Karnataka

Dharwad

CC/153/2014

Shri. S D Dulikoppa - Complainant(s)

Versus

The Secretary Govt. of Karnataka Department of Energy, Bangalore - Opp.Party(s)

D.M.Manjunath

26 Mar 2015

ORDER

BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

                               

DATE:26^th March 2015         

 

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member

3) Shri.M.Lokesh          : Member

 

Complaint No.:153/2014    

 

Complainant/s:

1. S.D.Dulikoppa,

Age: 58 years, Occ: Agriculture, R/o.Devikoppa, Tq. Kalaghatagi, Dist. Dharwad.

 

2. C.D.Dulikoppa,

Age: 41 years, Occ: Agriculture, R/o.Devikoppa, Tq. Kalaghatagi, Dist. Dharwad

 

(By Sri.D.M.Manjunath, Adv.)

 

v/s

Respondent/s:

1. The Secretary to Govt of Karnataka, Department of Energy, M.S.Building, Dr.Ambedkar Veedhi, Bangalore 560001.

 

2. The Chairman & Managing Director, HESCOM, Navanagar, Hubli.

 

3. The Superintending Engineer (Elcl), O&M Circle, HESCOM, PB No.21, Tabib Land, Hubli

 

1.  

 

4. The Asst. Executive Engineer (Elcl), O&M, Sub Division, HESCOM, Kalaghatagi.

 

(By Sri.K.B.Navalagimath, Adv.)

 

O R D E R

 

By: Shri. B.H.Shreeharsha : President.

 

1.     The complainant has filed this complaint claiming for a direction to the respondents to restore the service of electricity to the flour mill, to order for payment of Rs.5 lakhs towards loss of income, to pay Rs.10 lakhs as compensation for causing harassment, mental agony, to pay Rs.10000/- towards cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, complainant is an agriculturist as well as owner of Basaveshwar Flour Mill situated at Tambur village of Kalaghatagi taluk.  The said mill was existing from the period of his late father and his father died in the year 1988 and the complainant is running the same for their livelihood. For the said flour mill the complainant had taken electric connection under meter no.TBMP-1 by the HESCOM. The complainants were paying the bills regularly. The said flour mill is situated in the village and the residents of the said village are poor and are paying the rent once in a month while some of the people are making part payment and used to pay the remaining amount during the period of crop season out of the earnings of the agriculture. This is the practice existed in their village as such complainant kept a sum of Rs.1500/- in due payable to the respondent prior to 2004. The complainants are paying the bills regularly and are paying the same as said above and the same fact is known to the respondents and it is usual practice among most people of their village. In the bill for the period February 2004 there was discrepancy and over reading was shown due to misreading by a meter reader of respondent.2. Accordingly the complainant requested the respondent.2 to rectify the same and made several requests but no useful purpose have been served. Meanwhile the respondents disconnected the electric supply without any reason and for no fault of the complainants. Thereafter the respondent.2 demand for payment of the dues in one lumpsum. Inspite of requests made by the complainants the respondent.2 did not heed up and rectify the defects & also declined to restore the supply. At the instance of respondents the complainants became jobless for 4-6 years. Inspite of best efforts made by the complainants the respondents did not rectified the discrepancies in the bill and the same remained unsolved. After several requests the respondent.2 visited and inspected the meter and submit report to the HESOM Kalghatage on 29.01.2007 & he instructed to prepare the bill. Without rectifying the bill and without prior information one Mr.Ballari Section Officer of HESCOM Kalaghatagi replaced the electric meter with a new one on 02.06.2009 and restored the electric supply and told the complainant to run the flour mill. During that time the said Section Officer told, the matter will be bring to the higher authorities and will rectify the discrepancy as early as possible. When the said Section Officer replaced the meter he did not assign the reason for replace. On 03.11.2009 the KPTCL Vigilance Police visited the mill & falsely alleged theft of electricity by complainants also they seized meter and wire. During that time the complainants have told the allegations are false and permit them to run the mill to earn for livelihood but the Vigilance people did not heed up and registered a false case of theft of electricity against the complainants to an amount of Rs.1,10,206/-. The respondent.2 did not issued any bills to the complainants for the period 02.06.2009 to 03.11.2009. The KPTCL vigilance police have filed summary case No.22/2010 u/s.135 of Electricity Act 2003 before II Addl. Dist. & Sessions Judge, Dharwad against complainant.2. On 20.03.2010 the vigilance police have submitted report to the II Addl. Dist. & Sessions Judge, Dharwad to close the summary case submitting that the accused/complainant.2 has paid a sum of Rs.44000/- to the respondents. But the complainant.2 did not paid any amount to the police as per the report submitted by the Police Inspector to the court. The Section Officer Mr.Ballary of HESCOM Kalghatagi himself has paid Rs.44000/-. So far the complainants have not received any summons from the court and also the respondents did not informed the same to the complainants. The II Addl. Dist. & Sessions Judge, Dharwad closed the case on the report, but the respondents did not returned the meter and wire seized by them and also did not re-conveyed the electric connection to the flour mill. Even to the letter dtd.21.06.2013 to AEE did not taken any action in replying to the same nor re-conveyed the connection. Fed up by the action of the respondents the complainants got issued legal notice on 03.08.2013, but not replied so far. Hence, the complainants filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondent.4 appeared. While the respondent.1 to 3 remained absent despite service of notice. Hence, they placed exparte and exparte proceedings initiated against them.

