DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.20/03.02.2009 Decided on : 14.05.2009 Sh. Prem Kumar S/o Sh. Durga Dass Premi Wali Gali, Ward No.14, 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.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 Sh. Prem Kumar son of Sh. Durga Dass, 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 29.01.2009 and 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 he has secured electric connection bearing Account No. Contd.......2 : 2 : SR-18/165 from the opposite party for domestic purposes. Since the date of installation of the said electric connection, he has been regularly making payment of amount of electricity bills, drawn upon him. As such, he is consumer of electric energy under the opposite party, who vide letter No.299 dated 29.01.2009, he has raised demand of Rs.28,029/-, which is illegal and is liable to be set aside, because the complainant has neither tampered with his electric meter, nor he has ever indulged in theft of electric energy. The mere tampering of seals also does not amount to commission of theft of electric energy. The complainant has been making payment of electricity bills on the basis of average and meter has been removed from his premises as a routine and opposite party has not been got checked from the M.E. Lab. Since the complainant, has been subjected to mental and physical harassment due to service of impugned notice raising of demand of huge amount, and the opposite party has failed to withdraw the same inspite of being approached for the purpose by him, 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 and this Forum has no jurisdiction, to entertain and try the complaint, because notice has been served upon the complainant, due to his indulgence in theft of electric energy; the complainant is estopped by his own act and conduct from filing the instant complaint; that the complainant has concealed the material facts from the knowledge of this Forum, as such, his complaint, being false and frivolous, is liable to be dismissed with compensatory costs. On merits, the factum of issuance of electric connection, in the name of the complainant, for domestic purposes and service of impugned notice upon him by the opposite party vide his office Memo dated 29.1.2009, checking of the Contd........3 : 3 : premises of the complainant by the task force of the board led by Sh.R.K.Goyal, XEN is admitted and it asserted that checking team found seals of the electric meter tampered with and body thereof opened. It is also contended that representative of the complainant, namely, Prem Lata, after signing the checking report admitted the contents thereof and notice has been served upon him through the impugned Memo after provisional assessment by the competent authority as per rules on the subject. 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, copy of impugned notice Exhibit C-2 and closed the evidence. On the other hand the learned counsel for the opposite party tendered in evidence affidavit of Sh.Ajaib Singh, Assistant Executive Engineer Ext.OP-1 and photocopy of documents Ext.OP-2 to OP-4 and closed 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.S.K.Chhabra, Advocate, learned counsel for the opposite party, has submitted that in case demand has been raised due to theft or dishonest abstraction of electric energy, then complaint is not maintainable in the Consumer Fora, as such, it is liable to be dismissed. In support of his contentions, he has placed reliance upon 2006(I) CPJ 377 Delhi Vidyut Board versus Devendra Singh & Anr wherein it has been held by the Hon'ble Delhi High Court that in case of theft/dishonest abstraction of electricity, no consumer dispute is involved , as such, authorities under the Act cannot adjudicate the controversy. 7. On the other hand, learned counsel for the complainant Sh. S.K. Singla, Advocate has submitted, that as per provisions of Section 3 of the Act remedy before the Consumer Fora is additional remedy and Section Contd........4 : 4 : 145 of Indian Electricity Act, 2003, does not expressly bar its jurisdiction and raising illegal demand is deficiency in service, as such, complaint is maintainable in the Consumer Fora. In support of his contentions, the learned counsel has placed reliance on 2008(II) CPJ (NC) 284, Jharkhand State Electricity Board & Anr. Versus Anwar Ali, wherein it has been held, by the Hon'ble National Commission that supply of electrical/other energy is included in the definition of service, under the Consumer Protection Act, 1986, as such, person availing such service, would be a consumer. It was further held, that jurisdiction of Fora is not barred, by the provisions of Electricity Act, 2003 because said act and Consumer Protection Act, 1986 run parallel, regarding limited purpose, in respect of arbitrary, illegal, unjustified action, against rules and regulations of electricity code. 8. We find merit, in the argument advanced by the learned counsel for the complainant, because in 2008(II) CPJ (NC) 284 (Supra), it has been held, by the Hon'ble National Commission, after case was received by remand, from Hon'ble Apex Court, that Section 3 of Consumer Protection Act, 1986 and Section 145 of Indian Electricity Act, 2003 are not in derogation of provisions of any other law, as such consumer has option either, to file complaint, under Consumer Protection Act or under Electricity Act, against order passed under Section 126 of Electricity Act, 2003 although no complaint, can be entertained, by Fora against final order passed by Appellate Authority, under Section 127, Electricity Act, because jurisdiction of Fora, is expressly saved, by the provisions of Section 174, 175 of Electricity Act and if consumer alleges, deficiency in service, on the part of electricity board or its officers, then complaint is maintainable and jurisdiction of consumer Fora, is not barred. In the light of above said decision, given by the Hon'ble National Commission, we have no option, but to hold that complaint, is maintainable in Consumer Forum and cannot be dismissed, for want of maintainability alone. 