State Consumer Disputes Redressal Commission
B.S.E.S. Yamuna Power Ltd. vs Ramu on 3 May, 2006
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 03.05.2006 First Appeal No. 207/2006 (Arising from the order dated 12.12.2005 passed by District Forum (North East), Bunkar Vihar, Nand Nagari, Delhi in Complaint Case No.184/2005) B.S.E.S. Yamuna Power Ltd. Appellant, Shakti Kiran Building, through Karkari Road, Shahdara, Mr. Avinash Kumar Delhi. Advocate. Versus Sh. Ramu Respondent. R/o B-52, Joyoti Nagar, Delhi-110093. CORAM: Justice J.D. Kapoor, .. President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President(ORAL) Day in and day out we are receiving cases booked by the appellant Company particularly of theft and tampering of meters of large number of consumers and in most of the cases District Forum and this Commission have found highly insufficient evidence as envisaged by Section 135 of Electricity Act, 2003 and Regulation 25 of Delhi Electricity Regulatory Commission (Performance Standards Metering and Billing) Regulation 2002 framed under Delhi Electricity Reforms Act, 2000. As a result bills raised particularly on the basis of tampering of meters have been quashed in some cases. It appears that this is the result of indifferent and insensitive approach and attitude of the senior officers of the appellant Company as they invariably dismiss the complaints of consumer cavalierly and without giving the personal hearing and passing speaking order as prescribed by Regulation 26 of DERCR 2002.
2. This is not a happy practice. Instead of gaining confidence of the consumers as to its efficiency and sincerity and its proper functioning and redressing the grievances of the consumers the company is day by day earning bad reputation of not being consumer friendly but adopting an attitude to fleece the consumers by making out false cases of theft or DAE without having sufficient evidence or satisfactory evidence.
3. Other day we had a very strange case. Officials of the appellant Company went to the residence of a consumer. They removed the meter by telling the consumer that after repairing they would re-install it or install a new meter on the next day. They gave a receipt of removing and receiving the meter with the assurance to re-install it and connected the meter line with direct line. When they did not come on the next day, the consumer lodged a report with the police. He also brought it to notice of the higher authorities by providing relevant papers. Nobody helped him. Rather he was not only threatened with a case of theft of electricity, he was actually booked for theft of energy. He ran from pillar to post. Mental agony a respectable citizen suffers is unfathomable. Consequently he filed a complaint before the District Forum.
4. In the past we have decided large number of cases, which are to the knowledge of appellant Company by way of appeals that manifestly demonstrate this propensity of this Company.
5. In the instant case, the District Forum has vide its order dated 12-12-2005 which is subject matter of this appeal given the following directions:-
(i) The theft bill raised by the appellant bearing No. AGENF 250520050006 dated 28.05.2005 is hereby quashed.
(ii) The appellant shall revise the regular bills of the complainant-consumer, for the period when the meter remained defective, on the basis of average MG rates as per rules
(iii) The appellant can raise the sanctioned load of the complainant consumer by obtaining the proper test report, to which the complainant shall be at liberty to agitate as per law.
(iv) The appellant can levy fine, if any, provided under rules for the unauthorised reconnection by the complainant consumer; and
(v) After payment of revised bill by the consumer, the appellant shall restore the electricity of the consumer within 15 days.
6. In this case the respondent consumer made a written complaint in the month of November 2004 that the electricity meter had been burnt and therefore needed to be replaced. On the same day the officials of the appellant Company came to check the meter and instead of repairing or replacing the meter they advised the respondent to contact higher authorities. Consequently the respondent moved an application bearing No. 1260161104012 dated 16.11.2004, which was duly received by one Mr. Gopal. For six long months nobody visited the premises nor did anybody take action for replacement of the meter and left the consumer high and dry without redressing his grievance and depriving him of the electricity. Suddenly on 20.05.2005, the officials of the appellant company visited the premises and registered a case of theft/ DAE alleging that respondent had bye-passed the meter and drawn electricity directly and immediately raised a bill of Rs.40,996/- on the criteria of theft and disconnected the supply. When the respondent expressed his anguish before higher authorities and requested for restoration of electricity connection and revision of the bill the authorities turned a blind eye and took no action. Consequently the respondent was forced to approach the District Forum and filed the instant complaint under section 12 of the Consumer Protection Act 1986 seeking redressal of his grievance and compensation as to the loss and injury suffered by him. To tell him that he has no remedy before the District Forum under the Consumer Protection Act, 1986 because there are allegations of theft of energy or DAE is to dig his grave for silent burial.
Of course he is not entitled for any relief under the Consumer Protection Act if allegations are prima facie supported by sufficient evidence as envisaged by Regulation 2 defining theft and DAE and Regulation 25 of DERCR 2002 providing for sufficiency of evidence.
