For the Complainant:- Sri Sailesh Kumar Behera, Advocate, Bhawanipatna,
For the O.Ps:- Sri N.P.Patnaik, Advocate, Bhawanipatna, Kalahandi.
ORDER.
The present disputes arises out of the complaint petition filed by the above named complainant alleging deficiency in service against the afore said O.Ps for imposing penalty in the Electric consumption bill.. The brief facts of the case is briefly summarized hereunder.
1. The complainant is a consumer under the O.P. vide consumer No. 903612070297. In the month February, 2015 two official of O.P. came to the house of the complainant in order to check meter. They have also destroyed the seal of meter without any intimation to the complainant. Lastly they alleged that the complainant made tampering the electric meter. The complainant and his wife told they had gone to Australia from 16th. June, 2011 to 25th. December, 2012 and thereafter Bangalore frequently after their retirement as their sons were serving there. Lastly the complainant visited Bangalore from 4th. March, 2015 to 21st. April, 2015 and there is no use of electricity hence your agency submitted every month minimum bill which the complainant had deposited through his friend. Without any intimation or reminder given by the WESCO authority impose fine of Rs. 28,411. 48 which is illegal, and after receiving the bills the complainant became mental stress. The complainant on Dt.12.6.2015 had written a letter to the S.D.O., WESCO for checking of meter by the expert personal, but they have not turn up to my problems and bluntly say that if you have not paid the fine amount then we will disconnect your electricity service connection hence this petition filed by the complainant before the forum for redressal his grievance. The complainant prays the forum direct the OP to check the meter by installing a new meter to ascertain the actual consumption of electricity and such other relief as the hon’ble forum deems fit and proper for the best interest justice.
2. On being noticed the O.P. filed written version through their learned counsel and submitted that the complainant is a consumer vide No.903612070297. On Dt.23.2.2015 the Assistant Manager, Vigilence Cell by surprise checking the electric installation of meter of the above consumer No. and found that the meter body seal is broken and refixed and so the meter is tampered. The connected load is 3.5 K.W. The Assistant Manager, Vigilence cell of WESCO accordingly prepared the inspection report and the complainant refused to sign on the inspection report but received the copy of the inspection report. On Dt.23.2.2015 tempering meter for unauthorised use of electricity was detected by Assistant Manager, Vigilence cell who intimated by reason of such unauthorized use of electricity by tempering meter (Meter seal is broken and refixed) the Sub-divisional Officer, Electrical Sub-division, No.2 WESCO., Bhawanipatna has provisionally assessed the liability against the complainant U/S- 126 (1) and 126(2) of the Electricity Act to the extent of Rs.56,824.00 and the provisional assessment order was served to the cosumer petitioner for payment inviting objection if any within 7 days from the date of receipt thereof. The provisional assessment order reflects every thing in detail. The provisional assessment order was communicated to the complainant vide letter No. 257 Dt. 26.2.2015. The connected load by the consumer is 3.5 K.w. as it is a meter tampered case the provisional assessment is made on the unit consumption of connected load units assessed is 504 unit per month for 1 year i.e. 2014-2015 financial year. After getting no complain or objection from the consumer against the provisional assessment order and when the complainant further avoided to come to the office in this regard final assessment order for Rs.28,412/- was finally passed reducing half of the amount of provisional assessment order and served the final assessment order U/S-126(3) of Electricity Act to the complainant for payment within 30 days of receipt of this order and the final assessment order of Rs.28,412/- the same amount is debited in the month of May, 2015 to the complainant. The present case has no merit for consideration and is not maintainable and is liable to be dismissed. The complainant has wrongly instituted this case without preferring an appeal in the appellate authority at Sambalpur as per provision of the Electricity Act. The O.P. prays the forum to reject the relief claimed and prayer made by the complainant and dismiss the complaint petition of the complainant.
The O.P appeared and filed their written version. Arguments from the learned counsel for Opposite parties and from the complainant heard. Perused the record, documents, written argument filed by the parties.
The learned counsels for the Opposite parties vehemently advanced arguments touching the points both on the facts as well as on law.
FINDINGS.
3. The learned counsel for O.P vehemently contended that the complaint petition is not maintainable. It is not disputed that the present complainant is a consumer bearing consumer No. 903612070297 as evident from the monthly electricity bill submitted by the O.P. It is held and reported in 2010 (1) CPR- 255 where in the hon’ble National Commission observed Section-3 of the C.P. Act and Section 175 of the Electricity Act provides that they are in addition and not in derogation of rights under any other law for the time being in force. Therefore the C.P. Act are not affected by the Electricity Act. Consumer of electrical energy provided by the company, is a consumer as defined under Section 2(1)(o) of the C.P.Act and a complaint alleging any deficiency on the part of the WESCO including any fault, imperfection, shortcoming or inadequacy in quality nature and manner of performance which is required to be maintained by or under any law or in pursuance of any contract in relation to service, is maintainable under the C.P. Act. Against the assessment order passed under section-126 of the Electricity Act, a consumer has option either to file Appeal under section-127 of the Electricity Act or to approach the consumer forum by filing complaint. He has to select either of the remedy.
