BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT.

Complaint No. : 69

Date of Institution : 17.3.2010

Date of Decision : 10.9.2010

Sadhu Ram aged about 52 years S/o Jagan Nath r/o Prem Nagar, Kotkapura, Tehsil and District Faridkot.

...Complainant

Versus

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

2. Assistant Executive Engineer, PSEB, Suburban Sub Division, Kotkapura District 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. Ashu Mittal counsel for the complainant.

Sh. Rajneesh Garg counsel for the opposite parties.

ORDER

Complainant has filed the present complaint against the opposite parties for demanding illegal amount of Rs. 7435/- vide notice No. 535 dated 15.3.2010 issued to the complainant pertaining to Account No. F 46 KL 530113M and for directing the opposite parties to withdraw the said notice, replace the burnt meter and to pay Rs. 20,000/- as compensation on account of harassment and mental agony besides costs of the complaint.

2. Briefly stated, the case of the complainant is that the connection No. F 46 KL 530113M is an NRS account and the meter has been installed outside the shop of the complainant. The complainant uses the electricity for his small shop which the complainant runs as a means of self employment, so the complainant is consumer of the opposite parties. On 10.3.2010, the complainant accidentally noticed that the meter pertaining to the above mentioned account number was not working and the complainant immediately informed the opposite party No. 2 and requested the opposite parties to replace the meter with a new one and an official of the opposite parties visited the spot where the meter was installed. On 16.3.2010, the complainant received a notice No. 535 dated 15.3.2010 in which he was asked to pay Rs. 7435/- on account of theft of energy. The complainant approached the opposite party No. 2 to enquire about the cause of demanding such huge amount from him and was explained that the above mentioned connection was non functional as per his own report. Moreover, the meter was recording correct consumption up to 14.12.2010 when the bill of this date was issued and the status of the meter was also shown correct, so the question of theft of power does not arise. Apart from this the meter has been installed outside the premises in open street and it is the responsibility of the opposite parties to keep it safe and intact. The complainant requested the opposite party No. 2 to withdraw the illegal notice and to replace the meter but the opposite party declined the genuine request of the complainant rather threatened to disconnect electricity supply if the amount in notice was not deposited, which amounts to deficiency in service and unfair trade practice. Complainant is also entitled for compensation of Rs. 20,000/- and costs of the complaint. Hence this complaint.

3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 18.3.2010 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 present complainant does not fall under the definition of consumer, so the present complaint is liable to be dismissed. The present connection is being used for commercial purpose. On merits, it is admitted that present connection is working and the same is being used in the shop. The connection of the complainant was checked by AEE alongwith his team on 10.3.2010 in the presence of complainant and during checking it was found that the meter was burnt and the complainant had tampered with the seals of the meter and it was a theft case. The checking report was prepared at the spot. The copy was supplied to the complainant who signed the same in token of its correctness after receiving the copy thereof. The detail checking was done. Load of the shop was also checked. It is denied if the complainant noticed any defect in the meter. The amount has been calculated as per rules and regulations. 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 his affidavit Ex.C-1, notice No. 535 dated 15.3.2010 Ex.C-2, copy of bill dated 14.2.2010 Ex.C-3, copy of application dated 10.3.2010 Ex.C-4, copy of receipt for Rs. 2500/- Ex.C-5 and closed his evidence.

6. In order to rebut the evidence of the complainant the opposite parties tendered in evidence affidavit of V.K. Bansal Ex.R-1, copy of checking report dated 10.3.2010 Ex.R-2, affidavit of Baljit Singh Ex.R-3 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. Learned counsel for complainant has vehemently argued that complainant is using electricity through the account number in question for a small shop being run by him for self employment. His electric meter was burnt so he had made a written request to the opposite parties for its replacement on payment. However, on alleged checking report Ex.R-2 officers of opposite party has made a case of theft of energy stating that ME seal of the meter was tampered which by itself is not a determining factor to prove theft of energy.

9. Learned counsel for the opposite parties however challenged the aforesaid contentions besides stating that complainant is not consumer of the opposite parties as he is having NRS account and is running a shop for commercial purpose. Further, electricity meter was checked in his presence under his signatures on the checking report on 10.3.2010 on which date written letter of request has been claimed to have been made to the opposite parties. Checking report is proved by SDO by way of his affidavit Ex.R-1. Demand was sent thereafter for payment of amount arrived at on account of theft of energy by the complainant and no representation against it was made by him. In this way, theft of energy is proved and the complaint made by the complainant is liable to be dismissed.

10. We have considered the rival contentions in the light of evidence on record. Information-cum-written request for replacement of meter on payment through Ex.C-4 is proved to have been received in the office of opposite party from the writing atop and at the bottom of Ex.C-4 itself. Though this letter is claimed to have not been received by the opposite party in their office but interestingly the same was never objected to at the time of its tendering. Otherwise also, it bears repetition that the writing atop the letter and at its bottom clearly proves its receipt in the office of the opposite parties. There is no denial of the fact that the checking was made in the presence of the complainant as is evident from his signatures at appropriate place of checking report Ex.R-2 itself. But mere tampering of ME seals that too in regard to an electric meter which is also noted as burnt one by themselves are not sufficient to determine theft of energy in the present case. In our considered opinion tampering of meter in the manner stated in the checking report is not established particularly in the absence of any ME Lab report or other variation noted therein.

11. In so far as the fact complainant being not consumer in view of the commercial running of his business in the shop in question is concerned, no cogent, reliable evidence in this regard has been produced by the opposite parties. Otherwise also, self employment of a person carrying on business with the support of one or two helpers cannot be termed as a business being run for commercial purpose as held by the Hon'ble UT Commission, Chandigarh in judgment titled as Hardeep Singh Vs. Frontier Trading & Ors. 1 (2005) CPJ-645. In support of the conclusion that mere allegations of tampering of seals by itself is not proof that there was theft of energy reference can be made to the judgment of Hon'ble UT Commission, Chandigarh in Sub Divisional Officer, Electricity Operation Sub Division No. 10 Versus S.P. Gupta 2007 (1) CPC-639.

11. Therefore, in view of the aforesaid observations and findings, the complaint filed by the complainant is accepted. Accordingly, the opposite parties are directed to withdraw the amount of Rs. 7,435/- charged by them vide letter No. 535 dated 15.3.2010 from the complainant 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. 7,435/- vide letter No. 535 dated 15.3.2010 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 record room.

Announced in open Forum:

Dated: 10.9.2010

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