DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.151/24.09.2008 Decided on : 29.05.2009 Shri. Sri Ram S/o Sh. Hans Raj, S/o Sh.Jeeva Mal, Sant Ram Wakil Wali Gali, Ward No.14, at present Shakti Bhawan Street, Mansa. ..... Complainant. VERSUS Assistant Executive Engineer, Sub Urban, 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.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 Shri. Sri Ram son of Sh. Hans Raj, a resident of Mansa, against Punjab State Electricity Board, (in short called the 'board'), through its Assistant Executive Engineer, Mansa, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'), for setting aside impugned Memo dated 15.9.2008 and for award of compensation in the sum of Rs.10,000/- for physical and mental harassment and costs of filing of instant complaint in the sum of Rs.5,000/- on the averments, which may, briefly be described as under: 2. That Sh. Tarsem Chand S/o Shri Sri Ram secured electric Contd........2 : 2 : connection bearing Account No.GS33/730 from the opposite party for consumption of electricity for domestic purposes. The premises in which the electric connection is installed, has been purchased by the complainant from the said owner. Since then he is using the same as beneficiary and had been regularly making payment of amount of electricity bills, drawn upon him, and no amount is outstanding towards him on that score. As such, he is consumer of electric energy under the opposite party. He has never tampered with the electric meter installed in his house, but the opposite party has served notice upon him vide his office Memo dated 15.9.2008 raising demand of Rs.47,729/-, on the allegation that he has been committing theft of electric energy. The said memo is illegal and liable to be set aside, as there is no allegation except that complainant has tampered with the ME seals of his meter. The mere tempering of the seals does not amount to commission of theft of electric energy. The meter reader of the board who visited the premises of the complainant for recording reading of the electric meter installed therein have never reported any tampering of the seals or theft of electric energy by him. The opposite party has not got the electric meter, removed from his premises, checked from the M.E. Lab. As such, there is deficiency in service on his part. The complainant was not present at the time of checking and he has been subjected to mental and physical harassment due to service of impugned notice raising of demand of huge amount, hence this complaint. 3. On being put to notice, opposite party filed written version, resisting the complaint, by taking preliminary objections; that the complaint is bad for non joinder of Sh.Tarsem Chand, who is rendered consumer in the record maintained in the office of the opposite party; that the complainant is liable to make the payment of amount mentioned in the notice served upon him; after provisional assessment because checking of his electric meter was done on 9.9.2008 by the checking team of the board in the presence of the representative of the complainant and it was found Contd........3 : 3 : that he had tampered with the seals after breaking them and members of the checking team removed, sealed and packed the electric meter in the presence of his representative who affixed his signatures in English on the checking report; that the complainant has not availed the opportunity of being heard offered to him and has not filed any objection within the period stipulated in the notice; that sanctioned load of the meter issued in the name of Tarsem Chand is 7.526 KW, as such, account of the consumer has been overhauled as per rules framed by the board on the subject; that the complainant has concealed the said facts in the complaint; 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; that this Forum has no jurisdiction, to entertain and try the complaint, because case pertains to commission of theft of electric energy, and his complaint, being false and frivolous, is liable to be dismissed. On merits, it is submitted that electric connection has not been issued in the name of the complainant and he is not consumer of the electric energy under the opposite party. It is reasserted that impugned notice has been correctly served upon the consumer Tarsem Chand on the basis of the checking and after overhauling his account and he is liable to deposit the amount. The allegation regarding checking of the electric meter, have also been reiterated and it is submitted that entry regarding checking has been made in the checking Register maintained in the office of opposite party bearing No.302 at Sr.No.001 and assessment has become final because the complainant has failed to avail opportunity of being heard within the period stipulated in the notice and has not filed any objection challenging the notice served upon the consumer under Section 126 of the Indian Electricity Act, 2003. It is contended that it is not the duty of the meter reader of the board to check the tampering of the seals of the electric meter installed in the premises of the consumer. It is also submitted that incase the complainant is interested Contd........4 : 4 : then meter may be got checked from the M.E. Lab, but it is denied that there is deficiency in service on the part of the opposite party or that impugned notice served upon the original consumer, is liable to be set aside and opposite party is bound to make payment of any compensation and costs. 