4.     While the respondent.4 filed both preliminary objections as well as written version in detail denying and disputing the complaint averments based on the specific points that the very complaint is false, frivolous, vexatious, not maintainable in the eye of law and contrary to the law and facts and further took contention that since the vigilance squad of the respondents have registered a case against complainants u/s.135 of Electricity Act 2003 for theft of electricity this Forum barred by the jurisdiction to entertain the complaint and also taken contention with regard to the fact the complaint is barred by time limitation and also taken contention that the complainants being running the flour mill which is a commercial activity, the complaint is barred for adjudication under CP Act. Among such other admissions and denials the answering respondent denied the complaint averments in toto and prays for dismissal of the complaint as not sustainable under law. While the answering respondent admits initiation of case for theft of electricity u/s.135 of Electricity Act 2004 in SC No.22/2010 by the Vigilance Police on the file of II Addl. Dist. & Sessions Judge, Dharwad & also admits the closure of the said SC Case pending before the II Addl. Dist. & Sessions Judge, Dharwad on the report submitted by the vigilance after payment of Rs.44000/- by the complainant, while denied the said amount was paid by the Section Officer of the respondent as contended by the complainants. Further taken contention that if such being the matter the complainant till initiation of the present complaint before this Forum did not raised any voice so far and is made with the false intention to file the present false complaint against the respondents and prays for dismissal of the complaint for all those reasons averred by the answering respondent by granting compensatory cost to the respondents.

5.     In the midst the complainants have also filed objections to the preliminary objections filed by the respondent.4 and prays for dismissal of the same as it is not sustainable under CP Act. Due to insistence made by respondent to hear on preliminary issue and to decide it before proceeding to merits and oppose made by the complainants not to decide the preliminary issue unless establish the real facts of the case by the complainants and as complainants insist to give an opportunity to establish their case this Forum keeping open the orders on those points with a direction to the parties that those points will be decided once for all at the time of disposal of the complaint on merits initiated for prosecution of the case.

6.     On the said pleadings the following points have arisen for consideration:

1. Whether complainants haveproved that there was deficiency in service on the part of respondents ?
2. Whether complainants are entitled to the relief as claimed?
3. To what relief the complainants are entitled ?

 

Both have admits sworn to evidence affidavit. On the request of complainants through IA opportunity was given to cross examine the RW1. Apart from cross examining the RW1 complainant also filed another IA to permit him to examine the vigilance people as his witnesses. After hearing the argument on the said IA permission was given by allowing the application. Despite appearance of the witnesses cited by the complainants, the complainant failed to lead the evidence of those witnesses summoned by him. Hence, the witnesses summoned by the complainant were not examined. Both have relied on documents and citations. The complainant apart from argument also filed notes of argument. Heard. Perused the records.

Finding on points is as under.

1. Accordingly 
2. Accordingly  
3. As per order

 

Reasons

Points 1 and 2

 7.    On going through the pleadings & evidence  of both the parties apart from main issues framed by this Forum this Forum would like to frame additional preliminary issues for consideration and determination of the complaint as below.

1. Whether the transactions involved is a commercial one and this Forum has got jurisdiction to adjudicate the complaint as brought?
2. Whether the complaint as brought is maintainable on the point of limitation & this Forum has got jurisdiction to adjudicate the same ?
3. Whether the transaction involved is u/s.135 of Electricity Act 2003 (theft of electricity) and could comes within the jurisdiction of this Forum for adjudication ?

• and took up for adjudication at first and then to proceed to determine issues on merits at later.

Since the facts have been revealed in detail which requires no repetition.

