Karnataka

Bellary

CC-92/2014

HAYAT K - Complainant(s)

Versus

THE EXECUTIVE ENGINEER ELECTRICAL,GESCOM - Opp.Party(s)

R.SATHYMURTHY

12 Mar 2015

ORDER

FILED ON:	28-05-2014
ORDER ON:	12-03-2015

 

                                                                                                                                                                                                                                                                                                                                                                          

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BELLARY

 

C.C.No.90 of 2014    

 

 

  Present:  

 

  (1)   Shri. R.Bandachar,

                                          B.Com, LL.B.  (Spl) ……    President

                                                                                            (in-charge)

   

  (2) Smt Mary Havila,

                                          B.A.                       ……        Member

 

DATED THIS THE 12^th DAY OF MARCH 2015.     

 

COMPLAINANT   By-Shri R.Satyamurthy,             Advocate, Bellary.         //VS//	Satyanarayana, S/o Harinatharao, LIG-23, KHB Colony, Opposite to Forest Office, Kudligi road, Sandur.
RESPONDENT            By-Shri  K Sudhakar,           Advocate, Bellary,	The Executive Engineer, GESCOM, Gandhinagar, Bellary.

         

      

        

// O R D E R /

 

Per Shri R.Bandachar.   

 

       The complainant filed the complaint against the respondent U/Sec-12 of the Consumer Protection Act, 1986.   

             2.  The complaint in brief is that a house being No.LIG-23 was allotted and delivered to the complainant by Karnataka Housing Board, Bellary under registered sale deed with an undertaking that  house should be fit for occupation without electric facility.   As on the date there was electric supply with meter in running condition.   There is no RR number allotted by the respondent.  Every month the respondent’s officials came and taking reading of the meter, but did not issue the bills.  No money was received for want of meter number.   All of a sudden, the complainant received notice for Rs.29,312/- and Rs.4,000/- towards penalty to compound the offence from the Police about theft of the electricity by the complainant and disconnected the electricity and a criminal was registered on 28-03-2014.  Without prejudice to the rights of the complainant and under protest, the amount of Rs.4,000/- was deposited before the respondent.  The respondent promised to give electric connection.    There are no laches on the part of the complainant.  The KHB and its contractors are liable to set right the issue and it is mandatory on the part of the KHB to provide all amenities.  RR was fitted only on March-2013 with the assistance of the employees of the GESCOM.  Giving connection to the meters is duty of the GESCOM and no one can touch the main supply. Meters and other equipments are the properties of the GESCOM and they have to enquiry and verify its reading.  The complainant has not committed any offence and he is not liable to pay Rs.4,000/- towards penalty levied by the Police. The claim of Rs.29,312/- is beyond imagination and is against the law without any method and manner of calculations and fanciful.   The complainant requested the respondent to enquiry into the issue and to withdraw the criminal case.  The complainant got issued legal notice to the respondent.  The complainant suffering without electricity connection to his house in spite of payment of penalty to the respondent, which amounts to deficiency in service on his part.  Therefore, the complaint.  

 

               3.  The respondent filed the written version stating that all the allegations made in the complaint, except those which are specifically admitted, are denied. The complaint is wholly misconceived, groundless and unsustainable in law.  The allegations made in para-1 to 11 of the complaint are denied. No cause of action arose to the complainant to file the complaint.  The complainant is not entitled for the reliefs prayed in the complaint. The KHB, Bellary is the consumer as entered into agreement with the respondent’s company for permanent power supply to non-commercial lighting/non-combined lighting heating and power/commercial installations and as per the terms of the agreement, the respondent has agreed to supply the electricity to the KHB colony, Sandur and fixed the meters to some of the houses without supplying the electricity to the installed meters.   The allotee of the KHB house has to approach the respondent with allotment letter given by the KHB for registering his/her name and enter into contract of supply of electricity to the installed meters and thereafter, the respondent will register the name of the allottee and give RR number to the installed meters. But the complainant has not approached the respondent. There is no privity of contract between the complainant and the respondent and the respondent has not provided any service to the complainant. The complainant has activated the power supply to the meter unauthorizedly. On a complaint, the GESCOM-vigilance visited and inspected the KHB colony, Sandur and found there was unauthorized use of electricity by the complainant and others amounting to theft of electricity and a case was registered in Crime No.198/2014.  A notice was issued to the complainant to compound the offence by paying penalty. Having admitted the guilty and paying the penalty to the statutory body, the question of seeking refund of penalty is barred by law. The complainant is not a consumer as defined under the Act.  The grievance putforth by the complainant is not a consumer dispute.  There is no deficiency in service on the part of the respondent.  Therefore, the complaint be dismissed.   

 

           4.  The complainant to prove his case, as his evidence, filed his affidavit, which is marked as P.W.1 and got marked 01 document as Ex.P.1. The respondent as his evidence, filed one affidavit, which is marked as Rw.1 and got marked 02 documents as Ex.R.1 and Ex.R.2.

       5.  The written arguments are filed by the complainant as well as by the respondent.    

     6.  The points that arise for our consideration are;

 

1.	Whether the complainant has proved deficiency in service on the part of the respondent toward him, as alleged in the complaint?
2.	Whether the complainant is entitled for the reliefs prayed for in the complaint?
3.	What order?

 

 

 

 

            

 

 

 

 

 

7.   The findings on the above points are as under.  

Point No.1:	In the negative.
Point No.2:	In the negative.
Point No.3:	As per final order.

