Punjab

Ludhiana

CC/20/14

Rita - Complainant(s)

Versus

PSPCL - Opp.Party(s)

M.S Sethi

01 Sep 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:14 dated 15.01.2020.                                                 Date of decision: 01.09.2023.

 

Smt. Rita W/o. Sunil Kumar Walia, office at 2190/1, Chander Nagar, Pirubanda, District Ludhiana.                                                                                                                                                              ..…Complainant

                                                Versus

Punjab State Power Corporation Limited, Sub Division (T)Unit, Aggar Nagar Division, Ludhiana through its AEE.                                                                                                                                                    …..Opposite party 

Complaint Under section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. M.S. Sethi, Advocate.

For OP                           :         Sh. G.S. Pahwa, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that the complainant purchased a shop measuring 74.42 sq. yards from one Monika Chopra vide registered sale deed dated 15.01.2019. The said shop was sold by Meenu Diwan and Bharti through power of attorney holder Inder Pal Singh to Monika Chopra vide sale deed dated 04.08.2014. In the said shop, an electricity connection bearing account No.3002784936 under NRS Supply was existing at the time of its purchase and now the said connection is being used by the complainant for doing the work of property dealer with the help of her husband for earning livelihood by way of self employment by paying the electricity charges against the bills issued by the opposite party. The complainant stated that vide bill dated 30.12.2019, the opposite party claimed a sum of Rs.78,060/- under sundry charges and Rs.3828/-. The complainant visited the opposite party where its dealing clerk disclosed that the on the basis of audit party report said sundry charges of Rs.78,060/- and arrears of current year total Rs.81,888/- has been claimed as recommended by audit party that on the basis of store challan the meter was found defective/burnt and they recommended charging of said demand for 453 days for the period 01.11.2017 to 28.01.2019 on the basis of consumption data for the period from 31.08.2016 to 28.01.2016. According to the complainant, the act of the opposite party for claiming illegal demand is violation of regulation/rules/EA Act etc. and the finding of audit party is baseless and illegal but despite her requests to waive illegal demand and accept the current bill, the opposite party refused to waive the illegal demand, which amounts to negligence, deficiency in service. The complainant further stated that the opposite party had first time claimed the disputed amount vide bill dated 30.12.2019 which is time barred and beyond limitation as per Section 56(2) of the EA Act, 2003. Moreover, the shop remained closed before its purchase by the complainant and no electricity was consumed during 28.12.2017 to 26.12.2018. The meter was not burnt/defective rather it was working accurate and recording the consumption against actual usage before its removal. The complainant further stated that the opposite party has no right to claim disputed amount. The earlier bills were duly paid and has not reduced the deposited amount from the illegal demand. The opposite party reduced only Rs.3750/- but however, it has claimed huge amount of Rs.36,125/- under the head adjustment for the period in question. Even the bill dated 01.09.2018 for the period 27.04.2018 to 01.09.2018 was issued for minus Rs.2847/-. Even after accusation of the property, the complainant received the bill dated 05.03.2019 for the period 26.12.2018 to 05.03.2019 against the reading of new meter along with arrear of current financial years and arrear of previous financial year along with adjustment of Rs.6124/-, the opposite party claimed Rs.14,820/- which stands paid by the complainant. However, the old meter was not changed by opposite party being burnt or defective rather it was changed because of mechanical meter. The Meter Reader was bound to record consumption of the meter or status of the meter but he has given no observation  in this regard. No LCR was prepared nor any notice by ME Lab was served upon the complainant regarding checking of the meter. The complainant stated that the opposite party has no right to claim the illegal demand against the disputed period and the act of the opposite party is illegal, arbitrary and is violation of rules/regulations/EA Act, 2003. In the end, the complainant has prayed that for setting aside the demand of the disputed amount of Rs.78,060/- along with arrears of Rs.3828/- claimed in bill dated 30.12.2019 and also to pay compensation of Rs.25,000/- besides litigation expenses of Rs.7500/-.

2.                Upon notice, the opposite party appeared and filed written statement and by taking preliminary objections, assailed the complaint on the ground of maintainability of the complaint. The opposite party stated that the meter installed at the premises of the complainant was burnt and the accounts were overhauled for the period the meter remained inoperative on the basis of the report of Audit Party vide its half margin No.40 dated 28.06.2019. A sum of Rs.81,877/- were charged on the basis of the average taken for the same period of the previous year and after deducting the already paid amount by the complainant, the sum of Rs.81,877/- were charged. Since the complainant has consumed the electricity for running her business with the commercial connection installed at her commercial place, she is liable to pay the assessed amount. Even the complaint is not maintainable as the complainant is holder of commercial connection and using the same for commercial purpose for running her business as property dealer.

                   On merits, the opposite party reiterated the crux of averments made in the preliminary objections. The opposite party averred that the bill dated 31.12.2019 was rightly sent with demand of average charges of previous months because the complainant has actually consumed the energy and has not been making full payment of the actual energy consumed by her as the meter remained inoperative being the burnt meter and not recording correct energy during the said period. The reason of recording of less energy was due to meter burnt  and as such, the bill paid by the complainant were not correct bills and same were corrected later on as per rules and regulations and even as per report of Audit party. In the ME lab the meter was found burnt and on the report of ME Lab the accounts were overhauled by the opposite party. According to the opposite party, the amount charged is as per calculations even by the audit party. Even the complainant had the remedy for approaching Dispute Settlement Committee which she did not avail. Moreover, the amount already paid by the complainant stands deducted while calculating the correct amount of the consumption charges as per rules and now the demand raised by the opposite party is legal and  opposite party has every right to claim the same. The opposite party has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                In support of her claim, the complainant tendered her affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of sale deed dated 15.01.2019, Ex. C2 is the copy of sale deed dated 04.08.2014, Ex. C3 to Ex. C10 are the copies of electricity bills and closed the evidence.

