Before the District consumers Forum:Kurnool
Present:Sri I.Siva Samba Murthy, B.L., President
And
Smt C.Preethi M.A., LL.B., Member
Thursday the 20th day of June, 2002
C.D.No.59/2002
Dr.Hari Anupama.
W/o Dr.H.Radha Krishna,
Ashok Nagar,
Kurnool. …Complainant represented by her
counsel Sri.K.Venkoba Rao, Advocate
-Vs-
1. The Assistant Divisional Engineer,
Distribution, A.P.Transco, Kurnool.
2. The Divisional Engineer,
D.P.E., A.P.Transco, Kurnool. …opposite parties represented by their
counsel Sri.D.Sreenivasulu, Advocate
O R D E R
1. The complaint to direct the opposite parties 1 and 2 to setaside the demand made in letters DE-DPE-F-KNL-334-D 1748/2002, dated 06.02.2002, to pay Rs.28,486.50 and ADE-D-KNL-SBE-F, 476-D216/2002 dated 24.01.2001 to pay Rs.20,770/- and to readjust the amounts already paid under protest by the complainant Viz., Rs.14,318/-, RS.3,000/- towards the demand made by letter dated 06.02.2002 and Rs.10,585/- towards demand letter dated 24.01.2002, received by the complainant on 13.02.2002, ad pay compensation of Rs.2,00,000/-.
2. Briefly the allegations made in the complaint are that the complainant is a Government doctor in M.D., D.G.O., having specialized in Gynaecology and her husband Dr.H.Radha Krishna is also a Government Doctor, Specialized in Neurology. Both of them residing in the house bearing Door No.45-24-R-30-2, situated in Ashoka Nagar, Kurnool. The complainant purchased the said house on 20.08.1999 from T.Sujathamma, W/o Satyanarayana Reddy of Orvakal by way of Registered Sale Deed.
3. Before the purchase of the said house, the house was let out to two different portions and two separate meters fixed by the Department of Electricity bearing Meter Nos. 42285 and 42286.
4. After the house was occupied by the complainant, the complainant informed the Department about the change of ownership and also requested the Department to change the Meters in her name and also replace the old Meters are not known.
5. As the complainant & her husband are the doctors, they are having consultancy rooms in their house itself. So the complainant requested the Department to provide another Meter and a new meter was fixed, its number is 71010, this the 3rd meter. The said house is provided with 3 Meters, two domestic meters going by numbers 71010 and 42286 and domestic meter going by Meter Number 42285. The new Meter was fixed under category I and one of the excising meter No.42286 was changed into category-II.
6. The complainant has also given description of the building in the detail saying that the house faces east having verandah on eastern and Northern sides. The house consists of common waiting hall. The supply of Electricity to these two rooms is from Meter No.71010. For the other portions of rooms of residence including pooja Hall, bed rooms etc., the supply of electricity is from Meter No.42286, on southern side of the house there is a small room used for lab purposes for which the supply of electricity is from meter No.42285 which is non domestic.
7. It is further alleged that the electricity department changed the location of the Meter NO.42285 and 42286 by fixing the two Meters on the northern side of the verandah. The Meter No.71010 is located on the eastern side of the verandah without putting any seals to the outsiders.
8. It is also alleged that the Department changed the 3rd Meter into Verandah in the month of October 2001. The D.E. of the O.P Department inspected on 12.01.2002 and removed the Meter No.42286 from its place and took away the same, but on 07.02.2002 the complainant received a letter dated 06.02.2002 stating that the Department frond some papers pieces and photo film negative pieces inside Meter there by stopping the rotation of meter amounting to committing pilferage of energy and further asking the complainant to pay Rs.28,486.50 Ps in to but to avoid the trouble the complainant paid a sum of Rs.14,318/- on 08.02.2002 besides another sum of Rs.3,000/- towards the compounding fee demanded by the Department for restoration of supply. It is alleged that the said amounts were paid to avoid further hitch with the Department & also to safeguard her & her husband reputation honour and prestige in the society though the complainant and her people have not committed acts of pilferage as alleged. The allegations made by the Department to demand heavy amounts from the complainant are false & invented.
