State Consumer Disputes Redressal Commission
K E S Co vs Gulshan Chandra on 16 January, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2003/2333 (Arisen out of Order Dated in Case No. of District ) 1. K E S Co A ...........Appellant(s) Versus 1. Gulshan Chandra A ...........Respondent(s) BEFORE: HON'BLE MR. Vijai Varma PRESIDING MEMBER HON'BLE MR. Mahesh Chand MEMBER For the Appellant: For the Respondent: Dated : 16 Jan 2018 Final Order / Judgement RESERVED State Consumer Disputes Redressal Commission U.P., Lucknow. Appeal No. 1828 of 2004 U.P. State Electricity Board wrongly mentioned through its Chairman, Shakti Bhawan, Lucknow/ General Manager, KESA, Kesa House, Kanpur. Wrongly mentioned as party to the dead Entity. Now Kanpur Electric Supply Company through its Managing Director, Kanpur. ...Appellant. Versus Gulshan Chawla and Rajesh Chawla, all sons of Amar Nath Chawla, R/o 120/187, Lajpat Nagar, Kanpur. ....Respondents. Appeal No. 2333 of 2003 MD, KESCO, Kanpur. ...Appellant. Versus Gulshan Chawla and another, Kanpur Nagar. ....Respondents. Present:- 1- Hon'ble Sri Vijai Varma, Presiding Member. 2- Hon'ble Sri Mahesh Chand, Member. Sri Isar Husain for the appellant. Sri R.K. Gupta for the respondents. Date 5.4.2018 JUDGMENT
(Delivered by Sri Vijai Varma, Member) The above two appeals no.1828 of 2004 and 2333 of 2003 relate to complaint case no.253 of 2003, therefore, they are decided together. The appeal no.1828 of 2004 will be the leading case.
The facts leading to this appeal no.1828 of 2004, in short, are that the respondents/complainants' mother is the owner of the house no.45/50 A, Meston Road, Kanpur (2) where the family of the complainants reside. The complainants carry on the business of selling electrical goods in one room at ground floor and also first and second floor of the house. The complainant no.1 is running the business in the name of Delhi Electricals Agency and the complainant no.2 in the name of Delhi Electricals. In the premises of the complainants, the earlier tenants had taken electricity connection no.BC 2290 and CG 3303 in the name of Shri S.K. Kaushal and Shri Mahadeo. The connections number were 1551 and 5149 in book no.6045 and 5045 respectively. The complainants after depositing the entire dues of the earlier tenants had got the electricity connections transferred in their names on 9.1.1998 and 17.1.1998 and since then they have been paying the electricity bills regularly. On 7.10.1998, the complainants received a bill for Rs.1,41,875.00 in the name of Delhi Electricals of book no.6045 connection no.2478 and meter no.JC 2678 which did not pertain to the complainants nor was it installed in the premises of the complainants to the knowledge of the complainants, nor the complainant had ever made use of the aforesaid connection. The OP threatened to disconnect the other two connections of the complainants hence, the complainant had to file a case no.892 of 1998 in the court of Civil Judge, Sr. Division, Kanpur Nagar. The employees of the OP disconnected the connection of the complainants on 19.2.2003 before opening of the shop of the complainants and subsequently it came to their knowledge that the OP has disconnected the connections on the ground of the (3) complainants not making payments regarding meter no.JC 2678. The complainants showed the payment of the bills of their connections and asked the OP to reconnect the connections. Thereafter, the complainants filed a complaint case in the Forum below wherein the OP filed their WS mentioning therein that there were three connections in the name of Shri S.K. Kaushal, Shri Mahadeo and Shri S.A. Azad. The connection numbers being 616045/001551, 1203/005149 and 1203/002478 respectively which were being used by the complainants as it was found by Dy. S.P. Vigilance who made an inspection