BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHIWANI.
Complaint No.: 368 of 2003.
Date of Institution: 23-06-2003.
Date of Decision: 11-6-2009.
Bharat Bhushan, s/o MID Town Restaurant, Hansi Road, Bhiwani, Tehsil and Distt. Bhiwani.
….Complainant.
Versus.
1. Division, Dakshin Haryana Bijli Vitran Nigam Ltd., having its head office at Vidhyut Nagar, Hisar through its Managing Director.
2. Executive Engineer, OP City Division. Dakshin Haryana Bijli Vitran Nigam Ltd., Bhiwani.
3. Assistant Executive Engineer, Sub Urban, Sub Division No. 1, Dakshin Haryana Bijli Vitran Nigam Ltd., Bhiwani.
……Respondents.
COMPLAINT UNDER SECTIONS 12 AND 13 OF
THE CONSUMER PROTECTION ACT, 1986.
Present: Sh. Avinash Sardana, Advocate for complainant.
Sh. S. C. Sheoran, Advocate for respondents.
Sitting: - Shri R. K. Khanagwal, President,
Smt. Sushila Rathee, Member,
O R D E R
The case of the complainant in brief, is that he has an electricity connection bearing account no. WC-21/1447 and has been paying the bills of the electricity charges regularly and as such, he is consumer. It is further alleged that the complainant’s premises are being checked periodically by the checking staff since the installation of the electricity meter and every time during such checking the meter was found OK in all respects and no defect at any time had been pointed out. The further case of the complainant is that the electric meter was burnt and complainant informed about the burning of the meter. Thereafter the office of respondent no. 3 conducted checking on 15.5.2003 and burnt meter was removed and it was packed in a card board duly paper sealed with the signature of representative of the complainant, who duly made endorsement to the effect that at the time of packing the meter, the entire seals were OK, but when the card board opened seals of the meter were found broken. The respondent no. 3 issued a notice memo no. 1102 dated 26.5.2003 directing the complainant to pay Rs. 16,509/- on the basis of average for 6 months and a theft case was made. The complainant deposited the amount of Rs. 16,509/- under protest to avoid disconnection of supply. So charging of penalty of Rs. 16,509/- on the basis of checking report dated 22.5.2003 is illegal, arbitrary, wrong and liable to be set aside. Hence, this complaint.
2. Respondents on appearance filed the contested written statement and took preliminary objections qua locus-standi; maintainability; estoppel; no deficiency; jurisdiction and suppression of the true and material facts. On merits, it is alleged that the premises of the complainant was checked on 15.5.2003 and found doubt in genuineness of the seals. Thereafter, the meter was sent to M & T Lab, Hisar it was checked on 22.5.2003 in the presence of the respondent no. 3, Raj Kumar and Mukesh, JE. The Lab found Firmin seal broken and one number round lead seal/AM-198 tempered, hence, it was a case of theft and the penalty was charged as per sale circular no. 31/98. Hence, there is no deficiency on the part of the respondents and the complaint of the complainant is liable to be dismissed with costs.
3. Both the parties filed their duly sworn affidavits to prove their respective versions.
4. We have heard learned counsel for both the parties at length.
5. After hearing the learned counsel for both the parties and having gone through the material available on the records, we are of the considered view that the complaint of the complainant deserves acceptance, as there is deficiency in service on the part of the respondents. It is the admitted fact that complainant is consumer and having electricity connection bearing no. WC-21/1447 in his hotel called Mid Town Restaurant. It is also admitted fact that the premises of the complainant are checked periodically by the checking staff since installation of the electricity meter and no allegation was levelled at any time and it was found OK. The case of the respondents is that the premises of the complainant was checked on 15.5.2003 and checking staff found doubt in the genuineness of the seals and thereafter the meter was removed and sent to M & T Lab, Hisar, where it found Firmin seal was broken and one number round lead seal/AM-198 tampered. These allegations cannot be considered as true, because the report itself speaks that the staff was in doubt in the genuineness of the seals, so they were not sure whether the seals were tampered with or not. The report of the Lab dated 22.5.2003 bears a note of Raj Kumar, representative of the complainant that at the time of packing the meter, the seals were OK and when the card board was opened the seals were found broken. No explanation has been given by the respondents regarding the intact of the seals of the meter. Even in the affidavit filed by the respondents they did not explain anything regarding the allegations of the complainant, but they simply alleged that they were in doubt of the genuineness of the seals, but there is no such report that the seals were fake. So the endorsement made by the representative of the complainant cannot be disbelieved at all, as he has categorically mentioned that at the time of packing the meter entire seals were OK, but when the card board was opened the seals of the meter were found broken at Laboratory. So the mandatory provisions of the Sales Circular No. 31/98 are not complied with and the amount was deposited by the complainant under protest with a fear of disconnection of electricity supply. Even the contents of the notice leave no manner of doubt that the assessing officer had adopted a totally illegal procedure because be assessed the compounding fee taking it a case of theft of energy despite the fact that it is not even the case of the respondents and that the complainant had approached the assessing officer for compounding the offence. It means that the respondents unilaterally acting at first instance had passed the order of compounding the offence and thereafter gave the option to the complainant for compounding the offence. In fact, the respondent had already taken a decision for compounding the offence without any basis for the same. So, it cannot be ignored that the complainant had not made any application in writing or otherwise to the respondents with a prayer for compounding the offence at any stage, rather by filing the complaint he has challenged the legality of the notice dated 15.5.2003. Therefore, in view of these circumstances, the issuance of the notice to the complainant by the respondents was a gross misuse of power vested under the Act. Hence, the complaint of the complainant is hereby allowed with costs and respondents are directed: -
1. To refund Rs. /- along with interest @ 12% per annum from the date of deposit till its realization.
2. To pay Rs. 2200/- as litigation charges.
The compliance of the order shall be made within 45 days from the date of receipt of the certified copy of the order. The delay, if any, in deciding the complaint is due to non-joining of the regular President. File be consigned to the record room, after due compliance.
Announced in open Forum.
Dated: 11-6-2009. President,
District Consumer Disputes
Redressal Forum, Bhiwani.
(Sushila Rathee)
Member.