DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.136/08.09.2008 Decided on : 25.02.2009 Smt.Padam Garg W/o Sh.Jagdish Rai S/o Sh.Amrit Pal, Resident of Nangal Colony, 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.S.K.Chhabra, 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.Padam Garg wife of Sh.Jagdish Rai, Resident of Nangal Colony, Mansa, against Punjab State Electricity Board, (in short called the 'board') through its Assistant Executive Engineer at Mansa under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'), on the averments, which may, briefly be described as under: 2. That the complainant, has secured electric connection bearing Account No.WR35/1055, for domestic consumption of electric energy. She had been regularly making payment of amount of electricity bills, Contd......2 : 2 : drawn by the board. As such, she is consumer, under the opposite party, who has served notice upon her vide memo No.1968 dated 28.8.2008, raising demand of Rs.37,884/-, on account of theft of electricity. The said notice is illegal, void and liable to be set aside, because the complainant, has never indulged in theft of electric energy. In the notice issued by the board, it is alleged that she has tampered with the seals of the electric meter installed in her house, but tampering with the seals does not amount to theft of electric energy. The electric meter has been installed outside the house of the complainant and the same is looked after by the officials of the board, as such, question of theft by the complainant does not arise. The meter reader visits the house of the complainant every month but he has never reported such tampering, as such, the impugned notice is liable to be set aside. Since the complainant, has been subjected to physical and mental harassment, due to raising of illegal demand of huge amount by the opposite party, as such, there is deficiency in service, on their part. At the end, a prayer, has been made that impugned notice No.1968 dated 28.08.2008 be set aside and amount of penalty, in the sum of Rs.37884/-, be waived off and the opposite party be burdened, in the sum of Rs.10,000/-, on account of physical and mental harassment, and Rs.5,000/- on account of costs incurred by her, for filing of instant complaint. On being put to notice, the opposite party filed written version, resisting the complaint, by taking preliminary objections; that the complainant, has no cause of action and locus standi, to file the complaint; that the complainant, is not the 'consumer' under the opposite party,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; that it is not maintainable as there is no deficiency in service on the part of the opposite party; that the complaint, has neither been verified nor supported by any document; that the complainant, has not approached the Forum with clean hands and is Contd.......3 : 3 : estopped by her own act and conduct from filing the complaint ; that the complainant, has concealed the material facts from the knowledge of this Forum and being false and vexatious, is liable to be dismissed with costs. On merits, it is submitted that electric connection, referred to above, has been issued in the name of Sh.Jagdish Rai, husband of the complainant, as such, there is no privity of contract between the parties to the complaint. It is admitted that memo No.1968 dated 28.8.2008 , has been rightly issued on the basis of the checking report submitted by the checking staff of the board. It is contended that the checking of the premises of the complainant, on 23.8.2008, was done in her presence and she admitted the contents therein after she affixed her signatures on it. It is submitted that the sanctioned load of the complainant is 4.74 KW, but the checking staff found the actual load at the time of checking as 6.09 KW and it was found that she has tampered with both the seals of the electric meter, as such, it is a case of commission of theft of electric energy. The complainant, has failed to appear before the opposite party, to avail opportunity of being heard and failed to file any objection against the Provisional Assessment. Rest of the averments made in the 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 complainant tendered her affidavit, Exhibit C-1, and copy of impugned notice Ext.C-2 before her counsel closed the evidence. On the other hand, Sh.Ashok Kumar, Sub Divisional Officer, furnished, his affidavit, Ext.OP-1 He has also tendered in evidence, copies of documents, Ext.OP-2 to OP-5, including checking report, before he closed his 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 being with Sh. S.K.Singla, learned counsel for the complainant, has submitted that mere tampering of the seals does not Contd.......4 : 4 : amount to theft of electric energy and it was not even possible because electric meter has been installed by the board outside the house of the complainant and meter reader visits her house every month, but has never reported tampering of seals, as such, the impugned notice is illegal and liable to be set aside and complainant is entitled to seek compensation from the opposite party for physical and mental harassment in addition to costs incurred by her in filing of the instant complaint. The learned counsel, has further submitted that the manner in which the complainant had committed the theft of electric energy, has not been disclosed by the opposite party and meter installed in her house was neither removed, nor it was packed or sealed as per rules and got tested from the M.E. Lab. In support of his contentions, learned counsel, has placed reliance upon 2007(IV) CPJ NC 18 Punjab State Electricity Board Versus Surat Singh wherein it has been held that theft of electricity is penal in nature and amounts to criminal offence. As such, burden of proving guilt of accused, beyond reasonable doubt, lies on Electricity board and matter can be decided on the basis of probabilities as Consumer Forum exercises jurisdiction of Civil Court. Learned counsel, has further relied upon 2007(III) CPJ NC 410 Dakshin Haryana Bijli Vitran Nigam Ltd versus Suresh Kumar wherein contention of the opposite party was that complainant tampered with the M&T seals of his electric meter and digits thereof were found disturbed and penalty was imposed on the allegation of commission of theft of electric energy. In the checking report, it does not show how and in what manner seals were tampered. It was held that electric meter ought not to have shown any