State Consumer Disputes Redressal Commission
H. Wadhwa vs Bses Rajdhani Ltd. on 22 March, 2023
FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 09.05.2022
Date of hearing: 19.01.2023
Date of Decision: 22.03.2023
FIRST APPEAL NO.-74/2022
IN THE MATTER OF
MS. H. WADHWA,
58/20, ASHOK NAGAR,
NEW DELHI-110018.
...Appellant in Person
VERSUS
BSES RAJDHANI POWER LIMITED
G-8, MAYA ENCLAVE, HARI NAGAR,
NEW DELHI-110064.
(Through: Mr. Arav Kapoor, Advocate)
...Respondent
DISMISSED PAGE 1 OF 17
FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL (PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Appellant in person.
Mr. Arav Kapoor, Counsel for the Respondent.
PER : HON'BLE JUSTICE SANGITA DHINGRA SEHGAL, PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are as under:
1. "The complainant is the owner of the 58/20 Ashok Nagar, New Delhi-110018 and is residing alone in the said premises after the unfortunate demise of her parents.
2. From the middle of 2010 and early 2015 complainant was staying in Nainital and she used to come to Delhi only for a day or two a month.
3. On 19.01.2015 when the complainant was not in Delhi, the OP disconnected the electricity supply of the complainant housebreaking the locks of the channel and downloaded the meter reading and inform the complainant.
4. The complainant received a bill dated 10.09.2014 of Rs 2,94,808/- from the respondent and after a few days another bill dated 16.09.2014 of Rs. 1,58.587/- was received there was variance in both the bills. After receiving the above two bills complainant visited the Head Office of the respondent in February 2015. The complaint met the customer care head, MsAnu Antony who told her to get the meter tested at the site.
However, despite various efforts made by the complainant respondent did not get the meter tested.
5. On 19.01.2015 more than seven years have passed complainant is residing in the above-said premises without electricity connection despite several meetings of the officials, the officials DISMISSED PAGE 2 OF 17 FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023 used to say that no to make any complaint they will do the needful. THIRTEEN electricity bills sent by the respondent between September 2014 and January 2015 appears to be greatly exaggerated as the complainant did not consume electricity at all on account of her not being in Delhi during that duration.
6. The respondent despite various representations and physical meetings did not provide the month-wise electricity bills in respectfully submitted that the Department did not take the reading of the meter on 3.9.2014.
7. The complainant made several requests to the respondent verbally/ through letters dated 13.12.2020, 23.12.2020, 02.01.2021, 12.01.2021, 22.01.2021 for testing the meter at the site. But respondent did not pay any heed to the requests of the complainant and for more than six years the respondent did not get test the electricity mete by the department at the site.
8. Instead of providing the details of electricity bills respondent wants to have a look at the FULL CHAIN OF PROPERTY PAPERS by sending an e-mail on 09.09.2020. It is important to mention over here, that in the year 2010 a collaboration agreement was executed between complainant and builders in respect of the property in question. After one month of the agreement, the builder asked the complainant to give them FULL CHAIN OF PROPERTY PAPERS of the property as they have to get sanctioned the plan from MCD. Since then they changed their mind-just to grab her property instead of demolishing the existing construction and reconstruction as per agreement. After sending 15 legal notices to the complainant which were duly replied by er the builders filed a case against her the court and started harassing one way or the other at the end of August 2014, when the issues were framed in the aforesaid case the builders started harassing the complainant vigorously. In the same court, the complainant also applied to return the FULL CHAIN OF PROPERTY PAPERS to her though she has DISMISSED PAGE 3 OF 17 FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023 already taken all the certified copies of-from the concerned authorities."
2. The District Forum after taking into consideration the material available on record passed the order dated 09.03.2022, whereby it held as under:
"9. It is submitted that the notice sent to the complainant on 12.11.2020 was on plain paper and not on the official letterhead. Further, the copies of the notice filed in the court show the dispatch number on the top of the notice whereas the copy received by the complainant does not show any dispatch number.
10. on perusal of the two notices dt. 12.11.2020 and its annexure dated 24.12.2014 sent by the respondent shows different amounts to aid the complainant, It does not stand to reason as to how the amount be different in two different notices for the same period. The amount of Rs.2,14,300/- is shown in the notice dated 24.12.2014 whereas Rs. 1,78,343.01 is shown in the notice dated 12.11.2020.
