DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.68/27.05.2008 Decided on : 19.01.2009 Sh.Om Parkash S/o Sh.Amar Nath, C/o Babar Sweets, Old Court Road, Mansa. ..... Complainant. VERSUS Assistant Executive Engineer,City, 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.P.K.Singla, Advocate counsel for the Opposite Party. Quoram: Sh.Pritam Singh Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.Pritam Singh Dhanoa, President. Sh.Om Parkash S/o Sh.Amar Nath, C/o Babar Sweets, Old Court Road, Mansa. has filed this complaint, against the Punjab State Electricity Board, (hereinafter called as the board), under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act'), on the averments, which may, briefly be described as under: 2. That electric connection, bearing Account No.TP-21/268, has been installed, in the premises, of the complainant, by the opposite party, and he has been regularly, making the payment of amount of electricity Contd........2 : 2 : bills, for the electricity consumed, by him, through his electric connection. As such, complainant, is consumer, under the opposite party, qua the said electric connection. The complainant is running a sweet shop in his premises where the said electric connection is installed and the said profession is his sole means of livelihood. The complainant is himself running his business. The opposite party, without service of any notice upon him concocted a case of theft of electric energy. The officials of the board, neither packed the electric meter, removed from the premises, of the complainant, in his presence, nor got the same tested, from the M.E. Laboratory, Bathinda, in his presence. Even no report regarding theft of electricity, has been supplied, to him by the opposite party and the manner in which he has committed the theft of electric energy is not explained by them. On 16.4.2008, some officials of the board came to the premises of the complainant to disconnect his electric connection, but they could not do so, because immediately he deposited a sum of Rs.36,579/-, as demanded by them. He has made the payment due to pressure asserted by the officials of the board upon him, for which act, he is not bound. On 13.5.2008, the opposite party issued notice, vide memo No.1303 raising demand of Rs.15,528/-, which is illegal, as the Audit Party of the opposite party did not afford opportunity to him, of being heard, before ordering recovery of the amount of notice. As such, there is deficiency in service, on their part, because of which complainant, has been subjected to mental and physical harassment and he is entitled to the refund of the amount, deposited by him in the sum of Rs.36,579/-, and payment of Rs.5,000/-, as compensation and a sum of Rs.2,000/-, as litigation costs. Hence this complaint. 3. On being put to notice, the opposite party filed written version, resisting the complaint, by taking preliminary objections; that the complainant, has no cause and action and locus standi, to file the complaint, that the complainant, is not the 'consumer' of the opposite party, Contd........3 : 3 : within the purview of its definition, given in the Act; that there is no deficiency, in service, on the part of the opposite party; that complaint is bad, for non-joinder and mis-joinder of necessary parties and have been filed, by the complainant, to save himself from other proceedings which may be initiated against him by the opposite party; that the complainant, has not approached the Forum, with clean hands as, he has suppressed the material facts and, has twisted the real facts; that the complainant, has failed, to invoke the remedies available to him before competent authorities against order passed by the Disputes Settlement Committee constituted by the board, for the purpose; that the jurisdiction of this Forum, to entertain and try the complaint, is barred; that complaint is not maintainable, as the complainant is running a sweet shop in the name and style of M/s.'Babar Sweets' and, has employed several employees including waiters, cooks, serviceman, counter boy and he is not himself doing the work, but rendering service to numerous customers, as such, business run by him is commercial in nature; that demand, has been raised by the opposite party, in terms of checking report given by Sh.Narinder Kumar, Junior Engineer. On merits, it is admitted that complainant, has obtained electric connection, in dispute, giving his parentage as Bhana Ram against Amar Nath. It is submitted that premises of the complainant were checked on 23.10.2007, by Sh.Narinder Kumar, Junior Engineer, and concerned official of the board, removed the old meter bearing No.07315764 and replaced the same with a new meter bearing No.109282, at the request of the complainant, vide Meter Change Order No.74085. The meter removed from the premises, of the complainant, by the said official, was sealed and packed and was sent to the office of the M.E. Laboratory, at Bathinda. The complainant was informed vide letters dated 30.10.2007, 3.12.2007 and 31.12.2007 that the