sBEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMRITSAR.
Consumer Complaint No. 735 of 2018
Date of Institution:20.9.2018
Date of Decision: 28.9.2021
Sapna wife of Sh. Sunil Arora, aged about 43 years, proprietor of Neeta Textile, Plot No. 4, Kot Mahna Singh, Tarn Taran Road, Amritsar (Mobile No. 9463825759)
Complainant
Versus
Punjab State Power Corporation Ltd. , through the SDO (Commercial) Sub Division, City Circle, Amritsar
Opposite Party
Complaint under section 11 & 12 of the Consumer Protection Act, 1986 ( now u/s 35 of the Consumer Protection Act, 2019
Result : Complaint Allowed
Cases referred:-
- Punjab State Electricity Board Vs. Kuldip Singh 2004(1) CPC page 657 by Hon'ble State Consumer Disputes Redressal Commission, Punjab Chandigarh
- Dakshin Haryana Bijli Vitran Nigam Ltd. & Anr. Vs. Rajji Bai 2009(1) CLT page 526 by Hon'ble Haryana State Consumer Disputes Redressal Commission
- M/s. Kundan Mill Board & Paper Mills & Anr. Vs. Punjab State Electricity Board, Patiala & Ors. 2014(2) Civil Court Cases 44 of the Hon’ble Punjab & Haryana High Court
- United Bank of India, Kolkatta Vs. M/s.Janata Paradise Hotel & Restaurant, Jorhat-I, Assam of the Hon’ble National Commission
Counsel for the parties :
For the Complainant : Sh.Munish Kohli,Advocate
For the Opposite Party : Sh. N.S.Sandhu,Advocate
CORAM
Mr. Jagdishwar Kumar Chopra, President
Mr.Jatinder Singh Pannu, Member
ORDER:-
Mr. Jagdishwar Kumar Chopra, President :-Order of this commission will dispose of the present complaint filed by the complainant u/s 11 & 12 of the Consumer Protection Act, 1986 (now covered u/s 35 of the Consumer Protection Act, 2019).
Brief facts and pleadings
- Brief facts of the complaint are that complainant alongwith her mother in law Smt. Neeta Rani jointly purchased the property bearing Plot No. 4, Kot Mahna Singh, Tarn Taran Road, Amritsar from previous owner vide sale deed dated 1.2.2006 alongwith electricity connection bearing account No. 3002880005 under SP category which was in the name of Prem Parkash .The complainant is using the said connection for running power looms for earning her livelihood by way of self employment. Since the installation of the abovesaid connection complainant is regularly paying the consumption charges as per the bills issued to her except the amount under challenge. Thus the complainant having hired the services of the opposite party for consideration, is a consumer of the abovesaid connection, as defined under the Consumer Protection Act, 1986 and has a right to invoke the jurisdiction of this Forum/Commission for the redressal of his grievance by filing this complaint. The meter of the complainant was already installed outside her premises and its monthly reading is always taken by technical officer of the opposite party from time to time. The complainant was shocked and surprise to receive a memo No. 4744 dated 9.8.2018 claiming an amount of Rs. 82,653/- from the opposite party. The said memo is Ex.C-2 . After receipt of this memo the complainant immediately approached the sub division and showed them the previous electricity bill and its payment receipts thereof and asked for the details of the issuing of the abovesaid memo. In reply to that the opposite party at that time informed the complainant that the memo was issued due to power factor/inoperative shunt capacitor . It is worthwhile to mention here that neither any separate notice regarding the removal of defect in the shunt capacitor, if any has been received by the complainant nor he was ever informed by the opposite party regarding the defective working of the shunt capacitor. The complainant raised hue and cry and asked them to withdraw the memo but they hardly bothered to listen to him and rather threatened him to pay the amount claimed in the memo in full else his connection will be disconnected permanently. As per CC No. 26/2016 & ESIM (General condition of Tariff) “ in case shunt capacitors are found to be missing or inoperative or damaged, a 15 days notice shall be issued to the consumer for rectification of the defect and setting right the same. In case the defective capacitors are not replaced/rectified within 15 days of the issue of notice, surcharge and the rate of 20% on bill amount shall be levied for the proceedings two months and it shall continue to be levied till the defective capacitors are replaced/rectified to the satisfaction of the PSPCL. In case the capacitors are found to be of inadequate rating, the capacitor surcharge shall be levied on pro-rata basis.” Moreover the memo has been issued under the directions of the audit party but as per law the audit party has no right to claim any amount from the consumers. The complainant showed them the abovesaid rules and circular but they hardly bothered to listen to her. The complainant was running from pillar to post for withdrawal of memo but to no avail. The aforesaid act of the opposite party amounts to a great negligence, carelessness, deficiency in service on the part of the opposite party due to which the complainant has suffered a great mental pain, agony, harassment, inconvenience at their hands. Vide instant complaint, complainant has sought for the following reliefs:-
- Opposite party be directed to withdraw the impugned memo No. 4744 dated 9.8.2018 for Rs. 82,653/- or in the alternative the same may be set-aside ;
- Compensation to the tune of Rs. 10,000/- alongwith litigation expenses of Rs. 5000/- may also be awarded to the complainant.
