SMT. G. VASANTHAKUMARI, PRESIDENT.

            Complainant’s case is that,  three electric consumer meters bearing No.5565,10582 and 10735 were installed by the KSEB in the complainant’s building situated near Sanker’s Hospital, Kollam.,  that meter bearing No.5565 measures usage of electricity in the ground floor,  10582 in the first floor and 10735 in the outhouse portion, that on 26.6.2007 when the complainant who is a practicing lawyer and her husband who is a Development Officer in LIC, went out for their official work, at around 12 p.m. the APTS., Kollam unit headed by the 2^nd opp.party along with the 3^rd opp.party conducted a raid in the above said building alleging theft of electric energy after obtaining keys of the boxes, where the aforesaid consumer meters are kept, from the servant., and later, when the complainant returned back she had noticed that the APTS team already started dismantling meters bearing No.5565 and 10582 by opening its cover and breaking the seal without informing or obtaining the consent of the complainant/consumer, that the APTS team never informed the complainant or her husband or any persons assembled there about the status of the meters before and /or after it were dismantled and what type of tampering, if any, were attempted/made in respect of the said meters,  that the APTS team took the said meters from the complainant’s residence without even preparing a proper and independent mahazar by the authorized officer as per law and procedures, and  further, they avoided taking photographs of the said meters prior and/or after its dismantling, knowing fully well that such a photograph will destroy their very case since there were no physical or other evidences to show any kind of alleged tampering in respect of the said meters,  that the APTS team has violated all mandatory provisions of Criminal Procedure code, relating to how search or seizure shall be conducted in such situations and which they are bound to follow, and immediately  thereafter the APTS  team had arbitrarily and illegally disconnected the power supply of the two floors of the building without issuing notice or without giving an opportunity for the complainant to furnish her explanation regarding the matter, and thereafter, they  have issued two exorbitant bills for Rs. 69,925/- and Rs.40,216.96 without giving an opportunity to the complainant to furnish her objections/explanations to the bill and demanded its immediate remittance as a precondition for reconnection of supply, and hence  the complainant approached the Appellate Authority, Electrical Circle, Kollam and as per the interim order passed by the said authority the complainant was forced to remit one half of the bill amount within 24 hours for availing reconnection, that the said meters  were tested at the Meter Testing Laboratory, Thiruvananthapuram as voluntarily agreed by both parties and as directed by the Appellate authority based on that, that the laboratory certified that “No material evidence of tampering was noticed inside the meter” and further certified that the meter reading showed a positive error, which means that the complainant was paying more by way of current charges than the actual usage,  thus the Appellate authority ultimately held that the findings of the APTS and that of the assessing officer are not sustainable and the said findings are based on assumptions rather than facts and evidences and therefore directed the Asst. Engineer to cancel the penal bill and to take action to refund the amount already remitted, that the opp.parties had initiated and continued the case with an improper purpose, that the  opp.parties have fabricated evidences against the complainant when the energy meters were in their unlawful custody from the date of raid till 11.30 a.m. the next day,  that the said meters were brought to the Kadappakada Office for safe official custody only in the next day and thus the complainant and her family including their aged parents and school going children were forced to stay in their house for two days without supply of electrical energy for none of their mistakes, that she was also compelled to mobilize and remit huge amounts within a short span of time for re-connection only because of the deficiency in service of the opp.party, that the appellate authority has directed the opp.parties to return back the amount remitted by the complainant, that the said amount was not returned back till this complaint was filed., that the complainant  who is entitled to get proper service from the opp.party had suffered a lot due to  the gross deficiency in service and they are  bound to pay compensation for their deficiency in service and hence this complaint.