4.                On the other hand, counsel for the opposite party tendered affidavit Ex. RA of Er. Parminder Singh, Senior Executive Engineer, Aggar Nagar Division Special, PSPCL, Ludhiana along with documents Ex. R1 is the copy of half margin No.40 dated 28.06.2019, Ex. R2 is the copy of  challan No.985 dated 04.02.2019 and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.

6.                The complainant purchased a shop from one Monika Chopra vide sale deed dated 15.01.2019 Ex. C1. It is stipulated in the sale deed that in case of any Encumbrances or Arrears of electricity charges is proved, then the seller will be responsible to pay the same. Despite this, the present complainant has raised the dispute with regard to the issuance of bill dated 30.12.2019 Ex. C3 of amounting to Rs.78,060/- along with sundry charges of Rs.3828/-. The complainant himself admitted in para No.2 of the complaint that the said bill is  for 453 days for the period 01.11.2017 to 28.01.2019 . Apparently, the demand pertains to the period prior to purchase of property along with the electricity meter.

7.                The counsel for the complainant contended that the Meter Reader was bound to record the consumption of the meter and the status of the meter and the meter was changed in the absence of the consumer and no notice by ME Lab was served. These contentions are not tenable as no such objections were ever raised by the previous owner namely Monika Chopra during the subsistence of her ownership rights and now the complainant is estopped from raising such contentions. The complainant has just leveled general and bald allegations with regard to Audit report Ex. R1 and did not specifically pointed out the rules/regulations which has infringed. The complainant has failed to discharge the initial onus of deficiency in service on the part of the opposite parties. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

8.                On the other hand, the counsel for the opposite party has contended that due process was followed before making demand of Rs.81,877/-, assessed as per rules and regulations of Punjab State Power Corporation Limited. He has drawn the attention of this Commission towards rule 21.5.2 of Electricity Supply Instructions Manual of PSPCL, which is reproduced as under:-

          21.5.2         Defective (other than inaccurate)/Dead Stop/Burnt/Stolen                            Meters.

The accounts of a consumer shall be overhauled/billed for the period meter remained defective/dead stop and in case of burnt/stolen meter for the period of direct supply subject to maximum period of six months as per procedure given below:

a) On the basis of energy consumption of corresponding period of previous year.

b) In case the consumption of corresponding period of the previous year as referred in para (a) above is not available, the average monthly consumption of previous six (6) months during which the meter as functional, shall be adopted for overhauling of accounts.

c) If neither the consumption of corresponding period of previous year (para-a) nor for the last six months (para-b) is available then average of the consumption for the period the meter worked correctly during the last 6 months shall be taken for overhauling the account of the consumer.

d) Where the consumption for the previous months/period as referred in para (a) to para (c) is not available, the consumer shall be tentatively billed on the basis of consumption assessed as per para -4 of Annexure-8 and subsequently adjusted on the basis of actual consumption recorded in the corresponding period of the succeeding year.

e) The energy consumption determined as per para (a) to (d) above shall be adjusted for the change of load/demand, if any, during the period of overhauling of accounts.

9.                Further the reading of document Ex. R1 shows that the calculation was made in accordance with the provisions of law and same were duly communicated to the complainant. As such, the demand of Rs.81,877/- is legal and valid as raising of additional demand does not amount to deficiency in service or unfair trade practice on the part of the opposite party.

10.              Reference can be made to Civil Appeal No.7235 of 2009 in M/s. Prem Cottex Vs Uttar Haryana Bijli Vitran Nigam Ltd. and others decided by the Hon’ble Supreme Court of India vide order dated 05.10.2021, it has been held in para No.20 and 21 of the judgment, which is reproduced as under:-

20. The fora constituted under the Consumer Protection Act, 1986 is entitled to deal with the complaint of a consumer, either in relation to defective goods or in relation to deficiency in services. The word “deficiency” is defined in Section 2(1)(g) of the Consumer Protection Act, 1986 as follows:­

“2(1)(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

21. The raising of an additional demand in the form of “short assessment notice”, on the ground that in the bills raised during a particular period of time, the multiply factor was wrongly mentioned, cannot tantamount to deficiency in service. If a licensee discovers in the course of audit or otherwise that a consumer has been short billed, the licensee is certainly entitled to raise a demand. So long as the consumer does not dispute the correctness of the claim made by the licensee that there was short assessment, it is not open to the consumer to claim that there was any deficiency. This is why, the National Commission, in the impugned order correctly points out that it is a case of “escaped assessment” and not “deficiency in service”.

In view of the law laid down in the above cited law and as per facts and circumstances of the case, the complainant has failed to prove the deficiency in service on the part of the opposite party by any cogent and convincing evidence.

11.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

 

12.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)                        (Sanjeev Batra)

                                      Member                                       President         

 

Announced in Open Commission.

Dated:01.09.2023.

Gobind Ram.

 

 

 

Rita Vs Punjab State Power Corporation Limited            CC/20/14

Present:       Sh. M.S. Sethi, Advocate for the complainant.

                   Sh. G.S. Pahwa, Advocate for OP.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)                        (Sanjeev Batra)

                                       Member                                       President         

 

Announced in Open Commission.

Dated:01.09.2023.

Gobind Ram.