C.E.S.C. Limited vs RUMA BANERJEE

THIS is an appeal arising against the impugned judgment passed by the District Forum, South 24 Parganas, Alipore. The case of the complainant before the Forum in brief is that, Smt. Ruma Banerjee (respondent herein) applied to the District Engineer, CESC for installation of a new meter in her premises at 35B, Haldarpara Road, Kalighat, Kolkata-26. But CESC issuing a letter intimated her that some outstanding dues are there in respect of the said premises. An inquiry was made by CESC authority and it was found that some outstanding dues are there in respect of the premises No. 35A, Haldarpara Road, in the name of one Katyani Devi and there were no outstanding dues in respect of 35B, Haldarpara Road where the installation of meter has been sought for. After the inspection of the meter box on 19.6.2002, no intimation has been given to her and no meter was installed. For that reason she filed the case before the Forum.

THE Forum in its judgment directed CESC to instal a new meter in her name subject to compliance of all formalities as per electricity rules, without demanding any portion of outstanding dues of one Katyani Devi from her. CESC was further directed to pay a cost of Rs. 500/- and another Rs. 500/- by way of compensation. Being dissatisfied with the above order CESC has preferred this appeal before this Commission. Learned Counsel for the appellant (CESC) submits that the respondent (Ruma Banerjee) is not a consumer according to the Consumer Protection Act. Since no contract has been entered into between the parties, expressing willingness by a mere application for getting electric connection does not entitle a person to become a consumer. The company further states that at a very preliminary stage the respondent was intimated about the outstanding dues of the premises and thereafter no processing was continued. It is submitted by the learned Advocate that on the basis of mere acceptance of the application form by the company with an intention to provide electricity, the respondent cannot claim to be a consumer. Moreover the two premises Nos. 35A and 35B, Haldarpara Road come into existence from 34, Haldarpara Road and the father-in-law of the respondent was the owner of the premises No. 35B, Haldarpara Road. The supply of electricity to 35, Haldarpara Road was enjoyed jointly by the members of Banerjee family. The amount of Rs. 26,681.92 is lying unpaid in the name of Katyani Devi of premises No. 35A, Haldarpara Road. So until and unless the outstanding dues of the premises concerned are cleared, the company is not in a position to provide new connection. So the order of the Forum is prejudicial to the interest of the appellant and it is erroneous, illegal and liable to be dismissed. The respondent did not submit any written version.

On careful perusal of all the papers we notice that the present respondent applied to the appellant for installation of a new meter in her name in the premises No. 35 B, Haldarpara Road. In response to her application it was communicated to her by the company that outstanding dues for a sum of Rs. 26,681.92 are still lying in the name of one Katyani Devi of premises No. 35A, Haldarpara Road. The company intimated the respondent that if she is interested to get new electric connection in her name, she is liable to pay the said outstanding dues. It is noted by us from the impugned judgment that the appellant had already installed three separate meters in the said premises that is 35B, Haldarpara Road in the names of three different consumers. But the appellant failed to produce any evidence that prior to those installations CESC demanded any outstanding dues from the said consumers. From the materials on record it appears that 35A, and 35B, Haldarpara Road were demarcated in the year 1946 following a partition suit. So it is not proper to claim any outstanding dues which are lying in the name of one Katyani Devi (in the premises No. 35A, Haldarpara Road) from the present respondent (in the premises No. 35B, Haldarpara Road). We are not convinced by the argument advanced by the learned Counsel for the appellant that the respondent enjoyed electricity along with Katyani Devi. We are unable to appreciate such attempt of the appellant to realise any dues of a third party from the respondent. We think that there can be not any rule to shift one''s liability upon the shoulder of another in such manner and if anybody defaults in making payment of his/her dues, CESC can take recourse to law for realisation of its dues. For that, CESC cannot approach a third person with a request to make payment for the defaulter unless there is any proof of any nexus between the two.

IN this regard Hon''ble High Court, Calcutta has specifically held in various cases, such as M/s. Balasaria Construction Pvt. Ltd. v. CESC Ltd. and Others, reported in 1996 (1) C.H.N. 15, that under the law a citizen cannot be saddled with the liability of another consumer. We have also considered the observation of the Hon''ble Supreme Court in this context in the case of M/s. Isha Marbles v. Bihar State Electricity Board and Another, reported in JT 1995 (2) SC 626, wherein the Supreme Court categorically held that in terms of Section 24 of the INdian Electricity Act, the liability of the consumer cannot be thrust upon a third party. In view of the aforesaid settled legal position, the authorities of CESC cannot demand any amount from the respondent (herein) towards the arrear dues of one Katyani Devi. In this regard we are of the opinion that CESC supplies electricity under specific agreement and separate contracts. For realisation of any dues falling under contract the remedy lies before the Civil Court and CSEC cannot claim the same from any other prospective consumer/potential user. The refusal of the appellant (CESC) to a prospective consumer/potential user on the ground of unrealised dues of other consumer is irregular.

NEXT, the question that arises for determination is, whether the respondent, after making a mere application for electric connection falls within the definition of the word ''consumer'' as defined in the Consumer Protection Act. Under Section 2(1)(d)(ii) of the Act a person is a consumer who hires any service for consideration which has been paid or promised or partly paid and partly promised. A person who applies for electric connection has to pay the necessary charges after the connection is given. Therefore, he is a person, who has hired the services of the company for consideration which is promised. So we are of the considered view that the respondent is a consumer. We also note that the word ''Service'' as defined in Section 2(1)(o) means service of any description, which is made available to potential users and includes the provision of facilities in connection with the supply of electrical or other energy. The respondent is a potential user of electricity and he is ready to pay the installation charges and hiring charges of the electricity. Therefore, in our view, she falls within the definition of the word ''consumer'' as defined in the Act. Moreover, the respondent never declined to pay the consideration money to the appellant. In this context we may refer to a judgment passed by the Pondicherry State Commission, reported in 1993 (2) CPR, 351-352, which has held that ''an applicant for electricity connection is a consumer''. This Commission has also held in its judgment, reported in III (1993) CPJ 1281, that ''a person who will pay consideration for the electricity, is a consumer''. In this context, the Hon''ble National Commission also has held in its judgment, reported in I (1993) CPJ 90 (NC) that "if no payment is made at the time of registration, it does not mean that a person getting himself registered for a gas connection with the distributor is not hiring any service". Regarding the definition of ''service,'' Their Lordships in their opinion held that it is not necessary that consideration should be paid at the time of hiring service. If the transaction is supported by consideration which has been paid or promised, or partly paid or partly promised or under any system of deferred payment even then it will be a valid consideration for the hiring of service.

HENCE ordered, the appellant is directed to take necessary steps for providing connection and supply of electrical energy to the respondent at her premises No. 35B, Haldarpara Road by installing a separate meter without claiming any payment towards the outstanding dues of Katyani Devi, subject to compliance of all necessary formalities by the respondent in respect of getting new electric connection. After completion of the required formalities excepting the payment of outstanding dues of third party as mentioned hereinbefore by the respondent, CESC shall instal new meter and provide new electrical connection to the respondent as early as possible preferably within a period of four weeks from the date of completion of all such formalities.

CONSIDERING all the circumstances we are not inclined to insist upon the appellant for payment of cost of Rs. 500/- as well as compensation of Rs. 500/- to the respondent as awarded by the Forum and accordingly we set aside this part from the order. The other part of the order will remain unaltered. Thus the appeal is allowed in part on contest. The judgment of the Forum is also affirmed in part. With the above observation the appeal is disposed of. Appeal partly allowed.