State Consumer Disputes Redressal Commission
Sh. S.K. Justa. vs Superintendent Engineer (Operation), ... on 27 December, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 152/2017
Date of Presentation: 23.03.2017
Order Reserved On : 22.08.2017
Date of Order : 27.12.2017
......
Shri S.K. Justa s/o Late Shri J.R. Justa r/o Seri Ward No. 2
N.A.C. Rohru Tehsil Rohru District Shimla Himachal Pradesh.
...... Appellant/Complainant
Versus
The Superintendent Engineer (Operation) HPSEB Rohru District
Shimla Himachal Pradesh.
......Respondent /Opposite party
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Nitin Misra Advocate.
For Respondent : Mr. Ramakant Sharma Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 06.12.2016 passed by Learned District Forum in consumer complaint No.180/2013 title S.K. Justa Versus The Superintendent Engineer (Operation) HPSEB.
1 Whether reporters of the local papers may be allowed to see the order? Yes. S.K. Justa Versus Superintendent Engineer (Operation) HPSEB (F.A. No.152/2017) Brief facts of Consumer Complaint:
2. Complainant filed consumer complaint under section 12 of Consumer Protection Act 1986 against opposite party pleaded therein that complainant is old person. It is pleaded that complainant is earning his livelihood by way of letting out some portion of his building on rent basis. It is pleaded that opposite party has provided electricity connection to the complainant and complainant is paying electricity bills to opposite party. It is pleaded that complainant obtained electricity connection vide meter No. DP-136 for his domestic activities. It is pleaded that complainant earlier filed consumer complaint No. 166/2008 on the ground that opposite party was demanding amount of Rs.12880/- (Twelve thousand eight hundred eighty) on account of misuse of electricity. It is further pleaded that earlier consumer complaint was allowed partly and opposite party was directed to restore the electricity connection. It is further pleaded that in earlier complaint it was ordered that complainant would be at liberty to file complaint afresh if complainant would be prejudiced by inquiry conducted by opposite party. It is further pleaded that complainant completed all the formalities. It is further pleaded that opposite party did not restore the electricity connection of the complainant. It is further pleaded that due to absence of electricity connection complainant could not let out the premises to the tenants. Complainant sought relief of restoration of electricity meter No. DP-136. Complainant also sought additional relief of waiver of 2 S.K. Justa Versus Superintendent Engineer (Operation) HPSEB (F.A. No.152/2017) latest electricity bill to the tune of Rs.36301/- (Thirty six thousand three hundred one). Complainant also sought compensation to the tune of Rs.2000/- (Two thousand) per month w.e.f. 11.11.2010. Complainant also sought additional relief of Rs.50000/- (Fifty thousand) for mental agony. Complainant also sought additional relief of litigation costs to the tune of Rs.11000/- (Eleven thousand).
3. Per contra version filed on behalf of opposite party pleaded therein that present complaint is not maintainable and it is pleaded that complainant is estopped by his act and conduct to file the present complaint. It is further pleaded that complainant has committed theft of electricity and meter was disconnected on the ground of theft of electricity. Prayer for dismissal of complaint sought.
4. Learned District Forum dismissed the complaint filed by complainant. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission.
5. We have heard learned advocates appearing on behalf of parties and we have also perused entire record carefully.
6. Following points arise for determination in present appeal.
3 S.K. Justa Versus Superintendent Engineer (Operation) HPSEB (F.A. No.152/2017)
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No.1 with reasons:
7. After perusal of complaint and version filed by opposite party learned District Forum came to the conclusion that opposite party has disputed the allegations contained in complaint and thereafter learned District Forum ordered the parties to adduce evidence qua controversial facts. Complainant did not file any evidence by way of affidavits qua controversial facts as per section 13(4) of Consumer Protection Act 1986.
Learned advocate appeared on behalf of complainant has given statement on dated 25.06.2014 before learned District Forum that complaint alongwith documents already filed be read in evidence relating to controversial facts.
8. Opposite party filed affidavit of Surinder Kumar Mehta Assistant Engineer in evidence. There is recital in the affidavit that opposite party has installed four meters including meter No.DP-136 in the premises of complainant. There is further recital in the affidavit that flying squad of HPSEB conducted inspection of the premises of complainant and it was found that complainant had committed theft of electricity contrary to provisions of Indian Electricity Act and Rules. Penalty of Rs.18880/- (Eighteen thousand eight hundred eighty) 4 S.K. Justa Versus Superintendent Engineer (Operation) HPSEB (F.A. No.152/2017) was imposed upon complainant as per Indian Electricity Act and Rules and complainant was ordered to pay penalty.
9. Learned advocate appeared on behalf of complainant has given statement before learned District Forum on dated 20.03.2015 that complainant does not want to file any rebuttal evidence qua controversial facts.
10. Submission of learned advocate appearing on behalf of complainant that learned District Forum did not properly appreciate oral as well as documentary evidence on record and on this ground appeal be allowed is decided accordingly. It is well settled law that evidence qua controversial facts could be adduced by parties under Section 13(4) of Consumer Protection Act 1986. Learned advocate appeared on behalf of complainant did not adduce any evidence under Section 13(4) of Consumer Protection Act 1986 relating to controversial facts and learned advocate appeared on behalf of complainant had given written statement before learned District Forum on dated 25.06.2014 that complaint alongwith documents already filed be read in evidence. It is held that complaint could not be treated as evidence of parties qua controversial facts because complaint is only pleadings of parties and complaint is only allegation in writing made by complainant as per Section 2(c) of Consumer Protection Act 1986. It is held that pleadings of parties under section 2(c) of Consumer Protection Act 1986 and evidence of parties qua controversial facts under Section 13(4) of Consumer Protection Act 1986 are two different concepts under Consumer 5 S.K. Justa Versus Superintendent Engineer (Operation) HPSEB (F.A. No.152/2017) Protection Act 1986. It is held that pleadings and evidence qua controversial facts are also entirely two different concepts under Consumer Protection Act 1986 and it is held that complaint filed by complainant could not be treated as evidence of complainant under Section 13(4) of Consumer Protection Act 1986 for adjudication of controversial facts.
