Haryana

Gurgaon

CC/24/2018

Kishan Yadav - Complainant(s)

Versus

Dakshin Haryana Bijli Vitran Nigam - Opp.Party(s)

K K Kathuria

06 Sep 2018

ORDER

 

DISTRICT   CONSUMER   DISPUTES   REDRESSAL FORUM,    

                          GURGAON-122001.

                                                                                                                          Consumer Complaint No: 24 of 2018                                                                                                                                                                   Date of Institution:17.01.2018                                                                                                                                                                             Date of Decision: 06.09.2018                                   

Kishan Yadav son of Shri Chander Singh, resident of H.No.279, Padav Chowk, VPO Dundahera, District Gurugram (Haryana).

……Complainant.

 

                                                Versus

 

Dakshin Haryana Bijli Vitran Nigam, G-24, Maruti Urban Sub Division, Gurugram through its SDO.

 

                                                                                       ….. Opposite party.

                                                                                     

Complaint under Sections 12 & 14 of Consumer Protection Act,1986

 

BEFORE:    SHRI SUBHASH GOYAL, PRESIDENT

                   SH.SURENDER SINGH BALYAN, MEMBER.

 

Present:        Shri K.K.Kathuria, Adv. for the complainant.

                     Shri Anirudh, Adv. for the opposite party.

                    

ORDER      SUBHASH GOYAL, PRESIDENT.

 

                   The complainant has filed the present complaint against the opposite party on the allegations that the complainant has got electricity connection bearing account number 12224 BDU53RSD271 (old) and new account No.7645860000 and has been paying the consumption charges regularly.  It has been alleged that the said meter was burnt and the complainant got the same replaced with a new one on 26.05.2017 but the opposite party has issued a bill for a sum of Rs.1,47,008/- which was to be paid by 12.10.2017 failing which a sum of Rs.4407/- were liable to be imposed.  It has been alleged that the said meter was not tempered by the complainant and the said meter was burnt due to the reason beyond the control of the complainant.  The complainant has challenged the said amount as wrong, illegal and has been issued arbitrarily at the excess and higher rate as the said bill is much beyond the average consumption charges.  On the aforesaid allegations, the complainant has prayed for directing the OP to cancel the illegal & excess bill of Rs.1,47,008/-and to issue a fresh correct bill as per the actual consumption.

2                 Upon notice, the opposite party appeared through his Ld. counsel who filed written statement wherein it has been contended that the complaint was not maintainable before this Hon’ble Forum and complainant has no locus standi to file the present complaint. It has been contended that the complainant stopped by his own act, conduct, acquiescence and latches for filing the present complaint and the complaint is bad on account of mis-joinder of parties and the complainant has suppressed the true facts as the complainant was caught on spot while indulging in suspecting theft and the checking report has been duly signed by him.  It has been contended that the complainant was intentionally tempered with meter by melting from top side so that the consumption reading could not be visible.  It has been contended that the complainant has violated the condition of Section 127 of the Electricity Act, 2003 and the appeal was liable to be preferred under the Electricity Act and the complaint was not maintainable before this Forum.  It has been contended that on 29.05.2017 a raiding party conducting raid at the premises of the complainant and observes the following: -

1. METERBODY FOUND TOTALLY MELTED FROM TOP SIDE, NO PARAMETER SUCH AS MAKE READING VISIBLE,

 

2. TERMINAL BLOCK OF METER IS NOT MELTED, INCOMING AND OUTGOING CABLE CONNECTED ARE AS USUAL,

 

3. THERE IS NO SIGN OF SHORT CIRCUIT AVAILABLE, IT MIGHT BE CHANCES THAT THE METER MAY BE GOT BURNT TO FINISH THE ACCUMULATED READINGS,

 

4. THERFORE THE CASE MAY BE BOOKED UNDER SUSPECTED THEFT THE A/C OF CONSUMER MAY BR CHECKED FOR 6 BILLS & FURTHER ACTION MAY BE TAKEN AS PER NIGAM NORMS.

 

5. SUPPLY RESTORED AS PER NIGAM NORMS.

                                                                          

and the raiding party submitted the checking report No.46/1330 dated 29.05.2017 which was got signed by the complainant as shown in Annexure-1.  It has been contended that after examination, it was found that it was a case of theft of electricity energy by tempering with the meter and thus a sum of Rs.1,43,156/- was imposed which included actual consumption as well as penalty amount on account of loss caused to the Nigam.  It has been contended that it is an admitted case of suspected theft as the checking report has been signed by the complainant.  It has been contended that the jurisdiction of this Forum has been barred u/S 145 of the Electricity Act and the same was triable before special court u/S 153 of the Act.  It has been contended that in U.P. Power Corporation Ltd. and others Versus Anis Ahmad, SLP No. 35906 of 2011 decided on 01.07.2013 wherein the Hon’ble Supreme Court has observed that the complaint against the assessment made by the Assessing Officer u/S 126 or the offences committed u/S 135 to 140 of Electricity Act, 2003 is not maintainable before Consumer Forum and copy of the same attached as Annexure-3 and as such the complaint be dismissed.

3.                We have gone through the record of the case carefully and have heard the parties.

4.                After considering all the facts and circumstances of the case, it emerges that the premises of the complainant was raided on 29.05.2017 and the raiding party prepared the checking report wherein tempering with the meter has been mentioned and the said checking report bearing the signature of the complainant.  From the averments made in the written statement, it emerges that on the basis of suspected theft on account of tempering of meter, opposite party made the assessment U/S 126 of the Electricity Act and as the matter pertains to theft of electric energy and the jurisdiction with regard to electric energy has been specifically barred under the Electricity Act as held by the Hon’ble Supreme Court in U.P. Power Corporation Ltd. and others Versus Anis Ahmad, SLP No. 35906 of 2011 decided on 01.07.2013, the Consumer Forum has got no jurisdiction when there is unauthorized use of electricity by the Consumer. The Hon’ble Apex Court has held as under:-

Consumer Protection Act, 1986, Section 2(1) (b) Electricity Act, 2003, Section 126, 127, and 135 Unauthorized use of electricity by consumer- Assessment made by Assessing Officer under section 126 of Electricity Act- Complaint against the assessment or against the offences committed under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before a Consumer Forum- Offences referred to in Sections 135 to 140 can be tried only by a Special Court constituted under section 153 of the Electricity Act.

Further held:

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 of redress any dispute with regard to the matter 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.

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 provide”, 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.

5.                Therefore, in view of the amended given by the Hon’ble Apex Court in the above referred, we are inclined to hold that the complainant is not a consumer and as such the complaint is not maintainable before this Forum and the same is hereby dismissed with no order as to costs. However, the complainant is at liberty to approach the appropriate court/authority, if so advised and  the  period of  limitation  may be condoned in view of  the  law laid   down in  “Laxmi Engineering Works Vs. P.S.G.Industrial Institute (1995) 3 SCC 583”. The parties be communicated of the order accordingly and the file be consigned to the records after due compliance.

 

Announced                                                           (SubhashGoyal)

06.09.2018                                                      President,

                                                                   District Consumer Disputes

                                                                   Redressal Forum, Gurgaon

 

 

          (Surender Singh Balyan)

                   Member