State Consumer Disputes Redressal Commission
Apepdcl, Eluru vs Pattapu Venkata Krishna Rao on 15 April, 2011
BEFORE THE A BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. F.A. 1297/2008 against C.C. 19/2007, Dist. Forum, Eluru Between: 1) The Superintending Engineer (Operation) APEPDCL, Eluru, W. Godavari Dist. 2) The Asst. Divisional Engineer (Operation) Eluru Town (Vigilance) 3) The Asst. Accounts Officer ERO/Town/Nidadavole 4) The Asst. Divisional Engineer (Operation) A.P. Transco, Nidadavole West Godavari Dist. *** Appellants/ Opposite Parties And Pattapu Venkata Krishna Rao Alias P. Krishna S/o. Kondala Rao, Age: 35 years Business, L.M.H. Road Nidadavole, West Godavari Dist. *** Respondent/ Complainant Counsel for the Appellant: M/s. Jyotheswar G. Counsel for the Respondent: Mr. M. Ramgopal Reddy CORAM: HONBLE SRI JUSTICE D. APPA RAO, PRESIDENT & SMT. M. SHREESHA, MEMBER
FRIDAY, THIS THE FIFTEENTH DAY OF APRIL TWO THOUSAND ELEVEN Oral Order: (Per Honble Justice D. Appa Rao, President) ***
1) This is an appeal preferred by the electricity board against the order of the Dist. Forum in quashing Ex. A1 provisional assessment notice and directing them to refund the amount paid under interim orders besides costs of Rs. 500/-.
2) The case of the complainant in brief is that he was having household service connection No. 6650 and has been paying the bills as served on him. While so the Asst.
Divisional Engineer inspected his house in the third week of December, 2006 and noted that MRT seals found tampered forcibly by using cutting pliers.
Without giving any data erroneously booked a case of theft of energy u/s 135 of Electricity Act, 2003. They issued provisional assessment notice for Rs. 50,383/-. He was directed to pay 50% of the same in order to obtain electrical reconnection. Lineman on the orders of Asst. Divisional Engineer fixed a new meter. This was made without furnishing any data.
It is an arbitrary action. If service connection is disconnected, he and his family members would suffer great and irreparable loss, and therefore prayed that proceedings dt. 16.2.2007 directing him to pay Rs. 50,383/- be dropped and not to disconnect electrical service connection and pay Rs. 5,000/- towards mental agony and costs.
3) The appellant electricity board resisted the case. While admitting that the complainant was having household service connection No. 6650 it alleged that when it was inspected on 19. 12. 2006 by R. John Babu, Asst. Divisional Engineer he found cutting pliers marks on the meter seals. On that the meter was sealed in the presence of his brother-in-law K. Ram Babu.
When the meter was tested in MRT laboratory in the presence of customer it was found that seals were tampered, and as such a case u/s 135 of Electricity Act was booked.
A provisional assessment notice dt. 16.2.2007 for theft of electrical energy was issued directing him to pay Rs. 50,483/- with a direction if 50% of the assessed amount was paid the same would be reconnected with reconnection charges of Rs. 50/- and supervision charges of Rs. 50/- and the same was served on the complainant on 17.2.2007. Thereupon he approached the Dist. Forum and got reconnection by depositing Rs. 12,623/-. Old meter was replaced with a new meter. Provisional assessment was made as per the provisions of general terms and conditions of supply as approved by APERC. The Dist. Forum has no jurisdiction to entertain the complaint. A special tribunal was constituted under the Indian Electricity Act. The complainant has compounded the offence to escape from criminal liability. He was estopped from contending otherwise, and therefore prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A2 marked while the appellants did not choose of file any evidence.
5) The Dist. Forum after considering the evidence placed on record opined that tampering of seals would not lead to a presumption that there was tampering of meter. Section 173 of the Indian Electricity Act confers jurisdiction on the Dist. Forum. Simply because there was a statutory remedy u/s 135 & 154 of Electricity Act it does not exclude the jurisdiction of Dist. Forum more so by virtue of Section 3 of the Consumer Protection Act.
Consequently the provisional assessment notice Ex. A1 was set-aside directing them to refund the amount paid by way of Interim Orders, and further pay Rs. 500/- towards costs.
6) Aggrieved by the said decision the electricity board preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.
It ought to have seen that the complainant questioned the provisional assessment notice dt. 16.2.2007 issued u/s 135 of Electricity Act, 2003 for theft of energy. A criminal case was registered. It has filed a case before the Special Court for electricity offences for determination of civil liability u/s 154 of Electricity Act, 2003. 50% of the amount demanded vide provisional assessment notice dt. 16.2.2007 will be adjusted as provided u/s 154(6) of Electricity Act, 2003. The Dist. Forum has no jurisdiction and therefore prayed for dismissal of the complaint with costs.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that the complainant is having household service connection No. 6650. On 19.12.2006 the Asst. Divisional Engineer visited the premises and inspected the meter. He found that there were cutting pliers marks on the meter seals and it was sealed in the presence of his brother-in-law and the meter was sent to MRT laboratory, and it was tested in the presence of complainant. The laboratory had confirmed that seals were tampered, consequently there was theft of energy. Basing on which a case u/s 135 of Electricity Act was booked, and provisionally assessed the pilferage at Rs. 50,483/-. A provisional notice Ex. A2 was issued directing him to pay 50% of the assessed amount and Rs. 50/- each towards reconnection charges and supervision charges. The complainant did not prefer any appeal, however got reconnection by depositing Rs. 12,623/- before the Dist. Forum. Old meter was changed and replaced with a new meter.
9) The contention of the electricity board is that the Dist. Forum has no jurisdiction. In fact a special tribunal is constituted under Indian Electricity Act. More over the complainant has got compounded the offence to escape from criminal liability by paying Rs. 4,000/- vide data sheet enclosed to Ex. A2.
10) The Honble Supreme Court in Sub-Divisional Officer (P), UHBVNL Vs. Dharam Pal reported in 2007 CTJ 1 (SC) (CP) while dealing with cases of pilferage has categorically observed that the Consumer Forum has no jurisdiction to entertain the complaint against the electricity department when complaint was that the meter was tampered. Their Lordships after exhaustively considering the provisions of Indian Electricity Act, and the rules framed there under vis--vis the provisions of Consumer Protection Act opined:
Section 26(6) of the Indian Electricity Act will have no applicability (i) if the consumer is found to have committed a fraud with the licensee and thereby illegally extracted the supply of energy preventing or avoiding its recording, or (ii) has resorted to a trick or device whereby also the electricity is consumed by the consumer without being recorded by the meter. In effect the latter class of cases would also be one of fraud. Tampering with the meter or manipulating the supply line or breaking the body seal of the meter resulting in non-registering of the amount of energy supplied to the consumer or the electrical quantity contained in the supply - are the cases which were held to be not covered.
In the light of above decision, we are of the opinion that the complaint is not maintainable. The Dist. Forum erred in entertaining the complaint, and passing order in favour of complainant.
11) In the result the appeal is allowed setting aside the order of the Dist. Forum. Consequently the complaint is dismissed. No costs.
1) _______________________________ PRESIDENT
2) ________________________________ MEMBER Dt. 15.
04. 2011.
*pnr UP LOAD O.K.