DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.23/3.2.09 Decided on : 11.5.2009 Sanjeev Kumar son of Kewal Krishan, resident of Water Works Road, Mansa, Tehsil and District Mansa. ..... Complainant. VERSUS Sub Divisional Officer(C), Punjab State Electricity Board, Mansa, Tehsil and 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. A.K. Sharma, Advocate counsel for Opposite Party. Quorum: Sh. Pritam Singh Dhanoa, President. Sh. Sarat Chander, Member. Smt. Neena Rani Gupta, Member. ORDER:- Sh.Pritam Singh Dhanoa, President. 1. This complaint, has been filed, by Sh. Sanjeev Kumar son of Sh. Kewal Krishan, resident of Water Works Road, Mansa, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') against the Punjab State Electricity Board (hereinafter called as the board), through its SDO(City), Mansa, for setting aside Memo No. 233 dated 24.1.2009, issued by his office and for payment of compensation, in the sum of Rs. 5000/- and costs of filing of complaint. Briefly stated, the case of the complainant, is as under:- 2. That he has secured electric connection, bearing Account No. WR-35/971, for consumption of electric energy, in his residential house. The complainant, has been making payment of electricity bills, drawn upon him, by the opposite parties, since the date of installation of his electric connection, as such he is consumer of electric energy under the opposite Contd.....2..... : 2 : party, qua the said electric connection. The complainant has never tempered with his electric meter, but opposite party has served, notice upon him, vide his office Memo No. 233 dated 24.1.2009, raising demand of Rs. 34,073/-, which is illegal and not binding upon, him, because he never tempered seals, of his meter. The tempering of seals also, does not amount to commission of theft of electric energy. The opposite party neither, got the electric meter, installed in the premises, of the complainant checked from the M.R. Lab., nor supplied copy of checking report, as such demand, raised by the opposite party, is illegal and impugned Memo is liable, to be set aside. The complainant has been, subjected to mental and physical harassment and has incurred avoidable expenses, for filing of this complaint. Hence this complaint. 3. On being put to notice, the opposite parties filed written version, resisting the complaint, by taking preliminary objections; that he is not 'Consumer' of the electricity as such, he has no locus standi, to file the complaint; that the complaint is not maintainable; that the complainant be stopped, by his own act and conduct, for filing of the complaint, because after receipt of notice of demand, assessment has been made, in terms of provisions under Section 126 of Indian Electricity Act, 2003, as such he could have appeared, before assessing authority and filed the objections, against demand, within period stipulated in the notice, but he has failed to do so; that demand has been rightly raised, through impugned notice, because electric meter installed, in the premises of the complainant, was checked, in the presence of Mrs. Geeta Rani, his family member and it was found, by Sh. R.K. Goel, Executive Engineer (Enforcement), that he has tempered, with ME seals of his meter and body thereof, was lying open. The representative of the complainant, named above, affixed her signatures, on checking report admitting the contents thereof, to be correct, as such it amounts to commission of theft of electric energy, within the ambit of Section 135(B) of Indian Electricity Act and amounts to unauthorized use of electric energy under the provisions of Sub Section 6(b) of Section 126, of Contd.....3.... : 3 : the said act, that jurisdiction of the Civil Court and Consumer Forum is barred, under Section 145 of the Indian Electricity Act, 2003 and that disputed questions of law and facts are involved and case is of technical nature, as such it cannot be disposed of, by Consumer fora in summary manner and is liable to be dismissed with costs. On merits, the factum of issuance of electricity connection, in the name of the complainant, is admitted, but it is reiterated that impugned notice raising demand of, Rs. 34,073/- is rightly served upon him, because in the checking done, by Executive Engineer of the board ME seals of, the meter, were found broken and for the said reason, no report of ME Lab., was required to be obtained before provisional assessment and service of notice. Rest of the averments made in the complaint have been denied and a prayer has been made for dismissal, of the complaint, with costs. 4. On being called upon by this Forum, to do so, the counsel for the complainant furnished his affidavit, Ext. C-2, and after tendered copy of impugned notice Ext. C-1 before he closed his evidence. On the other hand the counsel for the opposite party, tendered in evidence, affidavit of Sh. Ajaib Singh(SDO) Ext.OP-1 and affidavit of Sh. R.K. Goel, Executive Engineer Enforcement Ext.OP-2, copies of documents, Ext.OP-3 to OP-4 and closed his 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. Learned counsel for the opposite party Sh. Ashwani Kumar Sharma, Advocate has at the out set raised objection, regarding maintainability of the complaint, in consumer Fora. Learned counsel has argued, that jurisdiction of the Civil Court, including the Consumer Fora, is barred, under Section 145 read with Section 126 of Electricity Act, 2003, as such the complaint deserves to be dismissed, on this technical ground alone. In support of this contentions, learned counsel has placed, reliance on 2006(II) CLT (SC) 14 Haryana State Electricity Board Versus Mam Chand, Contd...4...... : 4 : wherein it has been held, by Hon'ble Apex Court, that as submitted, by the counsel for the OP, assessment of duty for unauthorized use of electricity, tampering of meter, distribution of meters and calibration of electric current, are matters of technical nature, which cannot be decided, by Consumer Fora and Section 145 of Indian Electricity Act, expressly bars jurisdiction of Civil Court, to entertain suits in respect of matters, falling under Section 126 of the said act. It was held by the Apex Court, that none of the said points discussed, by State Commission, as such contentions requires, deeper consideration by State Commissions and was remitted, to decide the matter on facts, in the light of provisions of Indian Electricity Act, 2003. 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 145 of Indian Electricity Act, 2003, does not expressly bar its jurisdiction. 