DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C.No.129 of 15.5.2007<br /> Decided on : 24.8.2007<br /> <br /> 1. Vidya Devi W/o Late Sh. Harbans Lal;<br /> 2. Arun Kumar S/o Late Sh. Harbans Lal, both residents of House No. 4530, Gali Sewa Ram, Bathinda, Tehsil and District Bathinda.<br /> .....Complainants<br /> Versus <br /> <br /> 1. Punjab State Electricity Board through its Chief Engineer, Bathinda.<br /> 2. Assistant Executive Engineer/SDO, City Sub Division, Punjab State Electricity Board, Bathinda. <br /> ...... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> <br /> Sh. Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Sandeep Baghla, Advocate<br /> For the opposite parties : Sh. Inderjit Singh, Advocate<br /> <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. This complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred by the complainants seeking direction from this Forum to the opposite parties to set-aside memo No. 653 dated 9.4.2007 through which demand of Rs. 86,147/- has been raised; refund any part of the impugned amount if deposited during the pendency of the complaint alongwith interest @ 18% P.A and pay Rs.10,000/- as compensation for mental tension, agony, botheration and harassment undergone by them, besides costs of the complaint.<br /> 2. Version of the complainants as emanates from the complaint itself culminating into the filing of this complaint may be epitomized as under :-<br /> Electricity connection for running shop of readymade garments was applied for to the opposite parties in the name of complainant No.2. Connection bearing A/c No. DB-35/352 was released and installed in the premises of the complainants. It is being used by them for their livelihood by way of self employment. Complainant No. 2 is assisting complainant No. 1 in carrying on the business being her son. Electricity bills issued from time to time were regularly paid. Status of the meter was 'O' which means okay. There was no necessity to replace it. Officials of the PSEB (Here-in-after referred to as Board) were visiting the premises for meter reading and other purposes. Opposite parties replaced the meter on the ground that as a matter of policy, all the meters are to be changed with electronic meters. Meter which was replaced from the premises was lying installed in a sealed meter cover box (MCB). To their dismay and surprise, they (complainants) received memo No. 653 dated 9.4.2007 from the opposite parties vide which they raised demand of Rs. 86,147/- alleging theft of energy. Opposite parties were approached for getting the demand set-aside, but they did not accede to their request. To the contrary, threat was given by them to disconnect the electricity supply in case the amount was not deposited. They assail this memo as illegal, null and void, inoperative and not binding upon them on the grounds that there has been flagrant violation of the statutory provisions under the Electricity Act, 2003, regulations and circulars of the Board. Impugned memo is illusory and eye wash and without implementing the provisions of Section 126 of the Electricity Act. No personal hearing was afforded to them. Name of the Assessing Officer is not known. Demand is unilateral and arbitrary. Perusal of the impugned memo reveals that amount has been demanded on the basis of the checking in the M.E Lab, but no copy of the report of the M.E Lab has been served upon them. Alleged checking in the M.E Lab is contrary to the statutory provisions of the Board. Since the meter checked in the M.E Lab was okay prior to and at the time of its removal, there was no necessity to remove it. There was no suspicion of any alleged theft recorded at the spot at the time of removal of the meter as per Commercial Circulars Nos. 3/2003 followed by 18/2003, 49/2005 and 64/2005. Taking the meter to M.E Lab and alleged report are camouflage without any legal identity. Report cannot be looked into for charging any amount. Opposite parties are estopped from raising the demand by their act and conduct. Report is the outcome of the malafide intention of the officials of the opposite parties, who have acted in a mechanical and biased manner. Seals on the meter were found intact and there was no occasion to approach the meter. When meter was installed in a sealed MCB, there could be no approach to the meter. There was no substantive proof to establish theft. M.E Lab has exceeded its jurisdiction by alleging theft of energy when no defect or any alleged suspicion was recorded against the meter at the time of removal and the seals of the meter were found intact. Meter was not sealed nor its checking was done in their presence. Alleged checking has been made in a clandestine manner. Amount demanded is highly exorbitant and has not been assessed by the competent authority as per Section 26 of the Electricity Act and Commercial Circular No. 34/2006. Basis of charging the amount has not been given. Opposite parties have failed to provide adequate services. There is unfair trade practice on their part. Their act and conduct have caused them mental tension, agony and harassment. <br /> 3. Opposite parties filed their version taking