on 6.11.1997 at 3.30 p.m. of the premises in question where all the three connections were found running in the house no.45/50 A, Meston Road, Kanpur by Delhi Electricals of the complainants. It was found that an amount of Rs.7997.00 was due by 30.8.1996 on connection no.1551, Rs.8473.00 by 15.12.1996 on connection no.2478 and Rs.1215.00 by 15.4.1997 on connection no.5149. The complainants were found using excess load hence, as per meter reading and the excess load being used by the complainants, a sum of Rs.1,14,743.00 was assessed as the amount with Rs.5,400.00 penalty and it was directed to get all the three connections to be joined as one connection. The complainants were sent a bill pertaining to connection no.2478 of Rs.1,41,875.00 wherein the meter no.JC 2678 was recorded. The complainants had filed a civil case with regard to the aforesaid connections wherein the hon'ble court has passed orders in an interim application on8.5.2003 whereby the complainants were directed to (4) deposit 50% of the disputed amount of Rs.1,53,878.00 within 15 days but the same was not complied with by the complainants hence, their connections were disconnected. Since the complainants' case is sub-judice in the court of ACMM-VI hence, this Forum has no jurisdiction to entertain this case. Hence, the complaint deserves to be dismissed. The ld. Forum, thereafter passed, the impugned judgment and order on 23.8.2004, as under:-
"परिवादीगण का वाद स्वीकार किया जाता है। विपक्षी को आदेश दिया जाता है कि वह परिवादी के विद्युत कनेक्शन नं0-001551 व 005149 को उसके विद्युत शुल्क बकाया न होने पर विच्छेछित न करे और यथावत चालू रहने दें तथा वरिवादीगण को, उक्त दोनों विद्युत संयाजन दि0 20-2-2003 से 10-9-2003 तक अवैध रूप से विच्छेदित करने के कारण उनके देहली इलैक्ट्रिकल्स के व्यवसाय में हुई क्षति तथा मानसिक व शारीरिक सभी प्रकार की क्षति के मद में रूपया एक लाख क्षतिपूर्ति निर्णय के दो माह के अन्दर भुगतान करे। परिवादीगण वादकालीन अवधि में मान0 राज्य आयोग के अपील में पारित निर्णय के अनुसार फोरम में जमा किए गए रूपया 70,000/- को प्राप्त करने के लिए मा0 राज्य आयोग से आदेश प्राप्त करें।
विपक्षी द्वारा परिवादीगण के प्रतिष्ठान देहली इलेक्ट्रिकल्स के नाम विद्युत कनेक्शन नं0-002478 का बिल रूपया 1,41,875/- निरस्त किया जाता है। विपक्षी को यह आदेश दिया जाता है कि वह कनेक्शन नं0-002478 का कोई बिल देहली इलेक्ट्रिकल्स के नाम से परिवादीगण से बसूली के लिए जारी न करे और न ही परिवादीगण से विद्युत कनेक्शन नं0-002478 का कोई बकाया शुल्क परिवादीगण से बसूलें। यह निर्णय किसी भी प्रकार से कनेक्शन सं0-002478 मूल उपभोक्ता एस0ए0 आजाद से बकाया शुल्क बसूलने के लिए बाधित नहीं करता है। विपक्षी यदि चाहे तो विद्युत कनेक्शन नं0-002478 के मूल उपभोक्ता अथवा उसके उत्तराधिकारियों से बकाया विद्युत शुल्क बसूल सकता है।(5)
विपक्षी परिवादी को 2000/- रू0 वाद व्यय भी क्षतिपूर्ति धनराशि भुगतान करे। यदि विपक्षी दो माह के अन्दर क्षतिपूर्ति धनराशि भुगतान नहीं है तो निर्णय के दिनांक से उक्त धनराशि पर 8 प्रतिशत वार्षिक भी भुगतान करेगा।
परिवादिनी का परिवाद एकपक्षीय स्वीकार किया जाता है और विपक्षी को आदेश दिया जाता है कि वह परिवादिनी से विद्वयुत बिल रूपये 23095/- वसूल न करें।"
Feeling aggrieved with the impugned order that the appellant has filed this appeal mainly on the grounds that there was a civil suit no.892 of 1998 pending in the Civil Court but the complainants had filed the complaint case which was not maintainable. The complainants were found to be using three connections installed in their premises and were found using excess load of 3 KV on a raid made by the Enforcement Squad where the complainant no.2 Rajesh Chawla was present and signed the checking report. The complainants had hidden the use of connection which was in the name of S.A. Azad even though two other connections were got transferred in their names but the ld. Forum has ignored the real facts and passed the order against the evidence which is liable to be set aside and the appeal allowed.
