Complaint No. 162/2005

Dr. Dharmendra P. Mehta

Address at "Shriji Orthopedic Hospital"

Near Doshi Tower

Morbi ..... Complainant


-Versus -

Paschim Gujarat Vij Co. Ltd.

Through Deputy Engineer

Town Sub-Division

Morbi ...... Opponent

Shri K.H. Nathvani- Advocate for the complainant

Shri D.B. Vasavada - Advocate for opponent

Corum : Shri H. D. Chaglani, President

Shri B.J. Dave, Member

- JUDGMENT -
1. By present complaint complainant under Section-12 of the Consumer Protection Act, 1986, complainant has challenged Electric Consumption Bill issued by opponent company in tune of Rs.3,60,394=25 and subsequently issuance of revised bill in place of earlier bill in tune of Rs.2,48,338=23 on the ground that the bill issued in violation of Section-126 of the Electricity Act-2003 and procedure laid down under Rules and Regulations of the said act, and further claimed refund of the said amount with interest @ 18% p.a. and has also claimed Rs.90,000/- which he paid to opponent at the time of issuance of earlier bill Rs.3,60,394=25. Complainant has also claimed Rs.20,000/- compensation on the ground of mental agony and harassment and Rs.5,000/- towards cost of the complaint against opponent.



2. The facts giving rise to this complaint in short may be stated as follow :



That complainant has obtained Electricity Connection bearing No. 32303/04862/3 and as such complainant is the consumer of opponent company. According to the case of complainant, he used to pay Electricity Consumption Bills regularly. On 31-12-2004, the Deputy Engineer of opponent company has made inspection of Electricity Connection of the complainant and prepared checking report in absence of Panchas and without making Panchnama. At relevant time complainant was busy with diagnoses and surgery of his patient, so the Deputy Engineer of opponent company filled up report in his own way without testing electricity load. The Deputy Engineer of opponent company has asked the complainant that complainant uses more load than sanctioned load, and further, he disconnected the Electricity Connection of the complainant. In fact the meter box was OK and it was in working condition. The meter reading was 7919 on 24-11-2004 whereas it was 7340 on the date of inspection 31-12-2004. The Terminal Box wiring was also OK. Only Y.B. Phase was burnt. There was no external element in the meter. There was nothing to say that complainant has committed power theft. Inspite of that his connection was disconnected without laboratory test. Complainant was issued supplementary bill in tune of Rs.4,32,473=08 even without affording opportunity of being heard to the complainant under Section-126 of the Electricity Act-2003, and after issuance of this supplementary bill, the complainant was served with the notice dated 15-01-2005 and asked to remain present for laboratory test on 17-02-2005. At the time of laboratory test of the meter, nothing was found to say that it was a case of power theft. Inspite of that, by making false allegation regarding power theft, the supplementary bill which was earlier given for Rs.4,32,473=08, was revised in tune of Rs.3,60,394=25, and thereafter, again it was revised and given for Rs.2,48,339=23, and thereby opponent has committed deficiency in service. Therefore, the present complaint for the relief stated at out set.



3. Opponent has been served with notice, in response; it appeared and opposed the complaint by filing written statement at Exh-14. The contentions of the opponent in detail have been stated in its written statement Exh-14. Inter-alia, the main contention of the opponent may be stated as follow :



It is admitted by this opponent that complainant runs "Shriji Orthopedic Hospital" at Morbi, and in his hospital, complainant has obtained Electricity Connection. It is three phase connection. Further it is contended by this opponent that complainant was found using excess load than 4.5 K.W. sanctioned to him. It is also contention of this opponent that complainant has tampered with the meter at the time of inspection, the plastic seals at the meter box were not found, paper seals were also broken, the sealing screws of the meter box were also found open and there was scratches on reading counter and disc of the meter, and as such it was a case of power theft. Inspite of that complainant was given opportunity of being heard and his bill was also revised after hearing the complainant. The meter was checked in presence of the complainant and it was found that complainant has committed power theft. So supplementary bill was given quite in accordance with the Rules and Regulations. The Electricity Connection of the complainant was also reconnected by recovering 20%amount of the disputed bill. Under these circumstances, in the contention of this opponent, complaint is false, the allegations leveled against opponent are false and complaint is not maintainable. It deserves to be dismissed.



Further, it is contended by this opponent that the Electricity Connection given to the complainant is commercial; therefore, this forum has no jurisdiction to entertain the complaint. So also it deserves to be dismissed.



4. In support of his case, complainant has produced documentary evidence at Mark-3/1 to Mark-3/4, Mark-12/1 and Mark-12/2, Mark-17/1. Proof affidavit at Exh-16. Reply to the interrogatories on oath at Exh-25. Documentary evidence at Mark-27/1 to Mark-27/2. Amended complaint at Exh-29. Further affidavit at Exh-30. Interrogatories to the opponent at Exh-34/1. Except this, complainant has adduced no other evidence.



