State Consumer Disputes Redressal Commission
M/S.Swapnil Product Through ... vs M.S.E.D.C.Ltd.Through Its Additional ... on 13 April, 2022
A/22/45
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
APPEAL NO.A/22/45
(Arisen out of order dated 25/01/2022 passed in Complaint No.19 of 2022 by District
Commission, Satara)
M/s.SWAPNIL PRODUCT,
Through its Beneficiary
Shri Rohit Rajaram Shinde,
Having address at:
2/4, Additional M.I.D.C.,
Satara Taluka, District - Satara. ....... Appellant(s)
Versus
MAHARASHTRA STATE ELECTRICITY DISTRIBUTION
COMPANY LTD.,
Through its Additional Executive Engineer,
City 4 Division, Satara City, .........Respondent(s)
Sub Division Pratapganj, Satara.
BEFORE:
Ms.S.T. Barne - In-charge President
Mr.K.M. Lawande - Member
For the appellant(s) : Advocate Mr.Balasaheb Deshmukh.
For the Respondent(s) : None.
ORDER
Per Hon'ble Mr.K.M. Lawande - Member:
(1) Being aggrieved by the judgment and order passed in Consumer Complaint No.19/2022 dated 25/01/2022 by District Consumer Disputes Redressal Commission, Satara, this appeal is preferred by the appellant. The appellant is the complainant and the respondent is the opponent in the consumer complaint. The parties are hereinafter referred to as 1 A/22/45 'complainant' and 'opponent' as per their status in the consumer complaint.
(2) Our predecessors have already admitted the appeal and matter was adjourned for final hearing. As the complainant has shown urgency of hearing of the case as his electricity connection is disconnected by the opponent electricity company the notice after admission was served on the opponent and date of hearing was fixed on 05/04/2022. However, the opponent remained absent on this date. The Ld.Advocate of the complainant Shri Deshmukh pressed to hear the matter for passing interim order for restoring his electricity supply. As the notice after admission issued to opponent and though served with notice and remained absent, we heard Advocate for complainant finally at length.
(3) It is submitted by the Ld.Advocate for the complainant that the complainant is running an industrial unit at M.I.D.C., Satara in Plot No.J-2/4. The plot is owned by one Smt.Surekha S. Harel and the electricity connection is obtained by her under the name of M/s.Swapnil Products. The plot is obtained on rent by the complainant. The complainant is running the industrial unit under the name of M/s.Radhika Enterprises and is manufacturing cast iron parts 'head' for M/s.Paranjape Auto Works only on job work basis. The manufacturing is for livelihood purpose and the business is not run for earning huge profit. The business is non-commercial in nature. It is alleged that, on 22/12/2021, the flying squad of opponent visited and checked the meter of complainant at site and further issued the bill under section 135 of Electricity Act of Rs.35,33,510/- to the complainant. However, not delivered the important documents including MRI data, calculation sheet etc. The FIR bearing no.0031 is also filed at Police Station, Satara City on 12/01/2022.
2A/22/45 (4) It is further submitted by complainant that, the officer of opponent alleged to have inspected the meter and come to a conclusion that when R phase PT link is released then meter worked slow at 33% and when R and Y phase PT link is released then meter detected running slow at the rate of 66%. The MRI data shows the power failure. Both the seals of right and left side of the meter were found broken. After loosening of screws of phase R, Y and B the display of meter was stopped. The meter seized by the opponent and it is with them. Inspection report is also prepared by the opponent.
(5) It is submitted that the opponent Electricity Company appeared before the District Forum, filed written statement along with the application to decide on the certain preliminary issues. It was contended by the opponent that the complainant is consuming the energy for the commercial purpose and therefore not covered within the definition of Consumer envisaged in Section 2(7)(2). It is also contended by opponent that the case pertains to theft of energy and the Consumer Forum is not empowered to decide the complaint. Relying on submissions of the opponent, the District Commission pleased to pass the order on preliminary issues and dismissed the complaint.
(6) It is further submitted by the Ld.Advocate for the complainant that, the District Commission erred in deciding the preliminary issues. The Consumer Protection Act does not contemplate of invoking provisions of Civil Procedure Code in deciding the preliminary issues. The learned Advocate for complainant placed reliance upon following cases:
(i) Appeal No.816 of 2009, Mr.Dilip Vasant Narvekar V/s. Chief Executive Officer, Reliance Money Ltd. & Ors, decided on 15/06/2010.3
A/22/45
(ii) Revision Petition No.90 of 209, Pancard Clubs Limited V/s.Smt.Chanda Sunil Sawant & Anr., decided on 03/05/2010.