It is held and reported SCC 2010(13) page No.216 wherein the hon’ble Supreme Court observed “ Safeguards to be adopted by electricity supplier before charging higher amount from the consumer. In the instant case the forum came to the conclusion that the complainant had not made any attempt to tamper with the meter nor committed theft of energy. The defect was due to the negligence of the O.Ps personel and the complainant could not be burdened for the same. In para-44 the hon’ble Supreme Court observed “ It is thus, evident from the aforesaid records filed by O.P. that no proper intimation of checking had been given to the complainant, nor was any responsible officer present at the time of checking. A copy of checking report/chart was not given to the complainant for filing of objections nor was any show cause notice given along with the demand notice. Thus, it is a clear cut case of violation of the principle of natural justice as well as of clause-23 of the conditions of supply. Admittedly, no check meter had ever been installed and thus, it could not be held that the meter did not record the quantity of energy actually consumed”.
During the course of hearing of the dispute the learned counsel for the complainant argued on dt. 23.2.2015 in the morning the Assistant Manager, Vigilence Cell of the O.P. forcefully entered in to the premises of the complainant and imposed penality without taking signature of the complainant in the Inspection report.
We have perused the entire materials available on the record. On careful examination of the documents on record, we found that it is a fact not in dispute that the O.P inspected the premises of the complainant on Dt.23.2.2015 and checked /verified the meter bearing consumer No. 903612070297 stands in the name of the complainant . Out of the pleading made above it appears that the dispute started when the Assistant Manager, Vigilence Cell of the O.P. made detail inspection of the meter and load census of the complainant on Dt. 23.2.2015. The learned counsel for the complainant pointed out that the assessment made by the O.Ps was not proper and not as per the electricity distribution regulations.
At the outset of our observation, we would like to refer the Odisha Electricity Regulatory commission Distribution (Conditions of supply) code 2004, chapter-V, regulations 54 to 63 dealing with power supply meter Regulations-59 (2) of the said code mentions about testing of meters and the relevant regulation has been extracted below for reference.
59(2) due notice to the consumer shall be served by the license to be present during the test. The licensee shall have the option to carry and conclude the test in absence of the consumer after expiry of the notice period. The billing for the period the meter remains defective or unavailable from the date of reporting to the date of its installation after repair or replacement shall be revised in accordance with Regulations 97 & 98.
Further, regarding testing and verification of accuracy of meter by the Licensee, the following Regulations of O.E.R.C Distribution ( Conditions of supply) code 2004 is to be followed. The relevant regulations of the said code are extracted here under for reference.
Regulation – 52 during the checking and verification of the electrical installation in the premises of the consumer, including the supply line and meter, a complete inventory shall be prepared of all connected equipment, apparatus, machinery, forming integral part of the installation in the premises of the consumer. The consumer or his representative shall be requested to sign the inventory or inspection report. If the consumer or his representative refuses to sign the inventory or inspection report an endorsement to that effect shall be made by the engineer on the body of the report. A copy of the said report shall be affixed at the consumer’s premises. In such cases, the consumer shall be deemed to have been served with a copy of the report. Within one month of service of the report as aforesaid the consumer shall be entitled to complain against the correctness of the inventory or result of the inspection to the designated authority of the license, who shall enquire in to the matter of the complaint and decide on the correctness or otherwise of the report.
Similarly, Regulation 59(5) states that in the event of any difference or dispute on the accuracy of any meter, the same shall be decided on an application by either party to the Electrical Inspector.
From simple reading of the above Regulations, it is clear that due notice to the consumer shall be served by the licensee to be present during the test. The licensee shall have the option to carry out and conclude the test in absence of the consumer after expiry of the notice period.
In the present case, as per the documents placed on record, it appears that the O.Ps Assistant Manager, Vigilence Cell, all of sudden visited the premises of the complainant and instantly checked/verified his meter without serving due notice to the complainant. But as per prescribed regulation 59(2) above, due notice to the consumer shall be served by the license to be present during the test. It is necessary to observe here that the act of O.Ps for inspection/verification of the alleged meter of the complainant is total disregard and violation of the requirement of Regulations discussed above. In our view, this is an arbitrary and illegal act of the O.Ps deserved to be viewed as a serious lapse on their part. Nothing has been placed in the record to take a view otherwise. Further, it has also come to our notice that the Assistant Manager, Vigilence Cell verified the meter and reported the Meter seal is broken & tempering meter and made provisional assessment is made on the unit consumption of connected load units assessed is 504 unit per month for 1 year i.e. 2014-2015 financial year for an additional amount of Rs. 56,824. 00. It is also a matter of fact that the said Meter Inspection report was not prepared in presence of the complainant and it was also not signed by the complainant. We would like to point out that meter inspection in the premises of the complainant was not done as per Regulation of O.E.R.C (Distribution and condition of supply) Code, 2004, hence the said assessment report is void in the eyes of law.
