DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 101 of 1.4.2008 Decided on : 19.6.2008 <br /> <br /> Jangir Singh S/o Nihal Singh, Resident of Ravi Dass Nagar, Goniana, the. & District Bathinda.<br /> ... Complainant<br /> Versus<br /> <br /> 1.Punjab State Electricity Board through its Chief Engineer, Opposite GNDTP, Bathinda.<br /> 2.SDO/AEE, Punjab State Electricity Board, Sub Division, Goniana.<br /> ..... Opposite parties<br /> <br /> Complaint Under Section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Sandeep Baghla, Advocate<br /> For the opposite parties: Sh. Jaideep Nayyar, Advocate <br /> <br /> O R D E R. <br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Complainant who is holder of domestic electricity connection bearing A/c No. NA-49/278 has received notice No. 525 dated 7.3.2008 from the opposite parties vide which demand of Rs.63,005/- has been raised from him alleging theft of energy. He assails this demand as illegal, null and void and against the statutory provisions on the grounds that he did not put any loop in the incoming phase; no alleged checking was conducted in his presence or in the presence of his authorised representative and alleged checking report has not been prepared at the spot nor copy of the same was supplied and MTC seal is intact. When it is so, the question of installing any loop does not arise. There is no report regarding the seizure of the loop; Report is manipulated one; demand raised is contrary to the provisions of Section 126 of the Electricity Act, 2003. They have demanded the amount for the period 3/2007 to 3/2008, whereas as per Section 126 (5) of the Electricity Act, demand cannot for more than three months in case of domestic connection and even as per Commercial Circular No. 53/2006. An attempt was made to disconnect the electricity supply which is contrary to Section 126 of the Electricity Act. Unilateral act of the opposite parties is illegal. There is deficiency in service on their part. In these circumstances, complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred seeking direction from this Forum to the opposite parties to set-aside the demand of Rs.63,005/- raised vide memo No. 525 dated 7.3.2008; refund any amount paid out of the impugned amount of Rs.63,005/- subsequent to the filing of the complaint alongwith interest @ 18% P.A till realization; pay Rs.20,000/- as compensation on account of harassment, hardship etc. besides costs 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 the complaint; he has not approached this Forum with clean hands; this Forum has got no jurisdiction to entertain and try the complaint; once the Assessing Officer assesses the amount, appellant authority with regard to LT Industrial Consumer (which also includes the connection of the complainant) is Additional Deputy Commission (General); complaint is false and frivolous; complainant is not consumer and matter is not covered under the definition of service. Inter-alia, their plea is that on 25.2.2008, connection of the complainant was checked by their officials. It was found that he was consuming electricity by putting a loop in the incoming wire to the meter ahead of the fuse. Fuse had been taken out and electricity was being consumed which amounted to theft of energy by unauthorised means. Checking report was prepared at the spot. Representative of the complainant namely Rajwinder Kaur had signed it. As per Section 126 of the Indian Electricity Act, Commercial Circular No. 53/2006 and Regulation No. 37 of the Electricity Supply Code and Related Matters Regulation 2007, provisional order of assessment was issued making demand of Rs. 63,005/-. This amount was calculated as per rules of the Board. Complainant was asked to deposit the amount within seven days. He was further directed to submit objections, if any, from the date of notice. Neither he made the payment nor filed objections. Had he filed objections, he would have been afforded opportunity before the Assessing Authority. In case, merits were found in the matter, relief could be given. Procedure for challenging the demand is before Sub Divisional Magistrate and as such, this Forum has got no jurisdiction. They deny that the demand is illegal, null and void on the grounds mentioned in the complaint.<br /> 3. In support of his allegations and averments in the complaint, Jangir Singh complainant tendered into evidence his own affidavit (Ex.C.1), photocopies of bills (Ex.C.2 to Ex.C.5) and photocopy of Provisional Assessment Order dated 7.3.2008 (Ex.C.6).<br /> 4. On behalf of the opposite parties, reliance is placed on affidavits (EX.R.1 & Ex.R.2) of S/Sh. Rakesh Goyal, SDO and C.D Mittal, Sr. Executive Enforcement-II respectively, photocopy of Provisional Assessment Order dated 7.3.2008 (Ex.R.3), photocopy of Checking Report dated 25.2.2008 (Ex.R.4) & C.D (Ex.R.5).