State Consumer Disputes Redressal Commission
The District Engineer vs Sri Sukhendu Khara on 9 September, 2013
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/257/12 (Arisen out of Order Dt. 30/04/2012 in Case No. 03/2012 of District Consumer Disputes Redressal Forum, Howrah ) DATE OF FILING: 23.05.12 DATE OF FINAL ORDER: 09.09.2013 APPELLANTS: 1. The District Engineer, CESC Limited, Howrah Regional Office, 433/1, G.T. Road (N) 2. The Senior Manager, Loss Control Cell, CESC Limited, Eastern Building, 15/1, Chowringhee Square, Kolkata- 700 069. RESPONDENT : 1. Sri Sukhendu Khara, Son of Late Prakash Chandra Khara, Resident of 172/2, Netaji Subhas Road, P.O. Khurut, P.s. Bantra, District- Howrah, Pin- 711101. BEFORE HONBLE MEMBER : Sri Debasis Bhattacharya. HONBLE MEMBER : Sri Jagannath Bag. FOR THE APPELLANTS : Mr. Srijan Nayak, Ld. Advocate. FOR THE RESPONDENT: Mr. Prithiraj Sarkar, Ld. Advocate. _____________________________________________________________________________ : O R D E R :
MR. J.BAG, LD. MEMBER The present appeal is directed against the Order dated 30.04.2012 passed by the Ld. District Consumer Disputes Redressal Forum, Howrah, in CC Case No. HDF 3 of 2012 whereby Ld. Forum below allowed the complaint on contest with cost against all the OPs.
The Complainants case , in brief, was as follows:
The Complainant is the son of late Prakash Chandra Khara who was a bonafide consumer under the OPs/CESC authority and in whose name Meter No. 2990250 (domestic) was installed at 172/2 , Netaji Subhas Road, P.O. Khurut , P.S. Bantra , Dist- Howrah. After the death of Prakash Chandra Khara , the Complainant Sukhendu Khara has been enjoying electricity through the Meter standing in the name of his father and the bills are being paid regularly with no default. There was another commercial connection vide Consumer No. 58042046011, Meter Nos. 3491798 and 3516580 in the same premises in the name of the Complainant / Respondent which was disconnected on 18.05.2009 on the ground of unauthorized use of electricity and in respect of which a sum of Rs. 1,12,033/- only remained unrealized. On or about 08. 09. 2012 the Complainant received a letter from the OP NO. 2 addressed to the Complainants father, being the recorded consumer, threatening to disconnect the suit meter ( domestic ) on the ground of non-payment of outstanding dues of Rs. 1,12,033/- only against the Meter Nos. 3491798 and 3516580 .The Complainant having claimed himself as beneficiary of the registered consumer viz, Prakash Chandra Khara , since deceased , and a bonafide consumer under the Consumer Protection Act held the OPs guilty of gross negligence , unfair trade practice and deficiency of service on the ground of attempting to disconnect the electric connection of the complainant and hence, prayed before the Ld. Forum below for orders for issuing direction upon the Opposite Parties to restrain themselves from disconnecting the electric connection from the suit meter and to pay a sum of Rs.50,000/- towards compensation and damages and costs.
OP Nos. 1 & 2 / CESC authority contested the complaint by filing a written version contending, interalia , that the complaint was not maintainable in law or in fact , and the Complainant had no cause of action . It was the case of the OPs that a sum of Rs. 1,12,033/- only was assessed by Final Order of assessment passed on 04.06.2009 in respect of the commercial meters by the Assessing Officer authorized under Section 126 of the Electricity Act and that since there was a nexus between the defaulting consumers in respect of the same premises , the electricity authority has legal right to realize its dues of defaulting consumer from new and subsequent consumer.
Ld. Forum below in their order observed that CESE authority can not be permitted to adopt an autocratic attitude of squeezing a bonafide consumer (domestic consumer) by oppression and threat , which tantamount to a complete departure from the principle of natural justice and fair play. Accordingly, Ld. District Forum below ordered that the OPs be restrained from disconnecting the electric connection from the suit meter. The OPs were further restrained from causing any illegal obstructions interference and disturbance in the peaceful enjoyment of electricity by the Complainant from the suit meter. The Complainant was also allowed a litigation cost of Rs.5,000/-only with direction upon him to file proper application for change of tenancy in his name as the consumer of the domestic supply instead of his deceased father before the OPs who on receipt of such application shall act in accordance with law as expeditiously as possible.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below the Appellants / CESC authority have come up before this Commission, contending, inter alia, that the Complainant has got no right to enjoy connection for domestic use from the meter standing in the name of his father, that the Complainant having unauthorisedly used electricity through two commercial meters , and a sum of Rs.1,12,033/-only as claimed by CESC on ground of theft , having remained unrealized , a notice as per Regulations 3.4.1 and 3.4.2 of the West Bengal Electricity Commission ( electricity supply court ) Regulations 2007 and Section 56 (1) of the Electricity Act 2003 was issued which Ld. Forum below failed to appreciate.