reading if it was sticky or defective and impugned notice imposing penalty on the complainant was quashed and amount deposited by him was ordered to be refunded along with interest at the rate of 18 percent per annum. On the other hand, Sh.S.K.Chhabra, learned counsel for the opposite party, has reiterated the submissions made in the written arguments that complainant, has affixed her signatures after reading and Contd.......5 : 5 : understanding the contents of the checking report. Learned counsel, has further submitted that in the checking done in the presence of the complainant and officials of the checking team of the board found that her connected load was 6.09 KW against the sanctioned load of 4.74 KW, as such, it is clear case of theft of electric energy. Learned counsel has also submitted that vide impugned memo, complainant was directed to appear before the opposite party for personal hearing, but she has failed to do so and to file any objection against the provisional assessment, as such, case set up by the opposite party cannot be said to be based on falsehood. Learned counsel also argued that electric meter is installed in the house of the husband of the complainant, as such, there is no privity of contract between her and the opposite party and she has no locus standi to file the complaint. In the written submissions, reliance has been placed on 2006(II)CPJ SC 14; 2006(I) CPJ NC 114; 2007(IV) VPJ NC 89 and 2007(III) CPJ NC 113, but these authorities, have not been produced before us by the learned counsel for the opposite party. As such, we are unable to hold whether ratio of judgment delivered therein is attracted to the instant case or not. The opposite party, has produced on record copy of relevant page of Ledger Sheet Ext.OP-4 containing entries regarding electric connection under reference. The perusal of the said document goes to show that electric connection in question has been installed in the house of the complainant in her name and in the name of her husband Sh.Jagdish Rai, as such, being user of electric energy, she is 'consumer' under the opposite party, qua the electric connection installed in her house. Therefore, the complainant cannot be non suited on this score However, admittedly the sanctioned load of the electric connection is 4.74 KW. The opposite party has produced on record the checking report Ext.OP-3 which bears the signatures of the complainant. As per remarks given on the said report, electric meter installed in the Contd.......6 : 6 : house of the complainant was opened and checked in her presence and it was found that she has tempered with both the seals affixed thereon. The complainant has not denied her presence at the time of checking and her signatures on the checking report. It is not her case that checking report, has not been prepared at the spot or that her signatures, were secured by the checking team on blank papers. As such, the contents of the report are deemed to have been admitted by her. It is well settled that admitted facts need no formal proof. The details of lamps, fans, plugs and Air Conditioners, installed by the complainant in her house along with the connected load, have also been given in the checking report by the technical persons comprising the checking team.. The complainant has not given any justification for use of electric power beyond the sanctioned load. In the peculiar facts and circumstances of the case, non removal of electric meter installed in the house of the complainant and its testing by the M.E. Lab pales into insignificance. Since allegations against the complainant are that she had also tampered with both the M.E. Seals. Therefore, notice served upon her by the opposite party after provisional assessment cannot be said to be illegal, mainly because manner of commission of theft, has not been specifically mentioned in the impugned notice and checking report produced on record by the opposite party. As per contents of the impugned notice Ext.C-2, brought on record by the complainant, she was asked to appear before the opposite party, within a period of seven days, from the date of receipt of the above notice for personal hearing and to file objection, but she has failed to avail such opportunity afforded to her and to file any objection. Since, as observed earlier, the complainant has admitted the contents of the checking report, therefore, case of the opposite party cannot be rejected, even if electric meter is installed outside her Contd.......7 : 7 : house and meter reader of the board, has not reported theft of electric energy by her by tampering with the meter prior to the date of checking, for one reason or the other. In the light of our above discussion, we have come to the conclusion that complainant is not entitled to the relief prayed for and no ground is made out for setting aside the notice served upon her by the opposite party and for waiver of the amount of penalty imposed upon her by the Assessing Authority. We have carefully gone through the authorities cited by the learned counsel for the complainant, but have come to the conclusion that their facts and circumstances are distinguishable from the peculiar facts and circumstances of the instant case. In 2007(IV) CPJ NC 18 (Supra), electric meter installed in the house of the consumer was found to be intact and M.E. Lab had drawn the conclusion of commission of theft of electric energy due to existence of scratches on the plate and digits of the electric meter. There was also delay of six months in conducting the test by M.E. Lab after date of checking, because of which reliance was not placed by the Hon'ble National Commission on the checking report. In 2007(III) CPJ NC 410 (Supra), the disk of the electric meter was reported to be not moving on one phase and it was found disturbed. It was held that it was not clear on which date seals were found tampered with and disk was not moving. In the instant case, it has been specifically alleged, in the written version, that checking was done on 23.8.2008, by the officials of the board, in the presence of the complainant. Therefore, ratio of judgment delivered in these authorities does not come to the rescue of the complainant. For the aforesaid reasons, we dismiss the complaint and leave the parties to bear their own costs. The copies of the order be supplied, to the parties, free of Contd.......8 : 8 : costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 25.02.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