legal objections that complaint is not maintainable in the present form; matter is liable to be referred to the Dispute Settlement Committee of the Board; complainants have not come with clean hands; they are estopped from filing the complaint by their act and conduct; complainant No.1 has got no locus-standi and cause of action to file the complaint; matter in controversy does not fall within the ambit of the Act and complaint is false and frivolous. They admit that connection No. DB-35/352 has been installed in the name of complainant No.2. As per policy of the Board, old meter installed in the premises of the complainant was replaced with an electronic meter vide MCO NO. 64864/130 dated 6.9.2006 effected on 14.2.2007 in the presence of complainant No. 2. Old meter was packed and sealed in card board box in the presence of the connection holder as per rules. It was sent to M.E Lab for checking. Connection holder was informed to come present in the M.E Lab on 23.2.2007 for getting the meter checked in his presence. One Pardeep Kumar had come present in the M.E Lab on that day for getting the meter checked in his presence. Seals of the card board box were shown to the representative of the connection holder i.e. Pardeep Kumar. He was satisfied regarding their intactness. He had appended signatures at point 'A' on the report. Thereafter, meter was taken out from the card board box. All the four M.E seals were found tampered. It was observed that connection holder by way of tampering the seals and by opening the meter body had been controlling consumption reading by illegal means. It was a case of theft of energy. Detailed report report was prepared in the M.E Lab in the presence of Pardeep Kumar, who had signed the checking report. Its copy was supplied to him. Meter was repacked and handed over by the officials of the M.E Lab to concerned J.E. Accordingly, memo No. 653 dated 9.4.2007 whereby demand of Rs. 86,147/- was raised was issued which is legal and valid. They deny that memo is illegal, null and void and not binding upon the complainants on the grounds mentioned in the complaint. They do not admit remaining averments in the complaint. <br /> 4. In support of their allegations and averments in the complaint, complainants have tendered into evidence affidavits (Ex.C.1 & Ex.C.12) of Sh. Arun Kumar complainant, photocopies of bills (Ex.C.2 to Ex.C.10), photocopy of memo dated 9.4.2007 (Ex.C.11), photocopy of MCO dated 6.9.2006 (Ex.C.13) and photocopies of pages No. 710 and 690 of ledger (Ex.C.14 & Ex.C.15).<br /> 5. On behalf of the opposite parties, reliance is placed on affidavits (Ex.R.1, Ex.R.2 & Ex.R.9) of S/Sh. R.K. Singla, SDO, Tajinder Pal Bedi, J.E and Gurmail Singh, J.E respectively, photocopy of MCO dated 6.9.2006 (Ex.R.3), photocopy of provisional order of assessment dated 9.4.2007 (Ex.R.4), photocopy of one page of register (Ex.R.5), photocopies of Performance Record of Electronic Meters (Ex.R.6 & Ex.R.7) and photocopy of M.E Lab report (Ex.R.8). <br /> 6. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted by the parties. <br /> 7. One of the objection taken by the opposite parties is that complainant Vidya Devi has no locus-standi and cause of action to file the complaint. There is considerable force in it. She is not the connection holder as is evident from the copies of the electricity consumption bills which are Ex.C.2 to Ex.C.10. Connection is in the name of complainant No.2. Even complainants in para No. 1 of the complaint have averred that connection was applied for in the name of complainant No.2. Impugned memo dated 9.4.2007, copy of which is Ex..C.11, has been issued to him. Accordingly, complaint on the part of complainant No. 1 is not maintainable.<br /> 8. Mr. Baghla, learned counsel for the complainant vociferously argued that impugned memo No. 653 dated 9.4.2007, copy of which is Ex.C.11, through which demand of Rs. 86,147/- has been raised, is arbitrary, illegal, null and void on the grounds mentioned in the complaint. Opposite parties cannot claim the amount on its basis. <br /> 9. Mr. Inderjit Singh, learned counsel for the opposite parties argued that old meter from the premises of complainant No. 2 was removed as per policy of the Board vide MCO dated 6.9.2006, copy of which is Ex.R.3. It was effected on 14.2.2007 in the presence of the connection holder. Old meter was packed and sealed in the card board box in his presence under the rules. MCO was effected by Sh. Gurmail Singh, J.E whose affidavit is Ex.R.9. Sealed material was handed over by him to Sh. Tajinder Pal Bedi, J.E, who took it to M.E Lab for testing. Meter was checked in the M.E Lab on 23.2.2007 in the presence of Sh. Pardeep Kumar, brother of the complainant. Affidavit of Sh. Tajinder Pal Bedi is Ex.R.2. All the four M.E seals were found tampered and it was observed that connection holder by tampering the seals and by opening the meter body was controlling the consumption. In this respect, copy of the report of the M.E Lab is Ex.R.8 which was signed by Pardeep Kumar. Pardeep Kumar had also signed the performance record, copies of which are Ex.R.6 and Ex.R.7. In these circumstances, demand of Rs. 86,147/- raised by the opposite parties is quite legal and valid. <br /> 10. We have given our thoughtful consideration to the rival contentions. Allegation against the connection holder is that he was committing theft of energy. It is well settled principle that charge of theft being a criminal offence, has to be proved by way of leading convincing evidence. For this, reference may be made to the authorities Superintending Engineer Vs. Punjab Khapatkar Sangh (Regd.)