State Consumer Disputes Redressal Commission
Maharashtra State Electricity ... vs Sau. Shobhabai Babulal Bhawsar on 9 April, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
CIRCUIT BENCH
AT NAGPUR
5 TH FLOOR,
ADMINISTRATIVE BUILDING NO. 1
CIVIL LINES,
NAGPUR-440 001
First Appeal
No. A/07/659
(Arisen out
of Order Dated 28/03/2007 in Case No. Case No. CC/07/18 of District
Forum, Buldana)
Executive Engineer,
Maharashtra State Electricity Distribution Company
Limited,Buldana, Chikhali
Road, Buldana, Ta. & Distt. Buldana.
...........Appellant(s)
Versus
Sau. Shobhabai Babulal Bhawsar,
R/o. Chikhali, Jijau Nagar, Ward No. 4,
Chikhali, Tq.
Chikhali, Distt. Buldana.
...........Respondent(s)
BEFORE:
Hon'ble Mr.S.M. Shembole PRESIDING MEMBER
HON'BLE SMT.JAYSHREE YENGAL MEMBER HON'BLE MR.N. ARUMUGAM MEMBER PRESENT:
Adv. Smt. Moharir ......for the Appellant Adv. Mr. Pathak ......for the Respondent Judgement (Delivered on 09/04/2012) PER MR.
S.M. SHEMBOLE , HON'BLE PRESIDING MEMBER
1.
Challenge in this appeal is the judgment and order dated 28/03/2007 passed by the District Consumer Forum, Buldhana in consumer complaint No. 18/2007, allowing the complaint setting aside the electric bills of Rs. 12,150/- and Rs.20.000/- and directing the opponents/appellants to repay the amount with interest @ 5% p.a. to the complainant/respondent and to pay Rs. 750/- towards cost of proceeding, etc. Brief facts giving raise to this appeal are that,
2. Respondent/Original complainant- Shobha is a consumer of appellant/original opponent (For the sake of brevity original opponent is hereinafter called as appellant and original complainant as respondent).
3. Respondent is a domestic consumer and she had obtained an electric connection in her house from the Appellant. Electric meter was supplied to her by the appellant. On 07/11/2006 when the members of the flying squad of the appellant visited the house of respondent for checking the electric meter, they found the electric meter tampered. Therefore, they made panchanama and joint report in presence of the respondent. Thereafter, assessment was made and on the basis of assessment bill was issued with compounding charges. Respondent paid the bill amount with compounding charges and, therefore, no FIR was lodged.
4. Thereafter, respondent made complaint with the District Consumer Forum, Buldhana alleging that the members of flying squad of the appellant, without notice, entered in the house, broken meter seal and extended threats to her and recovered the amount i.e. electric charges with compounding charges.
5. In response to the complaint notice the appellant appeared before the District Consumer Forum, Buldhana and resisted the complaint vide its written version contending enter alia that the respondent has committed theft of electricity by tampering the electric meter and it was noticed by the members of the flying squad when they visited house of the respondent for checking the electric meter. Therefore, they prepared the panchnama and joint report in the presence of the respondent and panchas. It is averred that thereafter, as per the procedure, the assessment was made and on the basis of assessment electric bill with compounding charges was issued. The respondent paid the bill amount, therefore, no FIR was lodged with the Police but subsequently the complainant filed the false complaint. It is submitted to dismiss the complaint.
6. On hearing both the sides and considering the documents on record, the District consumer Forum, Buldhana accepting the averments made in the complaint allowed the complaint as stated above.
7. Feeling aggrieved by the impugned judgment and order original opponent/appellant - M.S.E.D.C.L. has preferred this appeal.
8. We heard Ld. Counsel for both the sides, perused the copy of impugned judgment and order, copy of complaint, copy of written version, and copies of other documents produced along with appeal memo.
9. Undisputed facts are that the respondent is a domestic consumer of appellant-M.S.E.D.C.L. On 07/11/2006, members of the flying squad of the appellant visited the house of respondent and checked the electric meter, they also prepared the panchanama and joint report in the presence of respondent and panchas. Thereafter, by making assessment bill of Rs.12,180/- with separate bill of compounding charges of Rs. 20,000/- were issued and respondent paid the amount of both the bills. It is also not disputed that the electric meter was tampered removing its seal. However, as per the say of complainant it was tampered by the members of the flying squad of the appellant only. However, according to the appellant, it was tampered by the respondent. Therefore, crux in this matter is as to whether the meter was tampered by the respondent or members of the flying squad of the appellant and if it was by the consumer respondent then whether the appellant legally recovered amount of electric bill and compounding charges.
