DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No. 218/18.12.2008 Decided on : 29.5.2009. Sh. Devki Nandan son of Sh. Piara Lal son of Biria Mal, resident of Sodian Wali Gali, Nangal Colony, Mansa, Tehsil and District Mansa. ..... Complainant. VERSUS Sub Divisional Officer(C), Punjab State Electricity Board, Mansa, Tehsil and District Mansa. ..... Opposite Party. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh. S.K. Singla, Advocate counsel for the complainant. Sh. H.S. Sadhuwala, Advocate counsel for Opposite Party. Quorum: Sh. Pritam Singh Dhanoa, President. Sh. Sarat Chander, Member. Smt. Neena Rani Gupta, Member. ORDER:- Sh.Pritam Singh Dhanoa, President. 1. This complaint, has been filed, by Sh. Devki Nandan, son of Sh. Piara Lal, resident of Sodian Wali Gali, Nangal Colony, Mansa, under Section 12, of the Consumer Protection Act, 1986 (in short called the 'Act') against the Punjab State Electricity Board (hereinafter called as the board), through its SDO(City), Mansa, for setting aside, impugned Notice No. 3325 dated 12.12.2008, issued by his office, raising demand of Rs. 33796/- and for payment of compensation, in the sum of Rs. 10,000/- and costs of, the filing of the instant complaint, in the sum of Rs. 3,000/-. Briefly stated, the case of the complainant, is as under:- 2. That his predecessor-in-interest, Sh. Bhushan Rana, son of Sh. Rajinder Kumar, resident of Mansa, has got installed, electric connection, bearing Account No. WK35/741, from opposite party, for consumption of electric energy, in his house. The complainant has purchased the premises, Contd....2... : 2 : in which electric connection, has been installed, from the original consumer of electric energy, named above, vide registered sale deed, dated 9.4.2007 and has secured the possession, from him. Since then, he is making payment of electricity bills, drawn upon him, by the opposite party, for consumption of electric energy. Earlier his predecessor-in-interest, had been making, payment of electricity bills, drawn upon him. As such he is consumer of electric energy, towards the electric connection, under the opposite party and no amount is outstanding towards him, on account of electricity charges. The opposite party has served, notice vide his office Memo No. 3325 dated 12.12.2008, raising demand of Rs. 33,796/-, which is illegal, because complainant, has never indulged, in theft of electric energy nor he tempered, with the electric meter any time. The tempering of the ME seals of the electric meter, also does not, amount to, commission of theft of electric energy. Moreover, the meter readers of the board, visit the premises, of the complainant, for recording the meter reading, every month but they have not reported, any mistake on the part of the complainant. The opposite party has not got the electric meter tested, from the ME Lab., as such impugned notice, is liable to be set aside and complainant, is entitled to seek compensation and costs for filing of the complaint. Hence the complaint. 3. On being put to notice, the opposite parties filed written version, resisting the complaint, by taking preliminary objections; that complainant is not 'Consumer' of the electric energy, as per record maintained, in his office; that he is liable to make the payment of, impugned notice served, upon him, after provisional assessment, in terms of checking report dated 8.12.2008, issued by the checking team of the board, to the effect, that he had been committing theft of, electric energy, by tempering with the ME seals thereof; that the complaint pertains to, commission of theft of electric energy, as such this Forum, has no territorial jurisdiction, to entertain and try this complaint; that complaint is not maintainable and has been filed to, harass the opposite party, by concocting the facts, as such the same is, liable to be dismissed and the complainant is not entitled, to any Contd....3... : 3 : compensation and costs. On merits, factum of issuance of electric connection and impugned noticed, in the name of Sh. Ravi Bhushan Rana has been admitted, but allegations, regarding tempering of meter, have been reiterated. It is asserted, that the electric meter installed, in the premises was checked, in the presence of representative of the consumer. It is denied, that no tempering has been done, with the same. Rest of the averments made in the complaint, have been denied and a prayer has been made, for dismissal, of the complaint, with costs. 4. On being called upon by this Forum, to do so, the counsel for the complainant, tendered his affidavit and copies of documents, Ext. C-1 to C-3 and has closed his evidence. On the other hand, the counsel for the opposite party, tendered in evidence, affidavit of Sh. R.K. Goel, Executive Engineer of the board and copies of documents, Ext. OP-1 to OP-4 before he closed his evidence. 5. We have heard, the learned counsel, for the parties and gone through the oral and documentary evidence, adduced on record, by them, carefully, with their kind assistance. 