consumer forum mansa consumer forum mansa consumer case(CC) No. CC/08/137
Chiranji Lal
...........Appellant(s)
Vs.
PSEB
...........Respondent(s)
BEFORE:
1. Neena Rani Gupta 2. Sh Sarat Chander
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.137/08.09.2008 Decided on : 31.03.2009 Sh.Chiranji lal S/o Sh. Chanan Ram, Vaid Kapoor wali Gali, Ward No.16, Mansa. ..... Complainant. VERSUS Sub Divisional Officer, Punjab State Electricity Board, City, Mansa. ..... Opposite Party. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh. S.K.Singla, Advocate, counsel for the complainant. Sh.S.P.Gupta, Advocate counsel for the opposite party. Before: Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER: Sh.Sarat Chander, Member Sh.Chiranji lal (hereinafter called as the complainant) has filed the present complaint against the Punjab State Electricity Board through its Sub Divisional Officer (hereinafter called as opposite Party) for issuance of a direction to the opposite party to set aside letter No. 2027 dated 29.8.2008 and also pay him compensation to the tune of Rs.10,000/- regarding mental tension and costs in the sum of Rs.5000/-. Brief facts of this complaint are that the complainant had obtained electric connection bearing Account No.AG14/277 for domestic purposes in his house which is in occupation of his family and family of his brother at the time of installation. The complainant purchased the share of his brother and subsequently he had been paying the electric consumption charges from time to time, as such, he is the consumer of the Contd........2 : 2 : opposite party. The opposite party has served notice, vide letter No. 2027 dated 29.8.2008 , upon him raising demand of Rs.32451/-, which is illegal and is liable to be set aside because it has been issued by them, on the allegations of theft of electric energy. Neither the complainant tampered with the M&T seals of his electric meter nor tampering of M&T seals fall within theft of electric energy. Electric meter has been installed outside the house of the complainant and meter reader of the OP note down the reading every month, but he had never made any complaint regarding theft of electric energy by the complainant. The opposite party was thus stated to be deficient in service. Hence this complaint. The OP in their written version have taken certain legal objections and challenged the maintainability of the complaint on the ground that the complaint is bad for mis joinder of necessary parties as Ramesh Kumar has not been impleaded as party. On merits, it was contended that the complainant has no legal right to challenge the impugned notice as amount is to be deposited by Ramesh Kumar. The sanctioned load of the complainant is 5.82 KW and his account has been overhauled as per the rules and is bound to deposit the amount mentioned in the notice It being a case of theft of energy, the jurisdiction of this Forum has also been challenged. It was further submitted that the complainant, is not the 'consumer' within the purview of its definition given in the Act qua the electric connection installed in his house in the name of Ramesh Kumar .It is admitted that electric meter is installed outside the house of Ramesh Kumar, but duty to maintain the same is of the consumer and not of the OP. It is also admitted that meter reader note down the reading of the electric meter but they do not have any power to detect theft of energy or defect in the meter. It was denied that the demand was illegal and the OP was deficient in service towards the complainant because the task force on 29.8.2008 checked the electric meter in the presence of his representative Anil Kumar and found both the M&T Contd.......3 : 3 : seals tampered with. All other allegations were denied and a prayer for dismissal of the complaint was accordingly made. Both the parties have led their respective evidence in the shape of affidavits and documents. We have considered the arguments advanced by the learned counsel for the parties and carefully gone through the record of the case. Learned counsel for the complainant has submitted that date mentioned in the copy of the checking report below the signatures of the alleged representative of the complainant is 4.9.2008 whereas the case of the OP is that checking has been done on 29.8.2008. Demand has been raised through the impugned notice on the allegation of theft of energy by tempering with the meter, but no report of M.E. Lab has been secured after giving prior notice to the complainant, as such, impugned notice is liable to be set aside. In support of his contentions, learned counsel has relied upon 2008(I) CPJ (NC) 62 Uttari Haryana Bijli Vitran Nigam Ltd versus Gautam Plastic wherein penalty was imposed upon the consumer on the allegations of theft of electric energy, but neither the checking was done in his presence or his representative nor meter installed in his premises was got tested from the M.E.lab on account of which it was held by the Hon'ble National Commission that penalty has been levied unilaterally and it is not established that factory of the complainant was running at the time of inspection. Learned counsel further submitted that complainant was co-owner with his brother and beneficiary and user of electric energy consumed through the electric meter, as such, he has locus standi to file the complaint. On the other hand, learned counsel for the OP has submitted that in the record of the OP electric meter is installed in the name of Ramesh Kumar and notice has also been served upon him, as such, complainant has no locus standi to file the complaint and he is not a consumer within the ambit of Section 2(1)(d) of the Act. In support of his Contd........4 : 4 : contentions, learned