DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.35/17.02.2009 Decided on : 29.05.2009 Smt.Kiran Bala W/o Sh. Ravinder Mohan, S/o Sh.Sukhdev Raj, Opposite Railway Bridge, Ward No.11, Mansa. ..... Complainant. VERSUS Assistant Executive Engineer, Sub Urban, Sub Division, 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.T.C.Mittal, 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 Smt.Kiran Bala wife of Sh. Ravinder Mohan, a resident of Mansa, against Punjab State Electricity Board, (in short called the 'board'), through its Assistant Executive Engineer, Mansa, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'), for setting aside impugned Memo dated 29.12.2008 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: Contd........2 : 2 : 2. That Sh. Gora Singh S/o Sh.Tulsi Singh secured electric connection bearing Account No.GS33/47 from the opposite party for consumption of electricity for domestic purposes at his residential house situated in front of railway bridge at Mansa. The house in which the electric connection is installed, has been purchased by the complainant from the said owner vide sale deed dated 24.10.2002. Since then she is using the same as beneficiary and had been regularly making payment of amount of electricity bills, drawn upon her, and no amount is outstanding towards her on that score. As such, she is consumer of electric energy under the opposite party. She has never tampered with the electric meter installed in her house, but the opposite party has served notice upon her vide his office Memo dated 29.12.2008 raising demand of Rs.30,909/-, on the allegations that she 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 opened the body of her electric meter. The meter reader of the board who visited the premises of the complainant for recording reading of the electric meter installed therein have never reported any such act committed by her. The opposite party has not got the electric meter, removed from her premises, checked from the M.E. Lab. As such, there is deficiency in service on his part. The complainant was not present at the time of checking and she 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 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; that the complainant is liable to Contd........3 : 3 : make the payment of amount mentioned in the notice served upon the original consumer after provisional assessment; that the complainant has concealed the material facts in the complaint; and her complaint, being false and frivolous, is liable to be dismissed. On merits, it is submitted that electric connection has not been issued in the name of the complainant and she is not consumer of the electric energy under the opposite party. The complainant has neither conveyed any intimation regarding purchase of the premises where electric meter is installed, nor filed any application for transfer of the same in her name. It is submitted that complainant has moved an application with the opposite party informing that meter has been burnt, which was replaced and previous meter removed from her premises, was sealed and packed in the presence of original consumer Gora Singh on 12.12.2008, who affixed his signatures on the challan, but lateron it was found in the M.E. Lab by the officials of the board that meter was burnt by opening the cabinet thereof, as such, it is a case of commission of theft of electric energy. It is reasserted that impugned notice raising demand of Rs.30,909/- after deduction of Rs.3274/-, deposited by the consumer as electric charges for the period December, 2007 to October, 2008, has been correctly served upon the original consumer Gora Singh on the basis of the checking and and she is liable to deposit the amount. It is denied that there is deficiency in service on the part of the opposite party or that impugned notice served upon the original consumer, is liable to be set aside and opposite party is bound to make payment of any 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. On being called upon by this Forum, to do so, the counsel for the complainant tendered her affidavit, Exhibit C-1 and copies of documents Ext.C-2 to C-4 and closed the evidence. On the other hand, the learned counsel for the opposite party tendered in evidence affidavit of Contd........4 : 4 : Sh.Uttam Bansal, Assistant Executive Engineer Ext.OP-1, and photocopies of documents Ext.OP-2 to Ext. OP-7 and closed the 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. To begin with Sh.T.C.Mittal, Advocate, learned counsel for the opposite party, has submitted that complainant is not recorded consumer in the record maintained, by the board and she has neither conveyed any intimation regarding purchase of the premises where electric meter is installed, nor filed any application for transfer of the same in her name, as such, complainant not being a consumer, within the purview of its definition given in the Act, has no locus standi, to file the complaint which is not maintainable in the Consumer Fora. Learned counsel has relied upon 2005(1) CPC 361Maha Singh Sherawat Versus S.D.O. and Another, wherein 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 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 authorities referred above, the complaint is liable to be dismissed 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 over the premises, where the electric connection, is installed, or that any amount is outstanding as arrears of electric charges after purchase of the premises, from the Contd........5 : 5 : original consumer by the complainant, as such she being a 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 definition of 'service', under the Act and person availing such service would be 'Consumer' as such jurisdiction of Consumer Fora is not barred, by the provisions of Electricity Act, 2003 which are parallel to the provisions of the Consumer Protection Act, 1986, and jurisdiction of Consumer Fora is saved by Section 174 and 175 of the Indian Electricity Act and it cannot be curtailed in the absence of express provision prohibiting its jurisdiction. Lastly 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 to pay amount of electricity bills. It was held, that actual user of electric energy are the complainants, as such, they are beneficiary of the person, in whose name electric connection is existing, and they are 'Consumers' and complaint, filed in the Consumer Fora, is maintainable. We find merit, in the argument advanced by the learned counsel for the complainant. As per the admitted facts, electric connection has been got installed in the name of Gora Singh son of Sh.Tulsi Singh, who is recorded as 'consumer' in the record of the opposite