BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 31st August 2009
COMPLAINT NO.13/2009
(Admitted on 03.02.2009)
PRESENT:
1. Smt. Asha Shetty, B.A. L.L.B., President
2. Sri. K. Ramachandra, Member
BETWEEN:
Faluluddin,
So. Ismail,
RA. Henthar House,
Koila Village, Puttur Taluk,
Dakshina Kannada. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Sanjay D)
VERSUS
1. Assistant Executive Engineer,
MESCOM,
Puttur Sub Division,
Puttur, Dakshina Kannada.
2. Assistant Executive Engineer,
KPTCL, Vigilance Squad,
Attavar, Mangalore,
Dakshina Kannada. ……. OPPOSITE PARTIES
(Advocate for the Opposite Parties: Sri.S.M.Bhat).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
It is submitted that, the Complainant is the consumer of UDY-IP-2515 with a S.L. of 5 HP. The power connection was granted by the 1st Opposite Party for his agricultural pumpset. The Complainant is using the above power connection exclusively for the agricultural purposes. On 16.10.2007 the 2nd Opposite Party conducted a raid on IP No.279 and seized the meter, wire and supporting equipment of the Complainant’s agricultural pumpset No.UDY-IP No.2515. At the time of seizure of the above equipment nobody was present to witness the seizure. Thereafter the 2nd Opposite Party has issued letter dated 16.10.2007 to the Complainant stating that the Complainant committed theft of power from IP No.279 and the same is used for construction of house of the young brother of the Complainant. Thereafter the 1st Opposite Party has issued a bill dated 27.10.2007 for Rs.74,359/- to the Complainant. It is submitted that since the matter was seized by the Hon’ble Session Judge Mangalore the Complainant did not file objection to the bill and after waiting sufficient time the Complainant addressed letter dated 8.7.2008 to the 1st Opposite Party to re-connect the power supply to his IP set and subsequently caused legal notice dated 31.10.2008 to the Opposite Parties to restore the power connection but the Opposite Parties failed to do the same.
It is further submitted that IP No.279 does not belong to the Complainant. As per the letter dated 5.11.2007 of the 1st Opposite Party IP No.279 belongs to one Mahadeva Saralaya of Belthangady Taluk and it does not come within the jurisdiction of 1st Opposite Party. It is submitted that 2nd Opposite Party has no right whatsoever to seize the meter, wire and supporting equipment of the Complainant and further submitted that the Complainant has not been furnished with the spot inspection report, mahazar, seizure mahazar and statement of the party. The Opposite Parties have failed to follow the procedure.
It is further submitted that the house of the Complainant’s brother Mr.Badruddin is situated 200 meters away from the pumpshed of the Complainant, the Complainant never committed any theft of the power of construction of his brother’s house. The construction work is done by the wife of the Complainant’s brother. The power cannot be theft to a distance of 200 meters and the allegation as well as the bill dated 27.10.2007 has no basis and bad under law. It is contended that the 1st Opposite Party is duty bound to restore the power supply to the IP pumpset. On failure to do the same amounts to deficiency and hence the above complaint is filed by the Complainant before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to declare that bill dated 27.10.2007 is null and void and also prayed for directing the Opposite Parties to restore power connection to IP No.2515 and further Rs.5,90,000/- claimed as compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version and submitted that the Complainant is the consumer of IP 2515 with a SL of 5 HP. The Complainant was using the power for construction purpose at the time of Vigilance Raid and a case was registered against the Complainant. At the time of raid the Opposite Parties have seized the meter, wire pertaining to IP No.2515 due to the reason that there was theft of electricity in the said RR number and the case was booked as per section 135, 138 of Electricity Act. The mahazar was done on the spot and contended that the Complainant’s brother house is 200 meters away from the pumpshed. The electricity was used for the construction work of the building situated nearly 70 meters away from the IP No.2515. Since the power was stolen for the purpose of construction of the new built house, as per the regulations the 1st Opposite Party charged the bill and contended that there is no deficiency in service and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.Faluluddin (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. One Sri.Abdul Esak (CW2) – witness of the Complainant filed affidavit on behalf of the Complainant and answered the interrogatories served on him. Ex C1 to C8 were marked for the Complainant as listed in the annexure. One Mr.Mohandas K.N. (RW1), Assistant Executive Engineer of the Opposite Parties filed counter affidavit and answered the interrogatories served on him. Ex R1 to R9 were marked for the Opposite Parties as listed in the annexure. Both parties produced notes of arguments along with citations and regulations.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
In the present case, the facts which are not in dispute is that the Complainant is the consumer of agricultural pump set UDY-IP-2515 with a SL of 5 HP. The said pumpset sanctioned for agricultural purposes only.
