B.S. LOBANA vs SDO, ELECTRICITY O.P.

-FEELING aggrieved against judgment and order dated 3.2.2004 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (for short hereinafter referred to as the District Forum) in Complaint Case No. 515 of 2003 vide which the complaint of the appellant/complainant Shri B.S. Lobana was dismissed.

NOTICE of appeal was served on the respondents who put in appearance through Mr. K.C. Sahu, Govt. Pleader. Record of the complaint case was summoned from the District Forum. The appellant has electric connection for supply of electric energy by the respondents. It is a metered supply and meter is installed in his house No. 4096, Sector 46-D, Chandigarh. The appellant/complainant is thus consumer of electricity, which is provided to him by the respondents two in number i.e., SDO, Electricity O.P., Sub-Division No. 6, Sector 20-C, Chandigarh and Chandigarh Administration, U.T., Chandigarh through Chief Engineer, U.T., Chandigarh, Sector 9, Chandigarh. The electricity meter stopped functioning on 27.7.2003, which was brought to the notice of the respondents by the appellant. The appellant, after this meter stopped functioning and a new meter being installed at his house, received electricity bill for consumption of electricity for the period from 31.7.2003 to 27.9.2003 showing the consumption of 371 units. The concerned electricity bill is numbered 64790 dated 19.10.2003. Th amount of the bill was Rs. 815/-. It is this bill about which the appellant complained to the respondents as being highly excessive and particularly considering the consumption of electricity in the previous last one year. In the complaint, a table was given showing the consumption of electricity in units for the periods shown therein.

A perusal of the consumption figure prior to 27.7.2003 will go to show that for the period from 27.7.2002 to 27.9.2002, 157 units were consumed. In the subsequent period of 27.9.2002 to 27.11.2002, 102 units were consumed. In the next period from 27.11.2002 to 27.1.2003, 88 units were consumed. From 27.1.2003 to 27.3.2003, 139 units were consumed. For the period from 27.3.2003 to 27.5.2003, 99 units were consumed and lastly for the period from 27.5.2003 to 27.7.2003, when the meter stopped, 99 units consumption was shown in the concerned bill. The average consumption during the period from 27.7.2002 to 27.7.2003 i.e., for a period of 12 months, was 57 units per month. The total consumption of electricity during 12 months according to the units shown in the table comes to 684 units and on being devided by 12, the per month consumption comes to 57. For two months, the consumption at the rate of 57 units per month would come to 114 units. As against this consumption, the disputed bill showed consumption of 371 units when new meter was installed at the house of the appellant. Even otherwise, the maximum unit consumption during the last one year i.e., from 27.7.2002 to 27.7.2003 is 157 units from 27.7.2002 to 27.9.2002 followed by 139 units for the period from 27.1.2003 to 27.3.2003 and 102 units consumption during the period from 27.9.2002 to 27.11.2002. 102 units are less than 114 units, which is the average consumption worked out @ 57 units per month and in this view, the only consumption of units more than the average is for two periods i.e., from 27.7.2002 to 27.9.2002 (157 units) and 27.1.2003 to 27.3.2003 (139 units).

THE grievance of the complainant was that the new meter was running very fast and it showed consumption much more than the actual consumption of electric energy at his house. THE complaint made by the appellant vide its letter dated 27.10.2003 wherein request was made for correction of the bill keeping in view the past consumption, the meter was checked by the Junior Engineer with the help of Aqua meter and he reported that the new meter installed at the premises of the complainant was not defective and was rather okay. When the appellant did not get relief from the respondents, he filed complaint seeking declaration that the impugned bill is invalid and liable to be reversed on the average formula basis for the last three bills in view of deficiency in service and to direct the O.P. No 1 to permit the petitioner to instal his own private meter in place of existing meter with further direction to the respondent No. 1 to adopt average formula in respect of future consumption during the pendency of the complaint upto the change of meter and to pay compensation of Rs. 50,000/- to the petitioner for mental torture and agony caused to the complainant and his family members, which resulted from the deficiency in service on the part of O.Ps. The respondents filed their joint written statement wherein they described the complaint to be premature on the ground that the meter No. CHSE-23834 installed at the premises of the appellant/complainant had been checked by the concerned Junior Engineer with Aqua meter and was reported to be OK but the complainant was adamant to get the meter replaced. The respondents vide letter No. 4698 dated 25.11.2003 requested the complainant to challenge the working of the meter for confirming its accuracy by depositing the requisite fee as per the procedure of the department but instead of following the departmental procedure, he filed the complaint.

