Punjab

Ludhiana

CC/20/149

Neeru Bala - Complainant(s)

Versus

Punjab state Power Corporation Limited - Opp.Party(s)

Sanjay Vashisht

05 Jun 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:149 dated 20.08.2020.                                                         Date of decision: 05.06.2023.

 

Neeru Bala w/o. Ajay Kumar, P G4/733, St. No.8, Santokh Nagar, Ludhiana-141008.                                                                                                                                                                                         .…Complainant

                                                Versus

1. Punjab State Power Corporation Limited, Sub Division East City, Sunder Nagar, Ludhiana through its XEN.
2. Punjab State Power Corporation Limited, Head Office: The Mall, Patiala through its Chairman.

…..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. M.S. Sethi, Advocate.

For OPs                          :         Sh. G.S. Pahwa, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the complaint are that the complainant is the registered account holder of electricity account No.3004597894 under MS tariff being used for running small scale hosiery basis manufacturing unit for earning self employment and livelihood. The complainant has been paying regular consumption charges on the basis of bills issued by the opposite parties. The complainant stated that vide letter dated 06.09.2019 he requested the opposite parties to check the meter as the blink light was not working upon which the opposite parties checked the meter on 17.10.2019 against which CR was also prepared  by mentioning that the TB was burnt and meter required to be replaced. As per CR the load was not checked. The complainant further stated that he received a demand letter dated 08.07.2020 from opposite parties claiming Rs.1,65,576/-. The complainant visited the office of opposite party No.1 and demanded clarification regarding charges of Rs.1,65,576/- and further requested to waive the illegal amount but the opposite party denied to waive any amount. The opposite parties verbally informed the complainant that the said amount was charged for the period of 08.07.2019 to 16.10.2019 (100 days) on the basis of average against the period of 09.07.2018 to 17.10.2018 as per recommendation of the audit party vide their report dated 19.06.2020 to which they have no right to claim as the opposite parties nowhere stated that the meter was found not working at any stage nor at the time of checking dated 17.10.2019 or in the ME lab checking dated 18.01.2020. According to the complainant, the opposite party itself recorded the working of the meter in the previous bills i.e. 05/2019, 07/2019 etc. The audit party revised the account just on the basis of meter burnt which is not justified as the meter in question has not been found dead/non-working for the entire period 08.07.2019 to 16.10.2019 and the meter was changed on the basis of TB burnt (Terminal Bock). The complainant further stated that at the time of removing the meter, it was inside the meter cup board and all seals were intact. The opposite party can charge maximum the average for the period Sep 2019 (30 days) only. The complainant further stated that the meter was not checked in ME Lab in his presence nor any notice was served before checking. Charging of average consumption units from 08.07.2019 to 16.10.2019 claimed by the opposite parties on the basis of audit report are not in accordance with actual charging of units as per regular bills issued by the opposite parties which amounts to deficiency in service and unfair trade practice on the part of the opposite parties. In the end, the complainant prayed for quashing the demand of Rs.1,65,576/- raised by opposite parties vide letter dated 08.07.2020 and to refund the deposited amount  with interest and also to pay compensation of Rs.25,000/- and litigation expenses of Rs.11,000/-.

2.                Upon notice, the opposite parties appeared and filed joint written statement by taking preliminary objections that the complaint is not maintainable, lack of jurisdiction and there is no deficiency in service on their part. The opposite parties alleged that the complainant is the holder of medium supply electric connection with sanctioned load of 39.4 KW (40.00 KVA) and used for commercial purposes and as such, she does not fall within definition of consumer under Consumer Protection Act. the complainant herself moved an application to check the meter and on her request, the premises was checked on 17.10.2019 by Senior Executive Engineer, Sunder Nagar Division (Special) & A.E.E. Tech, Unit-1, Sunder Nagar Division, Punjab State Power Corporation Limited, Ludhiana who found that due to burning of incoming lead of the red phase the terminal block has burnt. The checking was made in presence of Sh. Ajay Kumar, husband of the complainant. The opposite parties further stated that on the basis of checking report, the audit party vide its half margin No.1271 dated 19.06.2020 pointed out that the amount was charged less to the complainant during the period 07.08.2019 to 16.10.2019 and while taking the average of the same period of the previous year, the accounts of the complainant were overhauled as due to burning of the terminal block, the meter installed at the premises of the complainant was recording less energy. The accounts were overhauled as per rules while taking the average of the same period of the previous year and the demand of Rs.1,65,576/- was raised. The complainant admittedly consumer the electricity during  that period and has not paid the actual charges of the electricity consumer due to burnt meter and accounts were rightly overhauled for which the complainant is liable to pay the amount in question.

 

 

 

                   On merits, the opposite parties reiterated the crux of averments made in the preliminary objections. The opposite parties stated that demand letter dated 08.07.2020 for Rs.1,65,576/- was rightly sent as the same relates to the consumption charges. The opposite parties have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                In support of her claim, the complainant tendered her affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of application dated 06.09.2018 of the complainant, Ex. C2 is the copy of memo No.1899 dated 08.07.2020, Ex. C3 is the copy of half margin No.1271 dated 19.06.2020, Ex. C4 is the copy of consumer checking register, Ex. C5 is the copy of bill dated 19.06.2020, Ex. C6 is the copy of bill dated 25.07.2019, Ex. C7 is the copy of bill dated 20.08.2019, Ex. C8 is the copy of bill dated 17.10.2019 and closed the evidence.

