State Consumer Disputes Redressal Commission
A.V.V.N.L. vs Mool Singh on 23 September, 2021
BEFORE THE RAJASTHAN STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, JAIPUR
FIRST APPEAL NO:411/2020
Executive Engineer, AVVNL Jhunjhunu O & M Sikar Road, Near Hawai Patti,
Jhunjhunu, Rajasthan & ors.
Vs.
Mool Singh s/o Roop Singh r/o Barmer, at present Abad Road no.1, Jodhpur
Sweet Home, Near Sahakari Bank, Jhunjhunu Tehsil & Distt. Jhunjhunu.
Date of Order 23.9.2021
Before:
Hon'ble Mr. Justice Banwari Lal Sharma-President
Hon'ble Mrs. Shobha Singh -Member
Mr.B.S.Matwa learned counsel for the appellants Mr.Subhash Chander Sharma learned counsel for the respondent BY THE STATE COMMISSION ( PER HON'BLE MR. JUSTICE BANWARI LAL SHARMA, PRESIDENT ):
2Present appeal is preferred by the appellants Executive Engineer AVVNL Jhunjhunu & Asstt.Engineer AVVNL Jhunjhunu assailing the impugned judgment dated 27.10.2020 passed by the learned DCC Jhunjhunu in Complaint Case No. 381/2020 (Mool Singh Vs. Executive Engineer AVVNL Jhunjhunu & ors.) whereby the learned DCF allowed the complaint of respondent complainant in following terms:
19- ifj.kker% izkFkhZ dk ;g ifjokn Lohdkj fd;k tkdj vizkFkhZx.k dks vkns'k fn;k tkrk gS fd vkns'k dh izekf.kr izfr o uksfVl fnukad 19-10-2020 esa of.kZr iz'keu jkf'k 45]000@ :i;s izkFkhZ }kjk tek djk nsus ls 48 ?k.Vs esa izkFkhZ dk fo|qr dusD'ku jsLVksj fd;k tkosaA lkFk gh vizkFkhZx.k dks funsZ'k fn;k tkrk gS fd os Hkkjrh; fo|qr vf/kfu;e dh /kkjk 126 ds vkKkid izko/kkuks dh ikyuk esa fu;ekuqlkj dk;Zokgh djus ds fy, LorU= jgsxsA lkFk gh vizkFkhZx.k dks ;g Hkh vknsf'kr fd;k tkrk gS fd og vkt ls ,d ekg dh vof/k esa izkFkhZ dks 30]000@& :i;s ekufld larki o 5]500@& :i;s ifjokn O;; isVs vnk djsaA 20- mij vafdr lEizs"k.k dh ikyuk esa bl vkns'k dh izfr LihM&iksLV ls eSusftax Mk;jsDVj] vtesj fo|qr forj.k fuxe fyfeVsM] vtesj dks Hksth tkdj ;g funsZ'k fn;k tkrk gS fd os vius v/khuLFk vf/kdkjh;ksa dks /kkjk 126 Hkkjrh; fo|qr vf/kfu;e ds vkKkid izko/kkuksa dh ikyuk esa dk;Zokgh djus ,oa miHkksDrkvksa dks tkjh uksfVl vius foHkkx esa dk;Zjr fof/k vf/kdkjh ls vuqeksfnr djk;s tkus ds i'pkr tkjh djkuk lqfuf'pr djsaA** Brief facts relevant for this appeal are that respondent complainant filed a complaint before the learned DCC 3 Jhunjhunu on 22.10.2020 stating therein that he owned a shop on lease from one Sukhram Kaswan in the month of February 2018 for three years on rent of Rs.
30,000/- per month for which a lease deed was executed on 27.2.2018 before the Sub Registrar Jhunjhunu. In the aforesaid rented shop he is preparing sweets, namkeens etc. for his livelihood. The complainant in the month of February2018 sought an electric connection of 8 kilowatt NDS from non-applicant no.2 and account number of that connection is 1814/502.The aforesaid connection was checked on 22.8.2019 and on checking it was found for using 15.8 KV electricity for which non-applicant no.1 issued notice to complainant and demanded for Rs.19,656/- which was instantly deposited by the complainant. Thereafter non-applicants are continuing issuing bills treating the connection for 15 Kilowatt The enquiry report was prepared on 26.9.2020 where the meter was considered as defective and was seized and the same was sent for laboratory testing. After receiving laboratory report, meter was found tempered with therefore, recommendation of initiation proceedings u/s 135 and 136 of Indian Electricity Act was made and it was also recommended that FIR be lodged. It is pleaded that in the report dated 26.9.2020 there is no iota of 4 allegation regarding broken seal, tempered with meter, any damage in meter body part or seal. Not only this the checking report was prepared in absence of complainant.