6. At the out set, learned counsel, for the opposite party, Sh. H.S. Sadhuwala, Advocate, has submitted, that electric connection, has not been issued, in the name of the complainant and neither he has filed application, for transfer thereof, nor he has made any intimation, regarding purchase of premises, wherein electric connection in question is installed and as per copy of sale deed, tendered by the complainant, he has purchased a piece of land, from Ravi Bhushan Rana, not for residential premises, as such on the basis of said document, he cannot be termed, as consumer of electric energy and complaint in the present form, is not maintainable, in the Consumer Fora. In support of his contentions, learned counsel has placed reliance on 2005(1) CPC 361Maha Singh Sherawat Versus S.D.O. and Another, electric meter, was not issued, in the name of the complainant, to claim the house, where it was installed, who was recorded consumer, in the record of electricity department and he had also not filed, any application, for transfer Contd....4..... : 4 : of electric connection, in his name. It was held by the Hon'ble U.T. State Commission, Chandigarh, that complaint by the vendor against the electricity department, is not maintainable and he is not 'Consumer' of opposite party, as such dispute cannot be decided, under the Act and no relief can be granted to him. Learned counsel has argued, that in view of peculiar facts and circumstances of the case and proposition of law laid down, in the authority above, the complaint is not maintainable and complainant is not 'Consumer' of opposite party. 7. On the other hand, learned counsel for the complainant, Sh. S.K. Singla, Advocate, has submitted, that the opposite party has not denied, the possession of the complainant. However the premises, where the electric connection, is installed, he has been making payment of electricity bills, drawn upon him, by the opposite party, after date of purchase of the said premises, from the original consumer, as such he being beneficiary has locus standi, to file the complaint, which is maintainable in the Consumer Fora. In support, of his contention, the learned counsel, has placed reliance on 2006(2) CPC 137, Sat Pal Versus P.S.E.B. Through its Secretary and others, wherein it has been held, by the Hon'ble Punjab State Commission, that it is well settled law, that a person, who is staying in a house as a actual user of electricity, would be a consumer being a beneficiary. Learned counsel, has also relied upon 2008(II) CPJ 284, Jharkhand State Electricity Board & Anr. Versus Anwar Ali, wherein it has been held by Hon'ble Apex Court, that supply of electric energy is included in the deficiency of service, under the Act and person availing such service would be 'Consumer' and as such jurisdiction of Consumer Fora is not barred, by the provision of Electricity Act. Learned counsel has also relied upon 2006(IV) CPJ 157, Punjab State Electricity Board Versus Parveen Kumar Jain & Ors., wherein electric connection, was existing in the name of original consumer and was not transferred, in the name of actual user, who after death of original consumer continued, to use electric energy and paying electricity bills. It was held, that actual user of electric Contd...5... : 5 : energy or the complainant, as such are beneficiary of the person, in whose name electric connection is existing, as such, they are 'Consumers' and complaint, filed in the Consumer for a, is maintainable. 8. We find merit, in the argument advanced by the learned counsel for the complainant, because it is not the case of the opposite party, that complainant is not in occupation of premises, where electric meter installed, or that any amount is outstanding towards, the original owner. The parentage/address of the complainant, given in the copy of sale deed Ext. C-3, is same as mentioned, in the copy of impugned notice. The complainant has produced, on record, copy of registered sale deed, dated 5.4.2007, showing purchase of piece of land, from Sh. Ravi Bhushan Rana, situated in the vicinity, where electric connection, has been installed. The opposite party, has not taken any plea, in the written version, that complainant, residing in some other premises or electric meter is installed, in different premises. The opposite party has not disclosed, the date on which the electric connection, has been installed and original consumer has not come forward, to contest the impugned notice, addressed to him. In view of the facts of the case discussed and proposition of law laid down in authorities relief upon, by the counsel, for the complainant and referred above, we have no option but to hold, that complainant is 'Consumer' of electric energy, in view of the definition given in Section 2(1)(d) of the Act, in the capacity of beneficiary. The law laid down, in the authority, for the opposite party, cannot be preferred, over the law laid down, by our own Hon'ble State Commission and National Commission, in the authorities relied upon by the counsel for the complainant. 