JUDGEMENT
( Passed this on 03rd November, 2017)
Shri Shekhar P. Muley, President
01. This is a complaint of unfair trade practice against the State Electricity Distribution Company and its franchisee SPANCO through their respective officers, who are arrayed as Opposite Parties (OPs)
02. The complainant obtained electricity supply from erstwhile Maharashtra State Electricity Board (MSEB) to his premises on 28/11/1997 and thus is a consumer of the Opposite Parties. The complainant has been paying energy bills regularly. It is the case of the complainant that on 8/6/2013 in the morning some 10 to 12 persons of the Opposite Parties No.- 3 to 5 made a forceful entry in his premises. That time the maid was present but she was compelled to stay outside the premises. Those persons then asked the complainant to come down to the ground floor where electricity meter was installed, stating that they found some defects in the meter. The complainant is a patient of hypertension and on being surrounded by those persons and because of their hostile behaviour, he suffered from the bout of hypertension. Some members of his family including ladies unsuccessfully tried to plead with those persons to behave properly. The complainant somehow came down stairs. He then noticed that some object was placed on the meter in absence of him and family members. It is alleged those persons themselves placed that object on the meter, which was alleged to be a magnet and thereby they accused the complainant of tampering with the meter. Photographs of the meter in that position were taken and thereafter the meter was dismantled. Those persons alleged that the complainant committed theft of energy. He was threatened to sign on some papers, else he would be immediately arrested. The complainant, in that situation and due to his hypertension, signed on partly blank printed papers. Those persons in order to create evidence clicked photographs of him while signing the papers. He could not read or understand what was printed in English on the papers. The papers were later filled up by one of those persons and last bill paid was obtained from the complainant. A copy of spot inspection only was given to him and they took away the meter with them. On the request of his sons those persons connected the supply of energy through direct supply but did not supply copies of papers signed by the complainant on spot.
03. On the same day in the evening son of the complainant received a SMS that the theft bill was generated and Rs. 3,00,600.82/- was to be paid immediately to avoid legal action. The Opposite Parties did not follow protocol and procedure and their acts was only to extract unjust money by victimizing the complainant. Hence their acts amount to unfair trade practice. It is therefore prayed to hold the Opposite Parties guilty of unfair trade practice and action taken by the Opposite Parties in initiating action u/s 135 of the Electricity Act as an act of victimization and to set aside the demand of Rs. 3,00,600.82/-. Further, the Opposite Parties be directed to re-install a new meter in his premises and to pay him compensation of Rs. 1,00,000/- and litigation cost Rs. 25,000/-.
04. The Opposite Parties No.- 1 and 2 filed their written reply and admitted the complainant was given electricity supply and the Opposite Parties No.- 3 to 5 are their franchisees. The allegations made in the complaint are denied being false. Theft of energy was detected and therefore the complainant is not entitled to any prior notice before disconnection. The officials followed the procedures and protocols while inspecting the meter and when a case of theft is detected it is not necessary to follow the provisions of section 126 of the Electricity Act as the finality to the assessment is decided by the Special Court. It is stated no unfair trade practice was adopted and all allegation in this regard are denied. Assessment on account of theft was done by the Assessing Officer on the basis of connected load at the time of inspection. If assessment is to be challenged, the complainant can challenge it as provided under the law. It is stated the complaint is filed with an intention to avoid payment of mandatory amount. It is also stated the forum in such cases has no jurisdiction. Thus it is prayed to dismiss the complaint.
05. The Opposite Parties No.- 3 to 5 by their joint written reply stated during inspection of the meter it was found that a magnet was placed on the meter to affect proper registration of units. There was intentional tampering with the meter to indulge in unauthorised use of electricity. After assessing the civil liability, a bill of Rs. 3,00,600.83/- was issued. It was a case of theft of energy and the complainant had an option to compound the offence by paying compounding charges. As such the forum has no jurisdiction. It is not denied that on the day of incident the officials had inspected the meter. All formalities as contemplated by law were completed. The complainant was present during entire proceeding and he signed all papers and received all copies. Denying the allegations of high handedness of the officials or not following due procedure of law, it is submitted to dismiss the complaint as the matter involves theft of energy for which the forum has no jurisdiction.
