DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 252 of 29-08-2007<br /> Decided on :19-11-2007<br /> <br /> Saudagar Singh S/o Darwara Singh, R/o Village Kalyan Sukha, District Bathinda. <br /> .... Complainant<br /> Versus<br /> 1.Punjab State Electricity Board, The Patiala, through its Secretary.<br /> 2.A.E.E./S.D.O. Sub Division. Punjab State Electricity Board, Nathana, District Bathinda. .... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM :<br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member <br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Ashok Gupta, Advocate.<br /> For the Opposite parties : Sh. Sukhbir Singh Dhillon, Advocate.<br /> <br /> O R D E R <br /> <br /> LAKHBIR SINGH, PRESIDENT <br /> 1. Complainant is holder of electricity connection bearing A/c No. KS-33/0451. He is running STD PCO in one room of his residential house for the purpose of earning his livelihood. Memo No. 1839 dated 22.8.07 was received by him from the opposite parties through which demand of Rs. 28,390/- has been raised on the allegation that connection was checked on 15.8.07 by the Junior Engineer and it was found that he was using load to the extent of 3.006 KW as against the sanctioned load of 0.260 K.W. Further he was found indulging in theft of electricity. He assails this memo/notice as illegal null and void on the ground that it does not show the period and the manner of theft; checking was not made in his presence nor the meter was removed; condition of meter was not shown to him at the time of installation or at the time of alleged checking; copy of the alleged checking report was not supplied to him nor any notice was given to him to join in the checking; bills already issued never exceeded Rs.200/- to Rs. 250/-per bill; checking was illegal and one sided; no basis of recovery has been shown and no opportunity of being heard was afforded. It is further averred by him that opposite parties are out to disconnect the electricity connection. In these circumstances, complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act') has been preferred by him seeking direction from this Forum to the opposite parties to withdraw the impugned memo or quash the same; pay Rs. 50,000/- on account of mental tension, harassment and botheration and Rs. 5000/- as litigation expenses.<br /> 2. On being put to notice, opposite parties filed their version taking legal objections that complaint is not maintainable; this forum has got no jurisdiction to entertain and try the complaint; complainant is not consumer; he is estopped from filing the complaint by his act and conduct; he has no locus standi to file the complaint and complaint is false and frivolous. Inter-alia their plea is that connection of the complainant was checked on 15.8.07 in the presence of the consumer. During checking, it was found that he was using electricity by putting direct wire and further he had connected heater of the capacity of 2 K.W. Meter was found stopped while electricity was being used. In this manner, he was indulging in theft of energy. He had quarreled with the checking staff and abusive and filthy language was used. He did not allow them to note down the total load being used by him. Checking staff could only note down the load to the extent of 3.006 KW against the sanctioned load of 0.260 KW. Checking staff was not allowed to note down the particulars of the meter and take the meter into possession. Checking report was prepared at the site. Complainant did not sign it. On the basis of this report, memo No. 1839 dated 22.8.07 raising the demand of Rs. 28,390/- was issued regarding the theft of electricity. Demand is legal and valid. They deny that memo is illegal, null and void on the grounds mentioned in the complaint. They deny the remaining averments in the complaint.<br /> 3. In support of his averments contained in the complaint, complainant has produced in evidence his affidavit (Ex. C-1), photocopy of notice dated 22.8.07 (Ex. C-2) and test report (Ex. C-3).<br /> 4. In rebuttal, on behalf of opposite parties two affidavits i.e. of S/Sh. Jarnail Singh Brar, S.D.O. and Kuldip Singh, Junior Engineer (Ex. R-1 & Ex. R-2) respectively, photocopy of Notice dated 22.8.07 (Ex. R-3), photocopy of checking report dated 15.8.07 (Ex. R-4), photocopy of CC No. 53/2006 (Ex. R-5) and photocopies of Electricity Act, 2003 Pages No. 134 & 137 (Ex. R-6 to Ex. R-7) have been tendered in evidence.<br /> 5. We have heard learned counsel for the parties. Besides this, we have gone through the record and written brief of arguments submitted on behalf of the opposite parties.<br /> 6. Mr. Dhillon, learned counsel for the opposite parties argued that the facts and circumstances of this case do not show any consumer dispute and as such, this Forum has got no jurisdiction to entertain and try the complaint. For this, he drew our attention to the authority Puran Chand Vs. B.S.E.S.Yamuna Power Limited and another II(2004) CPJ 20.<br /> 7. We have considered this submission. No doubt in the authority referred to above, Hon'ble State Commission, Delhi has held the view that fraudulent abstraction of energy is not a consumer dispute and complainant is at liberty to seek remedy before the civil court. Latest view of the Hon'ble State Commission, Delhi in the case of BSES Yamuna Power Limited Vs. Neeraj Kumar 2007 CTJ 300 (CP)(SCDRC) is that the “Consumer Forums and Commissions have the jurisdiction not only to decide every kind of dispute under the Electricity Act, 2003, but also have the jurisdiction to decide any question of law arising from the provisions of that Act including the dispute under Section 135 relating to allegations of theft of electricity and dishonest abstraction of energy.” Applying the latest view, we hold that the case in hand falls within the consumer dispute and as such, this Forum has got the jurisdiction to entertain and try the complaint.<br /> 8. Opposite parties are alleging that complainant was committing theft of energy by putting direct wire and that he had connected heater of the capacity of 2 KW and that meter was found stopped while electricity was being used by him. Checking staff had noted down the load which was being used as 3.006 KW against the sanctioned load of 0.260 KW. Onus to prove these averments is upon the opposite parties. For that, cogent and convincing evidence is required. Contention of the learned counsel for the complainant is that evidence led by the opposite parties does not establish their version.