Further the Regulation 59(6) of the said supply Code mentions the following:
On receipt of complaints of meters running slow, running fast, creeping beyond limits, not working or defective, a tested standard meter can be fixed in series with the existing meter by the licensee. The connecting terminals/meter boxes of both the existing and tested standard meter shall be sealed jointly by Licensee’s representative and the consumer meter reading of both the meters shall be taken jointly after some hours of operation. The accuracy of existing meter can be known by comparing reading of both the meters for the same period. If the existing is found to be defective, it can be removed to laboratory for repair and the tested meter already available in the consumer’s premises can be fixed in place of the existing meter.
62(1) It shall be the responsibility of the licensee to satisfy himself regarding the accuracy of the meter before it is installed and may test them for this purpose.
62(2) The licensee shall also conduct periodical inspection/testing of the meters at site as per following schedule or earlier. The licensee may instead of testing the meter at site can remove the meter and replace the same by a tested meter duly tested in an accredited test laboratory.
- Single phase meters at least once every five years.
- L.T three phase meters at least once every three years.
- H.T/EHT meters including MDI. at least once a year.
62(3) Records of these test results shall be maintained in accordance with Rule-57 of Indian Electricity Rules, 1956 or in accordance with regulation framed under -73 of the act.
According to Regulation 62(2) stated above, the licensee shall conduct periodical inspection testing of the meters at site and the licensee may instead of testing the meter at site can remove the meter and replace the same by attested meter duly tested in an accredited test laboratory. In the instant case the licensee before the inspection date on Dt. 23.2.2015 never registered any complain about slow running of meter rather issued electricity bills as per actual consumption. Even the last Electricity bill amounting to Rs.420.08 placed as Annexure-I on the case record was issued by the O.P on January, 2015 to the complainant and was raised on the basis of actual meter reading which was also paid by the complainant. The status of meter of the said bill of the complainant has been shown as “R” which does not mean it is tempered. However on the date of inspection on Dt. 23.2.2015 the O.P. stated in his inspection report that Meter seal is broken & tempering meter and made provisional assessment is made on the unit consumption of connected load units assessed is 504 unit per month for 1 year i.e. 2014-2015 financial year for an additional amount of Rs. Rs. 56,824.00 but the O.P. has not disclosed how he assessed to ascertain that the meter was running slow without laboratory test. He has not mentioned the device used to make the said assessment of the meter. The argument of the learned counsel for the O.P was not support by any convincing documentary evidence. We do not accept the argument of learned counsel for the O.Ps as correct representation of the matter. In our view, without standard test conducted by an accredited test laboratory, no one is authorized to say that the meter is slow or defective. This is an contravention of the regulations referred above and the O.Ps also failed to lead any convincing documentary evidence to prove this point. When the meter was not tested by any accredited laboratory and when there is no test report to support that, a person , however he is expert in this regard can’t assume that the meter was running slow or defective. The O.P could have sent the same for laboratory test and after receipt of report he could have prepared the provisional assessment report on the basis of slow running of the meter.
In the light of the above discussion, it is clear that the O.P. without following mandatory requirement under O.E.R.C. Distribution (Condition of supply) Code 2004 inspected / verified the meter of the complainant in his absence. In this regard we would like to point out that the process followed by the O.P to inspect/verify the meter is not proper and not as per law, since it was not done according to relevant Regulations as referred above. The procedure followed by O.P. to inspect/verify the meter and the Meter inspection report dt. 23.2.2015 suffers from irregularity and legal infirmity and not valid under law hence void. The assessment made by the O.P. based on wrong inspection report is also not proper and it is in contravention of prescribed regulations. There is nothing placed on record to substantiate that the meter was sent to an accredited laboratory for testing. We would also like to say that no one should enjoy electricity by violating the relevant provisions of law and those are involved with theft of electricity should be punished heavily accordingly. But in the instant case the Assistant Manager, Vigilence cell after preparation of its Meter Inspection report referred the matter to the O.P. and the O.P. on the basis of meter inspection report prepared the provisional assessment bill amounting to Rs.56,824/- and issued against the complainant for payment Under Section-126, 127, 135, 140 Electricity Act, 2003 and threatened to disconnect the power supply. As a result the complainant during pendency of this dispute also prayed for an interim order under Section 13-3-B of the C.P.Act,1986 which was granted to him on Dt. 3.7.2015. This is clearly an act of unfair trade practice on the part of the O.Ps since the process of assessment of meter of the complainant the seal is broken and being running slow is not valid. No standard procedure was followed for meter verification and testing while ascertaining the same, hence the Meter Inspection report prepared by the O.P. in absence of complainant or his authorized agent is also not valid as per law and the provisional assessment made by the O.P. on that basis as discussed above is also legally not tenable.