meter removed from his premises, would be checked,in the M.E. Lab. at Bathinda on 2.11.2007, 3.12.2007 and 3.1.2008. The said notices were duly received, on behalf of the complainant, by his son Ashu Contd........4 : 4 : and Arun Bansal, but he failed to put up appearance. Therefore, electric meter installed in his premises was checked, by the Senior Executive Engineer (Enforcement) Bathinda, in the presence of Narinder Singh, Junior Engineer and other officials of the board. In the course of checking of the said meter, it was revealed, that complainant, had intentionally burnt the upper portion of the meter and on checking the counter thereof, from inside, marks of scratches, were spotted, on the figures printed thereon from which it was evidently clear that the said act, has been done by him to tamper the meter and, to conceal the said factum of theft. Thereafter, the meter was again packed and handed,over to the Junior Engineer concerned. It is contended that demand in the sum of Rs.15,528/- was correctly made vide memo dated 13.5.2008 in terms of decision given by the Disputes Settlement Committee and complainant had deposited the same on 1.11.2006, as such, said notice stood withdrawn. Rest of the averments made in the 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 complainant tendered his affidavit, Exhibit C-1, and copies of documents Ext.C-2 to C-4 before his counsel closed his evidence. On the other hand, Sh.Ashok Kumar, Sub Divisional Officer, furnished, his affidavit, Ext.R-1, on behalf of the opposite party. Learned counsel has also tendered in evidence, copies of documents, Ext.R-2 to R-9, whereas Sh.Pawan Kumar Garg, Senior Executive Engineer, furnished, his affidavit, Ext.R-10, before their counsel closed the evidence, on their behalf. 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. Admittedly, electric meter bearing No.TP-21/268, has been installed, in the sweet shop of the complainant, by the opposite party and he had been regularly making the payment of amount of electricity bills, Contd........5 : 5 : drawn upon him, by the opposite party, for electric energy consumed by him before he made a request to the opposite party to replace the electric meter, after it was burnt. In terms of the said request made by him, the officials of the opposite party, replaced the electric meter, on 23.10.2007 and the complainant made payment of Rs.36,579/- vide receipt, Ext.C-3. 7. Learned counsel for the complainant, Sh.S.K.Singla, Advocate, has submitted, that neither the meter reported burnt by the complainant, has been removed, nor packed in his presence or in the presence of his representative. Learned counsel, has further submitted, that no notice, was served upon the complainant, for the date when burnt meter was to be checked in the M.E. Lab. and copy of its report has not been supplied to the complainant before raising of demand through the impugned memo. Learned counsel argued that there is non-compliance of rules, on the subject and principles of natural justice on the part of the opposite party and direction be given to them, to refund the amount of Rs.36,579/-, deposited by the complainant and he deserves to be compensated, for mental and physical harassment, and for expenses incurred by him, for filing of the complaint. In support of his contentions, learned counsel has placed reliance upon 2008(I) CPJ NC 62 Uttari Haryana Bijli Vitran Nigam Limited versus Gautam Plastic, wherein penalty on the consumer was imposed on account of theft of electricity, but checking was not done in his presence or in presence of his representative and meter was not tested in the M.E. Lab. and no notice was given to him. It was held that principles of natural justice had not followed, as penalty has been levied, unilaterally and it is not established that factory of the complainant, was in running condition. In view of the above said infirmity, the opposite parties were directed to withdraw the notice, waive off penalty and refund the amount along with interest, with further direction, to make payment of compensation by the District Forum and order was upheld by the Hon'ble National Commission. Learned counsel Contd........6 : 6 : has further relied upon 2007(II) CPJ Pb. 166 Punjab State Electricity Board versus Mohan Lal, wherein it was held, by the Hon'ble Punjab State Commission that in cases of theft of electric energy, electric meter was not packed and sealed in the presence of the consumer or his representative and no notice was sent to him, to come present in the M.E. Lab. on the date the meter was to be checked. It was held that under rules of natural justice, meter atleast should, have been tested, in the presence of the consumer, which has not been done, as such, demand raised, by the opposite party, has been rightly quashed by the District Forum. 