BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 23/2012.
THIS THE 3rd DAY OF SEPTEMBER 2012.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
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COMPLAINANT :- Mr. Virendra Patil S/o. Shivarudragouda, Age: 39
years, Occ: Agriculture & Business, R/o. Kalamagera, Tq. Manvi, Dist: Raichur.
//VERSUS//
OPPOSITE PARTIES :- 1. The Executive Engineer (Ele) O&M Division,
GESCOM, Raichur.
2. The Executive Engineer (Ele) O&M Division,
Section Office, GESCOM, Kowtal, Tq. Manvi.
3. The A.E.E. (Ele) Vigilance Division, GESCOM, Raichur.
CLAIM : For to pay the Rs. 36,800/- along with interest at the
rate of 20% since from the date of acquittal in Spl.
No. 235/2009 to till realization and Rs. 10,000/- towards compensation and Rs. 5,000/- towards cost of the proceedings.
Date of institution :- 21-03-12.
Notice served :- 18-04-12.
Date of disposal :- 03-09-12.
Complainant represented by Sri. T.M. Swamy, Advocate.
Opposite Nos. 1 & 2 represented by Sri. B.P.H., Advocate.
Opposite No-3 Ex-Parte.
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This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Gururaj Member:-
This is a complaint filed U/sec. 12 of Consumer Protection Act by the complainant Virendra Patil S/o. Shivarudregouda against the Respondent No-1. The Executive Engineer (Ele) O&M Division, GESCOM Raichur, (2) The Assistant Executive Engineer (Ele) O&M Sub-Division Section Office, GESCOM, Kowtal, Tq. Manvi. (3) The Assistant Executive Engineer (Ele) Vigilance Division, GESCOM, Raichur.
The brief facts of the complainant case are that, the complainant is the consumer of RR No. KLMP-1 connected by the Respondents office for to run floor mill situated at Kalmagera village, Tq. Manvi.. In the year 2008 the Respondent No-3 has visited the floor mill of the complainant and allegedly found tampering of meter and thereby charge sheet has been filed against the complainant for the offence U/sec. 135 of Electricity Act 2003, in Spl. CC.No. 235/209. After facing the trial before the Hon’ble Session’s Judge Raichur, the case has been decided in favour of the complainant and he has been acquitted from the Hon’ble Session’s Judge.
Further, it is the case of the complainant that subsequent acquittal from the said case, the complainant requested for to refund the amount of Rs. 36,800/- which has been deposited by the complainant on 24-11-2008 to 17-06-2009 for reconnection at the time of said alleged theft case. The complainant also made letter correspondence through letter dt. 28-06-2010 and 27-06-2011 by enclosing certified copy of the judgment. But, even inspite of receipt of the letter the Respondent No-3 has not taken any action. But Respondent No-1 through letter dt. 18-07-2011 intimated the Respondent No-3 for to take proper steps in respect of refunding of the deposited amount of Rs. 36,800/-. But excepting that, neither the Respondent No-3 nor the Respondent No- 1 & 2 have taken any action for refunding the said deposit amount after the acquittal from the case. Hence with alternative remedy he has approached this Hon’ble Forum seeking the relief of direction against the Respondent to pay the Rs. 36,800/- along with interest at the rate of 20% since from the date of acquittal in Spl. No. 235/2009 to till realization and Rs. 10,000/- towards compensation and Rs. 5,000/- towards cost of the proceedings.
2. After filing the complaint the Forum has heard the counsel for the complainant and got issued notice to the Respondents. After services of the notices the Respondents have appeared through their counsel and Respondent No-2 has filed written version. The Respondent No-1 has adopted the same. The Respondent No-2 in his written version contended that, the complainant is running flour mill for his livelihood but as a matter of fact, he is running the flour mill for business purpose. The complainant is a well to do person he has got sufficient sources of income from his agriculture and also other business, hence he is not running the flour mill for his livelihood.
The complainant has deposited the sum of Rs. 36,800/- towards back billing charges but as a matter of fact he has paid Rs. 36,000/- on different dates towards Back Billing Charges voluntarily. He is not entitled for refund of said amount on the ground that, he has been acquitted in special CC case. Further, he has contended that, there is no proper direction in this regard from the Hon’ble Session’s Court in he said judgment. The said judgment is very clearly that, he has been acquitted from criminal liability but not from the civil liability. In order to claim his back billing charges he has to prefer an appeal before the competent Appellate Authority as per the provisions of KERC. Further, he has contended that, the complaint of the complainant is barred by limitation and there is no proper allegation regarding the deficiency in service, hence sought for the dismissal of the complaint with exemplary cost. Further they have also contended that, there is no deficiency on their part.