Thereafter a registered notice dated 19.10.2020 was received by the complainant on 20.20.2020 regarding demand of Rs. 7,08,882/- for which complainant protested before non-applicant no.1 who instead of resolving the dispute ousted the complainant from his office and on 21.10.2020 his electric connection was disconnected. It is alleged that in notice dated 19.10.2020 the demand of compounding amount of Rs.45,000/- and civil liability of Rs.6,63,882/-, total Rs. 7,08,882/- was illegally demanded. Lastly it is prayed that enquiry report dated 26.9.2020 be declared as arbitrary and does not disclose any offence therefore, same may be quashed and demand notice dated 19.10.2020 be quashed being void and illegal. Since electric connection of complainant was wrongly disconnected therefore, adequate compensation be awarded in favour of complainant and for mental agony and economic loss compensation be awarded in terms of Rs. 5 lakhs and during the disconnected period Rs. 5000/- per day of generator expenditure and Rs. 22,000/- for litigation expenses be also awarded in favour of complainant.5
In reply non-applicants pleaded that the subject connection is in the name of Sukhram s/o Udaram in NDS category while the complaint is filed by Mool Singh s/o Roop Singh who is not related in any manner with Sukhram therefore, complainant is not 'consumer' of AVVNL. It is also pleaded that in the connection of Sukhram in the month of August 2019 on vigilance enquiry theft of 13021 units was detected for which a sum of Rs. 1,93,092/- were made debit in the account of consumer which was deposited by the consumer on 26.8.2019 against receipt no. 520973. Thereafter it was found that excess load is being used by the consumer therefore, another demand was raised for Rs. 19,656/- which was also deposited by the consumer alongwith penalty.
On 20.9.2020 again when vigilance checking was made it was found that aircondition, deep fridge counter, fridge, oven, water cooler etc. were working in the premises where the electric connection was installed. Considering the aforesaid appliances the suspicion was raised regarding electric consumption of meter reading therefore, VCR enquiry report was prepared and meter was seized. It was found that consumer is applying some external device for controlling the meter therefore, recommendation was made for initiation 6 proceedings u/s 135 & 138 of the Electricity Act and VCR No. 21840/30 was prepared on site on 26.9.2020. As per meter lab testing report it reveals that the electric supply was there for more than 23 hours per day while power consumption was shown by meter only for 8-9 hours only therefore, the civil liability was rightly raised.
Both the parties submitted their documents in support of their pleadings and after hearing the learned DCC Jhunjhunu allowed the complaint in aforesaid terms.
Aggrieved by which non-applicants appellants preferred this appeal.
We have heard Mr.B.S.Matwa learned counsel appearing on behalf of the appellants and Mr.Subhash Chander Sharma appearing on behalf of respondent complainant and went through the impugned judgment and available record. Mr.Matwa learned counsel appearing on behalf of appellants submits that respondent complainant is not a 'consumer' as the connection is in the name of Sukhram who is not party before the learned DCC or before this Commission.
7He submits that there is no privity of contract between the complainant and non-
applicants. In absence thereof the complaint is not maintainable before the Consumer Commission. He further submits that the connection is NDS which is commercial one and admittedly respondent complainant is running sweet shop in the subject premises which is commercial activity therefore, consumer complaint is not maintainable. He further submits that since there is case of theft of electricity and VCR was filled up and prosecution is initiated against respondent complainant therefore, on that count also complaint is not maintainable. Without considering all these facts learned DCC wrongly allowed the complaint therefore, the impugned judgment may be quashed and set aside and this appeal may be allowed .
