National Consumer Disputes Redressal
Assistant Engineer (Distribution) vs Bhanwar Lal on 29 September, 2011
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO.2646 OF 2011 (Against the order dated 21.3.2011 in Appeal No. 2290/2010 of the State Commission, Rajasthan) Assistant Engineer (Distribution) A.V.V.N.L. and others ........ Petitioner (s) Vs. Bhanwar Lal .Respondent (s) REVISION PETITION NO.2647 OF 2011 (Against the order dated 21.3.2011 in Appeal No. 2293/2010 of the State Commission, Rajasthan) Assistant Engineer (Distribution) A.V.V.N.L. and others ........ Petitioner (s) Vs. Ram Lal .Respondent (s) `REVISION PETITION NO.2648 OF 2011 (Against the order dated 30.3.2011 in Appeal No. 640/2011 of the State Commission, Rajasthan) Assistant Engineer (Distribution) A.V.V.N.L. and others ........ Petitioner (s) Vs. Dharam Pal .Respondent (s) REVISION PETITION NO.2649 OF 2011 (Against the order dated 30.3.2011 in Appeal No. 641/2010 of the State Commission, Rajasthan) Assistant Engineer (Distribution) A.V.V.N.L. and others ........ Petitioner (s) Vs. Sher Singh Goyan .Respondent (s) REVISION PETITION NO.3042 OF 2011 (Against the order dated 29.3.2011 in Appeal No. 2375/2010 of the State Commission, Rajasthan) Ajmer Vidyut Vitran Nigam Ltd. ........ Petitioner (s) Vs. Mahaveer Singh .Respondent (s) REVISION PETITION NO.3043 OF 2011 (Against the order dated 21.3.2011 in Appeal No. 582/2011 of the State Commission, Rajasthan) Ajmer Vidyut Vitran Nigam Ltd. ........ Petitioner (s) Vs. Suman Devi .Respondent (s) REVISION PETITION NO.3044 OF 2011 (Against the order dated .1.4.2011 in Appeal No. 666/2011 of the State Commission, Rajasthan) Ajmer Vidyut Vitran Nigam Ltd. & others ........ Petitioner (s) Vs. Girwar Singh .Respondent (s) REVISION PETITION NO.3045 OF 2011 (Against the order dated 29.3.2011 in Appeal No. 2376/2010 of the State Commission, Rajasthan) Ajmer Vidyut Vitran Nigam Ltd. ........ Petitioner (s) Vs. Mahesh Kumar .Respondent (s) BEFORE: HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER For the Petitioners : Mr. Manu Mridul, Advocate with Mr. Anan tK. Vatsya and Ms. B. Parveen, Advocates Pronounced on: 29th September, 2011 ORDER
PER JUSTICE V.B. GUPTA, PRESIDING MEMBER By this common order, above mentioned 8 revision petitions are being disposed of since common question of law and facts are involved.
Respondents/Complainants herein, filed complaint before District Forum, Jhunjunu (Rajasthan) alleging that petitioners have issued wrong demand notice and asking them to deposit certain sum towards the charges of electricity consumed by them for the period when the display screen of the meter was dysfunctional. Respondents further alleged that petitioners have issued false bill for the period in question and petitioners did not delete the differential amount from the demand notice despite several request.
Accordingly, respondents prayed for quashing of demand notice and also for issuance of revised bill alongwith award of compensation towards physical and mental harassment.
2. In reply, petitioners took the plea that demand raised against the respondents are based on actual consumption of electricity. It is denied that respondents made any representation for change of their defective meters as alleged in the complaints.
3. It is the case of petitioners that they have rightly issued the demand to recover the statutory dues against the electricity supply connection of the respondents for the electricity consumed by them. It is also stated by the petitioners that the instant dispute arose due to non display of the reading of the electricity consumed by the respondents on the display screen of the meter, which does not mean that entire meters of the respondents were defective. The consumption of electricity was being recorded properly in a memory chip of the meter which contains a Non-Volatile memory. The data can be down loaded through meter reading instrument. Petitioners invited objections from respondents in respect of readings recorded by them through MRI , if any but the same was not responded by them.
4. District Forum allowed the complaints of the respondents and quashed the bills, in question and directed the petitioners to issue the revised bill on the basis of actual consumption.
5. Being aggrieved by the order of the District Forum , petitioners filed appeals before the State Commission. Vide impugned orders, State Commission dismissed the appeals of the petitioners.
This is how these matters have reached before this Commission.
6. It is contended by the learned counsel for the petitioners that the State Commission has exceeded its jurisdiction in giving direction to make reference of bungling in purchase of defective meters to the authorities concerned. State Commission wrongly concluded that there has been huge bungling in the purchase of meters as this conclusion is neither supported by any material nor any factual foundation had been laid by the respondents in their complaints, nor any evidence has been lead on this aspect.
7. It is also one of the contentions of the learned counsel for the petitioners that meters which have been labeled as defective are not defective, as the record of the consumption is accurately retained in a non-volatile memory which is pre installed in the meters despite the readings not been shown on the external display of the meter. It is not the case of the respondents that the meters installed in their premises were defective from the date of installation. Non-display of reading in the LCD of meters is merely a minor fault and it cannot give rise to presumption that there has been a mass bungling in purchase of meters resulting in loss of public exchequer. Thus, the impugned order is liable to be set aside.
