Haryana

StateCommission

A/2/2017

UHBVNL - Complainant(s)

Versus

MEENA CHAUHAN - Opp.Party(s)

B.D.BHATIA

06 Jul 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :     02 of 2017

Date of Institution:   02.01.2017

Date of Decision :    06.07.2018

 

Sub Divisional Officer, Uttar Haryana Bijli Vitran Nigam Limited, Sub Division, Rai, District Sonipat.

                                      Appellant-Appellant

Versus

 

Smt. Meena Chauhan w/o Sh. Ashok Chauhan, Resident of House No.F-138, TDI City, Kundli, District Sonipat.

                                      Respondent-Complainant

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Shri B.D. Bhatia, Advocate for appellant.

                             Shri Sunil Kundu, Advocate for respondent. 

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This appeal has been preferred against the order dated July 28^th, 2016 passed by District Consumer Disputes Redressal Forum, Sonipat (for short ‘the District Forum’).

2.                Smt. Meena Chauhan – complainant (respondent herein) started construction work over a plot bearing No.F-138, TDI City, Kundli, Sonipat. At the time of construction, a temporary electricity connection having 1.00 KW load capacity was provided to the complainant by Uttar Haryana Bijli Vitran Nigam Limited (UHBVNL) – Opposite Party/appellant. After completing the construction work, the complainant was provided permanent domestic electricity connection in her premises having 15.00 KW load capacity bearing account No.RS-26-112-N. The complainant used to make payment of the electricity bills regularly. In the month of April, 2015, the complainant received electricity bill issued on April 10^th, 2015 for payment of an amount of Rs.1,01,915/- including an amount of Rs.95,623/- which is mentioned as sundry charges in the electricity bill. The complainant requested the opposite parties to make correction in the electricity bill and for the time being, an amount of Rs.7,000/- was deposited regarding the above mentioned electricity bill.  Thereafter, the complainant received electricity bills in the months of June, August, October and December, 2015 also mentioning the above mentioned amount as arrears and adding surcharge. In the electricity bill issued on December 11^th, 2015, an amount of Rs.1,57,750/- was claimed including an amount of Rs.1,50,123/- as arrears. Before claiming an amount of Rs.95,623/-, no prior notice or opportunity of hearing was given to the complainant. The complainant is not liable to pay the above mentioned amount of Rs.1,50,123/- shown as arrears.

3.                The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986 with a prayer to direct the opposite party not to recover the above mentioned amount of Rs.1,50,123/- and also not to disconnect the electricity connection and to pay an amount of Rs.1.00 lac as compensation on account of un-necessary harassment, mental agony and an amount of Rs.11,000/- as litigation expenses.

4.                The opposite party in his written version has taken plea that the complaint is not maintainable in the present form; that the complainant has no cause of action to file the present complaint and that the complainant has no locus standi to file the present complaint. It is admitted fact that at the time of construction of house, the complainant was provided a temporary electricity connection and thereafter, the complainant was provided a permanent domestic electricity connection having 15.00 KW load in her premises. The opposite party has taken plea that an amount of Rs.1,01,915/- was added in the electricity bill dated April 10^th, 2015 being arrears of the electricity bill amount regarding another electricity connection in the name of the complainant. The above mentioned amount was concerned with account No.T-1389.  An amount of Rs.95,623/- was shown as an amount of Rs.67,882/- on account of Half Margin report No.91 dated January 21^st, 2015 and an amount of Rs.27,741/- as shown in ledger account. Later on, bills for the month of June, August, October and December were issued as per instructions of the UHBVNL.  No excessive amount has been claimed from the complainant. The complainant is liable to make payment of the total amount as mentioned in the electricity bill issued in the month of December, 2015. It is prayed that the complaint filed by the complainant be dismissed.

5.                Parties led evidence in support of their respective claims before the District Forum.

6.                After hearing arguments, vide impugned order dated July 28^th, 2016 passed by the learned District Forum, the complaint filed by the complainant was allowed directing the opposite party to deduct an amount of Rs.95,623/- as well as subsequent surcharge amount charged from the complainant and to adjust the amount of Rs.50,000/- in future bills, if already deposited in terms of the order dated January 18^th, 2016 against the bill.

7.                Aggrieved with the impugned order dated July 28^th, 2016 passed by the learned District Forum, the appellant-opposite party has filed the present First Appeal No.02 of 2017 with a prayer to set aside the impugned order and to dismiss the complaint filed by the complainant as the amount has been charged from the complainant on the basis of audit reports.

