DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.38/20.03.2008 Decided on : 16.02.2009 Sh.Parminder Singh S/o Sh.Milkha Singh C/o Milkha Singh Rice Mill, Railway Road, Bareta, Tehsil Budhlada, District Mansa. ..... Complainant. VERSUS Assistant Executive Engineer, Distribution, Sub Division, Punjab State Electricity Board, Bareta, Tehsil Budhlada, District 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. Before: 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.Parminder Singh son of Sh. Milkha Singh resident of Bareta, Tehsil Budhlada, District Mansa, against Punjab State Electricity Board, (in short called the 'board'), through its Assistant Executive Engineer posted at Bareta, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'), for setting aside notice served through letter No.82 dated 21.1.2008 and award of compensation, in the sum of Rs.20,000/-, and Rs.10,000/- as costs. As per averments, made in the complaint, case of the complainant may briefly be described as under: 2. That he got installed seasonal electric connection bearing Contd.......2 : 2 : Account No.MS74/057, for running his Rice Sheller, which is source of his livelihood. The complainant, has been continuously, paying the charges, for electricity consumed by him, through electric connection in dispute, as such, he is consumer qua the said electric connection, under the opposite party, who has served impugned notice, vide letter No.82 dated 22.1.2008 upon the complainant, raising a demand of Rs.1,33,672/-, on the allegations that on the checking of his electric connection on 21.1.2008 by the Flying Squad of the board, the CT of his electric meter was found more. It is submitted that the said notice is illegal because the flying squad was not entitled to carry out checking and it can only be checked in the M.E. Lab only. It is also submitted, that members of the checking staff, did not possess any instrument of checking the electric meter and transformer installed in the premises of the complainant remained locked and no official of the board, had earlier made any complaint, against the complainant, to the higher authorities, that he has ever tempered with any electrical gadget, as such, the opposite party is entitled, to pay him compensation for physical and mental harassment and compensate him for costs incurred for filing the complaint. A prayer has also been made for setting aside the impugned notice served upon him by the opposite party. 3. On being put to notice, opposite parties filed written version, resisting the complaint, by taking preliminary objections; that the complainant, has no locus standi and cause of action, to file the complaint; that the complainant, is not the 'consumer' 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 the complaint is bad for mis-joinder and non-joinder of necessary parties; that the complaint, has been filed with intention to save himself from criminal action and to harass the opposite party to achieve some ulterior motive; he has failed to invoke the remedy available before the Disputes Settlement Committee and other Tribunal constituted by the board; that the complainant is running a Rice Sheller for Contd........3 : 3 : commercial purpose and, has concealed the material facts from the knowledge of this Forum , as such, he is not entitled to the relief prayed for. On merits, it is admitted that seasonal electric connection bearing Account No.MS74/057, has been installed, in the Rice Sheller of the complainant, but it is submitted that various employees, have been employed by him and he is running his business, for commercial purposes and his firm is a partnership concern, as such, he is not entitled, to invoke the jurisdiction of this Forum. It is contended that premises of the complainant, were checked on 21.1.2008 by the Flying Squad, of the board, comprising the officials/officers posted at Bareta and it was found, that CT of his account is 200/5A whereas bills were being issued as per its actual CT i.e. 150/5A and board had been suffering loss at the rate of 25% due to the said reason. As such, since the date of installation of the electric connection, the opposite party overhauled the account of the complainant with effect from 16.9.2004 i.e. the date on which seasonal electric meter was installed and demand was rightly raised, in the sum of Rs.1,33,672/-, from the complainant vide notice served upon him, through letter dated 22.1.2008. Rest of the allegations, 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, learned counsel for the complainant furnished his affidavit Ext.C-1 and copies of documents Ext.C-1 to C-4 and closed evidence on his behalf. On the other hand, learned counsel for the opposite party tendered in evidence affidavit of Sh.Narinder Pal Goyal, SDO, Bareta, Ext.OP-1, copy of affidavit of Sh.Mohinder Singh, Ext.OP-2, previous partner of M/s Milkha Singh Mohinder Singh Rice Mills, Bareta to the effect that he has transferred the electric connection, in the name of the complainant, as such, he would not be responsible, to pay the electric charges, in future, with effect from 19.4.2000. The learned counsel, has also tendered copies of Calculation Sheet Ext.OP-3 comprising three pages; copies of checking reports Ext.OP Contd........4 : 4 : 4 and OP-5, bearing the signatures of the complainant. He has written in his own hand that he has received the copy of the checking report. Learned counsel, has also tendered the affidavit of Sh. Kirpal Singh, A.E.E., Ext.OP-6 and of Sh. Raghbir Chand, J.E. of the board, Ext.OP-7. They have submitted on solemn affirmation that they were the members of the Flying Squad and are posted at Bareta in the office of the board. 