7. Let us see the conclusions of District Forum arrived at after scanning, scrutinizing the material on the record and rival claims.
These are as under:-
The OP has filed its WS in which it has taken fragile pleas such as, in reply on merit to para 2 of the complaint regarding connection NO. it states that it is a matter of record. We fail to understand that why the OP is escaping from making clear cut admission or denial in its written statement as if it is the duty of the Forum to keep on asking each and everything. Likewise regarding para 4 of the complaint in which the complainant has made allegation about burnt meter, the OP has denied the contention but in the same para it states that the complainant has never deposited any fee for checking of the meter.
Checking of the meter is done where the meter is running slow or fast, but where the meter is burnt or defective due to loose wiring or otherwise and this is in the knowledge of OP the OP is duty bound to get the meter rectified. Photocopy of regular bills filed alongwith the complaint shows that status even in May 2003 is F(Faulty)and the reading stuck at 96. Thereafter in some moths again the meter records different readings. In November 2003 it is at 187. This again goes down to 96 in January 2004. This against goes up in March 2004. This state of affairs shows that the meter was defective even prior to May 2003 and the complainant was not going to gain anything by making theft because if the meter is defective even if it is hammered this is of no consequence. Although Annexure-A filed alongwith the complaint is shown to be addressed to some Shriman Rashtriya Adhikari but at the bottom it shows that receipt No. of the OP alongwith the name of the employee of the OP with date.
The OP has failed to produce before us the dairy register and in the absence of any proof we are bound to hold that this application was made to the OP on which it had not taken any action. OP has failed to explain as to why it was sleeping over the matter even when it was within their knowledge that the meter was defective/burnt. When the meter is defective/burnt the OP is bound to charge on minimum/average basis as per rules even though in this case the reconnection was done by the complainant bye-passing the meter as he had no other alternative when the department failed to act on his application.
We have also perused photocopy of the theft bill filed alongwith the complaint. This bill also seems to have been issued mechanically. This shows the sanctioned load as 0 KW, while as per earlier bills of OP the sanctioned and connected load is shown as .25 KW so far as the contention of the OLP regarding having found the connected load as 2.463 KW /DX as per L.R. No. 5574 dated 20.05.2005, it was open for the OP to ask for test report and take appropriate action as per law.
The OP has also vehemently argued that in view of the judgment of Honble State Commission in DVB Vs D.N. Shukla this Forum does not have jurisdiction to proceed with the matter. However, this judgement was distinguished by the Honble State Commission in the judgment of CEDC Vs K.K. Kapoor in Appeal No. 1054/2002 in which the Honble State Commission had laid down the law that in case of registered consumer, if the Forum finds that there is no prima facie case against the consumer of direct theft, the Forum can proceed in the matter.
8. On being noticed the appellant Company took the convenient plea that since it was a case of theft of electricity therefore it is not a consumer dispute.
9. Let us know what are the obligations of electricity supplying Company i.e. licensee with regard to the billing, metering and the meter complaints. Regulation 20 of Delhi Electricity Regulatory Commission (Performance Standards-Metering and Billing) Regulations 2002 (DERCR) pertains to meter complaints and provides as under:
20. Meter Complaints
(i) Correctness of meter
(a) Should the consumer dispute the accuracy of the meter, he may, upon giving notice/complaint to that effect and paying prescribed testing fee, have the meter tested by the licensee.
(b) The licensee shall, within 15 working days of receiving the complaint, carry out testing of the meter and shall furnish duly authenticated test results to the consumer.
(c) If the meter is found to have error beyond the limits of accuracy as specified in Rule 57 of Electricity Rules, and the meter has not been tested within the meter testing schedule as prescribed in Regulation 19, the amount of past energy bill shall be adjusted in accordance with the result of test with respect to the meter readings of the 3 billing cycles prior to the billing cycle in which dispute has arisen and upto the date of replacement of meter.
(d) The consumer shall not liable to pay any demand violation charges if the demand computed on the basis of test results of the meter exceeds his contract demand.
(ii) Meter not recording
(a) If the meter is not recording/stuck as reported by the consumer, the licensee shall check the meter and if found stuck, the meter shall be replaced by the licensee/consumer, as the case may be, within 30 days of receipt of complaint.
(b) If the meter is not recording/stuck as noticed by the licensee, the licensee shall notify the consumer. Thereafter, the licensee shall check the meter and if found stuck, the meter shall be replaced within 30 days.
(c) The consumer shall then be billed on provisional basis on average consumption of last three billing cycles for a period between the date of last reading and the date of replacement/repair of the stuck meter.