8. On the other hand, learned counsel for the opposite party, Sh. P.K.Singla, Advocate, has contended that complaint is not maintainable in the present form, as the complainant in application dated 17.10.2007 Ext.R-6, filed to the concerned Sub Divisional Officer of the opposite party, has given his parentage as 'Bhana Ram', but in the instant complaint he has described, the name of his father, as Amar Nath. 9. At this stage learned counsel for the complainant, has submitted, that the opposite party, has not disputed, that electric meter, in question, is installed in the sweet shop of the complainant and, has given his complete address correctly, in the complaint, as such, relief to him cannot be denied, mainly because there is mis-description of his parentage in his application and in the head, note of the complaint. 10. We find merit in the submissions made by the learned counsel for the complainant. There is no dispute between the parties regarding the premises where electric meter is installed in the name of the complainant and that he is proprietor and consumer qua the said electric connection. As such, he cannot be non-suited on this technical objection, raised by the opposite party. The argument advanced, by the learned counsel, for the opposite party thus stands repelled. 11. Learned counsel for the opposite party, has further argued that complainant, has, himself reported, to the opposite party, that ,his, electric Contd........7 : 7 : meter installed in his shop, has been burnt and he has deposited the amount for replacement thereof, as demanded by the opposite party. As such, he is estopped by his own act and conduct, from filing of the complaint. Learned counsel, has further submitted, that burnt meter was removed in the presence of the complainant by the officials of the board and it was opened in the M.E. Lab. but he failed to put up appearance on these stipulated dates despite notices were received by his sons on his behalf. Learned counsel further argued, that on last date fixed, for appearance of the complainant, in the M.E. Lab., report regarding burnt meter removed, from his premises, was given by the Senior Executive Engineer of the board and the other officials, to the effect that meter, has been intentionally, set on fire and figures on its counter were found scratched, with intention to conceal factum of theft. Learned counsel argued that report scribed by the senior officers, of the ranks of Superintending Engineer and Sub Divisional Officer and assessment made on the basis of their report cannot be rejected. Learned counsel, has further submitted that amount demanded from the complainant vide memo No.1303 dated 13.5.2008, in the sum of Rs.15,528/-, has been demanded, on the basis of the audit report, as such, the complainant, is not entitled to payment of any amount on account of compensation and costs and for refund of amount, deposited by him for the replacement of his electric meter. In support of his contentions, learned counsel has placed reliance upon 2005(IV) CPJ 629 Hari Singh versus Punjab State Electricity Board, wherein complainant did not appear before the M.E. Laboratory despite service of notices when meter was supposed to be tested as a result of which testing was postponed. It was held by the Hon'ble Punjab State Commission that there was no statutory requirement to serve the complainant again and order of dismissal of his complaint by the Consumer Forum was upheld and appeal of the complainant was dismissed. Learned counsel, has further relied upon 1994 (2) CLT 456 Des Raj versus S.D.O.,Electricity, H.S.E.B. And Anr., wherein Contd........8 : 8 : complainant was informed against excessive electricity bill, but signatures of the appellant were found on the application seeking change of electric meter because of which his plea of excess billing was rejected. Lastly, learned counsel has relied upon 1991 (1) CLT 455 Punjab State Electricity Board versus Anil Suri, wherein, it has been held by the Hon'ble Punjab State Commission that disconnection of electric meter cannot per-se amount to deficiency in service and in case of theft of electricity, the opposite parties under law governing the supply to the complainant is not required to serve notice upon the complainant before disconnection. In this authority reliance, has been placed upon 1998(3) JT SC 84 Hyderabad Vanaspati Ltd. Versus Andhra Pradesh Electricity Board, wherein no notice is required to serve upon the complainant in case of theft of energy. 12. The opposite party, has produced on record application dated 17.10.2007 filed by the complainant, Ext.R-6, before the S.D.O., concerned of the board, praying that electric supply to his shop, has suddenly stopped and the officials of the board, on checking the same, has reported that electric meter, has been burnt, as such, the same be replaced and electric supply be resumed. The opposite party, has further placed on record, the Meter Change Order, Ext.R-5, issued by the competent authority which bears the signatures of the complainant. The said document shows that electric meter of the complainant was replaced on even date in his presence. Therefore, we do not find any substance in the plea of the learned counsel for the complainant, that the complainant