9. The impugned letter dated 06.02.2002 demanding Rs.28,486.50 Ps is illegal, arbitrary and without conducting any enquiry or tests or even without affording any opportunity to the complainant and her husband but purported to be in the pursuance of one representative of consumer without giving the name or details of the said representative. The complainant categorically denies having authorized any such representative. The complainant categorically denies having authorized any such representative. The further act of the opposite parties in sending another letter dated 13.02.2002 relating to Meter No.71010 stating that Meter No.71010 was fixed for domestic purpose the complainant as a consumer utilized the supply for non domestic purpose that is clinic etc., as such alleging the acts of malpractice against the complainant, and further demanding Rs.20.970.50Ps towards the same also the complainant paid Rs.10,585/- similarly for avoiding hitch and in order to safe her and her husband reputation, the said demand for Rs.20,970.50 is also illegal arbitrary and unsustainable, more so the old Meter No.42285 and 42286 are mint for domestic purpose. That the Department released Meter No.71010 also for domestic purpose and the O.P Department converted Meter No.42286 to non domestic category. It is also pleaded in question except the small room for lab purposes for which the Meter convened is 42285 originally domestic categories changed into non-domestic one by the opposite party as stated in the complainant. There is no clinic as alleged. So the complainant brands to two demands made by the opposite party for Rs.28,486.50 & Rs.20,970.50 so illegal, arbitrary and unjustified as such they are liable to seaside and direct the opposite parties to readjust the various amounts paid by the complainant namely Rs.14,318/- and Rs.10,585/- as they were paid under there at of arrest and coercion etc., As the request of the complainant were in vain the complainant approached the Forum by this case. Hence the complainant.
10. The opposite parties 1 and 2 got entered appearance through their counsel and filed objection statement generally denying the allegations made in the complainant, while putting the complainant to strict proof of the same her case, but the opposite party admitted the material facts of the complainant & her husband setting up private practice in their house, bearing No. 45-24-R-30-2, and that the said house was purchased by the complainant through a registered sale deed, and that there were two Meters provided for the same, but the opposite parties are not a ware of the house being in two portions previousaly let out to two tenants as alleged. It is true that the complainant put in an application to O.Ps about her purchase requesting to transfer the servicer in her name and the name change was no 22.07.2002, but it false to say that the complainant ever requested for change of meter with that of the old meters. It is also true that the complainant applied for another service under category I and the same was provided with meter No.71010.
11. The further allegations of the complainant are not completely correct. It is seen from the records the two meter Nos.42285 and 42286 are cat/I (domestic service) the third meter provided to her is also under Category-I . The complainant is not entitled to use a domestic service for non domestic purpose. The complainant used the service 42285 for non-domestic purpose which is in violation of nature & condition of supply. As such the O.P says that the O.Ps to take steps to issue revised bills etc., the O.Ps further says since the service 71010 is being used for common waiting hall for the patients visiting both the doctors and also two separate consulting room showing the use of electricity is for non-domestic purpose through service No.71010.
12. The further allegations such as the Meters are located in Varndah accusable to public etc., are all false & invented and that even if, the complainant suspects any such intension by the outsiders as patients the opposite party Department cannot be held responsible. It is also pleased that the inspection was done on 12.01.2002 at 16.50 hours and Meter was removed and found that it was not sealed and the inspection was done in the presence of complainant’s husband, who signed the inspection notes etc., where under it was informed that the meter would tested in the L.T. Laboratory on 06.02.2002 and asked the complainant to be present at the time of testing i.e. on 06.02.2002.
