KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL 74/2008

JUDGMENT DATED. 8.4.2011

PRESENT:-

SMT. VALSALA SARANGADHARAN            :    MEMBER

SHRI. M.V. VISWANATHAN                           :   JUDICIAL MEMBER

APPELLANT

Asst. Executive Engineer,

Electrical Major Section, Malappuram.

                                     ( Rep. by  Adv. Sri. S. Balachandran )

                                         Vs.

 RESPONDENT

  Muhammed Yunus P.M.,

  S/o Hassan Koya  Thangal, Dilshed Mahal,

  Mel muri, Malappuram Dist.

JUDGMENT

SHRI. M.V. VISWANATHAN          :   JUDICIAL MEMBER

     Appellant was the opposite party and respondent was the complainant in O.P. 117/01 on the file of CDRF, Malappuram.  The complaint in the said O.P. No. 117/01 was filed alleging deficiency in service on the part of the opposite party in issuing the electricity bill dated 6.7.2000 for Rs. 3,41,205/- The complainant prayed for getting the impugned bill cancelled.

2.   The opposite party entered appearance and filed written version denying alleged deficiency in service.  He contended that the complainant had preferred O.P. No. 20197/2000 before the Hon’ble High Court,of Kerala and vide order dated. 18.7.2000 passed in the said O.P. the Dy. Chief Engineer Anti Power theft Squad was directed to dispose of the appeal filed by the complainant.  Thereby, the appeal preferred by the complainant before the Dy. Chief Engineer Anti Power Theft Squad, Thiruvananthapuram was disposed of vide order date 14.2.2001.  As per the said order passed by the Dy. Chief Engineer the impugned bill was upheld and the complainant was directed to pay the bill amount.  It is further contented that the complainant again approached the hon’ble High Court of Kerala by preferring O.P. No. 10567/01 challenging the validity of the impugned bill and the impugned order passed by the Dy. Chief Engineer, Anti Power Theft  Squad, Thiruvananthapuram.  The aforesaid  O.P. No. 10567/01 was disposed of with direction to the CDRF, Malappuram to dispose of the O.P. No. 117/01.  It was also contented that a criminal case was also preferred for theft of electricity and the same is pending before the Criminal Court.  Thus, the opposite party prayed for dismissal of the O.P. 117/01.

3.   Before the Forum below both parties filed proof affidavit.  Exts. P1 to P8 and B1 were marked on the side of the parties to the said complaint in O.P. 117/01.  On an appreciation of the evidence on record, the Forum below passed the impugned order dated 18.2.2008 allowing the complaint and thereby cancelling the impugned bill dtd. 6/7/00 for Rs. 3,41,205/-  The opposite party is also directed to refund the sum of Rs. 2,00,000/- paid by the complainant towards the impugned bill.  Aggrieved by the said order the present appeal is preferred. 

4.  We heard the learned counsel for the appellant/opposite party.  There was no representation for the respondent/complainant.  The learned counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He argued for the position that the matter has been finally decided by the Dy. Chief Engineer, Anti Power Theft Squad, Thiruvananthapuram in the appeal preferred by the Respondent/complainant.  It is further submitted that the Forum below had no jurisdiction to entertain the dispute involved in the complaint in O.P. 117/01.  He also argued for the position that the Forum below has gone wrong in appreciating the facts, circumstances and evidence on record in the correct perspective and that the Forum below omitted to consider the fact that the respondent/complainant tampered with the energy meter installed at his premises and that the tampering was done for the purpose of committing theft of electricity.  Thus, the appellant / opposite party justified the action in issuing the impugned electricity bill dated 6.7.2000 for Rs. 3,41,205/- and prayed for setting aside the order passed by the Forum below.

5.    There is no dispute that the respondent/complainant is consumer of electricity and he is a consumer under the opposite party , Asst. Executive Engineer, Electrical major section, Malappuram.  The aforesaid electricity connection was taken for commercial purpose of running a tourist home.  It is also admitted that on 30.6.00 Anti Power Theft Squad conducted inspection of the premises of the complainant.  It is after the said inspection the impugned electricity bill dated 6.7.00 for Rs. 3,41,205/- was issued.  The aforesaid bill was issued as a penal bill for theft of electricity. 

6. It is the case of the appellant/opposite party that the respondent/complainant committed theft of electricity by tampering with the energy meter installed at his premises and that the tampering of the energy meter was detected by the Anti Power Theft Squad in the inspection conducted on 30.6.00.  It is also the case of the appellant/opposite party that the Anti Power Theft Squad prepared a cite mahazar evidencing tampering of the energy meter and the alleged theft of electricity by the complainant/consumer.  Admittedly the appellant/opposite party failed to produce the aforesaid site mahazar stated to have been prepared by the Anti Power Theft squad by conducting an inspection of the premises of the complainant on 30.6.00.       

          7.  The respondent/complainant categorically denied the alleged tampering of the energy meter and also the alleged theft of electricity.  It is the definite case of the respondent/complainant that he did not tamper with the energy meter installed at his premises and that the gap if any between the glass cover of the meter can only be due to the defective nature of the meter or due to the atmospheric weather conditions.  Then,  it is upon  the appellant /opposite party to substantiate his case that  the respondent/complainant tamper with the energy meter installed at the premises of the complainant,  inorder to facilitate theft of electricity. 