5. The opponent has produced interrogatories at Exh-21, proof affidavit of Deputy Engineer at Exh-33. Reply to interrogatories at Exh-33/A and at Exh-34/A. Except this, opponent has adduced no evidence.



6. The complainant has submitted written arguments at Exh-39.



7. Opponent has submitted written arguments at Exh-41 and further written arguments at Exh-42.



8. From the facts of pleadings, evidence on record and in view of the arguments of the parties, following points arose for our determination :



1) Whether this Forum has jurisdiction to entertain this complaint?



2) Whether complainant proves that opponent has committed deficiency in service by bay of issuance of illegal supplementary bill in tune of Rs.2,48,338=23 and by way of illegal recovery of Rs.90,000/- towards earlier bill (Pre-revised bill for Rs.4,32,473=08?

3) To what relief complainant is entitled for?

4) What order?


9. Our findings on the above stated points are as follow for the reasons stated below :



1) In the Affirmative.

2) In the Affirmative.

3) Complainant is entitled to the amount of Rs.2,48,338=23 including Rs.90,000/- paid by the complainant with running interest @ 8% from the date of payment.

4) As per final order.
10. Reasons :

Issue No. 1 :
On this point, it is the contention of this opponent that complainant was given commercial three phase connection, therefore, this Forum has no jurisdiction under Section-2(1)(d) of the Consumer Protection Act, 1986 to entertain present complaint. As against this it is the argument of complainant that admittedly complainant is orthopedic Surgeon. He runs "Shriji Orthopedic Hospital" at Morbi. The complainant has produce Electricity Consumption Bills at Mark-3/3 to Mark-3/7 issued by opponent. It is in the name of Dr. Darmendra P. Mehta. So it is clear from these bills issued by opponent that admittedly complainant is the Doctor and not businessman. Now it is the argument of Mr. K.H. Nathavani, Ld. Advocate for the complainant that commercial transaction does not include profession or professional transaction. In support of his argument, he relied on the decision of Hon'ble Bombay High Court in case of Dena Bank Vs. Prakash Birbhan Kataria & others reported in AIR 1994 BOMBAY 343. He has also relied on the decision of Hon'ble Supreme Court in case of Dr. Devendra M. Surti Vs. The State of Gujarat reported in AIR 1969 SUPREME COURT 63. In that case it was held by the Hon'ble Supreme Court that -



"Profession Carried on by individual by his personal skill and intelligence - When can fall under Section-2(4) - Test - Private dispensary of doctor is not commercial establishment5. 8 Guj LR 395, revised".



Further, it was observed in para-6 of this judgement of Hon'ble Supreme Court that - "The correct test of finding whether a professional activity falls within section-2(4) of the Act is whether the activity is systematically and habitually undertaken for production or distribution of goods or for rendering material services to the community with the help of employees in the manner of a trade or business in such and undertaking".



In view of above decision of Hon'ble Supreme Court, the commercial transaction does not include profession or professional transaction and there is distinct line among two. Particularly a professional activity must be an activity carried on by an individual by his personal skill and intelligence, whereas in commercial transaction, production or distribution of goods or for rendering material services to the community with the help of employees in the manner of trade or business are habitually undertaken. Under these circumstances, we cannot accept the contention of opponent that this Forum has no jurisdiction to entertain complainant's complaint, and complaint does not fall within the jurisdiction of this Forum under Section-2(1)(d) of the Consumer Protection Act, 1986. Accordingly We hold this point in the Affirmative.



Issue No. 2 :

