-::BEFORE THE DISTRICT CONSUMER DISPUTES  REDRESSAL FORUM, AT BIDAR::

                                                               C.C. No.52/2016.

                                                            Date of filing: 27.07.2016.

                                                                   Date of disposal: 19.01.2019.

P R E S E N T:-    

                              (1) Shri. Jagannath Prasad Udgata,                                                                                                                                    B.A., LL.B.,

                                                                                                President

                             (2) Shri. Shankrappa (Halipurgi),

                                                                                 B.A.LL.B.,

                                                                                           Member.

COMPLAINANT/S:    1.   Prabhushetty S/o Shivappa Patil,        
                                            Age:62 years,  Occ: Agriculture,

                                            R/o Village Tegampur,

                                             Tq:Bhalki Dist: Bidar Karnataka State.                                                                                        

                                         ( By Sri.Sanjay Kumar Patil.,Adv.)                                    

                                                                 VERSUS

OPPONENT/S:        1)         The Assistat Executive Engineer, (Electrical), 
                                             O & M, Sub-Division, GESCOM, Bhalki

                                             Dist. Bidar, Karnataka State. 

                                    2)        The Executive Engineer, (Electrical),

                                             O & M, Sub-Division, GESCOM,

                                              Bidar Karnataka State.                             

                                      (By Sri.Mahesh S.Patil., Adv.)

::   J UD G M E N T  ::

By Shri. Jagannath Prasad Udgata, President.

The complainant has approached this Forum by filing a complaint u/s 12 of the Consumer Protection Act, 1986 alleging deficiency of service against the opponents.  The facts alleged by him are as follows:-

2.           That, he is an agriculturist by profession, owing land to the extent of Ac. 3.25gunta in Survey No.39 of Tegampur (village) Bhalki (tq), Bidar (Dist).  He has cattle shed on the said land, so also a bore well and for electrification purposes he has taken connection with approval of GESCOM officials against a monthly minimum charges @ Rs.300/-.  For such purpose, he had purchased electrical meter in September 2014 bearing Sl.No.42364517 of L&T make vide No.678/13-14.  He was provided electricity through a sub meter assigned number as TGMLP-65846 and is paying the consumption charges against the bills issued from time to time.  Further according to the complainant, his request for proper installation of meter was never heeded by opponents and few higher officers coming to the spot have wrongly imposed penalty.  He is a regular Consumer vide Meter o.TGMLP-65846, has never used any direct hook to draw electricity but the officials of GESCOM have wrongly levied Back billing amount as RS.38,198/- and compounding charges of Rs.8,000/-  on 30.11.2015 and have insisted on him to pay such bills and his representations orally to exempt such charges levied were never considered by the concerned officials.  He is also being given threats that, the electricity connection would be disconnected.  Terming this action as a deficiency of service, he is before us with prayers to set aside the Back Billing charges and compensation for damages.

3.          Upon notice, the opponents have put up appearances through their counsel and have filed elaborate written versions, in which as a prologue, they have termed the complaint as misconceived and non-maintainable.

 4.        It is further claimed that, the Managing Director of GESCOM should have been arrayed as  a necessary party and since there is a lapse in the part of the complainant, the whole complaint is bad in law.  It is canvassed that, the agriculture holding of the complainant is unknown to the opponents but the complainant having obtained a connection against monthly billing charges of Rs.300/- is admitted by the opponents.  They have disputed the assertions of the complainant regarding direct hook drawal of power so also the complainant having approached the officials regarding Back billing.  It is further stated that, GESCOM vigilance Police visited the complainants premises on 23.07.2015 and the later having been found to be consuming power by drawing through Direct hook, stealthily, a case was registered in Cr.No.684/2015 on the same day and panchanama was drawn.  It is further asserted that, since the case has been submitted to the special Court constituted under the provisions of the Electricity Act.2003, this Forum lacks the jurisdiction to try this case.  It was found on the spot that, the complainant was using stolen electricity to run a 3 H.P. motor for cutting grass, thereby causing loss to the GESCOM for which case was registered as per the provisions of the Electricity Act 2003 and the same is exclusively triable by the special Court constituted, for which the complaint is liable to be dismissed.

5.         Both sides have submitted documents listed at the end of this order, filed evidence affidavits and have argued their stand points elaborately, considering the rival stands canvassed by both sides, and ignoring the contention of the opponents that the case is unfit to be considered as the M.D.GESCOM is not made a party due to the fact that, the present officials (opponents) are also officials of the corporation, satisfying the prerequisites of order 29 of the C.P.C., we fix the preliminary points as below, to proceed further.