5. We have heard the learned counsel for the parties and perused the oral and documentary evidence, adduced on record, by the parties, carefully, with their kind assistance. 6. Learned counsel for the opposite party, Sh. P.K.Singla, Advocate has submitted, at the out set, that capacity of electric meter installed in the premises of the complainant is of 49.560 KW and he has employed several persons, for running his Rice Sheller, as such, inference may be drawn that he, has secured the electric connection for commercial purposes and his complaint is not maintainable before the Consumer Forum and is liable to be dismissed. In support of his contentions, learned counsel has relied upon 2003(2) CLT NC 360 Sidheswar Iron & Steel (P) Ltd versus Kirloskar Electric Co. Ltd. And another wherein sale of goods by the complainant was purely for commercial use and not for self employment to enable him to earn his livelihood. It was held by the Hon'ble National Commission that such contracts do not fall in the purview of the Consumer dispute and the complainant is not qualified to be a consumer. 7. On the other hand, Learned counsel for the complainant Sh. S.K.Singla, Advocate, has submitted that complainant is running his Rice Sheller for earning his livelihood and is not doing any commercial activity, as such, his complaint is maintainable before the Consumer Forum and cannot be dismissed on the said ground. In support of his contentions learned counsel, has placed reliance upon 2004(III) CPJ 320 U.P.S.E.B. Versus Bahadur Singh Dhapola wherein it has been held by the Hon'ble Contd........5 : 5 : Uttaranchal State Commission, that Small Scale Industry is run by the complainant, for earning his livelihood, as such, no commercial activity is involved and plea raised by the opposite party cannot be allowed. 8. The argument advanced by the learned counsel for the complainant, has failed to sound well with us because, admittedly, the complainant is running the Rice Sheller and as per copy of the affidavit Ext.OP-2, executed by the partner of the firm, who is none other but his real brother, the business run by the complainant, had been a partnership concern, but as the deponent has left the business and for that reason has submitted no objection, if the electric connection is transferred in the name of the complainant. As per our opinion, even if, the complainant, might have employed several persons to assist him in his profession and is consuming substantial electric energy for running his Rice Sheller, inference cannot be drawn that he supplied the finished goods for consideration to some other firm and companies. We have carefully gone through the ratio of judgment pronounced in 2003(2) CLT NC 360 , (Supra), but have come to the conclusion that the facts and circumstances of that authority are distinguishable from those in hand where the complainant is running his Rice Sheller to earn his livelihood, in the case, referred above, the company was dealing with goods purely meant for re-sale. As such, no ground is made for non-suiting the complainant on that score alone. 9. Learned counsel for the complainant, has further submitted that the chamber in which CT of the electric meter, was locked and the keys thereof remained with the officials of the board, as such, question of tempering with the same by the complainant does not arise. Learned counsel, has argued that as per the case of the opposite party, members of the flying squad were not carrying any instrument for verifying the capacity of the CT and the same cannot be ascertained with naked eye and electric meter installed in the premises of the complainant had been Contd........6 : 6 : running for a period of 4 years before it was checked by the flying squad of the board, but no complaint has ever been made by their officials or officers about the wrong CT used by the complainant. Learned counsel, has argued that the opposite party, has raised the demand for a period of more than 3 years although it is not permissible to recover any amount beyond the period of three years as per the provisions of Indian Electricity Act. Learned counsel, has argued that from the very inception electric connection was being secured by the complainant for paddy season, as such, the opposite party was not justified in raising the demand of amount for a period of more than six months, as such, the notice served upon the complainant is not sustainable and is liable to be set aside. In support of his contentions, learned counsel has placed reliance upon 1993(1) CPJ 335 Haryana State Electricity Board versus Jawahar Lal Singla, wherein the plea of the opposite party was that electric meter installed in the house of the complainant was running slow, because of which additional bills were raised. The District Forum directed the opposite party, to refund the excess amount charged. In appeal preferred by the opposite party Hon'ble Haryana State Commission held, that additional charges on account of low consumption can be levied and order passed by the District Forum was upheld. 