8. District Forum in its order has held:-
5. Indisputably the electricity meter installed at the premises of the complainant belongs to the Corporation Opposite Parties and it was the responsibility of the employees/officers of the opposite party corporation to have issued the bill of the amount for electricity consumption to the complainant on the basis of the meter readings.
Therefore, in the present case it seems that the officers/employees of the opposite parties by proceeding at slow pace, issued the bills on average basis without replacing his meter.
Thereafter on 30.1.2.2009 by doing the MRI of the meter of the complainant suddenly found that the electricity consumption has been of 4378.6 units. The opposite parties corporation have not made any allegation on the complaint of tampering with the meter installed by the opposite party at the premises of the complainant or having used excessive electricity or theft of electricity. In spite of having the knowledge of the fact for a long time, that the display of meter has not been showing the readings bills were given on average basis. The meter was not changed which is the negligence of the opposite parties, for which the complainant cannot be found at fault. By not fulfilling its duties diligently the Opposite Parties have arbitrarily received the amount on average basis and, thereafter, by getting the MRI done the sum of Rs.13450.10 towards the remaining units was debited in the account of the complainant and sent a bill of March, 2010 by adding the said amount which is not justified and proper in any manner.
9. State Commission while dismissing the appeals observed:-
There is no dispute that in the above appeals the meters were not showing any reading as such the concerned consumers were sent bills on average basis and payment was also made by the concerned consumers accordingly. It was only after considerable delay that the meters were changed and on the basis of MRIs of the defective meters, the bills of difference were sent to the consumers. There is no allegation that the meters in any way tempered with or misused by the consumers. There is no report or explanation whatsoever as to in spite of the meters not displaying reading the authorities did not take any steps immediately for changing the defective meters. There is also no explanation as to whether the MRI can show the monthly consumption of the power by the consumer for the period the meters were not showing any reading. The consumer is entitled to certain concessions/ rebates in monthly bills, however, the arrears bill is sent with penalty without giving any concession or rebate and even proper opportunity of hearing not given to the consumer.
Admittedly the defective meters have been installed by the authorities. There is also no clarification as to whether any action had been taken against the defaulting officers who were responsible for purchasing and installing the defective meters. In absence of any allegation of tempering with the meter or installing the defective meter by the consumer himself, in our opinion the whole responsibility lies with the authorities and consumers cannot be penalized for the same.
Having considered entire facts and circumstances, we find no error or illegality in the impugned orders passed in the above appeals and the same are dismissed accordingly as having no merits. The compliance of the orders passed by the District Forum concerned may be made by the appellants within 30 days from today. Since the appeals have been filed in a routine manner without application of mind, we impose a cost of Rs.10,000/- in each appeal on the appellants who may deposit the above cost in the consumer welfare fund within 30 days.
It has been noticed that large number of such complaints are received by the District Forums throughout the State and consequential appeals are also been filed before the Commission. It appears that the power corporations in the State are becoming biggest litigants in last few years so far as consumers are concerned. The counsels for the power corporations were unable to inform the Commission as to how the defective meters had been purchased in such a huge quantity and supplied to the consumers without proper inspection. The counsels also could not say as to whether any enquiry in regard to purchase of defective meters and supplying the same to the consumers have ever been made by the concerned authorities. The State Government is taking all steps to give maximum relief to the consumers at large, however, prima facie the picture appears to be different. The Consumer Foras are flooded with such litigations and both the parties are burdened with unnecessary litigation. Since it involves a huge amount from the public exchequer affecting the consumers at large who are been penalized without any fault on their part, we deem it proper to take cognizance of the whole matter and refer the same to the Chief Secretary, Govt. of Rajasthan, Jaipur to take up the matter with the concerned authorities and hold a proper enquiry in to the huge bungling in purchasing the defective meters.
10. Petitioners in their written statements have admitted that the reading of the meters could not be taken due to the clean sweep of the screen of the electricity meter and as such the sum could not be recovered from the respondents earlier which is being recovered now.
11. This clearly shows that the electricity meters installed by the petitioners at the premises of the respondents were defective. Now petitioners cannot take advantage of their own wrong.
12. There are concurrent findings of facts by the fora below that meters were found to be defective and as per record the meters were also changed by the petitioners. Had the meters not been defective, there could have been no occasion for the petitioners to have changed the meters. This goes on to show that petitioners have installed defective meters at the premises of the respondents. Thus, no fault can be found with the observations made by the State Commission as to whether any action has been taken by the petitioners, which is a Govt. body against the defaulting officials, who were responsible for purchase and installing the defective meters. The finding given by both the fora below are based on the facts and no legal issue is involved in the present matters.