<br /> 5. We have heard the learned counsel for the parties. Apart from this, we have perused the record.<br /> 6. Mr. Baghla, learned counsel for the complainant argued that complainant was not indulging in theft of electricity. He did not put any loop in the incoming wire to the meter ahead of the fuse. Checking was never conducted in the presence of the complainant or his authorised representative. Alleged checking report, copy of which is Ex.R.4, was not prepared at the spot nor its copy was supplied to the representative of the complainant. Photocopy of the report sent reveals that MTC seal is intact and as such, there is no question of having installed any loop. There is no report of any such seizure of alleged loop or record of seizure memo. Demand raised by the opposite parties is contrary to Section 126 of the Electricity Act, 2003 as the amount has been demanded for the period 3/2007 to 3/2008, whereas as per Section 126(5) of the Electricity Act, 2003,demand cannot exceed for more than three months in case of domestic connection and even as per Circular No. 53/2006. To support it, he made reference to affidavit Ex.C.1 of the complainant and copy of the impugned notice/memo No.525 dated 7.3.2008 Ex.C.6.<br /> 7. Mr. Nayyar, learned counsel for the opposite parties argued that evidence on the record fully establishes the theft of electricity by the complainant. Demand raised is as per PSEB Regulatory Commission (Electricity Supply Code and Related Matters) Regulations 2007.<br /> 8. We have considered respective arguments and we feel ourselves inclined to agree with the learned counsel for the opposite parties in view of the facts, circumstances and the evidence on the record. So far as affidavit of the complainant is concerned, it stands amply rebutted with the affidavit Ex.R.2 of Sh. C.D Mittal, Senior Executive Engineer, Enforcement-II. He has stated in so many words that on 25.2.2008 connection of the complainant was checked by him in the presence of Rajwinder Kaur representative of the complainant. It was found that complainant was consuming electricity after putting a loop of wire in the incoming wire to the meter ahead of the fuse. Fuse had been taken out and electricity was being consumed directly which amounted to theft of electricity by unauthorised means. He has further explained that the plate on the MTC had been loosened. Representative of the complainant namely Rajwinder Kaur had signed the checking report in token of its correctness and report was made at the spot. Sh. Rakesh Goyal,SDO reiterates the version in the reply of the complaint in his affidavit Ex.R.1. Ex.R.4 is the checking report. A perusal of the same reveals that it has been signed by Rajwinder Kaur representative of the complainant. All the official acts performed by the public servants in the discharge of their public duties are presumed to be correct. There is no material on the record to show that Sh. C.D Mittal has enmity or animus with the complainant to make a case of theft of energy. Questionnaire was submitted by the complainant for cross-examination of Sh. C.D Mittal. He has submitted reply of them in the shape of his affidavit on 11.6.2008. A perusal of the reply submitted by him is worth placing credence and clinches the matter. Contention of the learned counsel for the complainant that from the fact that meter number is not readable in the video leads to the conclusion that connection of the complainant was not checked, cannot be accepted. From the first question in the questionnaire submitted by the complainant, he (complainant) himself has put as to whether any male member was present at his house. It means that complainant himself refers to the checking of his connection in his house. Moreover, from the affidavit Ex.R.2, it is clear that connection of the complainant was checked. It is also worth mentioning that particulars of the meter number have been given in the report, copy of which is Ex.R.4. Hence, complainant cannot wriggle out of the situation on the basis of this plea. One male member was also present in the house who had come during the process of checking. In the affidavit dated 11.6.2008 submitted by Sh. C.D Mittal, it has been made clear that it was told to them that Rajwinder Kaur is the daughter-in-law of the complainant. She was present in the house and has been shown to be handing over the bill coming out of the room. C.D at the spot was prepared by Sh. C.D Mittal. There was another lady as well, who had introduced herself to be the mother-in-law of Rajwinder Kaur. She has been shown to be standing next to the meter and she clearly admits the theft as is evident from the movie. Rajwinder Kaur signed the checking report without any objection. Plate on the MTC had been loosened. Sh. C.D Mittal