8.     As rightly pointed out by the respondent & discussed it is evident that the complainant is an agriculturist and also running Basaveshwar Flour Mill. The contention of the complainant is that the complainants as admitted by them are agriculturists & running flour mill & it could be treated as earning for livelihood. But with regard to the running of flour mill business is concerned the respondent argued it cannot be treated the business transaction is for livelihood and it will be purely a commercial that apart the complainant had obtained electricity connection to his Basaveshwar Flour Mill unit under the head “commercial connection” so it cannot be treated as non commercial. Hence, the complaint is not maintainable.

(a)    Though the complainant had taken contention in his pleadings as well as in his evidence he is carrying out both agriculture as well as flour mill business for livelihood and even otherwise on that point either the complainant or the respondents have not led any evidence to show that it  is for their livelihood or is otherwise is commercial one by the respective parties to the complaint. In the absence of evidence, since the complainant had pleaded it is for livelihood we consider and hold the complainants are doing and involved in agriculture and flour mill business for their livelihood and thereby we answer preliminary issue no.1 in affirmatively and hence this Forum has jurisdiction to adjudicate the same on this point of issue.

9.     As far as concerned to preliminary issue no.2 i.e. the limitation point of view of jurisdiction as per the admission of the complainant and as it is the ground for cause of action for the present complaint i.e. the disconnection of electricity supply by the respondent in the year 2004 which cause reason for determining this issue on the basis the present complaint filed on 12.08.2014 whether is well within the time limitation prescribed u/s. 24(A) of CP Act. As rightly pointed out when the cause reason for the present complaint is disconnection of electric connection in the year 2004 is the cause of action and in the absence of application u/s.24(A) could this complaint can be entertained and this Forum has got jurisdiction to adjudicate the same to be determined.

(a)    The very case of the complainant is that subsequent to the disconnection he made repeated several approaches to the respondents to rectify the misdescrepency in the bill inspite of it the respondent.2 did not rectify the same to the month of February 2004 due amount was paltry amount of Rs.1500/-.

(b)    However the complainant admits the due of electric bill both in the pleadings as well as in the evidence the complainant pleaded and further averred that the complainant being resident of a rural village usually in the villages there is practice in the village people to pay the amount whenever they harvest the crop and derived the money out of the yieldings, the village people use to pay the bills and the same also noticed by the respondents and the respondents were also co-operating for the said practice.

(c)    This assertion of the complainant is totally denied by the respondents. Under those circumstances the assertion of the complainant cannot be acceptable. No substance is placed in support of this assertion by the complainant. So also the respondent denied the misdescrepency in the bill and approach of the complainant for rectification. Hence, this assertion of complainant also cannot be accepted.

(d)    Further grievance of the complainant is that even though there is arrears of electric bill the respondents without issuing prior notice have disconnected and it is against to the law and social justice. In this moment it could be noted when the RW.1 is tendered for cross examination by the complainant and when the specific suggestion was tendered to the RW1, the RW1 replies, since the transaction is of the year 2004, when the documents are not available and he being successive officer who taken the charge and serviced in the respondent unit from 28.09.2013 and as per the documents available there is no record to show that there was misdescrepency in the bill and also no documents are available pertaining to issuance of notice prior to disconnection of electric supply. In support of this contention the complainant relies on citations AIR 1990 SC 882 – Municipal Corporation of Delhi vs. M/s.Ajanta Iron & Steel Co. Ltd., i.e. in the case similar to this complaint of theft of electricity wherein the relied judgment in it is held - question whether allegation of theft were proved or not could be decided in appropriate proceedings and directed to restore electricity connection holding that it would not prejudiced to decide the theft of electricity case. Also on this point relied on AIR 1997 Alahabad 297 Lucknow bench wherein it is held - disconnection of supply without notice not sustainable. Taken into consideration of evidence of complainant and gist of relevancies relied and the same is applied to the case on hand though the respondents have committed wrong in disconnecting the supply without issuing notice the complaint filed on 12.08.2014 on the basis of cause of action arised in the year 2014 in the absence of delay condonation application the present complaint which cause results prior to 12 years is hopelessly barred by limitation and not fit for adjudication. Hence, we answer preliminary issue.2 in negatively, as such the present complaint is not sustainable on this point.

10.   As far as preliminary issue.3 is concerned as per the pleadings of the respondent and also as per the admissions and pleadings of the complainants it is a definite case of disconnection of electric supply in the year 2004. So also as admitted by the complainant to the month of February 2004 there was an arrears in the bill to a tune of Rs.1,500/-. The complainant has not produced any document to show that he has paid that due and in turn the respondents have restored the connection disconnected in the year 2004 thereafter the complainant came on paying the subsequent bills as and when assessed and bills were issued by the respondent. 

