DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC No. 193 of 11.04.2007<br /> Decided on : 20-09-2007 <br /> <br /> Makhan Singh, aged about 60 years S/o Sh. Raghu Nath, R/o Village Pitho, Distt. Bathinda.<br /> ... Complainant<br /> Versus<br /> <br /> 1.Punjab State Electricity Board, The Mall, Patiala, through its Secretary<br /> 2.A.E.E./S.D.O. Sub-urban Sub Division, PSEB, Rampura Phul, District Bathinda.<br /> ... 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. J.P.S. Brar, 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. PB-18/0005 with which he is running Atta Chakki. Connection is being checked regularly. Nothing was due against him. Meter is checked in routine by the meter reader bi-monthly and by their technical staff including Junior Engineer and Flying Squad. His connection was checked by the official of the opposite parties in his absence and meter was removed. Thereafter memo No. 3754/55 dated 11.5.2007 raising demand of Rs. 63,394/- was issued alleging that seals of the meter were tampered and meter was intentionally burnt. He assails this memo as illegal, null and void, against rules on the grounds that it does not show to which period the theft relates; alleged checking dated 16.4.07 is illegal, null and void and against rules; meter was not packed and sealed in card board box nor his signatures were obtained on the alleged checking report. Condition of the removed meter was not shown to him at the time of installation or at the time of alleged checking. Copy of the report of M.E. Laboratory was not supplied to him nor was he called in the M.E. Laboratory to join alleged checking which is biased. Earlier he had filed complaint No. 313 of 16.10.06 under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act') against the opposite parties challenging the demand notice bearing memo No. 1864 dated 18.5.06 for Rs. 27,188/- which was accepted by this Forum vide order dated 24.11.06 with cost and demand was quashed. Opposite parties have adopted revengeful attitude towards him. After decision, opposite parties again checked his meter and imposed penalty of Rs. 774/- on the allegation of slow metering although it was false. Amount was deposited under compelled circumstances only to avoid unnecessary harassment and humiliation. There is no variation in consumption before removal and after removal of the meter. If there was defect in the meter then as to why it was not pointed out by the officials who record the reading. He repeatedly visited the office of the opposite parties to withdraw the impugned demand, but to no effect. To the contrary, they are threatening to disconnect the connection. Act and conduct of the opposite parties have caused him mental tension, harassment and botheration. There is deficiency in service and unfair trade practice on their part. In these circumstances, complaint under Section 12 of the Act has been preferred seeking direction from this Forum to the opposite parties to withdraw the impugned memo dated 11.5.07 or it be quashed; pay Rs. 20,000/- to him as compensation for mental tension, harassment and botheration and Rs. 5500/- as cost of the complaint.<br /> 2. Opposite parties filed reply taking legal objections that complainant is not consumer as he is running Atta Chakki for commercial purposes; he has got no locus standi or cause of action to file the complaint; this Forum has got no jurisdiction to entertain and try the complaint; there is no deficiency and unfair trade practice on their part and complaint is false and frivolous. Their version is that complainant has not come with clean hands; In fact on the report of the meter inspector to the effect that meter installed in the premises of the complainant was burnt, it was removed vide M.C.O. No. 092/64893 dated 20.12.06 effected on 15.1.07. Removed meter was duly packed and sealed in the cardboard box in the presence of complainant's representative. Thereafter various notices were issued to the complainant to come to the M.E. Laboratory for getting his meter checked in his presence, but knowingly he did not appear. Ultimately final notice dated 13.4.07 was issued directing him to appear in the M.E. Laboratory on 16.1.07 for getting his meter checked. Ultimately, removed meter was checked in M.E. Laboratory in his absence. During checking, it was found that three number ME Seals were tampered with whereas M.E seal shown at point 'A' was found missing and meter was intentionally burnt. On internal checking, it was found that PVC tape was put inside the counter of the meter and counter of the meter was tampered with. Body of the meter was also found to be opened. In order to hide the tampering of M.E. Seal and body of the meter, complainant intentionally burnt the meter. On the basis of report of M.E. Laboratory, impugned memo was issued. They deny that memo is illegal, null and void on the grounds mentioned in the complaint. They deny the remaining averments in the complaint as well.<br /> 3. In support of his averments contained in the complaint, complainant has produced in evidence his two affidavits( Ex. C-1 & Ex. C-3) ), photocopy of memo dated 11.5.07 (Ex. C-2), photocopy of memo dated 9.7.07 (Ex. C-4), photocopy of letter dated 13.8.07 (Ex. C-5), photocopies of bills (Ex. C-6 & Ex. C-7) and photocopy of letter dated 20.12.06 (Ex. C-8).