DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.141/10.09.2008 Decided on : 25.03.2009 Smt.Rukmani Devi W/o Sh.Ram Bhaj, S/o Sh.Hargulal, Ward No.13, Piarelal Thekedar wali gali, Mangla Street, 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.Sweet Singla,Advocate counsel for the complainant. Sh.S.P.Gupta, 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.Rukmani Devi wife of Sh.Ram Bhaj, a resident of Mansa, against Punjab State Electricity Board, (in short called the 'board') through its Sub Divisional Officer at Mansa, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'), for giving direction for setting aside notice served upon her vide memo No.2043 dated 29.8.2008 and for payment of compensation in the sum of Rs.5,000/- and costs in the sum of Rs.2,000/- for filing of the instant complaint, on the averments, which may, briefly be described as under: 2. That a residential house, situated in Ward No.13, Piarelal Contd........2 : 2 : Thekedar wali gali, Mansa was in the ownership of Sh.Rikhi Ram alias Ram Rekh S/o Sh.Des Raj. The said owner, secured electric connection bearing Account No.WR35/114, for domestic purposes, for the above said house. Vide sale deed dated 6.12.1988, the owner of the house, sold half portion to Amrit Pal S/o Sh.Walaiti Ram and remaining half to Moti Ram S/o Sh.Walaiti Ram. The vendors under him, named above, have been making use of the electric connection, installed at his house, after purchasing portions thereof. Vide sale deed dated 5.6.2003, Moti Ram S/o Sh.Walaiti Ram, sold his share, in the house, to the complainant. The electric meter is installed in the said portion of the house and the complainant is occupying thereof as owner and has been using the electric connection since the purchase of the house. She had been regularly making payment of amount of electricity bills, drawn by the board for consumption of electric energy. As such, she is consumer, under the opposite party, qua the electric connection. The opposite party, has served notice vide memo No.2043 dated 29.8.2008, raising demand of Rs.22,007/-, on the allegation that she is indulging in theft of electric energy, by tempering with the M.E. Seals. It is submitted that mere tempering of the seals, does not amount to theft of electric energy and said fact cannot be assumed until electric meter of the complainant was checked by the competent authority. Due to service of illegal notice, she has been subjected to mental and physical harassment and has become entitled to seek compensation from the opposite party and costs incurred by her for filing the instant complaint, alongwith relief of setting aside of the impugned notice. Hence this complaint. 3. On being put to notice, the opposite party filed written version, resisting the complaint, by taking preliminary objections; that the complaint is not maintainable for non joinder of necessary parties, because Ram Rekh S/o Sh.Des Raj, has been recorded as consumer under the answering opposite party and he has not been impleaded as party; that the Contd........3 : 3 : complainant, has no locus standi, to challenge the notice issued as per assessment made by the authority; that sanctioned load of electric connection is 6.11 KW and the same was revised as per her request; that the complainant, has suppressed the material facts, from the knowledge of this Forum; that she is not consumer of electric energy within the ambit of its definition given in the Act and that this Forum, has no jurisdiction, to entertain and try the complaint. On merit, it is reiterated that complainant is not consumer of the electric energy consumed through the electric connection, because the electric meter is installed in the name of Ram Rekh S/o Sh. Des Raj and impugned notice has also been served upon the said consumer raising demand of Rs.22,007/-. It is submitted that consumer Ram Rekh had been committing theft of electric energy by tempering with the M&T seals , as such, it is a case of theft of electric energy and he is bound to deposit the amount of impugned notice. It is submitted that copy of the checking report was supplied to the consumer at the spot and was also sent with the notice on which complainant had affixed her signatures in Hindi on 11.9.2008. It is also submitted, that checking was done in the presence of Sh.Gopi Chander and meter was removed and packed in his presence. It is also submitted that the said representative of the consumer had affixed his signatures in English and has failed to appear for personal hearing or to file objection, as such, provisional assessment made by the competent authority, has become final. 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 her affidavit, Exhibit CW-1 and copies of documents Ext.CW-2 to CW-5 before her counsel closed the evidence. On the other hand, learned counsel for the opposite party, tendered in evidence affidavit of Sh.Pawan Kumar, J.E. Ext.OP-4 and copies of documents Ext.OP-1 to OP-3 and has closed the evidence. Contd........4 : 4 : 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. The learned counsel for the opposite party, Sh. S.P.Gupta, Advocate, has contended that complainant is not consumer of the electric energy through the electric meter installed in the name of Sh.Rikhi Ram alias Ram Rekh S/o Sh.Des Raj and notice has also been served upon the said owner, as such, complaint filed by her is not maintainable. 