Raj Kumar complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 requiring the opposite parties to withdraw the illegal and unlawful charges of Rs.34,709/- raised vide letter memo No. 157 dated 23/1/2007 and to pay Rs.40,000/- as compensation for mental tension, harassment and inconvenience besides Rs.5,000/- as litigation expenses. <br /> 2. The complainant averred in his complaint that he is the consumer of the opposite parties having an electric connection of small power category bearing account No. SP-79/0109 for running a small Ice Factory for the exclusive self employment of the complainant. The meter at the premises of the complainant was installed in properly M.C.B. and seals of the M.C.B. never found broken or tampered at any time of the checking and the meter remained in the same condition as was installed. The meter from the premises of the complainant was removed by the opposite parties in May 2006 without disclosing any reason, whereas the meter was working properly. The complainant has received a letter memo No. 157 dated 23/1/2007 in which the opposite parties have charged an amount of Rs.34,709/- on account of alleged theft declared at M.E. Lab. with which the complainant never agreed. The complainant has gave a detailed reply of the above said letter vide his reply received in the office on 14/2/2007. The meter installed at the premises of the complainant remained in duly sealed MCB and the complainant has no access to the meter in any manner since the day of its installation. The meter at ME Lab was not checked properly on 11/1/2007 and working of the meter was not checked inspite of verbal request of the complainant as the meter was running fast and it is required as per PSEB rules to check the working of the meter in ME Lab. The complainant never interfered into the proper working of the meter to prevent it from registering actual consumption. The alleged theft case has been declared at ME Lab illegally, in violation of the standing instructions of the PSEB. The complainant requested the opposite party No.2 so may times to withdraw the illegal and unlawful charges of Rs. 34,709/-, but the opposite party No. 2 did not agree with the complainant, rather has threatened to disconnect the connection of the complainant in case the amount as charged is not deposited immediately which amounts to clear cut deficiency in services on the part of the opposite parties. The act and conduct of the opposite parties has caused a great mental tension and harassment to the complainant for which the complainant claims a sum of Rs.40,000/- as compensation from the opposite parties, besides above the complainant also claims a sum of Rs.5,000/- as litigation expenses from the opposite parties. Hence the present complaint. <br /> 3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 7/3/2007 complaint was admitted and notice was ordered to be issued to the opposite parties. <br /> 4. On receipt of the notice the opposite parties appeared through Sh. M.S.Brar Advocate and filed written reply taking preliminary objection that the complainant was indulging in theft of energy, so this Forum has no jurisdiction to hear and try the present theft case, as such the complaint is not maintainable. The complainant is not a consumer of the PSEB as he took SP-79/0109 connection for running an Ice Factory. The complainant is running the Ice factory for commercial purpose. So he is not the consumer of the PSEB. On merits the opposite parties admitted that connection bearing account No. SP-079/0109 was issued for running the Ice factory. The connection is being used for commercial purpose and earning a huge profit. So the complainant is not a consumer of PSEB under the Consumer Protection Act. It is wrong that the complainant is using the connection for self employment. The connection is being used for earning huge profit. So the complaint is not maintainable. The meter cup-board was not sealed. The meter of the complainant was removed vide meter change order No. 112/58509 dated 13/6/2006 affected on 28/6/2006. The meter was removed by Sh. Ashok Kumar JE and the meter was removed in the presence of the complainant. After removing the meter the same was sealed packed. The concerned JE and the complainant also signed the sealed parcel of the meter. It is correct that the notice vide memo No. 157 dated 23/1/2007 was issued and the same was served through the employee of the PSEB on 7/2/2007 and vide this notice the amount of Rs.34,709/- was charged. The detail of the amount charged was also given in the notice. The reason for charging the amount was also explained in the notice. The meter was sent to ME Lab Moga vide store challan No. 26 dated 11/1/2007 through Sh. Ashok Kumar, JE in sealed capacity. The