(iii) Burnt meter
(a) In case the meter is found burnt upon inspection by the licensee on consumers complaint or otherwise
(b) The licensee shall restore connection immediately upon receiving the complaint by bypassing the burnt meter after ensuring that necessary corrective action at site is taken to avoid future damage. New meter shall be provided by the licensee/consumer, as the case may be, within three days.
(c) The licensee shall get the burnt meter removed from site/consumers premises and test the same. If it is established, based on test results, that meter got burnt due to technical reasons e.g. voltage fluctuation, transients etc. attributable to system constraints, the licensee shall bear the cost of meter.
(d) In case upon inspection of the consumers installation and subsequent testing of the meter, it is established that meter got burnt due to causes attributable to the consumer e.g. tampering, defect in consumers installation, meter getting wet due to falling of water, connection of unauthorized load by the consumer etc. the consumer shall bear cost of new meter in case the original burnt meter was provided by him. In case the meter was provided by the licensee, the consumer shall pay the cost as under:
If meter was less than 2 years old full cost Between 2 to 5 years old 75% of the cost Between 5 years to 8 year 50% of the cost Between 8 years to 10 years 25% of the cost More than 10 years no cost
(d) In case the meter is found burnt and there is reason to believe that an official of the licensee gave a direct connection, pending replacement of meter, a case of direct theft shall not be booked. Consumers complaint for replacement of burnt meter or the complaint regarding disruption in supply of energy shall be considered sufficient for this purpose.
10. Regulation 21 of DERCR pertains to Billing during the period the defective/burnt meter remained at the site and provides as under:
(i) The consumer shall be billed (for the period meter remained defective) based on the estimated energy consumption by taking the consumption pattern of the consumer for the 6 months prior to and 6 months after the period, during which the meter remained defective. The amount already paid by the consumer by way of provisional bills for the period meter remained non-functional or defective, shall be adjusted in this bill.
(ii) In cases where the recorded consumption of past six months prior to the date meter became defective, is either not available or partially available, the consumption pattern as obtained from such lesser period along with the above mentioned subsequent six months pattern shall be deemed sufficient for estimation of consumption.
(iii) In case, the Maximum Demand Indicator (MDI) of the meter at the consumers installation is found to be faulty or not recording at all (unless tampered), the demand charges shall be calculated based on billing demand during corresponding months/billing cycle of previous year, when the meter was functional and recording correctly. In case, the recorded MDI of corresponding month/billing cycle of past year is also not available, the highest of the billing demand during 6 months succeeding meter replacement shall be considered.
11. Section 55 of the principal Electricity Act, 2003 pertains to Use etc. of meters and provides as under:-
55. (1) No licensee shall supply electricity, after the expiry of two years from the appointed date, except through installation of a correct meter in accordance with regulations to be made in this behalf by the Authority:
Provided that the licensee may require the consumer to give him security for the price of a meter and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter:
Provided further that the State Commission may, by notification extend the said period of two years for a class or classes of persons or for such area as may be specified in that notification.
(2) For proper accounting and audit in the generation, transmission and distribution or trading of electricity, the Authority may direct the installation of meters by a generating company or licensee at such stages of generation, transmission or distribution or trading of electricity and at such locations of generation, transmission or distribution or trading, as it may deem necessary.
(3) If a person makes default in complying with the provisions contained in this section or regulations made under sub-section (1), the Appropriate Commission may make such order as it thinks fit for requiring the default to be made good by the generating company or licensee or by any officers of a company or other association or any other person who is responsible for its default.
12. Word Meter has been defined by sub-clause (p) of clause (i) of Regulation 2 of DERC as under:
Meter shall mean a device suitable for recording consumption of electrical energy or any other quantity in electricity supplied during any specified period and shall include, wherever applicable, other associated equipment such as CT, PT, etc. necessary for such recording.
13. Regulation 25 pertains to pilferage of energy. Pilferage of energy is of two modes one by direct theft and another by tampering of meter i.e. dishonest abstraction of energy (DAE). Direct theft has been defined by sub clause (i) of Regulation 2(i) of DERCR as under:
Direct theft shall mean abstraction of electrical energy either through bypassing the meter by some arrangement external to it or through unauthorised tapping if the supply from licensees distribution network.
14. Dishonest abstraction of energy (DAE) has been defined by sub clause (m) of Clause (i) of Regulation 2 of DERCR as under:
Dishonest abstraction of energy (DAE) shall mean abstraction of electrical energy where accessibility to the internal mechanism of the metering equipment and some collateral evidence is found to support the conclusion that the meter has been caused to record less energy than actually passing through it. It shall also include any other means adopted by consumer to cause the meter to stop or run slow (such as revering the polarity of one phase of poly phase metes, changes in CT or PT etc).