3. During the course of enquiry the complainant has filed sworn-affidavit by way of examination-in-chief. The complainant has got marked (4) documents at Ex.P-1 to Ex.P-4. Similarly the Respondent No-2 has filed his evidence by way of affidavit Section officer GESCOM, Kowtal by name Shivappa, and same has been adopted by the Respondent No-1 & 2 by filing memo to that effect and have filed (3) documents at Ex.R-1 to Ex.R-3.
4. Heard the arguments and perused the records. The following points arise for our consideration and determination:
1. Whether the complainant proves deficiency in service by
the Respondent as alleged.?
2. Whether the complainant is entitled for the relief’s sought
for?
5. Our finding on the above points are as under:-
1. In the Affirmative. 2. As per final order for the following.
REASONS
POINT NO.1:-
6. There is no dispute that, the complainant is the consumer of Respondents office and he has availed electricity service from the Respondent to run the floor mill. Further it is also not in dispute that, he is paying the electricity bills regularly to the Respondents and about the inspection conducted by the Respondent No-2 and issued a charge sheet made punishable U/sec. 135 of Electricity Act 2003 and filed CC Case No. 235/2009 in turn same has been acquitted by the Hon’ble Addl. Session’s Court, Raichur on 09-03-2011. Further it is also not in disputing that, the amount of Rs. 36,000/- has been paid by the complainant to the Respondent.
7. On perusal of the pleadings of the parties, and their documents now, the points are arising before us to consider:
1. Whether, the amount deposited by the complainant is the amount for reconnection or it is a Back Billing Charges ?
2. Whether the complainant is running the said flour mill for his livelihood
or not and whether he is a consumer as defined under C.P. Act.,.?
3. Whether the complainant is entitled for to recover the deposited amount
after his acquittal from the Hon’ble Addl. Session’s Court.
8. The first point is concerned, we have perused Ex.P-2 and Ex.R-3 wherein the Ex.P-2 clearly shows that, Rs. 36,000/- has been recovered from the complainant as BBC. The Ex.R-3 speaks about the theft of the electricity by tampering of two face wires. Further on perusal of Ex.R-1 i.e, inspection report and panchanama produced Ex.R-2 are speaks about the theft of electricity. In this regard the opposite has also filed criminal complaint against the complainant under special CC (KPTCL) No. 235/2009 and the said case has been acquitted as per judgment of the Hon’ble Addl. Session judge Raichur i.e, Ex.R-1. Under such circumstances, the allegations made by the opposite against the complaint regarding theft of the electricity are not proved. Hence, the collection of Back Billing Charges on the strength of allegations regarding theft of electricity holds no good. When the tampering of electricity wires from the complainant was not proved by the Hon’ble Sessions court then, the allegations regarding use of electricity more than sanctioning power holds no value. Under such circumstances, collection excess amount as per Ex.P-2 on different dates to the tune of Rs. 36,000/- is nothing but collection of amount from the complainant can be treated as deposit and same is liable to be refunded to the complainant. No doubt the judgment produced under Ex.P-4 does not specifically speaks about the refund of the amount, but it is very clear that, theft of electricity has been rejected and on the strength of the rejection the complainant/accused of that case has been acquitted. Therefore, the collection of Rs. 36,000/- on different dates under Ex.P-2 in respect of Back Billing Charges is to be treated as “deposit’ hence same is to be refunded to the complainant as it is recovered for to reconnect the electricity as contended by the complainant.
The second point is concerned, no doubt the complainant is running the flour mill for to earn profit by making it, as a business but the opposite in his version strongly contended that, the complainant has obtained the electricity service to the flour mill for to make profit by way of business but this contention of the opposite cannot be accepted because, in order to prove their contention of opposites have not filed any documents to show that, the complainant is having other sources of income and he is running flour mill for the purposes of business but not to earn his livelihood, bare on this contention the Respondent cannot attribute that the complainant is not a consumer and his complaint is not maintainable under C.P. Act. Section 2(1)(d) of the Consumer Protection Act is very clear in respect of the definition of consumer, according to section 2(1)(d) of the act consumer means any person who, _
“buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person but does not include a person who obtains such goods for release or for any commercial purpose or
ii) hires any services for a consideration which has been paid or promised or partly paid any partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who heirs the services for consideration paid or promised or partly paid and partly promised or under any system of deferred payment, when such services are availed of with the approval of i.e, first mentioned person.”