meter was checked on 11/1/2007 in ME Lab Moga by Sh. Amarjit Singh Assistant Executive Engineer, ME Lab, Moga in the presence of Sh. G.S. Dhaliwal, Senior Executive Engineer, Enforcement, PSEB, Moga, JE ME Lab Moga and Sh. Ashok Kumar JE City Sub Division, PSEB, Faridkot. Sh. Raj Kumar complainant was also present at the time of checking the meter in the ME Lab Moga. After removing the meter from the sealed pack the meter was externally checked in the ME Lab and found all the three ME seals tamped and also found that there was no lash-wire in the upper seal. Ultrasonic welding was also found open. Also found crack in the meter's body. The consumer was indulging in the theft of energy. The checking report was prepared at site in ME Lab. Sh. Amarjit Singh, Assistant Engineer, ME Lab Moga, Sh. G.S. Dhaliwal Senior Executive Engineer (Enforcement) PSEB, Moga, JE ME Lab and Sh. Ashok Kumar JE City Sub Division, PSEB, Faridkot and Sh. Raj Kumar consumer signed the checking report. A copy of the checking report was also given to Sh. Raj Kumar. He signed the checking report. He also appended the note to the fact of the receipt of the copy of the checking report. The amount of Rs.34,709/- was charged due to theft of energy. It is admitted that the complainant submitted the reply to the notice given to him vide memo no. 157 dated 23/1/2007. The complainant vide his letter dated 14/2/2007 gave the evasive reply. The connected load of the complainant was 19.99 KW. In accordance with the rules and regulations of the PSEB accurate meter of the suitable capacity was installed in the premises of the complainant. The meter cub-board was not sealed. When the meter of the complainant was removed, the M.E. seals were found tampered. The M.E. seal of the meter was found broken. The consumer was found indulging in the theft of energy. The question of running the meter fast does not arise. After checking the meter in ME Lab the meter was again sealed packed and handed over to Sh. Ashok Kumar JE for safe custody. The amount has been charged as per rules and regulations of the PSEB so the question of withdrawing the amount of Rs.34,709/- does not arise. So there is no deficiency of service on the part of the opposite parties. The complainant is not entitled for any compensation of Rs.40,000/- and also not entitled for litigation expenses of Rs.5,000/- as he has filed this complaint on false and fictitious grounds. So the complaint be dismissed with heavy costs. <br /> 5. Both the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence his affidavit Ex.C-1, copy of memo No. 157 dated 23/1/2007 Ex.C-2, application dated 14/2/2007 Ex.C-3, meter sealing record Ex.C-4 and closed his evidence. <br /> 6. In order to rebut the evidence of the complainant the opposite parties tendered in their evidence affidavit of Sh. Charanjit Singh Mann AEE City Sub Division, PSEB, Faridkot Ex.R-1, copy of checking report dated 11/1/2007 Ex.R-2, copy of notice memo No. 157 dated 23/1/2007 Ex.R-3, copy of MCO No. 112/58509 dated 13/6/2006 effected on 28/6/2006 Ex.R-4, meter reading record Ex.R-5 to Ex.R-9, attested copy of memo No. 641 dated 2/6/2006 Ex.R-10 and closed their evidence.<br /> 7. We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file. Our observations and findings are as under.<br /> 8. Learned counsel for the complainant has submitted that the demand put forth by the opposite parties vide letter memo No. 157 dated 23/1/2007 to pay Rs.34,709/- as charges on account of theft is illegal, null and void. The complainant never committed theft of energy. The MCB was duly sealed by the opposite parties. The checking report in ME Lab was challenged by the complainant at the spot, same is illegal and liable to be set aside. <br /> 9. Learned counsel for the opposite parties submitted that the connection of the complainant was checked by the opposite parties on the basis of a complaint. MCO was effected and meter was removed by the officials of opposite parties in the presence of complainant and it was sealed packed. It was checked in the ME Lab in presence of the complainant. ME Lab found meter to have been tampered with, due to committing theft of energy by the complainant.