-2005(2)CPC-407 and Punjab State Electricity Board & another Vs. Sham Sunder-2005(3)CLT-614. <br /> 11. Connection holder admits in the complaint that the meter installed in his premises was removed and electronic meter was installed. Admittedly, meter installed was a three phase meter. MCO dated 6.9.2006 was effected on 14.2.2007. Complainant alleges that old meter which was removed was installed in a sealed meter cover box (MCB). In the reply of the complaint, opposite parties do not deny the installation of the old removed meter in the meter cover box. Even in para No. 4 ( iii ), complainant has averred that meter was installed in a sealed MCB and there was no occasion to approach it. There is no specific denial of this para in the reply of the complaint. It has further been mentioned in the reply of para No. 4 ( iii ) that detailed reply has been given in the foregoing paras. In the entire foregoing paras of the reply of the complaint, there is nothing that removed meter was not in the sealed meter cover box. According to Commercial Circular No. 77/2001 dated 26.11.2001 where Meter Cup Board (MCB) has not been provided or if provided is not of the design approved by the Board, 30 days registered notice is to be issued by the field officer to such consumer for providing MCB of approved design, otherwise Board is to provide it at the cost of the consumer. In case, old meter installed in the premises of complainant No. 2 was not in the MCB, notice must have been served by the field officer of the Board upon him for providing MCB of approved design or in the alternative for making provision of the same by the Board at his cost. Fact that no such notice has been proved by the Board also leads us to infer that old meter was in the sealed MCB. Opposite parties are relying upon the affidavit Ex.R.9 of Sh. Gurmail Singh, J.E, who according to them effected the MCO. There is nothing in his affidavit that removed meter was not in the MCB. Similarly, there is no observation to this effect on the MCO. In such situation, how could complainant tamper the M.E seals of the meter, particularly when meter was in a sealed meter cover box.<br /> 12. As per version of the opposite parties, old meter installed in the premises of complainant No. 2 was removed as per policy of the Board and electronic meter in its place was installed. Policy of the Board regarding the replacement of electro-mechanical meters by electronic meters has been explained in its Commercial Circulars Nos. 3/2003, 18/2003, 49/2005 and 64/2005. Admittedly, in this case, meter was three phase one. According to Commercial Circular No. 64/2005, only upto maximum 5% of the total replaced three phase meters (undisputed cases) shall be packed in card board box duly signed by the concerned JE/AAE and this fact is to be mentioned in the MCO. It is further in this circular that it is mandatory that all the single phase and three phase meters being removed against any MCO (except those mentioned in para No. 4 ( i ) and 4( II ) above) shall be first checked by the concerned JE/AAE and only such meters shall be packed in card box board duly signed by the concerned JE/AEE and consumer or his representative which are removed under suspicion of theft or otherwise removed as disputed meters. It has also been laid down in this circular that consumer's account shall be overhauled only if there is a clear and undisputed evidence of theft and not merely on the basis of sluggishness of electro-mechanical meter which, in any case is bound to be there. In this case, fact has not been mentioned on the MCO, copy of which is Ex.R.3, that the removed meter of the complainant was out of maximum 5% of the total replaced three phase meters. Similarly, there is no note of the J.E or AAE on the MCO that removed meter from the premises of complainant No. 2 was removed on account of suspicion of theft or otherwise removed as disputed one. Hence, there is non-compliance of mandatory provisions of Commercial Circular No. 64/2005 in this case. Accordingly, removed meter from the premises of complainant No.2 could not be taken to the M.E Lab.