Here it is not the case of the complainant that as per section 2(1)(d)(i) of the Act he has running the flour mill for consideration or for any commercial purpose to hold that complainant is not a consumer. He has obtained electricity from the Respondent in order to run the flour mill for self earning purpose. As per section 2(1)(d)(ii) the Respondents bounden duty to render service by supplying the electricity in accordance with the requirements of the complainant’s flour mill. Under the said circumstances we cannot believe that the Respondent has not committed any deficiency in dealing with the matter in question. The complainant rightly proved that, he is the consumer under the ambit of C.P. Act. Hence, the Point No-2 has gone in favour of the complainant.
The Counsel for complainant has submitted four rulings of Hon’ble National Commission, which was published in CPR 2012 (1) Page 337, Hon’ble State Commission of Kerala, published in CPR 2012 (1) Page 85, Hon’ble of our Karnataka State Commission, order in Appeal No. 1872/2005 KSCDRC and our District Consumer Forum, Judgment, CC No. 44/2009 in order to prove his case, in respect of all above points we have discussed. In the said rulings we have considered first three judgments as they are amply applicable to the case of the present case on hand. On the other hand, the opposite have filed rulings of our Hon’ble High Court, published in AIR 2006 Karnataka Page No. 23 in Executive Engineer KPTCL V/s. Eshwaramma Case, wherein, regarding Civil Courts jurisdiction has been discussed regarding Back Billing Charges with compounding fees but, the facts involved this case and the facts involved in the case on hand are quite different, herein the present case the Hon’ble District & Session’s Court had clearly held that, there is no case of theft of electricity by the complainant and apart from this, the opposites have also not produced any single piece of paper to show that, the complainant has stolen the electricity by bypassing the electrical wires. Under such circumstances, demanding or receiving the extra charges on the ground of Back Billing Charges itself, holds no good and the opposites have no rights to retain the said amount hence, we have with great respect not accepted the ruling submitted by the opposites.
The third point is concerned, as we have discussed in Point No-1, the opposites have utterly failed to prove the complainant has committed a theft of electricity by passing electrical wire connected to the flour mill. The said fact has been already proved by the judgment produced under Ex.P-1, further there is no document to show that, the said amount can be retained with the opposite even after acquittal of the case or theft has not been proved. The reason for receipt of the amount of Rs. 36,000/- is clearly shown under Ex.P-2 for Back Billing Charges. According to the electricity charges will comes only if, the electricity has been used more than its permission and that has been suppressed by the complainant by way of tampering the meter or electricity but, here in this case, though the Respondents have taken such contention about the theft of electricity but same has been not proved by any means of evidence. hence under such circumstances the contention of opposite holds no good. Therefore, the complainant is rightly entitled to recover the amount, either it may be deposited or it may be paid for the purpose of BBC or for the purpose of reconnection. The opposite have no rights whatsoever to withheld the same. Hence, we have contended that, the complainant is entitled for to recover the deposited amount. Hence we answered the Point No-3 is in favour of the complainant. Under the above circumstances, viewing from all the angles we come to the conclusion that, without any reason the opposites have withheld the amount of Rs. 36,000/- of the complainant and thereby caused deficiency in service as contended by the complainant. Hence we answered Point No-1 in affirmative.
POINT NO.:-2
9. The complainant in his complaint has claimed, a direction against the Respondents to make the payment of Rs. 36,800/- with interest at the rate of 20% and Rs. 10,000/- towards damages and mental harassment and Rs. 5,000/- towards cost of the proceedings. But on perusal of the documents filed by the complainant particularly Ex.P-2 it is clearly goes to show that, he has paid Rs. 36,000/- to the opposite not Rs. 36,800/- hence, we have directed the opposite to refund Rs. 36,000/- along with interet at the rate of 9% p.a. not Rs. 36,800/-. As the relief regarding damage and mental harassment is concerned, the complainant has not produced any documents to show that, he has suffered with such damage and it was amounts to Rs. 10,000/- hence his claim is hereby rejected.
10. As regards to the cost of the proceeding is concerned, we have decided to award Rs. 3,000/- towards cost and Rs. 2,000- in respect of deficiency in service, Respondents accordingly we answered Point No-2.
POINT NO.3:-
11. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order:
ORDER
The complaint filed by the complainant is partly allowed with cost.
The Respondents are hereby directed to pay Rs. 41,000/- to the complainant along with interest at the rate of 9% p.a. from the date of this complaint till its realization
The complainant is entitled to recover a total amount of Rs. 41,000/- from Respondents jointly and severally.
Respondent is granted one month time to comply the above order from the date of this judgment for to make the payment.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 03-09-12)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur. District Consumer Forum Raichur.