<br /> 10. From the perusal of the written reply of the opposite parties it is made out in para No. 2 on merits that the meter cup board was not sealed, whereas the complainant got placed on file meter seal record Ex.C-4. As per this document of the opposite parties the meter cup board in respect of electric connection in question was sealed by the opposite parties on 8/4/2005. So it is not the case of the opposite parties that seals of the meter cup board were broken by the complainant. <br /> 11. From perusal of the MCO Ex.R-4 dated 13/6/2006 effected on 28/6/2006 it is made out that the complaint dated 30/5/2006 was received by Sh. K.D. Kumar AAE from PSEB, Patiala. The opposite parties acted upon the complaint Ex.R-10 and order thereof was passed with regard to change of the meter. It was alleged by the complainant that consumer was committing theft of energy being old employee of the PSEB. He used to collect the readings of the meter and is bent upon to burn the meter to destroy consumption of electricity so recorded in the meter. So electric connection was required to be checked to avoid loss of tariff to the PSEB. The opposite parties directed to collect data of last six months consumption of electricity alongwith status of the meter. Meter reader record in the month of May 2006 should be brought on the file. This order was issued to the R.A. by the opposite parties. R.A. on the same day i.e. 12/6/2006 ordered to issue MCO to replace the meter with electronic meter with facility of date download. MCO was effected on 28/6/2006. The compliance was required to be made and reported back to the opposite parties. <br /> 12. From perusal of the above noted order Ex.R-10 and MCO Ex.R-4 it is made out that at the time of removal of the old meter no physical appearance with regard to signs of tampering with of the meter have been mentioned. Even it is not a case of tampering with of the meter as per order on application Ex.R-10. It is a case of collecting of the reading of the meter inconnivance with the Meter Reader who might have recorded less readings resulting into collection of the meter readings at the end when the reading in the meter becomes excessive. The complainant have not burnt the meter. Readings shown in PSEB meter blank (S.P.) Ex.R-5 to Ex.R-9 are constant and continuous approximately during the relevant period of the working of the Ice Factory before and after change of the meter. The meter reading during the relevant period before and after change of the meter has no much and more variation which may lead to conclusion that the complainant had been collecting the reading of the meter at an appropriate stage to destroy reading of the meter. As per the impugned notice Ex.R-3 served by the opposite parties to the complainant the electric meter was checked in ME Lab Moga on 11/1/2007. ME seals of the meter were observed to have been tamper with the upper side on the meter. There was extruction of lash wire. The above noted facts were required to be noted in MCO Ex.R-4 as the same should related to physical appearance of the meter. So checking of the meter in ME Lab and findings the above note facts is not helpful to the opposite parties. Even the readings before and after change of the meter do not show if the complainant do not committing theft of energy. In such like circumstances the opposite parties held to have prepared case of theft on the basis of unfounded complaint and order thereof Ex.R-10. <br /> 13. As per Superintending Engineer (OP), Haryana State Electricity Board, Bhiwani and Another Versus Mrs. Shammi Paul, Manager and Warden, Baptist Senior Secondary School, Girls Hostel, Bhiwani reported in 1999 Judicial Reports Consumer-43 that theft of energy cannot be cannot be inferred or presumed simply because of the seals of the meter were found broken. Actual theft of energy is required to be proved. <br /> 14. In such like circumstances Haryana State Electricity Board Versus Mam Chand reported in 1-2007 (1) Consumer Protection Reporter-72 relied upon by the opposite parties is not helpful to the opposite parties in any manner as this is not a final judgment of the Hon'ble Supreme Court. Virtually the case has been remanded back to the State Commission for afresh disposal of the complaint in accordance with law and on the points formulated in the judgment. This authority is related to checking of the electric connection by the electricity board authorities who found the seals of the meter to be broken but in the present case there is no checking of the meter at the spot to infer commission of theft by the complainant. <br /> 15. Mrs. Kamalammal and another Versus Superintending Engineer, Vellore Electricity Distribution Circle and others reported in A.I.R.-2000 Madras-76 relied upon by the opposite parties is not helpful to them. It is not the case of the opposite parties that recorded consumption found in the electric connection was very much less than that of the load connected. As per this authority the consumer have replaced original meter seals with bogus seals. So the opposite parties cannot be take benefit of this authority.