CONSUMER DISPUTES REDRESSAL COMMISSION

MAHARASHTRA STATE





FIRST APPEAL NO.1281/2008 Date of Filing:- 24/09/2008

@ M.A.No.1790/2008 Date of Order:- 13/04/2009

IN CONSUMER COMPLAINT NO.30/2007

DISTRICT CONSUMER FORUM, SINDHUDURG





Maharashtra State Electricity Distribution Company Limited,

through its Executive Engineer, Kankavali,

At & Post Kankavali,

Taluka-Kankavali,

District-Sindhudurg ... Appellant (Org. Opponent)

-Versus –



Shri Kishor Vishnu Rane,

R/o Kankavali (Market)

Taluka-Kankavali, District-Sindhudurg,

through his P.A.H.Ulka Vijay Rane,

R/o Kankavali (Market),

Taluka-Kankavali,

District-Sindhudurg. ... Respondent (Org. Complainant)





Corum :- Mr.P.N.Kashalkar, Hon’ble Presiding Judicial Member,

Smt.S.P.Lale, Hon’ble Member.



Present :- Mr.S.S.Jinsiwale, Adv. for the Appellant.

None present for the Respondent.



O R A L O R D E R



Per Mr.P.N.Kashalkar,Hon’ble Presiding Judicial Member



1) This is an appeal filed by the Org.O.P./Maharashtra State Electricity Distribution Company Limited against the judgment and award passed by the District Consumer Forum, Sindhudurg in Consumer Complaint No.30/2007 decided on 23/4/2008 whereby while allowing the complaint, the Forum below cancelled the bills for the period 28/7/2004 to 27/10/2005 and directed to issue fresh bill for the old meter taking unit consumption of 398 per quarter for the same period and to pay Rs.1,000/- for deficiency in service and Rs.1,000/- towards compensation and cost.



2) Facts to the extent material may be stated as under :



3) Complainant Shri Kishor Rane of Kankavali had filed consumer complaint against the M.S.E.D.C.Limited alleging that since 1979, he was consumer having taken electricity for residential purpose. His consumer No. 230010005448. Initially, meter installed was proper and at the most it was showing maximum unit consumption of 398 per quarter. But, M.S.E.D.C. Limited changed the meter and installed electronic meter. It was running in high speed. Complaint was made to O.P. who on inspection found that it was running fast. Thereafter, new meter was installed in 2004 but same was also having defects and it was running speedily. Again, complaint was made. So, yet another new meter was installed. The replaced meter was tested and test report dated 2/9/2005 was received. Last meter was also running fast but it was not changed by the M.S.E.D.C.Limited, However, in October-2005, the O.P. discontinued supply to his house and in August-2006, it removed the meter installed from his house. According to the complainant, the bills given by O.P. are incorrect, they were issued based on faulty meters. Since, he had not paid the bills, the O.P. filed Regular Civil Suit No.15/2007. Hence, the complainant filed this complaint praying that bills should have been issued on average basis under old meter and he sought order from the Forum that the disconnection made by the O.P. is illegal and O.P. should be directed to give average bills.



4) The O.P. filed written statement and pleaded that since civil suit between the parties is going on in the civil court which was for recovery of bills unpaid by consumer for the same cause of action, consumer complaint should not be entertained. The O.P. therefore pleaded that complaint as filed by the complainant is frivolous and false and complaint should be dismissed. On the affidavit filed by the M.S.E.D.C. official, complainant was permitted to cross examine the said witness.



5) After hearing both the parties, the Forum below passed order against the O.P. as reproduced in opening para of this judgment. As such, the M.S.E.D.C. Limited has filed this appeal challenging the said award.



6) There has been delay 105 days in filing appeal. The delay is properly explained in the condonation of delay application supported by affidavit. So, relying the same, we are inclined to condone the delay.



7) We heard submissions of Mr.S.S.Jinsiwale, Adv. for the appellant and none appeared for the respondent though he was duly served.



8) We are of the view that when civil suit was pending between the parties the consumer complaint in respect of bills should not have been entertained at all by the Forum below. In the civil court, appellant had filed the civil suit and complainant/respondent had every opportunity to point out how defective the bills were issued by the M.S.E.D.C. Limited. He contested the civil suit and on 22/10/2008 the civil suit was decreed and respondent was directed to pay Rs.6,921.72/-. Some directions were also given by the civil court in operative para no.3 of the said judgment and decree. For the same relief, consumer complaint was filed in the Forum below. This consumer complaint was filed on 7/7/2007 and decided on 23/4/2008 whereas civil suit was decided on 22/10/2008. But in the written statement a plea was taken by the M.S.E.D.C.Limited that civil suit was already pending between the parties and even court had framed issues whether defendant proves that meter installed by the Plaintiff was faulty. When this is so, the Forum below should not have entertained the complaint and passed an award. The dispute between the parties was already pending before the civil court and once parties are before the civil court then at the instance of either of the parties to the civil suit, the complaint should not have been filed or entertained by the Forum below. So, the order passed by the Forum below is appearing to be erroneous and bad in law.



9) The counsel for the appellant relied upon three judgments of Hon’ble National Commission reported in III (2002) CPJ 96 (NC) State Bank of India –Versus- Praful Jain, III (1991) CPR 386 (NC) & National Commission & SC on Consumer Cases 3059 (NS) S.James Vincent –Versus- Greater Cochin Development Authority & another. In all these judgments common question of law was involved. That the matter was before civil court and whether consumer complaint can be filed before Consumer Forum or Consumer Commission. Hon’ble National Commission clearly held in these three rulings that when civil court is seized with the dispute, Forum or Commission should not entertain consumer complaint for the same sort of grievance. Relying on these rulings, we are of the view that consumer complaint should have been dismissed by the Forum below since matter was already sub-judice in the civil court in terms of Civil Suit No.15/2007 filed by M.S.E.D.C. Limited against the consumer. In the circumstances, the judgment and award passed by the Forum below will have to be quashed and set aside. Hence, the following order.

O R D E R



1) M.A.No.1790/2008 for condonation of delay is allowed.



2) Delay is condoned.



3) Appeal is allowed.



4) Impugned judgment and award passed by the Forum below in Consumer Complaint No.30/2007 is hereby quashed and set aside. Complaint stands dismissed.



5) Parties are left to bear their own costs.





6) Copies of this order be sent to the parties free of cost.







( Smt.S.P.Lale ) (P.N.Kashalkar )

Member Presiding Judicial Member