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 copy of sale deed Ext.C-3 closed the evidence. On the other hand the learned counsel for the opposite party tendered in evidence photocopy of checking report Ext.OP-1, Calculation Sheet Ext. OP-2 and affidavit of Sh.Gamdoor Singh, Assistant Executive Engineer Ext.OP-3, and closed the 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.P.Gupta, Advocate, learned counsel for the opposite party, has submitted that complainant is not recorded consumer in the record maintained, by the board and he has neither conveyed any intimation regarding purchase of the premises where electric meter is installed, nor filed any application for transfer of the same in his name, as such, complainant not being a consumer, within the purview of its definition given in the Act has no locus standi, to file the complaint which is not maintainable in the Consumer Fora. Learned counsel has drawn our attention to Regulation No.38.1 contained in the Sales Manual of the board prescribing procedure for transfer of electric connection on payment of requisite charges and has further relied upon 2005(1) CPC 361Maha Singh Sherawat Versus S.D.O. and Another, wherein electric meter, was not issued, in the name of the complainant, to claim the house, where it was installed, who was recorded consumer, in the record of electricity Contd........5 : 5 : department and he had also not filed, any application, for transfer of electric connection, in his name. It was held by the Hon'ble U.T. State Commission, Chandigarh, that complaint by the vendor against the electricity department, is not maintainable and he is not 'Consumer' of opposite party, as such dispute cannot be decided, under the Act and no relief can be granted to him. Learned counsel has further relied upon 1994(II) CPJ (Supreme Court) 21 Indian Oil Corporation versus Consumer Protection Council, Kerala and anr., wherein it has been held by the Hon'ble Apex Court that as there is no privity of contract between the appellant and the consumer, as such, there is no deficiency in service. Learned counsel has argued, that in view of peculiar facts and circumstances of the case and proposition of law laid down, in the authorities referred above, the complaint is liable to be dismissed 7. On the other hand, learned counsel for the complainant, Sh. S.K. Singla, Advocate, has submitted, that the opposite party has not denied, the possession of the complainant over the premises, where the electric connection, is installed, or that any amount is outstanding as arrears of electric charges after purchase of the premises, from the original consumer by the complainant, as such he being a beneficiary has locus standi, to file the complaint, which is maintainable in the Consumer Fora. In support, of his contention, the learned counsel, has placed reliance on 2006(2) CPC 137, Sat Pal Versus P.S.E.B. through its Secretary and others, wherein it has been held, by the Hon'ble Punjab State Commission, that it is well settled law, that a person, who is staying in a house as a actual user of electricity, would be a 'consumer' being a beneficiary. Learned counsel, has also relied upon 2008(II) CPJ 284, Jharkhand State Electricity Board & Anr. Versus Anwar Ali, wherein it has been held by Hon'ble Apex Court, that supply of electric energy is included in the definition of 'service', under the Act and person availing such service would be 'Consumer' as such jurisdiction of Consumer Fora is not barred, Contd........6 : 6 : by the provisions of Electricity Act, 2003 which are parallel to the provisions of the Consumer Protection Act, 1986, and jurisdiction of Consumer Fora is saved by Section 174 and 175 of the Indian Electricity Act and it cannot be curtailed in the absence of express provision prohibiting its jurisdiction. Lastly Learned counsel has also relied upon 2006(IV) CPJ 157, Punjab State Electricity Board Versus Parveen Kumar Jain & Ors., wherein electric connection, was existing in the name of original consumer and was not transferred, in the name of actual user, who after death of original consumer continued, to use electric energy and to pay amount of electricity bills. It was held, that actual user of electric energy are the complainants, as such, they are beneficiary of the person, in whose name electric connection is existing, and they are 'Consumers' and complaint, filed in the Consumer Fora, is maintainable. 