State Consumer Disputes Redressal Commission
B.S.E.S. Yamuna Power Ltd. vs P.K. Rastogi on 18 January, 2006
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 18.01.2006 Appeal No. 1007/2005 (Arising from the order dated 08.11.2005 passed by District Forum (East), Saini Enclave, Delhi in Complaint Case No.722/2005) B.S.E.S. Yamuna Power Ltd. Appellant, through Mr. Mujtaba Hussain advocate. Versus Sh. P.K. Rastogi, Respondent. C-304, Plot No. 89, Narwana Apartments, Delhi. CORAM: Justice J.D. Kapoor, .. President Mr. Mahesh Chandra . Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President(ORAL)
1. It appears that the main grievance of the appellant against the impugned order dated 08.11.2005, passed by the District Forum is in respect to the direction No.2 whereby it has been directed not to follow the Chapter VII of DERC (Delhi Electricity Regulatory Commission) in respect of determination of civil liability or compounding fee as it is inconsistent with the part XIV of the Indian Electricity Act. Directions given by the District Forum are as under:-
(1)To cancel the bill No. LNENF 050820050013 payable by 16.08.2005.(2)
Not to follow the chapter VII of DERC in respect of determination of civil liability or compounding fee as it is inconsistent to the part XIV of the Indian Electricity Act.(3)
Refund the amount if OP received on account of impugned bill.(4)
Pay a sum of Rs.1000/- as compensation and Rs.500/- as cost of litigation.
2. Relevant facts lie in narrow compass. Respondent complainant filed a complaint before the District Forum seeking cancellation of the electricity bill dated 22.07.2005 raised by the appellant and refund of the amount received on account of impugned bill and compensation on the ground that the complainant is the consumer of OP vide K.No. 1230 01040076 and OP conducted illegal raid on the premises of the complainant and issued a bill of Rs.71,653/-. The complainant termed this bill not as per law as the said bill was raised on the basis of DAE i.e. Dishonest Abstraction of Energy on account of tampering with the meter in respect to the seals. Notice was issued to OP. OP appeared and filed the reply stating therein that bill of Rs. 71,653/- is raised as per regulations formulated by Delhi Electricity Regulatory Commission (in short DERC).
3. Recently a Three Member Bench of this Commission has decided an appeal by way of decision dated 18.03.2005 in Appeal No. A-1054/2002- entitled C.E.D.C. Vs K.K. Kapoor, wherein the Commission had discussed all the relevant provisions of the Indian Electricity Act relating to the allegation of tampering of meter and theft of electricity directly from the main line threadbare and overruled earlier judgement passed by Two Member Bench in Appeal No. 3375/2000 - entitled Delhi Vidyut Board Vs D.N. Shukla by laying down the following guidelines and directions:
(i) Every registered consumer of energy is a consumer as defined under section 2(1)(d)(ii) of the Consumer Protection Act 1986 and therefore has a right to challenge the allegations of theft of energy or fraudulent or dishonest abstraction or consumption or use of energy notoriously known as FAE or DAE or by artificial mean or means not authorised by the licensee as referred in Section 39 of the Indian Electricity Act 1910 or allegation of interference with meters or licensees work or improper use of consumption of energy as prescribed by Section 26 read with Section 44 of the Indian Electricity Act respectively before the Consumer Fora as denial of or disputing such allegations is itself a consumer dispute within the meaning of section 2 (1)(c) of the Consumer Protection Act 1986.
(ii) Consumer Forum may dismiss the complaint of a consumer against whom there are allegations of theft of energy through dishonest abstraction, consumption or use by way of artificial mean or means not authorised by the licensee on prima facie view of the matter on the basis of material produced and reply thereto without subjecting the proceedings to undergo any further process.
