DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
SRI MUKTSAR SAHIB-152026 (PUNJAB).
C. C. No. 128 of 2014
Instituted on : 13.11.2014
Decided on : 04.03.2015
Gurdev Singh aged about 60 years son of Gurbax Singh resident of House No.886, Street No.13, Guru Angad Nagar, Muktsar Tehsil and District Muktsar.
-Complainants.
Versus
1. Punjab State Power Corporation Limited through its Senior Executive Engineer, Operation Division, Muktsar District Muktsar.
2. Parshotam Dass, Revenue Accountant in the office of Assistant Executive Engineer, Operation City Sub Division, PSPC Ltd. Muktsar.
-Opposite Party.
Complaint under Section 12 of the Consumer Protection Act 1986 (68 of 1986) as amended up to date.
Quorum: Sh. A. K. Mehta, President.
Smt. Meenakshi, Member.
Present: Sh. R.S. Aulakh Advocate for complainant.
Sh. G.R. Wadhwa Advocate for OP.
ORDER
(A.K. Mehta, President)
1. Gurdev Singh complainant have come to this Forum with a complaint under section 12 of Consumer Protection Act, 1986 (hereinafter to be called C.P.Act) against Punjab State Power Corporation Ltd etc. opposite parties (OP) for restraining the OP-1 from recovering Rs.32550/- alongwith surcharge illegally demanded vide bill No.54733 dated 01.06.2010 and for quashing the said demand being illegal, against rules and regulations and in case during pendency of the complaint, OP-1 succeeds in recovering the said amount then for directing the OP-1 to refund the amount alongwith interest and also to pay compensation for Rs.50,000/- besides Rs.10,000/- as litigation expenses.
2. The case of the complainant is that he is having an electric connection bearing No.Y62AT710774L installed in his house and OP-2 is employee of OP-1; that in March, 2005, OP-1 sent bill in which Rs.9742/- were illegally added as sundry charges without any detail and no checking was made before the dispatch of the bill and even no notice was served on the complainant; that complainant approached office of OP-1 and requested Assistant Executive Engineer (AEE) to withdraw the said demand and to correct the bill but Deputy Superintending Engineer directed him to file application and assured the complainant that matter will be settled in the Dispute Settlement Committee (DSC) and thereupon complainant filed application on 21.03.2005 to Deputy Superintending Engineer and the said officer directed the complainant to deposit Rs.3500/- and also directed the office of AEE to send the case to the DSC; that on 22.03.2005, complainant alongwith Mohan Lal went to the office of AEE who directed the complainant to meet Purshotam Dass Revenue Accountant (OP-2) and said Purshotam Dass RA directed the complainant to pay him Rs.3500/- for sending the case to DSC and accordingly complainant paid Rs.3500/- to Purshotam Dass RA and also demanded receipt but he told the complainant that receipt is required to be enclosed with the case; that thereafter complainant used to receive the bill including above mentioned amount alongwith surcharge and as such amount started increasing and after receipt of each bill, complainant used to visit the office of AEE and thereupon Purshotam Dass used to correct the bill with his hand and used to get deposited the bill on the basis of actual consumption and every time complainant used to enquire from Purshotam Dass about his case before DSC but Purshotam Dass used to put off the matter under one or the other pretext and also told the complainant that the bill is being charged on actual consumption; that thereafter Purshotam Dass RA was suspended and transferred to Jalalabad and complainant met him many times to know about his case before DSC but always received the same answer and then finally on 19.03.2010, complainant went to office of AEE and on inquiry, it was told that case for DSC was not prepared nor amount of Rs.3500/- has been entered in the books of OP-1 which was paid by complainant and thereupon complainant filed application on 19.03.2010; that in June, 2010, Purshotam Dass RA was again transferred to office of AEE Muktsar and complainant received bill dated 01.06.2010 and then complainant again went to the office of AEE Muktsar on 06.07.2010 alongwith Swarnjit Singh and enquired about his case from Purshotam Dass RA who told the complainant that he has already paid him Rs.3500/- in cash and then complainant alongwith Swarnjit Singh again went to office of AEE on 08.07.2010 but said employee flatly refused about Rs.3500/- and also told the complainant that he does not have any application of complainant to put the matter before DSC and also used abusive language and turned the complainant and Swarnjit Singh out of his office and thereupon complainant filed application to OP-1 and higher officers; that OP-1 & 2 has not only embezzled the amount of Rs.3500/- but have also insulted and humiliated the complainant; that details of sundry charges nor any notice regarding the said sum was issued to the complainant nor any checking was made nor any checking report was got signed or supplied to the complainant; that it was told to the complainant that the amount has been added as seals of the old meter were allegedly tempered but the alleged old meter was never checked in the presence of the complainant either on the site or in ME Lab and as such demand raised by OP-1 is against rules and regulations of PSPCL and it has been calculated arbitrarily nor it has been assessed by the competent authority and as such there was deficiency in service on the part of OP; that after receipt of bill dated 01.06.2010, complainant requested OP number of times to withdraw the bill but OP-1 refused and rather threatened to recover the amount by coercive measures and to disconnect the electric connection which caused unnecessary harassment and mental tension to the complainant and his family and as such complainant is also entitled to compensation alongwith litigation expenses. Hence complaint was filed.