- Any consequential relief for which the complainants are found entitled to may also be awarded to them ;
Hence, this complaint.
2. Upon notice, opposite party appeared and filed written version taking certain preliminary objections therein inter alia that no cause of action has arisen to the complainant to file the present complaint against the opposite parties since the charges claimed by the opposite party are legal, valid and as per rules and regulations of the department and the complainant is liable to pay the same and the complaint is liable to be dismissed ; that as per rules and regulations of the department each and every consumer having connection under “small power category” “Medium supply category” , “Large supply category” , “Bulk supply category” is to maintain “power factor” which is a ratio of kilo watts to the Killo volt Amperes drawn by any electrical appliances/equipment. It is worth mentioning here that the said consumers are getting supply of electricity through the meters which record two kinds of readings for the purpose of billing i.e. KWH (kilo watt hour) and KVAH (Kilo Volt Ampere per hour). Earlier upto 31.7.2018 the billing of the said consumers are used to be done on the basis of KWH reading and power factor was used to be calculated as KWH/KVAH. As per rules and regulations, the said consumers were required to maintain the said ratio at 0.90 and in case said ratio comes out to be less than the prescribed ratio, such consumers were liable to pay power factor surcharge and if the said ratio exceeds the prescribed ratio such consumers were entitled incentives/rebate in the bill amount. It is worth mentioning here that the bills issued by the department to the consumers including the complainant contained a column in which the power factor ratio is specifically mentioned and as such the complainant was aware of the fact that the power factor is not being maintained by him . It is also worth mentioning here that in the present complaint, the complainant has nowhere alleged that he had no knowledge about the maintenance of the power factor and that he had no knowledge about the prescribed ratio of power factor which was required to be maintained by him. The only ground propounded by the complainant in the present complaint is that the opposite party has not issued 15 days notice to the complainant before raising the impugned demand. In this respect the complainant has also reproduced the relevant provision of Electricity Supply Instructions Manual (General conditions of tariff) . Mere perusal of the said provision will reveal that opposite parties were bound to serve 15 days notice to the complainant in respect to the non maintenance of the power factor, had there been any defect in the shunt capacitor installed in the premises of the complainant, if the said shunt capacitors were found to be damaged or missing, only. In the present case the complainant has not alleged that he was unable to maintain the power factor on account of any damage or defect in the shunt capacitor or that the same were missing. Also there is no report by any of the officials of the department that the shunt capacitor installed in the premises of the complainant are missing, defective or damaged. It is worth mentioning here that the variation or non maintainability of the prescribed ratio cannot be solely attributed to any defect in the shunt capacitor, damage to it but defect in the wiring or the machinery installed in the premises can also be equally responsible for the variation or non maintainability of the prescribed ratio of power factor. It is also worth mentioning here that under the rules and regulations it was the responsibility of the complainant to maintain the prescribed ratio of power factor and from the bills issued to him by the department he was continuously made aware of the fact that he is not maintaining the power factor as per the prescribed ratio. Under the circumstances, the complainant at this stage cannot raise dispute in respect to the demand claimed by the department vide impugned notice . Moreover there is no such provision under the rules and regulations to serve any notice to the consumers for non maintaining the prescribed ratio of power factor. The detail of consumption and power factor ratio for the period 3/2017 to 5/2018. Copy of notice bearing Memo No. 4744 dated 9.8.2018 for an amount of Rs. 82,653/-. The electricity connection bearing account No. 3002880005 (new) SP 03/345 (old) installed in the name of Sh. Prem Parkash in the premises of the complainant under “Small power category” of supply having sanctioned load of 8.460 KW. The said electric connection is being used by the complainant for running his industrial i.e. for commercial purpose, as such the complainant cannot avail the remedy before this Commission under the garb of false plea that he is using the said connection for earning his livelihood by way of self employment. As such the present complaint is liable to be dismissed on this very ground. On merits, most of the pleas taken were similar as were taken in the preliminary objections, as such those pleas need not be reproduced. While submitting that there is no deficiency in service and while denying and controverting other allegations, dismissal of complaint was prayed.
