O R D E R
Per Sri A.Prabhakar Gupta, Member:-
This complaint is filed U/s 12 of Consumer Protection Act, Seeking directions to set aside the assessment order vide Case No.DPE/TENL/TNLR1/2038/13 FOR Rs.64,062/- and issue correct average bill to the complainant, and pay Rs.20,000/- for mental agony, compensation and legal expenses.
2. In brief the averments of the complaint are here under:
The factual matrix of the case is that the present complainant is the permanent resident of Vallabhapuram village of Guntur District and he is a farmer. The complainant is having electricity service connection under Sc.No.1212223001148 for his residence which is having the nature of domestic and falls under the category-1. Both the wife and husband are only living in the said house since their children were settled at else where. For his residential house the complainant consuming the power with which rising bill from 600 to 700 per month. Further, the complainant’s wife also having another electricity service connection under Sc.No.121223002184 which is meant for commercial purpose and false under category – LT2. The said connection is being used by her for her mini water plant. While that is so, on 12-01-13 the A.D.E, DPE – II by name V.Srinivasaray, who belongs to the Electricity Department, inspected the locality of the complainant. At the time of his inspection he observed that meter of residential connection not showing any display even though lights and fans were in running position. Further, it is observed that the complainant is having both connections with motor which is connected to domestic purpose for his residence. There is no connection to the water plant from the domestic solution. On his inspection the said officer i.e., Assistant Divisional Engineer , Tenali rural – I assessed the connection from 13-01-12 to 13-01-13 and arrived consumption for amount of Rs.64,062/- and warned the complainant for disconnection subject to payment of Rs.7,000/- as compounding fine. As there is no other go the complainant paid the said amount of Rs.7,000/-. Further the complainant mentioned that the A.D.E., observation with regard to appliance in the premises are totally false and stereo typed proforma issued by the A.D.E. of incorrect aspects. As the assessment of the A.D.E. who is one of the opposite party’s Official is totally wrong and collected the compounding fine, falls under deficiency of service. Further, the inspected officer not taken the previous bills into consideration while making assessment. Hence the present complaint is being filed for grant of reliefs as prayed for.
3. Opposite party filed its version which is in brief as follows.
In reply to the complaint, the opposite party filed its version denying all the allegations of the complaint. The opposite party specifically mentioned with regard to the facts of the observations at the time of inspection. The Officer who made inspection found that meter not showing any display even though lights and fans were in running position, water motor is working, removed the cut out fuse supply off, reinserted the cut out fuse and lights were functioning. Further observed the polarity at meter after opening the terminal cover and found all are showing phase supply. The meter connections found that neutral incoming supply wire was dishonestly connected to fuse carrier provided in the main switch board and its fuse is not having fuse wire. So, fuse out going supply directly connected to load also to meter at 3rd terminal. But only isolated wire with tape to incoming neutral wire was connected to 2nd terminal of neutral. On these points he concern activity of bypass the meter and consumption and so he confirmed the acts of the complainant as theft of energy U/s.135 of Electricity Act, 2003. Subsequently, basing on the inspection report the A.D.E. issued provisional assessment notice dated 30-01-13 in which they have provisionally assessed the electricity charges due to the company in accordance with assessment rules and regulations at Rs.63,062/-along with data sheet. After that the A.D.E. asked the complainant to pay half of the assessment amount as if the consumer desires to continue the supply of electricity in the notice. But the complainant failed to pay the required amount till today and so the service connection was disconnected. However complainant paid the compounding fee of Rs.7,000/- on 22-01-13 duly admitting his guilty of offense. The every allegation of the complainant with regard to the appliance of the house and previous bills are all denied by the opposite party. As there is no deficiency of service on their part and as the complainant committed theft of energy and they issued provisional assessment which made in proper line, he prayed this Forum to dismiss the complaint.
4. The complainant and the opposite party filed their affidavits in support of their contentions. To prove the case, Exs.A-1 to A-6 marked on behalf of the complainant and Exs.B-1 to B-4 were marked on behalf of opposite party.
5. Now the points for consideration.
1. Whether the complaint is maintainable before this Forum in view of
latest authorities?