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 within definition of service, under the Consumer Protection Act, 1986 and 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, 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 Contd....5.... : 5 : Electricity Act, against order passed under Section 126 of Electricity Act, although no complaint, can be entertained, by fora against final order passed by Appellate Authority, under Section 127, Electricity Act, because jurisdiction of for a, 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 for a, is not barred. In 2006(II) CLT(SC) 14(Supra), the case was remitted back, to State Commission by Hon'ble Apex Court adjudication as to if jurisdiction of Consumer for a is barred by Section 145 of Electricity Act, 2003, but controversy has been set at rest by Hon'ble National Commission in 2008(II) CPJ 284 (Supra). 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, that checking report, does not bear the signatures/thumb impressions of the complainant or his representative and opposite party, has not disclosed the name and address of the person, who affixed her thumb impressions, on the checking report. Learned counsel has also submitted, that details of evidence, gathered by the checking team, of the board are not found mentioned, in the copy of checking report, which does not bear the signatures of assessing authority and there is no proof of supply of copy thereof, to the complainant or affixation thereof on his premises. Learned counsel has further submitted, that as per note given in the copy of checking report, load drawn by the complainant, through his electric meter, was within permissible limit and opposite party, has not get the meter checked from M.E. Lab., in his presence, as such mere tempering of the seals, does not amount to theft of electricity, even the report presumed to be correct. Learned counsel has further submitted, that non compliance of the rules, on the subject and infirmities pointed out above, the impugned notice is liable, to be set aside and complainant is entitled, to seek compensation, for mental Contd.....6.... : 6 : and physical harassment and costs of filing of the complaint. 10. On the other hand counsel for the opposite party has submitted, that checking of electric meter installed in the premises, of the complainant has been done in the presence of his representative, who had affixed her thumb impressions, after admitting the contents, as such there is no requirement of securing of report of M.E. Lab after checking of meter, removed from the premises, of the complainant. Learned counsel has further argued, that in his affidavit, the complainant has not denied, that person who thumb marked on the checking report, has no relationship with him and he has not alleged, any previous enmity, on the part of the Senior Executive Engineer of the board because of which he may be said victim of false implication, on the allegations of commission of theft of electric energy. The learned counsel has further argued, that there is no deficiency in service on the part, of the opposite party, as such, complaint deserves to be dismissed, with costs. 11. Admittedly, electric connection in question is installed in the name of the complainant in his premises by the opposite party for consumption of electric energy. Notice Ext. C-1 and OP-2, is also served by the opposite party is in the name of complainant raising demand of Rs. 34,073/-, after provisional assessment, in terms of provisions of under Section 126 of the Indian Electricity Act, 2003. The plea of the opposite party is, that on 22.1.2009, checking team, of the board, led by Sh. R.K. Goel, Executive Engineer(Enforcement) checked the meter, installed, in the premises, of the complainant and found, that he has tempered with, ME seals and body of electric meter, as mentioned in the copy of checking report, Ext. OP-3. The load of electricity, drawn by the complainant at the time of checking, was found within sanctioned limit. It is not the plea of the opposite party, that the complainant was drawing electricity, by by-passing electric connection, directly from transmission line or in any other manner. In our opinion mere tempering of the ME seals and body of electric meter does not amount, to theft of electric energy, as mentioned in the copy of Contd....7... : 7 : checking report, Ext. OP-3. The checking of electric meter installed in the premises of the complainant, was done in the presence of Smt. Geeta Rani, who affixed her thumb impressions thereon. However, the particulars/address, are not mentioned therein and there is no remark, in the checking report, that its copy was affixed, on the premises of the complainant or was supplied to his representative. There is also no evidence on record, to show that copy of checking report, was sent through registered post or through any other means to the complainant as required under Clasue 3(e) of Circular No. 53/2006 issued by the board on the subject. Even in his affidavit Ext. OP-2, Sh. R.K. Goel, Executive Engineer, has not stated, about the supply of copy of checking report to the complainant or his representative, at the time of checking of his premises or subsequently. The copy of checking report also does not bear, the details of evidence, gathered by him, at the time of checking, about theft of electric energy, by the complainant, and it also does not bear signatures of assessing authority as required vide Clause 3(d) of the above said circular. In case the consumer or his representative present, at the time of checking, refuses to accept, the copy of the inspection report, it must be affixed at some conspicuous place, in or outside, its premises and simultaneously it is required to be sent to the consumer, as envisaged in Clause 3(e) of circular referred above. Therefore, there is non compliance of rules framed by the board, on the subject, on the part of checking officer and the opposite party. There is also no other evidence, except affidavit of Sh. R.K. Goel to hold, that the complainant, has committed theft of electric energy, by tempering with any part of the meter installed in his premises. Since the opposite party has taken plea of commission of theft of electric energy, therefore, initial onus was upon him, to prove the said fact by standing on his own leg. As he has failed to discharge the said onus, therefore, he cannot succeed even if there any weakness in the case of complainant and he cannot be burdened with penalty, even if he has not alleged, any enmity, with Sh. R.K. Goel, Executive Engineer or has not denied, his relationship with Geeta Rani, in Contd.....8.... : 8 : his affidavit. 11. For the aforesaid reasons, we accept the complaint and set aside the impugned notice issued by the opposite party vide Memo no. 233 dated 24.1.2009 raising payment of Rs. 34,073/-. The opposite party is also burdened in the sum of Rs. 2000/- on account of compensation and in the sum of Rs. 1000/- as costs of filing the complaint with the further direction that complainant had deposited, any amount in terms of interim order, dated 3.2.2009, the same may be refunded, to him alongwith interest @ 9% per annum from the date of deposit, till the date of 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. 12. 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: 11.05.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
