State Consumer Disputes Redressal Commission
Wbsedcl vs Subhra Adhikary. on 30 September, 2008
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-409/A/07 DATE OF FILING :16/11/07 DATE OF FINAL ORDER:
30.9.08 APPELLANTS/COMPLAINANTS :
1. WBSEDCL.
Through the Station ManagerTomluk Group Elec. Supply, WBSEDCL, having its Corporate Officeat Vidyut Bhawan, Bidhannagar. BI. DJ, Sector II , Kolkata 700 091.
RESPONDENTS/O.P.S : :
1.
Smt Subhra Adhikary.
Wife of Sri Dilip Kumar Adhikary, of Vill-Padumbasan (Under Tamluk Municipality) PO&PS- Tamluk, District-Purba Medinipur.
BEFORE : HONBLE JUSTICE :
MEMBER : Shri. A.K.Ray.
MEMBER : Shri. P.K. Chattopadhyay.
FOR THE PETITIONER / APPELLANT :
Shri P.R. Baksi (Advocate) FOR THE RESPONDENT / O.P.S. Shri C. Samanta(Advocates) Shri A.K.Ray., Member,
The Appeal is directed against the order dated 28.9.07 passed by the Dist Forum Purba Medinipur in case no 11 of 2007 wherein the complaint was allowed on contest against the OP/ Present Appellant. The Complainant was found entitled to get electric connection in her premises on compliance of necessary formalities as per Indian Electricity Act and compensation of Rs. 5,500/- from the OP/Appellant who was directed to install a new meter for effecting electric connection without asking the Complainant to pay the arrear of Smt Ratna Mala Adhikary within 45 days from the date of compliance of necessary formalities by the Complainant as per Indian Electricity Act, failing which the Complainant would be at liberty to put the order into execution.
2. Being aggrieved the Appellant has preferred the instant appeal mainly on the grounds that the Ld. Forum below failed to appreciate that the Respondent /Complainant applied for a new service connection at holding no 538/122 at plot no 1864/ 2585 the premises being owned by one Smt Ratnamala Adhikary having a service connection ( domestic) vide consumer no 4233 S/C D/1507. A huge amount of Rs. 63,649/-was lying due and payable against Smt Ratnamala Adhikary and due to non payment the same her line had been disconnected. The Complainant/Respondent absolutely concealed the real fact that in the same holding there was a service connection in the name of one Smt Ratna Mala Adhikary and the said connection had been disconnected due to non payment of outstanding dues. She totally concealed her relationship with Smt Ratnamala Adhikary, a defaulting consumer residing at the same premises. The Complainant/Respondent was a daughter-in-law of Smt Ratnamala Adhikary, and an occupier of the same premises. She could not produce any valid documents regarding ownership of the premises. No Municipal Tax receipt could be produced by her for taking the new service connection. She admitted in her affidavit before the Forum below that she was the daughter-in-law of Smt Ratnamala Adhikary, the defaulter subscriber. She also declared that she was authorized by Smt Ratnamala Adhikary, her mother-in-law to live with her family at the same premises. The Forum passed the impugned order by taking into consideration that the Respondent had applied for her new electric service connection on the strength of permissive possession given by a defaulter subscriber, Smt Ratnamala Adhikary.
3. The case in brief is that the Complainant purchased an application form from the OP on payment of Rs. 100/- and she applied for electric connection at her premises. She came to learn from the OP No-1 ( Station Manager, Tamluk Group Electric Supply) that necessary inspection and procedural matters had been completed ;
but he did not take any action for supply of electricity to her premises at the first floor of holding no 538/122 under ward no (xiv) of Tumluk Municipality. For more than a year she persued the matter with the Op but in vain. Hence, the case before the Forum below.
4. In a statement on affidavit filed by the Station Manager, Tumluk Group Electricity Supply before us on 12.8.08 last, it was stated that the Respondent Sm. Subhara Adhikary wife of Sri Dilip Adhikary of Tumluk applied for a new domestic connection for the premises where she was residing with her family being dag no 1864/2585, JL No 144 and holding no 538/112. In her application form the said Subhra Adhikary declared that in the said premises there was no electric connection and if there was any old domestic connection, then no bill was pending and in case of a dispute she was ready to solve the same. The concerned lineman went to the premises of the Respondent for inspection, but he could not do the inspection as the resident of the premises did not allow him to enter into the premises. The lineman however, observed through the window that there were existence of two meters, but he could not collect the numbers of those meters. Further inspection was conducted by Sri S. Adhikary , Junior Manager ( P & A) Tumluk Group Electric Supply on 27.3.08 in presence of the Respondent and her husband. It was seen that there were two other meters vide consumer no C 042331 and service connection no D/ 1507 in the name of deceased Ratna Mala Adhikary , mother in law of the Respondent. Smt Subhra Adhikary has been residing with her family in the first floor of the same premises and Sri Tapas Adhikary the 4th son of late Rtanamala Adhikary has been residing in the ground floor with his family. Both of them were enjoying electricity from the said connection.