8.  It is to be noted that the alleged tampering of the energy meter and the resultant theft of electricity was detected by the Anti Power Theft Squad in the inspection conducted on 30.6.00.  There is no case for the appellant/opposite party the Asst. Executive Engineer, Electrical Major section, Malappuram that he was present at the time of the aforesaid inspection conducted on 30.6.00.  He has no case that he was a party to the Anti Power Theft Squad for conducting inspection of the premises of the complainant. Admittedly,  appellant/opposite party was not  a party to the site mahazar said to have been prepared by the Anti Power Theft Squad.  It is further to be noted that the so called site mahazar is not forth coming from the side of the appellant/opposite party.   No affidavit is seen filed by any one of the members of the Anti Power Theft Squad who conducted the inspection of the premises of the complainant and detected the alleged tampering of the energy meter.  No reasonable explanation has been offered by the opposite party for the failure to produce the site  mahazar which was prepared  evidencing  the alleged detection  of tampering of the energy meter and consequent theft of electricity.  In effect, there is no material on record to substantiate the case of the appellant/opposite party regarding alleged tampering of the energy meter or to support the case of the appellant/opposite party that the respondent/complainant committed  theft of electricity.  In such a situation, the impugned electricity bill dated 6.7.2000 for Rs. 3,41,205/- issued by the appellant/opposite party is legally unsustainable.  The Forum below can be justified in canceling the impugned bill for Rs. 3,41,205/-

          9.   The materials on record would make it abundantly clear that the respondent/complainant being the consumer of electricity under the KSEB has been remitting the electricity charges covered by the electricity bills issued by the appellant/opposite party. The respondent/complainant was very   regular and punctual in remitting the electricity charges covered by the electricity bills which were issued regularly.  The impugned bill for Rs. 3,41,205/- was issued as a penal bill for the alleged theft of electricity. But the appellant/opposite party miserably failed in establishing the case of theft of electricity.  So, the complainant (Consumer) is perfectly justified in challenging the validity of the impugned bill dated 6.7.00 for Rs. 3,41,205/- issued by the opposite party.

           10.  There can be no doubt about the fact that the burden is upon the appellant/opposite party to prove the allegation regarding the theft of electricity.  The best piece of evidence to substantiate the alleged theft of electricity is the evidence of the Anti Power Theft Squad and the site mahazar prepared by the Anti Power Theft Squad.  But the best evidence has been suppressed by the appellant/opposite party. In effect there is no evidence to substantiate the alleged tampering of the energy meter by the respondent /complainant (Consumer)Thus, the Forum below has rightly upheld the case of the complainant.

          11.  The appellant/opposite party has got a case that the Forum below has no jurisdiction to entertain the complainant in O.P. No. 117/01.  It is contended that the matter was decided by the Dy. Chief Engineer, Anti Power Theft Squad in the appeal preferred by the complainant (consumer) against the impugned bill.   It is true that the respondent/complainant(consumer) had filed an appeal against the impugned bill dated 6.7.00 for  Rs. 3,41,205/- and the said appeal was dismissed vide order passed on 14.2.01 by Order No. BV 5773/KKD/00.  The mere fact that the Dy. Chief Engineer passed an order can not be taken as a ground to hold that CDRF, Malappuram had no jurisdiction to entertain the complaint in O.P. No. 117/01 which was filed alleging deficiency in service on the part of the appellant/opposite party in issuing the impugned electricity bill dated. 6.7.2000 for Rs. 3,41,205/-

12.  The complainant has also claimed compensation of Rs. 25,000/- for mental agony and monitory loss suffered by the complainant, on account of the deficiency in service on the part of the opposite party.  There is no case for the appellant that Dy. Chief Engineer, Anti Power Theft Squad who passed the order in the said appeal is given the authority or jurisdiction to consider the issue regarding deficiency in service.  There is no provision in the Electricity Act and the Rules framed there under empowering the Deputy Chief Engineer to award compensation for deficiency in service on the part of Asst. Executive Engineer, Electrical Major section, Malappuram.  So the complaint preferred in O.P. 117/2001 for the alleged deficiency in service can only be entertained by the agencies contributed under the Consumer Protection Act, 1986.  The CDRF, Malappuram being an agency under the Consumer Protection Act was competent to entertain the complaint in O.P. No. 117/01.  It can also be held that the Dy. Chief Engineer, Anti Power Theft Squad, KSEB, had no jurisdiction to entertain the dispute involved in the complaint in O.P. 117/01.  Moreover as per B1 order passed by the Hon’ble High Court in O.P. 10567/01 the C.D.R.F, Malappuram was directed to disposed of the O.P. No.  117/01 in accordance with law.  B1 order would give an indication that the CDRF, Malappuram had jurisdiction to entertain the complaint in O.P. 117/01.  Thus, it can be concluded that the Forum below had jurisdiction to entertain the complaint in O.P. 117/01. 

13.    The appellant/opposite party has got a case that a criminal case is pending before the judicial first class Magistrate court, Malappuram regarding the alleged theft of electricity by the complainant/consumer.  But no document is forthcoming to show as to whether the said criminal complaint has been disposed of or not.  At the most it can be held that the impugned order passed by the Forum below in O.P. No. 117/01 will be subject to the order which will be passed by the Judicial First Class Magistrate Court, Malappuram in the pending criminal complaint regarding the alleged theft of electricity by the complainant (Consumer). The mere fact that a criminal complaint is pending before criminal court cannot be taken as a ground to hold that the complainant/consumer is bound to pay the amount covered by the impugned bill dated 6.7.00 for Rs. 3,41,205/-As far as the present case is concerned, there is nothing on record to  substantiate the case of the appellant/opposite party regarding theft of electricity  by the respondent/complainant (consumer).  So, the impugned order passed by the Forum below is to be upheld.  Hence we do so.

          In the result the appeal is dismissed.  The impugned order dated 18.2.2008 passed by CDRF, Malappuram in O.P. No. 117/01 is confirmed.  As far as the present appeal is concerned, the parties are directed to suffer their respective costs.

                               M.V.  VISWANATHAN      :  JUDICIAL MEMBER

                               VALSALA SARANGADHARAN :    MEMBER     

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