DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.31/12.02.2009 Decided on : 02.06.2009 Sh.Mela Ram S/o Sh. Atma Ram, S/o Sh.Kundan Lal, Sant Ram Street, 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.Manoj Singla, 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.Mela Ram son of Sh. Atma Ram, 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 24.01.2009 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 his father Sh. Atma Ram, S/o Sh.Kundan Lal got installed electric connection bearing Account No. SR18-028 from the Contd........2 : 2 : opposite party for consumption of electricity for domestic purposes. The father of the complainant, during his life time, executed gift deed No. 5440 dated 15.2.2000 regarding the house where electric connection is installed. Earlier his father had been depositing the amount of electricity bills drawn by the opposite party, but after his demise, the complainant is using the same as beneficiary and had been regularly making payment of amount of electricity bills, drawn upon him, and no amount is outstanding towards him on that score. As such, he is consumer of electric energy under the opposite party qua the said electric connection. The complainant has neither indulged in theft of electric energy, nor he has ever tampered with the electric meter installed in his house, but the opposite party has served notice upon the original consumer vide his office Memo No.242 dated 24.01.2009 raising demand of Rs.25,325/-, 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 M.E. seals and has opened the body of his 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 on his part. 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. The complainant has been subjected to mental and physical harassment due to service of impugned notice raising demand of huge amount, 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 he, 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, which exclusively falls in the jurisdiction of the Contd........3 : 3 : Sub Divisional Magistrate concerned; that the complainant is liable to 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 his complaint, being false and frivolous, is liable to be dismissed. On merits, it is submitted that electric connection has been issued in the name of Sh.Atma Ram and it is denied that complainant is consumer of the electric energy under the opposite party. It is submitted that an amount of 25,325/- demanded through the impugned notice, is outstanding towards the consumer. It is also submitted that in the presence of representative of the consumer, meter installed in his premises was checked on 22.1.2009 by the Enforcement Staff of the board and they found that M.E. Seals of the electric meter were tampered with and body thereof opened for commission of theft of electric energy. It is also submitted that representative of the consumer affixed his signatures on the checking report admitting the contents thereof to be correct, as such, he is liable to deposit the amount demanded through the impugned notice issued after provisional assessment by the competent authority as per rules. It is contended that it is not the duty of the meter reader of the board to check the tampering of the seals of the electric meter installed in the premises of the consumer. 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. 4. On being called upon by this Forum, to do so, the counsel for the complainant tendered her affidavit, Exhibit C-1, photocopies of impugned memo and sale deed Ext C-2 and C-3 and closed his evidence. On the other hand, the learned counsel for the opposite party tendered in evidence affidavits of Sh.Ajaib Singh, Sub Divisional Officer and of Sh. Contd........4 : 4 : R.K.Goyal, Executive Engineer and photocopies of documents Ext.OP-1 to Ext. OP-4 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. 6. To begin with Sh.Manoj Kumar Singla, Advocate, learned counsel for the opposite party, has submitted that complainant is not recorded consumer of electric energy in the record maintained, in the office of the opposite party and he 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 his 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 further submitted that notice has been served raising demand upon the original consumer after provisional assessment under Section 126 of the Indian Electricity Act, 2003 by the competent authority, as such, complaint lies before the Sub Divisional Magistrate and this Forum has no jurisdiction to entertain and try the complaint. 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 authority referred above, the complaint is liable to be Contd........5 : 5 : dismissed 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 over the premises, where the electric connection, is installed, and has not taken the plea that any amount is outstanding as arrears of electric charges after purchase of the premises, from the original consumer by the complainant, as such he being a beneficiary, has locus standi, to file the complaint, which is maintainable in the Consumer Fora. Learned counsel further argued that remedy before this Forum is additional remedy to the consumer and Indian Electricity Act, 2003 does not specifically bar the jurisdiction of 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 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. 8. We find merit, in the argument advanced by the learned counsel for the complainant, because he has produced on record copy of sale deed dated 15.2.2000 Ext. C-3 about gifting of the premises where electric meter is installed, by his father, as evident from the signatures of the complainant done at the foot note of the said document on last page. Contd........6 : 6 : He has accepted the gift. The manner of acquiring title through the gifted deed is also pleaded in the complaint and proved by the affidavit of the complainant Ext.C-1. The opposite party, has neither specifically denied in the written version that complainant is in occupation of premises, where electric meter is installed, nor it is his case that some amount is outstanding towards, the original consumer except the amount demanded through the impugned notice. As such, the same is deemed to have been admitted by him. 