11. It is very surprising that bill due dates dated 29.09.2014 and 17.02.2015 show different sanctioned loads, raising a question mark on the veracity of the bills sent to the complainant. One bill shows sanctioned load of 0.50 KW whereas the other bill shows sanctioned load of 1.00 KW.
12. In an earlier email respondent has written that the complainant, did not pay; the bills for the period 2010 onwards whereas the bill dated Oct 4, 2014, shows the bills for period charges from 01.06.2011 to 03.09.2014. thus respondent is varying its submission.
13 The dispute is that the bills are wrong as the complainant has not consumed any electricity as reflected in the bills Secondly, the bills show different sanctioned loads and amounts which proves DISMISSED PAGE 4 OF 17 FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023 that the bills are wrong. Thirdly, the respondent is bound to restore the electricity supply as a normal person is not expected to live her life without electricity.
14. As per the respondent meter reading was taken on 03.09.2014. However, it is incorrect and false. The complainant wrote a letter to Mr Bindu Jha one of the officials of the Department dated 05.09.2014 that she had met him and Mr Sudhir Jairath one of the officials of BSES. The letters dated 05.09.2014 and
03.11.2014 proves that the respondent is falsely stating that the respondent took a meter reading on 03.09.2014.
15. It is further submitted that the complainant paid her bona fide bills regularly till August 2014. However, the false and inflated bills were sent to the complainant. Since the complainant did not use electricity as she was out of town no electricity bill could have been raised by the respondent.
16. There are discrepancies between the bills and records maintained by the respondent. If the Hon'ble court compares both the bills i.e. bill that was sent to the complainant at her residence due date 16.08.2014 shows that the load that was sanctioned to the complainant was 0.50 kw whereas the same bill that the complainant received due date 15.08.2014 from Head office on her request clearly shows that the complainant has a sanctioned load of 1.00 KW on that date.
18. The various bills post august 2014 sent by the respondent show different outstanding dues as under:
S Bill date Amount
NO. Rs.
1. 10.09.2014 294808/-
2. 16.09.201 158587/-
3. 28.09.2014 167930/-
4. 29.10.2014 190230/-
DISMISSED PAGE 5 OF 17
FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023
5. 19.09.2015 169284/-
6. 20.02.2015 169258/-
7. 29.03.2015 173510/-
8. 28.04.2015 173980/-
9. Notice date 12.11.2020 187343/-
2,14,300/-
10. The period mentioned 158587.07
01.06.2011 to An actual
03.09.2014 bill
net
payabl
e
11. Ist bill date mentioned 158587.07
29.05.2010 to Actual bill
03.09.2014
12. 2nd bill date mentioned 158587.07
29.06.2010 to 03.09.14 Actual bill
19. The bill due date 4.10.14 for the period 1.6.2011 to 3.9.2014 shows the same amount. How can for afferent periods the energy bill amount be the same? It clearly shows the non-application of mind and foul player in preparation for the complainant's electricity bill.
20. The electricity connection of the house of the complainant was disconnected on 19.01.2015 as intimated by the respondent vide its ernail, Though the electricity connection was disconnected on January 19, 2015, the same department ser a letter /notice dated 19.02.2015 to the complainant for disconnection of electricity supply subject to payment of outstanding dues of Rs. 169284 after one month of disconnection which is evident of the mishandling of the matter by the respondent thereby causing grave harassment to the complainant.
21. subsequently the very next day, another notice of disconnection of electricity supply dated 20.02.2015 was sent to Ne DISMISSED PAGE 6 OF 17 FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023 complainant even though the electricity supply had already been disconnected on 19.1.2015.
22. In the said notice dated 20.2.2015 the number of outstanding dues changed to Rs. 1,69,285/-. It can be seen from the two notices/bills that the outstanding amount has changed in one day. It appears that the respondent was not sure about the outstanding dues of the complainant and there is more to it.
