<br /> -5-<br /> 6. On the other hand, the counsel for the opposite parties has<br /> argued that Er. Darshan Singh SDO alongwith Er. Hardip Singh and JE visited the premises of the complainant on 8.2.2008 and checked the connection of the complainant in his presence and found that lash wire of M & T seals after breaking was reinstated in the clamps and screw fixed in the meter body was loosen. The complainant after removing the screw, removed the clamp disturbed the internal mechanism of the meter suppressed the consumption and was indulged in theft of electricity the demand raised by the opposite parties vide memo/letter No. 5035 dated 16.9.2008 from the complainant is in accordance with the rules and regulation of the department and hence there is no deficiency in service on the part of the opposite parties.<br /> 7. We have considered the rival contention of learned counsel for the parties. The checking report Ex.R5 prepared by the checking party headed by Senior Executive Engineer of the respondents Board indicates that the complainant found indulging in theft of electric energy by breaking lash wire of M & T seals after breaking was reinstated in the clamps and screw fixed in the meter and was disturbing the internal mechanism of the meter thus suppressed the consumption. As per the opposite parties that the copy of the inspection report was delivered to the complainant on the spot at the time of checking. And vide memo No. 5036 dated 11.9.2008 Ex.R6 is reference was made by the opposite parties to the Vigilance Police, Jalandhar for the registration of the case of theft of <br /> <br /> <br /> -6-<br /> electricity energy against the complainant with a copy to Senior Xen, Sub Urban Mandal, Kapurthala. Vide Ex.R7is the assessment order the opposite parties under Section 135 of the Electricity Act, 2007 raised a demand for Rs.39,619/- from the complainant. Vide Ex. R10 No.60 dated 15.1.2009, the opposite parties made reference to the complainant to remain present in the M.E. Lab on 21.1.2009 at the time for testing of the meter. Whereas during the course of arguments on 25.2.2009, the counsel for the opposite parties had produced the removed meter of the complainant involved in alleged theft of electricity duly sealed in the presence of the complainant and signed by the officers of the checking party as well as by the complainant before the Forum for seeking order for testing of the meter from the concerned Laboratory and has further requested for the instructions to the complainant to remain present in the M.E. Lab at the time of checking of the meter but the request of the counsel for the opposite parties could not be acceded by the Forum at this belated stage in view of likewise proceedings in a case reported as Dr.J.J.Merchant & Ors.Vs.Shrinath Chaturvedi 2002(3)Civil Court Cases 517 wherein it is held as under:-<br /> "Consumer Protection Act, 1986, S. 13 (4)<br /> Consumer Documents- Documents sued<br /> upon and relied upon should be produced<br /> alongwith complaint or written reply."<br /> It was on the raiding party to install parallel meter and should have noted difference in both the meters. The assessment order regarding demand of penalty is simply based on the checking report of opposite party, since the meter was not got tested from the ME Lab <br /> -7-<br /> before imposing the penalty whether it was running slow or it was not running properly or the seals were properly tampered with, mere allegations of pilferage of electricity by the opposite parties on the alleged facts that the seals were tampered with in the absence of corroborative evidence of report from ME Lab it cannot be held that the complainant had committed theft of electricity.<br /> <br /> Under these circumstances, it is not understood that in the absence of the test report of the ME Lab how the opposite parties imposed the penalty upon the complainant on account of the alleged theft of electricity against him. Reliance have been placed upon a case reported as HSWEB (Now HVPN) and others Versus Bhushan Lal 2007(1) CLT page 114 wherein it is held that:-<br /> <br /> "Electricity Supply - Theft of energy - Allegation<br /> by appellant that on raiding premises of <br /> respondent both M & T seals were found<br /> tampered with and terminal seal was missing -<br /> The meter was not got checked from M & T<br /> Laboratory that it was running slow or was<br /> not running properly - From the mere fact <br /> that seals were tampered with, it cannot be<br /> said that theft of energy had been committed<br /> -District Forum rightly held that it is not <br /> proved that respondent had committed<br /> theft of energy and as such quashed penalty."<br /> <br /> -8-<br /> On the other hand, the complainant had produced the energy bill issued by the opposite parties vide Ex.C4 to Ex.C9 showing the status and functioning of the meter of the complainant with 'O' Code as "OK" and have been making the payment of the energy bill served to the complainant from time to time. <br /> <br /> So in these circumstances, in the absence of such evidence of report of ME Lab, it cannot be held that the complainant had committed theft of electric energy.<br /> <br /> 8. Apropos the jurisdiction of Consumer Forum to adjudicate the dispute of theft of electricity. Matter has since been settled by Hon'ble National Commission in a case reported as Jharkhand State electricity Board Vs. Anwar Ali CPC (2) 2008 page 491 wherein it has been clearly held that:<br /> "jurisdiction of Consumer Forum to <br /> decide the dispute of electricity <br /> including theft and deal with <br /> grievance of consumer in case of <br /> deficiency in service by electricity <br /> supplies vests with them."<br /> <br /> In the ultimate analysis of our aforesaid discussion, we quash the memo No. 5036 dated 11.9.2008 for the demand of Rs.39,619/- from the complainant being illegal null and void as well as contrary to the Provision of Electricity Act, 2007 and instructions <br /> <br /> -9-<br /> of Punjab state Electricity Board. We direct the opposite parties to refund 1/3rd of the amount of Rs.39,619/- to the complainant already deposited by him vide order dated 23.9.2008 alongwith 9% per annum interest from the date of deposit till its realization. The opposite parties are also directed to pay Rs.3000/- as compensation on account of deficiency in service for which the complainant suffered mental tension, harassment and inconvenience. The opposite parties also directed to pay Rs.2000/- as costs of litigation payable by the opposite parties within one month from the receipt of <br /> copy of this judgment. Copy of the judgment be sent to the parties free of costs through registered post without any delay. File be consigned to the record room.<br /> <br /> Dated: Gulshan Prashar Paramjit Singh<br /> 25.2.2009 Member President<br /> <br /> <br />