DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.48/09.03.2009 Decided on : 25.05.2009 Sh. Joginder Pal S/o Sh. Amar Nath, S/o Sh.Moti Ram @ Malli Ram, Pind Wali Gali,Ward No.18, Mansa. ..... Complainant. VERSUS 1.Sub Divisional Officer, City, Punjab State Electricity Board, Mansa. 2. Executive Engineer, Punjab State Electricity Board, Mansa. ..... Opposite Parties. 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 Parties. 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. Joginder Pal son of Sh. Amar Nath, a resident of Mansa, against Punjab State Electricity Board, (in short called the 'board'), through its Sub Divisional Officer and Executive Engineer, Mansa, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'), for setting aside impugned Memo dated 13.2.2009 and for award of compensation in the sum of Rs.10,000/- for physical and mental harassment and costs of filing of instant complaint in the sum of Rs.5,000/- on the averments, which may, Contd........2 : 2 : briefly be described as under: That the grand father of the complainant Sh. Moti Ram @ Malli Ram secured electric connection bearing Account No.PA-22 /095 from the opposite parties 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. Amar Nath, 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 parties. He has never tampered with the electric meter installed in his house, but the opposite parties have served notice upon him vide their office Memo No. 268 dated 13.2.2009 raising demand of Rs.28,595/-, on the allegations 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 body thereof. The opposite parties have not got the electric meter, removed from his premises, checked from the M.E. Lab. The meter reader of the board who visited the premises of the complainant for recording reading of the electric meter consumed by him had never reported any tampering of the seals or theft of electric energy by him, as such, there is deficiency in service on their part. Since the complainant, has been subjected to mental and physical harassment due to service of impugned notice raising of demand of huge amount, hence this complaint. On being put to notice, opposite parties filed written version, resisting the complaint, by taking preliminary objections; that the complainant is not a consumer under the opposite parties within the ambit of its definition given in the Act; that the complainant, has no locus standi Contd........3 : 3 : 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 frivolous, along with the fact that impugned notice has been served upon him by the opposite parties vide is liable to be dismissed. On merits, the factum of issuance of electric connection, in the name of Sh.Moti Ram grandfather of the complainant, for domestic purposes is admitted their office Memo dated 13.2.2009, raising demand of Rs.28,595/- on account of theft of electric energy after provisional assessment as per rules of the board on the subject. It is submitted that on 11.2.2009 the checking of the premises of the complainant was done by the Enforcement staff of the board and it was found that he has tampered with the ME seals of the electric meter, body of which was also found open because of which demand of Rs.28,595/- has been raised vide Memo dated 13.2.2009 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 parties or that impugned notice is liable to be set aside and they are 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& C-3 and copy of impugned notice Exhibit C-2 and 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. 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. To begin with Sh.S.S.Aulakh, Advocate, learned counsel for Contd........4 : 4 : the opposite parties, has submitted that complainant is not recorded consumer in the record maintained, by the board and neither he nor his 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. 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. 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.Moti Ram, grandfather of the complainant. The averments made in the complaint regarding death of Sh.Moti Ram and father of the complainant, have not been specifically denied by the opposite parties in the written version, as such, they are deemed to have been admitted by him. The opposite parties, have 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 Contd........5 : 5 : opposite party thus stands repelled. Learned counsel for the complainant, has further submitted that checking has not been done in the presence of the complainant. The particulars of the persons who affixed his signatures at the time of checking on the checking report are not being disclosed, which also does not bear the details of evidence gathered at the time of checking. Learned counsel argued that no proof of supply of copy of checking report to the complainant at any stage has been brought on record by the opposite parties alongwith the fact that its copy was affixed on his premises or supplied to his representative and the name of the officer who had filed the affidavit is not found in the written version as member of the checking report, whereas the complainant has denied the factum of checking in his affidavit, as such, there is deficiency in service on the part of the opposite party. 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, 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 impugned notice is not sustainable and is liable to be set aside and complainant is entitled to seek compensation and costs from the opposite parties, as demanded in the instant complaint. On the other hand, learned counsel for the opposite parties, has submitted that the checking of the electric meter has been done in the presence of the representative of the complainant and he has not specifically denied the said fact in his affidavit tendered in evidence, whereas the case of the opposite parties is proved by the affidavit of Sr. X.E.N. of the board tendered in evidence. Learned counsel further argued that senior officer of the board has no reason to plant a false case upon the Contd........6 : 6 : complainant, if he had not tampered with the M.E. Seals and body of the electric meter installed in his premises. Learned counsel further argued that as the representative of the complainant had admitted the factum of checking and contents of the checking report after receiving the copy thereof, as such, it cannot be said that there is any deficiency in service on the part of the opposite parties, merely because meter removed from the premises of the complainant, has not been got checked from the M.E. lab. Learned counsel urged that there is no deficiency in service which may invite indulgence of this Forum, as sought through the instant complaint by the complainant. Argument advanced by the learned counsel for the opposite parties has failed to sound well with us, because in the copy of checking report Ext.OP-2, tendered in evidence by the opposite parties, signatures of one Neelam Rani, has been found affixed above the space meant for the signatures of the consumer of the electric meter. Even her signatures are found affixed at the foot note again. The complainant has reiterated the allegations made in the complaint denying that he was present at the time of checking. In his affidavit, Ext.OP-1, Sh.R.K.Goyal, Executive Engineer (Enforcement) has failed to disclose even the name of the representative of the complainant, who was present at the time of checking . 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 envisaged in Clause 3(e) of the Circular No.53/2006, issued by the board on the subject. 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. As per Regulation No.9.9.1 of the Sales Manual published by the board, meter Contd........7 : 7 : removed from the premises of the complainant has to be got checked from the M.E. Lab within stipulated period, although as per note No.2 given in the checking report, Sh.Gurbax Singh, J.E. was directed to pack and seal the electric meter removed from the premises of the complainant. but the opposite parties have failed to ensure compliance of the said provision. Moreover, the allegations against the complainant are that he had tampered with the ME seals of the meter and body thereof was found open, but it is not the case of the opposite parties that apart of above said act, other overt act 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. The theft of electric energy is a serious offence , which leads to serious consequences, if established, as such, the 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 2007(II) CPJ 282 Gurcharan Singh versus Punjab State Electricity Board & Anr, it has been held by the Hon'ble Punjab State Commission that mere tampering of seals may not lead to conclusion that there has been theft. As such, demand notice was quashed. In 2007(III) CPJ (NC) 410 Dakshin Haryana Bijli Vitran Nigam Limited versus Suresh Kumar, penalty was imposed upon the consumer on the contention of the opposite party that M&T seals were found tampered. The plea of the opposite parties was rejected and it has been held by the Hon'ble National Commission that checking report does not show how and in what manner seals were tampered with. As such, penalty was quashed, and impugned order was upheld in revision. Since the opposite parties have 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. Contd........8 : 8 : In the light of the above discussion and being fortified by the ratio of judgment delivered in the above referred authorities, we have come to the conclusion that complainant remained successful in proving that raising of demand of huge amount by the opposite parties is deficiency in service because of which he has been 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. Resultantly, the complaint is allowed and we set aside the impugned notice, Ext.C-2, served upon the complainant, vide Memo No.268 dated 13.2.2009 by the opposite parties raising demand of Rs.28,595/-, with direction to the opposite parties 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 9.3.2009, 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.