          4^th opp.party filed version for himself and on behalf of the opp.party 1 to 3  contending that the complaint is not maintainable either in law or on facts and hence it is to be dismissed without entering into its contents, that the complainant had  approached the Deputy  Chief Engineer, Electrical Circle, Kollam for the issue involved  in this case and the same was finalized and hence this petition cannot be allowed due to lack of jurisdiction, that the meter was opened in the presence of  the consumer and the Asst. Engineer Electrical Section, Kadappakada and it has been  reported by the meter reader that the  seals of the electric meters were damaged and so these opp.parties had  reason to believe that the electrical energy has been used  unauthorizedly  by the complainant, that there was pima-facie evidence regarding theft ie. tampering of energy meter seals,  that the tampering  of the energy meter seal has been convinced to   the consumer and her husband,  as they were present at  the spot, that the meter  was taken as a ‘Thondy’  in a sealed cover with the acknowledgement of the consumer, that the mahazar was prepared at the site, that “where any a consumer or his agent  or servant  etc, was found committing any of the offences mentioned above  the Board has got the right to disconnect the supply, that the opp.parties have complied  with all the procedures, that the complainant and her husband  were present  at site during the  search and while preparing the  mahazar, and  the list of all things seized in the course of search was prepared and delivered to the consumer and her husband affixed his signature on the seal of the cover, and the electrical inspector in a supplementary report has stated that electrical inspectorate has no jurisdiction in theft cases and lapses occurred, that the inspection in the premises was conducted as per the direction issued by the Inspector General of Police, that the abnormality in the meter was reported by the meter reader, that the  consumer is a habitual offender, that as per Section 135 [c] [ii] in energy theft cases it   shall be presumed until the contrary is proved any abstraction, consumption, or use of electricity has been  dishonestly caused by the consumer  and prayed to dismiss the complaint. 

Points that would arise for consideration are:

1.     Is not the actions on the part of the opp.parties amount to deficiency in service?

2.     What is the amount of compensation which the complainant is entitled t get due to the deficiency in service of the opp.parties?

For the complainant PWs. 1 to 4 were examined and marked Exts. P1 to P6 and X1

For the opp.parties DW.1 was  examined and Exts. D1 to D4 are marked. 

POINT :I       

          The specific case of the complainant is that the complainant is a consumer of the opp.parties having  electric connection to her building  situated near Sanker’s Hospital, Kollam vide consumer No.5565, in the ground floor, 10582  in the first floor and 10735 in the outhouse portion paying electricity charges.  It is her  case that on 26.6.2007  when the complainant who is a practicing lawyer and her husband who is a Development Officer  in LIC, went out for their official work, at around 12 PM,  the APTS, Kollam unit headed by the 2^nd opp.party along with the 3^rd opp.party conducted a raid in the above said building alleging theft of electric energy after obtaining keys of the boxes, where the aforesaid consumer meters are kept, from the servant.  Later, when the complainant returned back she had noticed that the APTS team already started dismantling meters being No.5565 and 10582 by opening  its cover  and breaking the seal without  informing or obtaining the consent of the complainant.  The APTS team took the said meters from the complainant’s residence without even preparing a proper and independent mahazar by the authorized officer as per law and procedures.  Further, they avoided taking photographs of the said meters prior and/or after its dismantling knowing fully well that such a photograph will destroy their very case since there were no physical or other evidences to show any kind of alleged tampering in respect of the said meters.  Later they have issued 2 exorbitant bills for Rs.69,925/- and Rs.40,216.96  to her.  Hence  the complainant approached  the Appellate Authority, Electrical Circle, Kollam and as per the interim order passed by the said authority   the complainant was forced to remit  one half of the bill amount within 24 hours for availing reconnection..  The said meters were tested at the Meter Testing Laboratory, Thiruvananthapuram . and the laboratory certified that “No material evidence of  tampering was noticed inside the meter” and further certified that the meter recording showed a positive error, which means that the complainant was paying more by way of current charges than the actual usage.    Thus, the appellate authority held that the findings of the APTS and that of the assessing officer are not sustainable and the said findings are based on assumptions rather than facts and evidences and therefore directed the Asst. Engineer to   cancel the penal bill and to take action  to refund the amount already remitted.    Though the Appellate Authority has directed  the opp.parties to return back the amount remitted by the complainant, the said amount  was not returned back till this complaint was filed.   The complainant who is entitled to get proper service  from the opp.party had suffered a lot due the gross deficiency in their service  and they are bound to pay compensation for their deficiency in service.  Hence this complaint praying for compensation of Rs. 3 lakhs.