8.                We have heard learned counsel for the parties and perused the case file.

9.                During the course of arguments, there was no controversy of any type that when the complainant – Smt. Meena Chauhan, started raising construction over a plot owned by her bearing No.F-138, TDI City, Kundli, Sonipat, she was provided a temporary electricity connection vide account No.T-1389.  It is also admitted fact that after completion of the construction work, a permanent domestic electricity connection, of 15.00 KW sanctioned load under account No.RS-26-112-N was provided to the complainant. As per version of the complainant, she used to make payment of the electricity charges regarding her temporary electricity bill as well as permanent electricity connection regularly. Despite that, electricity bill Exhibit C-3 was issued in her name on April 10^th, 2015 for payment of an amount of Rs.1,01,915/- including an amount of Rs.95,623/-, which is mentioned as sundry charges in the electricity bill. The opposite party did not adduce in evidence ledger account of the UHBVNL to show any arrears of electricity amount towards the complainant concerned with old temporary electricity connection. The opposite party also could not make it clear that regarding which particular electricity bill, the complainant could not make complete payment when temporary electricity connection was in existence. In these circumstances, the version of the complainant can be very easily believed that she used to make payment of the electricity bills regularly prior to issuance of the electricity bill dated April 10^th, 2015.

10.              In fact, the main dispute in between the complainant and the opposite party is regarding an amount of Rs.95,623/- charged as sundry charges in the electricity bill dated April 10^th, 2015 and surcharge imposed in the subsequent electricity bills due to non-payment of the above mentioned amount. The electricity bill dated February 11^th, 2015 (Exhibit C-1) was issued showing consumption of electricity in terms of units as 1105 and total bill amount as Rs.11,255/-  including an amount of Rs.4304/- as arrears. In the electricity bills dated August 11^th, 2015, October 11^th, 2015 and December 11^th, 2015, Exhibits C-5, C-6 and C-7 respectively, consumption of electricity in terms of units as shown is 1635, 2385 and 1087 respectively. It appears that the reading of the electricity meter used to be noted by the Meter Reader in a routine.  Version of the opposite party is that the above mentioned amount of Rs.95,623/- was shown as Sundry Charges on the basis of half margin audit report dated January 21^st, 2015 (Annexure R-1) mentioning detail in Annexure R-2. Learned counsel for the appellant-opposite party argued that an amount of Rs.67,882/- was shown outstanding towards the complainant by the audit party in report Annexure R-1 and an amount of Rs.27,741/- as mentioned in the ledger account. The opposite party did not adduce in evidence the ledger account to show that an amount of Rs.27,741/-  was outstanding towards the complainant. Learned District Forum has also specifically mentioned in its order that the opposite party did not produce ledger account. In this way, certainly findings can be given that an amount of Rs.27,741/- has been illegally charged from the complainant.

11.              We have closely perused the half margin audit report (Annexure R-1) also. Although date of preparation of the audit report is mentioned as January 21^st, 2015 but in this photostat copy of the audit report, name of incharge or any other officer or official of the audit party has not been mentioned.  During the course of arguments, learned counsel for the opposite party also could not make it clear that due to what reasons the amount is shown outstanding towards the complainant. Neither it is mentioned that it was a case of defective or burnt electricity meter nor it is mentioned that it is a case of foul play in any manner on the part of the complainant. No good reason has been mentioned in the audit report showing outstanding amount towards the complainant.

12.              During the course of argument when time and again pointed out, learned counsel for the opposite party argued that the audit party has shown amount due towards the complainant on account of some fault on the part of meter reader and some other officials of the UHBVNL. In the audit report, it is nowhere mentioned that the problem arose due to fault of the electricity meter reader or any particular official of the UHBVNL. Anyhow, the record also does not show that the opposite party had called explanation of meter reader or any other official of the UHBVNL in this regard. It is not the case of the opposite parties that any disciplinary action has been initiated against the meter reader and other defaulting officials of the Nigam. It appears that the opposite party is unable to make it clear and prove that due to which reason additional amount has been charged. It appears that the audit party raised some objections showing the amount due towards the complainant and the opposite party without giving any opportunity of hearing and without giving any good reason mentioned an amount of Rs.95,623/- towards the complainant and the amount was mentioned as Sundry Charges. The record on the file does now show that the opposite party/Sub Divisional Officer, UHBVNL or any other higher officer passed a specific order or issued a letter making it clear that objections raised in the audit report are correct and an amount of Rs.95,623/- is due towards the complainant.