23. Mr Anant Ravi general manager of the department issued notice for disconnection of electricity to the complainant which shows the de 2.10.2014 on the other hand almost the similar notice for disconnection of electricity dt. 2.10.2014 issued amount to perjury. By manufacturing illegal documents and forgery, Notice for disconnection dt. 2.10.2014 filed with an affidavit by Mr Anant Rav is a forged document. The ma letters dt. 2.10.2014 has been filed by the respondent on Feb 25 2021 in the PLA as part of the relevant documents. Letter dt. 2.10.2014 filed with the affidavit is a forged document. The main letter dt. 2.10.2014 has been filed by the department on Feb 25 2021 in the Permanent Lok Adalat as part of relevant documents: The forged notice for disconnection of electricity dt. 2.10.2014 long with the affidavit shows the signature of Mr Anant Ravi, GM
27. The respondent is unnecessarily harassing the complainant since 2002. Complainant also pray to grant compensation in favour of the complainant and against the respondent for the mental harassment, depression unnecessary torture, mental trauma and agony and punish the department as she is running from post to pillar since 2015 when electricity was disconnected and living without electricity till date. That present case is a peculiar case itself and one of its kind therefore require to be dealt with more seriously as the complainant is suffering from the past 6 more than 7 years without electricity and facing litigation only because of the respondent.
DISMISSED PAGE 7 OF 17 FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023
28. The complainant had to observe the last 7 Diwalis in darkness not fault her as she has paid all the bills till August 2014 which were raised correctly and paid by the complainant even some of the bills paid twice as same were raised and sent to the complainant twice.
29. Even after the complainant approached every officer of the respondent company no fruitful results came us and all the efforts of the complainant failed and the respondent company was very negligent in providing services to the complainant.
31. The complainant is a consumer within the meaning of Consumer Protection Act 1966 as all the bills raised at the said address 58/20 Ashok Nagar New Delhi 18 where is complainant is utilizing the services of the respondent and is making payments to the respondent of the respective electricity bills.
32. Due to unjustified reasons, the calculation of arrears had prejudiced the right of the complainant who is nowhere at fault to live peacefully in her premise, thereby causing huge mental agony, sufferings miseries and trauma and as such the said bills/notice of arrears warrants rejection. The same may be directed to the respondent to be withdrawn. That the said notice has caused undue harassment to the complainant for which the intervention of this revealed bench is requested as the respondent hart been negligent in their services,
33. That time and again complainant approached the respondent for rectifying the bills in question but no resolution has been provided to date that the electricity connection has not been restored despite various requests and the right to life of the complainant has been violated by the hands of the respondents every day.
35. The respondents are involved in malpractices and had been past has raised a false bill against the complainant DISMISSED PAGE 8 OF 17 FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023
36. The cause of action for the instant complaint arose when false bills were raised against the complainant again arose when the electricity was disconnected again arose (in 16.04.2021 when the OP got tested the meter and took a meter reading at the site on the direction of Permanent Lok Adalat again arose whenever the constitutional right of the complainant "right to life" is violated again arose whenever the resolution was not provided to the complainant despite several requests, again arose on 10.09.2021 when PLA disposed of matter of the complainant. That the cause of action is still subsisting as every passing day the harassment continues and the constitutional right is violated every day because of the deficiency of the services by the respondent. That it is working to mention here that even today the meter in question is in the custody of the complainant and no request is ever been made by the respondent for returning the same thus the process is not yet completed and the cause of action still subsist, hence End continuing the complainant is within the statutory period of limitation.
37. The complainant also filed a complaint u/s 35 of the Consumer Protection Act before Hon'ble Forum but the same was withdrawn on 7.12.2021 with liberty to file a fresh as per law. Hence the present complaint.
38. After going through the material placed on record, it reveals that the main question involved in the present complaint is whether the present Complaint is barred by limitation under section 69 of the Consumer Protection Act, 2019.
39. Clearly, the only aspect for consideration before us is whether the Complainant is barred by a limitation or not?
40. As per the law of land, it is already settled that the issue of maintainability can be decided at any stage Reliance is placed on the following judgments:
HON'BLE SUPREME COURT in the cas titled Hewlett Packard India Ltd. Vs Shri Ramachander Gehlot in CA No. 7107/2003 decided on 16.02.2004 held that DISMISSED PAGE 9 OF 17 FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023 "The issue of maintainability has to be decided before admitting or hearing the matter on me it"
HON'BLE NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI in FIRST APPEAL NO. 337 OF 2017 in a case titled "KOSHY VARGHESE THAVALATHI HOUSE, MELE VETTIPURAM, PATHANAMTHITTA Versus HDFC BANK LTD. & 2 ORS." Held that "It is settled law that the question in which law point is involved can be decided at any stage of the proceedings of the case. In view of the above, the present Appeal as also the Complaint filed by the Appellant/Complainant before the State Commission is dismissed being not maintainable with no order as to cost."
