DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.22/03.02.2009 Decided on : 25.05.2009 Sh. Harish Kumar S/o Sh. Harbans Lal, S/o Sh.Shadi Ram S/o Sh.Balak Ram, Ramji Pradhan Wali Gali,Ward No.13, Mansa. ..... Complainant. VERSUS Sub Divisional Officer, City, Punjab State Electricity Board, 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.S.Aulakh, Advocate counsel for the Opposite Party. Quorum: Sh.P.S. Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S. Dhanoa, President This complaint has been filed by Sh. Harish Kumar son of Sh. Harbans Lal, a resident of Mansa, against Punjab State Electricity Board, (in short called the 'board'), through its Sub Divisional Officer, Mansa, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'), for setting aside impugned Memo dated 21.01.2009 and for award of compensation in the sum of Rs.5,000/- for physical and mental harassment and costs of filing of instant complaint in the sum of Rs.2,000/- on the averments, which may, briefly be described as under: 2. That the grand father of the complainant Sh. Shadi Ram S/o Contd........2 : 2 : Sh.Balak Ram secured electric connection bearing Account No.SR-18/102 from the opposite party for consumption of electricity for domestic purposes. Since the date of installation of the said electric connection, he had been regularly making payment of amount of electricity bills, drawn upon him, till his death. After his death, Sh. Harbans Lal, father of the complainant has been making use of the electric connection and making payment of electricity bills drawn upon him. The complainant started making use of the electric energy after the demise of his father and has been making the payment on account of electricity bills and no amount is outstanding towards him on that score. As such, he is consumer of electric energy under the opposite party. He has never tampered with the electric meter installed in his house, but the opposite party has served notice upon him vide his office Memo No. 213/ FS dated 21.1.2009 raising demand of Rs.28,140/-, on the allegation that he has been committing theft of electric energy. The said memo is illegal and liable to be set aside, as there is no allegation except that complainant has tampered with the ME seals of his electric meter and the opposite party has not got the electric meter, removed from his premises, checked from the M.E. Lab. As such, there is deficiency in service on his part. Since the complainant, has been subjected to mental and physical harassment due to service of impugned notice raising of demand of huge amount, and the opposite party has failed to withdraw the same inspite of being approached by him. Hence this complaint. 3. On being put to notice, opposite party filed written version, resisting the complaint, by taking preliminary objections; that the complainant is not a consumer under the opposite party within the ambit of its definition given in the Act; that the complainant, has no locus standi and cause of action to file the instant complaint; that this Forum has no jurisdiction, to entertain and try the complaint, because case pertains to commission of theft of electric energy, and his complaint, being false and Contd........3 : 3 : frivolous, is liable to be dismissed. On merits, the factum of issuance of electric connection, in the name of Sh.Shadi Ram grandfather of the complainant, for domestic purposes is admitted along with the fact that impugned notice has been served upon him by the opposite party vide his office Memo dated 21.1.2009, raising demand of Rs.28,140/- on account of theft of electric energy after provisional assessment as per rules of the board on the subject. It is submitted that on 19.1.2009 the checking of the premises of the complainant was done by checking team of the board in the presence of the complainant and it was found that he has tampered with the ME seals of the electric meter, body of which was also found open ed because of which demand of Rs.28,140/- has been raised vide Memo dated 21.1.2009 under Section 126 of the Indian electricity Act after provisional assessment, which he is liable to pay. It is denied that there is any deficiency in service on the part of the opposite party or that impugned notice is liable to be set aside and opposite party is liable to make payment of compensation and costs. Rest of the averments made in complaint have been denied and a prayer has been made for dismissal of the same with costs. 4. On being called upon by this Forum, to do so, the counsel for the complainant tendered his affidavit, Exhibit C-1, copy of impugned notice Exhibit C-2 and copy of bill Ext.C-3 closed the evidence. On the other hand the learned counsel for the opposite party tendered in evidence affidavit of Sh.R.K.Goyal,XEN (Enforcement) Ext.OP-1, photocopy of checking report Ext.OP-2 and closed 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. To begin with Sh.S.S.Aulakh, Advocate, learned counsel for the opposite party, has submitted that complainant is not recorded consumer in the record maintained, by the board and neither he nor his Contd........4 : 4 : father had filed any application for transfer of the same in their names, after the demise of consumer, as such, complainant is not a consumer, within the purview of its definition given in the Act and, has no locus standi, to file the complaint and for the said reason is not maintainable before the Consumer Fora. 7. On the other hand, learned counsel for the complainant, Sh.S.K.Singla, Advocate has submitted that complainant is beneficiary as he is making the use of the electric connection after death of his father and grandfather, as such, he cannot be non suited on that score and has locus standi to file the complaint which is maintainable before the Consumer Fora. 8. We find substance in the argument advanced by the learned counsel for the complainant, because as per definition of the word 'consumer' given in Section 2(1)(d)(ii) of the Act, a person who avails of any services for consideration including beneficiary thereof is a consumer, although, electric connection admittedly has been secured by Sh.Shadi Ram, grandfather of the complainant. The averments made in the complaint regarding death of Sh.Shadi Ram and father of the complainant, have not been specifically denied by the opposite party in the written version, as such, they are deemed to have been admitted by him. The opposite party, has also not denied the fact that complainant is in occupation of the house where the said electric connection, has been installed and it is also not their case that he is not depositing the amount of electricity bills drawn in the name of the consumer for consumption of electricity through the electric meter in question. Therefore, we are of the considered opinion that complainant has locus standi to file the complaint being consumer of electricity and complaint filed by him in the Consumer Forum is maintainable. The argument advanced by the opposite party thus stands repelled. 