The appeal no.2333 of 2003 has been filed by the appellant KESCO against the interim order passed on 8.8.2003 whereby the appellants were directed to supply power within 10 days from the date of order. It was submitted by the appellants that the complainants had obtained an interim order from ACMM-VI, Kanpur Nagar in regular suit no.892 of 1998 wherein the ld. Judge has (6) ordered to deposit half of the amount within 15 days and had directed that after depositing half of he amount, the supply shall not be disconnected during the pendency of the case but the complainants did not comply the orders of the ACMM-VI and has instead filed this complaint which was not maintainable and therefore, the order passed by the ld. Forum on 25.8.2003 in misc. case no.17 of 2003 be set aside.
The respondents/complainants had filed objection to the aforesaid appeal on the ground that they did not have any concern with connection no.1203/2478 which is in the name of Shri S.A. Azad and the dues against Mr. Azad could not be recovered from them, hence, the appeal be dismissed.
Heard counsel for the parties and perused the entire records.
In this case, it is not disputed that the respondents/ complainants are residing and carrying on business where the electricity connections were given for domestic purposes. It is also not disputed that two connections no.1551 pertaining to Dr. S. Kaushal and connection no.5149 pertaining to Mahadeo were got transferred by the complainants in their names. The disputed point according to the appellant/OP is that there was a third connection no.2478 in the name of Shri S.A. Azad which was installed in the same premises and was also used by the complainants but it was not got transferred in their names with ulterior motive and therefore, the OPs on conducting a raid had found the complainants using excess load in all (7) the three connections and also finding that the connection no.2478 was also used by the complainants but the electricity dues consumed through connection no.2478 were not paid by the complainants hence, the assessment of the revenue was made and they did not commit any deficiency in this regard. The complainants on the other hand, has taken the stand that the connection no.2478 had nothing to do with their premises and that they were not using that connection and the OP has wrongly sent bills with regard to an electricity connection no.2478 and therefore, they committed deficiency in service. It is also disputed by the respondents/complainants that the appellant/OP did not have any authority to disconnect their two connections no.1551 and 5149 as they were regularly paying bills for the same and it was wrong on the part of the appellant/OP to have asked for unification of the three connections and disconnecting their legal connections. Another disputed point is that according to the appellant the case was already sub-judice in the court of ACMM-VI hence, the case could not be filed in the Forum below as the complaint was not maintainable while the matter was sub-judice in the Civil Court. Another point in issue is that the complainants were found using theft of electricity as they were using excess load than what was sanctioned to them and accordingly, an assessment was made which could not be challenged in the Forum.
So now it is to be seen as to whether this complaint was maintainable in the Forum below or not when the matter was sub-judice in the Civil Court.
(8)In this regard, it is clear from the complaint itself that the complainants had filed a civil suit no.892 of 1998 in the civil court which was pending in the court of ACMM-VI. Now when on the same facts a case was already pending in the court of ACMM-VI then there was no occasion for the complainants to have filed a complaint case in the Forum below on the same grounds. It is argued by the ld. counsel for the respondents/complainants that the case in the civil court was filed with regard to disconnection of electricity connections no.1551 and 5149 and it was filed for restraining the OP from realizing the illegal demand of electricity dues whereas the complaint has been filed for awarding compensation on the ground of disconnection of the aforesaid connections. This arguments is not at all sustainable as basically the matter pertains to the aforesaid two connections of 1551 and 5149 in the civil court in the case no.892 of 1998. Basically the same facts were before the Forum below in the complaint filed and there was no occasion for the complainants to have filed a complaint case when the matter was already pending in the civil court. It transpires that in the civil court an interim order was passed whereby the complainants were directed to deposit 50% of the entire amount due within 15 days on 5.5.2003 but according to the appellant this order of the hon'ble court of ACMM-VI was not complied with. It is very interesting to note that the order by the ACMM-VI court was passed on 5.5.2003 and the complainant has filed the complaint case in the year 2003 itself but no averment was made by the (9) complainants in the affidavit filed in the Forum below regarding the injunction order passed by the civil court concerned which is not only a material concealment on the part of the respondents/ complainants but shows that they had had scant regard for the orders passed by the ACMM-VI in their favour. It also transpires that as they did not want to deposit any amount as per order passed by the civil court and hence, instead of complying the orders passed by the civil court they filed a complaint case in the Forum below even when the matter was sub-judice in the civil court. Therefore, obviously this complaint was not maintainable in the Forum below when the matter was sub-judice in the court of ACMM-VI in Kanpur Nagar. Hence, the complaint was liable to be dismissed on this score itself.