(iii) Revision Petition No.37/2010, Maharashtra State Electricity Distribution Company Limited V/s.Kokandas Nebandas Lulla, decided on 28/04/2010.
(iv) Revision Petition No.95 of 2008, Mr.Mahendra C. Shah V/s. The Branch Manager, National Insurance Co. Ltd., decided on 07/10/2008.
(v) Appeal No.1352 of 2005, Wahida Imtiaz Shaikh V/s. Pune Cantonment Sahakari Bank Ltd., decided on 01/09/2005 and reported in 2005 4 CPJ 168, It is argued on behalf of complainant that in aforesaid cases the Commission held that order 14 of Civil Procedure Code is not contemplated in Consumer Protection Act, 1986 and it is not applicable to the consumer cases filed under Consumer Protection Act, 1986. The District Commission erred in holding that the complainant used the electricity for earning huge profit and therefore, is not falling under the definition of 'Consumer'. The District Commission has not appreciated the facts and law in proper perspective. The complaint was admitted and therefore, District Commission was required to decide the complaint finally and not by deciding preliminary issues and dismissing the complaint.
It is further contended that there are also regulations published by Central Electricity Authority. There are different types of meters used in distribution of electricity. It is contended that the customer/complainant is provided with the smart type meter and there are no chances of tampering of meter. The appellant 4 A/22/45 relied on the regulations under the Electricity Act, 2003, for regulating the installation and operation of meters published in the Gazette of India, Extraordinary, Part III, Section iv) vide notification dated 17th March, 2006, (hereinafter referred to as the "regulations"). He mainly relied on clause (3) of Part III Standards for consumers meters, i.e. (3) Anti-Tampering Features, which is as under:
(3) Anti-Tampering Features:
(a) The meter shall not get damaged or rendered non-functional even if any phase and neutral are interchanged.
(b) The meter shall register energy even when the return path of the load current is not terminated back at the meter and in such a case the circuit shall be completed through the earth. In case of metallic bodies, the earth terminal shall be brought out and provided on the outside of the case.
(c) The meter shall work correctly irrespective of the phase sequence of supply (only for poly phase).
(d) In the case of 3 phase, 3 wire meter even if reference Y phase is removed, the meter shall continue to work. In the case of 3 phase, 4 wire system, the meter shall keep working even in the presence of any two wires i.e., even in the absence of neutral and any one phase or any two phases.
The Ld.Advocate for complainant contended that, there requires directions to opponents for restoration of electricity connection by waiving of the alleged bill. The complainant is facing hardship due to stoppage of his 5 A/22/45 business for want of electricity.
(7) The opponent though served remained absent. The complainant is pressing for passing the order for restoration of energy. The opponent though served with notice after admission remained absent. Hence, heard learned Advocate for appellant at length finally.
(8) (1) It appears that the complainant has grievance that the District Commission committed error on deciding the complaint by framing preliminary issues, when they are not contemplated in the Consumer Protection Act. For which he relied on the following judgments:
(i) Appeal No.816 of 2009, Mr.Dilip Vasant Narvekar V/s. Chief Executive Officer, Reliance Money Ltd. & Ors, decided on 15/06/2010.
(ii) Revision Petition No.90 of 209, Pancard Clubs Limited V/s.Smt.Chanda Sunil Sawant & Anr., decided on 03/05/2010.
(iii) Revision Petition No.37/2010, Maharashtra State Electricity Distribution Company Limited V/s.Kokandas Nebandas Lulla, decided on 28/04/2010.
(iv) Revision Petition No.95 of 2008, Mr.Mahendra C. Shah V/s. The Branch Manager, National Insurance Co. Ltd., decided on 07/10/2008.
(v) Appeal No.1352 of 2005, Wahida Imtiaz Shaikh V/s. Pune Cantonment Sahakari Bank Ltd., decided on 01/09/2005 and reported in 2005 4 CPJ 168.6
A/22/45 From the provisions of Consumer Protection Act, 2019, it is sufficiently clear that while deciding the consumer complaints the Act does not contemplate for invoking the provisions of Civil Procedure Code except provided for the items u/sec 38, Sub-Section (9) of the Act. In fact, the Act contemplates to decide the complaints summarily, without going for evidence in detail. Also, it appears that, the District Commission decided the issue that the complainant not covering under the definition of Consumer at preliminary stage. However, keeping reliance on the judgments cited supra by appellant, we are of the opinion that the District Commission unnecessarily resolved to decide on these preliminary issues.