The grievances of the Complainant is that, the 2nd Opposite Party raided and seized the meter, wire and supporting equipments of the Complainant’s agricultural pumpset i.e., IP No.2515. At the time of seizure of the above equipments nobody was present to witness the seizure and thereafter the 2nd Opposite Party issued a letter dated 16.10.2007 stating that the Complainant committed theft from IP No.279 and the same is used for construction of house of the younger brother of the Complainant and registered a case in crime No.136/2007 before the Hon’ble Session Judge, Mangalore and the 1st Opposite Party has issued bill dated 27.10.2007 for Rs.74,359/-. It is contended that the Opposite Parties disconnected the power without issuing any notice and the Complainant not committed any theft or used any unauthorized power, the IP No.279 does not belong to the Complainant and the equipments were seized in the absence of the Complainant and no spot inspection report, mahazar, seizure mahazar and the statement of the party is taken. The procedure adopted by the Opposite Parties are bad in law and the Complainant not liable to pay any amount as alleged by the Opposite Parties and prayed for restore of the power to the IP No.2515 and contended that the service rendered by the Opposite Parties amounts to deficiency.
On the contrary, the Opposite Parties contended that the Complainant was using the power for construction purpose at the time of Vigilance raid and a case was booked against the Complainant and as per the procedure they have conducted the raid and charged Rs.74,359/- and contended that the Complainant committed theft of the power in IP No.2515.
It could be seen that the Complainant produced Ex C1 to C8 and led evidence in order to substantiate his case. The Opposite Parties also led evidence and produced Ex R1 to R9.
Now the point for consideration is that whether the Opposite Parties justified that the Complainant committed theft of the power to construct a new house of the younger brother through his IP No.2515 and the bill issued by them is justified? Since it is admitted that the Complainant is using the above power connection exclusively for agricultural purposes, it is the bounden duty of the Opposite Parties to prove before the FORA that on 16.10.2007 the Opposite Party conducted raid on IP No.2515 and seized the meter, wire and supporting equipment of the Complainant’s agricultural pumpset and at the time of seizure of the above equipments the Complainant was unauthorizedly using the power and the procedure adopted by them is correct and not deficient.
In order to substantiate the above points the Opposite Parties produced Ex R1 to R9. We have perused the above documentary evidence as well as the oral evidence. Before discussing the points on merits it is worthwhile to reproduce section 42.05 of the Electricity Supply and Distribution Code and also Code No.42.06 of the Electricity Supply and Distribution Code.
42.5: Unauthorized extension of supply:
(Applicable to both HT and LT Installations).
“If at any time energy supplied to a consumer/premises is found extended unauthorisedly to some other person/premises the installation will be disconnected forthwith. The installation shall be reconnected only after unauthorized extension of supply is removed and reported by the consumer. Further the jurisdictional Engineer of the Licensee in charge of distribution, shall assess the quantum of energy and excess load so extended and charge of that quantum for such period as may be deemed justified in the circumstances of any given case subject to a maximum period of 6 months, at twice the normal rate of tariff applicable for a purpose for which the energy is so extended. Such amount shall be paid within 30 days from the date of claim, failing which the installation shall be disconnected, and such amount shall be deemed to be arrears of electricity charges”.