<br /> 16. M.P. Electricity Board, Jabalpur and others Versus Harsh Wood Products and another reported in A.I.R. 1996 Supreme Court- 2258 relied upon by the opposite parties is having different facts and circumstances than that of the case in hand, as this case is related to disconnection without giving hearing to the consumer on the ground that prima facie consumer was committing theft of energy. This case is related to missing of seals from meter terminal cover, body seals of the meter stood tampered with. There is no physical observation in the MCO in the present case. So this authority is not helpful to the opposite parties. <br /> 17. 1. Jagannath Singh alias Jainath Singh (In Cr. A. No. 76 of 1963) and 2. Sohari Lal (In Cr. A. No. 130 of 1963) Versus B.S. Ramaswamy (now Krishna Murthy) and another (In both the Appeals) reported in A.I.R-1966 Supreme Court-849 is related to exposer of stud whole by breaking the seals permitting insertion of foreign material inside the meter retarding the rotation of inside disc, to prevent the meter from duly registering the energy supply, whereas case in hand is not having these facts and circumstances. So this authority is not helpful to the opposite parties. <br /> 18. M/s. S.B. Industries Versus Punjab State Electricity Board and another reported in 2002(1) Consumer Law Today-391 is based on reporting of the theft by enforcement authorities who found scratches on the index plate of the meter. The clump fixed on the MCB glass was also found broken at the spot. There is no such report on the file by the Raiding party in the case in hand. So this authority is not helpful to the opposite parties in any manner. <br /> 19. Ramjibhai Harjibhai Versus Gujarat Electricity Board and another reported in AIR-2000 Gujarat-225 is based on the admission with regard to tampering with of the meter for theft of energy by the consumer at the time of inspection of the meter. There is no such inspection or admission in the case in hand. Facts and circumstances of the case in hand are quite different than that of the facts and circumstances in the above noted authority relied upon by the opposite parties. <br /> 20. Sulakhan Singh Vs Punjab State Electricity Board 2002(1) CLT-305 is related to scratches on the index plate of the meter, a pin and some rubber pieces stood inserted in the meter which were by the enforcement squad of the PSEB at the time of checking of connection whereas in present case there is no spot inspection even it is not a case of opposite parties that complainant have controlled running of meter in any manner. <br /> 21. Haryana State Electricity Board Versus Om Parkash Goel reported in II (1997) Consumer Protection Judgments-570 is related to reporting of the tampering with of the glass of the electricity meter by the Meter Reader. To rebut the case of the opposite parties the plea of the consumer that wooden ladder caused to fall by the negligence of the employee of the complainant which resulted into break of the glass was held to be after thought story of the consumer. There is no such situation in report in the case in hand. <br /> 22. From the above noted facts it is made out that the opposite parties have not been able to prove commission of theft of energy by the complainant. Opposite parties also have not been able to prove if the complainant had been collecting consumption of meter reading by showing less reading of the meter inconnivance with the Meter Reader. Even within the sealed MCB there is no chance of commission of theft of energy. If meter is found tampered with within the sealed MCB than it can be said that the opposite parties have installed meter or originally in the same condition , there is no record of record of physical verification of the condition of the meter originally installed to the knowledge of the complainant. <br /> 23. The complainant is using the electric connection to run Ice Factory for his exclusive self employment so complainant is consumer of the opposite parties. The opposite parties are deficient in services to be provided by them to the complainant as the opposite parties have sent unfounded, illegal and unlawful memo No. 157 dated 23/1/2007 Ex.R-3 for payment of amount of Rs.34,709/-. <br /> 24. In view of the aforesaid circumstances the complaint is accepted. Accordingly the opposite parties are directed to withdraw the memo No. 157 dated 23/1/2007 vide which the opposite parties demanded Rs. 34,709/- from the complainant, within the period of one month from the date of the receipt of the copy of this order. There is no order as to costs. If any, amount already deposited by complainant with regard to impugned memo No. 157 dated 23/1/2007 for Rs.34,709/-, the same be refunded to the complainant or adjusted in the subsequent bills. Copies of the order be sent to the parties free of costs. File be consigned to the record room. <br /> Announced in open Forum:<br /> Dated: 28/11/2007