By this order of ours we are disposing off 2 appeals received by transfer from Punjab State Commission, under the orders of Hon’ble National Commission as these are arising out of the order dated 17.12.2003 passed by District Consumer Disputes Redressal Forum, Patiala, Punjab (for short hereinafter to be referred as District Forum) in complaint case No. 249 of 5.5.2003.

2.         Briefly stated the facts of the case are that the complainant was having an electric connection bearing account No. MS 33/110 with sanctioned load of 61.393 KW. He is running a Briquetting for earning his livelihood by self- employment. The OP vide its letter bearing No. 823 dated 30.4.2003 raised a demand of Rs.1,77,669/- from the complainant within two days as the ME Lab had detected scratches on the meter, readings having been upset and the hole on the upper side of the meter. The checking was conducted on 29.8.2001 but nothing incriminating was observed by the OP and it was mentioned in this report that checking was conducted on the request of AEE Sub Division, Rajpura, on the account of counter figures not found in straight line and in order to avoid confusion in recording monthly readings, the meter be replaced. The meter was replaced by the OP and the removed meter duly packed in a box by the staff of OP and the complainant was asked to reach the ME Lab on 25.1.2002, which he did. The box was opened but no hold, scratch etc. were found by the laboratory staff and the officials of the Electricity Board was asked to submit the consumption data. The meter was put in the box but not sealed. In response to the notice, on 7.4.2003 the complainant again attended the ME Lab but the meter was not checked in his presence. The OP raised the aforesaid demand against the complainant on the allegation of theft of energy but the complainant submits that the aforesaid demand is unjustified, illegal and against the rules and regulations as the complainant never committed any theft of energy. Hence, the complaint was filed by the complainant seeking the quashing of the demand raised by the OP along with payment of compensation and costs.

3.         Reply was filed by the OP and they pleaded that the complainant is not a consumer as he had used the electricity for commercial purpose. It was pleaded that the connection was checked by the Additional S.E. PSEB Enforcement on 25.8.2001 in the presence of AEE Operation Sub Urban Division, Rajpura and representative of the complainant. The meter was ordered to be changed and the removed meter was sent to the ME Lab on 25.1.2002, on that date the ME Lab wanted the consumption data of two years prior to 25.1.2002 and the consumption data of new meter. The consumption data of new meter was observed but the complainant did not appear in the ME Lab and again notices dated 31.3.2003 and 7.4.2003 were issued to the complainant for attending the checking. The meter was checked on 10.10.2003 and it was reported that there was hold on the upper side cover of the meter which amounted to theft of energy. So, the demand raised by the OP from the complainant was as per the rules and was justified.  Hence, there was no deficiency in service on its part and prayed for dismissal of the complaint.

4.         The parties led their evidence in support of their contentions.

5.         The District Forum allowed the complaint as the allegation of theft of energy was not established and the impugned demand was quashed. The OP was directed to pay Rs.500/- as costs of the complaint.

6.            Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the complainant and submitted that the order passed by the learned District Forum suffers from illegality so far as grant of compensation inspite of holding the respondent ‘deficient’ in providing services is concerned. The appellant is a heart patient and he has suffered mental agony and harassment, besides monetary loss, reputation in market. All these factors have not been considered by the learned District Forum while considering the question of compensation and it is prayed that appeal may kindly be accepted and compensation of Rs.25,000/- for the mental agony and harassment etc. be granted in the interest of justice. The order passed by the learned District Forum be modified to this extent as costs of Rs.500/- awarded by the learned District Forum is too meager and prayed that these may also be increased suitably.