5. It transpired from the office record that one service connection had been effected in the name of late Ratnamala Adhikary owner of the premises and mother in law of the Respondent. The Respondent failed to produce any documents to prove her ownership of the said premises. She also failed to submit any Municipal Tax receipt in her favour. It also transpired from the office record that a huge amount to the tune of Rs. 63,349/-was lying due and payable till date against the aforesaid service connection no D/ 1507 standing in the name of late Ratnamala Adhikary. Being the daughter in-law of the defaulter subscriber and residing at the same premises she and her family had been enjoying electricity till date. Thus there is a conclusive proof of nexus by and between the defaulter subscriber and the Respondent.
6. The Respondent, Smt Subhra Adhikary in her written notes of argument filed before us on 12.8.08 last stated inter alia that she has been residing separately along with her husband and children having a separate mess with other relations including the land lady Ratnamala Adhikary since her marriage in the year 1982. From 9.8.92 she has been residing at the first floor of the building situated over plot no 1364/2648, 1864/2662 holding no 538/122 being granted permissive possession by the land lady Ratna Mala Adhikary. In order to take electric connection at her premises at the first floor of the said building she deposited the earnest money of Rs. 100/- in the office of the OP/Appellant. She moved the Forum below. The Ld. Forum allowed her complaint with direction to the OP to install a new meter for effecting electric connection on compliance of necessary formalities as per Indian Electricity Act . The Forum also awarded compensation. During pendency of the Consumer Case before the Forum below the OP/Appellant herein sent a time barred, exorbitant, fictitious bill in the name of the land lady Ratnamala Adhikry. She being aggrieved by and dissatisfied with the action on the part of the OP/Appellant filed a consumer dispute case being no 22 of 2007 before the Forum below praying inter alia for seting aside the bill and to direct the OP to pay compensation for Rs. 1 lakh. The OP contested the case being no 22 of 2007 by filing a written objection. Again, during pendency of the said case the OP disconnected the electric connection of the land lady Ratnamala Adhikary albeit illegally. The Ld. Forum below after hearing both the parties in the aforesaid case no 22 of 2007 passed an order on 31.5.07 observing inter alia that the Complainant /Respondent therein was entitled to have restoration of her service line without any payment of arrear amount and a reconnection charge. The OP was also directed to restore electric connection of the Complainant without any reconnection charge and without any arrear payment within one month from the date of the order 31.5.07, in default, the Complainant would be at liberty to execute the same. In view of the willful disobedience on the part of the OP towards compliance of the aforesaid order dated 31.5.07 passed in case no 22 of 2007 the Complainant Ratnamala Adhikary filed an execution case being no 19 of 08 before the Forum below. During pendency of the aforesaid execution case before the Ld. Forum below the OP/Appellant complied with order dated 31.5.07 passed by the Forum below in the aforesaid case no 22 of 2007 by restoring electric connection to the premises of land lady Ratnamala Adhikary without demanding any reconnection charge and arrear payment. The OP/ Appellant came in appeal before the State Commission against the said order dated 31.5.07 of the Forum below passed in the aforesaid case no 22 of 2007 after complying with the solemn order of the Forum below. During pendency of the appeal case Respondent Ratnamala Adhikary died. The Appellant did not take effective steps to substitute her legal heirs and successors in the instant appeal. However, one of the legal heirs of Ratnamala Adhikary , namely Dilip Adhikary who is the husband of the Respondent in the instant appeal case no 409/A/2007 appeared.
