DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 100 of 01-04-2008<br /> Decided on : 19-05-2008 <br /> <br /> Bikkar Singh S/o Shri Inder Singh R/o Village Gill Patti, Tehsil and District Bathinda. <br /> .... Complainant<br /> Versus<br /> <br /> 1.Punjab State Electricity Board, The Mall, Patiala, through its Secretary.<br /> 2.Assistant Executive Engineer (Distribution) P.S.E.B. Sub Division, Goniana Mandi, Tehsil and District Bathinda.<br /> 3.S.D.O. P.S.E.B. Sub Division, Goniana Mandi, Tehsil and District Bathinda.<br /> <br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. Lakhbir singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Navdeep Singh Sidhu, Advocate.<br /> For the Opposite parties : Sh. J.D. Nayyar, Advocate.<br /> <br /> O R D E R<br /> <br /> LAKHBHIR SINGH, PRESIDENT<br /> 1. Complainant is a holder of domestic Electricity Connection bearing A/c No. GP-13/376 at his residence Village Gill Patti. His sanctioned load is 4.81 KW. He is paying the electricity consumption bills regularly. Letter/Memo No. 521 dated 7.3.08 issued by opposite party No. 2 was received by him through which demand of Rs. 1,13,070/- has been raised on the allegation that he was indulging in theft of energy by removing the screw of right side of meter fixing board by moving the board by giving turn to the meter and stopping it. He alleges that this allegation is false and baseless. He never indulged in theft of electricity. Checking was not done in his presence or in the presence of his family members. No opportunity of hearing much less personal hearing was afforded to him. He assails this memo as illegal, arbitrary, null and void and against principles of natural justice. According to him, this memo is liable to be withdrawn or set aside. In these circumstances, this complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act') has been preferred by him seeking direction from this Forum to the opposite parties to withdraw letter/memo; pay him Rs. 50,000/- as compensation for mental and physical tension besides cost of the complaint.<br /> 2. Opposite parties filed their version taking preliminary objections that complaint is not maintainable in the present form; complainant has no cause of action to file it; he has not approached this Forum with clean hands; this Forum has got no jurisdiction to entertain and try the complaint; complaint is false and frivolous ; matter in dispute is not covered under the definition of service and as per latest instructions of the Punjab State Electricity Board vide Commercial Circular No. 53/2006 once the assessing Officer assesses the amount, the appellate authority is Additional Deputy Commissioner (General) and complainant is not consumer. Inter-alia their plea is that connection of the complainant was checked by their officials in the presence of the complainant. On checking it was found that he had removed the screw of the right side of the meter fixing board and had tilted the meter towards one side by giving it a turn and thus stopping the running of the meter which amounted to theft of energy by unauthorised means. Checking report was prepared at the spot. As per provisions of Section 126 of Indian Electricity Act, Commercial Circular No. 53/2006 and Regulation No. 37 of Electricity Supply Code and Related Matters Regulation 2007, complainant was issued provisional order of assessment for unauthorised use of electricity raising demand of Rs. 1,13,070/-. He was asked to deposit the amount within 7 days or submit the objections, if any. He never deposited the demanded amount nor filed objections. As per procedure after receiving objection from the consumer, he would have to be given opportunity to present his case before the assessing authority and in case the assessing authority finds any merit, he could be given relief. Since he has not filed any objection, demand made wide provisional assessment has become final. Procedure for challenging the demand is before the Sub Divisional Magistrate and as such this Forum has got no jurisdiction. They deny that there is any deficiency in service and unfair trade practice on their part. They deny that the demand is illegal, null and void and against the principles of natural justice on the grounds mentioned in the complaint.<br /> 3. In support of his averments contained in the complaint, complainant has produced in evidence his affidavit (Ex. C-1), photocopy of Checking report (Ex. C-2), photocopies of letters (Ex. C-3 to Ex. C-5), photocopies of postal receipts (Ex. C-6 to Ex. C-7) and photocopies of bills (Ex. C-8 to Ex. C-11).<br /> 4. In rebuttal, on behalf of the opposite parties two affidavits of S/Sh. Rakesh Goyal S.D.O.and Jagtar Singh J.E. (Ex. R-1 & Ex R-2) respectively, photocopy of Provisional assessment order (Ex. R-3), photocopy of final assessment order (Ex. R-4), photocopy of checking report (Ex. R-5) and Photocopy of despatch register- one page (Ex. R-6) have been tendered in evidence.<br /> 5. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of the complainant.