8. We find merit, in the argument advanced by the learned counsel for the complainant. As per the admitted facts, electric connection has been got installed in the name of Tarsem Chand son of Sri Ram, who is recorded as consumer in the record of the opposite party. The impugned notice Ext.C-2 has also been served by the opposite party upon him. The copy of the checking report Ext.OP-1 has also been signed by the representative of the original consumer as per version of the opposite party. However, complainant has produced on record copy of registered sale deed dated 28.3.2003 Ext.C-3 showing that house where electric connection has been installed has been sold to him by the original consumer and their legal heirs of his father Chanan Ram. The opposite party, has not specifically denied that complainant is not in occupation of premises, where electric meter is installed, or that any amount is outstanding towards, the original owner except the amount demanded through the impugned notice. In our opinion the provisions of the Act do not confine to the original hirer of the service, but they are also equally extended to the beneficiaries of service as well, in terms of provisions of Section 2(1)(o)(ii) of the Act, wherein it is Contd........7 : 7 : specifically provided that the word 'consumer' defined in the said provision also includes 'beneficiary' of such services other than the person who has availed the services for consideration. In view of the facts of the case discussed above and proposition of law laid down in authorities relied upon, by the counsel, for the complainant and referred above, we have no option but to hold, that complainant is 'Consumer' of electric energy, in the capacity of 'beneficiary'. The law laid down, in the authority, relied upon by the counsel for the opposite party, cannot be preferred, over the law laid down, by our own Hon'ble State Commission and Hon'ble National Commission, in the authorities relied upon by the counsel for the complainant. In 1994(II) CPJ (Supreme Court) 21 (supra), controversy pertained to the issuance of unauthorized gas connection by the Gas Agency which was suspended and revived lateron and the said agency had given new registration for connection against the terms and conditions of the agreement due to which regularization of the connection to the consumer was refused. In the case in hand, jurisdiction of this Forum has been invoked by successor -in-interest of the original consumer of electric energy who is in possession of the premises where electric meter is installed. As such, the facts and circumstances of the case are quite distinguishable from those of case in hand. The argument advanced by the learned counsel for the opposite party thus stands repelled. 9. At this stage, learned counsel for the complainant has submitted, that checking of the meter installed, in the premises in occupation of the complainant, has not been done, in the presence of the complainant or his representative and no proof of supply of copy of checking report to the complainant has been brought on record by the opposite party alongwith the fact that its copy was affixed on his premises or supplied to his representative. 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 Contd........8 : 8 : 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 name of the officer who has tendered his affidavit has not been found mentioned in the written version as member of the checking team. Learned counsel, has argued that details of evidence gathered at the time of checking have not been mentioned in the checking report, as such, factum of checking is not free from suspicion. Learned counsel further argued that notice has been served under Section 126 of the Indian Electricity Act, 2003 and that consumer after breaking his MCB seals had tampered with M&T seals, a such, it is a case of mere tampering of the seals which does not amount to commission of theft of electric energy. In support of his contentions, learned counsel has relied upon 1994 (I) CPJ 74, H.S.E.B. Versus Krishan Dev, wherein copy of the checking report did not bear the signatures of the consumer and was not served upon him on account of which it has been held, by the Hon'ble Haryana State Commission, that notice served by the authority is violative of statutory provisions contained in this regard in Section 24(A)(ii)(3) and Section 24(A)(v)(i) of the Electricity Act. It is also held that it is well settled ad-age of the law, that mere suspicion cannot, take the place of proof and the conjectural ground, that the possibility of an attempt, to commit theft could be ruled out. Learned counsel, has also placed reliance upon 2007(II)CPJ 282 Gurcharan Singh versus Punjab State Electricity Board & Anr., wherein it has been held that due to mere tempering of seals it cannot be concluded that there has been theft of electricity. Learned counsel, has further relied upon 2007(III) (NC) CPJ 410 Dakshin Haryana Bijli Vitran Nigam Ltd. versus Suresh Kumar wherein it was held that checking report did not show in what manner seals were tampered with and notice served upon the complainant was quashed by the Hon'ble State Commission and opposite parties were directed to refund the amount to him with interest at the rate of 18 percent per annum and in the Revision Petition, Hon'ble National Contd........9 : 9 : Commission upheld the decision of the Hon'ble State Commission. Learned counsel urged that there is non compliance of rules framed by the board on the subject on the part of the opposite party, which amounts to deficiency in service, as such, impugned notice is not sustainable and is liable to be set aside and complainant is entitled to seek compensation and costs, as demanded in the instant complaint. 