MRS.RAJASHREE AGARWALLA,MEMBER:-
Deficiency in service in respect of imposition of erroneous and illegal energy charges are the allegations arrayed against the Opp.Parties.
2. Complaint, in brief reveals that complainant is a domestic category of consumer under Opp.Parties bearing Consumer No.01012734. It is alleged that on dtd.13.12.2014 in the absence of any male member of complainant’s family three to four persons claiming to be officers of Enzen, Kendrapara tried to entered into the house which was protested by the complainant. Being protest the officers of enzen returned without conducting any physical investigation. But on the very next date i.e. on dtd.4.12.2014 complainant found that a carbon copy of physical verification report is pasted in the wall describing the details of the tampering of meter and the disputed tampering is without any verification. The copy of the verification report is filed into the case as Annexure-I. Thereafter, the Ops in the monthly energy bill of January,2015 imposed an additional amount of Rs.39,823/-. The copy of the bill is attached as Annexure-2 It is further alleged that Ops without giving an opportunity of hearing assessed the above amount, which according to complainant is illegal, imaginary and erroneous, further the Ops have violated the provisions of Sec.126 of Indian Electricity Act,2003 by not giving any ‘notice’ which is deficiency in service on part of the Ops. It is also stated that complainant was/is paying the monthly dues regularly upto December,2014 and supply of arbitrary energy bill amounting of Rs.39,823/- gives serious mental agony to the complainant for which this complaint before the Forum with the prayer that a direction may be given to Opp.Parties by declaring the energy bill of January,2015 out of Rs.39,823/- as void and illegal and to pay Rs.50,000/- as compensation for mental agony sustained to the complainant by the illegal acts of the Opp.Parties.
3. Being noticed Ops appeared through their Ld. Counsel and filed written statement along with memo that as per the MOU between Enzen (OP No.4) and CESU(OP No.1 to 3), Ld. Counsel is appearing for all Ops, denying the allegations and challenging the maintainability of the complaint. It is averred that as per the decision of the Hon’ble Apex Court in UP Power Corporation and Othrs-Vrs-Anis Ahamed reported in OLR 2014(1) SC-68 a complaint U/S-145,126 of Indian Electricity Act,2003 in case of ‘theft of energy’ Consumer Forums lacks the jurisdiction to adjudicate the same. Ops in their written statement stated that the officials of CESU(OP No.1 to 3) on dtd.13.12.2014 conducted a physical verification of complainant’s house and found the meter has been tampered and the consumer is availing power supply by illegal means. Basing on the physical verification report the Assessment Officer, provisionally assessed and directed the complainant-consumer to pay a sum of Rs.39,687/- for unauthorized consumption. But the assessment amount is wrongly mentioned in the bill statement as Rs.39,823/-. The copy of the Physical verification report and provisional assessment are filed into the dispute as Annexure-A & B. It is also averred that in order to further detection of theft of energy, the officials were not allowed into the premises for further verification. It is stated in written statement that U/S-174 and 175 of the Indian Electricity Act,2003 assessment of unauthorized use of power supply can not be challenged by the complainant before the Hon’ble Forum. The complainant-consumer to avoid the payments has foisted a false case, which deserves to be dismissed with exemplary cost.
4. Heard the arguments advanced by Ld. Counsels for the parties, gone through the documents Annexure i.e. Xerox copies of physical verification report, provisional assessment, statement of account, energy bill, citations and written notes on arguments filed by the complainant.The admitted facts of the case are that complainant is a domestic category of consumer under Ops bearing Consumer No.01012734 and on dtd.13.12.2014 some officials of Ops went to the house of the complainant. It is further admitted that a penal amount is imposed on the complainant which is reflected on the energy bill for the month of January,2015 Rs.39,000/- and odd was imposed on the complainant as penal charges. Ops in their written statement and during course of argument vehemently argued the maintainability of the complaint and submitted that U/S-126 and 145 of Indian Electricity Act,2003 this Forum lacks the jurisdiction to entertain the complaint in case of ‘theft of energy’ and cited the decision of Hon’ble Apex Court of country in Anis Ahamed’s case. In the present dispute complainant in paragraph(4) of the petition herself admits that on dtd.14.12.2014 complainant found that a carbon copy of the physical verification report is pasted in the wall attached to outer verandah of the house and the copy of the physical verification report is attached into the dispute as Anmnexure-I. Ops to substantiated allegation of theft of energy filed attested Xerox copies of physical verification report, provisional assessment as Annexure –A & B. The allegation and its counter clearly reveals that the present complaint relates to ‘theft of energy’ and as per the decision of Hon’ble Apex Court and Hon’ble National Commission in case of Jodhpur Vidhyut Vitran Nigam Ltd.-Vrs- Mohit Computers & Electronics reported in 2014(4) CPR 9(NC) and in case of UHBVNL-Vrs-Sashi Chander reported in 2014(4) CPR 134(NC) Hon’ble National Commission opined that in case of ‘theft of energy’ even “ on account of suspected theft of energy” the Consumer Forums has no jurisdiction to entertain the complaint as the complaint is not maintainable before the Consumer Forum. In the written Notes on argument filed by complainant where complainant challenging the procedure U/S-126 of Indian Electricity Act try to substantiate that the complaint is maintainable before the Forum and she is entitled to relief claimed for. In this respect, we are of the opinion that the present complaint relates either to ‘theft of energy’ or ‘suspect of theft of energy’. As per the position of law discussed above the complaint relates to theft of energy and accordingly a penal charges has been imposed on the complainant-consumer and as per the observation the complaint is not maintainable and we do not think it proper to discuss legality of the conducting the physical verification report or provisional assessment as to redress such grievance an alternative Forum is available under Indian Electricity Act,2003. Equally, we can not interfere in the imposition of penal billing for above legal barriers. The complainant has to approach the designated authorities for redressal of her grievance, if any. However, a I. A. Case was filed bearing No. 36/15 where petition was filed by the complainant that during pendency of the present proceeding Ops have issued a disconnection ‘notice’ to the complainant. In the order dtd. 23.11.15 this Forum directed the Ops not to take any coercive action as an interim relief and in the same petition complainant further prays this Forum to seeking a direction to OP No.4 to install a new meter for regularization. On the other hand, Ops states that by taking the advantage of interim direction complainant is not paying the monthly dues and a huge arrear outstanding are pending on the complainant and seeks leave of the Forum to take legal action against the complainant. Considering the position of law involved in the dispute we do not opine anything regarding physical verification and provisional assessment carried out by Ops. But so far the prayer for installation of a new meter is concerned we are of the considered view that if a new approved meter with all official formalities is installed in the complainant’s premises it will no way prejudice the legal rights and interest of Ops and installation of a new approved meter is the only alternative to collect the monthly energy dues as per the meter reading. Accordingly, I.A. case is disposed of.
Having our observations discussed above the complaint is dismissed on the ground of maintainability and it is further observed that complainant to redress her grievance may approach the appropriate designated authority within one month of receipt of the order, till then Ops are hereby restrained to take any coercive action against the complainant. The limitation if any for filing grievance before the authorities will not be a bar on considering our observations. It is further suggested that during one month of receipt of the order complainant may install a new meter as per the provisions on the approval of Ops.
Accordingly, the complaint is dismissed on the ground of maintainability and disposed of with observations without any cost to the parties.
Pronounced in the open Court, this the 29th day of September,2016.
