DISTRICT CONSUMERDISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 66 of 4.3.2008 Decided on : 6.5.2008 <br /> <br /> Barma Nand S/o Sh. Seeta Ram, R/o Gali No. 19/4, Lal Singh Basti, Bathinda, District Bathinda.<br /> .... Complainant<br /> Versus<br /> 1.Punjab State Electricity Board, The Mall, Patiala through its Secretary.<br /> 2.S.D.O/A.E.E, Suburban Sub Division, Punjab State Electricity Board, Bathinda.<br /> ..... Opposite parties<br /> <br /> Complaint Under Section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Ashok Gupta, Advocate<br /> For the opposite parties : Sh. Jaideep Nayyar, Advocate<br /> <br /> O R D E R. <br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. This complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred by the complainant seeking direction from this Forum to the opposite parties to withdraw memo No. 386 dated 27.2.2008 or quash the same; pay Rs.15,000/- for mental tension, harassment and botheration, besides costs of the complaint.<br /> 2. Version of the complainant lies in the narrow compass as under :- Complainant is holder of domestic electricity connection bearing A/c No. CB-43/433 with sanctioned load of 1.41 Kws. No defect in the meter was ever found. He is paying the amount of the electricity consumption charges regularly. Memo No. 386 dated 27.2.2008 was received by him whereby demand of Rs. 29,661/- has been raised although nothing was due against him. It has been alleged in the memo that there was joint inside the house in the wire from where theft was being committed. Infact, the officials of the opposite parties did not seal the wire. There was no joint. He was not committing theft of electricity. Even if it is taken that there was joint, it was the duty of the officials of the opposite parties to change the wire. Wire was not packed in the card board box nor sealed. His signatures were not obtained. Infact, no checking was conducted much less in his presence or in the presence of his representative. Period for which alleged demand has been raised, has not been mentioned in the memo. There is no variation in his consumption. In these circumstances, there is deficiency in service on the part of the opposite parties which has caused him mental tension, harassment and botheration.<br /> 3. Opposite parties filed their version taking legal objection that this Forum has got no jurisdiction to entertain and try the complaint. They admit that electricity connection has been installed at the premises of the complainant. Inter-alia, their plea is that connection was checked by their officials on 20.2.2008 in the presence of one Mr. Mangat Rai representative of the complainant. It was found that main switch was off and there was joint in the wire inside the house through which electricity was being consumed by way of bye-passing the meter. Actual position has been explained by making a diagram on the checking report itself. He was making use of energy unauthorisedly. Checking report was prepared at the spot under the law. Provisional order of assessment has been issued raising demand of Rs.29,660/-. Complainant has not deposited this amount within seven days nor did he file objections. Had he filed the objections, he would have been given opportunity to represent his case before the Assessing Authority. Order has become final. Some other preliminary objections have been taken. They deny that the demand is illegal. They do not admit the remaining averments in the complaint.<br /> 4. In support of his allegations and averments in the complaint, Barma Nand complainant tendered into evidence his own affidavits (Ex.C.3 & Ex.C.8), affidavits (Ex.C.1 & Ex.C.2) of S/Sh. Ramesh Kumar and Suresh Kumar, photocopies of bills (Ex.C.4 to Ex.C.7) & photocopy of memo No. 386 dated 20.2.2008 (Ex.C.9). <br /> 5. On behalf of the opposite parties, reliance is placed on affidavit (Ex.R.1) of Sh. Surinder Pal Singh, SDO/AEE, photocopy of details of demand(Ex.R.2) and photocopy of checking report dated 20.2.2008 (Ex.R.3).<br /> 6. We have heard the learned counsel for the parties. Apart from this, we have gone through the record.<br /> 7. Contention of the learned counsel for the opposite parties that this Forum has got no territorial jurisdiction to entertain and try the complaint as the Appellate Authority after the amount is assessed is Sub Divisional Magistrate in whose jurisdiction concerned premises are located. This argument is not acceptable. As per Section 3 of the Act, the provisions of the Act are in addition to any other remedy or any other law for the time being in force. Apart from this, it has been held by the Hon'ble State Commission, Delhi in the case of B.S.E.B Yamuna Power Ltd. Vs. Neeraj Kumar-2007 CTJ-300 (SCDRC) that Consumer Forms/Commissions have the jurisdiction not only to decide every kind of dispute under the Electricity Act, 2003 but have also the jurisdiction to decide any question of law arising arising from the provisions of the Act including the dispute under section 135 relating to the allegation of theft of electricity and dishonest abstraction of energy. In these circumstances, complaint before this Forum is maintainable.