BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

                                                Complaint No.CC/10/600 of 29.7.2010 

                                                Decided on:          20.9.2011

Harpal Kaur, aged about 60 years wife of Sh.Karnail Singh, R/o village Kallar Bhaini, Tehsil & District Patiala.

                                                                             -----------Complainant

                                      Versus

1.                 Punjab State Power Corporation Ltd., through its Member Secretary/CMD.

2.                 Sub Divisional Officer, Operation, Punjab State Power Corporation Ltd., Patiala Cantt., Patiala.

                                                                             ----------Opposite parties.

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

Present:

For the complainant:     Sh.Manjit Singh, Advocate

For opposite parties:     Sh.Pawan Puri, Advocate  

                                         ORDER

D.R.ARORA, PRESIDENT

          The complainant is a consumer of the electricity connection bearing account No.P14SF13/1219F.The complainant has been depositing the charges of the electricity regularly without any default. The status of the meter has been noted by the meter reader as OK.

2.       The ops issued letter no.615 dated 9.7.2010 having raised the demand of Rs.1,98,888/- on the basis of the alleged unauthorized use of the energy and they further asked the payment of Rs.35000/-  as the compounding charges under Section 135 of the Electricity Act 2003 ( for short the Act of 2003) alleging that the complainant was found committing theft of the energy directly.

3.       The complainant has challenged the aforesaid demand on the ground that no checking was conducted in the presence of the complainant nor any checking report was got signed from him. No copy of the checking report was supplied to the complainant. The allegations regarding the theft of the energy are said to be false. The load of 6.486 KW mentioned in letter no.615 dated 9.7.2010 is also said to be wrong.

4.       It is further averred that the complainant had got the electricity connection for the quarters of the labourers and only three families are residing in the same. The work of the brick kiln is seasonal. The labourers stayed in the quarters for the season and they left for their villages.

5.       On receipt of the order of assessment dated 9.7.2010 the complainant visited the office of op no.2 and requested to withdraw the same but op no.2 flatly refused to do so and rather the ops threatened the complainant to deposit the amount within 7 days.

6.       It is also averred that op no.2 is not competent to issue the order of provisional assessment under Section 135 of the Act of 2003 and to ask for the compounding charges. Describing the aforesaid act of the ops to be illegal, null and void etc. and violative of the rules and regulations, the  complainant approached this Forum through the present complaint brought under Section 12 of the Consumer Protection Act,1986 (for short the Act) for a direction to the ops to quash the demand made vide letter no.615  dated 9.7.2010; to restore the supply to the electricity connection of the complainant and to award the complainant with a compensation in a sum of Rs.20000/- for the inconvenience and the mental pain suffered by him at the hands of the ops.

7.       On notice, the ops appeared and filed their written version having raised certain preliminary objections, interalia, that  the Forum lacks jurisdiction to entertain the complaint because the ops have initiated the proceedings against the complainant under Section 135 of the Act of 2003 having got the FIR registered and that the complainant is not a consumer under the Act. As regards the facts of the complaint, it is averred that the connection in question was issued in the name of Karnail Singh who is alleged to be the husband of the complainant. Therefore, the complainant is not a consumer.

8.       It is further averred that the connection of the complainant was checked by the Enforcement Officers of the Power Corporation on 8.7.2010 and the complainant was found committing theft of the electricity by by-passing the meter i.e. having got the supply directly from the main service line coming from the pole and the same was being used for 50 quarters of the labourers situate within the premises of the brick kiln for office purposes and for making a use of the sub mersible motor. The complainant was found having a load of 6.686KW for the said quarters as shown in the checking report. The checking was conducted in the presence of the representative of the complainant namely Mansa Singh, Chowkidar who had thumb marked the checking report.

9.       It is further averred that on the basis of the checking report a notice under Section 135 of the Act of 2003 was issued to the consumer on 9.7.2010 having directed him to make the payment ofRs.1,98,888/- as the penalty for having committed the theft of  energy. The complainant failed to prefer any objections against the order of assessment before the competent authority. After denouncing the other averments of the complaint going against the ops, it was prayed to dismiss the complaint.

10.     In support of  her case, the complainant produced in evidence her sworn affidavit,Ex.C1, alongwith the documents,Exs.C2 to C4 and her learned counsel closed the evidence.

11.     On the other hand, on behalf of the ops, their learned counsel produced in evidence,Ex.R1, the reply filed to the complaint in the form of affidavit,, Ex.R3 the sworn affidavit of G.S.Gill,Sr.Executive Engineer, Enforcement II of PSPCL,Patiala,Ex.R4 the sworn affidavit of Sucha Singh Additional Assistant Engineer, PSPCL,Patiala alongwith documents, Exs.R2 and R4 and closed their evidence

12.     The complainant filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record.

13.     It is the plea taken up by the ops that the complainant is not a consumerorf the electricity connection bearing account No.P14SF13/1219F because the connection has been issued in the name of Karnail Singh. However, bills,Exs.C2 dated 16.3.2010 and  C3 dated 8.5.2010 have been issued in the name of Harpal Kaur and Kirpal Singh. Even the order of assessment,Ex.C4 has been issued in the name of Harpal Kaur w/o Karnail Singh. Therefore, the ops are estopped in denying the complainant to be their consumer. It was submitted by Sh.Pawan Puri, the learned counsel for the ops that the complainant is using the electricity in question for commercial activity i.e. for running the brick kiln for earning profit and therefore, the complainant is not a consumer under Section 2(1) (d) (ii) of the Act.

