O R D E R Sri. Santhosh Kesavanath P., President. Petitioner's case is as follows: The petitioner is a domestic consumer of opposite party's with vide Consumer No. 5364 from 2.11..1984 . The petitioner had remitted all the bills issued by the opposite party. Though the minimum amount payable by the petitioner bimonthly for 200 units of energy is Rs. 405/- the petitioner never used so much of energy. The meter of the petitioner is fixed on an iron board at the car porch attached to her house. The opposite party bimonthly inspected the meter and allied equipments and issued bills. During March 2005 the petitioner and her family members sustained electric shock from the meter board and the petitioner complained the said matter to the opposite parties orally and later she wrote a complaint in the complaint book kept by the opposite parties for the said purpose. On the petitioner's complaint, as directed by the 1st opposite party, the line -2- man came to her house and detached the meter from the iron board, after inspection, lineman tried to fix the meter on the meter board. But he could not fix the same by tightening the screw because holes on the board were loosened due to rusting of the iron board. So, as a temporary measure the lineman tied the meter to the board with a plastic wire and he returned saying that he will come back and fix the same properly at once. Thereafter the opposite parties has not cared to fix the meter properly with screw even after repeated request of the pettioner. Things being so on 15..4..2005 the 1st opposite party along with the members of the A.P.T.S came to the petitioner's premises and alleged that the petitioner is resorting theft of electrical energy by keeping the meter in such a slanting position. Though the husband of the petitioner T.K Dinesan explained to the 1st opposite party and members of APTS, what had happened, discarding his explanation, they threatened him with dare consequence including criminal action and compelled him to sign on a blank white paper and went away with that paper. There after on 16..4..2005 the husband of the petitioner received a penal bill for Rs. 3901/- from the office of the opposite party along with a note alleging irregularity in the meter of the petitioner. The opposite party calculated the said penal bill on presumption that the petitioner has been consuming 300 unit of energy monthly for which 1 ½ times is charged as penalty. According to the petitioner she had never consumed so much of energy before or after inspection by the A.P.T.S, instead she was consuming less than the permissible 200 units bymonthly. The petitioner stated that she or her family members had ever made any tampering with meter as alleged. No mahazar has been prepared instead opposite parties got signature of her husband in a blank white paper in -3- order to prepare the mahazar falsely. The bills issued by the opposite parties before and after inspection shows that the meter was recording actual units of consumption and there was no irregularity or tampering with the meter by the petitioner as alleged. The connection was disconnected without proper notice as envisaged under provisions of Indian Electricity Act 2003. Hence the said act of the opposite parties are arbitrary and illegal. The petitioner further states that the marriage engagement of her daughter was fixed on 25..4.2001 knowing this opposite parties deliberatedly disconnected energy supply to her house alleging theft of energy and issuance of such a penal bill with the malafide intention of abstract money illegally from the petitioner. The act of the opposite party is a clear deficiency of service on their part and that caused much hardships, mental agony and financial loss to the petitioner. Hence this petition is filed for canceling the penal bill dtd: 16..4..2005 and to direct the opposite party to reconnect the electrical supply to her premises and for compensation and costs. The second opposite party filed version for herself and on behalf of the other opposite parties with the following contentions. According to them petition is not maintainable either in law or on facts. They admitted that petitioner is their consumer and also admitted that the petitioner is not defaulter of electricity charges. They contented that being a 3 phase domestic consumer the petitioner is bound to remit current charges for a minimum of 200 units bymonthly even when the consumption is less than 200 units. The bill amount for 200 units by monthly at present is Rs. 405/- including meter rent. Statement of the petitioner that bills are issued after bymonthly inspection of the meter is denied. According to them bills are issued after taking meter reading by the -4- spot biller. No complaint has been received to the opposite party from the petitioner regarding electric shock, during the month of February or March 2005. The line man has not inspected the premises during March 2005 as alleged.. The allegation that the line man had hung meter on the meter board with a plastic wire was denied by the opposite party. According to them it was done by the petitioner and her family members to abstract energy un authorisedly.According to the opposite party the act of the petitioner is a clear case of theft of energy. On 15..4..2005 the petitioner's premises was inspected by first opposite party along with A.P.T.S, Kottayam in presence of petitioner's husband Shri. T.K. Dinesan and was found that by tying the meter in a slanted position, with a plastic wire. According to the opposite party it is for the purpose of abstracting energy illegally. Since the act of the petitioner is a case of theft of energy under section 135 and 138 of Indian Electricity Act 2003, a site mahazar was prepared then and there and got it acnowledged to the petitioner's husband and the connection was disconnected after giving notice to the petitioner's husband. The bill under section 126 of Indian Electricity Act was served to the petitioner on 16..4..2005 which was accepted by the petitioner's husband. No blank paper signed by the petitioner's husband was received by them as alleged. According to them when the meter is in a slanted position it will not report the actual consumption but only a fraction of energy consumed. The first opposite party on 7..10..2004, regarding replacement of energy meter issued a notice to the petitioner's husband. He obstructed replacement of