National Consumer Disputes Redressal
Walmik vs Maharashtra State Electricity ... on 13 January, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1112 OF 2014 (From the order dated 21.10.2013 in First Appeal No. 80 of 2009 of the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad) Walmik S/o Kachru Jadhav, R/o- Shivoor, Tq. Vaijapur, Dist. Auranagabad Petitioner Versus Maharashtra State Electricity Distribution Co. Ltd. Circle Office Vidyut Bhavan, Dr. Ambedkar Road, Mill Corner, Aurangabad, Through its Chief Engineer Respondent BEFORE: HON'BLE MR. JUSTICE V.K.JAIN, PRESIDING MEMBER For the Petitioner : Ms. Smitakshi Talukdar, Advocate DATED: 13.01.2015 JUDGMENT
JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The father of the petitioner/complainant had obtained an electricity connection from the respondent, Maharashtra State Electricity Distribution Co. Ltd. After his death, the said connection was being used by the complainant. The electricity supply came to be disconnected by the respondent on 18.08.2007. This is also the case of the complainant that at the time, the electricity supply was disconnected, his mother and uncle were ill and on account of the threat given to him by Lineman, the mental condition of his uncle became very disturbed and he had to be taken to hospital, where substantial expenditure was incurred in his treatment. The uncle of the complainant could not survive and died on 20.08.2007.
According to the complainant, since there was no electricity at the time of funeral of the uncle, he had to arrange water in tankers on higher basis. The complainant, therefore, approached the concerned District Forum by way of a complaint, seeking a sum of Rs. 6,50,967/- as detailed below:-
a) Damage for loss of Mangalsutra of mother of the Complainant. Rs. 7,000/-
b) Medical expenses for uncle of Complainant. Rs.
20,000/-
c) mental tension and agonies for the insulive treatment to uncle and mother of the Complainant. Rs. 1,00,000/-
d) Damages on account of living in darkness for about 2months & 13 days Rs.
30,000/-
e) Damages on account of death of uncle of Complainant Rs. 5,00,000/-
f) Faulty and incorrect charges of electricity Rs.
2,667/-
___________ Total Rs.
6,57,667/-
___________ Less bill of Rs. 6,700/- dtd. 10.10.2007 Rs. 6,700/-
____________ Rs.
6,50,967/-
______________
2. The complaint was resisted by the respondent. It was stated in the reply that the complainant was a defaulter in payment of electricity charges. It was further alleged that during inspection on 18.08.2007 by the Flying Squad, it was found that the meter had been tampered by using loop with an intention to use the electricity supply directly and the meter was not in operation. The photograph of the meter was taken at the time of inspection and a Panchnama was drawn. It was further stated in the reply that in terms of the circular dated 19.08.2007, the officers of the respondent were authorized to disconnect the supply of electricity on detecting theft of the electricity under Section 135 (IA) of the Electricity Act, 2003. The respondent claimed that the act of utilizing electricity directly, without routing it through the meter, was an offence.
3. The District Forum vide its order dated 30.12.2008, held that the alleged theft of electricity could not be established and accordingly set aside the demand raised by the respondent against the complainant/petitioner. It was also directed that the respondent Board shall charge electricity as per the reading of the meter without imposing any interest. Compensation amounting to Rs. 2,500/- and costs of litigation amounting to Rs. 1,500/- was also awarded to the petitioner/complainant.
4. Being aggrieved from the order of the District Forum, the complainant approached the concerned State Commission by way of an appeal. The State Commission noticing that the matter pertains to the theft of the electricity and assessment of electricity bill under Section 126 of the Electricity Act, relied upon the decision of Honble Supreme Court in Civil Appeal No. 5466 of 2012 U.P. Power Corporation Ltd. & Ors. Vs. Anis Ahmad and held that the Consumer Complaint itself being not maintainable, the appeal deserved to be dismissed. Being aggrieved from the dismissal of his appeal, the complainant is before us, by way of this revision petition.
5. The Honble Supreme Court in Civil Appeal No.5416 of 2012, Uttar Pradesh Power Corporation Ltd. Vs. Anis Ahmed, inter alia held as under:
45.
The National Commission though held that the intention of the Parliament is not to bar the jurisdiction of the Consumer Forum under the Consumer Protection Act and have saved the provisions of the Consumer Protection Act, failed to notice that by virtue of Section 3 of the Consumer Protection Act, 1986 or Sections 173,174 and 175 of the Electricity Act, 2003, the Consumer Forum cannot derive power to adjudicate a dispute in relation to assessment made under Section 126 or offences under Sections 135 to 140 of the Electricity Act, as the acts of indulging in "unauthorized use of electricity" as defined under Section 126 or committing offence under Sections 135 to 140 do not fall within the meaning of complaint"
as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.
46. The acts of indulgence in "unauthorized use of electricity" by a person, as defined in clause
(b) of the Explanation below Section 126 of the Electricity Act,2003 neither has any relationship with "unfair trade practice" or "restrictive trade practice" or "deficiency in service" nor does it amounts to hazardous services by the licensee. Such acts of "unauthorized use of electricity" has nothing to do with charging price in excess of the price. Therefore, acts of person in indulging in 'unauthorized use of electricity', do not fall within the meaning of "complaint", as we have noticed above and, therefore, the "complaint" against assessment under Section 126 is not maintainable before the Consumer Forum. The Commission has already noticed that the offences referred to in Sections 135 to 140 can be tried only by a Special Court constituted under Section 153 of the Electricity Act, 2003. In that view of the matter also the complaint against any action taken under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before the Consumer Forum.
47. In view of the observation made above, we hold that:
(i) ***
(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.
6. It is vehemently contended by the learned counsel for the petitioner that since there was no theft of the electricity, the District Forum would have jurisdiction in the matter and consequently the demand raised by the Board was wholly illegal. She also submits that in view of the unjustified disconnection of the electricity, the petitioner/complainant is entitled to appropriate damages from the respondent.
7. In my view, one the opposite party takes a plea that the case in question was a case of theft of electricity, the Consumer Forum would not have jurisdiction to entertain the complaint and go into the question as to whether there was actually theft of electricity or not.
The competence to inquire into the allegations made in the complaint would arise only if the complaint is otherwise within the jurisdiction of the Consumer Forum; if, on account of allegation of theft of electricity, the Consumer Forum lacks inherent jurisdiction to entertain the complaint, it cannot proceed to adjudicate upon the factual issue raised in the complaint and cannot adjudicate one way or the other way on merits. The Consumer Forum would in such circumstance have to keep its hand off the matter, leaving it to the aggrieved person to approach an appropriate Forum for redressal of his grievance. I am in agreement with the State Commission that in view of the decision of the Honble Supreme Court in Anis Ahmad (supra), the complaint itself was not maintainable. Therefore, there can be no question of the State Commission entertaining the appeal filed by the petitioner. The revision petition is, therefore, dismissed.
V.K.JAIN, J PRESIDING MEMBER PSM/6