DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 67 of 05-03-2008<br /> Decided on :06-05-2008 <br /> <br /> Prezi Lal aged about 65 years S/o Sh. Hant Ram, R/o H. No. 27586, Gali No. 25 Lal Singh Basti, Bathinda.<br /> .... Complainant<br /> Versus<br /> <br /> 1.Punjab State Electricity Board, The Mall, Patiala, through its Secretary<br /> 2.SDO/A.E.E., Sub Urban Sub Division, PSEB, Bathinda.<br /> <br /> ... Opposite parties <br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Sh. Lakhbir singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Sukhdarshan Sharma, Advocate.<br /> For the Opposite parties : Sh. J.D. Nayyar, Advocate.<br /> <br /> O R D E R<br /> <br /> LAKHBHIR SINGH, PRESIDENT<br /> 1. Complainant is holder of domestic electricity connection bearing account No. CB-43/326 with connected load of 2.10 KW. Meter installed in his premises was being checked from time to time but no defect was found. Memo No. 381 dated 27.2.08 was received by him vide which demand of Rs. 46,187/- has been raised although nothing is due towards him. It has been alleged in the memo that he was committing theft of electricity by directly putting wire from the main line after spreading the same from the roof. It is averred by him that he did not commit theft of energy. He assails the demand as illegal. According to him the wire was not packed in cardboard box nor sealed. His signatures were not obtained. Infact no checking was conducted much less in his presence . Previously amount of electricity consumption bills sent to him never exceeded Rs. 400/-. Period for which demand has been raised is not known. Meter installed in his premises is okay. Impugned memo does not relate to him as his parentage, correct address and other particulars including connected load etc., have not been reflected in the memo. He requested the opposite parties to withdraw the impugned memo but to no effect. In these circumstances, he alleges deficiency in service and has preferred this complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as 'Act') with the prayer that opposite parties be directed to withdraw memo or quash the same; pay him Rs. 15,000/- for mental tension, harassment and botheration besides cost of the complaint.<br /> 2. On being put to notice, opposite parties filed their version taking preliminary objections that complaint is not maintainable in the present form; complainant has no cause of action to file it; he has not approached this Forum with clean hands; this Forum has got no jurisdiction to entertain and try this complaint; once Assessing Officer assesses the amount, the remedy lies with Sub Divisional Magistrate ; complainant is not consumer; there is no consumer dispute and complaint is false and frivolous. On merits, they admit that electricity connection has been installed in the premises of the complainant. He is not paying the electricity consumption bills regularly. Inter-alia their plea is that connection was checked by their officials on 20.2.08 in the presence of his representative and on checking it was found that he by way of putting direct wire/kundi from the main line from the top of his roof, was indulging in theft of electricity and was consuming electricity in an unauthorised means. Checking report was prepared at the spot. As per provisions of Section 126 of the Indian Electricity Act and Commercial Circular No. 53/2006, Regulation no. 37 of Electricity Supply Code and Related Matters Regulation 2007, provisional Order of Assessment was passed raising demand of Rs. 46,187/- seeking objections within 7 days. Neither he made the payment of the demanded amount nor filed objections. As per procedure after receiving objections from him, he would have been provided opportunity to present his case before Assessing Authority. Assessing Authority could give relief after considering the objections. Provisional order has become final. They deny the remaining averments in the complaint. <br /> 3. In support of his averments contained in the complaint, complainant has produced in evidence four affidavits of S/Sh. Baldev Singh, Gurchand Singh and his own (Ex. C-1 to Ex. C-4) and photocopy of Provisional Order (Ex. C-5).<br /> 4. In rebuttal, on behalf of the opposite parties affidavit of Sh. Surinder Pal Singh, S.D.O. (Ex. R-1), photocopy of checking report (Ex. R-2) and photocopy of detail of consumption data (Ex. R-3) 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. Contention of the learned counsel for the opposite parties is that this Forum has got no jurisdiction to entertain and try the complaint as appellate authority after the amount is assessed is Sub Judicial Magistrate in whose jurisdiction premises are located. This argument is not acceptable. As per Section 3 of the Act, its provision are in addition to other remedy in the Law or provisions of 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 BSES Yamuna Power Limited Vs. Neeraj Kumar 2007 CTJ 300 CP (SCDRC) that Consumer Forums/Commissions have the jurisdiction not only to decide every kind of dispute under Electricity Act. 2003 but have also the jurisdiction to decide any question of Law arising from the provisions of the Act including the dispute under Section 135 relating to the allegations of theft of electricity and dishonest abstraction of energy. In these circumstances, complaint before Forum is maintainable.