 

 

// R  E A S O N S //

Point No.1: -   

                    8.  It is the case of the complainant that  house being No.LIG-23 was allotted and delivered to him by Karnataka Housing Board, Bellary under registered sale deed and there is no RR number allotted by the respondent, every month the respondent’s officials came and taking reading of the meter, but did not issue the bills,  all of a sudden, the complainant received notice for Rs.29,312/- and Rs.4,000/- towards penalty to compound the offence from the Police about theft of the electricity by the complainant and disconnected the electricity and a criminal was registered on 28-03-2014 and without prejudice to the rights of the complainant and under protest, the amount of Rs.4,000/- was deposited before the respondent and therefore, the complainant has not committed any offence and he is not liable to pay Rs.4,000/- towards penalty levied by the Police and the complainant suffering without electricity connection to his house in spite of payment of penalty to the respondent, which amounts to deficiency in service on the part of the respondent.    

                     9.  However, the respondent has contended that the KHB, Bellary is the consumer as entered into agreement with the respondents’ company for permanent power supply to non-commercial lighting/non-combined lighting heating and power/commercial installations and as per the terms of the agreement, the respondent has agreed to supply the electricity to the KHB colony, Sandur and fixed the meters to some of the houses without supplying the electricity to the installed meters and the allotee of the KHB house has to approach the respondent with allotment letter given by the KHB for registering his/her name and enter into contract of supply of electricity to the installed meters and thereafter, the respondent will register the name of the allottee and give RR number to the installed meters, but the complainant has not approached the respondent and there is no privity of contract between the complainant and the respondent and the respondent has not provided any service to the complainant.  It is further contended that the complainant has activated the power supply to the meter unauthorizedly and the GESCOM-vigilance visited and inspected the KHB colony, Sandur and found there was unauthorized use of electricity by the complainant and others amounts to theft of electricity and a case was registered in Crime No.198/2014 and accordingly, a notice was issued to the complainant to compound the offence by paying penalty and having admitted the guilty and paying the penalty to the statutory body, the question of seeking refund of penalty is barred by law and the complainant is not a consumer as defined under the Act and the grievance putforth by the complainant is not a consumer dispute.    

                  10.    On the basis of the rival contentions of both the parties, we have to decide whether the complainant is a consumer and the complaint filed by the complainant is a consumer dispute.   In this regard, we have relied on the definitions of “consumer” and “consumer dispute” as defined under Consumer Protection Act, 1986. 

 

Sec-2(1)d) "consumer" means any person who- (i) 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 user 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 resale or for any commercial purpose; or (ii) 1[hires or avails of] any services 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 beneficiary of such services other than the person who 1[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person;   2(1)(e) "consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint;

 

                  11.   As per the said sections, the complainant has not availed any  services 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 beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first-mentioned person, from the respondent.   

12.  On the other hand, Karnataka Housing Board is the consumer as entered into agreement with the respondent’s company for permanent power supply to non-commercial lighting/non-combined lighting heating and power/commercial installations and as per the terms of the agreement, the respondent has agreed to supply the electricity to the KHB colony, Sandur.

13.  The complainant himself has stated in the complaint that the KHB and its contractors are liable to set right the issue and it is mandatory on the part of the KHB to provide all amenities. But the complainant has not impleaded the said KHB as a party to this proceedings which is proper and necessary for adjudication of the matter in issue. This is serious lacuna on the part of the complainant. On this ground the complaint is liable to be dismissed. 

14. Further the complainant has not produced any documents to show that he approached the respondent with allotment letter given by the KHB for registering his/her name and enter into contract of supply of electricity to the installed meters, as rightly contended by the respondent.  In this regard, we rely on the decision reported in III (2013) CPJ 1 (SC) (U.P. Power Corporation Ltd., & Ors. Vs. Anis Ahmad) wherein it is held thus; 

(i)In case of inconsistency between the Electricity Act, 2003 and the Consumer Protection Act, 1986, the provisions of Consumer Protection Act will prevail, but ipso facto it will not vest the Consumer Forum with the power to redress any dispute with regard to the matters which do not come within the meaning of “service” as defined under Sec-(1)(o) or “complaint” as defined under Sec-2(1)(c) of the Consumer Protection Act, 1986. (ii)A “complaint” against the assessment made by assessing officer under Sec-126 or against the offences committed under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before a Consumer Forum.

  15. Admittedly the complaint is made against the assessment made by the assessing officer of GESCOM regarding theft of electricity. Therefore, as per the said decision, the complaint filed by the complainant is not maintainable before this Forum and as such on this ground also it is liable to be dismissed.   The complainant is seeking relief for reconnection of the electricity and refund of penalty. However, regarding theft of the electricity, the complainant is at liberty to seek appropriate remedy available to him before appropriate Forum, as per the decision reported in 2013(3)CPR 544 (NC) (Shri Ram Kumar Vs. Uttari Haryana Bijili Vitaran Nigam through its Sub Divisional Officer and Anr). 

16.  For the reasons discussed above, this point is answered in the negative.   

Point No.2:-

 17.  As it is found that the complainant has failed to prove deficiency in service on the part of the respondent’s company, he is not entitled for any reliefs as prayed for in the complaint.   Accordingly, this point is answered in the negative.    

 

Point No.3: -

 18. In view of the discussions made under Point No.1 and 2, we pass the following; 

 

//ORDER//

 

The complaint filed by the complainant is dismissed. 

No order as to costs. 

 

Inform the parties accordingly.

 

(Dictated to the Stenographer, typescript edited, corrected and then pronounced in the open court  this 12TH day of March 2015)

 

 

 

 

 

	(R.BANDACHAR) PRESIDENT.
	(MARY HAVILA) MEMBER

 

 

 

 

trk