<br /> 4. In rebuttal, on behalf of the opposite parties photocopy of Paper Seal No. 611159 (Ex. R-1), photocopy of M.E. Laboratory Report (Ex. R-2), photocopy of M.C.O. (Ex. R-3), photocopy of memo dated 22.2.07 (Ex. R-4), photocopy of memo dated 13.4.07 (Ex. R-5), photocopy of application dated 12.10.06 (Ex. R-6), photocopy of memo dated 11.5.07 (Ex. R-7), photocopy of checking report dated 20.12.06 (Ex R-8), affidavit of Sh. Sarabjeet Singh, S.D.O. (Ex. R-9), affidavit of Sh. Wazir Singh, J.E. (Ex. R-10), affidavit of Ranjha Ram, A.L.M.(Ex. R-11), Calculation of amount (Ex. R-12) and affidavit of Sh. B K Jindal, Sr. Xen, M.E. Laboratory (Ex. R-13) have been tendered in evidence.<br /> 5. We have heard learned counsel for the parties. Besides this, we have gone through the record.<br /> 6. One of the objections taken by the opposite parties is that this forum has got no jurisdiction to entertain and try the complaint as the complainant is using electricity connection for commercial purposes i.e. for running Atta Chakki. There is no cogent and convincing evidence of the opposite parties to establish it. No doubt in the affidavit Ex. R-9 of Sh. Sarabjit Singh, A.E.E./S.D.O, it has been stated that complainant has given the Atta Chakki on lease basis to Tarsem Lal and he is running it with the aid and assistance of 4/5 employees. No agreement between the complainant and Tarsem Lal regarding giving of Atta Chakki on lease is on the record. Statement of Sh. Sarabjeet Singh that Tarsem Lal is running Atta Chakki with the assistance of 4/5 employees has no basis as he has not disclosed their names and since when they are working there. There is no evidence that work of Atta Chakki of the complainant is at large scale. Affidavit Ex. R-9 of Sh. Sarabjeet Singh stands amply rebutted with the affidavit Ex. C-3 of the complainant in which he has categorically stated that he himself is running Atta Chakki for earning livelihood and his entire family is dependent on it. Moreover, it is worth mentioning that Atta Chakki in question is in the village itself and income from it cannot be said to be so much to hold that it is being run for commercial purposes. In these circumstances, conclusion is that complainant is running Atta Chakki for the purpose of earning livelihood by way of self employment. Accordingly, this Forum is will within its rights to entertain and try the complaint.<br /> 7. Material question for determination in this case is as to whether opposite parties have established theft and unauthorised use of electricity by the complainant. Complainant reiterates his version in his affidavits Ex. C-1 & Ex. C-3. He has also proved through various letters of the opposite parties, copies of which are Ex. C-4, Ex. C-5 & Ex. C-8 that demand of Rs. 1959/- , 221/- and 774/- respectively was made by the opposite parties from him. Contention of the learned counsel for the complainant is that no deficiency in service on the part of the opposite parties is proved.<br /> 8. Mr. Brar, learned counsel for the opposite parties vociferously argued that the documents Ex. R-1 to Ex. R-13 prove theft of energy and unauthorised use of electricity. Accordingly, impugned notice is quite legal and valid.<br /> 9. We have given our thoughtful consideration to the rival arguments.<br /> 10. Version of the opposite parties is that on the basis of the report of meter inspector, meter installed in the premises of the complainant was removed on 15.1.07 on the basis of Meter Change Order dated 20.12.06, copy of which is Ex. R-3. In case three numbers M.E. Seals were tampered with and M.E. Seal as shown at point 'A' was missing at the time when meter was removed, prima facie observations could be given by Sh. Wazir Singh, J.E. If meter was duly packed in the cardboard box and was sealed, atleast note could be given by the officer who removed the meter on the Meter Change Order to this effect. Sh. Wazir Singh, in his affidavit Ex. R-10 claims that he had removed the meter on the basis of Meter Change Order and that inadvertently, the date of paper seal has been mentioned as 30.9.06 instead of 15.1.07. Opposite parties have proved a copy of the specimen seal allegedly shown to have been used for sealing the packed meter and the same is Ex. R-2. A perusal of the same reveals that this paper seal is dated 30.9.06 and it has been signed by one Ramesh Kumar on behalf of the consumer and Ranjha Ram on behalf of the opposite parties. Affidavit of Sh. Wazir Singh that inadvertently the date of paper seal has been mentioned in 30.9.06 instead of 15.1.07 is not supported by the affidavit of Ranjha Ram as he nowhere states that infact date 30.9.06 has been inadvertently recorded on the paper seal instead of 15.1.07. Meter Change Order is 20.12.06. Meter has been shown to have been removed on 15.1.07. Meter Change Order does not bear the signature of the complainant. Meter has been shown to have been checked in the M.E. Laboratory on 16.4.07 as is evident from Ex. R-2. Even in the M.E. Laboratory report, paper seal affixed on the box has been shown 611159 dated 30.9.06, In case date was inadvertently recorded on the paper seal as 30.9.06, opposite parties could atleast issue notice to the complainant that it has been inadvertently wrongly recorded as 30.9.06 instead of 15.1.07. This could be done atleast before 16.4.07 when meter has been shown to have been checked in the M.E. Laboratory. Evidence to this effect is lacking. Date recorded as 30.9.06 on the paper seal specimen copy of which is Ex. R-1, does not in any way co-incide with the date of Meter Change Order or with the date of removal of the meter which are 20.12.06 and 15.1.07. Had the date on paper seal