PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Complainant is a Proprietor of M/s. Kajol Products and he is doing business of ironing & packing garments at the Room No.60, Ground Floor, Modern Mill Chawl, B.P. Thakkar Road, Mumbai – 28. The Complainant has obtained electricity connection from the BEST and as such, he is a ‘Consumer’ of Opposite Parties as described under Sec.2(1)(d) of the Consumer Protection Act, 1986. Opposite Party No.1 is the Manager of BEST, Opposite Party No.2 is the Divisional Manager of Vigilance Department/Supply and Opposite Party No.3 is the Secretary of the BEST. The Complainant’s Consumer No. is 559/691-119.3.
2) It is submitted by the Complainant that Vigilance Department has falsely alleged that the Complainant has tampered Meter No.B-960692 and consumed electricity without showing in the meter. Opposite Party’s Officer by name Kiran S. Sarvankar, the Sub-Engineer, inspected the said meter and alleged that the Complainant has consumed electricity worth Rs.4,56,822/-. By letter dtd.29/10/03 the Complainant was called upon to make payment of Rs.4,56,822/-. The Complainant has produced copy of letter dtd.29/10/03 alongwith complaint at Exh.‘C-1’ which was send by Opposite Party. According to the Complainant, he had explain to Opposite Party that he has not tampered the said meter and further explained the factual position to the officer of the Opposite Party by letter dtd.04/11/03, but it was of no use. The officer of Opposite Party threatened the Complainant that they are going to disconnect electricity supply. In such circumstances, in order to avoid disconnection of electric supply the Complainant paid under protest approximately 40 % (Rs.1,37,000) of the amount claimed by BEST. By letter dtd.03/12/03, the Complainant sought time for further depositing money because of financial difficulties. Thereafter, the Complainant paid the bill issued by the Opposite Party which was at random but the Complainant has paid an amount of Rs.2,27,000/- to the BEST. Thereafter, electricity supply of the Complainant was restored with new meter. The Complainant lodged his complaint to BEST, Dadar Office that his meter is not working properly but his grievance was not seriously taken by the Opposite Party.
3) It is submitted that the Complainant continuously and constantly followed his grievance with the Opposite Party. The Complainant has paid 50% amount i.e. Rs.2,27,000/- as per demand of BEST Department. In fact the amount calculated at Rs.4,56,822/- by Opposite Party is wrong and excessive. The Complainant never used electricity as calculated by the Opposite Party.
4) It is submitted that Opposite Parties have with malafide intention filed Criminal Case against the Complainant before the Hon’ble M.M. Court, Dadar and the said criminal case is still pending. The Complainant had approached the Review Committee of the BEST Department for settlement of his case and refund of amount of Rs.2,27,000/-, however, no relief was granted to the Complainant.
5) It is alleged by the Complainant that the Opposite Party has illegally collected amount of Rs.2,27,000/- from him and not considering his grievance. Therefore, the Complainant has filed this complaint. It is contended that present complaint is filed within the limitation period which is prescribed under Sec.24A of the Consumer Protection Act, 1986. The Complainant has requested to declare that there is deficiency in service on the part of Opposite Parties in issuing bill dtd.23/10/03 of Rs.4,56,822/-. The Complainant has requested to direct Opposite Party to refund Rs.2,27,000/- to the Complainant and to pay Rs.2 Lacs as compensation for mental agony. The Complainant has claimed interest on aforesaid amount @ 18% p.a. till realization of the entire amount and Rs.25,000/- towards cost of this litigation.
6) The Complainant has filed affidavit in support of his complaint and copies of the documents at Exh.‘C-1 to C-5’.
7) Opposite Parties have filed their common written statement and thereby resisted claim of the Complainant contending that the Complainant has committed theft of electricity and therefore, case is registered under Sec.135 to 138 of the Electricity Act, 2003, against the Complainant in the Special Court, hence, this Forum has no jurisdiction to entertain, try and decide this complaint.
8) It is submitted by the Opposite Party that on 29/10/03, during Vigilance raid at premises of Megna Kajol Wroks/Kajol Product/Rajnikant Shah, Room No.60, Ground Floor, Modern Mill Chawl, B.P. Thakkar Road, Mumbai – 28, Meter No.B-960692 found tampered. Based on connected load of 8.0 kw. a provisional claim of Rs.4,56,822/- was preferred but the Complainant failed to deposit any amount. A Police Complaint No.1218/03 was lodged with Dadar Police Station on 29/10/03. The Complainants electric supply was disconnected by removing tampered meter.
9) The Opposite Parties have given details of payments made by the Complainant subsequent to the Vigilance raid in written statement para no.3, contending that after making aforesaid part payment the Complainants electric supply was restored by installing new meters on 06/11/03 at the premises of M/s. Megna Kajol Wroks.
10) It is submitted that after receipt of Complainant’s letter dtd.17/08/04 and 14/09/04, the Opposite Party carried out inspection on 17/01/05 and that time the meter was found working properly. It is found that position of the meter was changed due to which consumer was no billed upto March, 2005. The meter position was corrected on the folio and consumer was billed for combined 9 months in the electricity bill of May, 2005. The Opposite Party has denied the allegations that Vigilance Department has wrongly calculated amount of Rs.4,56,822/-. As the Complainant failed to make payment towards Vigilance claim, the police case was lodged. Criminal case is still pending against the Complainant before the Hon’ble Special Court and therefore, this Forum has no jurisdiction to entertain, try and decide this complaint and therefore, complaint deserves to be dismissed with cost.