9. Learned counsel for the complainant, has further submitted Contd........5 : 5 : that checking has not been done in the presence of the complainant or his representative and no proof of supply of copy of checking report to the complainant has been brought on record by the opposite party alongwith the fact that its copy was affixed on his premises or supplied to his representative. Learned counsel argued that report of the M.E. Lab., has not been secured, as such, mere unsubstantiated allegations of tampering with seals of meter, does not prove the commission of theft of electric energy on the part of the complainant, which is a serious allegation and if established, can lead to serious consequences. Learned counsel, has argued that details of evidence gathered at the time of checking have not been mentioned in the checking report, as such, factum of checking is not free from suspicion. Learned counsel urged that there is non compliance of rules framed by the board on the subject and there being deficiency in service on the part of the opposite party, impugned notice is not sustainable and is liable to be set aside and complainant is entitled to seek compensation and costs from the opposite party, as demanded in the instant complaint. 10. On the other hand, learned counsel for the opposite party, has submitted that the checking of the electric meter has been done in the presence of the representative of the complainant, who affixed his signatures on the checking report prepared at the spot, as such deficiency in service cannot be presumed on the part of the opposite party, even if meter removed from the premises of the complainant, has not been got checked from the M.E. lab. Learned counsel further submitted that the complainant has not specifically denied the factum of checking of the electric meter in his affidavit Ext.C-1, whereas the opposite parties have tendered in evidence affidavit of Sh.R.K.Goyal, Executive Engineer (Enforcement) Ext.OP-1, against whom no enmity has been alleged by the complainant. Learned counsel urged that there is no deficiency in service which may invite indulgence of this Forum, as sought through the Contd........6 : 6 : instant complaint by the complainant. In support of his contentions, learned counsel has placed reliance upon 1998(I) CLT 591 Haryana state Elelctricity Board, Panchkula and Ors versus Krishan Kumar wherein M&T seals of the meter installed in the premises of the complainant were found defaced/tampered and it was established that representative was present at the spot because of which demand raised by the board was found to be correct and order passed by the Consumer Forum allowing the complaint was set aside. 11. The opposite party has tendered in evidence copy of checking report Ext.OP-2 which bears the signatures of one Raj Kumar at two places at the foot note, but his parentage, address and relationship with the complainant are not disclosed. Even Sh.R.K.Goyal, XEN (Enforcement) has failed to disclose the same in his affidavit Ext.OP-1. There is no note or remarks in the checking report about the supply of copy to the representative of the complainant or affixation thereof on his premises after he refused to receive the same or that it was sent to the complainant subsequently through registered post as mentioned in in Clause 3(e) of the Circular No.53/2006, issued by the board on the subject. The checking report even does not found mention about the details of evidence gathered by the members of the checking team as envisaged in Clause 3(d) of the above said circular. Moreover, in the written version, it is not specifically stated that Sh.R.K.Goyal, Executive Engineer (Enforcement) of the board had personally conducted the checking of the electric meter installed in the premises of the complainant, who has filed his affidavit Ext.C-1 reiterating all the allegations made in the complaint including factum of checking on solemn affirmation. As such, factum of checking itself is not free from suspicion. Moreover, the allegations against the complainant are that he had tampered with the ME seals of the meter and body thereof was found opened, but it is not the case of the opposite party that apart of above said act, further act to facilitate commission of theft of Contd........7 : 7 : electric energy was also found to have been done by the complainant. In our considered opinion, the mere tempering of the seals and body of the meter, does not amount to commission of theft of electric energy. As per remarks given in the checking report, actual load being drawn, by the complainant at the time of checking, was found, within sanctioned limit. There is nothing on record to suggest that meter removed, from house of the complainant, was sent to the M.E. Lab for checking, in his presence, although as per note No.2 given in the checking report, Sh.Narinder Kumar, J.E. was directed to pack and seal the electric meter removed from the premises of the complainant. As per Regulation No.9.9.1, of the Sales Manual published by the board, meter removed from the premises of the complainant has to be got checked from the M.E. Lab within stipulated period , but the opposite party has failed to ensure compliance of the said provision. The theft of electric energy is a serious offence , which leads to serious consequences, if established. As such, onus was heavy on the opposite party to prove the said fact by producing cogent and convincing evidence, which he has failed to discharge. As such, he cannot succeed on the basis of any weakness in the case of the complainant or for want of enmity between him and the officials or officers of the board. In 1994 (I) CPJ 74, H.S.E.B. Versus Krishan Dev, it has been held, by the Hon'ble Haryana State Commission, that it is well settled ad-age of the law, that mere suspicion cannot, take the place of proof and the conjectural ground, that the possibility of an attempt, to commit theft could be ruled out. Since the opposite party has failed to prove that complainant had been committing theft of electric energy by tampering with his meter, therefore, impugned notice is not sustainable and is liable to be set aside. 12. After balancing the probabilities of evidence adduced on record by the parties, we have come to the conclusion that complainant remained successful in proving that raising of demand of huge amount by the opposite party is deficiency in service because of which he has been Contd........8 : 8 : subjected to mental and physical harassment. Therefore, he is also entitled to payment of adequate amount on account of compensation and costs and impugned notice is liable to be set aside. 13. Resultantly, the complaint is allowed and we set aside the impugned notice, Ext.C-2, served upon the complainant, vide Memo No.213 dated 21.1.2009 by the opposite party raising demand of Rs.28,140/-, with direction to the opposite party to pay a sum of Rs.2,000/-, on account of compensation, and a sum of Rs.1,000/- as costs of filing of instant complaint with further direction, to refund the amount of Rs.9,500/-, if paid, by the complainant in terms of the interim order dated 3.2.2009, with interest, at the rate of 9 percent, from the date of deposit, till the date of actual payment. The compliance of this order be made within a period of two months from the date of receipt of the copy of the order. 14. The copies of this order be supplied to the parties free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 25.05.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
