NIRMALA DEVI vs PUNJAB STATE ELECTRICITY BOARD

-NIRMALA Devi appellant was the subscriber of commercial electric connection No. SP-02/0290. No electricity was used from this electricity connection for the last two years as no business was being done from this property. The officials of the respondents used to visit the premises of the appellant for recording the reading but since the electricity was not being consumed, therefore, they used to charge the bill on average basis. A letter was also sent by the appellant to the respondents to that effect. There was no response from the respondents. Therefore, the appellant used to make the payment of electricity bills on average basis. The officials of the respondents visited the premises of the appellant on 12. 9. 2000 and removed the electric meter in her absence. It was neither removed nor packed in her presence. The electric connection was disconnected. The respondents were contacted but there was no response.

AS a result the appellant had filed a complaint (Complaint No. 1164 of 12. 10. 2000) against the respondents under the Consumer Protection Act, 1986 in the learned District Consumer Disputes Redressal Forum, Ludhiana (in short "district Forum" ). Learned District Forum vide order dated 22. 5. 2001 had directed the respondents to restore the electricity connection and also to pay damages to the tune of Rs. 5,000 to the appellant. This order was not complied with by the respondents. They issued a demand notice on 4. 10. 2000 making the demand of Rs. 3,28,480 on the ground that the electric meter of the appellant was found tampered with. Objections were lodged with the respondents but to no effect. Hence the appellant filed the present complaint in the learned District Forum challenging the demand bill dated 4. 10. 2000 along with compensation and costs. The respondents filed written statement. Preliminary objections were pleaded and the case was also contested on merits. It was pleaded that the appellant has suppressed material facts. It was admitted that the appellant was subscriber of electric connection bearing account No. SP-02/0290. It was checked by AEE/je-1 (Commercial) of Sunder Nagar Division Special on 12. 9. 2000. It was reported that 4 number M. E. seals were found tampered with and the meter was not working properly. The meter was removed. It was packed in a cardboard box. It was duly sealed by JE-1 Jagdev Singh. The paper seals were signed by the representative of the consumer. The consumer was served with a notice to reach the M. E. Lab. on 14. 9. 2000 for checking of the meter. The notice was received and signed by Smt. Sudha Rani representative of the appellant but the consumer deliberately did not reach the M. E. Lab. on 14. 9. 2000. The consumer was given another notice on 18. 9. 2000 to reach the M. E. Lab. on 19. 9. 2000 for testing the meter in her presence. The notice was returned by Ajay Kumar Verma with the remarks that his father had gone out of station. The consumer was given another notice on 25. 9. 2000 to reach the M. E. Lab. on 26. 9. 2000 so that the meter is tested in her presence in the M. E. Lab. It was stated in the notice that it was the final notice and if the subscriber failed to turn up, the meter would be opened and tested in her absence. The notice was returned with the remarks that the consumer had refused to receive the notice.

It was further pleaded that thereafter the meter was tested in the M. E. Lab on 26. 9. 2000. As per the report of the M. E. Lab. all the M. E. seals were found tampered with. There were scratches on the figures of the meter. The counter of the meter was also changed. The meter was recording 84. 12% less energy. It was a case of measured theft of electric energy.

IT was also pleaded that accordingly the account of the consumer was overhauled as per the provisions of Commercial Circular No. 33/99 by AEE (Commercial ). The notice was served on the consumer to deposit Rs. 3,28,480. However, she filed the complaint in the learned District Forum and the learned District Forum passed the order on 22. 5. 2001 accepting the complaint and giving the liberty to the respondents for raising the fresh demand on the basis of alleged checking after serving the notice on the appellant. It was further pleaded that in pursuance of the orders dated 22. 5. 2001 passed by the learned District Forum a notice bearing No. 1184 dated 7. 6. 2001 was served on the consumer in which all the facts were stated and the consumer was asked to make the payment of Rs. 3,28,480 within seven days. The appellant failed to comply with this notice and filed the complaint. Therefore, there was no deficiency in service on the part of the respondents. Dismissal of the complaint was prayed.

THE appellant produced on the file documents as Ex. C-2 to Ex. C-20 and a copy of the previous order dated 22. 5. 2001 passed by the learned District Forum as Ex. C1. The respondents also proved document as Ex. R-1 to Ex. R-9. On these pleadings and the documents, the learned District Forum dismissed the complaint by impugned order dated 28. 2. 2002 by holding that it was a case of theft of electric energy. Hence the appeal.