Points for Determination
3. From the pleadings the following are the points to be determined by this Commission:-
- Whether there is deficiency in service the part of the opposite party in raising a demand of Rs. 82,653/- raised vide memo No. 4744 dated 9.8.2018 ?
- If point No.1 is proved , whether the complainant is entitled for compensation on account of harassment and mental agony and also entitled for litigation expenses , if so , to what amount ?
Evidence of the complainant and Arguments
4. Alongwith the complaint, complainant has filed his self attested affidavit Ex.CW1/A, copy of sale deed Ex.C-1, copy of memo Ex.C-2 and closed his evidence.
5. On the other hand opposite party alongwith written version has filed affidavit of Er. Kawalpreet Singh , SDO Ex.OP1, copy of Half margin Ex.OP2, copy of memo Ex.OP3 and closed the evidence on behalf of the opposite party.
6. We have heard the Ld.counsel for the parties and have carefully gone through the record on the file. Ld.counsel for the complainant as well as Ld.counsel for the opposite parties made statements that their complaint alongwith accompanied documents as well as written statement respectively be read as part and parcel of written arguments.
Findings
7. From the pleadings of the parties , it stands proved on record that complainant alongwith her mother in law Smt. Neeta Rani jointly purchased the property bearing Plot No. 4, Kot Mahna Singh, Tarn Taran Road, Amritsar from previous owner vide sale deed dated 1.2.2006 copy of the same is Ex.C-1 alongwith electricity connection bearing account No. 3002880005 under SP category which was in the name of Prem Parkash . The complainant has been using the said connection for earning his livelihood by way of self employment. It also stands proved on record that the meter of the complainant was already installed outside his premises and its monthly reading is always taken by technical officer of the opposite party. The complainant was shocked and surprise to receive a memo No. 4744 dated 9.8.2018 for Rs.82,653/- from the opposite party which was issued by the sub division on the directions of the audit party . After receipt of this memo the complainant immediately approached the sub division and showed them the previous electricity bill and its payment receipts thereof and asked for the details of the issuing of the abovesaid memos. In reply to that the opposite party at that time informed the complainant that the memo was issued due to the inoperative shunt capacitor installed at her premises. Moreover as per CC26/2016 in case of defective shunt capacitors 15 days notice shall be issued to the consumer. It is worthwhile to mention here that neither any separate notice regarding the removal of defect in the shunt capacitor, if any has been received by the complainant nor she was ever informed by any officials of the opposite party regarding the defective working of the shunt capacitor. Moreover memo has been issued under the directions of the audit party but as per law the audit party has no right to claim any amount from the consumers. Ld. Counsel for the complainant contended that the aforesaid act of the opposite party amounts to a great negligence, carelessness, deficiency in service on the part of the opposite party due to which the complainant has suffered a great mental pain, agony, harassment, inconvenience at their hands.
8. On the other hand the plea of the opposite party is that electric connection bearing account No. 3002880005 under SP category has been installed at the premises of the complainant in the name of Prem Parkash It was submitted that the internal audit party of vide half margin No.H.M. No. 19 dated 26.6.2018 has audited the account of the complainant and found that from 3/2017 to 5/2018 power factor surcharge could not be taken from the complainant. Thereafter on the basis of said report a memo No. 4744 dated 9.8.2018 for an amount of Rs. 82,653/- was issued under power factor surcharge. The other plea of the opposite party is that the electric connection is being used by the complainant for running Indusial unit under the name of Prem Parkash i.e. for commercial purpose, as such the complainant cannot avail the remedy before this Commission. Ld. Counsel for the opposite party has vehemently argued that there is no deficiency in service on the part of the opposite party and the complainant is liable to pay the amount as raised in abovesaid memos.
