State Consumer Disputes Redressal Commission
Kumar Bhawsinka, Aged About 41 Years, ... vs Executive Engineer (Electrical) ... on 7 June, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION: ORISSA: CUTTACK CONSUMER DISPUTE CASE NO.144 OF 2002 Kumar Bhawsinka, aged about 41 years, son of late Shyam Sundar Bhawsinka, resident of Cantonment Road, Cuttack ... Complainant Versus 1. Executive Engineer (Electrical) Central Electricity Supply Company Orissa Limited, City Distribution Division No.1, Ranihat, Cuttack 2. Superintending Engineer, City Distribution Division No.1, Ranihat, Cuttack ... Opposite Parties For Complainant - Mr. D.P. Mohanty & Associates For Opp. Parties - Mr. D.P. Ray & Associate P R E S E N T : THE HONBLE SHRI JUSTICE A.K. SAMANTARAY, PRESIDENT AND SHRIMATI SMARITA MOHANTY, MEMBER O R D E R
DATE:- The 7th June, 2010.
Justice A.K. Samantaray, President.
This is a consumer complaint of the year 2002 filed by the complainant Kumar Bhawsinka against the opposite parties-Executive Engineer (Electrical) Central Electricity Supply Company of Orissa Ltd., City Distribution Division No.1, Cuttack and Superintending Engineer, City Distribution Division No.1, Cuttack, alleging deficiency in service and for that, claiming a sum of Rs.5,17,512/- on different counts.
2. The case of the complainant, as per the complaint petition, is that he is a domestic consumer of electricity bearing Consumer No. DOMOI-37347, having his residential building at Cantonment Road, Cuttack. He was receiving electricity bills on different occasions and was going on making payment, sometimes in full and sometimes in part, in the name of his late father. The complainants father Shyam Sundar Bhawsinka wrote a letter on 01.12.2001 to the opposite parties alleging that the bill dated 05.11.2001 for Rs.3,564/- was through average meter reading basis and the same was not correct. It was also mentioned in the said letter that after getting the letter, the Junior Engineer assured him that fresh reading would be taken, but, even though fresh meter reading was taken on 10.11.2001, no correct/appropriate bill was issued. Thereafter, again on 30.01.2002, the father of the complainant reiterated his previous contention and stated that in the bill dated 06.01.2002, the previous meter reading had been shown as 42517, but the present reading was 42828, thus the actual units consumed was 311 only, and for that he requested for issue of a fresh correct bill for consumption of 311 units to enable him to clear up the dues. Again, a letter was addressed to the S.D.O. (Electrical) on 23.02.2002 requesting him for correction of the electricity bill and the contract load. It is the case of the complainant that all on a sudden, the complainant received a penal bill from opposite party no.2 through letter no.7032 dated 04.09.2002 for an amount of Rs.91,153.25, which was calculated at double the tariff amount ranging from July, 2001 to June, 2002 showing the status of the meter as tampered and by-passed. According to the complainant, this allegation of tampering and by-passing of meter, as mentioned in the bill, is nothing but baseless as all along when bills were raised, the meter was shown to be O.K. by the Meter Reader. It is further in the complaint that the said allegation is not based on any meter reading or meter examination at any point of time, nor was the meter ever referred to the Electrical Inspector. According to the complainant, the provision contained in paragraph 105 of the O.E.R.C. (Condition of Supply) Code, 1998 lays down that if unauthorized use of electricity is detected, the same shall be determined after giving notice and opportunity of hearing to the consumer, who is entitled to adduce contrary evidence as to the excess load. Since this provision has not been followed while imposing penalty through the penal bill, there is utter violation of the principle of natural justice.