deposited the amount of Rs.36,579/-, on 16.4.2008, after the officials of the board visited his shop and gave threat to disconnect his electric connection installed in his shop. The opposite party, has also brought on record the report dated 3.1.2008, given by the M.E. Lab., Ext.R-7, after checking the burnt meter removed from the shop of the complainant, to the effect that meter, has been intentionally burnt, to conceal the factum of theft, as evident from the figures scratched from its counter. The opposite party, has also produced Contd........9 : 9 : on record copies of notices Ext.R-2 to R-4, dated 30.10.2007, 3.12.2007 and 31.12.2007,directing the complainant to appear in the M.E. Lab. for checking of his burnt meter on 2.11.2007, 3.12.2007 and 3.1.2008, respectively. The notice for 3.1.2008 and 3.12.2007, have been received on behalf, of the complainant by his sons Sh.Ashu and Sh.Arun Bansal. This fact, has been gracefully conceded by the learned counsel, for the complainant, in the course of arguments. 13. Learned counsel argued that the complainant appeared on 2.11.2007, before the M.E. Lab., but there, he did not find any representative of the opposite party. 14. This argument advanced by the learned counsel for the complainant is beyond the scope of pleadings. As such, it cannot be looked into by this Forum. Even if, it be assumed for the sake of arguments, that he appeared on 2.11.2007 before the M.E. Laboratory, he has not given any reason for his non appearance on 3.12.2007 and 3.1.2008, despite receipt of notices served upon him and received by his sons, named above. The complainant, has deposited the amount without raising any protest in terms of the report of M.E. Lab., after removal of his burnt meter from his premises. As such, we have come to the conclusion, that complainant shall, have no grievance or grudge on account of amount deposited by him on the basis of the report, given by the Senior Executive Engineer and Superintending Engineer, Sub Divisional Officer against whom no enmity, has been alleged by him. Therefore, we are of the considered opinion that no ground is made out, for giving direction to the opposite party, to refund the amount deposited by the complainant, on account of his burnt meter, removed from the shop, by the officials of the board , as per his own request. 15. We have carefully gone through the ratio of judgments delivered, in the authorities relied upon by the learned counsel, for the complainant, and have come to the conclusion, that their facts and Contd.....10 : 10 : circumstances, are quite distinguishable from those of the cases in hand. In 2007(II) CPJ 166 (Supra), no notice was served upon the complainant and electric meter, was not sealed and packed in his presence, whereas in 2008(I) CPJ NC 62 (Supra) , electric meter removed, from the premises of the complainant was not tested in the M.E. Lab. and it was not established that factory of the complainant was not in running condition, but in the case in hand, electric meter has been installed in the sweet shop of the complainant, but he failed, to put up appearance on the date fixed in the M.E. Lab., despite receipt of notices by his sons. 16. The learned counsel for the opposite party, has argued that further remedy was open to the complainant before the appellate authority and the Hon'ble High Court, but he has failed to avail the same, as such, he is not entitled to claim any relief on that score. 17. On the other hand, learned counsel for the complainant has argued that an amount of Rs.15,,528/- has been paid by the complainant in compliance with the order of the Disputes Settlement Committee and that supply of electric energy falls within the definition of 'service' as defined under Section 2(1)(o) of the Act, as such, he cannot be denied relief. 18. The opposite party, had served notice, vide memo No.1303 dated 13.5.2008, Ext.C-4, upon the complainant, raising a demand of another sum of Rs.15,528/-, on the basis of audit report, submitted by their Audit officials, but as per their version the said notice stands withdrawn. It was found that complainant had deposited the requisite amount on 1.11.2006 in terms of decision taken by the Disputes Settlement Committee. The opposite party is bound by his stand taken in their written version about this aspect of the case. Since the complainant, has deposited the said amount, without availing further remedies, open to him, against order passed on his application, by Disputes Settlement Committee, constituted by the board, as such, he cannot reagitate the matter again under this Act. The remedy before him was to file appeal before appellate Contd......11 : 11 : authorities and to file assail order of appellate authorities by filing writ petition, under Article 226, of the Constitution of India before the Hon'ble High Court. 19. For the aforesaid reasons, complaint is dismissed. The parties are left to bear their own costs. 20. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 19.01.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
