State Consumer Disputes Redressal Commission
Dakshin Haryana Bijli Vitran Nigam ... vs Kuldeep Singh on 3 November, 2008
THE CONSUMER DISPUTES REDRESSAL COMMISSION,
THE CONSUMER DISPUTES REDRESSAL COMMISSION,
UNION TERRITORY, CHANDIGARH
R.B.T.No.
1294 of 2008
In
Appeal
No.2366 of 2002
1. Dakshin
Haryana Bijli Vitran Nigam Limited, through its Assistant Executive Engineer,
Industrial Area, Sub Division, Industrial Area, District Sirsa.
2. Dakshin
Haryana Bijli Vitran Nigam Limited, through its Superintending Engineer,
Barnala Road, Sirsa.
.
Appellants.
Versus
Kuldeep Singh (aged about 59 years) son
of Sh.Arjun Singh, resident of House No. 602, Gali Telian Wali, Sirsa, Tehsil
and District Sirsa.
.Respondent.
BEFORE: Hon'ble Mr. Justice K. C.Gupta, PRESIDENT.
Maj.
Gen. S.P. Kapoor (Retd.), Member
Mrs. Devinderjit Dhatt, Member.
Present : None.
DEVINDERJIT DHATT, Member.
1. This appeal received by transfer from Haryana State Commission, under the orders of Honble National Commission has been filed against order dated 27.8.2002 passed by District Consumer Disputes Redressal Forum, Sirsa in complaint case No. 298 of 2002. The contextual facts in brief are as under.
2. The respondent/complainant Sh.Kuldeep Singh was subscriber of electricity meter account No. SGP-8/422 installed by the OP. It is averred that the above account was later on changed to TA-21/1171 after the computerization of accounts by the appellant/OP. It has been averred that in the month of November, 2000 enhancement in the connected load was applied by the complainant and a three phase connection was provided, also a new meter was installed by the Ops after removing the earlier single phase meter. It has been alleged by the complainant that from the very beginning the new meter was non functional and dead. It is also averred that time and again the same was brought to the notice of officials of the OP including those in the account department of the OP with a request to replace the dead meter with a new one. It is alleged that inspite of various assurances the needful was not done. It is stated that the Ops kept on sending the bills to the complainant on the basis of average consumption which was duly paid by him, however before paying the bill a protest used to be lodged with the OP and other officials, still nothing was done to redress his grievance. It is submitted that under the provisions of Indian Electricity Act, 1910 the Ops are under bounden duty to install a correct meter and charge on the basis of the same. In the last week of March, 2002 the complainant allegedly approached OP No.2, however the said OP refused to listen to him due to which the complainant said that his non cooperative attitude will be reported to his superiors and a complaint against him for not looking into his complaint (for rectifying the meter) will be lodged with his seniors. It is stated by the complainant that OP No.2 got angry with him and threatened him that a lesson will be taught very soon. As per facts stated by the complainant on 4.4.2002 the false, tainted and manipulated inspection was done on the premises of the complainant by OP No.2 along with some other officials and the supply was disconnected without giving any reason and even without issuing any show cause notice to him. It is alleged by the complainant that he was not associated on any such inquiry or process but his signatures on the check report was obtained by putting him under compulsion, pressure and coercion as he was threatened to be arrested upon his refusal to sign on the check report, thus he had no alternative but to put his signatures. Thereafter a memo No. 988 dated 4.4.2002 issuing demand of Rs.23,528/- was raised and he was conveyed that amount be paid by 8.4.2002 failing which FIR will be lodged against him. The complainant contacted OP No.2 on 5.4.2002 and represented against non redressal of his grievance, however he was threatened with the lodging of FIR as explained above. It is alleged by the complainant that his meter was removed in an arbitrary and callous manner due to which he was compelled to deposit Rs.23,528/-, however the same was done under protest. It is alleged that above actions of the Ops are arbitrary being against provisions of Indian Electricity Act, 1910 and he is not liable to pay the amount of Rs.23,528/- as demanded vide memo No. 988. In the prayer clause, a direction is sought against the Ops to set aside the demand raised vide memo No. 988 dated 44.2002, to refund the amount of Rs.23,528/- with interest @ 5% p.a. from the date of deposit till refund and to pay Rs.50,000/- as compensation, Rs.10,000/- towards exemplary damages and to impose the costs of proceedings.
3. In the written statement filed by the Ops, the preliminary objection taken is that complaint is not maintainable, as the complainant has not come to the Forum with clean hands. The allegation of deficiency in service has been denied.