14.     It was also submitted by the learned counsel for the ops that the complainant has employed a number of labouers on the brick kiln and it is not where alleged in the complaint that the complainant is running the brick kiln for earning his livelihood and there is no other source of earning by the complainant.

15.     The learned counsel for the ops also pointed out the deposition, Ex.C1 made by the complainant that the complainant got electric connection for 10 quarters of the labouers and only three families are residing in the same. However, there is nothing on record to show that the connection was obtained for the quarters of the labourers and in that way the complainant is making a resale of the energy. He also made a reference to Regulation 137.2 of Electricity Supply Regulations 2005 which provides that, “no consumer shall sell electricity energy supplied to him by the Board to any person without the prior written permission of the Board. However, collection of electricity charges by the house owners from the tenants for residential purposes shall not be treated as violation of the foregoing provisions. Use of electricity by more than one establishment in the same premises as provided under condition no.194 shall not be deemed as resale of electricity”.

16.     On the other hand, it was submitted Sh.Manjit Singh, the learned counsel for the complainant that electricity connection in question is domestic one and the complainant allowed the same to be used by the labourers putting up in the quarters for domestic purposes and not for any commercial activity.

17.     We have considered the submissions and find that the electricity connection having been used by the labourers in the quarters for domestic purposes, it can not be said that the same was being used for any commercial activity.

18.     Now coming to the question about the complainant having been found committing theft of the energy, as per the checking report, Ex.R5, got proved by the ops with the assistance of the sworn affidavits, Ex.R3 of G.S.Gill, Sr.Executive Engineer, Enforcement II PSPCL Patiala and Ex.R4 of Sucha Singh, Additional Assistant Engineer PSPCL, Patiala who had conducted the checking of the electricity connection of the complainant. As per the checking report, Ex.R5,  the one of quarters numbering 50 one meter was hanging on a wall and the same was not connected with the supply. The incoming cable from the pole was being used in the 50 labourers quarters for a sub mersible motor and in the office having by-passed the meter and the supply was running directly. One spare electricity meter was also affixed .The report is shown to have been signed by Mansa Singh, Chowkidar present at the spot.

19.     It was submitted by the learned counsel for the complainant that Mansa Singh is not shown to be the representative of the complainant. Similarly it was submitted by the learned counsel for the complainant that the very cable coming from the pole and being used for the quarters was not taken into possession.

20.     It was also submitted by the learned counsel for the complainant that the criteria for having assessed the penalty has not been disclosed in the order of provisional assessment.

21.     On the other hand it was submitted by the learned counsel for the ops that there is no reason to say that Mansa Singh Chowkidar was not present and who had not witnessed the checking of the connection. The complainant has not produced the sworn affidavit of Mansa Singh, Chowkidar to rebut the said fact. It was also submitted that there was no need to remove the cable coming to the meter installed in the quarters because that was service line and could not be removed and rather there was no need to remove the same. The criteria for having assessed the amount of the provisional assessment has been explained in Ex.C4, the copy of the order of assessment itself i.e. LDHPF = units x tariff x time (12) months.

22.     It was submitted by the learned counsel for the ops that despite the complainant having been advised to prefer a representation against the order of assessment vide the order of assessment itself, before SE Patiala a Designated Authority under Electricity Supply Code and Related Matters Regulations 2007, the complainant failed to prefer any objections and now the complainant is estopped in raising the question about criteria of the assessment having not been explained in the order of assessment.

23.     He also placed reliance upon the citation Uttari Haryana Bijlee Vitran Nigam Limited & Anr. Versus Karam Chand 2010(2)CLT 3 .The Hon’ble National Consumer Disputes Redressal Commission, New Delhi observed, “if the respondent was aggrieved with the provisional assessment made by the Assessing Officer, it was open to him to file objection and eventually to move the Appellate Authority and Statutory Body, constituted under the Act. The notice, imposing penalty was also acknowledged by respondent. We do not feel impressed about any action resorted to by the respondent challenging either the alleged inspection or imposition of penalty, as required under the Act.”

24.     We have considered the submissions and find that in the light of the evidence led by the ops consisting of the deposition Ex.R3 of G.S.Gill,Sr.Executive Engineer, Enforcement II,PSPCL, Patiala and Ex.R4 of Sucha Singh, Additional Assistant Engineer, PSPCL, Patiala, it has been established that the complainant was found committing theft of the energy anauthorizedly and she was served with the order of provisional assessment,Ex.C4 which she failed to challenge before the Designated Authority appointed under Electricity Supply Code and Related Matters Regulations 2007 despite having been advised in that regard vide,Ex.C4 itself. In the light of the citation Uttari Haryana Bijlee Vitran Nigam Limited & Anr. Versus Karam Chand we do not find any fault in the action resorted to by the officers of the ops in having served the order of provisional assessment upon the complainant and she is obliged to pay the amount of the same. In other words we do not find any substance in the complaint and the same is hereby dismissed.

Pronounced.

Dated: 20.9.2011

                                                Neelam Gupta                  D.R.Arora

                                                Member                            President