party. The impugned notice Ext.C-2 has also been served by the opposite party upon Contd........6 : 6 : him. However, complainant has produced on record copy of registered sale deed dated 24.10.2002 Ext.C-3 showing that the house where electric connection has been installed has been sold to her by the original consumer. The opposite party, has not specifically denied that complainant is not in occupation of premises, where electric meter is installed, or that any amount is outstanding towards, the original owner except the amount demanded through the impugned notice. In our opinion the provisions of the Act do not confine to the original hirer of the service, but they are also equally extended to the beneficiaries of service as well, in terms of provisions of Section 2(1)(o)(ii) of the Act, wherein it is specifically provided that the word 'consumer' defined in the said provision also includes 'beneficiary' of such services other than the person who has availed the services for consideration. In view of the facts of the case discussed above and proposition of law laid down in authorities relied 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 the capacity of 'beneficiary'. The law laid down, in the authority, relied upon by the counsel for the opposite party, cannot be preferred, over the law laid down, by our own Hon'ble State Commission and Hon'ble National Commission, in the authorities relied upon by the counsel for the complainant. The argument advanced by the learned counsel for the opposite party thus stands repelled. At this stage, learned counsel for the complainant has further submitted, that no evidence has been produced by the opposite party that electric meter installed in the premises in occupation of the complainant was burnt and was replaced on the basis of her application, submitted by him or original consumer or burnt meter after its removal from the premises, was checked in their presence. Learned counsel has drawn our attention to copy of death certificate, tendered in evidence by the complainant, wherein it is mentioned that death of the original consumer Contd........7 : 7 : Gora Singh took place on 7.11.2005, but his presence has been marked on 12.12.2008 at the time of checking in the M.E. Lab in the challan book. Learned counsel argued that opposite party has not produced any evidence to establish that application relied upon by them was filed by the original consumer of the electric connection, as such, same cannot be taken into consideration for the disposal of the controversy. Learned counsel urged that impugned notice is not sustainable and is liable to be set aside and complainant is entitled to seek compensation and costs, as demanded in the instant complaint. 10. On the other hand, learned counsel for the opposite party, has submitted that the electric meter installed in the premises in occupation of the complainant, had been changed on the basis of the application filed by the representative of the complainant informing that the meter had been burnt. Learned counsel argued that meter has been checked in the presence of the consumer in the M.E. Lab and he has affixed his signatures at the time of checking without any protest and impugned notice has been served upon the consumer after provisional assessment as per rules on the subject. Learned counsel argued that the complainant has failed to avail the opportunity of being heard offered to her or to file objection within the period stipulated in the notice, as such, assessment made by the competent authority under Section 126 of the Indian Electricity Act, 2003 has become final. Learned counsel urged that there is no deficiency in service which may warrant indulgence of this Forum, as sought through the instant complaint, by the complainant. The argument advanced by the learned counsel for the opposite party has failed to sound well with us because notice has been addressed to the original consumer Gora Singh and not to the complainant. There is no evidence that complainant had knowledge of service of impugned notice upon the person who is recorded consumer in the board. As stated earlier, original consumer Gora Singh has expired on 7.11.2005, Contd........8 : 8 : as mentioned in copy of death certificate Ext.C-4 issued by the Registrar, Birth and Death, Mansa, but his presence has been marked by the opposite party in copy of challan book Ext.OP-3 at the time of checking of meter removed from the premises in occupation of the complainant on 12.12.2008. As such, on the basis of the said document, plea of the opposite party cannot be accepted that electric meter removed from the premises was checked even in the presence of original consumer. As per the principles of natural justice, no person can be condemned unheard. Moreover, original consumer had already disposed of the premises, as such, there is no question of his remaining present at the time of checking of electric meter removed from the premises in occupation of the complainant. As per the case of the opposite party, application informing that meter was burnt was filed by the representative of the complainant, but they have produced on record copy of application Ext.OP-7 filed by one Ravinder Mohan, on behalf of the original consumer and identity of the said person has not been disclosed. As such, the filing of application by representative of the original consumer does not amount to admission on the part of the complainant, especially when his signatures on the application are not proved and identity has not been disclosed. Since the complainant has been deprived of right for personal hearing, as such, impugned notice, in our opinion, is not sustainable and is liable to be set aside. In the light of our above discussion, we have come to the conclusion that complainant remained successful in proving that raising of demand of huge amount by the opposite party in illegal manner is deficiency in service because of which she has been subjected to mental and physical harassment. Therefore, she is also entitled to payment of adequate amount on account of compensation and costs. Therefore, impugned notice is liable to be set aside. Resultantly, the complaint is allowed and we set aside the Contd........9 : 9 : impugned notice, Ext.C-2, served vide Memo No.1299 dated 29.12.2008 by the opposite party raising demand of Rs.30,909/-, with direction 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 and to refund the amount of Rs.10,500/-, if paid, by the complainant in terms of the interim order dated 17.2.2009, 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. 16. 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: 29.05.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