42.6: Dishonest abstraction/use/consumption of electricity or interference with the metering equipment or accessories:
a) Where it is prima-facie established to the satisfaction of the authorized Engineer of the Licensee that the Consumer or his agent, servant etc. has committed/is committing an offence in terms of section 39 (theft of energy), 44 (interference with meters, etc) or of any other provision of the I.E.Act 1910 or this Code, such Engineer of the Licensee shall estimate the value of the electricity thus abstracted, used or wasted or diverted, in accordance with the calculation table as noted hereunder, for a period of six months or for such other period as may be deemed justified in the circumstance of any given case at thrice the rate of tariff applicable to the purpose for which the energy is abstracted, used or consumed or wasted or diverted, which ever is higher and demand and collect the same by including the same in the next bill or in a separate bill. Such amount shall be deemed to be arrears of electricity charges.
b) ………………………
c) Where any consumer or his agent or servant, etc. is/was found committing any of the offences mentioned above, Licensee reserves the right to disconnect the installation forthwith and without notice. However, the supply may be restored at the discretion of the Licensee if the consumer pays the penal charges demanded and takes such other action as may be directed by the Licensee.
d) …………………..
e) In case of prejudicial use of power supply under Sections 42.01, 42.02, 42.05, 42.06, the Licensee should draw mahazar at the time of inspection when such prejudicial use is detected. The mahazar shall be drawn in the presence of the Consumer or his representative along with two other witnesses who shall sign the mahazar report. One copy of such report shall be handed over under acknowledgement of the consumer or his representative.
It is significant to note that the Electricity Supply and Distribution Code 42.6 sub code (e) made it clear that the licensee should drawn the mahazar at the time of inspection and shall be drawn in the presence of the consumer along with two other witnesses. But no such mahazar was produced before this FORA to show that the licensee drawn the mahazar and the same has been drawn in the presence of the consumer herein the Complainant. Further our attention was drawn towards the interrogatories served by the Complainant. The question No.9, 10, 11 the Opposite Parties stated that the mahazar report is produced before the FORA. But none of the mahazar report available on record. The several correspondences between the AEE Vigilance Mangalore to AEE MESCOM Puttur but no mahazar was drawn as per the code 42.6 (e) of the Act. The correspondences i.e., Ex R4 to R6 reveal that on 16.10.2007 the Opposite Party conducted raid on IP No.2515 and seized the meter, wire and supporting equipments of the Complainant’s agricultural pumpset and at the time of the seizure of the above equipment the Complainant was unauthorizedly using the power. When such being the allegations, it is the duty of the Opposite Parties to draw a mahazar by following the procedure prescribed under the Act. In the absence of any mahazar drawn by the Opposite Parties as per the provision contemplated under the Act it cannot be attributed that the Complainant committed theft of the power or otherwise. The Act is very clear that the mahazar should be drawn and the said mahazar shall be drawn in the presence of the consumer with two witnesses. The witnesses should be independent. But in the given case the Opposite Parties not examined any witnesses who signed the mahazar before this FORA in order to substantiate the case of the Opposite Parties. And further none of the documents as well as the oral evidence reveal that the Opposite Parties have recorded the quantum of energy if at all illegally used by the Complainant. Because the answer to the interrogatories by the Opposite Party stated that the basis for fixing the back billing period to four months three days. The Opposite Parties stated that the same is applicable to Accounting Section MESCOM Puttur. The Accounts Officer who made the back billing not examined before the FORA. It is mandate to record the quantum of energy alleged to have been improperly used. In the absence of any credible evidence one can presume that the back billing is fixed without any basis in the given case. Further the Section 135 of Electricity Act 2003 at sub-section (2) says the Opposite Party shall seize all the devices used for the theft of power. The sub section (3) says in case of seizure one person shall be present and a list of all seized things shall be prepared and delivered to such person who shall sign it but in the given case no such seizure was made by the Opposite Parties.
Apart from the above, we have perused the Ex C6 i.e., the construction agreement of the Complainant brother’s wife with Abdul Esak. The Complainant examined Abdul Esak i.e., the engineer who has undertaken to construct the residence of the Complainant’s brother he has deposed that for the construction work he has used generator. When the documentary evidence is produced before the FORA reveals that to construct a new house of the Complainant’s brother they have used generator and not taken the power connection from the Complainant’s pumpset. If at all the Complainant committed any offence/ theft of power as alleged by the Opposite Parties, the Opposite Parties would have investigated the matter as per the provisions laid under the Act.