15. However combined definition has been provided by Section 135 of Electricity Act 2003 i.e. the Principal Act as under:
S.135. Theft of electricity,- (1) Whoever, dishonestly,-
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables, or service wires, or service facilities of a licensee; or
(b) tampers a meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electronic current or otherwise results in a manner whereby electricity is stolen or wasted; or
(c) damages or destroys an electronic meter, apparatus, equipment, or wire or causes or allows any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity , so as to abstract or consume or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
16. Regulation 25 provides as to the obligation of the licensee in case of report of pilferage of energy. It reads as under:
Pilferage of Energy Procedure for booking a case for pilferage of energy
(i) The licensee, suo moto or on receipt of reliable information regarding commitment of any offence of theft/tampering/dishonest abstraction of energy (DAE), shall promptly conduct inspection of consumers premises. The inspection team shall carry a written authority signed by designated officer of the licensee.
(ii) The inspecting team shall prepare a report giving details such as connected load, condition of seals, working of meter and mention any irregularity noticed (such as, artificial means adopted for dishonest abstraction of energy) as per format prescribed by the licensee.
(iii) The report shall clearly indicate whether conclusive evidence substantiating the fact that energy was being dishonestly abstracted was found or not. The details of such evidence should be recorded in the report and it should be clearly brought out whether the case is being booked for direct theft or DAE.
(iv) No case for DAE shall be booked only on account of one seal on the meter missing or tampered or breakage of glass window etc. unless corroborated by consumption pattern of consumer as per Regulation 26 (ii) given below and such other evidence as may be available..
(v) In case sufficient evidence is found to establish direct theft of energy, the licensee may lodge a report with the local police along with the material evidence including wires/cables, meter, service line etc. seized from the site, which shall be handed over to police. The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on 5 times the rates as per applicable tariff. The consumer shall be required to make the payment within 2 working days of its proper receipt.
(vi) In case of suspected DAE, the inspection team shall not remove the tampered meter but shall disconnect it from the supply and shall restore the supply through a new meter of appropriate rating. In such cases, the licensee shall check the connected load and consumers installation, affix a numbered Johnsons paper seal on the tampered meter and shall also record the particulars of the same in the report.
(vii) While the report must be signed by each member of the joint team and the notice, if any, must be signed by an authorized signatory of the licensee and all these must be handed over to the consumer or his/her representative at site immediately under proper receipt. In case of refusal by the consumer or his/her representative to either accept or give a receipt, a copy of each must be pasted at a conspicuous place in/outside the premises. Simultaneously, the joint report, the assessment bill and the notice shall be sent to the consumer under Registered Post.
(viii) The consumer shall be served a 3 days show cause notice at the site as to why the case of DAE should not be booked against him/her. The notice should clearly state the time, date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.
17. Regulation 26 relates to the procedure for dealing with the allegation of pilferage of energy. It prescribes as under:
Personal hearing
(vi) Within 4 working days from the date of submission of consumers reply, if made within prescribed period, the licensee shall arrange a personal hearing with the consumer.
(vii) Before the personal hearing, the officer of the licensee, before whom personal hearing has to be given, shall analyse the case after carefully considering all the documents, submissions by the consumer, facts on record and the consumption pattern, wherever available. The licensee shall also assess the energy consumption for past six months as per the Tariff Order. In case of suspected DAE, if consumption pattern for last one year is reasonably uniform and is not less than 75% of the assessed consumption where meter is less than 10 years old and not less than 65% of the assessed consumption where meter is more than 10 years old, no further proceedings shall be taken and the decision shall be communicated to the consumer under proper receipt within 3 working days and connection shall be restored through original meter.
(viii) During the personal hearing the licensee shall give due consideration to the facts submitted by the consumer and pass, within 15 days, a speaking order as to whether the case of suspected theft/DAE is established or not. In case of the decision that the case of suspected theft/DAE is not established, no further proceedings shall be taken and connection shall be restored through original meter.
(ix) Where it is established that there is a case of DAE, the licensee may lodge a report with the local police along with the material evidence including wires/cables, meter, service line etc. seized from the site, which shall be handed over to police. The licensee shall also assess the energy consumption for past six months as per the Tariff Order and prepare final assessment bill on 5 times the rates as per applicable tariff. The consumer shall be required to make the payment within 2 working days of its proper receipt. The licensee may, taking into consideration the financial position and other conditions of the consumer, extend the last date of payment or approve the payment to be made in installments. The amount, the extended last date and/or time schedule of payment/installments should be clearly stated in the speaking order. A copy of the speaking order shall be handed over to the consumer under proper receipt on the same day.
18. Another relevant provision is Section 56 of Electricity Act, 2003 which prescribes the procedure for disconnection of supply in default of payment of bill. It reads as under:
56. (1) Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distributed or wheeled and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply, are paid, but no longer:
Provided that the supply of electricity shall not be cut off if such person deposits , under protest, -
(a) an amount equal to the sum claimed from him, or
(b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months, whichever is less, pending disposal of any dispute between him and the licensee.