13. It is further pleaded that the meter was tested in L.T. lab on 04.02.2002 in the presence of Sri Shabeer Naik the representative of the compliant, Rajinikantha Reddy, A.D. of the opposite party Department it was found containing the number of paper pieces and 1 No. photo film negative inside the Meter thus the complainant committed pilferage of energy for which she was provisionally accessed and the amounts were collected there for and that it is false to say that the said amounts were paid by the complainant under threat of prosecution and arrest, fear & conversion and to avoid hitch and preserve dignity of her and her husband as alleged.
14. The opposite party admitted that it was true that the old meters 42285 and 42286 are ment for domestic purpose. The complainant also put in an application for another for domestic category which was accordingly released but it is false that the service No.42285 is converted into non- domestic purposes as alleged. The further alegation of the complainant that the clinic or use of the premises for consulting purpose would not come under category-II (Non-domestic) as there is no clinic as such except the Lab only are not true and are false.
15. The complainant is not entitled for the relief prayed for as the said cannot be brought under the ambit of Consumers Forum. The complainant is not entitled for the relief of compensation of Rs.2.00 lakhs, which is baseless and fanciful there is no deficiency of service. On the part of the opposite party as for the allegations of the opposite party.
16. The District Forum, Kurnool functioning under the .C.P.Act has no jurisdiction to entertain the complainant under Law as per the amended provisions of Sec.47/I.E.Act, 2000. The O.Ps refer to the rulings for saying that is complaint is not maintainable as the dispute in question can only be dealt with by the special Tribunal under the Law.
17. Thus the opposite parties ought for the dismissal of the complaint. The complainant has filed relevant document as mentioned in the complaint consisting of Xerox copies of Sale Deed dated 20.08.1999, letter by the complainant to change the meter & name of the owner, the reply of the Department dated 20.07.2000, 06.02.2002 & 24.01.2002 payment receipt Rs.14,318/-+Rs.3,000/- dated 06.02.2002, for Rs.10,585/- dated 14.02.2002 respectively. The opposite party has filed Xerox copies of documents such as the application of the complainant at 30.05.2002, letter of the opposite party dated 26.04.2002 etc.,
18. It is relevant to note the complainant has filed her proof affidavit reiterating her complaint case in detail referring to various documents and sought for grant of relief prayed for in the complaint. The opposite parties 1&2 filed their affidavits re-iterating their objection version as pleaded in objection statement seeking to discuss the complaint.
19. Therefore, the point that arises for consideration is to what relief the complainant is entitled to:-
20. It may be stated that the case of the complainant is simple is that she is a Government Doctor having specialized in Gynecology practicing along with her husband who is also a Doctor specialized in Neurology. They reside and have their consulting room in their residential house bearing No.45-24-R 30-2. The said house was purchased by the complainant on 20.08.1999 from one Smt.T.Sujathamma, W/o Satyanarayana Reddy of Orvakal under registered sale deed. The said house was let out to two different tenants with two separate meters by the original owner before the purchase of the complainant. The said two meters bearing No.42285 and 42286 it also her further claim that after her purchase she informed the Department of Electricity requesting to change the name of ownership and also to change the said two old meters as the condition and nature of meters not known. But the department did not care to change the meter, but changed the name of the owner as such the old meters continued with old numbers due to such failure of the department to take steps to change the meters. She requested the Department to provide another meter as they were having two consulting rooms in the said house itself, as a result of which a meter was provided with No.71010. Thus they are 3 meters in the said house as such two domestic meters namely 71010 & 42286 while the other meter 42285 was converted into non-domestic service from domestic purpose.
