BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT.

Complaint No. : 61

Date of Institution : 8.3.2010

Date of Decision : 21.10.2010

Harbans Kaur aged about 31 years w/o Surinder Kumar Ghand, resident of Teacher Colony, Faridkot.

...Complainant Versus

1. Punjab State Electricity Board through its Chairman, PSEB, The Mall, Patiala.

2. Assistant Executive Engineer (DS) City Sub Division, PSEB, Faridkot.

...Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

Quorum: Sh. Ashok Kumar President

Dr. H.L. Mittal Member

Present: Sh. Ranjit Singh counsel for the complainant.

Sh. Rajneesh Garg counsel for the opposite parties.

ORDER

Complainant has filed the present complaint against the opposite parties for charging the amount of Rs. 44,745/- vide letter No. 3802 dated 19.2.2010 to the complainant Account No. TD 21/0355 and for directing the opposite parties to withdraw the said letter and to pay Rs. 20,000/- as compensation on account of harassment and mental agony besides litigation expenses of Rs. 5,000/-.

2. Briefly stated, the case of the complainant is that she is consumer of the opposite parties using electric connection Account No. TD 21/0355. The connection is being used in the house where some tuition work is also being done at the premises for self employment of the complainant and as such NRS tariff is being levied by the opposite parties. She received letter No. 3802 dated 19.2.2010 issued by the opposite party No. 2 in which demand of Rs. 44,745/- has been raised on the basis of alleged checking dated 22.1.2009 by Sr. Xen, Enforcement, Moga on account of theft of energy. On 25.6.2009 some persons claiming to be from the PSEB visited the premises of the complainant and these persons have some quarrel with the husband of the complainant in the presence of some persons. These persons mishandled the meter in the presence of the husband of the complainant. On the same date matter was reported to the Chairman, PSEB, Patiala and other offices of the PSEB, Later on, matter was investigated by Sr. Executive Engineer, Op Division, Faridkot. Husband of the complainant submitted his statement before the SEE, Op Division, Faridkot. Meter/seals was never tampered by the complainant so as to restrict the meter from recording correct consumption. Previously, connection of the complainant was checked by Sr. Xen Enforcement, Moga. As per his report seal of the meter was broken due to rust. On receipt of said letter the complainant immediately visited the office of the opposite party No. 2 and enquired about the amount demanded by the opposite party. She requested the opposite party No. 2 to withdraw the illegal demand but they threatened to disconnect the connection of the complainant, which amounts to deficiency in service and unfair trade practice. Complainant is also entitled for compensation of Rs. 20,000/- and litigation expenses of Rs. 5,000/-. Hence this complaint.

3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 10.3.2010 complaint was admitted and notice was ordered to be issued to the opposite parties.

4. In response to the notice, the opposite parties filed written statement taking preliminary objections that the complainant does not fall under the definition of consumer, so the present complaint is not maintainable. She was committing theft of energy, so the complaint is also liable to be dismissed. On merits, it is admitted that the present connection is installed in the premises of the complainant but the same was being used for commercial purpose. It is also admitted that the letter in question was issued to the complainant. It is further submitted that the electricity meter so removed from the premises of the consumer was checked in ME Lab at Moga on 22.1.2010. During checking it was found that the complainant, after tampering the ME seals of the meter had tampered with the internal parts of the meter. The meter was checked in ME Lab Moga in the presence of the husband of the complainant Sh. Surinder Kumar Ghand who has signed the checking report in token of its correctness. The meter was duly packed in the box and proper paper seals was affixed on the box of the meter, which was opened in the presence of the husband of the complainant. The said meter was checked under the supervision of Sr. Xen, ME Lab, Moga. The notice in question has been given as per rules and regulations and instructions of the PSEB. The complainant had also made one complaint in Punjab State Human Rights Commission, Chandigarh against the opposite parties but the same was dismissed vide order dated 10.7.2009 as there was no merit in the same. So, there is no deficiency or unfair trade practice on the part of opposite parties. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

5. All the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence her affidavit Ex.C-1, copy of memo No. 3802 Ex.C-2, copy of checking report Ex.C-3, copy of application dated 25.6.2009 Ex.C-4, copies of postal receipts Ex.C-5 and Ex.C-6, copy of reply dated 5.11.2009 Ex.C-7, copies of bills Ex.C-8 to Ex.C-14, affidavit of Sukhdev Singh Ex.C-15, affidavit of Surinder Kumar Ghand Ex.C-16, affidavit of Harbans Kaur complainant Ex.C-17 and closed her evidence.

6. In order to rebut the evidence of complainant the opposite parties tendered in evidence affidavit of Pritpal Singh Ex.R-1, checking report Ex.R-2, affidavit of Surinder Pal Ex.R-3, meter Ex.R-4, documents Ex.R-4 to Ex.R-11 and closed their evidence.