          Resisting the complaint, the opp.parties filed version wherein  it was stated that  the complainant  had approached the Deputy Chief Engineer, Electrical Circle, Kollam  for the issue involved in this case and the same was finalized and hence this petition cannot be allowed due to the lack of jurisdiction.     Further it is contended that it has been reported by the meter reader  that  the seals of the Electric meters were damaged,  so these opp.parties had   reason to believe that the electrical energy has been used unauthorizedly  by the complainant.  The tampering  of the energy meter seal has been convinced to the consumer and her husband as they were present at the spot.    After detection of theft, both the energy meters in the said premises showed lower consumption.  But only one meter showed positive error in testing, it is a general tendency of the culprits to reduce the consumption for winning the theft cases.  So it cannot be taken as  strong evidence against APTS.   The inspection   was conducted  as per the instruction of the office of the Inspector General of Police, the abnormality in the premises had already reported by the meter reader..   The consumer  is a habitual offender.  The meter was taken in  custody in a sealed cover with signatures of the consumer and witnesses and the complaint is only to be dismissed.

  The specific case of the complainant is that the complainant never tampered the meter or used any device which interferes with accurate metering of electric current.  Neither the window glass nor the seal of the energy  meters were  broken.   The breakage of glass and seal were only the concocted and imaginary stories of the opp.parties. Otherwise, nothing prevented them from preserving the said evidences, as held by the Appellate authority, by taking photographs before and after opening the meter.   Thus, they purposely neglected to preserve even the alleged evidences from their side, which only points to the fact that no such evidence existed at any point of time,  and hence it is only a fabricated story..  But the case put forward by the complainant   opposed vehemently by the learned counsel for the opp.parties stating that the matter has been reported by the meter reader and   the consumer is a habitual offender, since  one theft already  detected in consumer meter bearing No.10735 in the outhouse portion,.  Let us examine, whether the complainant tampered the meter as contented by the opp.parties in this case .  The complainant was examined as PW.1.  One independent witness, who was present at the site of inspection was  examined as PW.2. Sub Engineer  was examined as PW.3 ,   and Shibu Mon, the meter reader was examined as PW.4.   Exts. P1 to P6 were marked and PW.3  has produced anomaly register which was marked as Ext. X1..  Even though PWs. 1 & 2 were examined in length nothing was brought out in their cross examination  to  discredit them.  Exts.P1 and P2 are the order of the Deputy Chief Engineer in Appeal Proceedings No. GB2/AP/08-09/2/329 and GB2/AP/08- 09/1/330 dated 30..7..2008  The complaint seen filed before the Forum on 27..6..2009 after the disposal of the appeal under Section127 of the Electricity Act 2003 by the Deputy Chief Engineer.  The first and foremost  contention raised by the opp.party is that the complaint is not maintainable since the complainant had approached the Deputy Chief Engineer, Electrical Circle, Kollam for the issue involved in this case and the same was finalized.   But according to the learned  of counsel appearing for the complainant,  the appellate authority’s order has become final and conclusive in respect of  those issues considered therein and this complaint is filed not for challenging any of the findings of the appellate authority  but for the compensation since there is  deficiency in service on the part of the opp.parties. Sec [173] of the Electricity Act provides that: Nothing contained in this Act or any rule or regulation made there under or any instrument having effect by virtue of this Act, rule or regulation shall have effect in so far as it is inconsistent with any other provisions of the Consumer Protection Act. 1986.  Sec.[175] of the Act further provides that: The provisions of this Act are in addition to and not in derogation of any other law for the time being in force.  In Accounts Officer, Jharkhand State Electricity Board and Assistant Electricity Engineer, Jharkhand State Electricity Board, Kokar Division  V/s. Anwar Aji, Proprietor, Pinki Plastic Industrial Area, “ our National Commission  considered the question: Whether Consumer Fora  jurisdiction to deal with the grievances of the consumer of electricity, in case of deficiency in service by the electricity supplier, after enactment of the Electricity Act 2003 and held that “Consumer Forums have jurisdiction to deal with the grievances of consumers of Electricity in case of deficiency in service by the Electricity Supplier [both State and Private suppliers] including any fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance under any law or contract in rlation to service.”  It is further held that, Sec.[3] of the Consumer Protection Act and Sec[175] of the Electricity Act, provide that they are in addition and not in derogation of rights under any other law for the time being in force.   Therefore, the rights of the consumers under the Consumer Protection Act are not affected by the Electricity Act, 2003.  Consumer of electrical energy provided by the Electricity Board or other private company, is a consumer as defined under Sec.[2][1][o] of the Consumer Protection Act and a complaint alleging any deficiency on the part of the Board or other private company including any fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance which is required to be maintained by or under any law or in pursuance of any contract in relation to service is maintainable under the Consumer Protection Act.  So we have no hesitation to safely conclude that the complaint is maintainable before this forum.