7.         Other appeal bearing RBT No. 481 of 2009 in FA No. 146 of 2004 was filed by the Punjab State Electricity Board in which it has been submitted that the complainant had taken the connection for a heavy load of 61.393 KW under the category of Medium Supply Consumer and was using the electricity for commercial purpose. The complainant admitted that he has 4-5 employees working with him and as such industrial activity could not be by way of self employment for earning only his livelihood. The appellant submits that a number of rulings were cited to show that the complainant was using electricity for commercial purposes but the learned District Forum ignored all the ruling and gave a wrong finding that the complainant was not excluded from the definition of consumer under the CPA, 1986. The learned District Forum did not consider the evidence in the form of affidavits of SDO, AEE and JE filed by the Punjab State Electricity Board  and they were not called for cross examination. It was submitted by the appellant that it is wrongly stated by the complainant and wrongly confirmed by the learned District Forum that on 25.1.2002 no defect was found in the meter. This was incorrect because in the report filed by the complainant as annexure C-7, it was duly mentioned that the reading figure in the meter was upset showing prima facie that the meter had been tempered. The learned District Forum has also given wrong finding that the meter was checked in the absence of the complainant without giving notice to him to be present to attend the checking of the meter. It is admitted by the complainant that a number of notices were given to him for this purpose but has wrongly stated that he was present in the ME Lab on all these dates but the meter was not checked. The complainant did not attend the ME Lab inspite of number of notices given to him and thereafter a decision was taken to check the meter in his absence. This fact is also clear from the final notice given to him for appearance on 7.4.2003.  When he did not appear to get the meter checked in his presence, the meter was checked in his absence on 10.4.2003 and therefore no illegality committed by the appellant and there was no deficiency in service on its part. Hence, it is prayed that the appeal may kindly be accepted and the operation of the impugned order may kindly be stayed.

8.         We have heard Sh.Munish Goel, Advocate for Sh.Dharam Singh/complainant and Sh.G.S.Kanwar, Advocate for Punjab State Electricity Board/OP and carefully gone through the file.

9.         After hearing the learned counsel for the parties and perusal of the record as well as of the impugned order, we have observed that the complainant is running a business of Briquetting for earning his livelihood. An electric connection bearing No. MS 33/110 with sanctioned load of 61.393 KW was installed in the premises of the complainant by the OP. The checking of the above said meter was conducted on 29.8.2001 on the request of AEE Sub Division, Rajpura on account of counter figures not found in straight line and in order to avoid confusion in recording monthly readings, the meter be replaced. The said meter was replaced and the disputed meter was sent to ME Lab for checking. On account of theft of energy vide its letter No. 823 dated 30.4.2003 the OP directed the complainant to deposit Rs.1,77,669/- within two days as the ME Lab has detected scratches on the meter, readings having been upset and the hole on the upper side of the meter. From the perusal of the documents placed on file, we have come to the conclusion that proper procedure was not adopted by the OP as per rules whereas it is mandatory that the meter should be put in a sealed box but in the present case although the meter was put in the box but it was not sealed. Moreover the OP failed to prove that the complainant had committed theft of energy. The allegation of theft of energy is of criminal nature and had to be proved with cogent and reliable evidence which the OP had failed to produce. Accordingly the learned District Forum awarded the penalty of Rs.1,77,669/-. In our view the learned District Forum had rightly quashed the penalty levied upon the complainant as per law. Therefore, the order passed by the learned District Forum is well reasoned, fair and proper and no interference is called for. Hence, the appeal filed by the complainant for awarding compensation is dismissed as the demand raised for the compensation by the complainant is unreasonable and the impugned order passed by the learned District Forum is upheld.

10.       In the cross appeal filed by the Punjab State Electricity Board, it was contended that the complainant intentionally did not appear to get the meter checked. On the other hand this contention of the OPs was also strongly rebutted by the complainant. As regards second objection taken by the Punjab State Electricity Board that the complainant is running business of Briquetting for commercial purposes but from the perusal of the file and has already been held by the learned District Forum in para No. 6 of the impugned order that the complainant is running a business of Briquetting for his livelihood. We do agree with the findings given by the learned District Forum that the complainant is running this business for self employment and for earning his livelihood. We don’t find any force in the appeal. Therefore,  it is also dismissed and the order passed by the learned District Forum is upheld.

11.     In this view of the matter, both the appeals filed by both the parties against the same impugned order are hereby dismissed as devoid of any merit.

12.          Copies of this order be sent to the parties, free of charge.

Pronounced.

22^nd April, 2010.