KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
FA.136/10
JUDGMENT DATED 24.2.2011
PRESENT
SMT.VALSALA SARANGADHARAN -- MEMBER
SHRI.M.V.VISWANATHAN -- JUDICIAL MEMBER
1. KSEB reptd. by the
Secretary, Vaidyuthi Bhavan,
Pattom, Thiruvananthapuram.
2. Dy.Chief Engineer
Ele.Circle, KSEB. Thiroor.
3. Asst.Engineer, -- APPELLANTS
Electrical Sectopm.
` KSEB,Vengara.
4. APTS, KSEB,
Kozhikode.
(By Adv.S.Balachandran)
Vs.
Smt.Pathumma,
W/0 Moitheen kutty,
Maruthil House, -- RESPONDENT
Kooriyad, Vengara,
Via.Thiroorangadi,
Malappuram District.
(By Adv.R.Rajeev & Ors.))
JUDGMENT
SHRI.M.V.VISWANATHAN,JUDICIAL MEMBER
Appellants were the opposite parties and respondent was the complainant in CC.No.90/08 on the file of CDRF, Malappuram. The above complaint was filed to get the impugned demand notice cum disconnection notice dated 19.4.08 issued by the third opposite party cancelled and to get compensation of Rs.30,000/- for mental agony, hardships and financial loss suffered by the complainant on account of disconnection of the electricity supply to the premises of the complainant. The opposite parties entered appearance and the third opposite party filed written version on his behalf and on behalf of the other opposite parties. They contended that the complaint is not maintainable and that the CDRF, Malappuram has no jurisdiction to entertain the dispute regarding theft of electrical energy that the complainant committed theft of electricity and the same was detected by the anti power theft squad, Kozhikode in the joint site inspection conducted with the Sub Engineer of Electrical Section, Vengara on 18.4.08 and that the penal bill for Rs.1,41,480/- was issued to the complainant/consumer by calculating the connected load of 13.13 KW for previous one year as per rules that the demand notice issued to the complainant is in accordance with law and that the complainant is not entitled to get any compensation or any other relief in the matter. Thus, the opposite parties prayed for dismissal of the complaint with costs.
2. Before the Forum below, the complainant filed chief affidavit and the Asst. Executive Engineer, Electrical Sub Division, KSEB, Kottakkal filed counter affidavit. Exts.A1 to A5 and B1 to B6 documents were also marked on the side of the parties to the said complaint. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 19.1.10 canceling the penal bill for Rs.1,41,380/- and to adjust the amount paid by the complaint towards the said bill to the future electricity charges. The complainant is made liable to pay Rs.2500/- towards cost of the meter and also testing fee, in the event of new meter is installed in pursuance to the issuance of A2 bill. Aggrieved by the order cancelling A2 penal bill for Rs.1,41,380/-, the present appeal is preferred by the opposite parties therein.
3. We heard the learned counsel for both parties. The counsel for the appellants submitted his arguments based on the grounds urged in the appeal memorandum and argued for the position that theft of electrical energy has been detected and the same is established by preparation of B2 site mahazer dated 18.4.08 by the Sub Engineer, Electrical Section, Vengara. It is further submitted that issuance of A2 penal bill is legally sustainable and the Forum below cannot be justified in cancelling the same. Thus, the appellants prayed for setting aside the impugned order passed by the forum below cancelling A2 penal bill for Rs.1,41,380/-. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below and prayed for dismissal of the present appeal.
4. There is no dispute that the respondent/complainant is a consumer of electrical energy under LT 1 (a) tariff with Consumer No.10471. The complainant is a domestic consumer under Electrical Section, KSEB, Vengara. It is the case of the appellants/opposite parties that the respondent/complainant (consumer) committed theft of electricity and the same was detected by the surprise inspection conducted on 18.4.08. The aforesaid surprise inspection was conducted by the anti power theft squad, Kozhikode with the Sub Engineer of Electrical Section, Vengara. The surprise inspection conducted is admitted by the respondent/complainant in her written complaint. But, the respondent/complainant has categorically denied the alleged theft of electricity. According to the complainant, the aforesaid inspection was conducted on 19.4.08; but according to the opposite parties, the surprise inspection was conducted by the anti power theft squad along with the Sub Engineer, Electrical Section, Vengara on 18.4.08. Based on the alleged theft of electricity, Ext.A2 provisional notice cum demand notice was issued by the Asst. Engineer, Electrical Section, Vengara (the third opposite party). A2 provisional demand notice is dated 19.4.08. As per A2 penal provisional demand notice, the third opposite party/Asst. Engineer Electrical Section, Vengara demanded a total of Rs.1,41,380/-. The details of calculation of the penal bill amount of Rs. 1,41,380/- is given in A1 letter issued by the third opposite party/Asst. Engineer Electrical Section, KSEB Vengara. The issuance of A2 provisional notice demanding Rs.1,41,380/- is challenged by the complainant/consumer.