Ld. Advocate appearing for the Appellant submitted that the Complainant had no cause of action in filing the complaint in so far as he was unauthorizedly enjoying electricity without reporting the fact of death of the original consumer i.e. late Prakash Chandra Khara being his father . The notice dated 04.01.12 was very much lawful in terms of provisions of the West Bengal Electricity Regulatory Commission (Electricity Supply Code ) Regulations 2007 and sub-Section 1 of Section 56 of the Electricity Act, 2003. The Complainant claimed himself to be the beneficiary of Consumer No. 58042046002/ Meter No. 2990250 but failed and neglected to take appropriate action for transfer of the meter in his name . It was his responsibility to take action in the matter of effecting transfer of the meter in his name . The OPs had no deficiency in service in issuing the notice for disconnection of the meter on the ground of non realiszation of outstanding dues from the recorded consumer with whom , admittedly, the consumer / complainant had a nexus .
Ld. Advocate appearing for the Complainant/Respondent submitted that Ld. Forum below considered all relevant facts and passed a reasoned order. Issuing of a notice in the name of a dead consumer is wholly unwarranted and does not serve any purpose . Since the Complainant has been threatened about disconnection of electricity in his premises , it was his legal right to seek protection from the appropriate Forum and by approaching the District Consumer Disputes Redressal Forum, the Complainant did the right thing. The question of setting aside the order of the Ld. Forum below does not arise.
Decision with reasons We have carefully gone through the Memo of Appeal together with the petition of complaint and documents placed along including the final order of assessment made by the Assessing Officer u/s 126 of the Electricity Act who after examination of all documents and upon hearing the Complainant / Sri Sukhendu Khara concluded that the total electricity charges and Government duty payable for the unauthorized use of electricity counts to Rs. 1,12,033.00 /- only , the calculation being made in terms of the provisions of the electricity Act 2003.
It has been cited by the Ld. Advocate appearing for the Appellant that Honble Supreme Court by their order dated July 1 , 2013 in Civil Appeal No. 5466 of 2012 has held that a complaint against the assessment made by assessing officer u/s 126 or against offenses committed under section 135 to 140 of the Electricity Act 2003 is not maintainable before a Consumer Forum .
Ld. Forum below observed that The CESC authority being the service provider cannot disconnect the electricity in a high handed manner on gross violation of natural justice and the CESC Authority cannot be permitted to adopt an automatic attitude of squeezing a bonafide consumer (domestic consumer), by oppression and threat, which tantamounts to a complete departure from the principle of natural justice.
Ld. Forum below appears to have made no specific observation about deficiency in service or unfair trade or restrictive trade on the part of the OP/Appellant on the basis of submissions, written or oral, of the Complainant /Respondent.
Going by the submissions made on behalf of the Appellants we have no hesitation to hold that OP/Appellants are within their lawful right to issue a notice demanding outstanding dues against the recorded consumer ,as happened in the present case. The recorded consumer being a deceased person and the Complainant/Respondent having claimed himself to be beneficiary of the services obtained by the said deceased person and thereby a nexus between the said deceased person and the Complainant/Respondent being an admitted fact, in issuing a notice to clear the outstanding dues which incidentally appears to have been the responsibility of the Complainant/Respondent himself is neither an act showing high handedness nor an expression of autocratic attitude of the service provider concerned.
We are of the considered view that the impugned order suffers from illegality and material irregularity and in that view of the facts and evidence on record we are inclined to hold that the appeal has merit and the appeal succeeds . Hence, Ordered That the appeal be and the same is allowed on contest. The impugned order is set aside. Consequently, the petition of complaint stands dismissed. There shall be no order as to cost.
Sri Jagannath Bag Sri Debasis Bhattacharya (Member) (Member)