On this point it is the case of the complainant that opponent have committed deficiency in service by issuing supplementary bill on the ground of alleged power theft by the complainant in violation of Provision of Section-126 of the Electricity Act-2003. As per case of the complainant, complainant used to pay Electricity Bills regularly. At the time of checking of electricity meter of the complainant, the meter was found in working condition. No Panchnama or Rojkam was prepared in presence of Panchas at the time of checking by the Deputy Engineer. The complainant himself was busy in his work at the time of checking. The Deputy Engineer prepared checking-sheet in his own way. The electrical load was also not tested. Inspite of that he falsely, in his own way mentioned the electricity load in the checking-sheet and asked the complainant that he used more electricity load than sanctioned load 4.5 K.W. Before laboratory report, supplementary bill was given to the complainant in absence of any evidence to show that complainant has committed power theft. The first bill was in tune of Rs.4,32,473=08 issued by opponent to complainant on 03-01-2005, at that time no laboratory report was made. In fact, thereafter, on 15-01-2005, complainant was served with notice to remain present for laboratory test on 17-01-2005. Thereafter, the said bill was revised and given for Rs.3,60,394=25. Again it was revised an last supplementary bill was given for Rs.2,48,339=23. Referring this fact, it is the argument of Mr. Nathavani, Ld. Advocate for the complainant that opponent himself was not certain about the amount of supplementary bill it was demanded Rs.4,32,473=08. Thereafter, it was revised for amount of Rs.3,60,394=25, and lastly it was revised for Rs.2,48,339=23. These revised bills issued frequently, discloses that opponents were not certain and sure regarding assessment of supplementary bill. Secondly, it is issued without any evidence regarding power theft committed by the complainant as it were issued prior to laboratory test. Lastly it is the argument that as per allegation of opponent, for alleged power theft, opponent has only relied on laboratory test report, which is produced at Mark-3/12. As per this report, there was no seal on meter box, paper seals were broken and on opening of the mater, some scratches mark were found on the disc and counter of the meter. Except this, no other evidence has produced by opponent to show that complainant has committed power theft. In the argument of Mr. Nathavani, Ld. Advocate for complainant, at the time of inspection of the disputed meter by the Deputy Engineer, admittedly independent Panchas were not present, the condition of the meter was not written by drawing Panchnama in presence of the Panch, but Deputy Engineer himself has prepared the report in his own way. This is itself irregularity on part of the opponent and checking-sheet was prepared in violation of principle of natural justice.



Thereafter, under Section-126 of the Electricity Act, 2003, it was for opponent company to follow the procedure under Section-126 of the Electricity Act for the assessment of supplementary bill. At the time of inspection of any place, if Assessing Afficer comes to the conclusion that consumer has used unauthorized electricity, as per procedure he should have provisionally assessed the electricity charges payable by the consumer and provisional assessment should be served upon to the concerned person. On service of provisional bill under Section-126(3), consumer is entitled to file objection against provisional assessment before Assessing Officer. Thereafter, it is for assessment Officer to afford opportunity of being heard to such person and to pass the final order of assessment of electricity charges payable by such person. These procedures are not followed in present case. On perusal of Mark-27/4, which is provisional bill served upon to the complainant by opponent, but no date is mentioned in this document. There is nothing on record to show that complainant was afforded opportunity of being heard, and after hearing the complainant a final assessment was passed. In this case, mandatory provision of Section-126 of the Electricity Act, 2003 not followed. Therefore, supplementary bill dated 03-01-2005 in tune of Rs.3,42,473=08 is the bill without following the procedure under Section-126 of the Electricity Act, 2003, which is produced by the complainant at Mark-3/10. Similarly the recovery of Rs.90,000/- + Rs.100/- for reconnection charges that too without following procedure under Section-126 of the Electricity Act and even prior to laboratory testing report. In other words, without ascertaining the fact that complainant has whether committed power theft or not. Before coming to the conclusion on the basis of evidence that there was a power theft, Rs.90,000/- were recovered on 31-12-2004 as per receipt Mark-3/9. Thereafter, revised bill Mark-27/2 in tune of Rs.2,48,338=23 dated 27-06-2005 was issued. How the bill was revised whether on the basis of evidence or representation by the complainant is also not cleared in this revised bill. On perusal of bill Mark-3/10 dated 03-01-2005 and Mark-27/3 dated 17-01-2005, it is clear that nothing is specified that on what basis the earlier bill Mark-3/10 was revised and reduced to Rs.2,48,338=23. This is also go to show that opponents were not certain about the assessment of supplementary bill. Further, it is argued by Mr. Nathvani that as per defence of opponent, complainant has used more load than sanctioned load 4.5 K.W. On this basis, it is alleged by opponent that complainant has committed power theft. It is also against the Circular of Gujarat Urja Vikas Nigan Ltd. dated 27-06-3008. The said circular is produced with the list of authorities relied upon by the complainant. In clause-6 of this Circular, "use of more load than sanctioned load does not amount to unauthorized use of electricity", is mentioned there.



Now, opponent has changed its version. At the time of adducing evidence, the Engineer Mr. Rankja in his affidavit Mark-33/A tried to say that the supplementary bill was served upon to the complainant at the time of checking and it was found that complainant had committed power theft. But on perusal of his affidavit in reply to Question No. 5, he had to admit that checking was not made in his presence, at the time of laboratory testing he was also not present. So witness has no personal knowledge as to how the complainant has committed power theft because he was not present at the time of checking. Subsequently, he was also not present at the time of laboratory testing when old meter which was brought down by the person who made checking of complainant's connection. To level charge of power theft, only laboratory test report Mark-3/12 is there on record. Except that nothing is there to show that complainant has committed power theft. Referring this document, it is argued by Mr. Nathavani that prior to supplementary bill, the electricity consumption bill from February/March-04 to October/November-2004 were paid by the complainant and copy of the same is produced at Mark-3/2 to Mark-3/7, that means the meter was in working condition. As per bill Mark-3/7 dated 24-11-2004, it is alleged that complainant has tampered with the meter seal and installation. As per this bill, the electricity consumption is shown as 1070 units. Thereafter, according to checking sheet dated 31-12-2004, the meter reading is shown 7919.04 and earlier reading is shown as 7340. That means, from disputed bill dated 24-11-2004 to 31-12-2004, the checking sheet of the meter has recorded consumption of 579.04, that means meter was in working condition and it is not that, that the meter was going slow or not recording the consumption or complainant has arranged device so as to use electricity by way of bye-passing the meter that there may be use of electricity, but consumption of the same cannot be recorded.