3. After formal admission of the complaint, notice was issued to the OP and OP-1 appeared through counsel and filed reply contesting the complaint on the preliminary objections that complaint is not maintainable under law and complainant is not consumer under the CP Act as complainant is defaulter of OP; that complaint is beyond period of limitation and no cause of action has arisen to the complainant to file the complaint rather it was asserted that ledgers of the bills for the year 1990 onwards were stolen during night of 10.09.2008 and FIR No.183 dated 11.09.2008 was registered to this effect on 11.09.2008; that the essential record of PSEB was burnt in the early night of 27.02.2010; that it was asserted that complainant has not paid the bill for the month of March, 2005 and as such the same was included as arrears in the next consumption for the month of May, 2005 but complainant made part payment after the same was allowed on the request of the complainant and as such complainant was charged with the surcharge due to part payment and the amount increased to Rs.27786/- which was added as arrears in the bill dated 01.06.2010; that the endorsement "power is with the XEN after the date 26.07.2006 and the alleged application dated 21.03.2005 clearly shows that no such application dated 21.03.2005 was filed as alleged by complainant; that the bill dated 01.06.2010 is legal and complainant is liable to pay the same; that once the consumer has moved the Dispute Settlement Committee of PSEB, he can not invoke the jurisdiction of the Consumer Fourm on the same cause of action and complainant has allegedly moved the DSC of PSEB against demand of sundry charges of Rs.9742/- made in March, 2005 and complainant had not paid bill for the said period and the arrears of Rs.27786/- shown in the bill dated 01.06.2010 is due to balance amount of the bills and accumulation of surcharge and as such complainant has filed the complaint in this Forum on the same cause of action for which complainant had allegedly moved the DSC, hence the complaint is liable to be dismissed; that the dispute raised by the complainant is not a consumer dispute as defined in the CP Act and complaint is also barred by act and conduct of the complainant and there is no deficiency in service on the part of OP. It was asserted that complicated question of facts and law are involved in the case which can not be adequately decided in this Forum and complaint is liable to be dismissed. On merits, electric connection in the house of the complainant is admitted. The other allegations of the complaint were also contested on the same lines as were asserted by the OP in their preliminary objections and it was asserted that the complainant has not placed on the file, bill for the month of March 2005 and photocopy of bill for the month of May 2005 reveals that complainant has not paid the bill for the month of March 2005. It is denied that complainant met Purshotam Dass RA as he was transferred to Malout on 23.02.2006 and rejoined RA Muktsar on 30.04.2010, so there was no question of correction of the bills by Purshotam Dass RA. All other allegations were also denied and prayer was made to dismiss the complaint with costs.
4. OP-2 also appeared through counsel and filed separate reply contesting the complaint on the preliminary objections that complaint is not maintainable; that complainant has no locus standi to file the present complaint against the OP-2 as he is employee of PSPCL and there is no relationship of consumer and service provider between the complainant and OP-2; that the complainant is not consumer within the meaning of consumer as defined in the C.P. Act; that complainant has no cause of action to file the complaint against OP-2; that complainant never visited to the answering OP nor the answering OP directed him to pay Rs.3500/- and the answering OP never received any order/letter of any officer of PSEB for listing the case of the complainant before DSC nor any officer directed the answering OP to get the amount of Rs.3500/- deposited from the complainant; that there is no deficiency in service on the part of answering OP; that the complaint is barred by law of limitation. On merit, the allegations of the complaint were also contested on the same lines as were asserted by the OP in his preliminary objections and prayed for dismissal of the complaint.