THE submission of the learned Counsel for the appellant was that the appellant had filed a complaint (Complaint No. 1164 of 12. 10. 2000) in the learned District Forum on these very facts earlier. Learned District Forum had accepted the complaint vide order dated 22. 5. 2001 (Ex. C-1) with costs of Rs. 500 and the compensation of Rs. 3,000 was also awarded against the respondents. It was submitted that the learned District Forum in the impugned order dated 28. 2. 2002 has taken a different view on the same set of facts and the documents. Therefore, this order deserves to be set aside.

THIS submission has been considered. It is no doubt correct that the date of checking, date of notice sent to the appellant for appearing in the M. E. Lab. and the date of test in the M. E. Lab. are the same and that the report of the M. E. Lab. is also the same which has been produced in the earlier complaint filed by the appellant and which has been produced in the present case. It was also pleaded in the earlier complaint as also in the present complaint that the meter was running slow by 84. 12% and the demand of Rs. 3,28,480 was made. However, earlier complaint was accepted for the simple reason that no notice was given to the appellant and straightaway the electricity connection was disconnected. It is made out from the following operative order passed by the learned District Forum in the earlier complaint on 22. 5. 2001: "the opposite party has not placed on file any evidence to the effect that any notice was given to the complainant regarding the demand raised by them. As a matter of fact there is no evidence that any notice was given to the complainant to deposit the alleged demand by the opposite party. The opposite party has not even placed on file any details as to how the said demand was raised. No calculation regarding the same have been placed on file. The opposite party has even failed to prove that any notice regarding the demand raised was given to the complainant. It was for the opposite party to place on file the documentary evidence to show that before disconnection of the connection any notice was given to the complainant to deposit the amount and on her default the connection was disconnected. There being no evidence it cannot be said that the electric connection of the complainant was rightly disconnected. No notice having been given to the complainant before the alleged disconnection the complainant is entitled to a direction to the opposite party to restore the connection and to pay compensation. In this case the complainant herself has placed on file a document showing that the connection was not being used by her. According to her she was only liable to pay minimum charges. As such, a small amount of compensation will serve the purpose. Accordingly the opposite party is directed to restore the connection of the complainant within seven days and to pay Rs. 3,000 as compensation and Rs. 500 as costs to the complainant. It is made clear that this order will not debar the opposite party from raising the demand on the basis of alleged checking and from taking necessary action including disconnection after the service of the proper notice regarding the demand raised. Compliance regarding the payment to be done within one month of the receipt of this order. Copy of this order be sent to the parties. "

After the passing of the order dated 22. 5. 2001 the respondents had served a notice on the appellant on 7. 6. 2001 (Ex. R-9) in which details and calculations have been given and an amount of Rs. 3,28,480 was demanded. The reasons have also been given for the raising of the demand. The appellants have not filed any reply to this notice and straightaway filed the complaint in the learned District Forum on 15. 6. 2001. Learned District Forum while dismissing the complaint vide impugned order dated 28. 2. 2002 has given the following reasons by which different view was taken than the view taken in the earlier order dated 22. 5. 2001: "it is an admitted fact that the complainant previously filed a complaint but since no notice was served and the connection was disconnected, this Forum directed the opposite party to pay compensation and costs and allowed liberty to the opposite party to raise the demand on the basis of the disputed checking. The opposite party has placed on file the spot checking report Ex. R1 which shows that the meter was checked and it was found defective and was ordered to be changed. The opposite party has placed on file Ex. R2 to Ex. R4 the specimens of the seals fixed on the meter and the same show that the meter was duly packed and sealed on 12. 9. 2000 when the same was removed. Ex. R5 also shows that the meter was changed and the matter was to be packed and sealed and got checked from the M. E. Lab. It is also mentioned that the paper seals bearing No. 259868 to 259870 were fixed. Ex. R2 to Ex. R4 are the specimen of the seals which were actually fixed and bear the same numbers which were on the MCO. This shows that the meter was duly packed and sealed when it was removed. Ex. R6 is the copy of the notice which was given to the complainant to come present in the M. E. Lab. on 19. 2. 2000 and the same shows that the son of the complainant recorded there that his father had gone to Delhi due to accident of a relative and any date after two days be given for presence. Ex. R7 shows that the opposite party again sent a notice on 25. 9. 2000 for testing on 26. 9. 2000 and the consumer refused to receive the same. The report bears the counter-signatures of A. E. E. It also bears the signatures of the person who had gone there. The report is detailed one and the same shows that the consumer refused to accept the same and even then he was informed but the consumer refused to sign. Ex. R8 report shows that the meter was duly packed and sealed when it was received there. It is also mentioned that a notice was given to the consumer but he had not come present in spite of notice. The evidence shows that the opposite party gave proper notice to the complainant regarding the checking in the M. E. Lab. , but he did not bother to be present there. On checking counter of the meter was found changed and the meter was found recording 84. 12% less energy. Ex. R9 shows that a notice was given to the complainant regarding the demand raised. As such, the demand in this case was raised as per rules and is liable to be sustained. Admittedly the complainant has not made the payment. A notice was also served but he did not make the payment. As such, the connection cannot be ordered to be restored till the payment is made. Therefore, this complaint is dismissed. Copy of the order be sent to the parties. "

