APPELLANTS
1. W.B.S.E.D.C.L.

Represented by the Chairman

Bidyut Bhavan, Salt Lake City,

Kolkata-700 091

Service through Station Manager,

Raiganj Group Electric Supply.

2. W.B.S.E.D.C.L.

represented by Station Manager,

Raiganj Group Electric Supply

Mohanbati, Raiganj, Uttar Dinajpur.



RESPONDENTS



Smt. Kanan Sarkar

W/o Sri Sri Basudha Ranjan Sarkar

Milanpara, Raiganj, Uttar Dinajpur.



BEFORE : MEMBER : MR. A.K.RAY

MEMBER : MRS. S.MAJUMDER

MEMBER : MR. S.COARI



FOR THE APPELLANT : Mr. A.Sarkar, Ld. Advocate

FOR THE RESPONDENT: Mr. B.Prasad, Ld. Advocate


: O R D E R :


MR. S.COARI, LD. MEMBER

The present Appeal has been directed against the judgement and order dt. 29.6.09 passed by District Consumer Disputes Redressal Forum, Uttar Dinajpur at Raiganj in Consumer Case No. 62/2007 wherein the Ld. District Forum allowed the complaint on contest against the Ops thereby quashing the impugned bill dt. 29.11.07 with a direction upon the Ops to prepare a fresh bill by following the norms and rules under the Electricity Act and also allowed compensation to the tune of Rs. 5,000/- in favour of the complainant together with litigation cost of Rs. 1,000/-.

The complainant/Respondent’s case before the Ld. District Forum, in brief, was that the mother of the complainant became owner of the house in question by purchase from the erstwhile owner, Smt. Radharani Sen Gupta, in whose name the electric meter stands. The average consumption of units by the complainant was around 200. The complainant received a bill for the months of December’07, January’08 and February’08, which showed consumption for electricity of 13341 units amounting to Rs. 79,517.00. The complainant enquired with the Op establishment on this inflated bill, but no satisfactory reply was received. Finding no other alternative the complainant filed the petition of complaint for cancellation of the impugned bill together with compensation and litigation cost.

The OPs/Appellants, WBSEDCL, contested the case by filing written version thereby denying all the material averments of the petition of complaint contending inter alia that the case was not maintainable and the same was barred by limitation. The meter in question was not running properly. Accordingly, the meter was replaced on 28.5.07 with registering of initial readings. The Ops raised bills on the average of consumption by the complainant for the period from January, 2001 to September, 2007, which amounted to 13,923 units and the units consumed by the complainant for the period from 28.8.07 to 7.11.07 were 2254. The impugned bill was correct, which was prepared on the normal average consumption by the complainant and that the petition of complaint was liable to be dismissed with cost.

The Ld. District Forum while disposing of the petition of complaint has observed that the conduct of the Ops was not good. The procedure followed by the Ops in raising the impugned bill was not in terms of the rules and regulations of the Electricity Act. Though the Ops have specifically mentioned that on 7.11.07 the last reading was noted, but the Yellow Cared meant for noting the readings of the meter in question does not depict any such entry at all. The Ld. Forum below having found that the Ops have not approached the Forum with clean hands has disposed of the petition of complaint in favour of the complainant in the manner as mentioned above.

The only moot question that revolves round the present Appeal is as to whether the Ld. District Forum was justified enough in disposing of the petition of complaint in the manner as discussed above.
DECISION WITH REASONS

At the time of hearing it has been submitted on behalf of the Respondent that in this case the Ld. District Forum has rightly held that the Ops/Appellants to be responsible for raising and submitting the inflated bill, which had no legal basis at all. According to the Ld. Advocate for the Respondent, there was no point on part of the Appellants to raise bills on the average of electric consumption commencing from 2001 to 2007 and such procedure adopted by the Ops is not permissible under the Electricity Act. It has further been pointed out on behalf of the Respondent that the Appellants having not come with clean hands inasmuch as there was no authentic entry on the relevant date, i.e. 7.11.07, in the Yellow Card meant for noting electric consumption, question of accepting the Appellants’ version of the case does not arise at all. While concluding his submissions the Ld. Advocate for the Respondent has submitted before us that the Ld. District Forum has considered the pros and cons of respective parties’ cases and has arrived at a just and proper finding which should be affirmed.