THE complainant filed his affidavit and documents. Annexure C-1 is copy of bill dated 19.10.2003. A copy of letter dated 27.10.2003 is Annexure C2 sent by the complainant to the O.P. No. 1 with copy of Electricity Inspector, U.T., Chandigarh and to the Chief Engineer, Department of Electricity, Chandigarh. THE copy of letter was also endorsed to the Electrical Inspector of U.T., Chandigarh, Annexure C-3 is collectively the electricity bills dated 10.10.2002, 10.2.2003 and 19.6.2003 issued to the appellant/complainant. Annexure C-4 is a copy of letter dated 12.11.2003 sent by O.P. No. 1 to the complainant informing him that with reference to his application dated 27.10.2003, the meter had been checked and was found to be okay. The respondents filed affidavit of Shri Anil Dhamija, Sub-Divisional Officer of respondent No. 1, Shri Jasbir Singh, Junior Engineer also filed his affidavit. The documents, which were placed on record are Annexure R-1- copy of letter dated 12.11.2003 from the respondent No. 1 to the complainant; (Annexure R-2) copy of letter dated 25.11.2003 sent by respondent No. 1 to the Executive Engineer Operation Division No. 3 informing him that the meter had been checked and was found to be okay. In this letter SDO reported to the Executive Engineer that the appellant/complainant had been advised to challenge the working of the meter by depositing the requisite meter challenge fee for confirming the accuracy of the meter but he did not come forward for the same. Annexure R-3 is the copy of checking report of the meter of the complainant prepared by Shri Jasbir Singh, Junior Engineer. Annexure R-4 is the copy of letter from the complainant to the respondent No. 1 complaining that the meter installed in his house was running very fast and so it may be checked and then changed. Annexure R-5 is the copy of letter dated 25.11.2003 from the SD Electricity/respondent No. 1 to the appellant informing him that the meter had been checked and was found to be okay. Annexure R-6 is the copy of letter dated 29.10.2003 sent by the appellant to the respondent No. 1 praying that the meter installed in his house was running fast and that the disputed electricity bill may be corrected/rectified on average basis. The District Forum referred to Section 26(6) of the Electricity Act, 1910 and quoted the same and also the condition Nos. 14(e), (f), (g) and (h) of the Abridged Conditions of Supply, which related to meters and held that provisions of Condition No. 14(e) have been complied with and the meter was found to be okay. The District Form held that the matter was to be decided upon the application by either party, by the Chief Electrical Inspector, under Section 26(6) of the Indian Electricity Act, 1910 as amended upto date but the complainant had not given a formal notice of seven days of the O.Ps. The copy of the application, had, however, been endorsed to the Chief Engineer and the same be treated as notice to the O.Ps. The District Forum held that it was eminently fit case in which the difference/dispute between the parties is to be decided by the Chief Electrical Inspector but the same could be done only when the complainant had filed an application to this effect to the Chief Electrical Inspector under Section 26(6) of the Indian Electricity Act, 1910 and noticed that it was not suggested that the complainant had filed any such application to the Chief Electrical Inspector for deciding such a dispute or difference. It was also observed by the District Forum that it is not suggested that the complainant had deposited the necessary fee with the Chief Electrical Inspector. Thereafter, it was held by the District Forum that it had no jurisdiction to refer the dispute to arbitration. It was held that however, Section 26(6) and Condition No. 14 of the Abridged Conditions of Supply do not per se amount to a reference to the arbitration.

THE District Forum relied on the judgment of the Punjab State Consumer Disputes Redressal Commission reported in the case of Punjab State Electricity Board v. M/s. Ram Processor, I (2001) CPJ 178=2000 (2) CPC 604, in which the Punjab State Commission directed the O.P. to take action in accordance with the law i.e., the dispute shall be referred to the Chief Electrical Inspector. THE District Forum on the basis of the analysis of the case held that it was abundantly clear that the O.P. did not commit any deficiency in service and, consequently, the complaint was dismissed. THE District Forum, however, advised the complainant to move an application under Section 26(6) of the Indian Electricity Act, 1910 to the Chief Electrical Inspector after depositing necessary fee to test the meter for its accuracy. After the Chief Electrical Inspector has submited his report, the O.Ps. shall be at liberty to take such action as is prescribed under law and rules.