11) The Complainant has filed rejoinder and thereby denied allegations made in the written statement. The Complainant has filed written argument and the Opposite Parties have also filed their common written argument. We heard oral submission of the Complainant in person and Law Officer – Shri. Raul for the Opposite Parties.
12) It is submitted on behalf of Opposite Party that the Complainant has committed theft of electricity and therefore, as per the provision of Sec.135 to 138 of the Electricity Act, 2003, the complaint is filed against the Complainant is in the Special Court and therefore, this Court has no jurisdiction to entertain the above complaint. Second ground raised by the Complainant that the Vigilance Department of the Opposite Party raided the premises of the Complainant on 29/10/03 and that time the Complainant’s meter was found tampered and therefore, original claim of Rs.4,56,822/- was preferred. Being aggrieved by the said claim, the Complainant has filed this complaint on 20/07/09. It is submitted that there is delay of more than 5 years in the filing of this complaint and therefore, complaint deserves to be dismissed as barred by law of limitation.
13) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether this Forum has jurisdiction to entertain, try and decide this complaint ?
Findings : No
Point No.2 : Whether the Complainant has proved deficiency in service on the part of Opposite Party ?
Findings : No
Point No.3 : Whether the Complainant is entitled for relief as prayed for ?
Findings : No
Reasons :-
Point No.1 :- According to the Complainant, he is a Proprietor of M/s. Kajol Products and he is carrying on business of ironing & packing garments at Room No.60, Ground Floor, Modern Mill Chawl, B.P. Thakkar Road, Mumbai-28. It is undisputed fact that the Complainant had taken electric connection from the Opposite Party in aforesaid premises. His Consumer No. is 559/691-119.3 and Meter Nos. are B023290 & B-960692. It is undisputed fact that on 29/10/03 Vigilance Department of BEST conducted raid at the premises of the Complainant. According to the Opposite Party, electric Meter No.B-960692 was found tampered. Vigilance Department assessed claim of electricity consumption at Rs.4,56,822/- and by letter dtd.29/10/03 called upon the Complainant to pay the said amount. The Complainant was not able to pay entire amount claimed by the Vigilance Department of the Opposite Party. So the Complainant’s electric supply was disconnected and criminal complaint was lodged against the Complainant.
It is submitted by the Complainant that Opposite Parties have wrongly calculated the amount and subsequently filed false case. After he paid 50% of the amount claimed, his electric connection was restored. The Complainant has admitted the fact that till today criminal case filed by the Opposite Party against him is pending before the Special Court/Designated Session Court.
The Law Officer-Shri. Raul has submitted on behalf of the Opposite Party that as theft case is registered against the Complainant under Sec.135 to 138 of the Electricity Act, 2003. Only Special Court or Designated Session Court has power to take cognizance of the offence and this Forum has no jurisdiction to entertain, try and decide the above complaint. In support of his contention, he has relied upon the decision of the Hon’ble National Commission, reported in IV (207) CPJ 113 NC. in the matter of Sub-Divisional Officer UHBVNL V/s. Surinder Pal, and another decision of the Hon’ble National Commission, reported in IV (207) CPJ 231 NC.
In the instance case, it is admitted fact that theft cases pending against the Complainant in a Competent Court, Dadar. Considering the facts and circumstances of the case and aforesaid decision, we hold that as electricity theft case is pending against the Complainant, this Forum has no jurisdiction to entertain, try and decide this complaint.
Secondly Opposite Party has raised contention that complaint is hopelessly barred by law of limitation. Vigilance Department of the Opposite Party conducted raid at the premises of the Complainant on 29/10/2003. According to the Opposite Party, Electric Meter No.B-906692 installed in the premises of the Complainant was found tampered so provisional claim of Rs.4,56,822/- was preferred by the Vigilance Department. It is grievance of the Complainant that the amount of electricity consumed is wrongly calculated. In this complaint he has prayed to declare that bill letter dtd.23/10/03 of Rs.4,56,822/- is incorrect. Further, he has requested to direct Opposite Party to refund Rs.2,27,000/- which he had paid towards bill dtd.23/10/03. It is clear from the averment made in the complaint that cause of action for this complaint took place in the year 2003. However, the Complainant has filed this complaint on 20/07/09. The Complainant ought to have filed this complaint within 2 years from the date of cause of action. Alongwith complaint the Complainant has not filed application for condonation of delay. The Complainant has not explained delay of about 4 years caused in filing of this complaint. Therefore, we hold that complaint is hopelessly time barred. In the result we answer point no.1 in the negative.
Point No.2 & 3:- The complaint is hopelessly time barred and this Forum has no jurisdiction to entertain and try this complaint. Therefore, we answer point no.2 & 3 in the negative.
For the reasons mentioned above, complaint deserves to be dismissed. Hence, we pass following order -
O R D E R
i.Complaint No.225/2009 is hereby dismissed.
ii.No order as to cost.
iii.Certified copies of this order be furnished to the party.