5. Admittedly, A2 provisional notice is a penal bill issued by the third opposite party/ Asst. Engineer, Electrical Section, Vengara based on theft of electrical energy by the complainant/consumer. The definite case of the appellants/opposite parties is that the alleged theft of electrical energy was detected in a surprise inspection conducted by anti power theft squad, Kozhikode along with the Sub Engineer, Electrical Section, Vengara. Ext.B2 is copy of the site mahazer prepared by the Sub Engineer, Electrical Section, Vengara. It is dated 18.4.08. As per B2 site mahazer, theft of electricity was done by tampering with the energy meter installed at the premises of the complainant/consumer. But, the respondent/complainant (consumer) totally denied the alleged theft of electricity and also the alleged tampering of the energy meter for the purpose of committing theft of electrical energy. In such a situation, it was incumbent upon the appellants/opposite parties to substantiate their case regarding theft of electricity and the alleged tampering of the energy meter by the complainant/consumer. But, the opposite parties have not proved Ext.A2 site mahazer to support their case regarding the alleged theft of electrical energy by the complainant/consumer. It is to be noted that the author of the original of B2 site mahazer was the Sub Engineer, Electrical Section, Vengara. But the aforesaid Sub Engineer, Alavikutty.A.P, KSEB, Vengara has not been examined before the Forum below. It is also to be noted that the author of B2 site mahazer has not even filed an affidavit in support of the case of the opposite parties that the tampering of energy meter was detected by the anti power theft squad and that by the said tampering of the energy meter theft of electricity was committed by the complainant/consumer. Moreover, the aforesaid detection of tampering of energy meter and the resultant theft of electricity was detected by the anti power theft squad, Kozhikode. The Anti power theft squad, Kozhikode unit has been impleaded as the 4th opposite party in CC.90/08. But, nobody from the anti power theft squad, Kozhikode unit has been examined to support the case of the opposite parties that there was tampering of the energy meter which was installed at the premises of the complainant/consumer and the said tampering was effected for the purpose of committing theft of electricity. Thus, in effect, there is nothing on record to support the case of the opposite parties that the complainant/consumer committed theft of electrical energy. So, the third opposite party, Asst.Engineer, Electrical Section, KSEB, Vengara cannot be justified in issuing A2 penal bill based on the alleged theft of electrical energy. The Forum below can be justified in cancelling A2 penal bill for Rs.1,41,380/-.
6. Appellants/opposite parties have got a case that the complaint in CC.90/08 is not maintainable as the CDRF, Malappuram was not having the jurisdiction to entertain the dispute involving theft of electricity. They also took up the contention that by virtue of the provisions of Section 145 of the Electricity Act, 2003 the Consumer Forum has no jurisdiction to entertain the complaint in CC.90/08. It is to be noted that Section 145 of the Electricity Act, 2003 bars the jurisdiction of Civil Court to entertain any suit or proceedings in respect of any matter which an assessing Officer referred to in Section 126 or an appellate authority referred to Section 127 or the authorized Officer appointed under the Act is empowered by or under the Act to determine. It is a well settled position that the agencies constituted under the Consumer Protection Act are not Civil Courts. If that be so, the bar under Section 145 of the Electricity Act, 2003 has no application as far as the complaint preferred before the Consumer Forum or Consumer Commission. Hence, we hold that the CDRF, Malappuram was having the jurisdiction to entertain the dispute involved in CC.90/08.
7. It is further contended by the opposite parties that the issue regarding theft of electricity is out side the purview of the Consumer Forum constituted under the Consumer Protection Act, 1986. It is to be noted that the appellants/opposite parties have not succeeded in establishing the alleged theft of electricity. The mere fact that a site mahazer was prepared by the Sub Engineer is not sufficient to hold that there was theft of electricity committed by the complainant/consumer. Moreover, the issue involved in the complaint in CC.90/08 was the issuance of A2 penal bill. The definite case of the complainant/consumer was that A2 penal bill was issued without any basis and against the provisions of the Electricity Act and the rules and regulations framed thereunder. So, the Forum below can be justified in entertaining the complaint in CC.90/08.
