O R D E R
Sri. Santhosh Kesavanath P., President. Case of the petitioner, filed on 2..3..2009, is as follows: Petitioner is a consumer, under the opposite parties. Petitioner is conducting a cable T.V Net Work at Kuunnanthanam. Petitioner availed the electric connection under OYT Scheme on 29..1..2008, by remitting Rs. 40,000/-, for the purpose of conducting his Cable T.V Net Work. According to the petitioner said business is his sole means of livelihood Electric meter installed in the petitioners premises was damaged in lightening damaged meter was replaced on 9..5..2008. On 18..7..2008 opposite party conducted an inspection and directed petitioner to remit Rs. 53, 697/- alleging that the connected load of the -2- petitioner was beyond the sanctioned limit. According to the petitioner meter installed by the opposite party has been regularly under the inspection of the opposite parties. On 29..1..2009 opposite party conducted a site inspection in the absence of the petitioner and alleged that meter was tampered. Bill for Rs. 2,61,079/- was prepared and petitioner was instructed to remit the same. Opposite party disconnected the power supply and threatened the petitioner that petitioner would be arrested for theft of electricity. Petitioner remitted the amount demanded by the opposite party. According to the petitioner act opposite party in issuing the penal bill is a clear deficiency in service and an unfair trade practice. So, the petitioner prays for a direction to the opposite parties to refund the amount of Rs. 2,61,079/- Petitioner claims cost and compensation. Opposite party entered appearance and filed version contenting that the petition is not maintainable. According to the opposite party petitioner is not a consumer as defined under the provisions of the Consumer Protection Act. Petitioner has not availed the statutory remedies under section 126 and 145. Energy meter of the petitioner was changed on 9..5..2008. Vigilance squad of the opposite party visited the premises of the petitioner and additional unauthorized load was detected and a penal bill was issued to the petitioner. The meter of the petitioner was faulty in September 2008 and it was not intimated as alleged. Due to the huge dowfall noted by the meter reader in the consumption of the petitioner in 11/08 and 1/09 meter of the petitioner is suspected to be faulty. Asst. Engineer instructed the line man to change the meter and while doing so it -3- is realized that the meter was tampered and the petitioner was dishonestly abstracting electricity by a tampered meter. Opposite party prepared a mahazar and assessed the energy abstracted and a penal bill was issued to the petitioner for an amount of Rs. 2,61,079/-. Petitioner remitted the bill without hesitation and protest. According to the opposite party there is no deficiency in service on the part of the opposite party. So, the opposite party prays for dismissal of the petition with their costs. Points for determinations are: i) Whether petition is maintainable or not? ii) Whether there is deficiency in service on the part of the opposite party? iii) Relief and costs? Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A11 documents on the side of the petitioner and Ext. B1 and B2 documents on the side of the opposite parties. Point No. 1 According to the opposite party, petitioner is conducting commercial business and is earning huge profit so the petitioner is not a consumer. The other contention of the opposite party is that as per the decision of the Delhi High Court in Delhi Vidyut Board Vs. Devendra Singh and another reported in 1 (2006) CPJ 377 stated that dispute relating to theft dishonest abstraction of electrical energy is not a ‘consumer dispute’ and cannot form subject matter of proceedings -4- under Consumer Protection Act. So, the petition is to be dismissed. Petitioner in paragraph 9 of the petition stated that the income from the business concern is the sole means of the livelihood of the petitioner and he has no other business concern other than the cable TV Net Work. So, in our view without any contra evidence to prove that the service availed is for commercial purpose the petition is maintainable. The other question with regard to theft of electricity is discussed in Point No. 2. Point No. 2 The crux of the case of the petitioner is that opposite party had not complied Section 126 (i), 126 (ii) and other provisions of the electricity act in serving disputed bill. . According to the petitioner the counter mechanism of an electronic meter cannot be wound back petitioner produced the bill dtd: 10..11..2008 the bill is marked as Ext. A10. In Ext. A10 the meter reading as on 10..11..2008 is shown as 13976. Mahazar prepared by the opposite party is produced and marked as Ext. B1 . Ext. B1 is prepared as per the inspection on 21..1..2009. The meter reading on that date is also 13976 . Petitioner averred in his affidavit that counter