(a)    In the absence of documents by the complainant in this regard the complainant taken contention that one Mr.Ballari Section Officer of the respondent.2 replaced the meter and submits by this it is evident that the respondents restored the connections. On the other side it is the definite case of respondent that the complainant has unauthorisedly reconnected and was running the mill. The vigilance squad attached to HESCOM have raid and seized the meter and have registered the case against the complainant under FIR No.161/2009 Ex.C2 and thereafter summary case was initiated in SC 22/10 u/s.135 of Electricity Act 2003 Ex.C3 before the II Addl. Dist. & Sessions Judge Dharwad while the case was under prosecution the complainant.2 paid a sum of Rs.44000/- as per Ex.C.10 towards the compounding amount and the same was reported to the II Addl. Dist. & Sessions Judge Dharwad and in turn based on the memo of the vigilance squad/ complainant, the Hon’ble II Addl. Dist. & Sessions Judge Dharwad by recording the contents of the memo closed the said criminal proceedings.

(c)    For this contention of the respondent also the complainant objected and taken further contention that either the complainants have not paid any compounded amount, it is the Section Officer of the respondent only paid the amount. In order to prove this the complainant with the permission of this Forum taken witness summons to the vigilance squad and to the section officer. In response to the witness notice issued by this Forum the vigilance squad witnesses were appeared but the complainant did not examined them even though opportunities were given. By this it is evident that the complainant has made false allegation against respondent. By payment of compounding amount it is a clear case of admission by the complainant having committed electricity theft and committed offence u/s.135 of the Electricity Act 2003. In support of the contention of electricity theft by the complainant and thereby the present complaint barred the jurisdiction of this Forum to adjudicate the complainants case the respondent relied on Civil Appeal 5466/2012 Supreme Court - UP Power Corporation & others vs. Anees Ahmad LC for respondent argued and submits to dismiss the present complaint. While in support of contention of the complainant with regard to theft of electricity the LC for complainant also relied on catena of judgments RP 3144/07 NC; 2012 (1) CPJ 158 NC; 2012 (1) CPJ 7 NC; 2001 (3) CPJ 511 Punjab; 1995 (2) CPJ 190 Chandigad; 1998 (1) CPJ 1 NC. The relied cases by the complainant are pertaining to assessment of electric bill and back billing and compounding amount are not helpful to the complainant and will not come to rescue the case of the complainant which is of offence u/s.135 of Electricity Act 2003. Since the complainant had paid compounding amount as per Ex.C10 subsequently the complainant has no locus standi to contend that he has not committed the offence. Hence, it is purely a case of electricity theft complaint. Under those circumstances this Forum is barred from adjudicating the present complaint and we proceed and answer preliminary issue.3 in negative.

11.   In view of the discussions and findings on the preliminary issues the consideration and determination and giving findings on main issues does not arise.  Hence, are not sustainable.

12.   The complainant knowingly well aware of all these discrepancies, limitation point, jurisdiction point, maintainability of the complaint and theft of electricity and being have committed offence u/s.135 of Electricity Act and payment of compound amount suppressing all these facts have filed this false and spurious complaint. Apart from filing spurious complaint the complainants repeatedly filed unsustainable interim applications with an intention to harass the respondents. Even after allowing those applications and given opportunities to prove the case and when the witnesses were present before the Forum for giving evidence complainants with forethoughts that their colours of spurious complaint will be exhibited before the open court avoided the circumstances and did not chosen to examine those witnesses who were summoned by the complainant. This will be a latent instance for spurious complaint of the complainant. If the complainants were not warned properly it will give scope for still spurious complaints in future. Those spurious complaints will be curbed only by way of punishment by way of imposing heavy costs.

13.  In view of the above discussions we have arrived and proceed to held issue.1 and 2 accordingly.

14.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

Order

        The complaint is dismissed with a cost of Rs.5,000/-. Among the cost Rs.2,500/- shall be deposited in the Consumer Welfare Fund and remaining Rs.2,500/- shall be paid to the respondent.4’s account towards compensation and cost of the proceedings. The complainant shall deposit the same within 30 days from the date of receipt of copy of this order. If the complainants failed to deposit the same the said amount shall carry interest @9% P.A. from thereon. Failing to comply the same, the respondent.4 shall recover the same by filing Execution Petition for the entire amount and out of the recovered amount Rs.2500/- shall be paid to the consumer welfare fund account.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 26^th day of March 2015)

 

 

 

(Shri.M.Lokesh)                   (Smt.M.Vijayalaxmi)                            (Shri.B.H.Shreeharsha)

Member                                 Member                                                 President

Dist.Consumer Forum            Dist.Consumer Forum                        Dist.Consumer Forum

MSR