          The next question to be considered is whether the action on the part of the opp.parties amounts to deficiency in service?  As I have already mentioned the appeal before the appellate authority allowed in favour of the complainant.   The main contention  put forth by the opp.parties is that the meter reader has  reported that seal of the meter No.10582 is seen damaged and he had recorded it  in the anomaly register.  It is also contended that the APTS team made  the search on the basis of the direction of the Inspector General.  But according to the  complainant both the above contentions are absolutely false.  The meter reader has not made such a report.   The anomaly register produced by PW.3 is marked as Ext. X1.  PW.3 deposed before the forum that the entries in the anomalies register is written by the meter reader.  The entry so far as the complainant’s meter is seen in page No.17. On a perusal of that page it can be seen that  there is some foul play.  The alleged entry is seen made only  in respect of meter No.10582.  So there was no need to break open the seal of the other meter No.5565 and imposing penal bill.  The 4^th opp.party though filed version on behalf of members of the APTS team, in his cross examination has clearly admitted that he is not aware of the reason why the illegal entry in the house of the opp.party was made and how the APTS team got information  of the alleged theft.     On a perusal of Ext. X1 anomaly register, in page No.16 serial No.60 no report of any theft.  Except the entry No.60  all other entries are  either inspected by the Sub Engineer or Asst. Engineer.  PW.3 and DW.1 has deposed that they have not inspected the complainant’s residence.   They have not informed the APTS.  None among the public have informed the APTS .  Then  how the alleged damage of seal came  to the notice of the APTS and why the APTS team inspected the complainant’s residence..  Opp.parties specific contention is that the said entry was made by  Shibu Mon PW.3 and DW.1 also deposes that the said entry was written by Shibumon and in his own hand writing.   Whereas Shibumon while examined as PW.4 said that it is not in his handwriting.  Then who wrote it.  No explanation.  So according to the learned counsel appearing for the complainant the entry relating to the complainant may be  written subsequently for creating evidence.    So  from the very beginning it can be seen that there is deficiency in service and the APTS team made the raid without any reason.  Though the opp.parties  say that  the meters  were opened in the presence of the complainant and husband, no evidence was adduced to prove the said aspect.  If they were present why their signatures were not taken, or if they refused to sign why such an entry was not made in the Mahazar.  No photograph was also taken showing the position of the meters.   The meters were kept in the custody of the opp.parties illegally and produced only on the next day.  So learned counsel  appearing for the complainant opinioned that till that time several manipulations were made by the opp.parties.