3. The opposite parties entered appearance and filed joint written version. They categorically stated that the complaint has been filed by the complainant with calculated mental design just in order to hoodwink this Commission to seek relief under the Consumer Protection Act. It is stated that it is the established view of the Honble Apex Court, Honble National Commission, Honble High Courts of India and the State Commissions including this Commission that pilferage of energy by tampering/by-passing from the licensee through installations installed in the premises of the consumer amounts to commission of an offence and no redressal by the courts of the relevant Commission/Forum is entertainable. Citing a decision of this Commission in Consumer Dispute Case No.24 of 2002 (Mrs. Prativa Patnaik v. Superintending Engineer and others, decided on 23.02.2003), it is stated by the opposite parties that such disputes are entertainable by the authorities under the Code only. Citing the established view of this Commission as well as the Honble High Courts and the Honable Apex Court, it is specifically stated that the dispute brought to this Commission by the complainant in the garb of a consumer dispute should be thrown away as it is not entertainable and the dispute raised by the complainant can only be properly adjudicated by the authorities under the O.E.R.C.(Conditions of Supply) Code, 1998. As to the factual issue, it is stated that prior to the present detection on 18.07.2002 relating to tampering of the meter by the Special Inspecting Party, the consumer was unauthorisedly utilizing power more than the contract demand and accordingly the contract demand was enhanced and the fact of enhancement of contract demand was intimated to the consumer. At the time of enhancement of contract demand, the meter was not verified by opening the same. Only on 18.07.2002, the squad while making a random inspection to different premised by giving their identity and intention/purpose, inspected the premises of the complainant, who was very much present then, and the complainant allowed the inspecting party to continue with their work. On verification of the meter unit, the inspecting party was surprised when they found that there was no jumper-proof supplied by the opposite parties at the time of inspection of the meter. Similarly, other seals were not found except the metal seal, which is available in the market for sealing. The inspecting party, before opening the meter, made a dial test from which it was evident that the meter dial was moving dead slow. This confirmed the doubt of the inspecting party regarding the fraud/mischief applied inside the meter. Accordingly, they opened the meter from which it was found that the incoming and outgoing meter terminal was sorted with a blue piece of wire inside the meter resulting in by-passing the meter. It is specifically stated in the written version that all throughout this exercise, the complainant himself was present, but when he was asked to sign in the meter verification report at the appropriate space meant for signature of the customer, he refused to sign though he received the copy of the verification report. The Supply Engineer, after calculating the usual loss, which had already been sustained, multiplied the same for the purpose of penalty in terms of clauses 104 and 105 of the Code, and the same was sent to the complainant. The opposite parties have also stated that since there was by-passing of the meter and unauthorized enjoyment of power by the complainant/consumer, the prayer for correction of the bill, as averred in the complaint, is not at all entertainable and the claim for correction of bill does not arise.
4. We have heard learned counsel for the parties. Mr. D.P. Mohanty, learned counsel for the complainant submitted that many letters were addressed by the father of the complainant to the opposite parties for correction bill, but those were not heeded to and no written reply was received from any of the opposite parties. In this connection, he drew our attention to the letter dated 30.01.2002 and the letter dated 23.02.2002 addressed to the S.D.O., Electricity, Ranihat, Cuttack and the Executive Engineer, Electricity, Ranihat, Cuttack and submitted that by the time the random inspection, as alleged, was conducted, the said father of the complainant, namely, Shyam Sundar Bhawsinka was already dead and his date of death is 18.01.2002. It is not understood as to how these two letters, i.e., the letters dated 30.01.2002 and 23.02.2002 addressed to the S.D.O. and the Executive Engineer, Electricity, could be written and signed by Shyam Sundar Bhawsinka if he expired on 18.01.2002. This itself is sufficient to come to a conclusion that these letters have been purposefully manufactured to be used in this consumer complaint. On a perusal of the verification report dated 18.07.2002 we find that this was done in presence of the complainant, who received the copy but refused to sign. Since there is mention that he had received the copy, as has been stated on oath by the opposite parties in their written version, we have no reason to disbelieve that the complainant was present throughout the inspection. The verification report clearly indicates that the incoming and outgoing meter terminal was sorted with a blue piece of wire inside the meter resulting in by-passing the meter. It is also mentioned that the sorting causes immediate danger to the safety of installations and person and that the consumer has dishonestly obstructed power. It was also noticed that the meter dial was moving dead slow. After verification, the subsequent exercise followed and the penal bill was served to the tune of Rs.91,153.25. Then followed the disconnection notice as per rule, after receipt of which the consumer complaint was filed by the complainant and this Commission granted stay of operation of the penal bill as well as the disconnection notice.
5. Unauthorised obstruction of power and consumption of the same is a criminal offence. As we have found and as was submitted by Mr. Ray, learned counsel for the opposite parties, this Commission in the case of Mrs. Prative Patnaik v. Superintending Engineer and others, has already held that imposition of penalty in such circumstance was the only option left. But, since in that case disconnection was made immediately without affording opportunity for payment of the penal demand, this Commission observed that before disconnection prior notice should have been given. However, this Commission did not interfere with the penal bill and observed that the complainant might move the appropriate authority for redressal of her grievance, if so advised. Following the aforesaid ratio, we do not want to interfere with the penal bill in the present case. That apart, as we have already discussed, the complainant has not come to this Commission with a clean hand and for that he cannot claim any redress under the Consumer Protection Act, 1986.
6. In the result, we dismiss the consumer complaint as the same is bereft of any merit and has been filed purposefully to avoid payment of the penal bill. The order staying operation of the penal bill as well as the disconnection notice is hereby vacated.
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(Justice A.K. Samantaray) President ..............................
(Smarita Mohanty) Member SCDRC, Orissa, Cuttack June , 2009/Nayak