10. On the other hand, learned counsel for the opposite party, has submitted that the complainant has failed to avail the opportunity of being heard offered to him and to file objection within the period stipulated in the notice, as such, assessment made by the competent authority under Section 126 of the Indian Electricity Act, 2003 has become final. Learned counsel further submitted that checking report bears the signatures of the original consumer and complainant has not denied the relationship in his affidavit and it is established from the bills tendered in evidence, that his consumption was much on the lower side than the sanctioned load. Learned counsel urged that there is no deficiency in service which may warrant indulgence of this Forum, as sought through the instant complaint, by the complainant. In support of his contentions, learned counsel has placed reliance upon 1998(I) CLT 591 Haryana state Elelctricity Board, Panchkula and Ors versus Krishan Kumar wherein M&T seals of the meter installed in the premises of the complainant were found defaced/tampered and it was established that representative was present at the spot because of which demand raised by the board was found to be correct and order passed by the Consumer Forum allowing the complaint was set aside. 11. The argument advanced by the learned counsel for the complainant is not devoid of merits. Learned counsel for the opposite party has laid much stress on nonavailing of the opportunity of being heard offered to the complainant and his failure to file objection within the period stipulated in the notice after provisional assessment under Section 126 of Contd........9 : 9 : the Indian Electricity Act, 2003. We express our inability to accede to the plea of the opposite party because notice Ext.C-2 is dated 15.9.2008 and instant complaint has been filed on 24.9.2008 before the expiry of period of 15 days stipulated in the impugned notice for personal hearing. Moreover, the notice has not been addressed to the complainant, but to the person who is recorded original consumer in the record maintained by the board. However, as he has sold the premises to the complainant, therefore, consequences of the notice are to be borne by him and not by the original consumer in whose name electric connection is installed. We are also of the considered opinion that there is no bar that person aggrieved must avail opportunity of being heard and then file objection before approaching the Consumer Fora. Since no order has been served upon the original consumer or the complainant under Section 127 of the Indian Electricity Act, 2003, therefore, impugned notice cannot be said to have gained finality. 12. As per the case of the opposite party, the complainant was not present at the time of checking and checking report has been signed by the representative of the original consumer and not by his representative. There is no indication in the report Ext.OP-1 that representative of the original consumer refused to receive the copy or it was affixed on his premises after his refusal or it was sent to the complainant subsequently through registered post as mentioned in Clause 3(e) of the Circular No.53/2006, issued by the board on the subject. The parentage, address and relationship of the person who has signed the checking report with the complainant has not been disclosed by the members of the checking team. Since checking has not been done in the presence of the complainant or his representative, it was incumbent upon the members of the team to mention about the details of evidence gathered by them as envisaged in Clause 3(d) of the above said circular. 13. The impugned notice has been served on the original Contd......11 : 11 : consumer by drawing inference of theft because seals of the electric meter, were found broken and M&T seals thereof were found tampered with. In view of the law laid down in the authorities relied upon by the learned counsel for the complainant, we are of the opinion that mere tampering of the seals does not amount to commission of theft of electric energy, until any further act to facilitate commission of theft of electric energy is also found to have been done by the complainant. The opposite party has removed, packed and sealed the meter as mentioned in the checking report, but they have not bother to get it checked from the M.E. Lab within the period stipulated in rules contained in manual issued by the board. The theft of electric energy is a serious offence , which leads to serious consequences, if established. As such, liability upon the consumer or his successor-in-interest cannot be fastened in the absence of cogent and convincing evidence by drawing adverse inference against him because of tampering of seals of meter installed in his premises. 14. After balancing the probabilities of evidence adduced on record by the parties, 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 he 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. 15. Resultantly, the complaint is allowed and we set aside the impugned notice, Ext.C-2, served upon the original consumer, vide Memo No.1112 dated 15.9.2008 by the opposite party raising demand of Rs.47,729/-, with direction to the opposite party to pay a sum of Rs.2,000/-, on account of compensation, and a sum of Rs.1,000/- as costs of filing of instant complaint and to refund the amount of Rs.16,000/-, if paid, by the complainant in terms of the interim order dated 24.9.2008, with interest, at the rate of 9 percent, from the date of deposit till the date Contd......12 : 12 : 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. 16. 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: 29.05.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
