DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.17/02.02.2009 Decided on : 02.06.2009 Sh.Mohan Lal S/o Sh. Hem Raj, S/o Sh.Radhu Mal, Ramji Pradhan Street, 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.Harjit Singh, 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 Sh.Mohan Lal son of Sh. Hem Raj, a resident of Mansa, has filed this complaint 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 Sh. Ashok Kumar S/o Sh.Jagan Nath got installed electric connection bearing Account No.SR18/539 in his residential house Contd........2 : 2 : owned by him and his brother Sh.Darshan Kumar situated at Ward No.13, Mansa. The above named owners of the house sold the said house vide sale deed dated 13.7.2001 to Sh.Krishan Kumar and delivered the possession. The said house was again sold by vendee Krishan Kumar to Sh.Vinod Kumar vide sale deed dated 3.3.2004, but he further sold the same to Smt.Sakshi W/o Sh.Naval Goel vide sale deed dated 12.7.2005. The house has been taken on rent by the complainant vide rent notice dated 1.7.2008 from Smt.Shakshi since the date of possession of the house in dispute, complainant has been making the payment of the amount of electricity bills drawn by the opposite party and no amount is outstanding on that score.. Earlier his predecessors-in-interest had been making payment of electricity bills issued by the office of the opposite party. As such, he is consumer of electric energy under the opposite party qua the said electric connection, being user of premises and beneficiary. 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 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 M.E. Seals and body of electric meter were found tampered with. 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 illegal demand, 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 Contd........3 : 3 : jurisdiction, to entertain and try the complaint, because case pertains to commission of theft of electric energy; that the complainant has suppressed the material facts from the knowledge of this Forum; that it is not maintainable; that the meter was checked on 19.1.2009 by the checking team of the board and they found that M.E. Seals of the electric meter were tampered with and body thereof opened for committing theft of electric energy. It is also submitted complainant affixed his signatures on the checking report admitting its contents to be correct, as such, he is liable to deposit the amount demanded from him after provisional assessment by the competent authority as per rules; and his complaint, being false and frivolous, is liable to be dismissed. On merits, the factum of ownership and sale of the house by the original consumer to the person named in the complaint has been denied for want of knowledge but it is asserted that an amount of 29,942/- has been rightly demanded through the impugned notice. The allegations made in the preliminary objections have been reiterated regarding checking of meter installed in the premises of the complainant and affixation of signatures by him on the checking report. 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. It is asserted that opposite party has no liability to pay any amount on account of compensation and costs to the complainant. 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 and photocopies of documents Ext.C-2 to C-6 and closed the evidence. On the other hand, the learned counsel for the opposite party tendered in evidence affidavit of Sh.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 Contd........4 : 4 : through the oral and documentary evidence, adduced on record, by them, carefully, with their kind assistance. 6. To begin with Sh.Harjit Singh, Advocate, learned counsel for the opposite party, has submitted that complainant is not recorded consumer in the record maintained, by the board and he has neither conveyed any intimation about his induction as tenant in the premises by the present owner, as such, he not being a consumer, within the purview of its definition given in the Act, the complaint 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, complainant has no locus standi to file the complaint which is also barred by Section 145 of the Indian Electricity Act, 2003. Learned counsel has argued, that in view of peculiar facts and circumstances of the case, the complaint is liable to be dismissed 7. On the other hand, learned counsel for the complainant, Sh. S.K. Singla, Advocate, has tendered in evidence copies of registered sale deed and rent note to establish his plea that original consumer had sold the premises where electric connection, is installed, to his client and present owner has inducted him tenant therein. Learned counsel argued that plea that opposite party has not denied the possession of the complainant over the premises and has not taken any plea that any amount is outstanding against the consumer of electric energy, as such, he being a beneficiary, has locus standi, to file the complaint, which is maintainable in the Consumer Fora. Learned counsel further submitted that jurisdiction of the Consumer Fora is not specifically barred by Section 145 of the Indian Electricity Act, 2003, rather it is saved by Sections 174 and 175 and remedy open to the consumer under Section 3 of the Consumer Protection Act, 1986 is additional remedy, as such, this Forum has jurisdiction to entertain and try the complaint. In support, of his contentions, the learned Contd........5 : 5 : 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 