counsel has relied upon 2005(II) CPJ 50 Maha Singh Sherawat vs SDO. In this case electric meter was in the name of previous owner and complainant never applied for transfer after purchase of house. It was held that grievance regarding non payment of the bill lies between the OP and the previous owner, but complaint is not maintainable under the Act. He has also relied upon 2005(III) CPJ 189 WBSEB vs Prabir Ranjan Dutta wherein complainant did not inform the OP regarding death of his father and did not apply for inserting of his name as consumer in its record. It was held that complainant is not consumer and there is no privity of contract between him and the OP and complaint is not maintainable. We do not find merit in the argument advanced by the learned counsel for the OP because plea of the complainant that he is in possession of house and co-owner and vender under his brother and that he is regularly making payment of electricity bills drawn by him, have gone uncontroverted. The question of ownership of the house is between the complainant and his brother. Even a co-owner can maintain the complaint in the capacity of beneficiary and user in terms of Section 2(1)(d)(ii) of the Act, as such, being beneficiary and user of electric energy, the complainant is 'consumer' under the opposite party, qua the electric connection installed in his house. Therefore, we are of the opinion that the complainant cannot be non suited on this score. Learned counsel for the OP has further submitted that as the illegal act done by the complainant was visible to the naked eye, therefore, case set up by the OP cannot be said to be false even if report of M.E.lab has not been secured. Checking of electric meter has been done in the presence of the representative of the complainant who has affixed his signatures after receipt of copy thereof and admitted the contents thereof and OP has raised the demand after calculating the liability of the complainant strictly in terms of the rules of the OP. Hence the complaint is liable to be dismissed with special costs. Contd........5 : 5 : Argument advanced by the counsel for the OP do not sound well with us because as per their case, checking has not been done in the presence of the complainant. In the copy of the checking report, Ext.OP-1, parentage and address of the person who affixed signatures on behalf of the complainant are not mentioned. There is no note on the copy of the checking report that copy thereof has been supplied to the representative of the complainant named above and there is no documentary proof showing that copy of the checking report was sent to the complainant subsequently through registered post or by any other mean, which is mandatory requirement under the rules framed by the board. As per Clause 3(e) of the Circular No.53/2006, issued by the board on the subject, the opposite parties are supposed to send the copy of the checking report to the consumer subsequently by post in case checking has been done in his absence. The signatures of the complainant are found affixed below the space meant for signatures of the consumers and at the foot note date of checking has been mentioned as 4.9.2008. In the written version, it has been claimed by the OP that checking has been done in the presence of the representative of the complainant, it is not clarified as to how the signatures of the complainant has been secured on the checking report on 4.9.2008. Notice Ext.OP-1 has been supplied to the complainant on 4.9.2008, as evident from the copy thereof, tendered in evidence by the OP. It appears that his signatures have also been secured on 4.9.2008 by the officials of the OP who served copy of impugned notice upon him. Therefore, the fact regarding checking of electric energy is not free from suspicion. There are clear indication of fabrication of facts on the face of the record. Hence the contents of the checking report cannot be said to have been admitted by the complainant himself or his representative. As mentioned in the checking report Ext.OP-2, meter installed in the house of the complainant was removed and packed at the time of checking because the officials comprising the checking team found that he was committing Contd........6 : 6 : theft of electric energy by tampering with the M&T seals. In our opinion, mere tampering with the M&T seals does not amount to theft of electric energy. Moreover, neither any notice has been served upon the complainant to appear before the M.E. lab, nor meter has been got checked from the said authority. In the given circumstances and in view of the law laid down in the authority relied upon by the complainant, we have come to the conclusion that theft of electric energy cannot be assumed on the basis of facts borne on record, as such, the impugned notice deserves to be set aside and complainant has become entitled to seek compensation and costs. Resultantly, we accept the complaint and and set aside the impugned notice Ext.OP-1 and the opposite party is burdened in the sum of Rs.2,000/-, as compensation and a sum of Rs.1,000/-, as costs, incurred by him, in filing of the instant complaint. They are further directed to refund the amount, if any, deposited by the complainant in term of interim order dated 08.09.2008, along with interest, at the rate of 9 percent per annum, from the date of deposit, till date of actual payment with the further direction to not to disconnect his electric connection for non-deposit of the amount of the impugned notice. The compliance of the order be made within the period of two months from the date of receipt of the copy of this order. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced 31.03.2009 Neena Rani Gupta, Sarat Chander, Member. Member.