(2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity:
19. As is apparent there is clear and conspicuous distinction between the two i.e. theft and DAE and both have altogether different criteria for raising the bills. Similarly there is a different criteria for raising the bill with regard to a defective/ struck meter or burnt meter that remains at the site.
20. In case of direct theft sub clause (V) of Regulation 25 specifically lays down that there has to be sufficient evidence to establish direct theft of energy for lodging report with the police as well as for preparing final assessment bill on five times the rates as per applicable tariff. The material evidence includes seizure of wires, cables, service line etc. from the site to show either by passing of the meter by some arrangement external to it or through unauthorised tapping of the supply or making or causing to be made any connection with overhead, underground or underwater lines or cables or service wires or service facilities of a licence.
21. Thus unless and until there is sufficient evidence establishing direct theft or DAE the Company shall assess the energy consumption calculated on the basis of average charge for electricity paid by him during the preceding six months (S. 56). It is only on establishment of sufficient evidence that it shall prepare final assessment bill on 5 times the rates as per applicable tariff (Regulation 25(v) ).
22. Question arises as to who shall decide the sufficiency of evidence for the purpose of raising bill on five times rates as applicable tariff in case of direct theft as well as bill for DAE if allegation of theft or DAE are denied by the consumer and complaint is filed u/s 12 of the Consumer Protection Act, 1986. Certainly not the accuser i.e. licensee as no person can be allowed to arrogate to itself the role of accuser, prosecutor and the judge i.e. three in one. Evaluation of prima facie sufficiency of evidence has to be necessarily made by an independent agency i.e. the Court or Forum/Commission constituted under the Consumer Protection Act enacted for the purpose of adjudicating consumer disputes and protecting interests of consumers. But to take away the natural, highly precious right of being heard before being condemned is to negate the very concept of justice and adjudication of disputes between two or more parties by a judicial/quasi-judicial body in impartial and fair manner.
23. At this stage we may point out that counsel for the appellant has referred to a decision of High Court in BSES Vs Devender Singh in Writ Petition No. 1240/2002 decided on 16-12-2005 that whenever there is allegation pertaining to theft of electricity or dishonest abstraction of electrical energy it is not a consumer dispute under Consumer Protection Act 1986. This aspect was discussed in extenso and threadbare in our decision in CEDC Vs K.K. Kapoor, in Appeal No. 1054/2002 decided on 18.03.2005 whereby the earlier decision of Two-Member bench of this Commission rendered in DVB Vs D.N. Shukla was overruled. Surprisingly our decision rendered in K.K. Kapoor and few more decisions rendered subsequently in appeals filed by this very Company were concealed by this Company while filing petition before High Court in Devinder Singhs case. Rather it misled the High Court by referring to an overruled decision of this Commission and also the fact that appeal against our decision in K.K. Kapoor is pending before the National Commission.
24. There is also a reference of a decision of National Commission rendered in B.C. Jhulka Vs Delhi Vidyut Board in Devinder Singhs case. So far as decision of National Commission in Revision Petition No. 1283/2003 decided on 09.02.2004 in B.C. Jhulka Vs Delhi Vidyut Board referred in judgment of Devender Singh is concerned there is no dispute as the National Commission had in spirit agreed with the view taken by this Commission in CEDR Vs K.K. Kapoors case that where there is sufficient evidence to prima facie show a case of theft or DAE consumer cannot be granted any relief being not a consumer dispute. National Commission specifically referred to the evidences in support of DAE as under:
There is no disputing the fact that the said report clearly states that meter half seal both un-numbered and the meter was found tampered. It is also not in dispute that it was signed by the petitioner/consumer at the time of inspection This was a question of FAE and theft of electricity and State Commission rightly decided not to entertain this complaint. ..
25. Thus this Company has indulged in unethical and unprofessional conduct by misleading High Court and not referring to the subsequent decisions of this Commission. In CEDC Vs K.K. Kapoor some of our conclusions were as under:
(i) Every registered consumer of energy is a consumer as defined u/s 2(1) (d) (ii) of the Consumer Protection Act, 1986 and therefore has a right to challenge the allegations of theft of energy by fraudulent or dishonest abstraction, consumption or use of energy notoriously known as FAE or DAE or by artificial mean or means not authorized by the licensee as referred in Section 39 or allegation of interference with meters or licensees work or improper use or consumption of energy as prescribed by Section 26 read with Section 44 of the Indian Electricity Act respectively before the Consumer For a as denial of or disputing such allegations is itself a consumer dispute within the meaning of Section 2 (1) (c) of the Consumer Protection Act 1986.