The learned counsel for the Complainant has relied upon two decisions of the Karnataka High Court they are:-
- Southern Steelmet and Alloys Ltd. Bangalore versus Karnataka Electricity Board Bangalore and another: AIR 1991 Karnataka 267.
2) K.Ramanjaneyalu vs. Assistant Executive Engineer (Electrical), Karnataka Electricity Board, Bellary and others: 1999 (5) Karnataka Law Journal 40.
Both these decisions laid down that in so far as back billing for improper use of energy or theft of energy is concerned, the principles of natural justice has to be followed and reasonable opportunity of hearing should be -given to the consumer. The Hon’ble High Court in those decisions has held that it is mandatory to record quantum of energy alleged to have been used improperly and the period in which improper use relates.
Similarly in the present case, how they have recorded quantum of energy is not forthcoming it shows that proper investigation was not done to arrive at a conclusion and demand the bill under theft.
It is the case of the Complainant that he had not made use of the unauthorized power supply. It appears that the bill issued by the Opposite Parties is nothing but arbitrary and there is a prima facie deficiency of service committed by the Opposite Parties in levying an arbitrary amount and the Opposite Parties miserably failed to prove their contention. We therefore conclude that the Opposite Parties committed deficiency in service without conducting proper investigation and they have arrived rough estimation of bill hence we set aside the demand of Rs.74,359/- made against the Complainant. And further the Opposite Party is hereby directed to restore the power supply to the UDY–IP- 2515 of the Complainant. And further we award compensation of Rs.3,000/- for deficiency of service and Rs.1,000/- by way of cost of litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The demand of Rs.74,359/-(Rupees seventy four thousand three hundred and fifty nine only) made against the Complainant is set aside and the Opposite Party is hereby directed to restore the power supply to the UDY–IP-2515 of the Complainant. And further Rs.3,000/- (Rupees three thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses to the Complainant. Compliance/payment shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31st day of August 2009.)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SRI. K.RAMACHANDRA)
APPENDIX
Witnesses examined on behalf of the Complainant:
CW1 – Sri.Faluluddin – Complainant.
CW2 – Sri.Abdul Esak – witness of the Complainant.
Documents marked on behalf of the Complainant:
Ex C1 – 04.04.2006: Copy of the wiring completion work report.
Ex C2 – 16.10.2007: Notice issued by the 2nd Opposite Party.
Ex C3 – 27.10.2007: Bill issued by the 1st Opposite Party.
Ex C4 – 05.11.2007: Information furnished by the 1st Opposite Party.
Ex C5 – 08.07.2008: Personal notice issued by the Complainant to the 1st Opposite Party with postal receipt.
Ex C6 – 26.08.2007: Copy of the construction agreement entered between Smt.Nabeesa and Abdul Isak.
Ex C7 – 31.10.2008: Copy of the legal notice issued to the Opposite Parties.
Ex C8 – 03.11.2008: Postal acknowledgement (2 in numbers).
Witnesses examined on behalf of the Opposite Parties:
RW1 – Mr.Mohandas K.N., Assistant Executive Engineer of the Opposite Parties.
Documents marked on behalf of the Opposite Parties:
Ex R1 – 21.02.2009: Certification letter of the Opposite Party.
Ex R2 – 21.03.2006: Attested copy of sanction letter.
Ex R3 – 04.04.2006: Attested copy of completion report.
Ex R4 – 16.10.2007: Attested copy of letter issued by AEE, Vigilance, Mangalore to AEE Mescom Puttur.
Ex R5 – 23.10.2007: Attested copy of letter issued by AEE, Vigilance, Mangalore to AEE Mescom Puttur.
Ex R6 – 26.10.2007: Attested copy of letter issued by AEE, Vigilance, Mangalore to AEE Mescom Puttur.
Ex R7 – 27.10.2007: Attested copy of bill issued to the Complainant.
Ex R8 – 29.12.2008: Attested copy of reply notice issued by the Opposite Party to the Complainant’s advocate.
Ex R9 – 08.07.2008: Attested copy of letter from Complainant to Opposite Party.
Dated:31.08.2009 PRESIDENT