(iii) Where there are allegations of interference with meters or licensees work or for improper use of energy or of breaking of seal or glass of the meter etc. against a registered consumer as referred in Section 44 of the Indian Electricity Act these shall not be branded as a case of FAE or DAE and shall invariably be tried and adjudicated upon in the manner provided under the Consumer Protection Act 1986.
(iv) Consumer Forum may dismiss the complaint in rarest of a rare case involving complex questions of facts and law for the reasons that the dispute cannot be determined without involving the lengthy, time consuming process of examination and cross examination of several witnesses including expert evidence.
4. It is pertinent to mention at this stage that the appellant has referred to a decision dated 16.12.2005 of Delhi High Court rendered in WP(C) No. 1240/2002 in support of the contention that wherever there are allegations of theft of electricity or FAE or DAE, these do not fall within the definition of Consumer dispute. We have closely perused the said order. We are afraid and sorry to point out that appellant had misled the High Court by referring to the over-ruled decision of this Commission viz DVB Vs D.N. Shukla and did not refer to the decision rendered in CEDC Vs K.K. Kapoor inspite of the fact that the same was in its knowledge wherein we had discussed in extenso the meaning and definition of consumer dispute and distinction between theft of energy directly through artificial means and dishonest abstraction of energy by way of tampering of meters as in the formers case there is dishonest and criminal intention of committing theft and thereby not paying for the electricity consumed whereas in the latters case there may be intention of paying less than what is actual consumption by tampering with the meter in any form as contemplated by Section 26 of the Electricity Act. In latters case intention can be proved by comparing the consumption pattern of the period prior to and after tampering of meter.
5. Moreover, the High Court has nowhere defined and held as to what is a consumer dispute and therefore mere allegation without being subjected to proof and without affording the consumer the reasonable opportunity of being heard cannot oust the registered consumer from the provision or arena of Consumer Protection Act, 1986.
6. On the concept whether tampering of meter amounts to DAE or FAE and there is no distinction between extraction of energy by way of theft directly through main line and through tampering of meter, the counsel for the appellant has referred to the provision of Section 135 of the new Electricity Act of 2003 (in CEDC vs K.K. Kapoor we had referred to the relevant provision of Indian Electricity Act 1910). It reads as under: -
135.
Theft of electricity (1) Whoever, dishonestly, -
(a) taps, makes or causes to be made any connection with overhead, underground or under water lines or cables or service wires or service facilities of a licensee; or
(b) tampers of meter, installs or uses a tampered meter, current reversing transformer, loop connection or any other device or method which interferes with accurate or proper registration, calibration or metering of electric current or otherwise results in a manner whereby electricity is stolen or wasted or
(c) damages or destroys an electric meter, apparatus, equipment or wire or causes or allow any of them to be so damaged or destroyed as to interfere with the proper or accurate metering of electricity.
(d) So as to abstract or consume electricity or use electricity shall be punished with imprisonment for a term that may extent to three year or with fine or with both _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Provided further that if it is proved that any artificial means or means not authorised by the Board of Licensee exist for abstraction, consumption, use of electricity by the consumer, it shall be presumed, until the contrary is proved that any abstraction, consumption or use of electricity has been dishonestly caused by such consumer.
7. Let us assume that the new Indian Electricity Act of 2003 empowers the appellant to raise bill on the basis of DAE/FAE on the basis of allegations of tampering of meter. Still the criteria for raising such a bill, will be the one which we have referred above and not the one which will be applicable in respect of theft directly from the main line as intention in both the eventuality is altogether different. As observed above in case of theft, the intention is not to pay at all for the electricity consumed by the consumer or any other person who is not the registered consumer. In case of tampering of meter, consumer has to be necessarily a registered consumer as by virtue of being given a meter he becomes the legal and registered consumer as defined by Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 as he avails service of supply of energy against consideration and his intention is to pay less than what he actually consumes.