<br /> 13. Another question is as to whether removed meter from the premises of the complainant was put in the card board box, sealed and got signed. Connection holder Arun Kumar in his affidavit Ex.C.1 reiterates his version in the complaint that meter was not sealed. Copy of the MCO (Ex.R.3) does not reveal that removed meter was put in the card board box and was sealed. No-doubt, in his affidavit Ex.R.9, Sh. Gurmail Singh, J.E has tried to explain that removed meter was duly packed in card board box and sealed with seal No. 7475, but there is nothing to this effect on the MCO. Specimen of the alleged paper seal No. 7475 has not been produced and proved by the opposite parties. From another angle as well, meter cannot be said to have been put in the card board box and sealed. As per MCO, the reading of the removed meter on 14.2.2007 was 47310. Meter has been shown to have been checked in the M.E Lab on 23.2.2007 on which day its reading has been shown as 47,370. From this, two inferences can be drawn. Either the removed meter was not put in the card board box and sealed or meter was subsequently tampered with at some stage before it was deposited in the M.E Lab. Opposite parties failed to furnish explanation for this discrepancy. When it is so, how can it be said that M.E seals if found tampered, were certainly tampered by the complainant. Copies of the electricity consumption bills are Ex.C.2 to Ex.C.10. In Ex.C.3, Ex.C.4 and Ex.C.6 to Ex. C. 10, the status of the meter has been recorded as 'O' which means okay. When the officials of the opposite parties described the status of the meter as 'O', how can it be said that its M.E seals were tampered with. In his affidavit Ex.C.1, complainant Arun Kumar has stated in so many words that Pardeep Kumar was not appointed by him as his authorised representative. Opposite parties have not established that any notice was served upon complainant No.2 for being present in the M.E Lab for getting meter checked in his presence. It is mandatory that testing of the meter in the M.E Lab should be done in the presence of the consumer or his representative. In the absence of any authorisation to Sh. Pardeep Kumar, he cannot be termed as his representative. According to Commercial Circular No. 64/2005, checking of the meter in the absence of the consumer or his representative can be done only after proper service of third and final notice to the consumer. Hence, on this aspect as well, there is contravention of this circular. Copy of the M.E Lab report dated 23.2.2007 says that all the four M.E seals were tampered with and consumer by way of tampering with these seals and opening the meter body, was unauthorisedly controlling the consumption. It is not the case of the opposite parties that any of their officials saw consumer controlling the consumption. It is not their case that meter was found stopped or running slow. They have not explained the mechanism of the meter which was used by the consumer for controlling the consumption. Opposite parties are required to prove the allegation of theft to the hilt. It cannot be said to have been established merely on the basis of presumptions and assumptions. <br /> 14. In view of our foregoing discussion, crux of the matter is that deficiency in service on the part of the opposite parties is writ large. Demand of Rs. 86,147/- raised by them is not justified. In the facts and circumstances of this case, impugned memo dated 9.4.2007 is certainly illegal, arbitrary and un-warranted. <br /> 15. Now question arises as to which relief should be accorded to the complainant As per discussion made above, direction deserves to be given to the opposite parties to withdraw memo No. 653 dated 9.4.2007 vide which demand of Rs. 86,147/- has been raised. Further direction should be given to the opposite parties to refund the amount of Rs. 43,000/- deposited as per order dated 17.5.2007 of this Forum out of the amount of Rs. 86,147/- demanded through memo dated 9.4.2007 alongwith interest @ 9% P.A from the date of deposit i.e. 22.5.2007 till payment. Complainant is craving for compensation of Rs. 10,000/- for mental tension, agony, botheration and harassment. Facts and circumstances of this case warrant that it is a fit case where some compensation to the complainant be allowed. Accordingly, we assess compensation on this count as Rs.1,000/-. For this, we are fortified by the observations of Hon'ble State Commission of Madhya Pradesh in the case of J.Radhakrishnan Vs. A Basheera & Another-2001(2)CLT-225(M.P.) wherein it has been held that award of compensation always involves some sort of speculation and it is very difficult to quantify the amount of compensation on a rationale basis.<br /> 16. No other point was urged before us at the time of arguments.<br /> 17. In the result, complaint of the connection holder i.e. Arun Kumar is accepted against the opposite parties with costs of Rs. 1,000/-. Opposite parties are directed to do as under :-<br /> ( i ) Withdraw memo No. 653 dated 9.4.2007 through which demand of Rs. 86,147/- has been raised.<br /> ( ii ) Pay Rs. 1,000/- as compensation to the complainant under section 14 (1)(d) of the Act.<br /> ( iii ) Refund Rs.43,000/- deposited by the complainant as per order dated 17.5.2007 of this Forum alongwith interest @ 9% P.A from 22.5.2007 till payment.<br /> ( iv ) Compliance within 30 days from the date of receipt of copy of this order, failing which amount of compensation of Rs.1,000/- would carry interest @ 9% P.A till payment.<br /> 18. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 24.8.2007 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member <br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member 'bsg' <br /> <br /> <br /> <br /> <br />