In reply on merits, the factum of complainant being consumer vide account No. TA-21/1171 DS stands admitted. However it is denied that three phase connection installed at the premises of the complainant was defective from the very beginning. It is contended that since there was no defect in the meter the question of replacing the same did not arise nor any such written application was ever made by the consumer as alleged. It is stated that bills were issued to the consumer complainant as per rules. The allegations of violation of provisions of Indian Electricity Act, 1910 and Electricity Supply Act, 1948 as alleged by the complainant have been denied. It is submitted that whenever ay complaint with regard to defect in the metering equipment or in the supply of electricity is made, the same is attended to and defect is removed as per rules. The allegation of the complainant with regard to any threats being given by the officials of the respondent Nigam to the complainant have been denied. It is submitted that there is no ill-will or malafide between the complainant and the officials of the department. With regard to the checking, it is submitted that on 4.4.2002 the premises were inspected by Sh.R.K.Jain, AEE along with Sh.R.N.Garg, AEE, Sh.P.K.Mittal, JE and Sh.Hazoor Singh, JE and the supply to the premises from two different feeders/T/FS and given first in the change-over switch before the meter was detected. It is alleged that the same is a mal practice and the change over-switch was appended with the brown tape. It was removed and taken in custody under signatures of the consumer/complainant. Cable Addl. From II Feeder was also got removed as the complainant was getting direct supply thereby committing theft of energy due to which this memo No. 988 dated 4.4.2002 vide which amount of Rs.23,528/- was issued to the complainant. It is submitted that the amount charged was as per rules. The complainant was given an opportunity to prefer an appeal against the assessment to the appellate authority/XEN Operation City Division, Sirsa. The checking being tainted/biased has been denied. The threats as alleged by the officials of the department to the consumer have also been specifically denied. It is submitted that bill was as per rules and without any ill-will against the consumer/complainant. It is contended that since there is no deficiency, hence the question of his having undergone mental tension does not arise. Other allegations of the complainant with regard to threats having been given have also been denied. It is submitted that complaint be dismissed with special costs
4. In evidence on behalf of OP, annexure C-13, D-14, E-15, F-16, G-17 have been filed.
5. The District Forum disposed of the complaint by observing that the Ops could recover the amount according to the latest newly checked installed meter as the MCO issued on 5.4.2002 by taking the average of six months. They were entitled to re-haul the account of the period from 1.1.2001 to 5/2002. The Ops could raise the demand after deducting the amount paid by the complainant. The memo No. 988 dated 4.4.2002 was quashed and the Ops were given the liberty to issue the revised bill after taking the average of six months as shown by the newly installed check meter.
6. Aggrieved against the order of the District Forum present appeal has been filed pleading inter alia that the District Forum directed the appellant department to charge the bill after the installation of check meter, though the Forum failed to take note of the fact that instant one was a case of mal practice of theft and not a case of defective or sticky meter. The challenge to the impugned order has also been on the ground that the Forum failed to appreciate that the complainant had installed the change over switch before the meter, which was a mal practice. The change over switch having been appended with brown tape resultantly the consumer was detected getting the direct supply of electricity and thereby committing theft of energy. The amount charged was in accordance with the provisions of circular No. 40/96. Challenge to the impugned order on the ground that the Forum failed to peruse the record specially the annexures like A,B,C,D,E,F,G. The impugned order has also been assailed on the ground that the Forum failed to take note of the fact that the checking was conducted in the presence of the consumer and he had signed the check report in token of his acceptance of correctness of the demand and he has not raised any objection regarding the checking. Other allegations in the reply have been reiterated.
7. Adverting to the merit of appeal : after perusal of pleadings of the parties, record of the case, impugned order and the grounds of appeal, we are of the considered opinion that contention of appellant has considerable merit that the District Forum has disposed off the complaint by observing that Forum is adopting the middle and justified natural way to dispose of the complaint. The memo No. 988 dated 4.4.2002 (annexure C-2) was issued after the consumer was found to be getting supply in a illegal manner. Still the Forum chose to adopt the middle path for disposing of the complaint and the same deserves to be deprecated as the consumer dispute has to be decided on the basis of pleadings and documentary evidence adduced by the parties and the provisions of Consumer Protection Act. The appellant has placed on record the check report annexure B-2, notice of assessment and hearing under condition 28-A, detailed checking report and the calculations. The document B-12 the checking report clearly mentions that TC/MCB missing and the details with regard to supply to the premises from two different feeders T/FS given in change over switch before the meter which was a clear mal practice. Further it was detected that the change over switch was appended with the brown tape. The checking report bears the signatures of the consumer at two places. In the face of this evidence, the meter of the consumer was established to have been tempered with and illegal energy being abstracted, the District Forum was not justified in accepting the complaint and disposing it of in terms of impugned order. It is pertinent to mention that the case of the parties has to be adjudicated on the basis of evidence and as per law, the adoption and middle course was erroneous as the documents prove otherwise. In this case though the documentary evidence was clearly against the consumer and in favour of appellant, the District Forum with a view to give some relief to the consumer made an order, which cannot be sustained when tested on the anvil of law and evidence on record. The impugned order is set aside and the appeal is accepted, however without any order as to costs.
8. Copies of this order be sent to the parties, free of charge.
Pronounced.
3rd November, 2008 Sd/- [K. C.GUPTA] President Sd/-
[MAJ. GEN. S.P. KAPOOR (RETD.) Member Sd/-
[MRS.
DEVINDERJIT DHATT] rb Member R.B.T.No. 1294 of 2008 In Appeal No.2366 of 2002 Present : None.
-.-
Vide our separate order of even date recorded separately, the appeal filed by the appellant has been accepted .
3.11.2008 (MEMBER) (PRESIDENT) (MEMBER)