5. Initially this complaint was dismissed by the then Ld. District Consumer Disputes Redressal Forum, Muktsar vide order dated 29.07.2011 on the ground that the complaint is barred by time and is not maintainable. The complainant filed appeal before the Hon'ble State Consumer Disputes Redressal Commission Punjab, Chandigarh and vide order dated 27.10.2014, the Hon'ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh held the complaint within limitation and remanded the same to this Forum for fresh decision on merit.
6. We have heard Ld. Counsels for the parties and have gone through the documents and evidence produced on the file.
7. Ld. Counsel for complainant contended that complainant received electricity bill in March 2005 in which amount of Rs.9742/- was added as sundry charges. He contended that OP did not give any notice to the complainant giving details of sundry charges and directly added the amount as sundry charges which is against rules and regulations of electricity department. He further contended that complainant filed an application for referring the case to the DSC Ex. C-9 and the sanction was granted by the competent authority to refer the matter to the DSC on deposit of 1/3rd amount of the bill in question. He contended that complainant went to the office of OP for deposit of 1/3rd amount of the bill and he was directed to contact OP-2 Purshotam Dass Revenue Accountant in the office of Assistant Executive Engineer and complainant met the said official and deposited Rs.3500/- with him but the said official did not give any receipt and stated that receipt is to be enclosed with the case to be sent to DSC. He further contended that complainant used to contact the said official in the office of Punjab State Power Corporation Ltd and the said official always told the complainant that the matter has been referred to DSC and has not been decided so far. He contended that complainant contacted OP-2 in the presence of Mohan Lal and paid amount of Rs.3500/- and Mohan Lal supported the version of complainant with his affidavit Ex. C-2. He contended that later on in the year 2010, complainant came to know that the matter has not been referred to DSC though the record of OP i.e. Ex. C-31 shows that the matter has been referred to DSC which justify the stand of complainant that he deposited the amount of Rs.3500/- to Purshotam Dass RA but the said Purshotam Dass did not enter the amount in the record and as such have played fraud with the complainant. He contended that as complainant came to know about this fact in the year 2010, therefore complaint is within time and as such complaint is required to be allowed and bill of Rs.9742/- as sundry charges is required to be struck down and complainant is entitled to compensation and litigation expenses.
8. Ld. Counsel for OP contended that case in hand is a theft case which is clear from the application of the complainant Ex. C-9 which was filed for referring the matter to the DSC. He further contended that even letter Ex. C-29 written by Deputy Chief Engineer to Senior Executive Engineer, Muktsar also shows that the matter involved in this case is a theft case and as such the complaint before the Consumer Forum is not maintainable as in this eventuality, the matter involved in this case is not a consumer dispute nor complainant falls within the definition of consumer. He supported his arguments with the case titled UP Power Corporation Ltd. Vs. Anis Ahmed 2013 (3) CLT Page 226. He further contended that it is admitted fact in this case that the matter was ordered to be referred to DSC on the application of complainant and once the matter has been referred to the DSC on the request of complainant then complaint before District Forum is not maintainable. He supported his argument with case tilted PSEB and others Vs. Sanjiv Kumar and another 2005(3) CLT page 491. He further contended that the complainant has not brought the bill on file in which the amount of Rs.9742/- was added as sundry charges. He further contended that complainant filed the complaint to the Executive Engineer against Purshotam Dass for not referring his case to the DSC but has no where mentioned in the said application Ex. C-8 the he deposited the amount of Rs.3500/- to Purshotam Dass in the presence of Mohan Lal and as such evidence of complainant and Mohan Lal regarding deposit of amount of Rs.3500/- can not be considered in the absence of any receipt in this regard. He further contended that complaint in hand against OP-2 is in his personal capacity is not maintainable as OP-2 is not service provider nor he entered into any contract with the complainant to provide service in dispute to the complainant and the complaint is liable to be dismissed against OP-2. He supported his argument with case title Kishori Lal Ghoshi Vs. Raj Kumar Samaiya and others 1993(1) CPJ page 470. He contended that case is false and has been filed in order to gain time by the complainant and as such the same is liable to be dismissed with special costs.