Learned counsel for the appellants relied on Valmik Vs. Maharashtra State Electricity Distribution Co. (2015) 1 CPR(NC) 647, Ishwar Singh Vs. Dakshin Haryana Vidyut Prasaran Nigam Ltd. II (2011) CPJ 18 (NC), Ajmer Vidyut Vitran Nigam Ltd. Vs. Ranjeet (Revision No. 43/2020) decided by coordinate bench of this Commission on 11.11.2020, Ajmer Vidyut Vitran Nigam Ltd. Vs. Moolchand Ranva (Revision No. 8 44/2020) decided by coordinate bench of this Commission on 11.11.2020, Ajmer Vidyut Vitran Nigam Ltd. Vs.Vijayantpal (Revision No. 49/2020) decided by coordinate bench of this Commission on 27.11.2020, Ajmer Vidyut Vitran Nigam Ltd. Vs. Beerbal (Revision No. 48/2020) decided by coordinate bench of this Commission on 27.11.2020, Jaipur Vidyut Vitran Nigam Ltd. Vs. Smt.Rajkumari Gupta (First Appeal No. 138/2016) decided by coordinate bench of this Commission on 9.5.2017, Lalit Kumar Vs. Ajmer Vidyut Vitran Nigam Ltd. (First Appeal No. 685/2015) decided by coordinate bench of this Commission on 21.4.2016, Uttar Pradesh Power Corporation Ltd. Vs. Anis Ahmad (2013) 8 Supreme Court Cases 491.
Per contra Mr.Subhash Chander Sharma learned counsel appearing on behalf of complainant supported the impugned judgment and submitted that since complainant is tenant of Sukhram and he is using the electric connection which is in the name of Sukhram and regularly paying the electric consumption bills and notice was also given to him therefore, he is consumer. He submits that since the sweet shop is only source of his livelihood therefore, he is consumer. He submits 9 that notices were wrongly issued to complainant and demand was raised arbitrarily and illegally. It was rightly quashed by the learned DCC. He submits that once the notice was compounded then no further action can be taken against the complainant.
He submits that all allegations regarding tempering with meter and using external device are false for which complainant is protesting on each platform.
Learned counsel relied on Ajmer Vidyut Vitran Nigam Ltd. Vs. Shri Ram (Revision No. 39/2020) decided by this Commission on 18.2.2021, and UHBVNL Vs. Atma Ram (Revision No. 2724/2010 ) decided by Hon'ble NCDRC on 7.9.2010.
We have considered the submissions made at Bar and went through the impugned judgment and available record.
On 22.7.2021 when this Commission asked the appellants that without tempering with the meter seal and body of meter how electric meter can be stopped on which Executive Engineer Mr.Mumtaz Ali demonstrated before this Commission in presence of appellant and respondent counsels 10 that applying external device on outgoing electric socket in the same premises on load side the electric meter can be stopped and electric connection can be continued.
Therefore, argument advanced by the learned counsel for the respondent complainant that the seal and body of meter was found in tact has no meaning in theft cases and the appellant satisfied this Commission that meter can be tempered with without tempering seal and body after applying external device on the load side line of the electric connection.
In the matter of Valmik Vs. Maharashtra State Electricity Distribution Co. (supra) Hon'ble NCDRC while interpreting sec.15, 17, 19 and 21 of the C.P.Act,1986 and sec.
126 of Electricity Act, 2003 held that -
"Once opposite party takes plea that case in question was a case of theft of electricity, Consumer Forum would not have jurisdiction to entertain complaint and go into question as to whether there was actually theft of electricity or not....Competence to enquire into allegations made in complaint would arise only if complaint is otherwise within jurisdiction of Consumer Forum...If on account of allegation of theft of electricity, Consumer Forum lacks inherent jurisdiction to entertain complaint, it cannot 11 proceed to adjudicate upon factual issue raised in complaint and cannot adjudicate one way or other way on merits... Consumer Forum would in such circumstance have to keep its hand off the matter, leaving it to aggrieved person to approach appropriate Forum for redressal of his grievance....There can be no question of State Commission entertaining appeal filed by petitioner."
In Lalit Kumar Vs. AVVNL (supra) coordinate bench of this Commission held that "The contention of the respondent is that admittedly connection was for non-domestic purposes and when commercial activities is going on, he is not a consumer within the meaning of Consumer Protection Act. It has also been contended that the appellant is running a restaurant there and reliance has been placed on II (2011) CPJ 18 (NC) Ishwar Singh Vs. Dakshin Haryana Vidyut Prasaran Nigam where it has been held that Atta Chakki installed in house would be for commercial purpose. Further reliance has been placed on II (2012) CPJ 173 (NC) MCS Computer Services Vs. Allena Auto Industries where it has been held that consumer does not include person who avails of service for any commercial purposes and further reliance has been placed on (2013) 8 SCC 491 Uttar Pradesh 12 Power Corporation Vs. Anis Ahmad where it has been specifically held that person availing services for commercial purpose do not fall within the meaning of 'consumer' in S.2(1)(d) of the Consumer Protection Act."