11. State Commission has also perused affidavit filed by Assistant Engineer HPSEBL. Affidavit filed by Assistant Engineer HPSEBL is trustworthy, reliable and inspires confidence of State Commission. There is no reason to disbelieve the affidavit filed by Assistant Engineer qua controversial facts. There is no evidence on record in order to prove that Assistant Engineer has hostile animus against the complainant at any point of time.
12. Submission of learned advocate appearing on behalf of complainant that complainant is legally entitled for waiver of electricity bill to the tune of Rs.36301/-(Thirty six thousand three hundred one) is decided accordingly. It is proved on record that complainant has earlier filed consumer complaint No.166/2008 which was decided by learned District Forum on dated 22.02.2010. Learned District Forum ordered opposite party to conduct an inquiry and learned District Forum further ordered that opposite party would issue prior notice to the complainant intimating him about the date and venue of inquiry. Learned District Forum further ordered that inquiry would be conducted by opposite party within 45 days after 6 S.K. Justa Versus Superintendent Engineer (Operation) HPSEB (F.A. No.152/2017) receipt of copy of order. Learned District Forum further ordered that in case complainant was prejudiced by the inquiry conducted by opposite party then complainant would be at liberty to approach learned District Forum afresh. Learned District Forum further ordered that complainant would deposit 25% amount and thereafter opposite party would release the electricity connection to the complainant.
13. State Commission is of the opinion that order passed by learned District Forum in earlier consumer complaint No.166/2008 was executable under Sections 25 or 27 of Consumer Protection Act 1986 by way of execution proceedings. There is no evidence on record in order to prove that complainant has filed execution application under Sections 25 or 27 of Consumer Protection Act 1986 for execution of order passed by learned District Forum in consumer complaint No. 166/2008.
14. Submission of learned advocate appearing on behalf of complainant that complainant is entitled for compensation amount to the tune of Rs.2000/- (Two thousand) per month w.e.f. 11.11.2010 is decided accordingly. State Commission is of the opinion that remedy to the complainant for execution of order passed by learned District Forum in earlier consumer complaint No. 166/2008 was execution petition under sections 25 or 27 of Consumer Protection 1986.
7 S.K. Justa Versus Superintendent Engineer (Operation) HPSEB (F.A. No.152/2017)
15. Submission of learned advocate appearing on behalf of complainant that complainant is entitled for Rs.50000/- (Fifty thousand) on account of mental agony and is also entitled to Rs.11000/- (Eleven thousand) as litigation costs from opposite party is also decided accordingly. State Commission is of the opinion that order passed by learned District Forum in consumer complaint No.166/2008 was executable under Sections 25 or 27 of Consumer Protection Act 1986. No reason assigned by complainant as to why complainant did not file any execution application before learned District Forum for execution of order passed by learned District Forum.
16. Submission of learned advocate appearing on behalf of complainant that complainant could file subsequent regular complaint in view of permission granted by learned District Forum in consumer complainant No.166/2008 is decided accordingly. State Commission has carefully perused the earlier order passed by learned District Forum in consumer complaint No. 166/2008 decided on 22.02.2010. Learned District Forum has ordered in positive manner that in case complainant would be prejudiced by inquiry conducted by opposite party then the complainant would be at liberty to approach learned District Forum afresh. State Commission is of the opinion that permission to approach the District Forum afresh was granted to the complainant by learned District Forum in earlier consumer complaint only after the completion of inquiry by 8 S.K. Justa Versus Superintendent Engineer (Operation) HPSEB (F.A. No.152/2017) opposite party. There is no evidence on record in order to prove that inquiry was completed by opposite party within 45 days. It is held that subsequent fresh original consumer complaint by complainant was not maintainable before learned District Forum unless fresh inquiry was not completed by opposite party. It is held that remedy to complainant was to file execution application under Sections 25 or 27 of Consumer Protection Act 1986 for execution of order passed by learned District Forum in earlier consumer complaint No. 166/2008 decided on 22.02.2010.
17. Submission of learned advocate appearing on behalf of opposite party that order passed by learned District Forum is in accordance with law and in accordance with proved facts is decided accordingly. We are of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to interfere in the order passed by learned District Forum. It is held that order of learned District Forum is in accordance with law and in accordance with proved facts. Point No.1 is decided accordingly.
Point No.2: Final Order
18. In view of findings upon point No.1 above appeal is dismissed and order of learned District Forum is affirmed. It is held that remedy to the complainant for compliance of order passed in consumer complaint No.166/2008 decided on 9 S.K. Justa Versus Superintendent Engineer (Operation) HPSEB (F.A. No.152/2017) 22.02.2010 was by way of filing execution application under Sections 25 or 27 of Consumer Protection Act 1986 in accordance with law. Earlier order of learned District Forum announced in consumer complaint No.166/2008 dated 22.02.2010 annexure C-1 will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 27.12.2017.
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