7. On the other hand, Learned counsel for the complainant Sh.Sweet Singla, Advocate, has submitted that complainant has produced the copies of Sale Deed showing that she is in possession of the house, where electric meter, is installed in the capacity of owner. Learned counsel has further argued that complainant is beneficiary and user of electric energy and she has been depositing the amount of electricity bills drawn upon her by the opposite party, as such, she is consumer and the instant complaint is maintainable. 8. Admittedly, electric connection has been issued by the board in the name of Sh.Rikhi Ram alias Ram Rekh S/o Sh.Des Raj , but the complainant, has produced copy of Sale Deed dated 6.12.2008 Ext.C-2 showing that the above said owner of the house, has sold half portion thereof, to Amrit Pal and remaining half portion, to his brother Moti Ram. He has further produced on record copy of Sale Deed dated 5.6.2003 Ext.C-3 showing that Moti Ram has sold his half share in the house, to the complainant. The plea of the complainant, that electric meter is installed in half portion of his house, is not specifically denied by the opposite party. As such, it is deemed to have been accepted by them. Even the opposite party, has served impugned notice upon the complainant, as evident from its copy thereof, Ext.OP-1, tendered in evidence by them. They have not denied the possession of the house by the complainant from where they have removed the electric meter. Since the complainant has stepped in the Contd........5 : 5 : shoes of her predecessor-in-interest qua half portion of his house in which electric meter is installed, as such, being beneficiary and user of the same, she is consumer as per the provisions of Section 2(1)(d) of the Act. The complainant has not moved any application for change of electric connection in her name, does not change her statue, qua the electric connection installed by the opposite party especially when, it is not their case that she has not paid the electric charges regularly prior to service of impugned notice upon her by them. The argument advanced by the opposite party thus stands repelled. 9. Learned counsel for the complainant, has further submitted that checking, has been done in the absence of the complainant and her signatures, have been secured on the said document at the time of service of impugned notice. Learned counsel further argued that the opposite party, has not disclosed the time and manner of tempering the electric meter and report of M.E. Lab has not been secured. Learned counsel further submitted that plea taken in the written version by the opposite party regarding tempering and nature of seals is contradictory, as such, impugned notice is not sustainable and is liable to be set aside and complainant is entitled to seek compensation for mental and physical harassment and costs on account of amount spent by her for filing the complaint. In support of his contentions, learned counsel has placed reliance upon 2009(1) PLR 339 Dakshin Haryana Bijli Vitran Nigam Limited, Panchkula versus Poonam Vashist wherein it has been held by the Hon'ble Punjab & Haryana High Court that in order to prove the theft of electric energy, it was the basic requirement that meter must have been checked from the concerned laboratory. Learned counsel has further relied upon 2008(I) CPJ (NC) 62 HVPN versus Gautam Plastic wherein checking was not done either in the presence of the consumer or his representative and electric meter was not got checked from the M.E. Lab on account of which complaint filed by the complainant was allowed giving direction to Contd........6 : 6 : the OP to waive off the penalty and refund the same with interest on account of which it was not interfered in the revision petition. Learned counsel further relied upon 2007 (III) CPJ (NC) 410 Dakshin Haryana Bijli Vitran Nigam Ltd. Versus Suresh Kumar, wherein it has been held by the Hon'ble National Commission that mere tempering of seals does not prove that the complainant was making theft of electricity. It has also been held that allegation of theft is of criminal nature and has to be proved by cogent and convincing evidence which the opposite party has failed to produce and impugned order was quashed with the direction to refund the amount deposited by the complainant in terms of the impugned notice alongwith interest. 10. On the other hand learned counsel for the opposite party, has submitted that checking report, has been signed by the complainant herself, as such, she is deemed to have admitted the contents thereof and copy has been supplied to her on the spot. Learned counsel further argued that complainant has failed to avail opportunity of being heard and has not filed any objection, as such, no purpose might have been served by getting the meter removed from the premises and checked from the M.E. Lab. Since final assessment has been made, as such, complaint is mis use of process of law and liable to be dismissed with compensatory costs. 