In Ishwar Singh Vs. Dakshin Haryana Vidyut Prasaran Nigam Ltd.(supra) Hon'ble NCDRC held that-
"Complainant has not produced any material before us to show that it was a domestic connection. Apparently, Atta Chakki even though installed in the house would be for commercial purpose and no where it has been pleaded that the Atta Chakki was being used for own use of the Complainant or that the Atta Chakki was meant for his livelihood. No material has been produced before us by the Complainant so as to come to the conclusion that the Complainant is a consumer within the meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986, inasmuch as services for commercial purpose are excluded thereunder. Besides this in case of theft of electricity Consumer fora have no jurisdiction to go into such issues. In view of this, we are of the opinion that the Complainant, prima facie, is not a consumer within the meaning of Section 2(1)(d)(ii) of Consumer Protection Act, 1986 and the complaint before the Consumer Forum was not maintainable."13
In Ajmer Vidyut Vitran Nigam Ltd. Vs. Ranjeet (supra)& Ajmer Vidyut Vitran Nigam Ltd. Vs. Moolchand Ranva (supra) the coordinate bench of this Commission while relying on Uttar Pradesh Power Corporation Vs. Anis Ahmed (2013) 8 SCC 491 held that -
^^ekuuh; loksZPp U;k;ky; }kjk fu/kkZfjr fl)kUrksa dks ns[krs gq, fo|qr pksjh ds ekeys esa miHkksDrk eap dks gLr{ksi djus dk vf/kdkj gh ugha FkkA izFke n`"V;k ekeyk cuuk ugha ik;k gksrk rFkk jkf'k Hkh fuf'pr gS blfy, viw.kZuh; {kfr Hkh ugha gksrhA fo}ku ftyk eap us tks vkns'k ikfjr fd;k gS] og iw.kZr;k fof/k fo:) gSA** In Ajmer Vidyut Vitran Nigam Ltd. Vs. Beerbal the coordinate bench of this Commission while relying on Uttar Pradesh Power Corporation Vs. Anis Ahmed (2013) 8 SCC 491 held that ^^oh lh vkj@ tkap izfrosnu fnukad 27-06-2020] mDr oh lh vkj ds laca/k esa tkjh uksfVl fnukad 30-06-2020 o izFke lwpuk fjiksVZ fnukad 30-07-2020 ls ;g izdV gksrk gSa fd fo/kqr vf/kfu;e 2003 dh /kkjk 135 ds vUrxZr ekeyk fo|qr pksjh dk gksus ds dkj.k fo|qr miHkksDrk dks uksfVl tkjh fd;k x;k gSaA mDr U;kf;d n`"Vkar ds ifjis{; esa miHkksDrk eap dks gLr{ksi djus dk vf/kdkj ugha FkkA ,slh fLFkfr esa xSj fuxjkuhdkj@ ifjoknh ds i{k esa izFken`"V;k ekeyk cuuk ugha ik;k tkrk gSaA bl izdj.k esa ,slk Hkh ugha gSa fd xSj fuxjkuhdkj@ ifjoknh dk ekeyk ,slh {kfr dk gks] ftldk vkadyu :i;ks esa ugha fd;k tk ldrk gksA** 14 In Hari Prasad @ Harish Kumar Agarwal Vs. MU.H.B.V.N.L. (2009 (4) CPR 334 (NC) Hon'ble NCDRC held that -
" Admittedly, the electric connection in question is in the name of Anil Garg. The complainant claims to be beneficiary of the said connection on the strength of Section 2(d)(ii) of the CP Act. Section 2(1)(d)(ii) defines 'consumer' as under:
'consumer' means any person who-
hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.
In order to fall within the ambit of consumer the beneficiary must avail the services with the approval of the consumer namely the first mentioned person.
8. Except for of bare averments of the 15 complainant that he is beneficiary of the said connection, there is no other material to sustain his claim. The complainant did not get connection transferred in his name in the records of the respondents and, therefore, the complainant cannot be treated as beneficiary of the services provided by the OP/respondent. In fact, this litigation appears to be proxy litigation on behalf of Anil Garg in whose name the electric connection has been issued. The Vigilance Department of the respondent during checking had found that not only the meter was running slow by 80% but also the connected load was 9.826 KV as against sanctioned load of 5.8 KV. The inspection was done in the presence of Abhishek s/o Harish Garg nephew of Anil Garg. The meter was sent to M and T Lab.
and notices were sent to the consumer, Anil Garg twice for remaining present in M and T Lab, but he failed to turn up. The respondents had, therefore, overhauled the account for six months on account of slow running of the meter.