2. Whether there is deficiency of service on the part of opposite
party?
3. To what relief?
6. POINT NO.1:- The learned counsel for the complainant argued that the complainant is an illiterate and being a farmer he is not having much knowledge over the present Acts and Rules. The inspection report and the provisional assessment order are with all false allegations and assessed with baseless amount. Even the inspecting officer did not consider the previous bills of the complainant’s service connection and made assessment as he likes. In fact there is no theft of energy by the complainant. Further, the version of the opposite party’s is created one. Hence he prayed this Forum for grant of reliefs as prayed for.
7. The learned counsel for the opposite party argued that as the inspecting officer is not a relative to the complainant and belongs to the department, so there no necessity to create false allegations against the complainant. Further he argued that the inspection report which was marked as Ex.A-5 clearly containing signature of the complainant admitting the facts of the inspection report which were prepared in the presence of complainant and mediators. Further, he argued that the complainant paid the compounding fine of Rs.7,000/- admitting his guilty of offense. So, question of deficiency in service does not arise and the present complaint itself is liable for dismissal.
8. With the above discussion it is observed that by paying compound fee of Rs.7,000/- the complainant had an advantage of non prosecution. Having availed such advantage the petitioner cannot contend prima facie that the contents of inspection report were without his knowledge. The complainant cannot blow hot and cold at the same breath.
Even other wise Hon’ble Supreme Court in a case,
U.P.Power Corporation Ltd Vs Anis Ahmed & Others (C.A.5466/2012 decided on 01-07-13 by Supreme Court) held
(i) In case of inconsistency between the Electricity Act, 2003 and the Consumer Protection Act, 1986, the provisions of Consumer Protection Act will prevail, but ipso facto it will not vest the Consumer Forum with the power to redress any dispute with regard to the matters which do not come within the meaning of "service" as defined under Section 2(1)(o) or "complaint” as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.
(ii) A "complaint" against the assessment made by assessing officer under Section 126 or against the offences committed under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before a Consumer Forum.
(iii) The Electricity Act, 2003 and the Consumer Protection Act, 1986 runs parallel for giving redressal to any person, who falls within the meaning of "consumer" under Section 2(1)(d) of the Consumer Protection Act, 1986 or the Central Government or the State Government or association of consumers but it is limited to the dispute relating to "unfair trade practice" or a "restrictive trade practice adopted by the service provider"; or "if the consumer suffers from deficiency in service"; or "hazardous service"; or "the service provider has charged a price in excess of the price fixed by or under any law".
For the reasons as mentioned above, we have no hesitation in setting aside the orders passed by the National Commission. They are accordingly set aside. All the appeals filed by the service provider-licensee are allowed, however, no order as to costs.
9. The facts of the present case also pertaining to the case of Electricity Act. In view of the above decision this Forum is not having any hesitation to say that the present complaint is not maintainable before consumer Foras.
10. POINT NOs. 2&3:- As the point No.1 is decided in favour of opposite party. There is no necessity to discuss with regard to point Nos.2&3.
11. In the result the complaint is dismissed without costs.
Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 15th day of July, 2013.
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MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
DOCUMENTS MARKED
For Complainant:
Ex.Nos. |
DATE |
DESCRIPTION OF DOCUMENTS |
A1 |
30-01-13 |
Provisional Assessment Notice for theft electricity. (Original) |
A2 |
16-01-13 |
Assessment calculation. (Original) |
A3 |
|
Copies of previous electricity bills in No.16. |
A4 |
|
Copy of Aadhar Card. |
A5 |
|
Copy of ration card. |
A6 |
22-01-13 |
Copy of payment receipt for Rs.7,000/- |
For opposite parties: -
Ex.Nos. |
DATE |
DESCRIPTION OF DOCUMENTS |
B1 |
12-01-13 |
Copy of inspection notes. |
B2 |
12-01-13 |
Copy of mediator nama with sketch. |
B3 |
30-01-13 |
Copy of Provisional Assessment Notice for theft electricity along with inspection report. |
B4 |
16-01-13 |
Copy of assessment calculation. |
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PRESIDENT
