Punjab

Ludhiana

CC/19/127

Vinay Sood - Complainant(s)

Versus

Pujab State Power Corporation Limited - Opp.Party(s)

M.S.Sethi Adv.

16 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:127 dated 04.03.2019.                                                         Date of decision: 16.10.2023.

 

Vinay Sood 47 years S/o. late Sh. Dev Parkash Sood, R/o. 1589, Kucha Pandit Dhani Ram, Karimpura Bazar, Ludhiana.                                                                                                                                           ..…Complainant

                                                Versus

Punjab State Power Corporation Limited, Sub Division- Unit 3, Nr. Chand Cinema, Ludhiana through its authorized signatory.

…..Opposite party 

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Sushil Kumar Rana, Advocate.

For OP                           :         Sh. Manish Midha, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the complaint are that the complainant is the consumer of the opposite parties against the electricity connection bearing account No.3004945810 under domestic supply (DS) at ground and first floor of his 3 story building, which is being used by the complainant and his family since its commencement and the complainant has been paying its consumption charges regularly. The complainant stated that vide memo No.737 dated 15.02.2019, the opposite party claimed Rs.1,39,507/- on the ground that defaulter amount of Rs.1,39,507/- is of other account E23-EB01-297M which is claimed from account No.3004945810 on the basis of LCR 35/160 dated 15.02.2018. On receiving the said demand notice, the complainant visited office of the opposite party where it was disclosed that said demand relates to account holder Kewal Sood against connection E23-EB01-297M installed and used at second floor occupied by Kewal Sood and his wife and due to non-recovery of said amount, it is being claimed from complainant because of resident of same property. According to the complainant he is not liable to pay the disputed illegal demand and the same is in violation of their rules/regulation/EA 2003 etc. The complainant further stated Kewal Sood S/o. Ganga Ram Sood died on 17.04.2017 and after his death said portion of property at second floor was given on rent to Mamta Mehra W/o. Late Ashwani Mehra where she was living along with her sons since 2017  and the rent was being received by wife of Late Kewal Sood and said lady is residing at 207, Windsor Apartment, Aarti Cinema Chowk near Sardar Jeweller but the opposite party is illegally transferred the amount of Rs.1,39,507/- on the basis of LCR dated 15.02.2019. There is no provision in Electricity Act/regulation/rules etc. authorizing the opposite party to recover the dues of any account holder from the other existing account holder in the same premises. The complainant further stated that he is not liable to pay such default amount of other connection. In the end, the complainant prayed to issue direction to set aside the demand of Rs.1,39,507/- including future bills with surcharge and also to pay compensation of Rs.50,000/- and litigation expenses of Rs.7500/-.

2.                Upon notice, the opposite party appeared and filed written statement by taking preliminary objections that the complaint is not maintainable and the complaint is liable to be dismissed being pre-mature. The opposite party averred that the present complaint has been filed against memo No.737 dated 15.02.2019 which is a show cause notice and the objections were invited from the complainant within seven days of receipt of said show cause notice. From the said show cause notice it appears that the amount of Rs.1,39,507/- of account No.E23-EB01-297M was proposed to be charged in account No.3004945810 of the complainant as per LCR No.35/1620 dated 15.02.2018 being the amount of same premises and the complainant can furnish the objections if any within seven days of receipt of the said show cause notice. The complainant did not file any objection against the said show cause notice rather filed the present complaint without any cause of action and the same merits dismissed being pre-mature one.

                   On merits, the opposite party reiterated the crux of averments made in the preliminary objections. The opposite party admitted the factum of the complainant having electric connection bearing account No.3004945810 under DS category. The opposite party averred that one more connection No.E-23-EB-01-247-M was also installed in the same premises and the electricity was consumed from the said connection also regarding which a sum of Rs.1,39,507/- was outstanding against the complainant when the same was disconnected due to non-payment of said amount. The premises was checked and as per report made in LCR No.35/160 dated 15.02.2018, the amount was proposed to be charged to account No.3004945810 and a show cause notice was served upon the complainant. However, the complainant field the present pre-mature complaint as the amount has not yet been charged to the account of the complainant. According to the opposite party show cause notice was rightly issued on the basis of CR No.35/160 dated 15.02.2018 and the amount of Rs.1,39,507/- was rightly proposed to be transferred in the account of the complainant as both the connections were installed in the same premises and the consumers are also 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 his claim, the complainant tendered his 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  bill dated 16.12.2018 of account No.3004945810, Ex. C2 is the copy of memo No.737 dated 15.02.2019, Ex. C3 is the copy of bill dated 16.12.2018 of account No.3001579595 and closed the evidence.

4.                On the other hand, counsel for opposite party tendered affidavit Ex. RA of Er. Sukaran Singh Grewal, Senior Executive Engineer, City Central Nagar Division (Special), PSPCL, Ludhiana along with documents Ex. R1 is the copy of checking report dated 15.02.2019, Ex. R2 is the copy of memo No.737 dated 15.02.2019 and closed the evidence.

                   In additional evidence, the opposite party tendered document Ex. R3 is the copy of checking report dated 22.07.2019, Ex. R4 is the copy of job order for device installation dated 25.04.2018 and closed additional 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.                Originally, Mr. Kewal Sood was the owner in possession of the three storey building and was having one electricity connection installed therein. Unfortunately, Sh. Kewal Sood died on 17.04.2017 and thereafter, the accommodation on second floor was rented out. Thereafter, the complainant along with his family occupied the remaining portion of the building on 28.04.2018, the complainant obtained another connection No.3004945810 in his name. A LCR was conducted on 15.02.2019 whereby it was transpired that earlier through the electric connection in the name of Sh. Kewal Sood theft of electricity was committed leading to change of meter on 25.07.2018. Meter was sent to ME Lab where factum of theft was confirmed and penalty was imposed and its non-deposit lead to permanent disconnection on 14.01.2019. The said amount was proposed to be included in the account of the complainant and so accordingly, a memo No.737 dated 15.02.2019 was issued to the complainant calling upon him to explain why an amount of Rs.1,39,507/- is not payable by him as both the connections were installed in the same premises. The said notice was issued to the complainant to raise any objection within 7 days from the date of receipt of notice, but the complainant instead of approaching the opposite party office, filed the present complaint along with application for interim relief.  Learned Predecessor of this Commission vide its order dated 17.05.2019 pleased to pass order with direction to the complainant to pay 50% of the demanded amount of Rs.1,39,507/- within 15 days from date of order and further on deposit of 50% of amount, electricity connection in question be restored o the complainant. However, the complainant did not deposit the said amount. So it is evident that conduct of the complainant was not bonafide. It appears that the complainant wanted to keep the litigation with the opposite party alive. Apparently there is no deficiency in service or adoption of unfair trade practice on the part of the opposite party. Moreover, 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.”

7.                Further 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”.

Further the Hon’ble Supreme Court of India in case title U.P. Power Corporation Limited and others Vs Anis Ahmad 2013(5) Law Herald-3802 has held that a case of indulgence in “unauthorized use of electricity” by the complainant as defined in clause B of explanation below Section 126 of the Electricity Act, 2003 is a quasi judicial decision and it does not fall within the meaning of “consumer dispute.” As such, the present complaint against the assessment or against the offences committed against under Section 135 to 140 of the Electricity Act, 2003 is not maintainable before the Consumer Commission and jurisdiction to try and entertain such complaint is barred. 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.

8.                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.

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

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:16.10.2023.

Gobind Ram.