8. As is apparent from the provision of Section 135 particularly the provision raising the presumption of theft through artificial means or means not authorised by the licensee in case of theft of electricity through tapping, making or causing to be made any connection with overhead, underground or underwater lines or cables or service wires or service facilities there is total absence of connection with the meter or reading of meter, whereas in case of tampering of meter or damaging or destroying meter or apparatus as contemplated by Clauses (b) and (c) intention is to slow down the meter and to avoid paying the charges for actual consumption i.e. interference with the proper or accurate metering and this can be detected and ascertained by comparing the consumption pattern for the period prior to and after the allegation of tampering or damaging of meter as referred in Clauses (b) and
(c).
9. In nutshell the basis of raising bill on the basis of theft of electricity as envisaged by clause (a) of Section 135 of the Indian Electricity Act, 2003 is altogether different as there is no connection with the meter than raising of bill on the allegation of tampering or damaging of meter inspite of the fact that both these mischiefs have been brought within the net of section 135 of the Act under the title Theft of Electricity which was not the case in old Act of 1910.
10. However for allegation of theft of electricity under clause (a) consumer need not be a registered consumer.
11. By way of clarification and further dispensing with the direction (ii) given by us in CEDC Vs K.K. Kapoor (Appeal No. A-1054/2002 decided on 18.03.2005) empowering the District Forums to dismiss the complaint arising out of allegation of theft committed directly from the main line through artificial means, on prima facie view and in view of the provision of Section 135 of new Indian Electricity Act of 2003, we lay down following guidelines for and give directions to District Consumer Fora while dealing with cases of theft of electricity as enunciated by Section 135 of the New Electricity Act 2003:-
(i) Every person who is a registered consumer and has been allotted an electricity meter or is user there of is a consumer within the meaning of Section 2(1)(g)(ii) of the Consumer Protection Act 1986 as he hires/avails the service of an electricity supplying agency for supply of energy against consideration.
(ii) Denial of allegations of electricity supplying agency i.e. Opposite Party falling within the ambit of Section 135 of the Electricity Act 2003 i.e. theft of electricity through tapping, making or causing to be made any connection with overhead, underground or underwater lines or cables or service facilities of a licensee on allegation of tampering/damaging or destroying of meter as referred in Clauses (b) and (c) of Section 135 of the Act interfering with the proper or accurate metering of electricity is a consumer dispute as defined by Section 2(1)(e) of the Consumer Protection Act 1986, and therefore falls within the jurisdiction of Consumer Fora created by the Act. Section 2(1)(e) defined Consumer dispute as a dispute where the person against whom complaint has been made denies or dispute the allegation contained in the complaint.
Condition precedent is that the person should be a registered consumer.
(iii) Every such dispute shall be dealt with strictly in accordance with the procedure laid down in by Sections 12 and 13 of the Consumer Protection Act 1986 and decided in terms of Section 14 of the Act.
12. Since the respondent had not raised the question before the District Forum as to the non-applicability of Chapter VII of DERC in respect of determination of civil liability or compounding fee there was no occasion for the District Forum to give the above referred directions No.2.
13. In view of the foregoing reasons we partly allow the appeal in the following terms:
(A) The appellant shall raise the revised bill on the basis of the consumption pattern of the respondent during the past six months to one year in respect to the bill in question raised on the basis of FAE/DAE to prove the intention of the respondent to interfere with the proper and accurate metering of electricity as contemplated by clauses (b) and (c) of Section 135 of the Indian Electricity Act, 2003.
(B) If the amount against the impugned bill has already been received by the appellant or paid by the respondent, the excess amount of the revised bill shall be adjusted in the future bills which shall always be raised on the basis of above pattern (C) Direction No.2 given by the District Forum is hereby quashed.
(D) Rest of the order is maintained.
14. The appeal is disposed of in above terms. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
15. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
16. In view of the import of the order, copy be sent to all the District Forums immediately.
Announced today on 18th day of January ,2006.
(Justice J.D. Kapoor) President (Mahesh Chandra) Member Tri