A joint reading of the order dated 22. 5. 2001 passed by the learned District Forum in the earlier complaint filed by the appellant and the impugned order dated 28. 2. 2002 clearly reveals that the demand of Rs. 3,28,480 was set aside earlier by the learned District Forum on the plea that notice was not given to the appellant nor the details/calculations of the demanded amount were given. The respondents were given the liberty to raise a fresh demand on the basis of the alleged checking. After passing of this order, the respondents had already served the notice dated 7. 6. 2001 (Ex. R-9) on the appellant giving the reasons for the demand and the calculations/details of the demand. This notice dated 7. 6. 2001 has not, at all, been mentioned by the appellant in her complaint nor it has been challenged. Learned District Forum in the earlier order dated 22. 5. 2001 (Ex. C1) had not set aside the checking report or the M. E. Lab. report. The demand notice was set aside for the reasons that no notice of the details of the demand was given to the appellant before disconnecting her electric connection. The respondents had complied with that direction and thereafter the learned District Forum has upheld the demand notice. There is no illegality in the impugned order passed by the learned District Forum taking a different view than the view taken in the order dated 22. 5. 2001 (Ex. C1) passed in the earlier complaint.

THE next submission of the learned Counsel for the appellant was that the electric connection was neither checked in the presence of the appellant nor the meter was tested in the M. E. Lab. in her presence. Therefore, the M. E. Lab. report is not binding on the appellant. The reliance was placed on the judgment of Division Bench of the Hon''ble Punjab and Haryana High Court reported as M/s. Tirupati Industries v. Punjab State Electricity Board and Ors. , 2000 (2) CCC 377 (P and H ). This submission has been considered and documents have been perused. The respondents have proved on the file the checking report dated 12. 9. 2000 (Ex. R-5 ). It is only signed by the representative of the consumer. It is duly mentioned in the checking report dated 12. 9. 2000 (Ex. R-5) that the meter has been packed and sealed with the paper-seals. The respondents have also proved notice dated 18. 9. 2000 (Ex. R-6) calling upon the appellant to be present in the M. E. Lab. on 19. 9. 2000 so that the meter is checked in her presence. It was reported on 18. 9. 2000 by one Ajay Kumar Verma that his father was out of station to Delhi. Another notice dated 25. 9. 2000 (Ex. R-7) was issued to the consumer for appearing in the M. E. Lab. on 26. 9. 2000 with a specific note that even in case the consumer did not appear in the M. E. Lab. the meter would be tested. This notice was returned by the appellant with refusal to place her signatures on the notice.

THE M. E. Lab. report dated 26. 9. 2000 has been proved as Ex. R-8. This report reveals that the consumer had failed to appear in spite of notices. The meter was taken out of the sealed pack and it was tested. There were scratches on the figures of the electric meter. The counter of the meter was changed. It was recording less energy by 84. 12%. It was a case of theft of electric energy.

