(Pronounced on 19.09.2011)
Per Mr N Arumugam, Hon’ble Member
This is an appeal filed by the original opponent against the order passed by District Consumer Forum, Amravati on 07.09.2010 allowing the complaint bearing No. CC/10/113 with direction to the o.p. to pay Rs.26,210/- & Rs.30,000/- and Rs.850/- with 12% interest from 08.08.2009, so also the compensation of Rs.25,000/- and Rs.1,000/- towards cost of complaint.
The facts of the case in brief are as under:-
1. The original complainant - respondent herein had filed the consumer complaint u/s 12 of Consumer Protection Act, 1986 against the o.p / appellant herein before the District Consumer Forum, Amravati, contending that the officials of MSEDCL surprisingly visited his clinic and checked the electric meter. They found that the meter was tampered and thereby, as alleged, complainant committed theft of electricity. The officials of the o.p. prepared Spot Panchanama and also disconnected the electric supply to the clinic and seized the electric meter. The officials of the o.p / appellant also assessed the use of electricity and prepared a bill for 24 months with an average use of 268 units per month for Rs.26,318/- with Rs.30,000/- compounding charges for compounding of offence and charges of Rs.850/- towards restoration of electricity supply. Accordingly, complainant paid Rs.57,160/- on 08.08.2009 and electric supply was restored by installing new electric meter. Thereafter, the complainant filed an appeal before Electrical Inspector, Amravati u/s 127 of Electricity Act 2003 on 12.09.2009. The Electrical Inspector decided the appeal on 31.01.2010 and held that the electric meter of complainant was not tampered and complainant did not commit any theft of electricity and also cancelled the compounding charges of Rs.30,000/-. Thereafter, complainant issued the notice on 27.04.2010 to o.p. - MSEDCL and claimed refund of Rs.57,130/-. However, o.p. did not pay any heed to the said notice. Therefore, complainant filed the complaint against the o.p. – MSEDCL, alleging unfair trade practice and deficiency in service on the part of o.p. MSEDCL and claimed the refund of Rs.57,130/- alongwith 12% interest, so also the compensation of Rs.50,000/- towards the damages caused to his reputation, for mental torture & harassment and cost of proceedings.
2. In the meanwhile, o.p. – MSEDCL, filed an appeal against the order dtd.31.01.2010 passed by the Electrical Inspector u/s 162(2) of Electricity Act 2002 on 18.06.2010 before Government of Maharashtra which is pending before the Government of Maharashtra.
3. After hearing both the parties and perusing the case papers, the District Consumer Forum, Amravati allowed the complaint with direction to o.p. – MSEDCL as stated above.
4. Being aggrieved by the said judgement & order the original o.p. – MSEDCL has preferred this appeal.
5. We heard Adv.Mr Babrekar for the appellant and Adv. Mr Masudkar for the respondent and perused the impugned judgement & order and other documents on record.
6. Adv.Mr Babrekar for the appellant argued that they had raised preliminary objection to the complaint, filed by the respondent / complainant before the Forum, on the basis of order dtd.31.01.2010 passed by Electrical Inspector in the appeal filed by the respondent / complainant challenging the bill dtd.08.08.2009 about the theft of energy and about the compounding charges. It is further contended that the Forum has no jurisdiction to entertain this complaint for recovery of energy bill, etc. It is also further contended by Adv. Mr Babrekar that the respondent / complainant had filed the appeal u/s 157 of Electrical Act before the Electrical Inspector and at the same time preferred the Forum for redressal of his grievance. Therefore, the complaint of respondent before the Forum was not maintainable.
7. Adv.Mr Babrekar for the appellant further contended that during the surprise visit of officials of the MSEDCL to the clinic of the respondent / complainant the electric meter was found tampered and it was observed that the respondent was using electricity unauthorisely. Hence, they prepared spot Panchanama for filing the FIR and assessed the consumption of electricity as 268 units per month for 24 months including the units of theft of electricity and issued a bill of Rs.26,310/- and Rs.30,000/- towards compounding charges for compounding of offence. To avoid the Police case, respondent shown his willingness to compounding the offence and therefore, appellant’s officials issued the bill. Accordingly, the respondent paid the bill. Therefore, appellant had not filed FIR in Police Station. Therefore, it does not mean that the respondent has not committed theft of electricity. On this point, Adv. Mr Babrekar particularly pointed out that the complaint is not maintainable as it is not a consumer dispute. But, without considering all these facts Forum held that the complaint is in accordance with the Law and tenable before it.
8. Adv. Mr Babrekar further contended that it was pointed out before the Forum that against the order of Electrical Inspector the appellant has filed the appeal before the State Government and it is pending. Therefore, the Forum ought to have held that the complaint is not tenable. However, the District Consumer Forum, Amravati did not appreciate this fact. Adv. Mr Babreker finally submitted that without appreciating the facts, evidence and documents the Forum held that the appellant adopted Unfair Trade Practice and committed deficiency in service and allowed the complaint by passing the impugned judgement & order, which is against the Law and needs to be set aside.
9. Adv. Mr. Masudkar for the respondent contended that the respondent being doctor by profession, runs his clinic and therefore, electricity is very essential. Since the officials of the appellant made surprise visit to his clinic and disconnected the electric supply, alleging the meter was found tampered and thereby theft of energy was committed; he compelled to pay the bill as per their assessment alongwith compounding charges to compound the offence to get the electricity restored immediately. Therefore, respondent had to file appeal before the Electrical Inspector u/s 127 of Electricity Act.
10. Adv. Mr Masudkar for the respondent contended that the order of Electrical Inspector itself held that the meter was not tampered and the appellant had illegally collected Rs.57,130/- from the respondent and directed the appellant to refund the same. Since, he could not get the refund from the appellant he constrained to file complaint before the Forum. Adv. Mr Masudkar has further contended that the Forum, after considering the facts, has rightly allowed the complaint and it needs to be maintained.
11. Without going into the details of the case, the only point needs to be decided that whether the complaint before the District Consumer Forum, Amravati is maintainable before the Forum.
12. We are of the opinion that once the respondent / complainant himself had opted to prefer appeal before the Electrical Inspector u/s 127 of Electricity Act, 2003, he cannot prefer the complaint u/s 12 of CPA 1986 for its execution / recovery of amount. It is also pertinent to note that the order passed by the Electrical Inspector has not attained its finality as appellant has preferred appeal against it before the State Government, which is still pending. Therefore, in our opinion the Forum erred in entertaining and allowing the complaint of respondent, which is not at all sustainable in Law. In fact the District Consumer Forum has no jurisdiction to entertain complaints in view of the judgement laid down by the National Commission in the case of Jharkhand State Electricity Board & Anr. Vs. Anwar Ali, reported in II(2008) CPJ 284 (NC). Instead, the Forum ought to have dismissed the complaint on this point in limine.
13. In view of the above observation, we feel it just & proper to allow the appeal and set aside the impugned judgement & order of the District Consumer Forum, Amravati.
Hence, the following order:-
ORDER
i. Appeal is allowed.
ii. Impugned judgement & order dtd.07.09.2012 passed by the District Consumer Forum, Amravati in consumer complaint No. CC/10//113 is set aside.
iii. No order as to cost.
iv. Copy of this order be supplied to the parties.