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 opposite party, has not specifically denied in the written version that complainant is not in occupation of premises, where electric meter is installed, in the capacity of tanent under the present owner whose title is proved by copies of sale deeds executed by the original consumer and successor-in-interest. It is not the plea of the opposite party that any amount is outstanding on account of arrears towards, the original owner or the complainant since the date of its installation, except the amount demanded through the impugned notice. Since the complainant is availing services of the opposite parties and is making payment of amount of electricity bills since the date he was inducted ads tanent in the premises, therefore he is consumer of electric energy under the opposite party within the ambit of the definition of consumer and avail service of the board for consideration. In our opinion the provisions of the Act are 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 'service' other than the person who has availed the services for consideration. As per the provisions of Section 3 of Contd........6 : 6 : 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. As per Section 3 of the Consumer Protection Act, 1986 and Section 175 of the Indian Electricity Act, 2003, both the Acts provides 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. 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 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 impugned notice has been served by the opposite party raising demand merely on the allegation that seals at the time of checking were found tampered with and its body was lying opened. Learned counsel argued that mere tampering of the seals does not amount to theft of electric energy. Learned counsel argued that there is no allegation that complainant has done any further act to facilitate him to commit theft of electric energy and report of the M.E. Lab., has not been secured. Learned counsel argued that name of Sh.R.K.Goyal, Assistant Executive Engineer, who has tendered his affidavit has not been found mentioned in the written version as member of the checking team and opposite party has Contd........7 : 7 : not led any evidence that checking report bears the signatures of the complainant. Learned counsel, has argued that details of evidence gathered at the time of checking have not been mentioned in the checking report, 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, as such, factum of checking is also rendered doubtful. 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 complainant has not denied the factum of checking and his signatures on the checking report in the M.E. Lab tendered in evidence and as per remarks given in the checking report, the electric meter of the complainant was found not functioning. Learned counsel argued that these facts leads to the conclusion that complainant has been committing theft of electric energy because of which case of the complainant cannot be rejected either on technicalities of the procedure or that meter has not been got checked from the M.E. Lab in the presence of the complainant. 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 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 and the said fact cannot be presumed by us by drawing inferences. The opposite party has tendered in evidence affidavit of Sh.R.K.Goyal, Executive Engineer Ext.OP-4, but his name is not found Contd........8 : 8 : mentioned in the written version, as member of the checking team. As such, much confidence cannot be reposed on his affidavit, even if , no enmity on his part is proved or suggested by the complainant. The opposite party was to give details of evidence gathered at the time of checking, but no such detail has been given by the members of the checking staff, as envisaged in Clause 3(d) of the circular No.53/2006 issued by the board on the subject. The complainant has not admitted his signatures on the copy of the checking report. There is also no evidence that contents of the checking report were read over and explained to the complainant at the time of checking. Therefore, factum of checking is also 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, any further act was also found to have been done by the complainant inside the meter to enable him to commit theft of electric energy. There is no allegation by the opposite party that complainant was caught drawing electric energy by by-passing the electric meter by using unauthorized means. 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 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, The officials of the board, have failed to comply with the above said provisions for the reasons best known to them. 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 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 Contd........9 : 9 : notice was quashed. 12. In the light of our 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 illegal 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. For the aforesaid reasons, the complaint is allowed and we set aside the impugned notice, Ext.C-2, served upon the original consumer, vide Memo No.212 dated 21.01.2009 by the opposite party raising demand of Rs.29,942/-, 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 if any deposited, by the complainant in terms of the interim order dated 02.02.2009, 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.