13. In Narsingh Singh through LRs & Ors. Vs. Shanti Devi through LRs & Ors.2010 (115) DRJ 601. Delhi High Court has observed ;
It is well settled that where two Courts below have given a concurrent findings of facts, this Court under Article 227 of the Constitution of India shall not disturb the findings even if there is some mistake committed in appreciation of some part of evidence. Under Article 227, this Court does not correct the mistakes of law or mistakes of facts. The intervention of the this Court under Article 227 has to be only in those exceptional cases where the fora below had either not exercised their jurisdiction or had acted beyond jurisdiction or had ignored the well-settled legal proposition and acted contrary to law.
14. Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli Bikshalu and others, (AIR 1999 (SC) 3095) observed;
It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below.
15. Recently, Supreme Court in Rubi (Chandra) Dutta vs. United India Insurance Co. 2011 (3) Scale 654 observed ;
Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. IN this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.
16. Even, after getting two adverse findings, petitioners have chosen not to settle the claims of the respondents but have dragged them to the highest Fora under the Act.
17. It is a well-known fact that Courts across the country are saddled with large number of cases. Public Sector undertakings indulgences further burden them. Time and again, Courts have been expressing their displeasure at the Government/Public Sector undertakings compulsive litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now imposing costs upon Government/Public Sector undertaking not only when it pursue cases which can be avoided but also when it forces the public to do so.
18. Public Sector undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. Public Sector undertakings are possibly an apt example of being penny wise, pound-foolish. Rise in frivolous litigation is also due to the fact that Public Sector undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court.
19. The Apex Court in Bikaner Urban Improvement Trust Vs. Mohal Lal 2010 CTJ 121 (Supreme Court) (CP) has made significant observations which have material bearing, namely,
4. It is a matter of concern that such frivolous and unjust litigation by Governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment.
They are expected to show remorse or regret when their officers act negligently or in an overbearing manner.
When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to the corrected.
5. This Court has repeatedly expressed the view that the Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf.
5.1 In Dilbagh Rai Jarry V. Union of India, 1973 (3) SCC 554, where this Court extracted with approval, the following statement (from an earlier decision of the Kerala High Court.):
The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the States interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity.
The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak. Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations, which move private parties to fight in Court. The lay-out on litigation costs and execution time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf.
I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.
5.2 In Madras Port Trust vs. Hymanshu International by its Proprietor V. Venkatadri (Dead) by L.R.s (1979) 4 SCC, 176, held:
2. It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable.
5.3 In a three-Judge Bench judgment of Bhag Singh & Ors. v. Union Territory of Chandigarh through LAC, Chandigarh, (1985) 3 SCC 737.
3. The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen.
6. Unwarranted litigation by Governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are:
(i) All claims against the Government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest Court of the land.
(ii) If taking a decision on an issued could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secure a decision.
The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers-in-charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision-making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision making to Courts and Tribunals. The Central Government is now attempting to deal with this issue by formulating realistic and practical norms for defending cases filed against the Government and for filing appeals and revisions against adverse decisions, thereby, eliminating unnecessary litigation. But, it is not sufficient if the Central Government alone undertakes such an exercise. The State Governments and the statutory authorities, who have more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigation.
Vexatious and unnecessary litigation have been clogging the wheels of justice, for too long making it difficult for courts and Tribunals to provide easy and speedy access to justice to bonafide and needy litigants.
7. In this case, what is granted by the State Commission is the minimum relief in the facts and circumstances, that is to direct allotment of an alternative plot with a nominal compensation of Rs.5,000/- . But instead of remedying the wrong, by complying with the decision of the Consumer Fora, the Improvement Trust is trying to brazen out its illegal act by contending that the allottee should have protested when it illegally laid the road in his plot. It has persisted with its unreasonable and unjust stand by indulging in unnecessary litigation by approaching the National Commission and then this Court. The Trust should sensitize its officers to serve the public rather than justify their dictatorial acts. It should avoid such an unnecessary litigation.
20. Since two fora below have given detailed and reasoned orders which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, the present petitions are hereby dismissed with costs of Rs.10,000/- (Rupees Ten Thousand only) each, i.e. total costs of Rs.80,000/- (Rupees Eighty Thousand only)
21. It would also be pertinent to point out that on 16.9.2011 when the matter was listed for admission hearing, learned counsel for the petitioners stated that costs as imposed by the State Commission have already been deposited and he will file the proof of the same within two days. Till date no proof with regard to deposit of the costs as imposed by the State Commission has been filed on behalf of the petitioners. Under these circumstances, it is ordered that in case, petitioners have not deposited the costs as imposed by the State Commission vide impugned order, the same shall also be deposited with this Commission within four weeks, failing which, petitioners shall be liable to pay interest @ 9% p.a. till realization.
22. Petitioners are directed to deposit the costs by way of cross-cheque, in the name of Consumer Legal Aid Account, within four weeks from today.
23. Meanwhile, petitioners shall recover the costs amount from the salaries of the delinquent officers who have been pursuing these merit less and frivolous litigation, with the sole aim of wasting the public exchequer.
The affidavit giving the details of the officers from whose salaries the costs have been recovered, be also filed within four weeks.
24. Pending applications also stands disposed of.
25. List for compliance on 4.11.2011.
....J (V.B. GUPTA) (PRESIDING MEMBER) Sg.