It is also to be seen as to whether the complainants were found using excess load or not. If so whether the appellant/OP committed deficiency in service in sending the demand bill or not.
The above issues are related to each-other therefore, they are taken up together.
In this regard, it is stated by the complainant Gulshan Chawla in his affidavit filed before the Forum that inspection of the meters were made in the absence of the complainants and the two connections were disconnected which were being used by the complainants but this statement is negated by the checking report where the signatures of the complainant Rajesh Chawla are there. So, it was absolutely wrong on the part of the (10) complainants to say that the raid was conducted in their absence. So, in fact the complainants have also based their statement on untruth and they have not come with clean hands. It transpires from the checking report that the complainants were found using all the three connections including the one numbered 2478 which they say was not used by them but the squad had found them using that connection also. The complainants were also found making use of excess load than what was sanctioned to them and therefore, the squad had made the inspection report on 6.11.1997 and accordingly, the demand bill was sent to the complainants. Since the assessment was made by the appellant/OP as the complainants were found using excess load making theft of the electricity therefore, this case was not maintainable in the Forum below in view of the ruling laid down by the Hon'ble Apex Court in U.P. Power Corporation Ltd. & Ors. Vs. Anis Ahmad, III (2013) CPJ 1 (SC).
The complainants have stated that they did not have anything to do with connection no.2478 which pertains to S.A. Azad and that it was not installed in their premises to their knowledge and therefore, the OP committed deficiency in service in sending the bill pertaining to that connection.
It is very interesting to note that the respondents/ complainants have not been able to categorically state that the connection no.2478 was not installed in their premises no.45/50. They merely say that it was not to their knowledge that such connection was installed in their (11) premises. This shows that the complainants could go to any length in telling untruth, as it is not believable that a connection no.2478 which is proved to be there by the evidence produced by the appellant/OP, was not in the knowledge of the complainants though they themselves got two connections transferred in their names but were ignorant about the third connection which was in fact heavily used as it was that connection no.2478 wherein there were heavy electricity dues as per meter reading. Therefore, it is clear that the complainants had concealed that connection and they were utilizing it surreptitiously making theft of the electricity. It is also interesting to note that the domestic connections were being used for commercial purpose as the firms Delhi Electrical Agency and Delhi Electricals were being run with the domestic connections.
So, from the discussions made above, it is clear that the respondents/complainants were not only having the connection no.2478 in their premises but were also using it surreptitiously and not making any payment of the electricity consumed through that meter. So, from the discussions made above, it is clear that the OP have not committed any deficiency in service and they were well within their rights to issue assessment bills and the bills for electricity consumed by the complainants in their premises for carrying on their business. Therefore, the ld. Forum has grossly erred in finding the appellant/ OP in deficiency in service and has passed the impugned order which is liable to be set aside and the appeal deserves to be allowed with Rs.5,000.00 as costs.
(12)With regard to the appeal no.2333 of 2003, as the main complaint no.892 of 2003 has been dismissed, therefore, any interim order passed in the complaint also stands dismissed. Therefore, the appeal no.2333 of 2003 is liable to be disposed of accordingly.
ORDER The appeal no.1828 of 2004 is allowed with Rs.5,000.00 as costs. The impugned judgment and order dated 23.8.2004 is set aside and the complaint dismissed.
The appeal no.2333 of 2003 is accordingly, disposed of.
Certified copy of the judgment be provided to the parties in accordance with rules. Let a copy of this judgment be placed on the records of the Appeal no.2333 of 2003.
(Vijai Varma) (Mahesh Chand) Presiding Member Member Jafri PA-II Court No.2 [HON'BLE MR. Vijai Varma] PRESIDING MEMBER [HON'BLE MR. Mahesh Chand] MEMBER