9. The State Commission on the basis of material on record had rightly come to the conclusion that the complainant was not a consumer of services provided by the OP since the electric connection was in the name of Anil Kumar Garg. Instead of Anil Kumar Garg seeking remedy in respect of the 16 connection in his name, the litigation has been initiated through proxy complainant Hari Prasad @ Harish Kumar Agarwal who cannot be considered to be a consumer of the respondent. If the litigation had been filed by Anil Kumar, he would find it difficult to meet the case of the OP and as such resort in this case has been taken to proxy litigation who would deny everything."
In Uttar Pradesh Power Corporation Vs. Anis Ahmed (supra) Hon'ble NCDRC held that-
" Section 145 of the Electricity Act, 2003 bars the jurisdiction of Civil Court to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in Section 126. A separate provision of appeal to the appellate authority has been prescribed under Section 127 so that any person aggrieved by the final order made under Section 126, may within thirty days of the said order, prefer an appeal, which reads as under:
127.Appeal to appellate authority.- (1) Any person aggrieved by the final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed.17
(2) No appeal against an order of assessment under sub-section shall be entertained unless an amount equal to half of the assessed amount is deposited in cash or by way of bank draft with the licensee and documentary evidence of such deposit has been enclosed along with the appeal.
(3) The appellate authority referred to in sub-section (1) shall dispose of the appeal after hearing the parties and pass appropriate order and send copy of the order to the assessing officer and the appellant.
(4) The order of the appellate authority referred to in sub- section (1) passed under sub-section (3) shall be final.
(5) No appeal shall lie to the appellate authority referred to in sub -section (1) against the final order made with the consent of the parties.
When a person defaults in making payment of assessed amount, he, in addition to the assessed amount, shall be liable to pay, on the expiry of thirty days from the date of order of assessment, an amount of interest at the rate of sixteen per cent per annum compounded every six months." Therefore, it is clear that after notice of provisional assessment to the person indulged in unauthorized use of electricity, the final decision by an assessing officer, who is a public servant, 18 on the assessment of "unauthorized use of electricity"is a "Quasi Judicial" decision and does not fall within the meaning of "consumer dispute" under Section 2(1) (e) of the Consumer Protection Act, 1986.
Here in the case in hand admittedly VCR was filled up against the complainant and FIR was lodged and today respondent complainant himself submitted copy of charge sheet filed against him. Accordingly after investigation charge sheet filed against complainant for offence punishable u/s 135 of Indian Electricity Act,2003 therefore, in view of the judgment of Hon'ble Supreme Court in Uttar Pradesh Power Corporation Vs. Anis Ahmed (supra) the complaint of complainant is not maintainable before the Consumer Commission.
So far as the case law cited by the learned counsel for the respondent complainant are concerned, in the matter of Ajmer Vidyut Vitran Nigam Ltd. Vs. Shri Ram this Commission while relying on Ajmer Vidyut Vitran Nigam Ltd. Vs. Naraini Devi (2017 NCJ 111 (NC) held that the electric theft was suspected therefore, the facts of this judgment are altogether different from the present case. In the present case 19 FIR was lodged and after investigation chargesheet has already been filed against the complainant therefore, this judgment does not help the complainant.
So far as UHBVNL & anr. Vs. Atma Ram (supra) is concerned,in this case Hon'ble NCDRC held that -
"We agree with the view taken by the fora below that the compounding could not be done without the consent of the complainant/respondent. We also agree with the view taken by the fora below that the petitioner had failed to prove that the respondent was guilty of theft of energy. Petitioner failed to lead any evidence to prove theft of energy. None of the members of the Raiding Party were examined as witnesses. The only evidence led by the petitioner was to file the affidavit of SDO (Electricity), who was not a member of the Raiding Party. The fora below have rightly come to the conclusion that the petitioner had failed to prove that the respondent was guilty of theft of energy. Dismissed."
From perusal of this judgment it reveals that in this case the matter was compounded but here in the present case the civil liability and penalty amount is yet to be deposited, only compounded amount was deposited that too regarding the 20 previous vigilance checking therefore, this judgment also does not help the complainant.
Without considering all these facts the learned DCC allowed the complaint therefore, the impugned judgment is not sustainable and this appeal deserves to be allowed and in view of judgment of Uttar Pradesh Power Corporation Vs. Anis Ahmed (supra) since the complaint of complainant respondent is not maintainable before the Consumer Commission.
Accordingly, the appeal is allowed and the impugned judgment is quashed and set aside and complaint of complainant is dismissed.
(Shobha Singh) (Banwari Lal Sharma) Member President nm