THE perusal of these documents clearly reveals that the notice was served on the appellant three times but the appellant had failed to appear in the M. E. Lab. in spite of notice. Therefore, the judgment of Hon''ble High Court in M/s. Tirupati Industries case (supra) relied upon by the learned Counsel for the appellant will not be applicable on the facts of this case. On the facts of the reported judgment no notice was given to the consumer before testing the electric meter in the lab as is clear from the following observations of the Hon''ble High Court made in the judgment in M/s. Tirupati Industries case (supra): "5. The petitioner has challenged the impugned demand and the decision mainly on the ground of violation of the principles of natural justice and arbitrariness. In the writ petition, it has been averred that neither any notice was given to the petitioner to remain present at the time of testing of the old meter in the M. E. Laboratory nor any opportunity of hearing was given by respondent No. 2 before he decided to charge it with the allegation of having committed theft of energy by tampering with the seals affixed on the meter. The petitioner has further averred that the impugned decisions are violative of the provisions contained in Commercial Circular No. 45 issued by the Board which requires that the testing of the defective meter shall be done in the presence of the consumer or his representative. " It has been held by the Hon''ble High Court in M/s. Tirupati Industries case (supra) that it was mandatory for the PSEB to serve a notice on the consumer or his or her appearance in the M. E. Lab. on the date when the meter was to be tested in the M. E. Lab. and if no such notice is served then the test report of the M. E. Lab. would not be binding on the consumer. It was held by the Hon''ble Court as under: "13. The rule of hearing and the rule of fairness in State action which form part of the concept of rule of law imposes an obligation on the State and its agencies/instrumentalities to give notice and opportunity of hearing and also to disclose reason for their actions which may adversely affect the rights of a person of which may visit such person with evil consequences. The rule that no man can be condemned unheard has been treated as an integral part of the concept of rule of law which permeates the scheme of our Constitution. The thin line of distinction between purely administrative actions and quasi judicial actions has been completely obliterated by the judicial verdicts. "

Since in the present case the notice was served on the appellant three times and in spite of that the appellant failed to appear in the M. E. Lab. , therefore, the statutory instructions have been complied with and this judgment will not be applicable to the facts of the present case.

THE M. E. Lab. report (Ex. R-8) clearly reveals that the M. E. seals were found broken. Even figures of the meter were found scratched and the counter of the meter was also changed and the meter was recording less consumption of energy by 84. 12%. It was a clear-cut case of theft of electric energy. In these circumstances, reference may be made to the judgment of Hon''ble Rajasthan State Consumer Disputes Redressal Commission, Jaipur reported as Rajasthan State Electricity Board and Ors. v. Santosh Mineral Industries, I (2003) CPJ 107=2003 (1) CPC 570, in which it was held by the Hon''ble Rajasthan State Commission that where the theft of electric energy by adopting mal-practice is proved, it would not be a case of deficiency in service and the provisions of Consumer Protection Act, 1986 would not be attracted. It has also been held by the Hon''ble National Commission in the judgment reported as Punjab State Electricity Board v. Surat Singh, IV (2007) CPJ 18 (NC), that the theft of electricity is not to be proved like a criminal offence. It is a civil matter which is required to be decided on the basis of preponderance of probability as the Consumer Fora exercises jurisdiction of the Civil Court. The next submission of the learned Counsel for the appellant was that the respondents have raised the demand to the tune of Rs. 3,28,480 by overhauling the electric energy bill for the period from November 1990 to August 2000. The respondents have taken the plea that they have done it under the Circular No. 33 of 1999. But it was submitted by the learned Counsel for the appellant that Circular No. 15 of 1996 would be applicable according to which the overhauling of the account should be carried out for maximum of 6 billing months. It was, therefore, submitted that the bill for 10 years cannot be claimed.

THIS submission has no merits for the reasons that Circular No. 33/1999 had come into force when the checking was made by the respondents on 12. 9. 2000. Therefore, circular No. 33/1999 would be applicable and not CC No. 15 of 1996. Consequently, the circular relied upon by the learned Counsel for the appellant is applicable if there is a detection of defect or error in the meter. However, the present case is a case of measured theft of electric energy. Therefore, the circular relied upon by the learned Counsel for the appellant is not applicable to the facts of the present case. Thirdly, there is no deficiency in service as the demand has been raised because the appellant was found committing theft of electric energy. Therefore, neither the appellant is a consumer within the meaning of Consumer Protection Act, 1986 nor there is any deficiency in service on the part of the respondents. For this reason we would not like to interfere in the demand bill. There is no merit in this appeal and the same is dismissed. However, the appellant would be at liberty to resort to any other remedy available to her in accordance with law. The arguments were heard in this case on 23. 4. 2008 and the orders were reserved. Now, the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency and in view of non-availability of the requisite Benches and infrastructure, which are yet to be provided to the State Commission. Appeal dismissed.