21. It is also her further case that the said house consisted a common waiting hall who visit both the doctors having common door way. They were also got small room used for Lab purposes for conducting tests & also keeping sample dries. The supply for the said Lab room in from meter No.71010, for regarding other house portion consisting of bed room. Puja Hall etc., the supply is from 42286. While so the Department have changed the location of Meters by fixing the two meter Nos.42285 & 42286 on the northern side of verandah while the meter no.71010 was fixed on the western side of verandah that was done in October,2001. As things stood like that the complainant has been paying the consumption of bills as demanded but there was an inspection made by the opposite parties officials on 12.01.2002 that the Department found some paper pieces & photo film inside the meter and there by the complainant committed pilferage as such she was asked to pay Rs.28,486.50. The complainant paid under protest on 08.07.2002 half of the amount Rs.14,318/- and also another sum of Rs.3,000/- under protest to avoid the arrest or prosecution and further hitch from the Department, to safe guard her and her husband reputation and that she had not committed any act of pilferage much less in the manner alleged. The said demand made by the opposite party official D.E for payment of Rs.28,486.50 and other sum of Rs.8,000/- is illegal, arbitrary and unjust. The another demand was received by her on 13.02.2002 dated 24.01.2002 demanding payment of Rs.20,970.50 for the alleged use of meter 71010 for non domestic purpose otherwise than it was provided under that demand and to avoid threat and prosecution and arrest she was also compelled to pay Rs.10,585/- similarly under the said circumstances which she brands as illegal, arbitrary and unjust.
22. The conduct of the opposite parties in taking the meter and in getting conducting the alleged test in the lab in the absence of the complainant though purported to be in the presence of one representative of the complainant namely Sri.Shabeen Naik, whose description, designation as address particulars and not mentioned, very much amounted to deficiency of service, rendering the opposite parties to meet the demands of the complainant.
23. The planks of attack made by the opposite parties against the claim of the complainant are that the complaint is not maintainable before the District Forum as the special Tribunal was constituted as the theft of energy is involved. The complainant is not entitled to ask for refund of amounts under provisional assessment orders as such the complainant has right to appeal etc., as per the Law etc. The opposite parties collected the amounts not under threat as alleged but as film negative piece of paper were found in the Meter prevented the correct recording of the consumption by the Meter. No deficiency of any service since the test of the meter was conducted by a different Department from that of the O.P Department. On the date of inspection; the husband of the complainant was informed the proposed date of inspection; of the Meter and test was conducted properly in the presence of one Mr.Shabeer Naik representative of consumer and two O.P officials. Thus the action taken by the O.P Department demanding & collecting money was not arbitrary. If viewed the two versions of both sides in the light of documents it is seen that the inspection was done by the O.P officials on 12.01.2002 of course in the presence of the husband of the complainant and that as per the plea of the O.P in the counter that the complainant was informed that the test of the meter in L.T.Lab on 06.02.2002 and that infact the alleged test was conducted on 04.02.2002 that too in the absence of the complainant but in the alleged presence of Mr.Shabber Naik said to be representative of the complainant. The complainant flately & categorically denied the status of the said shabeer Naik figuring as representative of the complainant not known to the complainant.
24. So it is submitted by the complainant’s counsel that the heavy burden lies on the O.Ps to prove that the test was conducted properly and the demand was made for the payment of money under two impugned letter dated 06.02.2002 and 24.02.2002 served on complainant on 13.02.2002. As seen the alleged test is not conclusive not acceptable as the O.Ps did not file all papers of the report, as the O.Ps filed first page Xerox copy to show that the two persons of the Department and one Shabeer Naik representative of the complainant as if present. The remaining papers even the proof of the said persons have signed the test report in token thereof. Thus as the O.Ps failed to file the paper containing the signatures of the persons present at the test, as such no credence can be given to the test report it is also to be seen as rightly submitted by the learned counsel for the complainant that no independent other material placed on record by the O.Ps in support of their conducting of test either the connecting the said representative of the complainant as her representative either by producing, Naik’s evidence oral or affidavit evidence or even furnishing the periculars of the name, residence, father’s name his authority to represent with any authorize him letter to represent the complainant. As such the very basis for the action; of the O.Ps in high handedly collecting the money from the innocent consumers and respectable people like the complainant under the guise of threat of arrest & prosecution in pursuance of letters is illegal and arbitrary.