Since the opp.parties raised a contention that they had inspected the complainant’s residence on the basis of the direction of the  IG’s Office

 the complainant has filed a petition on 26..3..2010 calling upon the opp.party to produce the record by  which they got such a direction from the IG’s office.  In reply  affidavit they have admitted that there is no such record.  So there is no evidence to the above contention also.  Further the electrical Inspectorate conducted the inspection on the direction of the Appellate authority.  The inspectorate reported that there was no manipulations or anomalies seen in the meter.  It shows a positive error.   Ext. P5 is the report of the testing laboratory.   The remarks of the testing authority are as follows:  “  The meter was tested in the received condition and seen that the meter has a positive error.  Energy meter records more than the actual consumption for almost all load conditions as recorded in para 11 of the report. No material evidence of tampering was noticed inside the meter.” On a combined reading of the evidences grievances of the complainant,   it can be seen that the actions of the opp.parties are  without any genuine reason.   The opp.parties who are bound to provide  service to the   consumer  had acted in total violation and there is deficiency in service.  Point found accordingly.

The complainant has claimed  Rs. 3 lakhs as compensation for the deficiency in service.   The complainant was examined as PW.1 .  She would swear   before the forum in tune with the allegations in the complaint.  Nothing was brought  out in her cross-examination to discredit the witness.   The contention that  the consumer is  a habitual offender is of no  help to the opp.parties in this case.   The  split  up statement produced by the complainant is seen marked as Ext.P6.   In Ext. P6 it is stated that she has to get Rs.3300/- in the amount of Rs.56825/- which she has remitted on 27.6.07 from which as per the order of the Appellate authority dated 24.6.09.  received Rs.53525/-  Further she has claimed interest for that amount at the rate of 12%  .  But in box when she was examined as PW.1 she  would swear before the forum that “yJEn\mk svu\\ulfjgkr\rfk StdSpCA 4000  goeulnk; 2 iG,f\sf  interest r,\maluj” It is to be noted that she has challenged the veracity of the bills issued by the opp.parties and the appellate authority cancelled the bills and directed the 4^th opp.party to return the amount collected from her.   So according to us she is entitled to get back the balance Rs.3300/- .   In view of the facts and circumstances of the case the interest claimed on that is disallowed.  Further she has claimed Rs.600/- which was remitted for meter testing, Rs.3000/- towards the travel expenses for meter testing, for Rs.5024/- as excess amount allegedly received, since the meter shown positive error, Rs.10000/- towards cost  for conducting  appeal before the  appellate authority.   They are disallowed since the appellate authority has not allowed the same.    She ought to have claimed them    before the appellate authority.   The order of the appellate authority became final,.  Further she has claimed  Rs.263988/- towards compensation. As contended by the opp.party she has filed OS73/09 before the  Sub Court, Kollam claiming Rs.5 lakhs as compensation  and is pending for disposal. Copy of the plaint is seen marked as Ext.P4.  There also her case is that she along with her family members  subjected to severe mental tension.   The main facts  and grievances narrated in this case are seen narrated there also. Any way taking the evidence  as a whole  and considering  the facts and circumstances of the  case we are of the view that for the deficiency in service on the part of the opp.parties for herself and on behalf of the family she is entitled to get a compensation of Rs.10,000/- .  Point found accordingly.  

In the result, the complaint is allowed in part, directing the opp.parties to pay a sum of Rs.3300/- towards the balance amount to be paid   and Rs.10,000/-  towards compensation.   In the circumstances of the case there is no order as to cost.   The order  is to be complied with within one month from the date of the order and in default it  will carry interest at the rate of 7.5% per annum from the date of order.

          Dated this the 18^th day of January, 2012.

                                                I N D E X

List of witnesses for the complainant:

PW.1 -  Girija.K.

PW.2. – Balachandran Nair

PW.3. – Chandrasekharan

PW.4. – Shibu Mon

List of documents for the complainant

P1. – Order of Appellate Authority

P2. – Order of Appellate Authority for 2^nd meter

P3. – Copy of cheque for Rs.53525/-

P4. – Receipt for meter checking fee

P5. – Meter testing report

P6. – Statement

X1. – Anomaly Register

List of witnesses for the opp.parties

DW.1. -  Raj Mohan

List of documents for the opp.parties

D1. – Mahazar dt. 26.6.07

D2. – Letter dated  3..11..2008

D3. – Mahazar dated  6..1..2006

D4. – Copy of the Plaint in OS375/2009 of Sub Court, KollM.