13.              Moreover the opposite party has claimed the amount in dispute Rs.95,623/- in this complaint on the basis of half margin audit report dated January 21^st, 2015 (Annexure R-1).  We want to make it clear that some observations mentioned in the audit report cannot be considered as an order passed by an appellate authority. The observations made in the audit report do not have binding effect. In fact regarding imposing penalty amount if any the orders are to be passed by a competent officer of the Nigam. If the observations made in the audit report are correct the competent officer of the Nigam should admit his fault and to pass a specific order regarding provisional assessment order and thereafter final assessment order after giving opportunity of hearing to the consumer. In case the competent officer of the UHBVNL, SDO(OP)or Executive Engineer (OP) feels that the observations in the audit report are not correct they may request to delete the objections in the audit report. In this case the amount in dispute has been claimed by the respondents without making provisional assessment and thereafter final assessment regarding imposing penalty amount and that is also without giving opportunity of hearing to the complainant. Any such order can be passed after giving ample opportunity of hearing to the consumer. In support of his this contention learned counsel for the complainant placed his reliance upon the case laws titled as Ram Singh Vs. Punjab State Power Corporation (P&H) 2014(2) RCR(Civil) 246; Sri Radhakrishna R. Vs. The General Manager, BESCOM, (Karnataka) 2009(80) AIC page 546 and Kawsar Ali alias Kawasar SK Vs. State of West Bengal (Calcutta) 2006 AIR (Calcutta) page 65.

14.              We have closely perused the above cited case laws. In case law referred above Kawsar Ali Vs. State of West Bengal (Calcutta) (Supra) it was held that final assessment made without making any order of provisional assessment is arbitrary and not sustainable. It was a case of theft of electricity energy. Similarly in case law referred above Sri Radhakrishna R. Vs. The General Manager, BESCOM, (Karnataka) (Supra), it was held that opportunity of personal hearing should have been given before issuance of provisional assessment order. It was also held that before passing final orders regarding imposing penalty an opportunity of hearing is to be afforded to a person to file objection. In case the opportunity of hearing is not given the order automatically becomes defective. As per facts of case law referred above Ram Singh vs. Punjab State Power Corporation (P&H) (Supra), the penalty amount was imposed and final order of assessment was issued without giving opportunity of hearing to the consumer. In that case the view of the Hon’ble Punjab and Haryana High Court was that passing of final order of assessment without opportunity of hearing to the complainant is violation of the provisions of Section 123(3) of the Electricity Act, 2003 which is mandatory. It was also held that a valuable right of the complainant was taken away. In that case the order of assessment regarding imposing penalty amount of Rs.4,11,152/- was set aside. Cited case laws fully support the version of the complainant. As per facts of the case in hand neither the complainant was served notice nor provisional assessment order was passed nor final assessment order was passed nor any opportunity of hearing was given to the complainant before mentioning the amount in dispute in the electricity bill Exhibit C-3.

15.              As per discussions above in detail, findings can be safely given that the complainant is not liable to pay the above mentioned amount of Rs.95,623/- as well as surcharge amount imposed due to non-payment of the above mentioned amount as mentioned in the audit report.  In these circumstances, we feel the complainant is not liable to pay the disputed amount of Rs.95,623/- as mentioned in the electricity bill dated April 10^th, 2015 (Exhibit C-3) along with surcharge amount which was imposed thereafter due to non-payment of the amount. The complainant is also entitled for Rs.50,000/- if already deposited by the complainant during the pendency of the complaint as per order of the District Forum.

16.              Keeping in mind the above mentioned circumstances, we feel in this situation when everybody in public life is facing such type of difficulties it becomes the duty of the courts as well as of this Adalat also to pass some effective meaningful, relief-giving and purposeful orders and awards.  Moreover this Adalat is required to pass awards and orders which should be based on equity and helpful for providing justice that is also natural justice. We feel courts should pass awards and orders as the situation demands and should not hesitate to come out a little out of the right cordon of rules and procedure also if the situation so demands.

17.              As per discussions above in detail, we find no illegality and invalidity in the well reasoned impugned order dated July 28^th, 2016 passed by the learned District Forum.  Hence, the findings of the learned District Forum stand affirmed and the appeal stands dismissed.

 

Announced: 06.07.2018

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL