w w w . L a w y e r S e r v i c e s . i n

Bengal Metal Industries & Another v/s C.E.S.C. Ltd.

    S.C. Case No. 113/o of 1993

    Decided On, 04 February 2005

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, MEMBER

    For the Appellants: S. Agarwal, Advocate. For the Respondent: S. Nayek, Advocate.

Judgment Text

M.K. Basu, President:

1. This is a complaint under Section 17 of the Consumer Protection Act, 1986 filed by the complainant M/s. Bengal Metal Industries (complainant No. 1) a partnership firm and Sri Suresh Agarwal one of the partners of that Firm (complainant No. 2) against the C.E.S.C. Ltd. and its various Directions and office Bearers (O.P. Nos. 1 to 13) on the following allegations.

2. The complainant - Firm is engaged in the business of re-rolling of steel etc., and consumes electricity through a electric meter installed in its factory premises. Electricity being one of the major inputs in the petitioner’s manufacturing process, it is totally helpless without supply of electricity and as per a contract between the complainants and the O.Ps. a 6 KV i.e., 6600 V feeder lines of H.T. electricity was installed by the O.P. No. 1 at the complainant’s factory on deposit of a sum of Rs. 1,87,500/- by the complainant as security deposit. The C.E.S.C. with an intention to harass the complainants for their being vocal in exposing illegal activities indulged in by the O.Ps. illegally raised an electric bill in the name of the complainant’s firm for the month of May, 1992 alleging therein consumption of 15,100 units amounting to Rs. 26,228.70. This was in most illegal and was in gross violation of the provision of the Indian Electricity Act, 1910 and as such the said bill for the month of May 1992 was not payable by the complainants. Hence, the complainants filed a complaint before this State Commission on 6.7.1992 being SC Case No. 888 of 1992. Thereafter on 14.7.1992 the O.Ps. wrongfully disconnected the supply of electricity at the factory of complainants without prior service of any notice and without showing any cause for such disconnection. Further, the O.Ps. on 14.7.1992 with the help of local police of Liluah Police Station went to the factory of the complainants which was closed due to the fact that it was a holiday and taking advantage of the complainant No. 2’s absence visited the factory premises and had their entry into the Power House where the meter of the C.E.S.C. was installed after getting the same unlocked by the Durwan and thereafter they tampered seals and broke some of them which were affixed on the meter instrument and thereafter disconnected the supply line. Then they entered their comments in the 'Yellow Book' to the following effect:

'Found spurious seals on Co-meter and since meter body cores. Disconnected supply at 13.20 p.m. on 14.7.1992.'

3. Such allegations were absolutely false, motivated and were made to settle their vengeance against the complainants. The complainants then made a prayer before this State Commission in their aforesaid Case No. 888 of 1992 for a direction upon the respondent No. 1 and others for restoration of the electric connection whereupon this State Commission directed the O.Ps. to restore the electric connection and file a report regarding the alleged disconnection of electricity at the factory of the complainant. But this order was not carried by the respondent and finding no other alternative the complainants moved a writ application before the Hon’ble High Court on 20.7.1992 and the Hon’ble Court after hearing both sides passed an order on 21.7.1992 to the effect that such disconnection of supply was illegal and in view of such order the supply was restored at the factory of the complainant’s firm by the C.E.S.C. Ltd. and during such restoration of the supply the metering apparatus was checked and found to be in working condition and the meters were re-sealed. In the meantime the O.Ps. filed a writ application against the complainants before the Hon’ble High Court and that case was being heard by the Hon’ble Court and orders were passed.

4. The O.Ps. again made an attempt to disconnect the 6 KV supply line of the factory of the complainant on 23.3.1993 at 12.30 hours when some of their men and agents visited the factory premises of the complainant ‘s escorted by local police and tried to disconnect the electricity supply there by forcibly entering into the factory premises but they failed to disconnect the supply due to some technical barriers and they made an endorsement in the 'Yellow Book' of the factory to the effect that the supply had been disconnected, although as a matter of fact it was not disconnected. Under no provision of law the O.Ps. can enter into the factory premises of the complainants in such a manner and without obtaining a search warrant can search the premises. Such act of the O.Ps. constitute deficiency in service and hence the complainants have filed this case under the Consumer Protection Act, claiming the reliefs as mentioned in the prayer portion of the complainants.

5. The O.Ps. have contested the case by filing written objection denying all the material allegations therein and contending that there is no whisper of any allegation of deficiency in service on the part of the O.Ps. and as a matter of fact the complainant has not suffered any damage, the electric line in question remaining intact and no disconnection having been effected and under such circumstances there is no scope of the Consumer Protection Act being made applicable to the allegations. According to them the complaint being false, frivolous and harassing is liable to be dismissed with cost.

6. Mr. Nayek, the learned Advocate for the O.Ps. has contended that this case is not legally maintainable at all before a Consumer Court because, according to him, in order to be a fit case for being filed in such a Court the essential requirement is that there must be allegation and proof of deficiency in service on the part of the O.Ps., but in the present case there is practically no allegation as to the existence of any deficiency in service. The supply of electricity in the disputed factory premises of the complainant has admittedly not been disconnected by the O.Ps. what the O.Ps. have allegedly done according to the averments in the complaint (vide Paragraphs 34 and 39 of the complaint) is that they along with police personnel entered into and visited the said factory premises on 23.3.1993 and made an attempt by disconnecting the 6 KV electric supply at that factory premises and though not successful in actually disconnecting the line put a false endorsement on the 'Yellow Book' to the effect that supply had been disconnected in order to create a false evidence and moreover such entry by the O.Ps. without obtaining a search warrant from a competent Court of Law under Section 94 of the Cr.P.C. was unlawful and unauthorised and such act on the part of the O.Ps. constituted deficiency in service and hence they have filed this complaint before the Consumer Court.

7. We find much substance in the contention of Mr. Nayek that such alleged acts of the O.Ps. in entering the premises or trying to disconnect the service as alleged cannot be treated as deficiency in service. Under Section 2(g) of Consumer Protection Act, 1986 deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. Here supply of electricity is the service to be provided by the O.Ps. to the complainant under the contract entered into between the two. So unless anything is done by the O.Ps. in the matter of supply of energy to the complainant which results in imperfection, fault or shortcoming or inadequacy in respect of this service, namely, supply of energy, it cannot be said that any deficiency has occurred on the part of the O.Ps. A mere attempt at disconnection of the electric line which is not successful cannot be treated as an act that constitutes deficiency in service as defined under this Act. If there is any threat or attempt at disconnecting any electric line of any consumer by the electric supply authority short of actual disconnection, then such an act cannot be classified as one that constitutes or causes any deficiency in service within the meaning and definition as given under this act and obviously the remedy of the consumer, if any, may lie elsewhere, but certainly not before a Consumer Court, the pre condition to be fulfilled for filing a complaint before which being the emergence of either defect in goods in case of purchase of goods or deficiency in service in case of hiring of service. So it is clear that from this stand-point the complainant has miserably failed to convince us that this basic pre-requisite for filing such a case before this Commission has been satisfied.

8. This conclusion gets strengthened when we find that the prayers which the complainant has made in his complaint are not in accordance with the provisions of Section 14(1) of the C.P. Act. As there is no allegation of actual deficiency in service in his complaint, naturally he has not made any prayer for removal of any such deficiency. But what he has prayed for is temporary injunction (vide paragraphs 44, 45, 46, 47 and 49 of the complaint) restraining the O.Ps. 'temporarily' from disconnecting the 6 KV electric line at the disputed premises and from visiting the factory without leave of the Court and the complainant also seeks a mandatory injunction directing the O.C., Liluah Police Station to appear in person before this Court and explain under which authority the police officers escorted the O.Ps. to the factory of the complainant on 23.3.1993 and further prayer to the effect that this Commission may appoint a special officer to visit the site and report to this Court whether the supply is existing at the factory of the petitioner and whether the seals affixed are intact there and the Special Officer may also be directed to take photographs of the meters installed at the factory of the petitioner’s firm keep the meter room under his lock and key till such time as the matter is finally heard and decide by this Court. It is needless to point out that such prayers cannot be made before a Consumer Court when there has been no allegation to the effect that the electric line has been disconnected. Such prayers are totally misconceived in view of the fact of the supply line in question remaining intact without being cut off by the O.Ps. Simply on the basis of surmise and conjecture the complainant appears to have filed this complaint, an act which is not permissible under the provisions of the Consumer Protection Act. Similarly, the last prayer to the effect that a decree for Rs. 5 (five) lakhs may be passed towards defamation is equally untenable under the Consumer Protection Act. A suit for defamation lies elsewhere and from that point of view also the complaint appears to be utterly misconceived. The prayer for a sum of Rs. 10,000/- as against the mental agony suffered by the complainant also cannot arise for the same reason, namely, that there has been no deficiency in service on the part of the O.Ps.

9. Therefore, it goes without saying that the petitio

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n of complainant is not maintainable under the law before a Consumer Court and it is not explained anywhere by the complainant as to what prompted him to file such a complaint when a few months back he filed another case before this Commission being No. 888/92 against the O.Ps. praying for a direction upon the O.Ps. for restoration of the line (vide paragraph 24 of the complaint). Therefore, we have no hesitation to hold that this case is not only misconceived in the eye of the law but also it is frivolous and vexatious. This conclusion is confirmed by the fact that in 1993 when this case was filed with the above-mentioned prayers for obtaining order of temporary injunction under the provision of the C.P. Act, there was no enabling section for the Consumer Court to grant any such injunction to any party. Under such circumstances we consider it a fit case where we should proceed under the provisions of Section 26 of the Act to impose some cost. 10. In the result it is ordered that the complaint be dismissed on contest with cost of Rs. 2,000/- payable by the complainant to the O.Ps. Interim orders, if any, already granted in favour of the complainant by this Commission be vacated. Complaint dismissed with costs.