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. As per the provisions of Section 3 of the Act, consumer has liberty to avail additional remedy by filing complaint in Consumer Fora and its jurisdiction is not expressly barred by Section 145 of the Indian Electricity Act, 2003. Section 3 of the Consumer Protection Act, 1986 and Section 175 of the Indian Electricity Act, 2003, provides for additional remedy not in derogation of any other law. In 2008(II) CPJ 284, Jharkhand State Electricity Board & Anr. Versus Anwar Ali, it has been held by the 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. Moreover, the notice has not been addressed to the complainant, but to the person who is recorded original consumer in the record maintained by the board. However, as he has sold the premises Contd........7 : 7 : to the complainant, therefore, consequences of the notice are to be borne by him and not by the original consumer in whose name electric connection is installed. 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. 9. At this stage, learned counsel for the complainant has further submitted, that theft of electric energy has been presumed due to tampering of seals and opening of body thereof and there is no allegation that complainant has done any further act inside the electric meter to facilitate him to commit theft of electric energy and no proof of supply of copy of checking report to him has been brought on record by the opposite party or that its copy was affixed on his premises. Learned counsel argued that name of the officer who has tendered his affidavit is not found mentioned in the written version as member of the checking team. 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 also rendered doubtful. Learned counsel argued that report of the M.E. Lab., has not been secured and the identity of the person who has signed the checking report has not been disclosed, 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, Learned counsel urged that impugned notice is not sustainable and is liable to be set aside and complainant is entitled to seek compensation and Contd........8 : 8 : costs, as demanded in the instant complaint. 10. On the other hand, learned counsel for the opposite party, has submitted that the representative of the complainant had admitted the contents of the checking report, after receipt of its copy, on which she has affixed her signatures without lodging any protest and complainant has not denied his relationship with her. Learned counsel has further argued that admission does not require any formal proof, as such, case set up by the opposite party cannot be said to be false, even if, electric meter has not been got checked from the M.E. Lab due to any technicality. 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. 11. The argument advanced by the learned counsel for the opposite party has failed to sound well with us because the complainant has denied the factum of checking of the electric meter in his affidavit Ext.C-1 on solemn affirmation. The parentage, address and relationship of the person who has signed the checking report is not disclosed in the copy of the checking report. The opposite party has tendered in evidence affidavit of Sh.R.K.Goyal, Executive Engineer Ext.OP-4, but his name is not found mentioned in the written version, as member of the checking team. The opposite party has also tendered in evidence affidavit of Sh.Ajiab Singh, Sub Divisional Officer, Ext.OP-1. He has also not claimed therein that he was member of the checking team. There is no note, on the checking report, regarding supply of copy of the above said report to the representative of the consumer, which is mandatory requirement under the rules framed by the board. As per Clause 3(e) of the Circular No.53/2006, issued by the board on the subject, the opposite party is supposed to send the copy of the checking report to the consumer subsequently by post in case checking has been done in his absence, but the opposite party has not produced any such record showing that copy of the checking report was Contd........9 : 9 : sent to the consumer through registered post or by any other means. The report does not contain the details of evidence gathered by the members of the checking staff, as envisaged in Clause 3(d) of the above said circular issued by the board on the subject. There is nothing on record to show that the electric meter was got checked from the M.E.lab. after service of notice upon the consumer. The officials of the board, have failed to comply with the above said provisions of the board for the reasons best known to them. Moreover, the allegations against the consumer are that he had tampered with the ME seals of the meter and body thereof was found opened at the time checking, but it is not the case of the opposite party that apart from above said act, any further act was also found to have been done by the consumer, because, as per the checking report, complainant was found drawing load at the time of checking, within the sanctioned load. 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. 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 party has Contd......10 : 10 : failed to prove that complainant or consumer 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, and being fortified by the ratio of judgments 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 party 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. 13. Resultantly, the complaint is allowed and we set aside the impugned notice, Ext.C-2, served upon the original consumer, vide Memo No.242 dated 24.01.2009 by the opposite party raising demand of Rs.25,325/-, 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.8,500/-, if deposited, by the complainant in terms of the interim order dated 12.02.2009, 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: 02.06.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