06. Heard learned counsels for both parties, perused documents. Our findings with reasons are as under.
FINDINGS AND REASONS
07. The main objection to this complaint is that it is case of theft of energy and FIR has also been registered against the complainant, therefore the complaint is not maintainable and the consumer forum has no jurisdiction to entertain such case. Reliance is placed on a judgment in U.P Power Corp. Ltd. v/s Anis Ahmad III (2013) CPJ 1 (SC) to justify the stand taken by the Ld. Counsel for the Opposite Parties Interestingly, the same judgment is also relied on by the Ld counsel for the complainant to counter the argument. It is his contention that the ruling, in fact, is not applicable to the facts and circumstance of the case.
08. It is undisputed that the meter of the premises of the complainant was inspected. It is alleged tampering of the meter was noticed. It is also not disputed that the meter was removed, FIR regarding theft of energy was lodged and a fresh disputed bill was issued. What has been emphasized by Ld counsel for the complainant is that the grievance is of victimization of the complainant and it being unfair trade practice, the complaint is very well maintainable. It is submitted the complainant has not only challenged the authority of the officials of the Opposite Parties No.- 3 to 5, but has also challenged the conduct of entire process adopted by the Opposite Parties No.- 3 to 5. Therefore, it is submitted, as the complaint contains allegations of unfair trade practice, the same is maintainable before the consumer forum. Besides, the Consumer Protection Act (for short the C.P. Act) being an additional remedy, the consumer has an option to take recourse under the C.P. Act or under other laws.
09. Considering the contentious issue of maintainability, first it would be better to examine the ruling in Anis Ahmad case to appreciate the rival contentions. In fact, a bunch of appeals was filed against the order of Hon´ble National Commission involving the question of maintainability of consumer complaint in cases of theft of energy. The case of the complainants was that they were falsely implicated on the accusation that they used more than sanctioned load and on a fictitious report a proceeding was initiated. The OP filed objection regarding maintainability of the complaints as there was theft of energy by the complainants. It was observed that the complainants had electrical connections for industrial/commercial purpose and, therefore, they did not come within the meaning of ¨consumer¨ and so not entitled to file any complaint before the consumer forum. Secondly, they had made their grievance against final order of assessment passed u/s 126 of the Electricity Act (for short the Act). They did not allege that the appellant (OP) used unfair trade practice or restrictive trade practice or their was deficiency in service. Therefore in absence of any allegations as stipulated u/s 2 (1) (c) of the Act, their complaints were held to be not maintainable. Thus, it was held whenever there is a dispute relating to unfair trade practice, or restrictive trade practice or deficiency in service or hazardous service as defined u/s 2 (1) (c) of the C.P. Act, the same squarely falls under the provisions of the C.P. Act.
10. Thus, it will not be proper to hold that in every case of theft of energy the consumer complaint is not maintainable. It all depends on facts of each case. The Hon´ble Mah. State Commission in MSEDCL v/s Deepak C. Wasule, F.A. No. A/08/867 decided on 18/7/2016 (Mah) has also held that in the facts and circumstances of the case, the ruling in Anis Ahmad case was not applicable. In the case before the Hon´ble State Commission also the complainant was accused of theft of energy since the meter was running slow. The action of the flying squad of O.P. was found to be arbitrary and unjustified and hence the objection to maintainability of the complaint was rejected.