10. It is submitted by Smt. Moharir, Ld. Counsel for the appellant that the members of the flying squad of appellant- M.S.E.D.C.L. legally checked the electric meter in presence of the respondent and found the electric meter tampered. Therefore, they prepared the panchanama and joint report in presence of panchas and respondent-Shobha has also signed the panchanama there only and when such electric bill was issued by making assessment she has shown the willingness to pay the amount of bill as well as compounding charges and therefore, no FIR was lodged though it was a theft case. It is submitted that the respondent paid the amount of electricity bill as well as compounding charges to avoid prosecution and thereafter made false concocted complaint. According to him such complaint is not at all tenable. It is submitted to dismiss the complaint allowing the appeal. It is also submitted that the District Consumer Forum, Buldhana without considering the undisputed facts committed error in allowing the complaint merely relying on the averments made by the complainant. It is further submitted that the impugned judgment and order is being unfounded is not sustainable.
11. Per contra Mr. Pathak, Ld. Counsel for the respondent vehemently argued that the appellant has recovered the electricity charges and compounding charges extending threats to prosecute her. It is contended that without notice and without disclosing the identity, the members of the flying squad of the appellant entered in the house of appellant and taking undue advantage of the facts that the appellant was alone in the house, tamperred the electric meter and prepared false panchanama ,etc. It is further contended that the respondent has paid the amount of electricity bill as well as compounding charges under pressure and threats extended by the members of the flying squad to prosecute her.
12. It is submitted that though the appellant has averred that the panchanama was prepared in presence of panchas, no affidavit of any panch witness is filed to support their contention and therefore their contention can not be relied upon. It is submitted that as the appellant/opponent failed to produce any affidavit of any panchas to support the panchanama, the District Consumer Forum has rightly discarded the defence of the appellant/opponent. In short, Mr. Pathak, Ld. Counsel for the respondent has tried to support the impugned judgment and order.
13. But we find little force in the arguments advanced by Mr. Pathak, Ld. Counsel for the respondent, firstly, because the averments made by the respondent/complainant that the members of the flying squad of the appellant themselves tampered the electric meter by removing off its seal, are not at all reliable and acceptable. Though it is alleged by the respondent that appellant has failed to produce affidavit of the any panchas in support of panchanama, respondent has also not produced any affidavit to support her contention that the members of the flying squad of the appellant themselves tampered the electric meter by removing of its seal. When the respondent herself has made such allegations it was necessary for her to substantiate such allegations. In the absence of any evidence such serious allegations against the members of the flying squad of the appellant that they tampered the electric meter by removing its seal can not be sustained. In our view, in the absence of any animosity with the respondent/ complainant no employee of the appellant-M.S.E.D.C.L. would make such false panchanama and joint report. Therefore, there was no reason for the members of the flying squad and appellant to falsely involve the complainant/respondent in theft case. It is not the contention of either of the parties that there was any dispute between the member of the flying squad of the appellant on one side and complainant/respondent on other side. But it appears from the copy of impugned judgment and order that the District Consumer Forum, Buldhana, without applying its mind, merely relying on the allegations of the complainant/respondent, wrongly held that the members of the flying squad of the appellant tampered the electric meter and falsely issued electric bill and compounding charges.
14. Secondly, if really the members of the flying squad of the appellant would have tampered the electric meter; in our view the complainant/respondent would not have shown her readiness to pay the amount of assessment bill as well as compounding charges.
15. Thus any count the allegations made in the complaint are being after thought and concocted can not be relied on.
16. It is contended by Mr. Pathak, Ld. Counsel for the respondent that if it was the theft case then it was necessary for the appellant/opponent to seize the electric meter and also lodge FIR to the Police. It is contended that for making assessment, it was necessary for the appellant to send the electric meter for testing, etc. But we find no force in this contention of the Mr. Pathak, Ld. Counsel for the respondent, because as per the provision of Section 126 of the Electricity Act, 2005 it was necessary for the consumer respondent to challenge the assessment notice by submitting objection. Once the assessment notice is accepted, and within 7 days bill amount is paid, it was not necessary for the appellant to lodge the police complaint. In the present case, admittedly, the respondent has paid the amount of assessment bill as well as compounding charges without raising any objection and therefore the appellant has restored the electric supply. Therefore, the question of sending the electric meter for testing does not arise so also the question of lodging FIR.
17. For the foregoing reasons it is obvious that in order to avoid prosecution, the complainant/respondent has paid the amount of assessment notice with compounding charges and thereafter she made false and concocted complaint. Once the assessment notice and compounding charges amount is paid, such complaint raising objection and challenging the assessment notice is not at all tenable in law. But it appears that in the impugned judgment and order the District Consumer Forum, Buldhana, without considering undisputed facts and legal aspects, committed serious error in allowing the complaint which can not be sustained.
18. For the foregoing reasons, the appellant succeeds and the appeal deserves to be allowed. Hence, the following order.
ORDER
1. Appeal is allowed and impugned order is set aside. Consequently complaint stands dismissed.
2. Having regard to the relation between the parties as consumer and service provider we directed them to bear their own cost.
3. Copy of this order be supplied to the parties.
Dated:-
09/04/2012.
[ Hon'ble Mr.S.M. Shembole] PRESIDING MEMBER [ HON'BLE SMT.JAYSHREE YENGAL] MEMBER [ HON'BLE MR.N. ARUMUGAM] MEMBER ay