(2) The District Commission has also decided the complaint on the second issue of theft of electricity considering that the consumer fora is not having jurisdiction to entertain the case. In our opinion this is a crucial point of the litigation whether District Commission is right in dismissing the complaint on this ground.
(9) (i) We have gone through Section 135 of Electricity Act. The Section 135(1)(b) reads as below:
135. Theft of electricity - (1) Whoever, dishonestly,--
(a) -----
"(b) tampers a meter installs or uses a tempered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted, or".
(c) -----
7A/22/45
(d) -----
(e) -----
so as to abstract or consumer or use electricity shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(ii) Apparently the FIR shows that there is tampering of meter. The FIR is at page 123 of appeal compilation. There is also panchnama and inspection report made by the opponent revealing theft of electricity by complainant which is at page 68 to 71 of appeal compilation.
(10) We have also gone through the judgment of the Hon'ble Apex Court in U.P. Power Corporation Ltd. V/s. Anis Ahmad, reported in 2013 0 Supreme Court (SC) 520. The Hon'ble Apex Court in para 35 and 47 has observed as under:
Para 35. From a bare reading of Section 126 and Sections 135 to 140, it is clear that while acts of "unauthorized use of electricity" attracts civil consequence of penal charge of electricity, twice the rate of electricity, for which assessment is made by assessing officer under Section 126; the very same acts of "unauthorized use of electricity", constitute "offences" under Section 135 to 140 for which sentence and fine has been prescribed.
Para 36. As per Section 153 of the Electricity Act, 2003, Special Courts are to be constituted for speedy trial for the offences referred to in Sectios 135 to 140.
Para 47. In view of the observation made above, we hold that:
(i) In case of inconsistency between the Electricity Act, 2003 and 8 A/22/45 the Consumer Protection Act, 1986, the provisions of Consumer Protection Act will prevail, but ipso facto it will not vest the Consumer Forum with the power to redress any dispute with regard to the matters which do not come within the meaning of "service" as defined under Section 2(1)(o) or "complaint" as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.
(ii) A "complaint" against the assessment made by assessing officer under Section 126 or against the offences committed under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before a Consumer Forum.
(iii) The Electricity Act, 2003 and the Consumer Protection Act, 1986 runs parallel for giving redressal to any person, who falls within the meaning of "consumer" under Section 2(1)(d) of the Consumer Protection Act, 1986 or the Central Government or the State Government or association of consumers but it is limited to the dispute relating to "unfair trade practice"
or a "restrictive trade practice adopted by the service provider"; or "if the consumer suffers from deficiency in service"; or "hazardous service"; or "the service provider has charged a price in excess of the price fixed by or under any law".
It appears that the District Commission has dismissed the complaint on the point of jurisdiction observing case of theft of electricity by complainant. Though the complainant is contending that it is not a theft case and he is unnecessarily dragged into the case of theft. It is contended that the complainant is provided with the smart meter and the smart meters are protected from instances of tampering or theft. The complainant has also relied upon the regulations, mentioned above. However, keeping reliance 9 A/22/45 on the judgment of the Hon'ble Apex Court in U.P. Power Corporation Ltd. V/s. Anis Ahmad (referred supra), in our opinion, it is not possible for the consumer fora to decide the complaints under Consumer Protection Act in case of theft of electricity. Though the complainant is contending that he is unnecessarily dragged into litigation and there cannot be theft case of electricity in case of smart meters provided to customers. However, there is report regarding examination of meter, supports the contention of opponent in written statement. It's genuineness cannot be questioned before Consumer Fora which decides the cases summarily. Also when special courts are provided to decide these cases, the complainant has opportunity there to represent his contention that there is no theft of energy. In such circumstances, it is not desirable to pass any order for the restoration of electricity. Even if it is accepted that issue of consumer would not have been decided summarily, still as there prima-facie case of theft of electricity or tempering of meter, therefore, keeping reliance on U.P. Power Corporation, Ltd. V/s. Anis Ahmad judgment (supra cited), this Commission is not empowered to decide the cases where there are charges of theft of electricity u/sec 135 of Indian Electricity Act. Hence, the order:
ORDER
(i) Appeal is dismissed.
(ii) No order as to costs.
(iii) Inform parties accordingly.
Pronounced on 13th April, 2022.
[Ms.S.T. Barne]
In-charge President
[K.M. Lawande]
Member
emp
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