9. Learned counsel for the complainant, has further submitted Contd........5 : 5 : that there is no allegation in the checking report that complainant was drawing electric energy by artificial means and as per note given therein, the actual load being drawn by him at the time of checking was within the sanctioned limit. Learned counsel has further submitted that affidavit of the complainant, that he had never indulged in theft of electric energy, has gone uncontroverted, as no affidavit of any official, who was member of the checking team, has been tendered in evidence by the opposite party. Learned counsel has further submitted that checking has not been done in the presence of the complainant and parentage and address of the person, who is stated to have affixed the signatures on the checking report on his behalf, have not been disclosed and there is no evidence to establish that she is, in any way, related to him. Learned counsel argued that report of the M.E. Lab., has not been secured, 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, which is a serious allegation and if established, can lead to serious consequences. Learned counsel argued that there is no proof of supply of copy of checking report to the complainant by the opposite party and that its copy was affixed on his premises or supplied to his representative. Learned counsel urged that the officer in whose supervision inspection was conducted has not been examined by the opposite party and the officer who has tendered his affidavit is not named in the written version as member of the checking team. As such, factum of checking is not free from suspicion. Learned counsel urged that there is non compliance of rules framed by the board on the subject and there being deficiency in service on the part of the opposite party, impugned notice is not sustainable and is liable to be set aside and complainant is entitled to seek compensation and costs from the opposite party, as demanded in the instant complaint. 10. On the other hand, learned counsel for the opposite party, has submitted that complainant has not denied his relationship with the Contd........6 : 6 : person who had affixed signatures on the checking report admitting the contents thereof and he has not examined any witness to falsify the factum of checking of his electric meter, as such, case set up by the opposite party cannot be rejected on the strength of the affidavit of the complainant alone, which is a self serving document. Learned counsel argued that complainant was afforded opportunity to appear before the opposite party for personal hearing, but he has failed to do so and has not filed any objection against the demand raised by them, as such, complaint is liable to be dismissed with costs. In support of his contentions, learned counsel has relied upon 2009(I) CPJ 16 (Supreme Court) Sub Divisional Officer (P) UHBVNL versus Dharam Pal wherein it has been held by the Hon'ble Apex Court that in case of tampering, there is no scope for reference to the Electrical Inspector in terms of Section 26(6) of the Electricity Act and order passed by the District Forum, State Commission and National Commission was held to be not justified and was quashed. 11. Admittedly, electric connection bearing Account No. SR-18/165 is installed in the house of the complainant at Mansa and no amount was outstanding against him before service of impugned notice upon him by the opposite party. The copy of checking report Ext.OP-3 does not bear the signatures of the complainant, but of one Prem lata, whose parentage, address and relationship with the complainant, have not been disclosed. In the copy of the checking report nothing is mentioned about the supply of copy to the said representative of the complainant. There is no other indication showing that she refused to receive the copy of the checking report and the same was affixed upon the premises of the complainant or sent to him through registered post as envisaged in Clause 3(e) of the Circular No.53/2006, issued by the board on the subject. In the copy of the checking report Ext.OP-3, load of electric energy drawn by the complainant at the time of checking, was within the sanctioned limit of 4.76 KW. The checking report does not bear the signatures of the Contd........7 : 7 : Assessing Authority and details of evidence gathered by the members of the checking team as envisaged in Clause 3(d) of the above said circular. The onus was heavy on the opposite party to prove the said fact by leading cogent and convincing evidence, which he has failed to discharge. The theft of electric energy cannot be presumed by drawing adverse inference due to tampering of M.E. Seals or opening of body of electric meter installed in the premises of the consumer. Moreover, the complainant has denied the factum of checking of the electric meter installed in his premises by the checking team of the board in his affidavit Ext.C-1 on solemn affirmation. In the written version opposite party has taken the plea that the complainant was drawing electric energy directly, but in the copy of the checking report it is mentioned that he has tampered with the M&T seals of his meter. The affidaivt of the officer who has conducted the checking has not tendered in evidence by the opposite party and Sh.Ajaib Singh, Assistant Executive Engineer in his affidavit Ext.OP-1 has not claimed that he was member of the checking team nor there is any such averment in the written version. The allegations against the complainant are that he had tampered with the ME. Seals and body of the electric meter, but there is no allegation that he has also tampered with any internal part of his electric meter to facilitate commission of theft of electric energy. We are of the opinion that proposition of law delivered in the said authorities is not applicable because in that authority tampering was done by the consumer in the electric meter whereas in the present case allegations are that consumer is only tampering with its seals and body. In 2009(I) CLT (NC) 489 DHBVNL versus Lakhmi Chand Bansal, the concerned official did not send the meter to M.E. Lab to point out actual defect in the working of the meter to secure their finding for commission of theft by breaking upon the seals and report was secured in the absence of the complainant and members of his family, on account of which order passed by the Consumer Forum below to the effect that there was gross Contd........8 : 8 : negligence and deficiency in service on the part of the opposite parties , was upheld. 12. After balancing the probabilities of evidence adduced on record, 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 complainant 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 complainant, vide Memo No.299 dated 29.1.2009 by the opposite party raising demand of Rs.28,029/-, and burden him, in the sum of Rs.2,000/-, on account of compensation, and in the sum of Rs.1,000/- as costs of filing of instant complaint with further direction, to refund the amount of Rs.9,500/-, if paid, by the complainant in terms of the interim order dated 03.02.2009, 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: 14.05.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