During the course of submission and pleading of the case the learned counsel for the O.P. also contended that this Hon’ble forum has not jurisdiction to pass any order when the demand is made by the assessing officer who discharged his duties and functions under Electricity Act and rules. It is a settled principle of law that if a consumer wants to challenge same passed under section-126 of the Act should have to file an appeal before the appellate authority under section-127 of the Act. No court, Forum and authority have got jurisdiction to grant injunction against the licensee as the jurisdiction is ousted under Section 145 of Electricity Act, 2003.
However, in our view the present case is not a case of offence U/S-135 to 140 and the assessment made by the assessing officer U/S-126 of the Act is also not valid in view of the discussion held above. There is no proof of unauthorized use or theft of electricity as contemplated by the O.P. in this case and there is no materials placed in the case record to hold that the meter is running slow due to broken of seal. The present complainant is a domestic consumer and as per the consumer status as mentioned in the last electricity bill, the meter is not defective. As contended by the O.Ps it is a case of meter being running slow due to tampering of the meter and on that basis subsequently assessment was made by the O.P. citing loss of electricity units amounting to Rs. 28,412/- as per final assessment which is not valid since the meter was not referred to any accredited laboratory for testing to prove the fact. It was merely a wrong observation made by assessing authority and reported to the O.P.
In the light of discussions held and observations made above and in view of the facts and circumstances described above, it held that the charge of theft of electricity against the complainant does not stand proved. In our considered view the unauthorized use of electricity as alleged against the complainant by the O.Ps is un founded.
It is admitted by the O.P. that the meter was tampered and running slow. In view of the decision with reference to the Section-26 of the Indian Electricity Act, 1910 and replaced by Act, 2003. The hon’ble Supreme court has held in Madhya Pradesh Electricity Board Vrs. Basantibai reported in AIR- 1988 page No. 71, 2007 CTJ 1 (SC) (CP) where in the hon’ble Supreme Court observed “In case of defective meter reference it to be made to Electrical Inspector who is competent under section 26(6) of Electricity Act, 1910 to find whether the meter is defective and if so to estimate the energy consumption for a period not exceeding six months prior to date of discovery of defect.
It is observed that since the interim order the complainant is paying monthly current consumption electrical charges every month as per the meter reading. Further the O.P. had not taken any steps to replace the existing meter which according to them is tampered meter. It is also not clear on what basis preliminary inspection imposing fine Rs.56,824/- is reduced to Rs.28,412/- during the final assessment when no representation was made by the complainant.
Hence to meet the ends of justice, the following order is passed.
ORDER.
In the result with these observations, findings, discussions the complaint petition is allowed in part on contest against the O.P.
The meter inspection report Dt. 23.2.2015 and final assessment order No. 313(2) Dt.26.3.2015 to the tune of Rs.28,412/- is hereby quashed.
The O.P.is directed to replace the meter of the complainant within two months from receipt of this order as per rules and regulations made under Electricity Act, 2003 to avoid future disputes and the consumer is also directed to co-operate with the O.Ps in this regard. The O.P. is ordered to calculate the average consumption of 3 months in new Electric meter and accordingly revise the electric bill of the consumer for the period from 1.3.2015 on wards. The interim order passed on Dt.3.7.2015 by this forum made final with the above direction. Parties are left to bear their own cost.
The OPs are ordered to make compliance the aforesaid Order within 60 days from the date of receipt of the order failing which the complainant is at liberty to take resort U/S- 25 & 27 of the C.P. Act. Service the copies of the order to the parties.
Dictated and corrected by me. Pronounced on this 25th. Day of November, 2016.
Member. Member. President
Documents relied upon:-
By the Complainant.
- Xerox copies of Electricity bill 3 Nos.
- Xerox copies of application addressed to the SDO., WESCO,Kalahandi.
- Reservation ticket on line Xerox copies from Kesinga to Bangalore Dt.4.3.2015.
- Xerox copies of VISA for Australia from 6.6.2011 to 25.12.2012=2 sheets.
By the O.P.
1.Computerised bill status of the consumer showing payment and arrear=3 sheets.
2. Xerox copies of the inspection report of vigilance cell Dtd. 23.2.2015
3.Xerox copies of the provisional assessment order= 1 sheet.
4. Xerox copies of the final assessment order=1 sheet.
PRESIDENT.
