State Consumer Disputes Redressal Commission
C.E.S.C. Ltd. vs Quraisha Banoo on 15 December, 2009
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/291/2009 DATE OF FILING : 06.08.2009 DATE OF FINAL ORDER: 15.12.2009 APPELLANT C.E.S.C. Ltd. Through Deputy Manager, Loss Control Cell, CESC House, 15/1, Chowringhee Square Kolkata-700 069 Having its corporate legal office at 6, Church Lane, Kolkata-700 001. RESPONDENT Quraisha Banoo Wife of Haroon Rashid Residing at 10/A, Madga Lane Kolkata-700 016. BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY MEMBER : MR. S.COARI FOR THE PETITIONER / APPELLANT : Mr. S.Nayak, Ld. Advocate FOR THE RESPONDENT / O.P.S.: Mr. D.Halder, Ld. Advocate : O R D E R :
MR.
P.K.CHATTOPADHYAY, LD. MEMBER This Appeal arose out of judgement and order dt. 15.7.09 passed by DCDRF, Kolkata Unit-II in Case No. CDF/unit-II/C.C. No. 599 of 2009 wherein the complainant, Quraisha Banoo, filed the complaint case against the Ops/CESC alleging deficiency of service relating to her power line having been disconnected inspite of her monthly consumption bills being regularly paid. It was further alleged that in absence of the complainant the Ops/CESC disconnected the electric line without any notice supposedly on the allegation that the complainant had committed theft of electrical energy and, therefore, the complaint before the Forum with prayers for immediate restoration of power and also for removal of disputed meter and for sending the same for proper testing and also for compensation to the tune of Rs. 50,000/-.
The Ops/CESC contested the case by filing written version when he denied all the material allegations and prayed for dismissal of the complaint. Stating that authorized officials of the Ops inspected the premises and found that the seal of the given domestic meter was tampered and electrical power was unauthorisedly abstracted for wrongful gain and, therefore, the supply of the complainant was disconnected and an FIR was lodged and thereafter provisional assessment under Section 126 of Electricity Act was made and following hearing of the parties and after due consideration final assessment order was passed. Contending that as per provisions of law, no appeal was preferred on the following order passed on 1.11.08 and, therefore, the complaint petition in the present form was not maintainable and the Ld. Forum below had no jurisdiction to entertain the matter.
The matter was heard by the Ld. Forum below when it passed the following final order :-
From the materials on record it appears to us that the complainant is a bona fide consumer of CESC.
The Supreme Court in the judgement delivered in Hariyana State Electricity Board Vs. Mena Chand 2006 CTJ 521 (SC)(CT) has clearly extended the jurisdiction of the Consumer Forum over the matters relating to disputes involving theft of electricity and abstraction of energy. Consumer Forums thus do have the jurisdiction to try such cases and with a quasi judicial body and benevolent jurisdiction of Section 3 of Consumer Protection Act, we hold that the application of the complainant is allowed and electricity be restored to the complainant subject to payment 50% (fifty per cent) of the disputed amount and, therefore, within 7 days the meter no. 2670644 of the consumer with proper seal and signed be sent by the Ops to the Head of the Department of Metrological Section of The Bengal engineering and Science University, Shibpur for testing with an intimation to the complainant.
The CESC Ltd., therefore, consider the final assessment of the bill after giving an opportunity to the petitioner.
There will be no order as to cost.
The case is thus disposed of.
Being aggrieved with the impugned judgement and order of the Ld. Forum below the Ops in the Forum namely CESC filed this Appeal stating inter alia that following inspection on the premises of the complainant on 15.10.08 it was found that the electric meter of the complainant was tampered and the complainant was using huge load on abstraction when the power line was disconnected and an FIR was lodged as per provisions of law. Thereafter provisional bill for an amount of Rs. 2,28,633/- was raised and subsequent thereto upon hearing of the parties and after due consideration final assessment order was passed for an amount of Rs. 2,63,974/-. Stating that on the original complaint relating to given theft of electrical energy all necessary formalities were complied with including notice, inspection report, seizure list, being served upon the complainant with issue of provisional bills and lodgement of FIR with initiation of criminal case, it was contended that the Ld. Forum below passed its order without any application of judicial mind and without taking into consideration the provisions of Sections 126 and 127 of Electricity Act where the Ld. Fora had no power to pass the order of restoration upon deposit of 50% of the finally assessed amount. It was further argued that a criminal case having been started and presently pending the given electric meter of the complainant was an important piece of evidence for investigation being a tool for proving the case of theft before the Criminal Court and as such, any order for sending the said meter to any other extraneous authority like BESU for testing without sanction under law is patently irregular and not sustainable. Stating that the Ld. Forum ought to have considered the present position of law that the case of theft of electrical energy is barred under Electricity Act before any Civil Court the Appellant prayed for setting aside of the impugned judgement and order and for such further order(s) as deemed fit and proper.
