Heard learned counsel for both the sides.
2. This appeal is filed U/S-15 of erstwhile Consumer Protection Act,1986(herein-after called the Act). Hereinafter, the parties to this appeal shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant, in nutshell is that the complainant is a consumer under the OP. It is alleged inter-alia that the complainant has contract demand of 40 KW for the Ice Factory run by him. It is alleged that on 01.06.2002 the OP without intimation verified the meter and found energy load of 31 KW instead of 40 KW but on 02.06.2002 disconnected the power supply. The complainant protested but they did not listen to their request. Moreover, the OP imposed the penal bill of Rs.5,11,735/- dtd. 06.06.2002. Since, there is deficiency in service on the part of OP, the complaint was filed.
4. Per contra, the OP filed written version stating that the entire allegation in the complaint is false. It is case of the OP that they have checked the meter of the complainant on 01.06.2002 and they found that the meter was tampered and power has been used directly bypassing the meter. Accordingly the prepared the penal bill for Rs.5,11,735/- as per OERC Code,1998. Since, it is deficiency on the part of the complainant by not paying penal bill, re-instantly they disconnected the electric line. Therefore, they have no deficiency in service on their part.
5. After hearing both the parties, learned District Forum passed the following order:-
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“ Hence, it was ordered that understanding the matter of both the parties and gone through the documents and reality of this case, the petitioner is no way liable to pay the charging of penal bill amounting to Rs.5,11,735/- vide bill dated 06.06.2002 due to prevailing of faults and latches of the Ops. The report of MRT is illegal and unjustified as per the decision of Orissa High Court.
For that, there is deficiency of service and negligence on the part of the Ops within the meaning of definition of C.P.Act.
So, we direct the Ops to render power supply to the premises of Ice factory of the petitioner and waive out the aforesaid amount within one month, from the date of passing of this order.
Case allowed with contest but without cost.”
6. Learned counsel for the appellant submitted that learned District Forum has committed error in law by not considering their written version with proper perspectives. According to him the meter was tampered and the electricity has been taken by tampering the meter. As such the power supply made by the OP is bypassed and they have raised the penal bill which was disputed by the complainant. However, Learned District Forum ought to have considered all the facts and law before going to conclusion. He also cited the decision of Hon’ble Supreme Court in U.P.Power Corporation Ltd.-Vrs-Anis Ahamed AIR 2013 SC -2766 Where the consumer complaint is not maintainable. Therefore, he submitted that the impugned order should be set-aside by allowing the appeal.
7. Learned counsel for respondent submitted he has challenged the impugned order because the MRT squard is not authorized by law to check the meter of the complainant. Moreover, no permission was obtained from the complainant to enter the Ice factory to check the meter. He submitted that the meter for the 2nd time was changed by the office of the OP but and found it was tampered. Therefore, he submitted that the allegation of the appellant is false and fabricated. He supports the impugned order.
8. Considered the submission of learned counsel for the parties, perused the DFR and impugned order.
9. It is admitted fact that the complainant is a consumer under the OP. It is not in dispute that the MRT squard has visited the Ice factory of the complainant and report of the MRT squard is clear to show that the complainant was using the meter by tampering the meter. Learned counsel for the appellant drew our attention to the inspection report where it is found that the complainant has tampered the meter. Not only this but also the copy of the penal bill filed by the appellant shows that they have charged the penal amount but the complainant approached the authority to exempt him from payment of the penal bill. But under the provision of OERC Code,1998, there is provision to issue penal bill after verifying the meter by the concerned Electrical Inspector or any authorized person. Since, the report of the MRT squard is very clear that there is tampering of meter, the compliance of verifying the meter can not be subject to any dispute.
10. Learned counsel for the respondent tried to convince that there is no any wrong by the complainant but he failed to show same us. When there is meter tampering and consequently penal bill was issued for Rs.5,11,735/-, it is needless to observe that the complainant has failed to establish his case and the deficiency in service on the part of the appellant. Learned counsel for the appellant relied on the decision of the Hon’ble Supreme Court, in U.P. Power Corporation Ltd.(Supra) where Their Lordship observed that where there is tampering of meter or bypassing of meter or any misuse of power by fraudulent means, the consumer complaint will not lie. Also we found from the MRT report that there is also Civil Suit filed for the same cause of action. With due regard to the decision of Hon’ble Supreme Court, the consumer complaint is not maintainable.
11. In view of aforesaid analysis, we hereby set-aside the entire impugned order and the appeal stands allowed. No cost.
Free copy of the order be supplied to the respective parties or they may download same from the confonet or webtsite of this Commission to treat same as copy of order received from this Commission.
DFR be sent back forthwith.