AS seen above, the dispute lies in a narrow campus. The grievance of the appellant was regarding the new meter being inaccurate and running fast and regarding consumption more than actual consumption of the electric energy by the appellant. Section 26(6) of the Indian Electricity Act, 1910, which has been quoted in the impugned judgment and order shows that where any difference or dispute arises as to whether any meter referred to in Sub-section (1) is or is not correct, the matter shall be decided upon the application of either party, by an Electrical Inspector and where the meter has in the opinion of such Inspector ceased to be correct, such Inspector shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply, during such time not exceeding six months as the meter shall not, in the opinion of such Inspector, have been correct but save as aforesaid. The Registrar of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity. It is further provided that before either a licensee or a consumer applies to the Electrical Inspector under this sub-section, he shall give to the other party not less than seven days'' notice of his intention to do so. Clause No. 14(e) of the Abridged Conditions of Supply, which has also been extracted in the impugned judgment and order, shows that in case of consumer dispute regarding the accuracy of meter, he may upon given notice in writing to the Board and paying in advance the prescribed fee as mentioned in the Schedule of General Charges cause a test of meter to be made by the Board, and if on such test being made the meter should prove to be not correct, as provided by the rules under the Act, the Board shall refund charges of such test and shall adjust the consumer''s account, as may be required, with retrospective effect for a period not exceeding 6 months immediately preceding the date of such test or the date of removal of such a meter for the purpose of test.

Clause 14(f) is not relevant because the meter in question has been supplied by the respondents and is not consumer''s own property. Clause No. 14(g) shows that where any difference or dispute arises as to whether any meter is or is not correct, the meter shall be decided upon the application by either party, by the Chief Electrical Inspector, under Section 26(6) of the Indian Electricity Act, 1910 as amended and if in his opinion the meter is not correct the Chief Electrical Inspector shall estimate the amount of adjustment to be carried out in the consumer''s account for a period not exceeding six months preceding the date of test. This is subject to the condition that the complainant-consumer has to give to the other party a notice of not less than seven days of his intention to do so.

CLAUSE 14(h) provides that subject to the provisions of Sub-clauses (e), (f) and (g) above the supply taken by the consumer as measured by the said meter shall be deemed to be correct and binding on the consumer. CLAUSE 14(g) in fact contains the same provision has contained in Section 26(6) of Indian Electricity Act, 1910. The Abridged Conditions of Supply will not overwrite the statutory provision contained in Section 26(6) of Indian Electricity Act, 1910. The learned Counsel for the appellant/complainant drew our attention to his letter (Annexure C-2) addressed to S.D.O., Electricity Operation Sub-Division No. 6, Sector 20-C, Chandigarh on the subject "Request for Correction of the Electricity Bill for the period from 31.7.2003 to 27.9.2003 on the basis of average of the last 3 months in respect of H. No. 4096/46-D, Chandigarh in accordance with the judicially approved formula of Average." Towards the end of this letter, in the last para, the complainant wrote as under: "For the present, I request the authorities especially the Electrical Inspector of the Chandigarh Administration to take notice of the situation forthwith under Section 26(6) of the Electricity Act, 1910, and decide the difference/dispute as per law to give me necessary relief in the electricity charges overpaid on 28.10.2003 vide Receipt No. 67 dated 28.10.2003."

