Judgment:
Oral Order:-
Per Shri S.R. Khanzode, Honble Presiding Judicial Member
This appeal arises out of order/award dated 26/12/2008 passed in consumer complaint No.96/2007 Mrs.Chitra Shah V/s. Consumer Department, BEST and Anr. by Central Mumbai District Consumer Forum (âForum below in short).
Faced with the energy consumption bill which according to the complainant was in excess than what ought to have been charged, consumer complaint was filed against two departments of BEST, Mumbai and following reliefs were claimed therein:-
âa) The impugned order dated 22/08/2007 passed by the Superintendent Consumers (N) be set aside.
b) The opposite party be directed to provide the statement of the bills from year 1980 to 1992 to as calculate the average consumption thereon.
c) The opposite party be directed to pay the amount of bills as per the average of the neighboring flats and also as per the average of previous years bill from year 1980 to 1992 from the date of installation of old meter till the disposal of this complaint.
d) That during the pendency of the present complaint the order for payment of Rs.1,40,115.80 impugned order be stayed.
e) To direct to pay Rs.25,000/- compensation to the complainant for mental agony, harassment and inconvenience caused to the complainant.
f) To direct to pay the cost of this proceeding to the complainant and
g) Award any other reliefs with this Honble Forum may deemed fit and proper in the interest of justice and fairplay.â
Learned Forum below was pleased to partly allow the complaint with directions that the order raising disputed demand for Rs.1,40,115.80 stands cancelled, O.P. shall issue corrected bills giving adjustment/deduction @ 6.01% instead 4.10%; further directed to pay Rs.5,000/- as compensation towards mental harassment and cost of Rs.3,000/- of the consumer complaint.
Not satisfied with the impugned order/award, this appeal is preferred by the org. complainant.
We heard Mrs.Y.Y. Naik, Advocate for the appellant. Perused the record.
In the instant case, at the first instance, we find that a particular department of an Undertaking or the institution cannot be a service provider. It is BEST, who is service provider. Bringing action against one of the departments of the Undertaking, cannot be equated with an action against the department which is a de facto and de jure service provider. This particular legal flaw is ignored by the Forum below. It also ignored the aspect of absence of legal relationship between the parties as a service provider.
Coming to the merits of the case, in view of judgement of Honble National Commission in the matter of Accounts officer, Jharkhand State Electricity Board and Assistant Electricity Engineer, Jharkhand State Electricity Board, Kokar Division V/s. Anwar Ali, Proprietor, Pinki Plastic Industrial Area, and Executive Engineer, Gujarat Electricity Board and Deputy Engineer, Gujarat Electricity Board V/s. Madresa Abriyah Talimul Muslin Min (decided on 10/4/2008): MANU/CF/0044/2008, this consumer complaint can not be entertained. Only after referring the dispute as to proper assessment of the bill to the Competent Authority and assessment order passed under Section 126 of the Electricity Act, 2003, two remedies are provided either by way of an appeal under Section 127 of said Act or to approach Consumer Fora by filing complaint. Therefore, before entertaining any consumer complaint, determination of the issue under Section 126 is must and which is not done in the instant case. Therefore, complaint is also premature and on that count cannot be entertained.
Certain reliefs were already granted as mentioned above, to the complainant. Considering totality of the circumstances, we are of the view that what has been granted, the complainant ought to have been satisfied. It appears that there is no appeal filed by the O.P. We find no merit in the appeal and hence, the order.
Order:
1. Appeal stands dismissed in limine.
2. No order as to costs.
3. Misc. Appl. No.999/2009 stands disposed of as infructuous.
4. Copies of the order be furnished to the parties.