(ii) No consumer can be condemned without being afforded an opportunity of being heard as this right emanates from the principles of natural justice. Doors of Consumer Fora cannot be shut to the registered consumers merely on the basis of allegations nor can a consumer be left at the mercy or whim or arbitrariness of a provider of service such as of electrical energy.
(iii) Consumer Forum may dismiss the complaint of a consumer against whom there are allegations of theft of energy through dishonest abstraction, consumption or use by way of artificial mean or means not authorized by the licensee on prima facie view of the matter on the basis of the material produced and reply threto without subjecting the proceedings to undergo any further process.
(iv) Wherever there are allegations of interference with meters or licensees works or for improper use of energy or breaking of seal or glass of the meter etc. against a registered consumer as referred in Section 44 of the Indian Electricity Act these shall not be branded as a case of FAE or DAE and shall invariably be tried and adjudicated upon in the manner provided under the Consumer Protection Act, 1986.
(v) Consumer Forum may dismiss the complaint in rarest of a rare case involving complex questions of facts and law for the reasons that the dispute cannot be determined without involving the lengthy, time-consuming process of examination and cross-examination of several witnesses including expert evidence.
26. Recently this Commission has also discussed the judgment of High Court in Devender Singhs case in Hari Ram Vs BSES in Appeal No. 183/2006 decided on 12.04.2006 and has come to the following conclusions: -
11. We have perused the above referred judgment of the High Court. We agree with the High Court that wherever the allegations of direct theft or DAE are proved by way of sufficient evidence these cease to be a consumer dispute and a consumer is not at all entitled for any relief under the provisions of Consumer Protection Act 12. If a person who is a registered consumer is deprived of his valuable and natural right of being heard merely in the face of mere allegations he would be not only left high and dry but also will suffer irreparable and irreversible damage as to his reputation and monetarily also.
13. There is a wafer-thin distinction between the allegations and sufficiency of evidence and dispute. Allegations will remain allegations and have no value until these are supported by sufficient evidence. So far as suspicion is concerned it can never take the place of proof.
Nobody can be condemned unheard and that is why we have taken a view that if a Consumer Forum takes prima facie view that in support of the allegations of theft or DAE there is sufficient evidence or material it may dismiss the complaint without granting any relief to the consumer. But to say that the consumer has no right to seek any remedy or right of being heard merely on the basis of allegations of electricity supplying agency is to negate the very concept of natural justice.
14. If a consumer succeeds in proving the allegations false and fabricated he is entitled for the relief under the law enacted for protecting his interest. On the other hand if the accusing party succeeds in showing sufficient evidence in support of their allegations, the consumer forfeits his right to any relief under the law.
15. Having held the matter on the concept of what is a consumer dispute and why a consumer is entitled for redressal under the Consumer Protection Act in the face of the allegations without calling upon the party at least to show prima facie evidence or material in support of its allegations was neither the intention of the High Court nor was the ratio of the judgment. The consumer can be denied relief by dismissing his complaint on the premise that there is no consumer dispute as there is sufficient evidence against him as to the allegations of theft or DAE though both these are distinguishable and are altogether different terms and involve different criteria for raising bills.
27. So much so the appellant company had in another case titled BSES Vs. Kusum Devi (Appeal No. 957/05 dated 31-01-2006) tried to take it out from the ambit of Consumer Protection Act, 1986 inspite of being service provider of energy as envisaged by Section 2(1)(o) of Consumer Protection Act by invoking provision of Section 154 of the newly enacted Electricity Act 2003 providing establishment of Special Court for adjudicating the disputes between consumers and electricity supplying Agencies. This aspect and various relevant provisions of Electricity Act and Delhi Electricity Reforms Act, 2000 were discussed and dealt with in the aforesaid appeal. Our conclusions were as under:-
(i) Allegations of theft of energy as contemplated by Section 135 of the Electricity Act 2003 which include tampering of meters, if denied and challenged and bills raised on the basis of theft either on the basis of DT i.e. Direct Theft or through meter on the premise of Section 25(v) of DERC if challenged before the Consumer Forum is a consumer dispute within the meaning of Section 2(1) (e) of the Consumer Protection Act.
(ii) Special Court as envisaged by Section 154 of the Electricity Act is a Court before whom offences under sections 135 to 139 of the Electricity Act are triable which are penal in nature and are initiated by the Electricity Company. These are distinct and independent proceedings than the complaints under the Consumer Protection Act 1986. Under the Consumer Protection Act, complainant is the consumer and remedy sought is of civil nature and opposite party is the Electricity Company.
