BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 29th of October 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.63/2010
(Admitted on 20.02.2010)
Mr. H.Mahammad,
So. Late Ibrahim,
Aged about 55 years,
Rat Enthar 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
K.P.T.C.L. Vigilance Squad,
Attavar, Mangalore. ……. OPPOSITE PARTIES
(Advocate for the Opposite Parties: Sri.S.M. Bhat).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant is a farmer and is the consumer of the electricity power as per meter No.UDY IP 1713 of 5 H.P. for agricultural purposes from 05.08.2000. The average bill of the above agricultural pump is Rs.300/- per H.P. The total amount that the Complainant has to pay per year is Rs.1,500/-. There is no due whatsoever by the Complainant. It is stated that, the above meter is exclusively used for agricultural purposes.
When the matter stood thus, the 2nd Opposite Party has conducted the inspection of the Complainant’s agricultural meter No.1713 on 05.04.2008 and prepared the letter dated 05.04.2008 stating that the Complainant has committed theft of electricity by breaking front glass of the meter and by inserting a piece of wood into the meter. Thereafter, the 2nd Opposite Party has disconnected the power supply and seized the wire and other equipments. The 1st Opposite Party sent the bill dated 16.04.2008 for Rs.39,009/- to the Complainant to be payable within 30 days for that, the Complainant has sent the objection dated 22.04.2008 to the 1st Opposite Party to reconsider the bill. Thereafter, the Complainant once again addressed letter dated 06.06.2008 to the Chief Executive Engineer Mangalore that he has not committed theft of electricity and sought for restoring of the power connection. Thereafter, the Complainant has received a summons from the Session Court in crime No.44/2008 and the above case is still pending.
It is stated that, the Opposite Party has no right to disconnect the power supply. The power can be disconnected only after thorough enquiry. The Opposite Party did not conduct any enquiry after the receipt of the objections from the Complainant. The 1st Opposite Party should have given 15 days time to file objection but the bill dated 16.04.2008 gave only 7 days to file objection. Further the bill dated 16.04.2008 does not give the quantum of energy extracted by the Complainant. As per the publication of the 1st Opposite Party, the Complainant has to pay Rs.1,500/- per year for 5 H.P agricultural power connection. The above amount is fixed by the Government irrespective of power consumption by the agricultural pump set. It is stated that, the bill issued by the Opposite Party is not justifiable and disconnection of the power by the Opposite Party is illegal and contended that the act of the Opposite Parties amounts to deficiency in service and filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to declare that the bill dated 16.04.2008 for Rs.39,009/- is null and void and consequently to restore power connection to meter No.UDY IP 1713 and also claimed Rs.1,20,000/- 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 stated that, on 05.03.2008 when the Opposite Party raided the meter No.UDY IP 1713, the Complainant broke the front glass of the meter and made a hole and inserted a thin stick and controlled the movement of the meter. Because of the above said act, the power consumed by the Complainant by way of units were hided, thereby the Complainant committed a criminal offence. The complaint was registered under Crime No.44/2008 which is pending before the Session Court Mangalore. As per Section 42.06 the bill was prepared for Rs.29,009/- and penalty of Rs.10,000/- and sent a notice to the Complainant calling upon him to file objection within 7 days. The Complainant filed an objection dated 03.06.2008 and the matter was referred before the Appellate Authority, no such appeal was preferred by the Complainant. As per the Electricity Act, if the parties committed theft the Opposite Party has got every right to disconnect the power supply and seize the meter and contended that there was no deficiency 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.H.Mahammad (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C7 were marked for the Complainant as listed in the annexure. One Sri.Lohith B.S. (RW1), Assistant Executive Engineer of the Opposite Party and one Mr.Mohandas K.N. (RW2) Assistant Executive Engineer, MESCOM, Bantwal – Summoned witness of the Opposite Party filed counter affidavits and answered the interrogatories served on them. Ex R1 to R3 were marked for the Opposite Parties as listed in the annexure. Both parties produced notes of arguments along with citations.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Negative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
In the instant case, it is admitted that, the Complainant is a farmer and consumer of electricity power as per meter No.UDY IP 1713 of 5 H.P for agricultural purposes from 05.08.2000.
Now the point in dispute between the parties before this Forum is that, the 2nd Opposite Party has conducted inspection of the Complainant’s agricultural meter No.UDY 1713 on 05.03.2008, at that time the Opposite Parties found that the Complainant has committed theft of electricity by breaking the front glass of the meter and made a hole and inserted a piece of stick and prevented the meter movement in order to steal the electrical power consumption. The Opposite Parties as per KERC Code 135/138/ 2003, Rule 42.06 prepared a bill and issued to the Complainant and also put Rs.10,000/- as penalty and called upon the Complainant to file an objection within 7 days. The Complainant filed objection and the criminal case is pending before the Session Court, Mangalore.