41. As Section 69 of the Act. 2019 prescribes a limitation period for admission of a complaint by the Consumer Commission, which states that (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in subsection (1), a complaint may be entertained after the period specified in sub- section (1), the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.
42. A perusal of the record shows that the present complaint was filed in February 2022. It also said the matter was listed on 4/3/2022 for the first time before thus commission.
DISMISSED PAGE 10 OF 17 FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023
43. To decide the preliminary issue, we are guided by the judgment of Hon'ble NCDRC on a similar issue in the case of Kishore Shriram Sathe vs Vivek Gajanan Joshi on 1 October 2013 in REVISION PETITION No. 1953 of 2011 held that " As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of the cause of action and if beyond the said period, sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of section 24A and give effect to it. If the complaint is barred by time and yet the consumer forum decides the complaint on merits, the forum would be committing an illegality. Therefore, the aggrieved party would be entitled to have such an order set aside.
44. In Union of India and Another v. British India Corporation Ltd. and Others, (2003) 9 SCC 50, while dealing with an aspect of limitation for an application for refund this Court held that the question of limitation was a mandate to the forum and, irrespective of the fact whether it was raised or not, the forum must consider and apply it.
45. In Haryana Urban Development Authority v. E.K. Sood, (2006) 1 SCC 164, this Court while dealing with the same provision viz., Section 24A of the Act,1986 held:
10. Section 24-A of the Consumer Protection Act, 1986 expressly casts a duty on the Commission admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen.
DISMISSED PAGE 11 OF 17 FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023
The section debars any fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. Neither the National Commission nor the State Commission had considered the preliminary objections raised by the appellant that the claim of the respondent was barred by time.
Furthermore, the complaint before the State Commission was filed by the respondent in 1997, ten years after the taking of possession. This was eight years after the cause of alleged damage commenced and three years after that cause ceased. There was not even any prayer by the respondent in his complaint about condoning the delay.
Therefore, the claim of the respondent on the basis of the allegations contained in the complaint was clearly barred by limitation as the two-year period prescribed by Section 24-A of the Act had expired much before the complaint was admitted by the State Commission. This finding is sufficient for allowing the appeal."
46. In a case of GannmaniAnasuya and Others v.
ParvatiniAmarendra Chowdhary and Others, (2007) 10 SCC 296, this Court highlighted regarding Section 3 of the Limitation Act that it is for the court to determine the question as to whether the suit is barred by limitation or not irrespective of the fact that as to whether such a plea has been raised by the parties; such a jurisdictional fact need not even be pleaded.
47. The Supreme Court affirmed the following in the case of State Bank of India v B. S. Agriculture Industries (I) [(2009) 5 SCC 121]:
"As far as the present case is concerned, at the first available opportunity in the written statement itself, the Bank raised the plea that the complaint was barred by limitation. However, the objection with regard to limitation remained unnoticed by all the three fora, namely, District Forum, State Commission and DISMISSED PAGE 12 OF 17 FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023 National Commission. Since the question relating to limitation goes to the root of the matter and may render the order illegal, we would now see whether the complaint was filed within time i.e., within two years of accrual of the cause of action. The complaint having been held time-barred, this plea is not of much significance.
As a result, the appeal is allowed. In addition, the decision of the National Commission dated October 1, 2001, affirming the orders of State Commission and District Forum, is set aside. The cis dismissed as time-barred. The parties shall bear their own costs."
48 .In view of the law so laid down by the Hon'ble National Commission, the complainant cannot be held to be a "consumer" and the complaint filed by her does not fall within the purview of the Consumer Protection Act, 2019. The same could not have been entertained by the District Commission and is liable to be dismissed for want of jurisdiction. Even otherwise, it is a commercial transaction between the companies.