We have duly considered the submissions so put forward on behalf of the Respondent and have gone through the materials on record including the pleadings of the parties and the impugned judgement and find that in this case the complainant/Respondent has put forward a case to the effect that the bill in question was inflated and the same was not raised as per norms and conditions to be followed in terms of the Electricity Act. The Appellants/Ops having not followed the usual procedure the impugned bill is not acceptable and the same is liable to be quashed and for the harassment meted out to the complainant the complainant has sought for compensation and litigation cost. The Ops, on the other hand, have put forward a case to the effect that the conduct of the complainant was not good. On average consumption of units at the instance of the complainant the impugned bill was raised. In this regard, while criticizing the impugned judgement the Ld. Advocate for the Appellants have submitted that the present dispute being a clear case of billing dispute the provisions of Electricity Act, 2003 is very much clear on this point and such billing disputes cannot be adjudicated by any court of law since the Electricity Act provides proper relief to such billing disputes. The complainant having not availed of the remedy provided under the Electricity Act the Ld. Forum below was not justified in upholding the case of the complainant. According to the Ld. Advocate, specific provisions are laid down in Section 126(3) of Electricity Act 2003 and provision 3.5 of WBERC Regulations 2004 for resolving a dispute of instant nature. Provision 3.5 of WBERC Regulation 2004 specifically provides remedy regarding resolving of disputed/erroneous bills.

Thus, from the pleadings of the parties and the materials on record we find that in this case the main controversy between the parties relates to billing dispute. Once it is a clear case of billing dispute, under Electricity Act, 2003 and provisions laid down thereunder on the fact of repeal of the I.E. Act, 1910 and provisions thereunder since replaced by the said Act aforesaid read with relevant provisions of W.B.E.R.C., the matter is now required to be adjudicated under the Electricity Act, 2003 and provisions thereunder. Admittedly, the Ld. District Forum by its impugned order has quashed the impugned bill with a direction to prepare a fresh bill for the period by following the norms and rules under Electricity Act, which, in our opinion, is beyond jurisdiction and not permissible under the law. In our opinion, Sections 50 and 181 of Electricity Act 2003 read with provision 3.5 of WBERC Regulation No. 13 dt. 5.2.04 would apply in the given case where Provision 3.5 of the said Regulation provided for resolution of a dispute of similar nature in the manner as below :-

“3.5.1 In case there is any dispute in the billed amount, the aggrieved party may lodge a complaint before the designated officer/agency in terms of the grievance procedure and pay under protest an amount equal to electricity charges due from such consumer for the month which shall be calculated on the basis of average charge of electricity paid by the consumer during preceding 6 months or an amount equal to the sum claimed in the bill from the consumer whichever is less within due date pending settlement of the dispute. The amount so calculated and tendered by the consumer shall be prima facie accepted against that bill on provisional basis. The shortfall/difference, if any, shall be notified within 7 days to such consumer by the licensee and the same will be paid by the consumer within 5 days of receipt of such demand.

3.5.2 If on examination, the licensee finds that the disputed bill is erroneous, a revised corrected bill shall be furnished to the consumer. The amount paid in excess, if any, by the consumer, shall become refundable within interest at a rate which shall be the same as applicable to security deposit or any other rate as may be decided by the Commission from time to time. The refund of the excess amount shall be made by the licensee through an adjustment in the subsequent bill and the due date of payment of the subsequent bill in which the amount is adjusted would be treated as date of refund and interest calculated accordingly.

3.5.3 Likewise, if on examination it is established that the original bill was correct, then the consumer shall be intimated accordingly and notified to pay the balance, if any, wit applicable surcharge and interest within 7 days of receipt. The rate of interest shall be same as in Regulation 3.5.2. However, consumer shall have a right to take up his complaint as per Grievance Procedure and other relevant provisions of the Act and Regulations.

3.5.4 The licensee shall resolve the dispute and communicate its decision along with the reasons to the affected party as per the grievance procedure in the manner given therein.

3.5.5 Notwithstanding anything contained under this section, the cases falling under section 126 of the Act or any section which prescribes for any specific procedure under the Act shall not fall under this section.