the meter and -5- threatened field staff. A crime is registered as Crime No. 236/05 Dtd: 15..4..2005 and is ponding before the Judicial First Class Megistrate Court, Vaikom, based on the complaint by the first opposite party against petitioner's husband under section 379 IPC R/W section 135 and 138 Indian Electricity Act 2003 for the theft of Electrical Energy. So according to the opposite party there is no dificiency of ervice or unfair trade practice on their part. Hence they prayed to dismiss the petition with costs to them. Points for determination are: i) Whether the petition is maintainable or not? ii) Whether there is any deficiency of service on the part of the opposite party? Iii) Relief and costs. Evidence consists of the affidavit filed by the both parties Ext. A1 to A17 documents on the side of the petitioner and affidavit of the opposite party along with Ext. B1 to B5 documents on the side of the opposite party and Court Exts. C1, C2 and M.O 1. Point No. 1 The opposite party in the affidavit and at the time of argument raised a specific contention with regard to the maintainability of the petition before this forum. According to them since the dispute is with regard to the theft of the electrical energy jurisdiction of the fora is ousted. But the opposite parties have not raised any specific contention or objection in this regard in their version or filed any additional version in this matter. The opposite party produced a copy of FIR in crime No. 236/05 the said document is marked Ext. B5 On perusal of Ext. B5 it can be seen that the name of the accused mentioned in the said crime is one Sri. T.K Dinesan. But the opposite party has not produced any -6- document to prove that petitioner had committed any theft. The petitioner relied one decision reported in 2001 (ii) CPJ 511 Spl. Division Officer and others Vs. Niranjan Singh in the said dictum. It was stated that simply saying by the opposite parties that it was case of theft of energy was not enough to prove theft of energy. Here in this case also nothing was brought on record which could prove the ingrediats of theft of energy. No report of the meter inspector or no affidavit of the meter inspector or else no material expert evidence otherthan, the FIR is produced by the opposite party to prove theft of energy. So, we are of the opinion that the said contention of opposite party is not sustainable and the petition is maintainable before this forum. Point No. 2 The petitioner produced A1 to A17 bills to prove that the average consumption of electrical energy of the petitioner is moreover same. According to her during the month of March 2005 she and her family members sustained electric shock from the meter board and that matter was oraly informed to the opposite parties as well as she had written complaint in the register kept at the office of the opposite parties for the said purpose. There upon the line man came and detached the meter from the board and after inspection he fixed the meter to the board with a plastic wire and left sating that he will comeback and fix the same properly. But the line man or nobody from the board cared to fix the meter as agreed. The petitioner averd that she never used energy more than permitted minimum 200 units and has not committed theft of energy by tampering the meter as alleged. She produced bills dtd: 7..6..2004, 7..10..2004, 7..2..2005, 5..4..2005, 8.6..2005, 3..2..3006, 4..4..2006 and 6..6..2006 which were related to period prior to and after the date of -7- inspection. The said documents were marked as Ext. A2, A3, A4, A5, A10, A13, A14, and Ext. A15 respectively. On perusal of the bills it can be persumed that consumption of energy by the petitioner prior to and after fixing of the new meter is more or less same. The opposite party on 3..1..2006 issued a letter to the petitioner, is produced by the petitioner, and said document is marked as Ext. A16. As per Ext. A16 disputed meter was redressed and new meter was fixed in the place of the old one on 3..1..2006. Ext. A13, A14 and A15 are the bills issued after the instalation of the new meter. All these bills shows that the consumption is less than 200 units bymonthly. From the meter readings taken we can infer that the allegation of the opposite party with the petitioner that he had resorted up to theft of the electrical energy, using the old meter, in a slanted position is not correct. According to the petitioner she had written complaint in the complaint register kept by the opposite parties, regarding electrical shock sustained to herself and her family members during the month of March 2005. The petitioner in order to prove her case call for the complaint register for ascertaining the proof of facts. The opposite party produced the same and the said material object is marked as M.O 1. On perusal of M.O 1 it is found that a piece was torned of from middle portion of the bottom end of the first two sheets of the register and there is some over writing on the other portion making the entries there illegible. Things being so, the petitioner filed petition for senting the register to State Forensic Laboratory, Trivandrum to ascertain whether any alteration has been done with the register, the report from the laboratory is marked as Ext. C2. Ext. C2 proves that there was alteration and over writing and signs of physical erasure in the complaint register. According to the opposite party erasure and over writing in Ext. C2 -8- has been altered by somebody else and not by the board staff and according to them it is not possible to identify the person who had done it, Since the register is accessible to public and is handled by lot of people. We are of the opinion that the said argument of the opposite party is not acceptable because the opposite parties are the custodian of the book and they cannot evade from the responsibility . Moreover it is astonising to see that only the relevant complaint portion alone is seen tampered and no other portion is torned or altered. From this it can be inferred that the petitioner had written complaint in the complaint register. The spot biller used to take the meter reading has not reported the matter that the meter was found tide up with a plastic wire by the petitioner in a slanted position for abstracting electrical energy. It is also to be noted that admitedly the meter board is kept outside the house in the car porch, visible to