1. Whether the complainant proves that, there is deficiency of service in the part of the opponents?
2. Whether this Forum is competent to try this case?
3. What orders?

6.         Our answers to the points raised are as follows:-

1. In the negative.
2. In the negative.
3. As per the final orders owing to the following:-

                                       :: REASONS ::

7.         In the instant case, the complainant has alleged deficiency of service in the part of the opponents which is defined in Section 2(1) (g) of the Consumer Protection Act, 1986 as hereunder.

            “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;

8.         As the matter stands and agreed by both sides, the complainant is a consumer under GESCOM by obtaining power vide Meter No.TGMLP-65846 against a fixed monthly charges of Rs.300/-.  Such obtainment of power connection however would not entitle him to draw power illegally by using Direct hook and run a 3 H.P. motor.  Again, inspection of the installations in the area and detect tampering, meaning of supply lines or stealing electricity by the statutory authorities cannot be challenged by the Consumer terming it as deficiency of service.  Sufficient proof has been led by the opponents that, the complainant was stealing power for which case has been registered against him panchanama has been drawn and the F.I.R. etc. have been transmitted to the special Court constituted under the provisions of the Electricity Act 2003 and the matter is under consideration in the jurisdictional Court.  No deficiency of service has been proven by the alleger and hence we answer this point in the negative.

9.         Placing elaborate arguments, the opponents have placed before us a case law laid down by the Hon’ble High Court of Gujrat in special Leave Application No.13376 of 2009 with Letters Patent Appeal No.1941 of 2010 in Special Civil Application No.2148 of 2009 Manorama Ben Kansara V/s Madhya Gujrat Vij Co.Ltd and this case was decided on 21.06.2011 by the Hon’ble High Court in which, drawing reference to plethora of judgements laid down by the Hon’ble Apex court and the Hon’ble National Commission, at Para 41(c) it has been settled as follows:-

                                    *          *          *          *          *          *          *

            Para 41(c) In a case, where the bill is raised alleging indulgence in unauthorised use of electricity by a person u/s 126 of the Electricity Act, 2003 or the measures or the penal action taken for the offence under Section 135 of the Electricity Act, 2003, in absence of any provision made under the Consumer Protection Act, 1986 to entertain any complaint or any such action the petitions preferred by the Consumer are not maintainable before the Consumer Disputes Redressal Forum.

10.       In view of the ratio laid down supra, we answer this point accordingly and proceed to pass the following:-

ORDER.

1. The case stands dismissed due to lack of jurisdiction with following observations.
2.  It is perplexing that, after the F.I.R. was registered, no further action has been taken by the opponent corporation, which puts the entire matter in a smoke screen.  Further, we put our anxious consideration to the fact that, the State of Karnataka has permitted the agriculturist to consume free power for agricultural purposes.  The authorities are required to consider the grievances of the complainant in the right perspective and assuage his grievances.
3. There would be no orders as to cost or otherwise.

(Typed to our dictation then corrected, signed by us and then pronounced in the open Forum on this 19^th day of January 2019).

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

Member.                                                                President.                                                                                       

Documents produced by the complainant

1. Annexure.A- Original Back billing levy date. 30.11.2015.
2. Annexure.B– Original payment receipt date. 24.01.2015.
3. Annexure.C- Original payment receipt date. 25.02.2016.
4. Annexure.D– Original payment receipt date.30.04.2016.
5. Annexure.E-  Original bill date.14.06.2016.
6. Annexure.F- R.T.C. original for Survey No.39, Tegampur village.
7. Annexure.G & H- Two colour photographs.
8. Annexure.J.(I-ommitted)- Colour photo of Meter.
9.  Annexures-K-Computerised bill date. 14.07.2016 of Meter  
                              No.TGMLP 65846.

 Document produced by the Opponents.

1. Annexure.R.1-Copy of F.I.R. in Cr.No.684/2015 u/s 135 of  
                             Electricity Act of vigilance P.S. GESCOM Bidar.
2. Annexure.R.2- Copy of complaint in Cr. No. 684/2015.
3. Annexure.R.3- Copy of Spot Panchanama date.23.07.2015.
4. Annexure.R.4-Copy of Analysis report/Inspection report  
                              date.23.07.2015.

Witness examined.

Complainant.

1. P.W.1- Sri Prabhusetty S/o Shivappa Patil (complainant).

Opponent.

1. R.W.1- Sri.Basavaraj S/o Apparao Patil Executive Engineer (O&M) 
                GESCOM Bidar.

Sri. Shankrappa H.                                             Sri. Jagannath Prasad                                  

       Member.                                                                      President.