25. It is her further contentions of the complainant counsel the documents filed by the OPs do not support or reflect the realities without substantial proof and their mere saying that the complainant indulged in pilferage by inserting photo negative etc., was only indicative of their deficiency of service towards the consumer but resorting to such action by O.Ps official would very show that acted to satisfy their ego for the reasons best known to them highlighting the same by making wide paper publication in the leading Newspapers there by defaming and spoiling the respect and prestige of the complainant & her husband and that there is no material to support the same. In this connection it is pertinent to say that the O.Ps learned standing counsel endeavored to stress in his arguments by placing reliance on some ruling in support of their objections, they are 1995 (2) C.P.R PAGE Nos.190,191 & 1997 (2) CPR page3 No.92 for the purpose of saying that in cases of theft of energy the forum under the C.P. Act cannot interfere and so on. But the learned counsel for the complainant strenuously contended that the said rulings are not applicable to the facts of the present case, they do not help the O.Ps in as much as when there were criminal cases pending on the theft case against the complainant, involving taking the energy by the consumer direct from the main lines by passing the meter etc., as such the perellel proceedings cannot be indicted. One of the ruling relied on by the O.Ps the elaborate question is involved the civil court can have jurisdiction are not applicable as the questions involved in our case is very simple as there was any Acts of pilferage or not. It is his further submission that there is no question of any pilferage of energy proved to be present as being indulged in by the complainant in the absence of the material that the test of the Meter was not conducted properly 7 really in the presence of the complainant. It appeared to be manipulated one as discussed above and rightly submitted by the complainant counsel.
26. It is to be seen that when the original meters were there they were not changed inspite of request made by the complainant orally and in writing as can be seen from the letter copy filed by the O.Ps and the consumption charges being collected regularly as usually the officials of the O.Ps Department, the Meter readers would be visiting the service connection, but they never noised any objection about the unsealed condition of the meter containing a hole filed in by a price of paper and photo negative etc., as alleged. Thus there was any amount of deficiency of service on; the part of the opposite parties in rendering towards the consumers like complainant & the amount collected by the O.Ps under the impuned notices at 06.02.2002 and 24.01.2002 respectively.
27. The complainant counsel also placed strong reliance on certain ruling in supp0ort of the complainant version, they are AIR 2002 Rajasthan, 109, Sahjan Raj Suraha Vs Jaipur Vidhyuth Nagam Ltd., decide on 18.12.2001 & ruling on Hon’bleState Commission in F.A.No.424 of 2002 against the C.D.262 of 28 of District Forum, Kurnool, dismissing the appeal filed by the Electricity Department against the complainant Dr.M.Naga Rakja Rao, Professor of Forensic, Head of the Department, Medical college, Kurnool. In whose favour the District Forum granted relief of similar nature as claimed by the complainant. In this case the Hon’ble A.P.State Commission in the said order dated 24.11.2000 dismissed the appeal of the Electricity Department confirming the orders of the District Forum, Kurnool holding further that provisionally fixing & collecting amounts were arbitrary etc,. The learned counsel stressed by saying that the said ruling of the Hon’ble A.P.State Commission is directly applicable to the present case on all fourceas such the claim of the complainant has got to be accepted.
28. The further contentions of the complainant, though it is not proved the factum of broken condition of the seal of the Meter having a hole, having pieces of papers, film negative etc., is not conclusive proof of pilferage or theft of energy, he placed reliance on ruling reported in 1994 (1) CPJ page 74 where it was held that a mere broken seal of a Meter of not a conclusive proof of theft of energy more so in the absence of material in support of the same placed on record by the O.Ps.