In the light of foregoing discussion we are of considered opinion that the impugned judgement so far as it relates to cancellation of the impugned bill and preparation of a fresh bill is not sustainable under the law and it requires some modifications. Other portion of the judgement so far as it relates to awarding compensation and litigation cost remains unaltered as, in our opinion, the conduct of the Appellants/Ops was not good and they ought to have suo motu taken proper steps for resolving the billing dispute in question. So far as it relates to modification, we think that the Respondent should be given liberty to seek redress on the correctness of the impugned bill through grievance redressal machinery as provided under 3.5 of WBERC Regulation No. 13 dt. 5.2.04 and in this regard the Appellants/Ops should come forward with all possible help and cooperation. In the result, the Appeal succeeds in part.

Hence, it is ordered that the Appeal stands allowed on contest in part without any order as to cost. The impugned judgement so far as it relates to quashing of impugned bill stands set aside. The Respondent is given liberty to seek redress on the correctness of the given consumption bill through grievance redressal machinery, as provided under provision 3.5 of WBERC Regulation No. 13 dt. 5.2.04. The Ops/Appellants are directed to extend all possible help and cooperation to the Respondent in this regard. The impugned judgement so far as it relates to awarding compensation and litigation cost stands affirmed.

Sd/- S.COARI

MEMBER MEMBER MEMBER



S. Majumder, MEMBER.

I beg to differ with the judgment written by the Ld. Member, Sri. S. Coari. As the fact of the case has been stated in the said judgment, it is needless to mention again the same.

On careful perusal of the record and the documents, I have observed that it is an admitted fact that the present Respondent received an electric bill for the months of December, 2007, January, 2008 and February, 2008, which showed consumption for electricity of 13341 units amounting to Rs.79,517/-. It is the case of the Complainant-Respondent that after receipt of such inflated bill she enquired with the OP-Appellant establishment, but no satisfactory reply was received from the end of WBSEDCL and thereafter finding no other alternative she filed the complaint petition against the WBSEDCL praying for cancellation of the said disputed bill together with cost and compensation. The case of the WBSEDCL-Appellant is that the bill was raised on the average of electric consumption by the Complainant for the period from January, 2001 to September, 2007 and as the Complainant enjoyed electrical energy, she is liable to pay the bill amount of Rs.79,517/- raised by the OP. Before the Forum below Yellow Card as well as the said disputed bill were filed for adjudication of the Complaint. The Forum has observed that the date of the said disputed bill was 07.11.2007 through which the Complainant was directed to pay a sum of Rs.79,517/-. The Forum below that has further observed it the Yellow card where the reading of consumption of energy is recorded by the men of the OP and kept in the custody of the Complainant and which showed the entry of reading from 23.08.2003 to 10.02.2009 and there was endorsement of the meter reader against each of the entry. But there was no entry of meter reading on 07.11.2007 in the yellow card. Therefore it is curious to me that where there was no entry in the said card on 07.11.2007, on what basis the OP raised the bill dated 07.11.2007 upon the Complainant as well as where the Forum has viewed the said observation in its judgment, no grounds has been taken by the Appellant-WBSEDCL in its memorandum of appeal before this Commission. During hearing the Ld. Counsel for the Appellant has failed to provide me a satisfactory reply against my specific question. Before the Forum below the present Appellant-OP has failed to adduce any evidence in support of their claim that meter reading was taken on 07.11.2007. In my opinion as the WBSEDCL has failed to show me the basis of the said bill, I can easily draw a conclusion that arbitrarily the said bill was raised only to harass the Complainant. Further, the Appellant being the OP before the Forum below took the point in its w/v that the bill was raised for a sum of Rs.79,517/- for the period from 06/2001 to 09/2007. But we cannot find out any such Clause in the Regulation through which the WBSEDCL can realize the outstanding dues from the present Complainant after a lapse of 06 years. In this context we are of the opinion that as per the Appellant’s own Act the WBSEDCL cannot claim it, the Section-56 (2) of the Electricity Act, 2003 read with provision 3.4.2 of the WBERC, where it is stated-



“The licensee shall not be eligible to recover any sum due from the consumer after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity in such cases as laid down under section 56 (2) of the Electricity Act, 2003.” In this case, the Appellant, since not submitted any proof regarding such continuous claim of arrear, is not eligible to recover any sum due from the consumer/beneficiary after the period of two years. As the Appellant has claimed such amount in November, 2007 from the present Respondent, the dues if any, covering the period from 2001 to 2005, November cannot be claimed. The Ld. Counsel for the Appellant did not show us any rules and regulations in their favour that they are entitled to realize the outstanding amount for long 06 years from the Complainant.