49. It would be pertinent to begin our discussion by referring to Section 69 of the Consumer Protection Act, 2019. It would be seen from the aforesaid provision that it is peremptory in nature and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of the cause of action. Admittedly present complaint has been filed by the complaint almost eight years after the cause of the alleged disconnection of electricity done in 2015. There was not even any prayer/application by the complainant in her complaint about condoning the delay in filing the present complaint and challenging bills pertaining to period 2011-2015 in the complaint filed in 2021-22 which is inordinately delayed.
50. In the light of the judgment discussed above & the legal proposition, we hold that with regard to the question of limitation DISMISSED PAGE 13 OF 17 FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023 neither the facts mentioned in the complaint nor any argument made by the complainant justify the inordinate delay in filing the complaint on 13.02.2022. We, therefore dismiss the present complaint.
A perusal of the record shows that the complainant also filed a complaint previously and the same was withdrawn vide order dated 07/12/2021. She has habit of filing frivolous complaints as afterthoughts, We, therefore, dismiss the complaint with costs of Rs.5,000/- (Rupees five thousand only). The complainant is directed to deposit the costs of Rs.5,000/- by way of demand draft in the name of CCPA, within four week, from today. In case the petitioner fails to deposit the said amount within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realization."
3. Aggrieved by the aforesaid Judgment of the District Commission, the Appellant/Complainant has preferred the present appeal, contending that, the District Commission erred in dismissing the complaint on the ground that the present case involves commercial transaction. Moreover, the deficiency in service was pointed out on account of wrongful and malafide disconnection of electricity connection due to non-payment of electricity bills by the Respondent/Opposite Party. Pressing the aforesaid contentions, the Appellant prayed to set aside the order of the District Commission.
4. On the other hand, the Respondent has filed the reply to the present appeal wherein he has contended that the present appeal is barred by law on account of lack of jurisdiction.
5. To answer the question that whether the Appellant falls under the definition of consumer provided in the Consumer Protection Act, 1986, we deem it appropriate to refer to Section 2(1)(d) of the said Act, which provides as under:-
DISMISSED PAGE 14 OF 17
FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023
"consumer" means any person who,--
(i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [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 purpose]"
6. Perusal of the above section reflects that a person who avails services or buys goods for any commercial purpose does not fall under the category of Consumer provided by the Consumer Protection Act, 1986. Although the Respondent contended that the Appellant indulged in commercial activities, however, the said contention is not supported by any documentary evidence. Mere bald statement is not sufficient to raise an adverse inference against the Appellant. Therefore, the said contention of the Respondent holds no merit.
7. The next question of consideration before us is whether the consumer courts can entertain complaints against the power bills assessed under the Electricity Act.
8. We deem it appropriate to refer to U.P. Power Corporation Ltd. and Ors. vs. Anis Ahmad reported in (2013) 8 SCC 491 wherein Hon'ble National Commission has held as under:
DISMISSED PAGE 15 OF 17 FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023
"From a bare reading of section aforesaid we find that the "consumer" as defined under Section 2(15) includes any person who is supplied with electricity for his own use by a licensee and also includes any person whose premises are for the time being connected for the purpose of receiving electricity with the works of a licensee, irrespective of the fact whether such person is supplied with electricity for his own use or not. Per contra, under Section 2(1)d) of the Consumer Protection Act, 1986 those who were supplied with electricity for commercial purpose and those who do not avail services for consideration, irrespective of electricity connection in their premises, do not come within the meaning of "consumer".
9. On this issue, the law is well settled by the Apex court, which has held that consumer courts cannot entertain complaints against power bills assessed under the Electricity Act or take action against power corporations and a complaint against the assessment made by the corporation is not maintainable before a consumer Commission.
10. In view of the forgoing, we are in agreement with the reasons given by the District Commission and fail to find any cause or reason to reverse the findings of the District Commission. Consequently, we uphold the Judgment dated 09.03.2022 passed by the District Consumer Disputes Redressal Commission, (Distt. West), Janakpuri, New Delhi.
11. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
12. A copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Regulations, 2005. The Judgment be DISMISSED PAGE 16 OF 17 FA/74/2022 MS. H. WADHWA VS BSES RAJDHANI D.O.D. : 22.03.2023 uploaded forthwith on the website of the Commission for the perusal of the parties.
13. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
22.03.2023 DISMISSED PAGE 17 OF 17