The Respondent, Quraisha Banoo, entered appearance and stated inter alia that on 15.10.08 some persons came to the petitioners premises and without any notice or sanction and disconnected the domestic line of the Respondent/Complainant and on the same date sent a computerized prefixed provisional bill for a sum of Rs. 2,28,633/-. Stating that the Respondent had never failed to pay her actual consumption recorded on reading of her meter at monthly periodicity the Respondent contended that after receipt of the said provisional bill she filed written version before the Assessing Officer denying and disputing the allegations of unauthorized use of electricity and also denying that supply was ever made from her connected load to any other person/consumer. Alleging that the Assessing Officer of the Appellant/utility was not a neutral person when he was merely an employee of the utility it was stated that the assessment was not fair when the Assessing Officer worked for his personal gain. Upon dissatisfaction on the assessment so made the Respondent filed the complaint case before the Ld. Forum when it passed order directing the petitioner to pay 50% of the disputed amount for restoration of the power line and then for reference of the meter for testing to BESU. The Respondent then submitted that accordingly she went to Appellant for deposit of the amount on account payee cheque, but the same was refused on the plea of pendency of appeal before this Commission. Asserting that the Respondent had never made any unauthorized use of electricity but suffered hefty claim on supposed abstraction and consumption not proved in a court of law the Respondent prayed for affirmation of the impugned judgement and order of the Ld. Forum below with a direction for prompt restoration of power.
The matter was heard from respective sides when the Appellant referred to provisions of Electricity Act 2003 read with WBERC Regulations of 2007 and Apex Court judgements in Haryana State Electricity Board Vs. Mum Chand and General Manager, Telecom Vs. M.Krishnan & another. Contending that in terms of provisions 4.6.1 of the Electricity Supply Code, 2007 the Respondent/Complainant was no longer a consumer when power supply remained disconnected for more than six months the Appellants prayed for setting aside of the impugned judgement and order.
The Respondent, on the other hand, contended that in terms of Section 13(1)(d) of the Consumer Protection Act, 1986 the Forum has power to refer the meter for testing when the Respondent/Complainant was ready to bear the cost of testing, which position was corroborated in Section 13(4) of the Consumer Protection Act, 1986. Stating that the allegation of theft of energy was absolutely untenable in the case of the Respondent when she had a static meter, it was submitted that the Appellant failed to start criminal case against the complainant and the so-called authorized officer also failed to file cogent document before the police authority/criminal court till the current date when the complainant had not received any document whatsoever on the said criminal case. Asserting that the allegation of unauthorized use of electricity was wholly a cooked up story made by the Assessing Officer of the Appellant it was stated that the Respondent was ready to pay the remainder 50% of the amount so claimed by the Appellants if after testing the authority so determines. It was also submitted that the position stated at Para-7(a) of the Appeal as to seizure of articles was untrue and the disputed meter is very much in the custody of the Respondent. The Respondent accordingly prayed for affirmation of the impugned judgement and order and cited the following judgements in her favour.
1. II (2008) CPJ 284 (NC) - Jharkhand State Electricity Board & another Vs. Anwar Ali.
2. II (2008) CPJ 300 (NC) - Life Insurance Corpn. of India & another Vs. Chandra Kanta Lohande (Smt.)
3. II (2009) CPJ 397 (NC) - Uttari Haryana Vidyut Prasaran Nigam Ltd.
Vs. Shiv Kumar
4. II (2009) CPJ 398 (NC) - Jayanta Dasgupta Vs. Binata Debnath & another
5. IV (2008) CPJ 220 (NC) - Uttar Haryana Bijli Vitran Nigam Ltd.
Vs. Basant Kumar
6. III (1996) CPJ 1 (SC) - Fair Air Engineers Pvt. Ltd. & anthr.
Vs. N.K.Modi
7. 2001 (1) CPR 1 (SC) - Skypak Couriers Ltd. etc. etc. Vs. Tata Chemicals Ltd. etc. etc.