<br /> 9. Mr. Dhillon, learned counsel for the opposite parties argued that connection of the complainant was checked by Sh. Kuldip Singh, Junior Engineer. Stance of the opposite parties is established from his affidavit Ex. R-2 and copy of the checking report Ex. R-4.<br /> 10. After considering the respective arguments we feel ourselves inclined to agree with the learned counsel for the complainant. In the reply of the complaint, opposite parties did not mention the name of the officials who allegedly checked the connection of the complainant on 15.8.07. During evidence they have placed and proved on record affidavit of Sh. Kuldeep Singh, Junior Engineer. So far as the affidavit of sh. Jarnail Singh Brar, SDO/AEE is concerned, he was not a member of the checking team. Affidavit Ex. R-2 stands amply rebutted with the affidavit of the complainant which is Ex. C-1. Opposite parties did not deem it fit to bring on record the affidavit of any other official who was allegedly accompanying Sh. Kuldip Singh, Junior Engineer. If complainant was committing theft of energy by putting direct wire and had connected heater of the capacity of 2 KW, wire and heater could be taken into possession. Mere assertion of the opposite parties in the reply of the complaint that complainant did not allow them to take the heater into possession cannot be accepted as there is nothing to hold that complainant physically prevented them from doing so. It is not a case where opposite parties allege that some other persons were also there with the complainant. If Sh. Kuldip Singh was accompanied by some other officials as has been mentioned in his affidavit Ex. R-2, then how could complainant prevent them from taking the wire and the heater into possession. They could get the site photographed, which has not been done in this case. If some other officials were accompanying Sh. Kuldip Singh, he could get the checking report, copy of which is Ex. R-4, signed from some of them. On the basis of checking report alone, demand could not be raised. For this, we get support from the observations of the Hon'ble State Commission, Punjab, in the case of Charan Singh Vs. P.S.E.B. (Chairman) and Another 2006(1) JRC 206. Opposite parties allege that complainant used abusive and filthy language to the checking staff. If it was so and complainant was committing theft of energy, matter could be reported to the police. Fact that no complaint to the police has been made leads us to draw an adverse inference against the story of the opposite parties. There is non-compliance of Commercial Circular No. 53/2006 as well in this case. Opposite parties have themselves placed on record copy of this circular which is Ex. R-5. According to it, inspection report should be signed by the authorised officer and members of the Inspection Team and consumer/his/her representative. As mentioned above, Inspection Report has not been got signed from the members of the Inspection Team. There is nothing in Ex. R-4 that the copy of the checking report was given to the complainant or was offered to him. According to this circular, copy of the Inspection Report is to be handed over to the consumer or his/her representative. Opposite parties allege that complainant did not sign the checking report. In such a situation, it was mandatory for the checking officer to paste copy of the report at a conspicuous place in/outside the premises. Simultaneously copy of the inspection report is to be sent to the person under registered post. It has not been done. Ex. R-3 is the copy of the impugned notice dated 22.8.07. In this document, checking report has been shown to have been delivered to the complainant at the spot. This contradicts the checking report as there is nothing to this effect in it. Moreover, provisional assessment order was to be passed as per Commercial Circular No. 34/06 and 53/06. This has not be done. Rather demand of Rs. 28,390/- has been raised from the complainant through impugned memo and direction has been given to deposit it within seven days. In this manner, concerned officials have contravened Commercial Circulars of the Board as well.<br /> 11. From an over all assessment of the facts, circumstances and the evidence discussed above, we are of the view that opposite parties have failed to prove their allegations. Hence, there is deficiency in service on their part in raising the demand of Rs. 28,390/- through Memo No. 1839, copy of which is Ex. C-2. Accordingly, demand is liable to be set aside.<br /> 12. Now, question arises as to which relief should be accorded to the complainant. In view of our foregoing discussion, direction deserves to be given to the opposite parties to withdraw Memo No. 1839 dated 22.8.07 vide which impugned demand of Rs. 28,390/- has been raised. Act and conduct of the opposite parties must have caused mental tension and agony to the complainant for which he deserves some compensation which we assess as Rs. 1,000/-. For this, we are fortified from the observations of Hon'ble State Commission of Madhya Pradesh in the case of J. Radhakrishnan Vs. A. Basheera & Another 2001(2) CLT 225 wherein it has been held that award of compensation always involves some sort of speculation and it is very difficult to quantify the amount of compensation on a rationale basis.<br /> 13. In the premises written above, complaint is accepted against the opposite parties with cost of Rs. 1,000/-. Opposite parties are directed to do as under :-<br /> i)Withdraw impugned demand raised through Memo No. 1839 dated 22.8.07, copies of which are Ex. C-2 and Ex. R-3.<br /> ii)Pay Rs. 1,000/- to the complainant as compensation under Section 14(1)(d) of the Act.<br /> Compliance of this order be made within 30 days from the date of its receipt failing which the amount of compensation under Section 14(1)(d) would carry interest @9% P.A. till payment.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned. <br /> Pronounced :<br /> 19-11--2007 <br /> (Lakhbir Singh )<br /> President <br /> <br /> <br /> (Hira Lal Kumar )<br /> Member<br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member