(iii) Remedy under the Consumer Protection Act is an additional remedy as contemplated u/s 3 of the Consumer Protection Act. Remedies under Consumer Protection Act are of prohibitory, compensatory, rectifactory and futuristic in nature arising out of allegations of deficiency in service, sale of sub-standard goods, unfair or restrictive trade practice etc. Yardsticks and criterion and standard of evidence for determining these charges are altogether different and distinct than the trial for the offences u/s 135 of Electricity Act which are criminal and penal in nature. To prove the criminal offence quality of evidence is beyond reasonable doubt whereas evidence under the provision of Consumer Protection Act is based on preponderance of probabilities.
(iv) Question of charging of bills u/s 25 of the DERC Regulations i.e. on the basis of D.T. or theft through tampering meters will depend upon the final adjudication of the dispute pending before the Consumer Forum and not during the pendency of the dispute. During the pendency of dispute provisions of Section 56 of Electricity Act will be applicable for the purpose of electricity charges i.e. bill shall be raised every month on the average basis of preceding six months period and on payment of such a bill Electricity Company shall not disconnection the electricity.
(v) If Electricity Company is allowed to raise and recover a bill raised on the basis of Section 25 of DERC during the pendency of the dispute not only the proceedings before the Consumer Forum shall be rendered infructuous and meaningless but shall be aborted before adjudication.
(vi) It is upon the Electricity Company to approach the special court for trial of the offences under sections 135 to 139 but it cannot be allowed to shut doors of the Consumer Fora for seeking remedy which is of independent and distinguished nature under the provisions of Consumer Protection Act.
28. We may add here that sub-section (6) of Section 154 relating to the power of Special Court to determine civil liability is for the limited purpose of refunding the excess amount deposited by the consumer within 15 days with interest or compensating the licensee as to loss or damage incurred by it due to the commission of an offence. Determination of such a liability against a consumer or a person in terms of money for theft of energy has an embargo that it shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or exact period of theft whichever is less.
29. As regards the remedy under the provisions of Consumer Protection Act, 1986, it is in terms of section 3 of the Act an independent and additional remedy and not in derogation of any law for the time being in force. Under these provisions, a consumer alone is entitled to file a complaint and can seek compensatory, prohibitory, directory kinds of remedies.
He can seek compensation as to the loss or injury which includes mental agony and harassment suffered by him due to negligence of the opposite party. These losses are assessed on the same criteria as damages are assessed.
Thus civil liability referred in Section 154 of Electricity Act cannot be conferred or placed on the same pedestal as the remedies and liabilities determinable under the provisions of Consumer Protection Act, 1986. More so section 173 of Electricity Act, 2003 specifically provides that nothing contained in this Act or any rule or regulation made thereunder or any instrument having effect by virtue of this Act, rule or regulation shall have effect in so as it is inconsistent with any other provision of Consumer Protection Act, 1986. Thus provisions of Consumer Protection Act are over-riding and have pre-dominant effect over any other provisions of Electricity Act if they curtail any remedy available under the provisions of Consumer Protection Act, 1986.
30. This Act was brought on the Statute Book for protecting the interests of consumers mainly against deficiencies in services, sale and manufacturing of defective goods or unfair trade practice.
31. Having dealt with the concept of consumer dispute as envisaged by Section 2(1)(d) of the Consumer Protection Act 1986 and right of hearing of the consumer, we now set down to lay down the following conclusions, guidelines and directions on two major heads of DERC Regulation 2002 viz (i) Pilferage of Energy and (ii) Defective/burnt meters, in context of the Principal Act viz. Electricity Act 2003. These are as under:
(a) Pilferage of Energy.
(i) Whenever there are allegations of pilferage of energy by direct theft as referred Regulation 2 (i)(i) and DAE i.e. Dishonest Abstraction of Energy as defined by Regulation 2(i)(m) of DERC 2002, these have to be substantiated by sufficient evidence including seizure of wires/cables, meters, service lines etc. from the site. In such cases the consumer shall be served with three days show cause notice in terms of sub clause 8 of clause (1) of Regulation 25 of DERC 2002 at the site.
(ii) Regulation 26 confers highly precious and valuable right upon consumer for personal hearing and during personal hearing licensee shall give due consideration to the facts submitted by the consumer and pass within 15 days a speaking order as to whether the case of suspected theft/DAE is established or not and there has to be sufficient evidence to establish direct theft of energy.
(iii) If the consumer raises a dispute under the provisions of section 56 of the Electricity Act before any authority, including consumer fora, the supply of electricity shall not be cut off if such person deposits under protest (a) an amount equal to the sum claimed from him, or (b) the electricity charges due from him for each month calculated on the basis of average charge for electricity paid by him during the preceding six months.
(iv) In terms of section 56 of Electricity Act no sum due from any consumer, shall be recoverable after the period of two years from the date when such sum becomes due unless such sum has been shown continuously as recoverable as arrear and the licensee shall not cut off the electricity supply. The word continuously means from month to month or in each bill raised in this regard.