29. The next aspect is regarding the second amount of Rs.10,585/- collected against the demand for Rs.20,970/- under the O.Ps letter dated 24.01.2002 relating the service connection No.71010 saying that the energy was used for non-domestic purpose, while the said meter is of cat-I (domestic) amounted Malpractice, questioning this levy as arbitrary the complainant relied on two circumstances the supply from the said meter used only for two consulting rooms and common waiting hall for the patients who visit both the Doctors. Such us is branded and based on by the O.P as non-domestic in as much as there is no clinic with beds of the patients as required by the Law. The complainant relied on the ruling of the Hon’ble High Court of Andhra Pradesh as published in the Tax Laws Study circle meeting publications, publishing the operative portion of the judgment of the High Court of A.P dated 15.06.1993 in SVG Radha Gupthat -Vs- State of A.P holding that an office room or consultation room of the chartered accountant be it of an individual or a firm is not a commercial establishment as such it does not full under non-commission of Maharastra, the non-domestic purpose of changing Tariff to the premises occupied by the Professional activity by a Lawyer or Doctor having no beds does not fall under non domestic use.
30. It may also be noted as submitted by the learned counsel for the complainant rather rightly too, that at the time of providing service meter 71010 the O.Ps officials must have made proper enquiry about the premises for which the service is applied for and purpose mode and manner of the intended use of the service. It was never objected about its usual use but to the shock and surmise the O.Ps has invented the false story of the alleged malpractice of using the service for the purpose other than it was released. We find considerable force in the submissions of the complainant counsel while we fail to find any modicum of any merits in the objection of the opposite parties.
31. On the careful consideration of the totality of the totality of the facts and circumstances and having due regard to the aspects involved and the material made available on record we are of the considered view that the complainant’s claim is just sustainable and maintainable and that there is considerable force to say that the opposite parties are not entitled to collect the amounts under the threat of arrest & prosecution under the impugned letters and their action was arbitrary. W find the point is accordingly in favour of the complainant and against the opposite parties and the opposite parties are liable to refund such extra amount collected with such rate of penal interest as they collect form the defaulters as held by the Hon’ble National commission in a recent decision reported in 2002 (3) ALT 64 CPA(NC).
32. But regarding the claim for compensation the complainant has not placed any independent evidence in support of the same, but it remains to be seen that in fact the O.Ps have made wide publicity about the respect, reputation & social status of the complainant & her husband who are respectable medical practioners having build up good will suffered mental agony public calumny which entitled them to claim some reasonable amount as rightly submitted by the complainant’s counsel. We feel in the circumstances it is just and proper by awarding a sum of Rs.10,000/- as compensation, against the opposite parties while directing in the impugned letters of the O.Ps demanding to pay Rs.28,486.50 and Rs.20,970/- as per the letters/ bills dated 06.02.2002 and 24.01.2002 respectively and also directing the O.Ps to adjust Rs.14,3185/-+Rs.3,000/- and Rs.10,585/- in future bills of the complainant’s electricity bills would meet the ends of justice and also warding costs of Rs.1,000/-.
33. In the result, in view of our discussions made above this complainant petition is allowed in part directing the opposite parties not to insist on the payment of the amounts mentioned in the impugned letters/bills of the O.P.No.2 dated 06.02.2002 bearing No.DE-DPE-F KNL-334-D 1748/2002 for a sum of Rs.28,486.50 ps and (b) dated 24.01.2002 bearing No.ADE-D-KNL-SBE-F 476-D 210/2002 for a sum of Rs.20,970/- and to re-adjust the amounts already paid by the complainant under protest namely Rs.14,318/- + Rs.3,000/- towards the first demand letter dated 06.02.2002 and the sum of Rs.10,585/- towards the second demand letter dated 24.01.2002 while holding that the said impugned two demand letters are arbitrary, invalid and not binding on the compliant. The opposite parties are further directed to pay a compensation of Rs.10,000/- for the mental agony and tortured suffered, with costs of the litigation of Rs.1,000/- to the complainant within a month from the date of receipt of this order. The office is directed to supply the order copy to the parties as per the rules.
Typed to dictation, corrected by me pronounced by us, in the Court, this the 20th day of June, 2002.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant:- Nil For the opposite parties:- Nil
List of Exhibits marked for the complainant: Nil
List of Exhibits marked for the opposite party:- Nil
Sd/- Sd/-
MEMBER PRESIDENT