7. We have heard learned counsel for parties and have very carefully gone through the affidavits & documents on the file. Our observations & findings are as under.-

8. The main contention raised by the learned counsel for the complainant in the present case is that the action of the opposite parties for charging Rs. 44,745/- from the complainant vide letter dated 19.2.2010 Ex.C-2 qua his account number allegedly on the ground of theft based on spot checking report dated 25.6.2009 Ex.R-6 and ME Lab report Ex.R-2 is illegal and unlawful. On earlier checking in respect of which checking report is Ex.C-3 a seal of the electric device was found broken due to rust however electric device was not changed inspite of direction in this behalf. In respect of the spot checking dated 26.6.2009 Ex.R-6, a suspicion with regard to the tampering of the meter was raised and a direction was made for seal packing the electric device and seeking test report with regard to that from ME Lab. Complainant had made a representation also in this connection copy whereof is Ex.C-4. In respect of ME lab report it is contended that no internal checking was made. Observations were made only with regard to visible physical facts concerning the electric device in question. In this way, theft is not proved in this case. Mere allegations about tampering of the meter and control of consumer over it is not sufficient as held by the Hon'ble Apex Court in Ram Chandra Prasad Sharma and others Versus State of Bihar and another AIR-1967 Supreme Court-349.

9. Learned counsel for the opposite parties however repelled the aforesaid contentions on the ground that complainant is not consumer of the opposite parties. In para No. 1 of the complaint it is alleged by the complainant that the connection in question is being used in the house where some tuition work is being done at the premises for self employment of the complainant and as such NRS tariff is being levied. In this connection reference was also made to the complaint filed by one Surinder Kumar Ghand Advocate, Teacher Colony, Street No. 5-R, Faridkot copy whereof is Ex.R-7. It is sought to be contended that since the electricity in the premises where the electric device stands installed is used for commercial purpose, therefore, complainant is not consumer. In respect of spot checking it is contended that it was found on naked eye that M&T seals of the electric device were tampered. Electric device was seal packed in the presence of Harbans Kaur complainant as is clear from Ex.R-7. Ex.R-4 is challan which too bears the signatures of S.K. Ghand husband of the complainant. It is further contended that ME lab checking was made in the presence of S.K. Ghand aforesaid vide which theft of energy was confirmed. In this connection, ME Lab report Ex.R-2 has been relied upon. Ex.R-10 and Ex.R-11 are reports from AEE to Senior Executive Engineer, Faridkot. Checking has been proved on the basis of duly sworn affidavit of Er. Surinder Pal Singh, the then Senior Xen, Enforcement, PSPCL, Moga Ex.R-3 whereas Ex.R-5 is requisite notice putting up a demand on the basis of theft of energy by the complainant. Therefore, as per the learned counsel for the opposite parties theft of energy in this case is fully proved.

10. We have keenly considered the rival contentions in the light of evidence on record. There is no denial of the fact that earlier checking of the same electric meter was made as is clear from copy of checking report Ex.C-3. It was noted by the employees of the opposite parties that meter had two seals out of which one seal was broken due to rust. In respect of the checking in question as allegedly made on 25.6.2009, only suspicion was raised as to tampering of electric device which stands installed in the premises of the complainant by observing that lash wire of one number M&T seal had been re-fixed after cutting wire and there is suspicion of tampering of the other seal. A specific direction was made for seal packing the electric device and test report of ME Lab be obtained with regard to that. In this way, checking report Ex.R-6 is not conclusive. In so far as checking report of ME Lab Ex.R-2 is concerned the same is also found to be cryptic and vague. In this report it is noted that during testing of the electric meter lash wire of M&T seals fixed on the meter had been re-fixed after cutting. Both the ME seals were also tampered. It is worth noticeable that no internal checking of the meter was done. The observations in the checking report Ex.R-2 are more or less a reproduction of the observations recorded in the spot checking report Ex.R-6. These observations conveys mere allegations about tampering of meter and control of consumption thereof by the complainant. As held by the Hon'ble Apex Court such allegations about tampering of meter are not sufficient to prove theft of energy by a consumer.

11. In view of our above observations and findings, opposite party has failed to lead cogent, reliable and dependable evidence to prove their stand that amount in question was raised in view of theft made by the complainant by abstracting energy by illegal means. Therefore, the complaint filed by the complainant is accepted with a direction to the opposite parties to withdraw the illegal and unlawful charges of Rs. 44,745/- raised vide letter No. 3802 dated 19.2.2010 alongwith all the surcharges if any, within the period of one month from the date of the receipt of the copy of this order. Any amount, if already deposited by the complainant with regard to above mentioned charges of Rs. 44,745/- raised vide letter No. 3802 dated 19.2.2010 with the opposite parties, be refunded to the complainant or adjusted in his next bills. However, in the peculiar set of circumstances, there is no order as to costs. In case no compliance is made out of this order, complainant shall be entitled to proceed under the provisions of Sections 25 and 27 of the Consumer Protection Act. Copies of the order be sent to the parties free of costs. File be consigned to the record room.

Announced in open Forum:

Dated: 21.10.2010

Member President (Dr. H.L. Mittal) (Ashok Kumar)