electric pump of complainant and electric supply was made available on 20.2.1998. From this it is clear that there was no delay from the side of the opposite parties.
12. It was further stated by the learned counsel that application of complainant for Krushi Ganga Scheme for Gut No.147 Nagzari Bk. (another spot) was sanctioned and demand note was issued to complainant for providing 10HP power supply, but complainant never paid the amount. Thus, complainant was herself responsible for not getting the benefit of Krishi Ganga Scheme by not making the payment.
13. Learned counsel for the opposite parties argued that in the letter dated 17.10.2000 the complainant has admitted that power supply has reached her installation, but due to certain technical problems in her installation she could not use the electricity. From this it is very clear that connection was released to her electric pump on 20.2.1998 i.e. prior to 17.10.2000.
14. Learned counsel for the opposite parties pointed out that from letter dated 07.11.2000, it is clear that motor of appropriate capacity was not available with the complainant and even though electric power supply was made available to her installation, she could not make use of electric power and for this she herself is responsible. Learned counsel further stated that from letter no.3299 dated 19.12.2001, it is clear that complainant used electricity without meter and did not make the payment of bills. She only postponed payment and engaged in correspondence.
15. Attention was drawn by the learned counsel for the opposite parties to the fact that the letter No.772 dated 26.04.2005 was sent by the opposite parties informing to the complainants that benefit of Krushi Sanjivani yojna could not be given to them because of non payment of bills by the complainants within time though the validity of such yojna was published in newspaper.
16. I have given a thoughtful consideration to the arguments advanced by the complainant No.2 in person and learned counsel for the opposite parties. I have also examined the material on record. First of all, the issue of joint complaint is to be examined. As the land is a joint holding and one complainant would be the beneficiary of the service being obtained by the other complainant, here as per Section 2(1)(d) of the Consumer Protection Act, 1986, this complaint cannot be said to be suffering from defect of mis-joinder of parties. Moreover, they have sought services of the opposite party, though separately, for irrigating the joint holding of land, therefore, they can file joint complaint and Section 12(1) (C) of the Consumer Protection Act, 1986 is not attracted. Secondly, it is seen that the complainants have combined different causes of action in one complaint and complaint in respect of some of the causes of action is time barred. The causes of action which arose before two years from the date of filing of the complaint cannot be considered as the complaint on those causes of action would be barred by limitation as per Section 24A of the Consumer Protection Act, 1986. As no application for condonation of delay has been filed, it is not possible to condone the delay. The electric connection to the complainant No.1 was released on 20.2.1998 as claimed by the opposite parties, though this has been denied by the complainants and according to the complainants, the connection was given on 19.11.2000. Be that as it may, clearly, the connection was given before 3-5 years before filing of the complaint. The question of delay in giving connection to the complainant No.1, thus, cannot be considered in the present complaint as this issue has become time barred. The loss of crop etc. is also for the period before the electric connection was given and therefore, the same also cannot be considered in the present complaint.
17. So far as the question of electric connection on the application of complainant No.2 is concerned, the complainant No.2 has not deposited test report and therefore, the connection has not been provided by the opposite parties. The complainants have not denied this assertion of the opposite parties or have filed any proof that complainant No.2 has filed the test report, therefore, the version of the opposite parties is to be believed on this issue. Thus, there is no deficiency in service on the part of the opposite parties in this regard.
18. So far as the proceedings by the Buldana Gramin Bank in suit Court in respect of the loan taken by the complainants are concerned, if the complainants have taken the loan, the bank is entitled to full recovery of the loan amount along with interest. The loan agreement is tripartite agreement and the opposite parties are also party. Hence, there is no contract between complainants and the opposite parties so far as the bank loan is concerned, therefore, no merit is found in this allegation of the complainants.
19. The complainants have sought compensation of Rs.16,60,50,000/- in the prayer of the complaint, however, in the body of the complaint in paragraph No. 55, the complainants have mentioned total loss of net income of Rs.19,74,68,000/-. In the written submissions filed on 22.6.2018, the complainants under the heading "Justification of Quantam of Compensation" have claimed an amount of Rs.38.20 crores. Clearly, the compensation asked for is not certain but definitely it is exorbitant. Hon'ble Supreme Court in Synco Industries Vs. State Bank of Bikaner & Jaipur, Appeal (civil) 6453 of 2000, decided on 15.1.2002, has observed the following:-
"Given the nature of the claim in the complaint and the prayer for damages in the sum of Rupees fifteen crores and for an additional sum of Rupees sixty lakhs for covering the cost of travelling and other expenses incurred by the appellant, is obvious that very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the Civil Court. This is on appropriate claim for a Civil Court to decide and, obviously, was not filed before a Civil Court to start with because, before the Consumer Forum, and figure in damages can be claimed without having to pay court fees. This, in that sense, is an abuse of the process of the Consumer Forum.
The Civil Appeal is dismissed, with costs in favour of the first respondent."
20. In the present case also, the examination and evaluation of the compensation demanded (for about Rs.17.00 crores) would require lot of oral and documentary evidence to be produced and to be examined which would not be possible to do in the summary proceedings under the Consumer Protection Act, 1986 and the complainants may approach the Civil Court for such relief.
21. Moreover, as already mentioned that even if the electric connection is assumed to have been connected on 19.11.2000 as claimed by the complainants, loss if any to the crop before the year 2000 cannot be considered under this complaint due to limitation as the complaint has been filed in the year 2004 . It has been claimed by the complainants that though no connection was given in the year 1998, the bills were sent from 20.2.1998 and therefore, the complainants did not pay this bill as there was no electricity connection. The complainants have received bills even prior to 1998 and clearly, there is no justification for these bills. The connection was disconnected on 01.9.2003 due to non-payment of bills by the complainants. It is seen from the record that in the Electrical Contractor's Completion and Test Report dated 13.11.2000, the name of the complainant No.1 is mentioned at Sr. No.4 and the date on which connection has been given is mentioned as 17.11.2000. Thus, any bills of the electricity sent by the opposite parties to the complainants before this date are not justified. The complainants are liable to pay the bills from 17.11.2000 to 01.9.2003, which is the date of disconnection.
22. Based on the above discussion, the complaint No. 100 of 2004 is partly allowed and it is ordered that the complainant No.1 is liable to pay electricity bill from 17.11.2000 to 01.09.2003, and the bills sent for period prior to 17.11.2000 are not required to be paid by the complainants. After receiving the payment of bills from 17.11.2000 to 01.09.2003 from the complainants, the opposite parties are directed to connect the electric supply to the connection in question within a period of two weeks from the date of receipt of payment of said bills.
...................... PREM NARAIN PRESIDING MEMBER