4.                On the other hand, counsel for opposite parties tendered affidavit Ex. RA of Er. Baljinder Singh Sidhu, Additional SE, Sunder Nagar Division (Special), PSPCL, Ludhiana along with documents Ex. R1 is the copy of  consumer checking register, Ex. R2 is the copy of detail of charges, Ex. R3 is the copy of store challan No.5775 dated 18.01.2020, Ex. R4 is the copy of job order for device replacement, Ex. R5 is the copy of  memo No.1899 dated 08.07.2020 and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.      

6.                Undisputedly, the complainant is the holder the electric connection bearing account No.3004597894 in respect of which the outstanding consumption charges of Rs.1,65,576/- were due. The complainant has alleged that the demand made by the opposite parties is illegal as she had been regularly paying all the previous bills of her account number and the opposite parties can charge maximum the average of the period September 2019 (30 days), but the complainant has failed to pin point how the demand made by the opposite parties is illegal and what are the provisions/rules and regulations which have not been complied with by the opposite parties before issuing the bill of additional demand of  Rs.1,65,576/- The complainant has failed to discharge the intial onus of deficiency in service on the part of the opposite parties. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

7.                On the other hand, the counsel for the opposite parties has contended that due process was followed before making addition of Rs.1,65,576/- as short assessment as per rules and regulations of Punjab State Power Corporation Limited. He has drawn the attention of this Commission towards rule 21.5.2 of Electricity Supply Instructions Manual of PSPCL, which is reproduced as under:-

          21.5.2         Defective (other than inaccurate)/Dead Stop/Burnt/Stolen                            Meters.

The accounts of a consumer shall be overhauled/billed for the period meter remained defective/dead stop and in case of burnt/stolen meter for the period of direct supply subject to maximum period of six months as per procedure given below:

a) On the basis of energy consumption of corresponding period of previous year.

b) In case the consumption of corresponding period of the previous year as referred in para (a) above is not available, the average monthly consumption of previous six (6) months during which the meter as functional, shall be adopted for overhauling of accounts.

c) If neither the consumption of corresponding period of previous year (para-a) nor for the last six months (para-b) is available then average of the consumption for the period the meter worked correctly during the last 6 months shall be taken for overhauling the account of the consumer.

d) Where the consumption for the previous months/period as referred in para (a) to para (c) is not available, the consumer shall be tentatively billed on the basis of consumption assessed as per para -4 of Annexure-8 and subsequently adjusted on the basis of actual consumption recorded in the corresponding period of the succeeding year.

e) The energy consumption determined as per para (a) to (d) above shall be adjusted for the change of load/demand, if any, during the period of overhauling of accounts.

8.                Further the reading of document Ex. R2 shows that the calculation was made in accordance with the provisions of law and same were duly communicated to the complainant. As such, the demand of Rs.1,65,576/-  is legal and valid and there is no deficiency in service or unfair trade practice on the part of the opposite party.

9.                Reference can be made to Civil Appeal No.7235 of 2009 in M/s. Prem Cottex Vs Uttar Haryana Bijli Vitran Nigam Ltd. and others decided by the Hon’ble Supreme Court of India vide order dated 05.10.2021, it has been held in para No.20 and 21 of the judgment, which is reproduced as under:-

20. The fora constituted under the Consumer Protection Act, 1986 is entitled to deal with the complaint of a consumer, either in relation to defective goods or in relation to deficiency in services. The word “deficiency” is defined in Section 2(1)(g) of the Consumer Protection Act, 1986 as follows:­

“2(1)(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

21. The raising of an additional demand in the form of “short assessment notice”, on the ground that in the bills raised during a particular period of time, the multiply factor was wrongly mentioned, cannot tantamount to deficiency in service. If a licensee discovers in the course of audit or otherwise that a consumer has been short billed, the licensee is certainly entitled to raise a demand. So long as the consumer does not dispute the correctness of the claim made by the licensee that there was short assessment, it is not open to the consumer to claim that there was any deficiency. This is why, the National Commission, in the impugned order correctly points out that it is a case of “escaped assessment” and not “deficiency in service”.

Further the Hon’ble Supreme Court of India in case title U.P. Power Corporation Limited and others Vs Anis Ahmad 2013(5) Law Herald-3802 has held that a case of indulgence in “unauthorized use of electricity” by the complainant as defined in clause B of explanation below Section 126 of the Electricity Act, 2003 is a quasi judicial decision and it does not fall within the meaning of “consumer dispute.” As such, the present complaint against the assessment or against the offences committed against under Section 135 to 140 of the Electricity Act, 2003 is not maintainable before the Consumer Commission and jurisdiction to try and entertain such complaint is barred. In view of the law laid down in the above cited law and as per facts and circumstances of the case, the complainant has failed to prove the deficiency in service on the part of the opposite party by any cogent and convincing evidence.

8.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

9.                Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:05.06.2023.

Gobind Ram.

 

 

Neeru Bala Vs Punjab State Power Corp. Ltd.                CC/20/149

Present:       Sh. M.S. Sethi, Advocate for complainant.

                   Sh. G.S. Pahwa, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:05.06.2023.

Gobind Ram.