Next, The Appellant is only entitled to raise electric bills for the period from December 2005 to November, 2007, if not raised or if not paid by the Complainant in the meantime. Therefore, the Appellant is directed to raise correct bill for the period from December, 2005 to November, 2007 upon the Respondent. We cannot accept the bill as raised by the Appellant is a correct one, as it was not raised based on the reading date i.e. 07.11.2007, when the Appellant’s personnel did not take any meter reading. Regarding quashing of the electric bill I am of the opinion that Forum has no authority to quash the electric bill, if the said bill seems to be abnormal or defective, the only power of the Forum below to send down the defective bill/s to the respective authority as per provisions as laid down by the Company in their own Act. The Ld. Counsel for the Appellant has argued that as according to the Complainant-Respondent the bill is defective one, it should go to the expert body for adjudication according to the sections 50 and 181 of the Electricity Act, 2003 read with the provision 3.5 of WBERC Regulation no 13 dated 05.02.2004. The Appellant has filed one judgment passed by this Commission and one judgment passed by the Hon’ble Supreme Court, reported in 1997 (1) CHN (SC) 50, in a case between CESC Limited vs. Sri. N.M. Banka, where Their Lordships have held that ‘the consumer should have approached before the Expert Body of the CESC straightway if he was aggrieved by the bills and the Court should have declined to intervene when the consumer approached the Court. The Court should have directed the consumer to avail of the statutory remedy.’ Having regard to the said judgment I am to say that the fact of the present case is quite different from Banka’s case. The case of the OP is that the said bill was raised for the period from 06/2001 to 09/2007 and it was further case that meter reading was taken correctly on 07.11.2007. But I have noticed from the yellow card that no reading was taken on the said date and there was no signature mentioning the consumed units in the said card on that date, but in the bill it was written by the Appellant that meter reading taken on 07.11.2007. Therefore where there is no meter reading on the said date, the Appellant has no authority to raise any bill mentioning the said date as ‘meter reading date’ upon the Appellant. But I am not inclined to set aside the said bill, I am only inclined to direct the Appellant to raise correct bill after taking actual meter reading. For which period the Appellant is entitled to claim the outstanding dues from the Complainant as has been mentioned earlier in the body of this judgment.



Going by the foregoing discussion it is ordered that the Appellant shall raise correct and fresh bill upon the Respondent for the period from December, 2005 to November, 2007, if not raised earlier and the Respondent shall pay the said bill within 15 days from the date of receipt of the said bill, if not paid. Regarding compensation and cost as awarded by the Forum below in favour of the Complainant I am of the opinion that the Appellant has no authority to travel beyond their own Act and knowing very well WBSEDCL raised the said bill containing huge amount for the purpose of harassing the Complainant and to get proper relief the Complainant was compelled to approach before the Court of Law. But in our opinion the compensation amount is on higher side and it will meet the justice if I reduce the said amount at Rs.2,500/- and the cost amount will remain unaltered. Therefore it is ordered that the Appellant shall pay a sum of Rs.2,500/- towards compensation and Rs.1000/- as cost to the Respondent within 45 days from the date of passing this judgment, in default the abovementioned amount of Rs.3,5000/- shall carry interest @10% p.a. for the default period. The Complainant-Respondent is directed to make application before the Appellant for changing the name of the consumer by inserting her name and the Appellant is directed to take the actual meter reading in a regular interval. With the observation the appeal be allowed in part on contest without any cost and the judgment passed by the Forum below is hereby modified. The office is directed to send down the copy of this judgment to the Forum below and issue the same upon the recorded Advocates/Parties free of cost forthwith.