10. On the other hand, learned counsel for the opposite party, has submitted that checking of the chamber in which CT of the electric meter installed in the premises of the complainant, has been done in his presence and he has affixed his signatures after receiving the copy of the checking report and, has not raised any objection against notice served upon him. Learned counsel, has argued that checking team has found the CT of the electric meter, installed in the premises of the complainant as 150/5A against its actual capacity of 200/5A. Learned counsel, has also drawn our attention to the bill Ext.C-3 issued by the board, where ratio of CT of his electric connection, has been mentioned as 150/5A. Learned counsel, Contd........7 : 7 : has argued that demand raised by the board is as per the factual position existing at the spot and the complainant, has not alleged any enmity towards the members of the checking staff, as such, false case cannot be said to have been planted upon the complainant by them. Learned counsel also argued, that there is no bar to recover the arrears of demand even beyond the period of 3 years and no instrument is required for ascertaining the CT of the electric meter, as the same can be verified with naked eye. Learned counsel further argued that there is no deficiency in service on the part of the opposite party, as such, no ground is made out for indulgence of this Forum, so far as relief prayed for by the complainant, is concerned. In support of his contentions, reliance has been placed upon 2004(1) CPJ 169 Punjab State Electricity Board versus Mohan Singh, wherein the complainant was caught red-handed, running excess load and the inspection report was prepared at the spot on which his signatures were secured and penalty was imposed by the opposite party. The District Forum held that penalty, has been wrongly imposed and allowed the complaint. In appeal it was held by the Hon'ble Punjab State Commission that penalty has been rightly imposed by the opposite party and order passed by the Forum was set aside. Learned counsel has further relied upon 1997(1) CLT NC 347 Maharashtra State Electricity Board versus M/s Swastik Industries, wherein electric meter installed in the premises of the complainant was found faulty on inspection and assessment of units consumed was made on average basis. The plea of the complainant was that there is delay in taking up the matter. It was held by the Hon'ble National Commission that inefficiency of functionaries of the Appellants is although deplorable, but cannot be made a ground to cause loss to a public utility concern and raising of bill for electricity consumed , howsoever, belated, as such, cannot be termed as deficiency in service. In appeal preferred by the complainant against order dated 30.8.1996, it has been held in 1997(1) CLT Supreme Court 435 titled as M/s Swastik Industries Contd........8 : 8 : versus Maharashtra State Electricity Board by the Hon'ble Apex Court that there is no no deficiency in service in making supplementary demand for escaped billing, although there may be negligence or collusion by subordinate staff in not properly recording the reading or allowing pilferage to the consumer. Lastly, learned counsel has relied upon 2006(1) CPC 208 Municipal Council Gurdaspur through its Executive Officer versus Punjab State Electricity Board and Anr. wherein objections were raised against the demand notice on the ground that department could not ask for payment of arrears for a period of four and a half years. It was held by the Hon'ble Punjab State Commission that demand made by the department was justified but a concession was given by the department to the complainant to pay the arrears in reasonable installments. 11. We find merit, in the arguments advanced by the learned counsel for the opposite party, because the checking report Ext.C-4, adduced on record by the complainant himself, bears his signatures with a note thereon that copy of the checking report was supplied to him by the members of the checking team at the spot. As per the said report, electric meter installed in the premises of the complainant was running, but CT ratio was found 200/5A whereas, as observed above, the CT ratio in electricity bill Ext.C-3, it was shown as 150/5A. There is nothing on record to show that complainant raised any protest against the contents of the checking report or that they were reduced into writing by the officials of the board after securing his signatures. As per the plea of the opposite party, the actual CT of the electric meter of the complainant after opening the chamber thereof, as mentioned on its plate, was 150/5A. Since the CT of the electric meter could be ascertained after reading the figures inscribed on its plate, therefore, no instrument was required for verifying the capacity of the CT. The mere fact that chamber was locked by the officials of the board and no official/officer of the board, has earlier reported tampering thereof, does not mean that error in recording the ratio of the Contd........9 : 9 : CT, which may be an act of inadvertence or connivance of officials of the board, can be rectified as per factual position irrespective of delay in detection of error. The board has suffered loss due to error in recording of ratio of CT in the electricity bills drawn upon the complainant since the date of installation of his electric meter, as such, the board is within its right to recover the amount of loss suffered by it. The electric connection of the complainant may be seasonal, but CT thereof, has been defective from the date of its installation. As per the provisions of the Indian Electricity Act, recovery of the amount due cannot be effected after a period of 3 years, but keeping in view the peculiar facts and circumstances of the case and proposition of law laid down in the authorities relied upon by the learned counsel for the opposite party, cited above, the demand raised by the opposite party is justified, as per the actual position prevailing at the spot, and 'there is no deficiency in service' on their part for which compensation may be awarded and costs may be paid to the complainant or impugned notice may be set aside. 12. For what has been discussed above, we dismiss the complaint and parties are left to bear their own costs. 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: 16.02.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