<br /> 8. Opposite parties are alleging theft of energy on the part of the complainant. For this, they are relying upon affidavit Ex.R.1 of Sh. Surinder Pal Singh, SDO and copy of the checking report dated 20.2.2008 Ex.R.3. Theft of electricity is to be proved like a criminal charge. For this, there should be cogent and convincing evidence of the opposite parties. Theft cannot be said to have been proved merely on the basis of assumptions and presumptions. Neither in the reply of the complaint nor in affidavit Ex.R.1 of Sh. Surinder Pal Singh SDO, there is any mention who was heading the checking party for checking the electricity connection of the complainant on 20.2.2008. As is clear from Ex.R.3 which is the copy of the checking report, checking officer was Sh. K.S Sidhu, A.E. Opposite parties have not placed and proved on record the affidavit of Sh. K.S Sidhu. Similarly, they did not deem it fit to bring on record the affidavits of the other officials of the Punjab State Electricity Board who were accompanying Sh. Sidhu on 20.2.2008. So far as Sh. Surinder Pal Singh is concerned, he does not state in Ex.R.1 that he was member of the checking party. In these circumstances, no weight can be attached to Ex.R.1. Primary evidence regarding the alleged theft has been withheld by the opposite parties. There is no material to support the allegation of theft as has been levelled in the checking report, copy of which is Ex.R.3. Opposite parties are alleging that one Mr. Mangat Rai representative of the complainant was present at the time of checking. Father's name and other particulars including address of Mr. Mangat Rai have not been given in the checking report. Sh. Ramesh Kumar and Suresh Kumar in their affidavits Ex.C.1 & Ex.C.2 respectively have stated that Mr. Mangat Rai is not relative of the complainant nor is he resident of their locality. To the same effect is the version of the complainant in his affidavits Ex.C.3 & Ex.C.8. According to the opposite parties, main switch was off at the time of checking. There was joint in the wire inside the house from which electricity was being consumed by way of bye-passing the meter. In such a case, the checking staff could get the alleged point at which theft was being committed photographed or videographed. Evidence to this effect is lacking. To the contrary, complainant through affidavits Ex.C.3 and Ex.C.8 and affidavits of Sh. Ramesh Kumar and Sh. Suresh Kumar which are Ex.C.1 & EX.C.2 respectively has proved that no checking was made in his house. Moreover, as per Commercial Circular No. 53/2006, it was duty of the checking officer to disconnect the connection forthwith and seal the meter/metering equipment in as found condition. As this has not been done, the presumption is that no theft was being committed.<br /> 9. In view of our forgoing discussion, crux of the matter is that opposite parties have failed to prove that complainant was committing theft of energy. When it is so, the demand of Rs.29,661/- raised by them through impugned memo No. 386 dated 20.2.2008, copy of which is Ex.C.9, is certainly illegal, arbitrary, null and void. Since demand has been arbitrarily raised, complainant is not bound to pay this amount. Deficiency in service on the part of the opposite parties is writ large.<br /> 10. Now question arises as to which relief should be accorded to the complainant. Direction deserves to be given to the opposite parties to withdraw demand of Rs. 29,661/-. Complainant has placed on record copy of receipt dated 5.3.2008 according to which a sum of Rs. 15,000/- has been deposited out of the impugned demand on the basis of the order passed by this Forum. Since demand of Rs. 29,661/- is illegal, this deposited amount of RS. 15,000/- is liable to be refunded to the complainant alongwith interest @ 9% P.A from the date of deposit till payment. Complainant is craving for compensation of Rs. 15,000/-. Act and conduct of the opposite parties must have caused me mental tension, harassment and botheration to the complainant for which he deserves some compensation which we assess as Rs. 1,000/-.<br /> 11. No other point was urged before us at the time of arguments.<br /> 12. In the result, complaint is allowed against the opposite parties with costs of Rs.1,000/-. Opposite parties are directed to do as under :-<br /> ( i ) Withdraw memo No. 386 dated 27.2.2008, copy of which is Ex.C.9.<br /> ( ii ) Refund the deposited amount of Rs. 15,000/- to the complainant alongwith interest @ 9% P.A from 5.3.2008 till payment.<br /> ( iii ) Pay Rs. 1,000/- as compensation to the complainant under section 14(1)(d) of the Act.<br /> ( iv ) Compliance within 30 days from the date of receipt of copy of this order, failing which the amount of compensation would carry interest @ 9% P.A till payment.<br /> 13. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 6.5.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg' <br /> <br /> <br />