9. It is admitted fact in this case that the electric connection in dispute was installed in the premises of the complainant. Complainant has filed the present complaint on the basis of electricity bill for the month of March 2005 in which amount of Rs.9742/- was added as sundry charges but the complainant has not brought the said bill on the file as the Ld. Counsel for complainant could not point out the bill in dispute which is basis of this complaint. It is also admitted fact in this case that complainant filed an application Ex. C-9 for referring his dispute to the DSC as amount of Rs.9742/- was added as sundry charges. Even the application Ex. C-9 shows that the matter involved in this case relates to theft of power as it is mentioned in application Ex. C-9 that seals of the old meter were broken. Even the letter written by Deputy Chief Engineer to Senior Executive Engineer Ex. C-29 shows that the matter involved in this case related to theft of electricity. In this eventuality, this Forum does not have any jurisdiction to try and decide this matter. It was observed by the Hon'ble Supreme Court of India in case titled UP Power Corporation Ltd. Vs. Anis Ahmed (Supra) that if the matter relates to unauthorized use of energy then it does not fall within definition of consumer dispute and the person using the energy unauthorizedly like complainant in the present case is not consumer under the C.P.Act and complaint before Consumer Forum is not maintainable.
10. It is admitted fact that complainant filed application Ex. C-9 for referring the matter to DSC and as such complainant has opted the remedy of settlement of dispute in the DSC and once complainant opt to seek his remedy before the DSC then he can not approach the District Consumer Forum under the C.P. Act as the said remedy is barred in this eventuality. In case titled PSEB Vs. Sanjeev Kumar and another it was observed by the Hon'ble Punjab State Consumer Disputes Redressal Commission Chandigarh that once the complainant chooses to avail the remedy provided by the PSEB to get his grievance redressed through DSC then he can not approach the District Forum under the C.P. Act because having chosen one remedy, the consumer can not resort to the other remedy. Otherwise also the matter was ordered to be referred to DSC on the application of complainant Ex. C-9 though subject to payment of 1/3rd of the disputed amount but the complainant has failed to prove on file that he deposited the 1/3rd disputed amount. The plea of the complainant is that he paid the amount of Rs.3500 to OP-2 in 2005 but he did not issue any receipt but complainant did not file any complaint against OP-2 before any senior authority and filed the complaint only in the year 2010. Otherwise, complainant is a grown up person and must be knowing that payment in Government Department can only be justified by receipt and without receipt, payment can not be admitted. It is for the complainant to prove the payment of Rs.3500/- i.e. 1/3rd of the disputed amount. The complainant has failed to prove this fact on the file and his simple oral assertion in his affidavit and that of Mohan Lal is of no consequence. It is for the person to prove the fact who asserts the same and as complainant assert that he paid 1/3rd amount with the OP-2 then it is for complainant to prove this fact but complainant has miserably failed to prove this fact and accordingly the matter was not sent to DSC. The copy of register Ex. C-31 only shows that the matter was ordered to be referred to DSC but this document does not show that the matter was actually referred to DSC or was received in DSC as no document has been proved on the file issued by DSC regarding reference of complaint of the complainant. In this eventuality the complaint before the consumer Forum is not maintainable as complainant has opted one remedy then he can not be allowed to avail the other alternative remedy.
11. Admittedly OP-2 is Revenue Accountant of OP Department. No contract was entered between complainant and OP-2 for providing services to the complainant nor such agreement or contract has been proved on file by the complainant. As such OP-2 is not service provider to the complainant and in this eventuality, complaint in hand under C.P. Act is not maintainable against OP-2. This was so held by Hon'ble Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal in case title Kishori Lal Ghoshi Vs. Raj Kumar Samaiya (Supra).
12. In the light of above discussion the complainant has miserably failed to prove his case on the file and as such the complaint is dismissed. In the peculiar circumstances of the case, parties are left to bear their own cost. Copy of order be supplied to the parties under law and file be consigned to records.
Pronounced:
Dated: 04-03-2015.
Smt. Meenakshi A. K. Mehta
Member President