Now the allegation of the Complainant is that, according to the Complainant, he had not committed any theft of the electricity and the objection filed by the Complainant was not considered and the Opposite Party on 02.05.2008 issued a reply stating that, the Complainant has to pay the bill amount within 30 days and in the meantime the Complainant received a notice from the Session Court in crime No.44/2008 and the case is still pending before the Session Court Mangalore. It is submitted that, the 2nd Opposite Party has disconnected the power supply to the agricultural pumpset without proving the theft committed by him and contended that 1st Opposite Party did not conduct any enquiry after receipt of the objection from the Complainant. The bill dated 16.04.2008 i.e., Ex C3 does not give the quantum of energy extracted by the Complainant and further submitted that, as per the publications of the 1st Opposite Party, the Complainant has to pay Rs.1,500/- per year for 5 H.P. agricultural power connection. Even if less units are consumed or more units are consumed, the Complainant has to pay only Rs.1,500/- per year and contended that the Opposite Party committed deficiency and the bill issued by them is not correct.
On the contrary, the Opposite Party contended that, the Complainant at the time of investigation by the Opposite Parties’ Vigilance Department, the Complainant committed theft of the power supply by breaking the meter and the criminal case has been filed against him and as per the Electricity Act, 2003 and also as per the Code 135, 138 and Rule 42.06 the bill and the action taken by the Opposite Parties are proper and correct.
However, the Complainant filed affidavit and also produced Ex C1 to C7 and Opposite Parties also filed affidavit and produced Ex R1 to R3.
On scrutiny of the oral as well as documentary evidence available on record, we find that, the Complainant is a consumer of electricity power supplied by the Opposite Party as per meter No.UDY IP 1713. The Ex C2 is the letter dated 05.04.2008 issued by the 2nd Opposite Party to the Complainant, wherein, it reveals that, the Complainant has committed theft of the electricity power by breaking the meter and inserting a stick in order to hide the consumption of the power and thereby the Opposite Parties registered a case against him under Section 135, 138 of the Electricity Act, 2003 in crime No.44/2008 on the file of the Session Court Mangalore and issued a notice. The Ex C3 is the bill issued by the Opposite Party along with penalty called upon the Complainant to pay Rs.39,009/- within 30 days. The matter involved in this case is pending before the Session Court in Crime No.44/2008 with regard to the theft committed by the Complainant. That means, the subject dispute involved in this case is with regard to the theft of the electricity/unauthorized use of the electricity. It is not possible to agree with the Complainant for no reasons than one. The Complainant is seriously denying the allegation of theft and it is not possible to assume the accusation as correct without a full pledged trial on this issue. The allegations of theft are true or not have to be examined and decided in an appropriate proceedings and not by filing a complaint under deficiency of service before this Forum. Hence in our view, the complaint filed by the Complainant cannot be entertained for the reasons stated above. Therefore, the complaint filed by the Complainant is hereby dismissed. No order as to costs.
6. In the result, we pass the following:
ORDER
The complaint is dismissed. No order as to costs.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 9 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 29th day of October 2010.)
PRESIDENT
MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri.H.Mahammad – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 05.8.2000: Copy of the sanction letter.
Ex C2 – 05.04.2008: Copy of the letter prepared by 2nd Opposite Party.
Ex C3 – 16.04.2008: Original bill issued by 1st Opposite Party.
Ex C4 – 22.04.2008: Objection filed by the Complainant.
Ex C5 – 02.05.2008: Reply of the 1st Opposite Party.
Ex C6 – 06.06.2008: Letter addressed by Complainant to the Chief Engineer.
Ex C7 – 30.01.2001: Copy of the publication given by the KPTCL.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Sri.Lohith B.S, Assistant Executive Engineer of the Opposite Party.
RW2 – Mr.Mohandas K.N., Assistant Executive Engineer, MESCOM, Bantwal – Summoned witness of the Opposite Party.
Documents produced on behalf of the Opposite Parties:
Ex R1 – 01.03.2010: Letter of the Opposite Party to the Complainant.
Ex R2 – 05.08.2000: Final report of the wiring contractor and test report.
Ex R3 – 05.03.2008: Letter of the Asst. Executive Engineer (Ele)., Mescom, Vigilance squad Police Station to the 1st Opposite Party.
Documents produced by the Opposite Parties:
1) 09.06.2008: Letter of the Opposite Party No.1’s L.T. Rating Section to the Opposite Party No.2.
2) 05.04.2008: Letter of the RW2 to Vigilance Squad of the Opposite Party.
3) 21.04.2008: Letter of the Opposite Party No.2 to the LT Rating section of the Opposite Party No.1.
4) 08.12.2009: Summons to the witness along with attendance certificate.
Dated:29.10.2010 PRESIDENT