9. From the appreciation of the facts and circumstances of the case the only case of the complainant is that the opposite party has raised a demand of Rs. 82,653/- on the basis of memo No. 4744 dated 9.8.2018 which was issued by the sub division on the directions of the audit party . However, when after receipt of the said memo complainant approached the opposite party, the opposite party informed that the memo was issued due to inoperative/defective shunt capacitor. Ld.counsel for the complainant has vehemently contended neither any separate notice regarding the removal of the defect in the shunt capacitor if any has been received by the complainant which was against the circular of the opposite party vide CC No. 26/2016 & ESIM (General condition of Tariff) vide which it has been specifically written that “in case shunt capacitors are found to be missing or inoperative or damaged, a 15 days notice shall be issued to the consumer for rectification of the defect and setting right the same. In case the defective capacitors are not replaced/rectified within 15 days of the issue of notice, surcharge and the rate of 20% on bill amount shall be levied for the proceedings two months and it shall continue to be levied till the defective capacitors are replaced/rectified to the satisfaction of the PSPCL. In case the capacitors are found to be of inadequate rating, the capacitor surcharge shall be levied on pro-rata basis.”. However, perusal of the file shows that no such 15 days notice was ever issued to the complainant before raising the abovesaid demand. As such the opposite party itself not followed their own rules and regulations before raising the impugned demand on the complainant. Not only this the impugned memo was issued on the directions of audit party .However, it was contended that audit party cannot prepare any audit report adverse to the interest of the consumer without serving a prior notice on him. Reliance in this connection has been placed upon Punjab State Electricity Board Vs. Kuldip Singh 2004(1) CPC page 657 wherein it has been held by Hon'ble State Consumer Disputes Redressal Commission, Punjab Chandigarh in para 4 & 5 that :-
“After hearing the Counsels for the parties and after having gone through the record the District Forum allowed the complaint. The relevant portion of the order of the District Forum is reproduced hereunder :
“The complainant was granted connection for running load of 15 HP for agriculture purposes. As per rules the consumers were charged at flat rate according to the connected load. Contention of the opposite party is that by clerical error the charges from the complainant were realised on connected load of 3 HP. The error came to the notice when the accounts were audited. The audit party has given the report and calculated the amount payable by the complainant for the period from 3/95 to 297 at Rs. 16,140/-. Surcharge of Rs. 1,640/- has also been added. Learned Counsel for the complainant has cited before us the decision of Madras High Court in case S.A. Ahamed v. Tamil Nadu Electricity Board, 2002(2) Civil Court Cases 112, and has argued that the opposite party has no right to recover the amount, if at all due, for the period of more than 3 years. Ratio of that case is applicable to the present case. The complainant paid the charges according to the bills issued to him. He cannot be penalised for any deliberate or negligent act of the concerned official of the opposite party. Claim of the opposite party covering the period from 3/95 to 2/97 is barred by time. It is not a case where any arrears are outstanding against the complainant. On the other hand, it is a case where the complainant is being asked to pay the penalty for default of the official of the opposite party. Opposite party issued bills to the complainant and the bills were duly paid by him. No notice was given to the complainant by the audit party before giving the report and the report is one-sided. We are, thus of the opinion that the opposite party has no lawful right to recover the amount of Rs. 16,140/- and Rs. 1,640/- from the complainant. The complainant paid the amount only under threat of disconnection. Hence, he is entitled to refund of the amount. The point is decided accordingly.”
5. We do not find any infirmity in the order of the District Forum. District Forum had relied upon a decision of the Madras High Court in case S.A. Ahamed v. Tamil Nadu Electricity Board, 2002 (2) Civil Court Cases 112, while deciding matter in issue and rightly held so. Complainant had paid the charges according to bills issued to him. He cannot be penalised for any negligent act of the concerned official of the opposite party. Claim of the opposite party, covering the period from 3/95 to 2/97 was barred by time. District Forum has rightly held that it is not a case where any arrears were outstanding against the complainant. On the other hand, it was a case where the complainant was being asked to pay the penalty for default of the officials of the opposite party. The opposite party had been issuing the bills to the complainant and the bills were duly paid by him. No notice was given to the complainant by the audit party before giving the report. The report certainly was one-sided. We are not inclined to interfere in the order of the District Forum. This appeal is, thus, dismissed as meritless.”
Further reliance has been placed upon Dakshin Haryana Bijli Vitran Nigam Ltd. & Anr. Vs. Rajji Bai 2009(1) CLT page 526 wherein it has been held by Hon'ble Haryana State Consumer Disputes Redressal Commission in para 5 of the orders that :-
“The learned Counsel representing the appellants while assailing the order of the District Forum dated 12.12.2007 mainly contended that the District Forum had overlooked the factual position brought on record and for that reason the order of the District Forum deserved to be set aside. There is hardly any force in the submission made. Admittedly, in this case demand has been made by the opposite parties on the basis of objection raised by the Audit Party. The opposite parties have placed on record the documents containing estimate of the additional demand made Ex. R-1 to Ex. R-6. It is clear from the material placed on record that the opposite parties have not cared to follow the relevant instructions contained in Para Nos. 2 and 3 of the Sales Circular No. 27/96 which read as under:
“It is regular feature in the Electricity Board that Audit Parties audit the consumer’s account and penalty is imposed whenever any discrepancy is pointed out by the Audit Party. It is understood that whenever any discrepancy is pointed out by the Audit Party, the SDO concern is required to check the report but in practice the penalty is imposed without any cross checking by the SDO concerned. Before imposing penalty, etc., notice is required to be given to consumer to explain his position.