7. In terms of our order dated 10.6.08 in case no 409/A/07 we directed that the instant appeal should be heard along with the appeal being no 408/A/07 as the matters were similar and they arose out of the same order of the Forum below. Hence, both these appeal cases were heard together. The Appellant WBSEDCL preferred their appeal after fully complying with the impugned order dated 31.5.07 passed by the Forum below in case no 22 of 2007. Obviously, the OP had no reason to prefer their appeal. The Respondent in case no 409/A/07, Smt Subhra Adhikary further stated in her written notes of argument filed through affidavit that she was not the legal heir or successor of late Ratnamala Adhikary and as such she was not amenable to any of the case and deeds of Ratnamala Adhikary. Since her marriage in 1984 she has been residing separately with her husband and children having a separate mess . And since 1992 she started residing at the first floor of the said holding on permissive possession of the land lady, Ratnamala Adhikary since deceased. The OP/ WBSEDCL after complying with the order in question of the Forum below was bound by law to effect electric connection to the Respondent at the first floor of the premises.
8. The Forum below observed inter alia in its order in question that the OP, while making argument, stated that untill the arrear accrued against the electric meter belonging to Smt Ratna Adhikary installed at the same premises where the Complainant has been residing and applied for service connection are cleared , no new electric connection could be provided. The Complainant in reply stated that the arrear dues would not stand against providing electric connection in her name in view of the fact that she did not live either with Smt Ratnamala Adhikary or in the same mess with her. The Complainant in support of her case had submitted a declaration ( Ext-1) given by Smt Ratnamala Adhikary, authorizing her to reside in the premises with her family. The said permissive possession given by Smt Ratnamala Adhikary authorised the Complainant to apply for electric connection. The Forum below was of the view that there cannot be any rule to realize ones liability from another person. The OP cannot approach a 3rd person for making payment for the defaulter unless any nexus between the two could be proved. No evidence in support of having nexus between the Complainant and Smt Ratnamala Adhikary was adduced. The OP supplies electricity under specific agreement and separate contract. For realization of any dues, the remedy lies before the Civil Court and the OP should not claim the same from any other intending consumer. The Forum below accordingly allowed the complaint.
9. The Respondent filed a certified copy of the order dated 31.5.07 passed by the aforesaid Dist Forum, Purba Medinipur in case no 22 of 2007 where the Complainant was Smt Ratnamala Adhikary wife of Late Panchanan Adhikary and the OP was the Station Manager, Tumluk Group Electric Supply . The Forum below in the aforesaid order observed that as per ( Ext-1)the OP had issued the bill on 9.3.07 for the period from April 99 to April 2002 and April 2002 to April 2004 in the written objection . The OP however mentioned the same as March 03, to February 05; what ever might be the case, arrears were to be claimed within 2 years as per Electricity Act. But the OP evidently raised their bill after 2 years. Therefore, the claim was hit by limitation and serving an arrear claim on a consumer by violating their own norms was no doubt deficiency in service. The OP was thus barred from claiming the amount of Rs. 63,319/-. Accordingly, the Forum in its aforesaid order dated 31.5.07ordered for restoration of service line which was disconnected on 14.4.07 without any payment of arrear and reconnection charges.
10. We have heard the parties to this case at length and have perused the impugned order of the Forum below along with other written submissions. There is no doubt that the service connection belonging to the deceased Ratnamala Adhikary was restored subsequently by the OP/Appellant herein in terms of the order dated 31.5.07 passed in case no 22 of 07 by the Dist Forum, Purba Medinipur .
11. Smt Subhra Adhikary Respondent in case no 409/A/07 has stated on oath that she has been residing at the first floor of the same premises with her husband and children by virtue of a permissive possession given by her deceased mother-in-law ( Ratnamala Adhikary) . She never lived with her deceased mother-in-law or in the same mess. The point of nexus between her and mother-in-law could not be proved by the Appellant to our satisfaction. The fact of restoration of the electric line of the service connection of Smt Ratnamala Adhikary in obedience to the order dated 31.5.07 was never disclosed by the Appellant. In view of such a situation , we find it difficult to interfere with the impugned order dated 28.9.07 passed by the Dist Forum Purba Medinipur in case no 11 of 2007 excepting its award of compensation . The appeal therefore succeeds in part.
12. It is accordingly ordered that the appeal be allowed in part on contest without cost. The impugned order dated 28.9.07 of the Forum below be affirmed with the modification that its order relating to compensation be set aside . The other part of the order be carried out by the Appellant within 30 days from the date of communication of this order failing which the Complainant/Respondent will be at liberty to put the order in question into execution before the Forum below . Let a copy of this order be endorsed to the Forum below .
Member Member