11. Coming to the factual aspect of the case, the O.P. has alleged the meter was tampered. It is alleged, one magnetic object was found on the meter so as to interfere with accurate or proper registration of electric current and it amounts to theft of electricity. Assuming for a while that the flying squad did find an object on the body of meter which was obstructing correct registration of current, the question is, whether proper procedure was followed thereafter as contemplated under the Act. Because the Opposite Parties have taken a stand that the complainant should have taken recourse to section 127 of the Act to challenge the assessment. Section 126 of the Act provides that whenever a person is found indulging in unauthorized use of electricity, an order of provisional assessment of charges shall be made and served upon the person. The person shall be entitled to file objections, if any, against the provisional assessment. The assessing officer shall give a reasonable opportunity to the person and thereafter only shall pass final order of assessment. If the person accepts the order of provisional assessment, he may deposit the assessed amount within seven days of service of such provisional assessment order upon him.
12. If we examine the documents filed by both the parties, it is noticed that a copy of assessment was served on the complainant on the very day of detection of alleged meter tampering. Obviously, it was a provisional assessment. But, it appears, he was not given any opportunity to file any objections. On the contrary he was asked to deposit the assessed amount of Rs. 3,00,600/- immediately to avoid legal action. This intimation was alleged to have been given through mobile massage. The Opposite Parties have not produced any copy of service of order of provisional assessment by any other mode. It is also worth to note that the copy of provisional assessment filed by the Opposite Parties is a printed computerized copy and it could not have been given on the spot. Since the complainant did not deposit the assessed amount immediately, it means he had objections to the assessment, for which he should have been given proper opportunity of hearing. There is no final assessment and the meter was not sent for testing to find out whether placing of the object on the meter affected its recording of current. These procedures are found to be absent.
13. There are some other facts attributing to such wanton procedure adopted by the flying squad. If the spot panchnama is perused, it was conducted in the morning between 7 to 8 am at Itwari, Nagpur. The panchas were from Sadar and Khalashi Lines area, which are far away from the spot of inspection. It is bit surprising that the flying squad could find these two persons at wee hours of the morning from far off places for conducting panchanama. Besides, as per the Act, it is only such officer, who is authorized for the purpose by the State Government, has authority to enter, inspect, break open and search any place and seize any devices. It appears from the panchnama, a Senior Manager and two Assistant Managers of SPANCO conducted all the procedures. No documentary evidence is placed on record to show these persons were authorised by the State Govt to conduct the procedures. The FIR was lodged after three days from disconnection. In fact, the supply was restored on the same day. How it was restored when the assessed amount was not deposited is also not explained.
14. Thus considering the facts as emerged from the documents, it does appear that the Opposite Parties No.- 3 to 5 did not follow proper procedure in conducting raid. There may be tampering with the meter, but no proper opportunity of hearing was given to the complainant and such action amounts to unfair trade practice. There was deficiency in service by not affording opportunity to file objection to the provisional assessment and he was called upon to deposit the disputed amount immediately to avoid legal action. It is not known whether the meter was sent for testing. So, after giving due consideration to rival contentions we are satisfied that the complainant has made out a case to grant him relief from the demand made by the Opposite Parties.
15. Ld counsel for the complainant has further contended that the reply filed on behalf of the Opposite Parties No.- 3 to 5 cannot be accepted as the reply of these three Opposite Parties. Because, the reply is signed by one D.T. Purohit, Sr. Manager of SPANCO, but no authority letter to represent all three Opposite Parties (3 to 5) is filed by him. However, considering our findings this point is of little consequence.
16. In the result, the complaint deserves to be allowed. Hence, the following order.
ORDER
(01) The complaint is partly allowed.
(02) The demand notice of Rs. 3,00,600/- is set aside.
(03) The Opposite Parties are directed to install a new
meter in the premises of the complainant.
(04) The Opposite Parties No. 3 to 5 shall pay compensation of Rs. 10,000/- (In words Rupees Ten Thousand only) for mental and physical agony, and Rs. 5000/- (In words Rupees Five Thousand only) towards litigation cost to the complainant.
(05) Copy of the judgment/ order be given to both the parties, free of cost.