9. At this stage, learned counsel for the complainant has submitted, that checking of the meter installed, in the premises in occupation of the complainant, has not been done, in the presence of the complainant and averments made in the affidavit, have gone uncontroverted, as it is not mentioned, in his affidavit tendered in evidence, that said officer of the board, was member of the checking team, Learned Contd...6... : 6 : counsel has further submitted, that details of evidence gathered, by the members of the checking team have not found mentioned, in the checking report, as such, factum of checking, has been rendered doubtful. Learned counsel has also submitted, that as per note given, in the checking report, the complainant was found drawing electricity, at the time of checking, within the sanctioned load and demand has been raised, by drawing inference due to tempering of seal of his meter, installed in his premises. Learned counsel has contended, that mere tempering of the seal, does not amount, to commission of theft of electric energy and no report of ME Lab., has been secured, by the opposite party, to prove factum of theft of electric energy, as such, impugned notice is not sustainable and the complainant is entitled to seek compensation and costs from the opposite party. In support of his contention, learned counsel has placed, reliance on 2007(II) CPJ 282, Gurcharan Singh Versus Punjab State Electricity Board & Anr., wherein it has been held, by the Hon'ble State Commission, that mere tempering of seal, may not lead, to conclusion, that consumer has been committing, theft of electric energy. The learned counsel has also, relied upon 1994(I) CPJ 74, H.S.E.B. Versus Krishan Dev, checking report does not bear the signatures of the complainant or his representative. It was held, that there is statutory violation of conditions, of supply of checking report on the part of the opposite party, as required under Section 24(A)(ii)(3) and 24-A(v)(i) of Electricity Act. 10. On the other hand, learned counsel for the opposite party, has urged, that complainant, has not availed the opportunity of being heard, nor he has filed any objection. The demand raised, after provisional assessment in terms of provisions of under Section 126 of the Indian Electricity Act, 2003, by the opposite party, within stipulated period mentioned, in the notice, as such he cannot, be non suited, on the technicalities of procedure or because of any weakness, in the case of opposite party. Learned counsel has prayed, that complaint being false and vexatious, deserves to be dismissed. Contd...7... : 7 : 11. We do not find, merit in the argument, advanced by the learned counsel, for the opposite party because checking report Ext. OP-1, does not bear the signatures of the complainant or his representative above the space meant, for the purpose. However, it is mentioned below the said column, at the foot note of the document, but here identity is not made clear. The initial onus was upon the opposite party, to prove the factum of tempering of the seals, because such plea has been taken by him, but he has failed to prove the said onus by producing, any evidence, to the satisfaction of this Forum. The opposite party has tendered, in evidence affidavit of Sh. R.K. Goel, Executive Engineer Ext. OP-4, but his name is not found mentioned, as officer incharge or member of the checking team, in the written version, whereas the complainant, in his affidavit tendered, as Ext. C-1, has reiterated the allegations made in the complaint verbatim. The details of the evidence gathered by the members of the checking team are also not found mentioned in the checking report. As such, factum of checking is not free from suspicion. 12. There is no proof of supply of copy of checking report, to the complainant or his representative at the time of checking. In case the representative of the complainant was not present or refused to accept copy, it was incumbent upon the checking team, to affixed a copy of checking report, at his premises. The opposite party was also required, to sent a copy of checking report subsequently, to the complainant, through registered post, as required vide Clause 3(e) of the Circular No. 53/2006, issued by the board on the subject, as such factum of checking is not free from suspicion. There is also non compliance of the instructions issued, by the board, on the subject. 13. For the aforesaid reasons, the impugned notice is not sustainable and is liable, to be set aside. Since the complainant has been subjected to, mental and physical harassment, on account of service of illegal notice, raising demand of huge amount and has to incur avoidable expenses, for filing of the complaint, as such he is entitled to, payment of Contd....8.... : 8 : adequate amount, of compensation and costs. 14. In the light of our above discussion, we accept the complaint and set aside, the impugned notice issued, by the opposite party, vide his office Memo No. 3325 dated 12.12.2008, raising payment of Rs. 33,796/-. The opposite party, is also burdened, in the sum of Rs. 2000/- on account of compensation and in the sum of, Rs. 1000/- as costs, with further direction, that if the complainant, had deposited, any amount, in terms of interim order, dated 18.12.2008, the same may be refunded, to him, alongwith interest @ 9% per annum, from the date of deposit, till the date of payment. The compliance of this order be made within, a period of two months, from the date of receipt of the, copy of this order. 15. 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: 29.5.2009 Neena Rani Gupta, Sarat Chander, P.S. Dhanoa, Member. Member. President.