“The requirement of law is that proper prescribed procedure is to be followed and before imposing penalty on the consumer notice is required to be issued to the consumer. It should be ensure that seven days is given to the consumer before imposing penalty in such cases.”
The above instructions leave no manner of doubt that the opposite parties were duty bound to supply the necessary details of the audit report and to give a proper notice in terms of the above stated requirement which the opposite parties have not complied with in this case.”
Further reliance has been placed upon M/s. Kundan Mill Board & Paper Mills & Anr. Vs. Punjab State Electricity Board, Patiala & Ors. 2014(2) Civil Court Cases 44 of the Hon’ble Punjab & Haryana High Court wherein it has been held as under:-
“We may notice that any internal audit objection is only an opinion and cannot by itself a justification for raising of a supplementary or initial bill. The concerned authorities are required to examine whether there should have been clubbing of the two connections for purposes of raising of the bill based on material sought from the petitioners. This was apparently not done. Except for general platitude that the whole matter has been examined, it is impossible to decipher any reasons for clubbing the two connections when it has not been stated as to how the two entities are interconnected. The only objection initially raised was the allegation of there being electricity connection on the same land without there being separation of the premises for which purpose the petitioners were called upon to construct a wall separating the two premises and to have a separate entrance. This was done by the petitioners and the concerned authorities were satisfied and even confirmed this fact to the Chief Auditor in their communication. Thus, it appears that the impugned decision has been taken only on the basis of the audit objection and is devoid of any reason.”
10. The other plea of the opposite party is that the electric connection is being used by the complainant for commercial purpose, as such the complainant cannot avail the remedy before this Commission under the garb of false plea that she is using the said connection for earning her livelihood. But we are not agreed with this plea of the opposite party as the complainant is using the abovesaid connection for earning her livelihood by way of self employment. . Reliance in this connection has been placed upon United Bank of India, Kolkatta Vs. M/s.Janata Paradise Hotel & Restaurant, Jorhat-I, Assam of the Hon’ble National Commission, that where the complainant has not pleaded that loan or any credit facility was taken by the complainant for earning livelihood by means of ‘self employment’, in such circumstances, the complainant does not fall within the purview of ‘consumer’. But in the case in hand the complainant has specifically pleaded that the connection is being used for earning livelihood by way of self employment. As such the law laid down (supra) squarely covers the case of the complainant and the complainant falls within the definition of consumer.
11. Keeping in view the facts as narrated above and the law laid down (supra), the opposite party is found guilty of deficiency in service in raising the demand of Rs. 82,653/- raised vide memo No. 4744 dated 9.8.2018 . . As such point No. (i) is decided in favour of the complainant and the complainant is entitled to the following reliefs:-
(i) Opposite party is directed to set-aside the impugned memo No. 4744 dated 9.8.2018 for Rs. 82,653/-. Opposite party is also directed to refund 30% of the impugned demand deposited by the complainant by the orders of this Commission dated 27.9.2018.
(ii) So far as compensation as claimed is concerned, since the complainant was compelled to knock the door of this Commission and the opposite party did not bother to redress the grievance of the complainant and had it was redressed at appropriate time, certainly this litigation could have been avoided . Admittedly “compensation term” has not been explained in the Consumer Protection Act, however this Act is based on principle of equity, good concise and natural justice and the Commission is empowered to award compensation after assessing the facts of each case. As the complainant , has suffered a lot of mental as well as physical agony due to deficiency in service on the part of the opposite party, as such the opposite party is liable to pay compensation to the tune of Rs. 7000/- to the complainant. Opposite party is also directed to pay litigation expenses to the tune of Rs. 3000/- to the complainant .
Compliance of this order be made within 30 days from the date of receipt of copy of this order ; failing which complainant shall be entitled to get the order executed through the indulgence of this Commission. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission.
Announced in Open Commission (Jagdishwar Kumar Chopra) President
Dated: 28.9.2021
(Jatinder Singh Pannu)
Member