(b) Defective/stuck/non-recording/burnt meter
(i) Whenever licensee receives a notice/complaint from the consumer disputing accuracy of the meter against prescribed fees, the licensee shall have the meter tested within 15 days of receiving the complaint and shall furnish duly authenticated test results to the consumer. If the meter is not recording or stuck as reported by the consumer, the licensee shall check the meter and replace it within 30 days as per Regulation 20 of DERCR 2002. The consumer shall then be billed on provisional basis of average consumption of last three billing cycles for a period between the date of last reading and the date of replacement/repair of the stuck meter.
(ii) For the period the meter remained defective a consumer shall be billed based on the estimated energy consumption by taking the consumption pattern of the consumer for six months prior to and six months after the period during which the meter remained defective. In case the recorded consumption of past six months is not available or partially available, the consumption pattern for such lesser period along with the above mentioned subsequent six months pattern shall be deemed sufficient for estimation of consumption.
(c) Burnt Meter
(iii) In case meter is found burnt, the licensee upon inspection shall restore the meter immediately upon receiving the complaint by bypassing the burnt meter after taking necessary corrective action at site to avoid future damage. A new meter shall be provided by the licensee within three days.
In case the meter is found burnt and there is reason to believe that an official of the licensee gave a direct connection, pending replacement of meter, a case of direct theft shall not be booked. In this regard consumers complaint for replacement of burnt meter shall be considered sufficient.
(iv) In case the licensee does not take any action within the period of 30 days as stipulated by Regulation 20 of DERCR 2002 in respect of meter complaint of the defective/stuck/non-recording/burnt meter, the consumer shall be entitled to replace the meter on his own by procuring it either from the vendor certified by the licensee or conforming to licensees technical specifications as provided by Regulation 17 of DERCR 2002 and in that event the licensee shall be debarred from booking the consumer for direct theft or DAE as no consumer can be deprived of the essential requirement of electricity without which the modern life is not possible due to inaction or insensitive attitude of the licensee as by not acting in terms of provisions of law in respect of meter complaints as contained in Chapter V of DERC it commits offence of deficiency in service and entitles the consumer to take same type of remedy as is to be provided by the licensee.
In that event the licensee shall bill the consumer in terms of Regulation 21 of DERCR i.e. on the estimated energy consumption by taking consumption pattern of the consumer for six months period prior and six months after the period during which the meter remained defective/stuck/non-recording or burnt. The amount already paid by the consumer by way of provisional bill for this period shall be adjusted in this bill.
32. In the instant case every relevant provision of law was violated, abridged, incised and given a complete go by. We are sorry and pained to point out that the electricity Company has thrown all the regulations, rules, its obligations qua the respondent consumer to the wind and has assumed the role of not only of the policeman but that of the prosecutor and judge to decide on its own that particular consumer is thief. In this regard we feel that the observation of the District Forum as to the conduct of the appellant reproduced above speak volumes and therefore we do not feel inclined to interfere with the finding of facts returned by the District Forum after due application of mind and due consideration of the facts. We, therefore hold that the District Forum rightly held that the allegation made in the complaint comes within the definition of consumer dispute.
33. In view of the foregoing reasons and discussions we affirm the impugned order except direction (iv) as the consumer had done the same thing after waiting for six months as was required to be done by the licensee in terms of Regulation 20 of DERCR 2002. Thus he could not have been booked for theft as no action was taken for replacement of the meter in terms of Regulation 20 i.e. restoration of connection immediately and replacement of meter within 3 days. Consequently this direction is quashed. Rest of the order is maintained.
34. In our view, this is such a case that requires to be visited with exemplary punitive damages as the consumer was harassed and subjected to immense mental agony. He was deprived of electricity for summer months for no fault of his. He was falsely booked for theft. All relevant provisions casting statutory obligation upon the licensee were rendered nugatory.
35. In the result we dismiss the appeal in the aforesaid terms with punitive damages of Rs.50,000/- out of which Rs.25,000/- shall be deposited in favour of State Consumer Welfare Fund (Legal Aid) with the Registrar of this Commission and Rs.25,000/- shall be paid to the respondent within one month.
36. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
37. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
38. Copy be sent to all the District Forums.
39. Copy be sent to National dailies for publication providing information to consumers at large as to their rights.
40. Announced today on 3rd day of May,2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj Allegation of direct theft have (viz. seizure of wire, cable meter) to be substantiated with sufficient evidence including as required by Regulation 25. In such cases consumer shall be served with a three day show cause notice in terms of sub-clause (viii) of clause 1 of regulation 25 at the site as to why case of DAE should not be booked against him clearly stating in the notice the time and date and place at which the reply has to be submitted and the designation of the person to whom it should be addressed.