has explained in his affidavit dated 11.6.2008 that his presence could not be shown in the movie as the same was prepared by him. According to him, Rajwinder Kaur had signed the checking report in his presence and he had made the movie of the same. True that no loop was seized nor any seizure memo concerning it was prepared, but this would assume no significance in view of the videography done at the spot and the factum of theft admitted by the lady standing next to the meter. At the risk of repetition, it is again mentioned that Sh. C.D Mittal is senior officer of the Board. He has explained that meter could not record the consumption in this case since the same was bye-passed by using a loop. Plea of the complainant that no mention of videography has been made in the checking report cannot fetch any significance when videography itself makes the position crystal clear regarding the theft of energy. C.D was also put in the computer of this Forum and the display on the Computer screen was viewed by us. We are of the view that the version of Sh. C.D Mittal is correct. Accordingly, we accept the story of the opposite parties regarding theft of electricity which was being committed by the complainant.<br /> 9. Stance of the learned counsel for the complainant is that demand is contrary to the provisions of Section 126 of the Electricity Act, 2003 and Commercial Circular No. 53/2006 as it cannot exceed for more than three months in case of domestic connection, whereas in this case, amount has been calculated for 12 months. Contention of the learned counsel for the complainant is that even if it is taken for arguments sake that theft was there, even then the amount could be charged at 1.5 times the normal tariff rate and not at 2 times. He further argued that PSEB Regulatory Commission (Electricity Supply Code and Related Matters) Regulations 2007 are contradictory to statutory provisions of Section 126 of the Electricity Act, 2003.<br /> 10. We have given our thoughtful consideration to these submissions of the learned counsel for the complainant. PSEB Regulatory Commission (Electricity Supply Code and Related matters) Regulations 2007 have been framed in exercise of the powers conferred under section 181 read with Sections 43 to 48, 50,55 to 59, 126, 127, 135, 152, 154 & 163 of the Electricity Act, 2003 and all other powers enabling Regulatory Commission in this behalf and in compliance of Electricity (Removal of Difficulties) Order, 2005, issued by the Ministry of Power, Government of India bearing No. S.O.790(E). Moreover, this Forum cannot determine the legality and validity of the Regulations of 2007. Its duty is to adjudicate deficiency in service and unfair trade practice. It has been made clear in Regulation No. 3.1 that in case of any inconsistency between these Regulations and the Conditions of Supply existing on the notified date, these Regulations will prevail. Annexure-8 of Regulations 2007 pertains to assessment of electricity charges in cases of unauthorised use/theft. As mentioned above, theft of electricity in this case has been established by the opposite parties. In such a case, LDHF formula for assessment of electricity consumption is as under :-<br /> Units assessed = L x D x H x F, where L is the load found connected during the course of inspection in KW. <br /> 11. According to these Regulations of 2007, the consumption of electricity so computed will be charged for a presumptive period of twelve months preceding the date of detection of theft at two times the normal tariff rate. The period of 12 months may however, be suitably reduced if the Authorised Officer, for reasons to be recorded in writing, is satisfied that theft of electricity has actually taken place for a lesser period. Admittedly, connection of the complainant is domestic one. His connected load is 2.760 Kws. Alphabet 'D' indicates the number of working days per month during which unauthorised use/theft of energy is suspected. For domestic use, number of working days which are to be considered are 30. 'H' indicates the use of supply hours per day for domestic use. For domestic connection, eight hours are to be considered. 'F' is a demand factor which is to be taken for different categories of use. For domestic this factor is 30%. Applying LDHF formula, demand of Rs. 63,005/- has been raised from the complainant through impugned memo, copy of which is Ex.C.6 and there is no illegality in raising it. <br /> 12. In view of our forgoing discussion, we find no deficiency in service or unfair trade practice on the part of the opposite parties in this case. Accordingly, complaint being devoid of merits is dismissed with costs of Rs.1,000/-. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 19.6.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet) Member <br /> 'bsg'