THIS letter is dated 3.11.2003. It will show that the complainant had already mde a request to the Electrical Inspector of the Chandigarh Administration about taking action under Section 26(6) of Indian Electricity Act, 1910. The appellant/complainant did not receive any reply to his aforesaid request from the Electrical Inspector and instead the respondents in their reply took the stand that the meter in question had been checked by the Junior Engineer with Aqua meter who reported the same to be okay. THIS is to be found in preliminary objection No. 1 where it was further mentioned that in case the complainant wanted to challenge the working of the meter for confirming the accuracy of the meter, he could do so by depositing the requisite fees as per procedure of the department but instead of following the departmental procedure, the appellant/complainant approached the District Forum without adopting the departmental procedure. In preliminary objection No. 2, it was contended that the complainant had not made any specific reference to the Electrical Inspector regarding dispute in accuracy of meter who is empowered to resolve the dispute under Section 26(6) of Indian Electricity Act, 1910. The stand of the respondents is evidently incorrect inasmuch as the complainant has in Annexure C-2 endorsed the copy of his letter dated 3.11.2003 to, (1) Electrical Inspector, U.T., Chandigarh through the Chief Engineer, Engineering Department (Electricity Wing), Chandigarh Administration, U.T., Secretariat, Sector 9, Chandigarh and (2) Chief Engineer, Engineering Department (Electricity Wing), Chandigarh Administration, U.T., Secretariat, Sector 9, Chandigarh with the request to ensue replacement/change of meter within a week and it was under this endorsement that in the last para, the complainant made request to the authorities especially the Electrical Inspector of the Chandigarh Administration to act under Section 26(6) of Indian Electricity Act, 1910. The complainant thus made a request according to law to the respondents vide letter dated 3.11.2003, which was not considered at any stage by the respondents who, as mentioned above, took the same plea in the written statement that the proper course for the complainant would be to apply under Section 26(6) of Indian Electricity Act, 1910 to the Electrical Inspector. In case the complainant was required to deposit some charges for taking action under Section 26(6) of Indian Electricity Act, 1910, particularly under Clause 14 of Abridged Conditions of Supply, the respondents were required to inform the complainant and called upon him to deposit the same. But no such action appears to have been taken. The complainant complied with Clause 14(e) of serving a notice on the respondents of his intention of getting the meter tested as per provisions of Section 26(6) of Indian Electricity Act, 1910. This notice is dated 3.11.2003 and there was sufficient time given by the appellant/complainant to the respondents/O.P.s who incidentally did not act.

IT is well settled that in the proceedings under the Consumer Protection Act, 1986, too technical view is not require to be taken and it is enough, if evidence placed on record shows the intention of the consumer-complainant for praying for an action to be taken under Section 26(6) of Indian Electricity Act, 1910, the respondents should have acted thereupon and taken up the matter in right earnest and in case any amount for testing was required, the complainant could be asked to pay the same. IT may be pointed out that the complainant himself is a practising Advocate.

THE District Forum also failed to take notice of the fact that a copy of letter dated 3.11.2002 (Annexure C-2) had been endorsed to the (1) Electrical Inspector, U.T. Chandigarh through the Chief Engineer, Engineering Department (Electricity Wing), Chandigarh Administration, U.T., Secretariat, Sector 9, Chandigarh and (2) Chief Engineer, Engineering Department (Electricity Wing), Chandigarh Administration, U.T., Secretariat, Sector 9, Chandigarh, for taking action under Section 26(6) of Indian Electricity Act, 1910 under which the only person competent to properly check and test the meter about which the grievance has been made of running fast and regarding consumption more than the actual consumption, is the Electrical Inspector, the Junior Engineer cannot be deputed under some Administrative Instruction No. 111 to go and check the meter as such administrative instruction would be clearly in conflict with the statutory provision contained in Section 26(6) of Indian Electricity Act, 1910. THE report of the Junior Engineer that the new meter installed at the premises of the appellant/complainant was okay and there was no defect in it, cannot thus be given due weight and it cannot be taken into consideration as being contrary to the law referred to above. The District Forum, in our considered opinion, went wrong in holding that there was no deficiency in service on the part of the respondents. It is a clear case where there was deficiency on the part of the respondents who failed to appreciate the grievance of the complainant and his request for taking action under Section 26(6) of Indian Electricity Act, 1910 and in ignoring the consumption of electric energy in terms of units during the past year month w.e.f. 27.7.2002 to 27.7.2003.

Resultantly, the appeal has thus considerable merit and the same is allowed with costs, which we quantify at Rs. 500/-. The impugned order is set aside. The complaint is allowed to the extent that the respondents/O.Ps. are directed to refer the matter to the Electrical Inspector under Section 26(6) of Indian Electricity Act, 1910 to test the new meter installed at the premises of the consumer/complainant within a period of one month from the date of receipt of certified copy of this order and to apprise the appellant/complainant of the result of the checking of the meter and in case the meter is found to be not running properly and is defective or for that matter, running fast and recording consumption more than actual consumption, necessary relief under the law referred to above, shall be granted to the appellant. The respondents shall pay a sum of Rs. 5,000/- as compensation for mental harassment and agony caused to the appellant/complainant resulted from deficiency in service on the part of the respondents/O.Ps.

THE respondents/O.Ps. are further directed to pay the amount of compensation and costs within one month from the date of receipt of certified copy of this order failing which the amount of compensation shall carry interest @ 6% per annum till payment. Copies of this order be sent to the parties free of charge. Appeal allowed.