11. The argument advanced by the learned counsel for the opposite party, has failed to impress us at all, because, in the written version it has been submitted that electric meter was checked by the officials of the board comprising the checking team in the presence of one Gopy Chander, representative of original owner of the house namely Rikhi Ram. They have not taken any plea that said person was representative of the complainant. In the checking report, Ext.OP-2, the said Gopi Chander has been described as son of Ram Bhaj. The matter does not rest here, as signatures of the complainant, are also found affixed on the checking report below the signatures of his son Gopi Chander on 11.9.2008 whereas Contd........7 : 7 : checking is alleged to have been done by the team of the opposite party on 28.8.2008. In the copy of the impugned notice dated 29.8.2008, signatures of the complainant, have also been secured on 11.9.2008, whereas the case of the opposite party is, that she is not consumer of electric energy, qua the electric connection under them. It appears that signatures of the complainant, have been secured, by the officials of the board, on the checking report, at the time of service of notice, upon her on 11.9.2008. The bare look on the signatures of the complainant affixed on the checking report, reveals that they had been secured at the same time. Therefore, we are unable, to accept the plea, of the opposite party, that checking of the electric meter, was done in her presence or in presence of her representative and that she has admitted the allegation of theft of electric energy, by tempering with the ME seals of the electric meter. There is no note on the checking report, regarding the supply of its copy, either to the complainant, or his son, named above. The officials comprising the checking team, were under obligation, to affix the copy thereof, outside the house of the complainant, in case she or her representative, has refused to accept the same. It was also incumbent upon the officials of the board, to send the copy of the checking report subsequently through registered post, as envisaged in Clause 3(e) of the Circular No.53/2006, issued by the board, on the subject. Moreover, in the checking report, it has been mentioned, that complainant, has tempered with the M.E. Seals in column No.4, but in the written version, their stand is, that she has tempered with the M&T seals. In the checking report Ext.OP-2, at Serial No.6, no reference of M.E. seals, has been given. There is nothing on record showing that meter, after removal from the house, was got checked, from the M.E. Lab. In the given circumstances, it was necessary, that electric meter should have been removed, packed and sealed, by the checking team, at the spot and got checked, from the M.E. Lab, after service of notice, upon the complainant, in her presence. Contd........8 : 8 : Moreover, the report does not bear the signatures of the Assessing Authority and also do not contain the details of evidence gathered by the members of the checking staff, as envisaged in Clause 3(d) of the above said circular issued by the board on the subject. Therefore, there is apparently non-compliance of the rules on the subject, concerning the manner, in which cases concerned with theft of electric energy are to be dealt with. We are also unable to accept the plea of the opposite party, that final assessment, has been made, because the same is not supported by any evidence. The perusal of notice Ext. CW-5 goes to show, that it has been served, under Section 126 of the Indian Electricity Act, 2003, after provisional assessment, by the competent authority. The final notice has to be issued under Section 127 of the above Act, after providing opportunity of being heard, to the consumer, as provided in Clause (h) of the circular issued by the board, referred above, specifying the amount payable, by a person on account of electric energy. Therefore, the notice served upon the complainant, cannot be said to have been served after final assessment, from any stretch of imagination. 12. In the light of what has been discussed above, we have come to the irresistible conclusion, that impugned notice Ext.OP-1, is not sustainable and is liable to be set aside and complainant is entitled to adequate amount, on account of compensation for physical and mental harassment and costs incurred by her for filing the instant complaint. 13. For the aforesaid reasons, we accept the complaint and set aside the impugned notice dated 29.8.2008 Ext.OP-1 and direct them to pay compensation, in the sum of Rs.2,000/- and Rs.1,000/- as costs for filing of the instant complaint. The opposite party is further directed to refund the amount of Rs.7,000/-, if any, deposited by the complainant, in term of interim order dated 10.9.2008, along with interest, at the rate of 9 percent per annum, from the date of deposit, till date of actual payment with the further direction to not to disconnect his electric connection for Contd........9 : 9 : non-deposit of the amount of the impugned notice. The compliance of the order be made, within a period of two months, from the date of receipt of the copy of this order 14. 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: 25.03.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