8. It is argued by the learned counsel for the appellants that A2 provisional electricity bill was issued under Section 126 of the Electricity Act, 2003. The Forum below also proceeded with a view that A2 provisional bill was issued by virtue of the provisions of Section 126 of the electricity Act, 2003. If that be so, the assessing Officer was bound to follow the provisions of Sub Sections 3, 4 & 5 of Section 126 of the Electricity Act, 2003. The Forum below has rightly held that the appellants/opposite parties failed to follow the provisions of Section 126 of the electricity Act, 2003. There is nothing on record to show that the Assessing Officer who issued A2 provisional bill heard the complainant/consumer in the matter. There is also nothing on record to show that the Assessing Officer passed a final order under Sub Section 3 of Section 126 of the Electricity Act, 2003. Thus, there occurred failure on the part of third opposite party who issued A2 bill in following the provisions of Section 126 of the Electricity Act, 2003. The Forum below is perfectly justified in cancelling A2 provisional bill (penal bill) for Rs.1,41,380/-.
9. Ext.A1 letter issued by the third opposite party/Asst. Engineer, Electrical Section, KSEB Vengara would show the details of calculations and as to how the bill amount of Rs.1,41,380/- has been calculated. A1 letter would show that the third opposite party (third appellant) treated the alleged theft of electricity for a period of one year (365 days). But, there is no provision in the Electricity Act, 2003 or in the Electricity Supply Code, 2005 enabling the third opposite party to take the period of theft of electricity as 365 days. Regulation 27 (a) of the Kerals Electricity Supply Code, 2005 stipulates the method of assessment of electricity charges payable in case of unauthorized use of electricity and theft of electricity pending adjudication by the appropriate court. The aforesaid Regulation also prescribes the procedure to be followed in arriving at a final assessment for recovery of the electricity charges for unauthorized use of electricity or theft of electricity. It is also stipulated in Sub Clause (f) that the assessment under the said regulation shall be made at a rate equal to 2 times the tariff applicable for the respective category of services specified in Sub Clause (e). But, there is nothing on record to show that the Assessing Officer (third opposite party) Asst. Engineer, Electrical Section, KSEB, Vengara followed the provisions of Regulation 27 (a) of the Kerala Electricity Supply Code, 2005. Thus, it can also be seen that the assessment of penal charge at Rs.1,41,380/- was also made without strictly following the provisions of the Electricity Act, 2003 and the Rules and Regulations thereunder. Thus, the Forum below has rightly cancelled the A2 penal bill for Rs.1,41,380/-.
10. The chief affidavit filed by the complainant would show that the energy meter installed at her premises was defective and the said meter was in need of replacement. So, the complainant/consumer is bound to pay cost of the energy meter which was replaced. The Forum below has rightly made the complainant liable to pay Rs.2,500/- towards cost of the meter with testing fee. It is admitted by the opposite parties in their written version that the complainant/consumer paid Rs.68,390/- on 22.4.08 towards the amount covered by A2 penal bill. So, the Forum below is perfectly justified in directing the opposite party/ Electricity Board to adjust the said amount towards the future electricity charges to be paid by the complainant/consumer. It is further to be noted that the Forum below has also taken into consideration the criminal complaint preferred by the opposite party/KSEB against the complainant with respect to the alleged theft of electricity. It is an admitted fact that on the basis of B1 complaint preferred by the Asst. Engineer, Electrical Section, KSEB Vengara, the Vengara Police has registered a criminal case against the complainant/consumer for the alleged theft of electricity. The Forum below has left the said issue for consideration of the concerned Magistrate Court. Thus, in all respects, the impugned order passed by the Forum below is to be up held. It is made clear that the appellants/opposite parties will be at liberty to proceed against the complainant/consumer on the basis of the result of the criminal complaint filed before the Criminal Court. It is also made clear that the impugned order dated 19.1.10 passed by CDRF, Malappuram in CC.No.90/08 is subject to the result of the criminal complaint pending before the concerned Criminal Court for the alleged theft of electricity. Thus, the present appeal deserves dismissal.
In the result, the above appeal is dismissed. The impugned order dated 19.1.10 passed by CDRF, Malappuram in CC.No.90/08 is confirmed. The parties to this appeal are directed to suffer their respective costs.
SHRI.M.V.VISWANATHAN -- JUDICIAL MEMBER
SMT.VALSALA SARANGADHARAN -- MEMBER