all. Normally it is difficult to believe by a prudent man that a person scrupulous of extracting electricity illegally will resort to such a method of tying up the meter with plastic wire keeping it in slanted position visibly. It is to be noted that the bills issued before and after the alleged theft is more or less the same and the meter reading prior to and after the instalation of the new meter is more or less the same. Here it is also to be noted that during the alleged period also bills were issued by the opposite parties based on the reading in the slanted meter without dispute or controversy regarding the consumption. This act of the opposite parties shows that the opposite parties are also in agreement with competency of the meter. So according to us the case of the petitioner is more believable and we are of the opinion that without any expert evidence with regard to tampering of meter no theft can be attributed against the petitioner. In this contest it is also to be noted that though the inspection was conducted on15..4..2005 as per Ext. A16 notice the new meter was fixed -9- only on 3..1..2006. It is interesting to note that no were in Ext. A16 or in their version or in the affidavit the opposite party have stated that they fixed the old meter properly with screws. In Ext. A11 photographs taken on 28..4..2005 the meter is in tied up with plastic wire, as before, and it means that the meter has not been fixed properly even after inspection by the APTS. The petitioner filed a petition for appointing an expert commissioner to ascertain the present position of the meter the petition was allowed and the report filed by him is marked Ext. C1. The commissioner ascertained the matters in the presence of the petitioner and Assistant Engineer on 17..8..2005 and filed report and the same is marked as Ext C1. In Ext. C1 it is reported that the meter is fixed in a slanted position of about 15 degree leaning forward from the board at the top having a gap of 8 cm from the vertical position and the meter is tied up with a plastic wire. On operating the electrical equipment used by the petitioner the commissioner reported that the disc of the meter was rotating. The opposite parties has not filed any objection to the commission report so the report can be accepted. It is also intresting to note that the disputed meter was not replaced or properly fixed by the opposite parties even after a lapse of 5 months. All these proves in advertence and negligent attitude of the opposite parties for which the petitioner ought not have been made to suffer. Ext. B2 is a notice dated 7..10..2004 issued by the Asst. Engineer to the husband of the petitioner. In B2, It's stated that since it is convinced that the existing meter is out of order, a new electronic meter is going to be installed. To this the husband of the petitioner has not raised any objection, If it is so, why the opposite parties have not taken any legal action against petitioner's husband, who had objected and resisted the authority -10- from replacing the faulty meter with a new one is not known. No explanation has been given by the opposite parties in this regard so, Ext. B2 is not reliable. The petitioner has the case that the connection has been served without giving proper notice or hearing him as per section 126 of the Indian Electricity Act, 2003 and hence this is against law and provisions Indian Electricity Act. But as per Section 24 of the Indian Electricity Act. Opposite parties can disconnect a connection without prior notice in the case of theft of energy. Here in this case, as the finding the opposite parties was theft of energy, whether it is proved or not the said argument of the petitioner is not acceptable. The Ext. B3 mahazer it is written that when the meter was tested in the slanted position by operating 3 bulbs and one fan of 60 watts each, with the disc of the meter was not rotated. As the next line it is also written that since the meter was kept in a slanted position, it was not working correctly and recording proper consumption. This statement reveals that the meter is working in the slanted position though not correctly. Hence this two statements are contradictory further the mahazer is not seen witnessed by independents witness, all these makes us to reach at conclusion that Ext. B3 mahazer lacks evidenciary value. Moreover no authoritative evidence was adduced by the opposite parties to prove that the meter will not record correct consumption of energy in slanting position. We are of the opinion that simply saying by the opposite parties that it was case of theft of energy is not enough to prove theft of energy. Nothing is brought on record to prove the ingredient of theft of energy. We are of the view that the conduct of the opposite parties and issuance of the penal bill for Rs. 3901/- dtd: 16..4..2005 is a clear -11- deficiency of service on their part. Point No. 2 is found accordingly. Point No. 3 In view of the findings in point No. 2 the petition is to be allowed and petitioner is entitled for the relief sought for in the petition. As per the order in IA 330/05 Dtd: 27..4..2005 the petitioner has already got reconnection and so the first prayer of the petitioner to direct the opposite parties to reconnect the electrical supply to her premises become infractous . It goes without saying what had happened would definitely caused much hardship, mental agony and also financial loss to the petitioner for which the opposite parties are liable to compensate the petitioner. In the absence of proof of exact, loss or injury sustained y the petitioner we fix Rs. 5000/- as compensation which we feel just and reasonable in this case. In the result the following order is passed. The bill for Rs. 3901/- dtd: 16..4..2005 is canceled. Opposite parties are ordered to pay to the petitioner Rs. 5000/- as compensation and Rs. 5000/- as cost of the proceedings which includes the fee for testing M.O 1 in the Forensic Laboratory, Trivandrum and commission batta. The amount ordered can be paid either directly or can be adjusted in future bill. Opposite parties shall comply the order with within 30 days of receipt of this order. Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 29th .day of May, 2008.
......................Bindhu M Thomas ......................Santhosh Kesava Nath P
Consumer Court Lawyer
Best Law Firm for all your Consumer Court related cases.