been 15.1.05 or 15.1.08,. some weight could be attached to the affidavits of S/Sh. Sarabjit Singh and Wazir Singh on this aspect of the matter. Date recorded as 30.9.06 on the paper seal can by no stretch of imagination be said to have been recorded due to the inadvertence. Hence, fact remains that either there is something else behind the story which has been concealed by the opposite parties or meter was not packed and sealed at the spot on 15.1.07. Another question is as to whether meter was packed and sealed in the presence of the complainant. As per observations on the paper seal, copy of which is Ex. R-1, it was packed and sealed in the presence of the complainant/consumer. This fact is belied from the fact that paper seal does not bear the signatures of the complainant. Rather it has been signed by one Ramesh Kumar as consumer. So far as statement of Sh. Wazir Singh is concerned, he in his affidavit Ex. R-10 simply states that meter was removed in the presence of consumer/complainant. He does not name Ramesh Kumar whereas in Ex. R-11 Ranjha Ram ALM states that seal No. 611159 was fixed by him and Ramesh Kumar representative of the complainant. It is not known as to how and in what manner Ramesh Kumar is/became representative of the complainant.<br /> 11. Opposite parties have attempted to prove that notices were served upon the complainant through his representative before checking the meter in the M.E. Laboratory. Copies of the notices are Ex. R-4 & Ex. R-5. They have been shown to have signed by Tarsem Lal and Angrej respectively. Opposite parties have also proved an application of one Tarsem Kumar as Ex. R-6 showing that Atta Chakki is on lease basis with him. Sarabjit Singh has also stated that it is on lease basis with Tarsem Kumar. As mentioned above, there is no agreement of lease. There is no independent evidence on this aspect of the matter. Complainant has categorically denied giving of Atta Chakki on lease. Affidavit of the meter reader who was going for checking the reading from the meter could be placed and proved on record to show that he used to see Tarsem Kumar running Atta Chakki on behalf of the complainant and that Angrej is also employee of Tarsem Kumar. Tarsem Kumar could be examined by the opposite parties before this Forum or his affidavit could be obtained and proved before this Forum in support of their version. No reason has been assigned as to why notices sent to the complainant could not be served upon him. Official who went for getting the service of the notices effected has not been examined to show that an attempt was made to contact the complainant but its service could not be got effected and Tarsem Kumar and Angrej were found as his representative. Accordingly, notices were served upon them.<br /> 12. It is not the plea of the opposite parties that meter installed in the premises of the complainant was not checked by their officials since long. As per M.E. Laboratory report, meter was found tampered. Meter body was opened. In order to remove the evidence of tampering with the M.E. Seals and meter body, meter was intentionally burnt. Had the meter been not checked by the official of the opposite parties since long before removal, some weight could be given to this plea of the opposite parties.. It is also worth mentioning that there could be various reasons for burning of the meter. Contention of the learned counsel for the complainant that action against the complainant is due to the revengeful attitude of the opposite parties, cannot be thrown to the winds. In the facts and circumstances, story of the opposite parties that meter was burnt in order to conceal the tampering of the M.E. Seals and meter body, does not sound to reason. If meter was burnt, how PVC tape could remain in existence on the counter of the meter. All this is hotch-potch which does not appeal to logic. In view of our forgoing discussion, we have no hesitation in concluding that there is contravention of commercial circulars No. 45/97 and 8/99 and subsequent circulars regarding packing and sealing of the removed meter and their checking in the M.E. Laboratory.<br /> 13. In the premises written above, crux of the matter is that opposite parties have failed to prove unauthorised use and theft of electricity by way of leading satisfactory cogent and convincing evidence. Accordingly impugned notice dated 11.5.07, copy of which is Ex. C-2 is illegal, arbitrary and is liable to be set aside. Deficiency in service on the part of the opposite parties in raising the demand on its basis is proved. Complainant is not liable to pay this amount. Complainant is craving for compensation of Rs. 20,000/- on account of mental tension, harassment and botheration. In our view, he deserves some compensation in this case due to the act and conduct of the opposite parties, which we assess as Rs. 1,000/-.<br /> 14. No other point was urged before us at the time of arguments.<br /> 15. In the result, complaint is allowed against the opposite parties with cost of Rs. 1,000/-. Opposite parties are directed to do as under :<br /> i) Withdraw Memo No. 3754/55 dated 11.5.07, copy of which is Ex. C-2, as the same is illegal arbitary, null and void.<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 receipt of its copy 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 to record room. <br /> Pronounced :<br /> 20-09-2007 <br /> (Lakhbir Singh )<br /> President<br /> <br /> (Hira Lal Kumar )<br /> Member<br /> <br /> (Dr. Phulinder Preet)<br /> Member