KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM APPEAL 185/2006 JUDGMENT DATED: 26.3.2010 PRESENT SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.V.VISWANATHAN : JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR : MEMBER The Asst.Executive Engineer, : APPELLANTS KSEB.,Major Section, Gandhi Nagar, Kottayam. 2. The Secretary, KSEB, Trivandrum. (By Adv.B.Sakthidharan Nair) Vs. Sri.T.C.Mathew, : RESPONDENT Thazhappallil, Malloossery.P.O., Kottayam. (By Adv.G.S.Kalkura) JUDGMENT SRI.S.CHANDRAMOHAN NAIR : MEMBER The order dated 4.11.2005 of CDRF, Kottayam in OP 178/04 is being challenged in this appeal by the opposite parties on the short ground that the order of the Forum below in directing the opposite parties to cancel Ext.A1 bill and to issue a new revised bill complying with the provisions of Electricity Act, 2003 and to pay cost of Rs.750/- to the complainant is perse illegal and unsustainable. The opposite parties have also challenged the forum’s jurisdiction to entertain the complaint filed by the petitioner. 2. The complainant has approached the Forum stating that he is a consumer of the opposite parties and that he has been running the SSI unit for earning his livelihood and that on 15.6.04 the APTS of the opposite parties has inspected his factory and issued a bill for Rs.5,96,010/- to be paid on or before 10.9.04. It is alleged that the electricity connection was also disconnected on the date of inspection itself. The complainant submitted before the Forum below that the actions of the opposite parties amount to deficiency in service and prayed that the opposite parties are to be directed to cancel the bill and to give free connection to the factory along with costs. 3. On notice from the Forum, the opposite parties entered appearance and filed version contending that the petitioner is having a connection under commercial tariff and that on 15.6.04 the APTS of the opposite party had conducted a surprise inspection where pilferage of energy by inserting a 10cm long plastic film to arrest the rotation of the disc and to stop partly the recording of the energy was detected. It was also found that the rubber beeding of the power meter was cut and removed for the length of 5cms. The opposite parties further submitted that the site mahasar was prepared where the petitioner had affixed his signature and that the bill was issued under clause 43 of the Condition of Supply of electrical energy. The opposite parties further contended that there was no deficiency on the part of the opposite parties and the complainant was liable to pay the amount assessed by the inspection wing of the opposite parties. 4. The evidence consisted of the affidavit filed by the complainant and the 2nd opposite party. Exts.A1 to A6 marked on the side of the complainant and B1 to B8 were marked on the opposite side. The commissioner who was appointed by the Forum below had filed a report which is marked as Ext.C1. It is based on the said evidence that the Forum below passed the impugned order. 5. Heard both sides. The learned counsel for the appellants vehemently argued before us that the Forum had gone wrong in directing the opposite parties to cancel the bill issued consequent to detection of theft of energy. He has also attacked the jurisdiction of the Forum below in as much as that the Forum below has no jurisdiction to try complaints in connection with theft of energy. It is his very case that the APTS of the opposite parties had detected theft of energy and the materials used for pilferage of energy had been seized at site and a site mahasar was also prepared in which the complainant and an employee of the factory had affixed their signature. Thus according to him the Forum below had no jurisdiction to enter into a finding regarding deficiency in service and that the order is liable to be set aside. He has also relied on the decision of the Hon’ble Supreme Court in Haryana Vidyut Parsaran Nigam Ltd. Vs. M/s Super Star Grit Udyog 2008 (8)Supreme 369, and in CESC Ltd. Vs.
Smt.Sumita Pal (III )1997CPJ 116(NC) and also the decision of the Hon’ble Supreme Court in Jagmohan Mehatabsing Gujral Vs State of Maharashtra 2006(8) Supreme 676 and canvassed for the position that large scale theft of electrical energy is a very alarming problem faced by all the State Electricity Board and stringent action has to be taken against those who venture into the theft of energy and that the Forum below ought not have passed the impugned order. 6. On the other hand the learned counsel for the respondent submitted before us that the order of the Forum below is sustainable on the ground that the Forum below had considered all the aspects of the amended Act of 2003 and that Section 126 of the Electricity Act, 2003, envisages the provision and privilege for a consumer to explain his position before a final assessment is being made. The learned counsel argued before us that it was without any rhyme and reason that a bill for Rs.5,96,010/- was issued under the guise of a surprise inspection. He has also submitted that the site mahasar that was prepared is not acceptable as it is not proved properly and also that the impugned bill was illegal, irregular arbitrary and without jurisdiction. He has further submitted before us that the complainant is a consumer when he has used the electricity on payment and that the average remittance per month was around Rs.17,000/- and that there was no occasion for him to pilferage energy in any manner. It is also his case that the complainant was running the unit for earning a livelihood and that was the only source of income for his livelihood. He has relied on the decision of the Delhi State consumer Disputes Redressal Commission in BSES(Y) Power Ltd. Vs. Neeraj Kumar I(2007) CPJ page 1 which was passed on the basis of the decision of the Supreme Court in Haryana State Electricity Board Vs. Mamchand and argued before us that even in a case of theft of energy the consumer courts have jurisdiction to settle the disputes under the provisions of Consumer Protection Act and argued before us that the order of the Forum below is only to be sustained and the appeal dismissed. 7. On hearing both sides and on a perusal of the records obtained from the Forum below, we find that it is the admitted case of both the parties that the impugned bill for Rs.5,96,010/- was issued to the complainant/respondent subsequent to an inspection of APTS (Anti Power Theft Squad) of the opposite parties. The appellants/opposite parties would argue that there was pilferage of energy by the complainant by using some artificial means and the said action of the complainant amounted to theft of energy and hence the bill was issued under clause 43 of the Conditions of supply. In this context it is to be noted that the alleged inspection was on 15.6.04 ie. after coming into existence of the new Electricity Act of 2003. It seems that the assessment is made on detection of unauthorized use of energy. The appellant would also say that it is theft of energy and hence the disconnection immediately on detection of theft is only legal. It is also the case of the appellants that artificial means were used by the complainant and as the complainant himself and a employee of the unit has signed the mahazar, there was no need for the opposite parties to substantiate or prove the contents of the mahazar. On an appreciation of the entire facts and circumstances we find that the opposite parties are bound by Section 126 of the Electricity Act, 2003 as the alleged commission of unauthorized use of energy occurred in June, 2004. Section 126 (3) of the new act reads as follows: “ The person on whom a notice has been served under sub section (2) shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass the final order of assessment of the electricity charge payable by such person ”. In the instant case the Forum below has not completely negatived the case of the opposite parties only cancelled the bill for Rs.5,96,010/- with a direction to the opposite parties to make a fresh assessment after complying the provisions under Section 126 of the Electricity Act 2003. We do not find any error or illegality in the said directions of the Forum below. The opposite parties are at liberty to issue a bill after giving an opportunity to the complainant to submit his objections, if any, with regard to the alleged inspection and issuance of the disputed bill. In the result the appeal is liable to be dismissed and we do so accordingly. In the nature and circumstances of the present appeal the parties are directed to suffer their respective costs. SRI.S.CHANDRAMOHAN NAIR : MEMBER SMT.VALSALA SARANGADHARAN : MEMBER SRI.M.V.VISWANATHAN : JUDICIAL MEMBER ps | 