of the electronic meter cannot be wound back and opposite parties failed to establish that such a manipulation was possible. Counsel for the opposite party vehemently argued that it is hard to believe that the petitioner turned the counter back According to the opposite party petitioner had committed theft of electricity. Section 135 defines theft of electricity. Section 135 states that who ever dishonestly : -5- a) taps, makes or causes to be made any connection with overhead * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * b) tampers a meter, installs or uses a tampered meter, current reversing transformer , loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted; or c) damages or destroys an electric meter, apparatus, equipment, * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * d) Uses electricity through a tampered meter; or * * * * * * * * * * * e) Uses electricity for the purpose other than for which the usage of electricity was authorized .............. Sub Section (ii) of the section 135 of Electricity Act states that provided that if it is proved that any artificial means or means not authorized by the Board or licensee or supplier, as the case may be, exist for the abstraction, consumption or use of electricity by the consumer, it shall be presumed, until the contrary is proved, that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer. Opposite party produced a mahazar prepared by the opposite party dtd: 29..1..2009 said document is marked as Ext. B2 . In Ext. B2 it is stated that the meter attached to the petitioners premises was seen tampered. Petitioner has not adduced any contra evidence to disprove the allegation of opposite party. So, as per the -6- section (ii) of the priviso to section 135 it can be presumed that the petitioner had abstracted the energy dishonestly. Regulation governing the electricity Act section 135 is regulation 52 of KSEB terms and conditions of supply 2005. The compounding and estimation of the value are come within the purview of regulation 52(5) (1) of the KSE Board terms and conditions of the supply 2005. It states that where it is prima-facie established to the satisfaction of the authorized Engineer of the board that the consumer or his agent, servant etc. committed / is committing an offence in terms of section 135 of the act such Engineer of the licence shall estimate the value of electricity abstracted for a period of six months or such other period at the relevant penal tariff applicable S 135 (v) (ii) states that in addition to any criminal proceedings that may be instituted under the provisions of the act. Under regulation 52 5 (vi) on payment of such money any person or consumer, if in custody in connection with that offence shall be discharged forthwith and no other proceedings shall be instituted or continued against such consumer or person in any criminal court. Further more as per regulation 52 (v) (vii) the acceptance of the money for compounding of an offence shall be deemed to acquittal with in the meaning of Section 300 of the Code of Criminal Procedure 1973. The compounding of an offence shall be allowed only in respect of first offence committed by any person or consumer. So, from the regulation discussed above in our view it is obligatory on the part of the opposite party to compound the offence under section 135 after receiving -7- the penal bill and compounding charges and to exonerate the consumer from criminal proceedings under the act if the consumer is willing to do so. The petitioner availed the opportunity to compound the offence amounting to an acquittal under section 300 of Cr.P.C. Now the petitioner is estopped from taking a contention that the opposite party has not complied section 126 (i) (ii) of Electricity Act 2003. In our view there is no deficiency in service on the part of the opposite party. Point No. 2 is found accordingly. Point No. 3 In view of finding in point No.1 & 2, petition is dismissed. Considering the facts and circumstances of the case there is no order as to cost. Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 21st day of June, 2010. Sri. Santhosh Kesavanath P. President Sd/- Sri. K.N. Radhakrishnan, Member Sd/- APPENDIX Documents of the Petitioner Ext. A1: Copy of bill Dtd: 19..2..2008 Ext. A2: Copy of letter dtd: 4..9..2008 Ext. A3: Receipt Dtd: 30..1..2008 Ext. A4: Copy of bill Dtd: 9..5..2008 Ext. A5: Copy of bill Dtd: 9..5..2008 Ext. A6: Copy of bill Dtd: 7..1..2009 Ext. A7: Copy of Bill Dtd: 3..3..2009 Ext. A8: Copy of bill Dtd: 15..4..2009 Ext. A9: Copy of bill Dtd: 12..5..2005 Ext. A10 Copy of bill Dtd: 10..11..2008 Ext. A11: Copy of bill Dtd: 6..9..2008 Documents for the Opposite party Ext. B1: Copy of meter reading register Ext. B2: Copy of the site mahazar with calculation. By Order, Senior Superintendent
| | HONORABLE Bindhu M Thomas, Member | HONORABLE Santhosh Kesava Nath P, PRESIDENT | HONORABLE K.N Radhakrishnan, Member | | 