<br /> 6. Opposite parties are alleging that complainant was committing theft of energy. In such a case, onus is upon the opposite parties to prove it by way of leading cogent and convincing evidence. Theft is to be proved like a criminal charge. For this, they are relying upon the affidavit Ex. R-1 of Sh. Rakesh Goyal, S.DO. who is not a member of the checking party. Hence, it is of no avail to the opposite parties to prove their version. Ex. R-5 is the copy of the checking report dated 4.3.08. Complainant has also placed the copy of it as Ex. C-2. In the reply of the complaint neither the names of the checking officials nor the date of checking has been mentioned. No designation of the checking officer has been recorded in the checking report. He has not signed the checking report with his full name. They have produced affidavit Ex. R-2 of Sh. Jagtar Singh, Junior Engineer who claims that electricity connection of the complainant was checked by him on 4.3.08 in the presence of the complainant and it was found that he had removed the screw of the right side of the meter fixing board and had tilted the meter towards one side by giving it a turn and thus stopping the running of the meter which amounted to the theft of energy by unauthorised means. He has not explained in Ex. R-2 as to how he came to know that the person present was certainly the complainant. Similarly he has not stated that any other person was also there. As per copy of the Checking report Ex. R-5 consumer had refused to sign but he did not tell the name. When it is so, how can Sh. Jagtar Singh state that complainant was there particularly when it has been recorded in the checking report itself that consumer did not tell his name. Apart from this, Labh Singh and Durga Dutt have been shown to have signed the checking report. Their affidavits could be produced by the opposite parties. Not to speak of this, even their presence could be explained in the reply of the complaint as well as in Ex. R-2. Bald affidavit of Sh. Jagtar Singh stands amply rebutted with the affidavit Ex. C-1 of the complainant in which he has stated in so many words that he was not indulging in theft of electricity and that the checking was not done in his presence or in the presence of his family members.<br /> 7. No satisfactory evidence has been produced by the opposite parties to show that the theft of electricity can be committed in the manner stated in the reply of the complaint i.e. simply by way of tilting of the meter towards one side. In case theft of electricity was being committed, the site could be got videographed or photographed. Evidence to this effect is lacking.<br /> 8. There is non-compliance of mandatory commercial circular No. 53/2006 which has been issued by the Punjab State Electricity Board. Even if it is taken for arguments sake that Sh. Jagtar Singh had found that theft of energy was being committed, he was required to disconnect the connection forthwith and to take the meter/metering equipment in possession as in found condition. This has not been done. This gives inference that compliance of this commercial circular has not been made on account of the fact that version of the opposite parties is not true. As per this commercial circular if the consumer refuses to sign the checking report, it is the bound duty of the checking officer to affix the copy of the checking report out side the premises. Simultaneously he was to send the copy of the checking report to the consumer through registered post. There is no evidence on the file to show that this mandatory procedure has been adopted.<br /> 9. In the light of the discussion made above, we are of the considered view that evidence led by the opposite parties is not satisfactory to arrive at a conclusion that complainant was committing theft of energy. When it is so, demand raised by the opposite parties through memo/letter No. 521 dated 7.3.08 is certainly arbitrary, illegal, null and void and is liable to be withdrawn. In these circumstances, there is deficiency in service on the part of the opposite parties in raising the demand.<br /> 10. Now the question arises as to which relief should be accorded to the complainant. Direction deserves to be given to the opposite parties to withdraw this letter/memo. Complainant is also craving for compensation of Rs. 50,000/- for mental and physical tension. Act and conduct of the opposite parties must have caused him tension for which he deserves some compensation which we assess as Rs. 1,000/-.<br /> 11. No other point was urged before us at the time of arguments.<br /> 12. In the result, complaint is accepted against the opposite parties with cost of Rs. 1,000/-. Opposite parties are directed to do as under :<br /> i) With draw letter/memo No. 521 dated 7.3.08, copy of which is Ex. C-3.<br /> ii) Pay Rs. 1,000/- to the complainant as compensation under Section 14 (1)(d) of the Act.<br /> Compliance of this order be made within 30 days from the date of receipt of copy of this order failing which the amount of compensation under Section 14(1)(d) of Act would carry interest @9% P.A. till payment. <br /> Copy of this order be sent to the parties concerned free of cost and file be also consigned.<br /> Pronounced :<br /> 19-05-2008 (Lakhbir Singh )<br /> President<br /> <br /> (Dr.Phulinder Preet)<br /> Member<br /> 'iki'