8. 2001 (1) CPR 7 (SC) - Vimal Chandra Grover Vs. Bank of India.
9. AIR 1968 Supreme Court - Tribhovandas Purshottamdas Thakkar 372 Vs. Ratilal Motilal Patel & others
10. 2007 (2) CPR 159 (NC) - Rajasthan State Electricity Board Vs. Jagroop Singh
11. Appeal No. FA/09/114 - CESC Ltd. & others Vs. Qurisha Ahmed.
DISCUSSION A. There are three moot questions in the matter of this Appeal which are as under :-
a) Whether the Ld. District Forum below erred in giving direction to the Appellants/Ops in the mode and manner as it did.
b) Whether this Commission is barred in disposing of the matter of complaint under provisions of Consumer Protection Act, 1986 as amended, in the light of express provisions U/S 135 of the Electricity Act, 2003 as amended in 2007.
c) In the light of pronouncement of the Honble Apex Court as in the cases of Mum Chand and M.Krishnan can this Commission offer any relief to a consumer under the Consumer Protection Act, 1986 intended to be a benevolent act to subserve the interests of consumers at large.
B. On the two issues at (a) & (b) above we would refer to judgement and order passed in II 2008 CPJ 284 (NC) Jharkand State Electricity Board Vs. Anwar Ali where the Honble Commission held inter alia as under :-
(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.
In the facts of this Appeal we hold similar view and determine that at the first place the complainant had the option to deposit 50% of the assessed claim to the utility and then file the complaint before the Ld. Forum below or could deposit 50% of the assessed amount to the utility and then prefer Appeal to the appellate authority as provided under WBERC Stipulations 2007 issued under provisions of Electricity Act 2003 as amended. In the instant case, the same having not been complied with the complaint itself was inadmissible before the Ld. Forum below.
C. Referring to the foregoing judgement of Honble National Commission as quoted hereinbefore we quote further excerpts therefrom which are as under:-
35. In view of the aforesaid settled law, the Consumer Fora would have jurisdiction to entertain complaint against the final order passed by the assessing officer under section 126 of the Electricity Act.
Further, the jurisdiction of the Consumer Fora is not barred by any provisions of the Electricity Act but the same is expressly saved under Section 173 read with Sections 174 and 175 of the Electricity Act.
36. 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 and 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 (50, (6) and (7) of Section 42 are without prejudice to the right which the consumer may have apart from the rights conferred upon him by those sub-sections.
We hold the same view and are in favour of accepting this position in this Appeal.
D. Having discussed the provisions of law as applicable in this case we also note that the complainant is presently without power for a substantial period namely from 15.10.2008 and inspite of her willingness to deposit 50% of the assessed amount of Rs. 2,63,974/- the same was not accepted by the Appellant/Utility on the pretext of appeal being filed on the judgement and order of the Ld. Forum below though there was no interim order in the Appeal. In terms of provisions 4.6.1 of WBERC dispensation of 2007 in regard to the provisions of filing Appeal and for prayer for reconnection/restoration, we are of the view that the impugned judgement and order of the Ld. Forum below was grossly erroneous to the extent that an appeal could be filed before the appropriate authority as determined by the Electricity Act only upon payment of 50% of the finally assessed amount and restoration/reconnection could be had upon payment of the full amount as might be assessed by the Assessing Officer U/S 126 of Electricity Act 2003 as amended.
O R D E R The impugned judgement and order of the Ld. Forum below is set aside being not sustainable. The Appeal is allowed on contest without cost with a direction to assist the Respondent/Complainant towards deposit of 50% of the finally assessed amount on filing appeal and/or on payment of the entire amount of final assessment for immediate restoration of the power line and also for filing the Appeal. The Ld. Forums order on reference of the relevant electric meter to BESU towards testing would be also the subject matter of the appeal in the event of any filing thereof by the Respondent/Complainant.
MEMBER MEMBER