<br /> 7. Allegation of the opposite party is that connection of the complainant was checked by their official on 20.2.08 in the presence of the representative of the complainant and he was found committing theft of electricity. In such a case onus is upon the opposite parties to prove the allegation by way of leading cogent and convincing evidence. Theft is to be proved like a criminal charge. It cannot be said to have been established on the basis of presumptions and assumptions. In the reply of the complaint, opposite parties have not named the officer/official who was heading the checking party on 20.2.08 and who were the officials accompanying him. Opposite parties have proved affidavit Ex. R-1 of Sh. Surinder Pal Singh, Sub Divisional Officer who claims that he had checked the connection of the complainant in the presence of the representative of the complainant and that checking report was prepared at the spot. Copy of the checking report is Ex. R-2. So far as this affidavit is concerned, it stands amply rebutted with affidavits Ex. C-1, Ex. C-2 and Ex. C-3 which are of Baldev Singh, Gurchand Singh and the complainant respectively. They have all stated that no checking was done on 20.2.08. Complainant has also reiterated his version in the complaint in his affidavit Ex. C-4. There are other circumstances as well on the basis of which no reliance can be placed on the affidavit Ex. R-1. Plea of opposite parties is that complainant by way of putting direct wire/kundi from the main line from top of the roof was indulging in theft of electricity and was consuming electricity by way of unauthorised means. In case the complainant had connected the wire with the main line from the top of the roof, checking officer could take the wire into possession. No reason has been assigned as to why wire has not been taken into possession. Admittedly checking report has not been signed by the complainant and wire allegedly used for bye passing the electricity meter has not been taken into possession. In such a situation theft of electricity cannot be said to have been proved. For this we get support from the observations of the Hon'ble State Commission, Punjab in the case of Charan Singh Vs. PS.E.B. (Chairman) and another 2006(1) Judicial Report Consumer 206. In this case if complainant was committing theft of electricity. Checking officer could arrange photographs. Site could also be got videographed. Evidence to this effect is lacking. Procedure where theft of electricity by unauthorised means is detected has been given in Commercial Circular No. 53/2006. If theft of electricity was found by the checking officer, he could disconnect the supply forthwith. This has not been done. Apart from this, he was required to seal the meter/metering equipment as was found. This procedure was not adopted by the checking officer. Hence there is contravention of this mandatory circular of the Punjab State Electricity Board as well. In these circumstances, no weight can be attached to the affidavit Ex. R-1 particularly when there is violation of this commercial circular and it is amply rebutted with the evidence of the complainant. Neither in the complaint nor in the affidavit Ex. R-1 it has been disclosed by the opposite parties as to who was the representative of the complainant at the time of alleged checking. There is one column in the checking report for getting the signatures/thumb impression of the consumer/his representative. It appears that signature of some-one has been obtained. From Ex. R-2 it cannot be concluded that they are certainly the signatures of the representative of the complainant. Name of the person who has been shown to have signed are not properly legible. His father name and other particulars are not known. There is no material in the evidence of the opposite parties as to how that person was connected with the complainant. In the absence of any relation of that person in any capacity with the complainant, he cannot be termed as his representative. In these circumstances, plea that there was representative of the complainant at the time of checking is a doubtful affair.<br /> 8. From the facts, circumstances and the evidence discussed above, we are of the considered view that opposite parties have not established the theft of electricity by unauthorised means by way of leading cogent, convincing and satisfactory evidence. Accordingly, theft is not proved. When it is so, demand of Rs. 46,187/- raised by the opposite parties through Memo No. 381 dated 27.2.08 copy of which is Ex. C-5 is certainly illegal , arbitrary, null and void. Accordingly, it is set aside.<br /> 9. Now question arises as to which relief should be accorded to the complainant. As discussed above, demand is illegal and arbitrary and as such direction deserves to be given to the opposite party to withdraw Memo No. 381 dated 27.2.08 copy of which is Ex. C-5. Out of the demand raised by the opposite parties, a sum of Rs. 23,000/- has been deposited by the complainant on 10.3.08 vide book No. E Receipt No. 37 issued by the opposite parties. In the circumstances, direction deserves to be given to the opposite parties to refund this amount alongwith interest @9% P.A. from 10.3.08 till payment. Complainant is craving for compensation of Rs. 15,000/-. Act and conduct of the opposite parties must have caused him mental tension, harassment and botheration for which he deserves some compensation which we assess as Rs. 1,000/-.<br /> 10. 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. 381 dated 27.2.08 copy of which is Ex. C- 5.<br /> ii)Refund Rs. 23,000/- to the complainant alongwith interest<br /> @9% P.A. from 10.3.08 till payment.<br /> iii)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 copy of its receipt failing which the amount of compensation under Section 14(1)(d) of the act 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 /> 06-05-2008 (Lakhbir Singh )<br /> President<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br />