Now in the say of opponent, as per laboratory checking report, the meter body was in OK condition. No external or substance found inside of the meter. The wiring of terminal block was also OK. Simply paper seals were broken and plastic seals on the body of the meter were not found, scratches were there on the disc. On the basis of this observation of the laboratory report, it is alleged by the opponent that complainant has committed power theft. But in the argument of Mr. Nathvani, Ld. Advocate for the complainant, simply scratches on the disc, breaking of paper seals, plastic seals on the meter body is not sufficient to presume power theft. But it was for opponent to establish with cogent evidence that complainant had utilized electricity by arranging device in the manner so as to by bye-passed meter and reading of used energy was not recorded in the meter. But to that effect, opponent could not adduce any evidence except laboratory report. This laboratory report does not clarify as to in what manner meter was bye-passed and electricity was used. Mr. Nathavani has relied in support of his argument on the decision of our Hon'ble Gujarat State Consumer Disputes Redressal Commission in the case of Gujarat Electricity Board Vs. Dr. Rekhaben S. Jha reported in I (2005) CPJ 403. In that case our Hon'ble State Commission has held that -



"Consumer Protection Act, 1986 - Section 15 - Electricity - Theft - Meter tempered - No independent person present at time of checking - Time, date and place of checking not informed to complainant - Violation of principles of natural justice - Meter reading roll tempered with - Pressure coil and current coil found in order - No foreign material found from meter - Theft not proved - No material difference between prior bills and subsequent bills - Power and technical knowledge misused by O.P.'s Officer - Filing of caveat in Civil Court unjustified - No occupier of residential premises would have economic interest in handling or tempering with meters - Mere checking sheet or Panchnama would not suffice - Documents should be tested on evidence and touchstone of probabilities of each case - False case of tempering of meters set up with aid of one employee, who had gone to complainant's premises and misused technical knowledge of disturbing meters - Complaint rightly allowed by Forum - No interference required in appeal".



Mr. Nathavani has also relied on the decision of Hon'ble National Commission in the case of Dakshin Haryana Bijli Vitran Nigam Ltd. Vs. Suresh Kumar reported in III (2007) CPJ 410 NC. In that case it was held by the Hon'ble National Commission that -



"Consumer Protection Act, 1986 - Section 21(b) - Electricity - Penalty imposed - Contention of O.P., M&T seals found tampered with, digits found to be disturbed and theft of energy, hence penalty - Rejected - Checking report does not show how and in what manner seals tampered with - - Further, meter ought not to have showed any reading if found sticky or defective - Penalty quashed - Refund of deposit amount allowed with interest @ 18% - Impugned order upheld in revision".



In our case also, there is nothing on record to show that in what manner seals of the meter were tempered with. Similarly, nothing is there to show that the reading of the meter was found sticky or defective. At least, the opponent could not adduced any evidence to show clearly that complainant had utilized electricity by way of bye-passing the meter in other words, the energy was used illegally, but consumption of the same was not recorded in the meter. Since the opponent could not prove the fact that the complainant has utilized electricity energy by bye-passing the meter. In other words, the energy used by the complainant but the reading of used energy was not recorded in the meter. In our humble view, opponent failed to establish the allegation of power theft against the complainant. In the result, legally they were not empowered to issue the supplementary bill under Section-126 of the Electricity Act, 2003. In the alternate, for the sake of argument, if we may take second contention of the opponent that complainant had used more load than connected load or sanctioned load then also it is itself is not sufficient to issue the supplementary bill as per Circular of the Gujarat Urja Vikas Nigam Ltd. as we discussed earlier. Inspite of that fact, complainant was served with revised supplementary bill in tune of Rs.2,48,338=23 and complainant was compelled to pay up this bill, which amounts to deficiency in service on part of opponent. Therefore, we hold this point in the Affirmative.

Issue No. 3

Complainant has prayed for refund of Rs.2,48,338=23 including rs.90,000/- earlier recovered by the opponent from complainant at the time of checking with running interest @ 18%. In our humble view, in view of affirmative answer to Issue No. 2, the supplementary bill was illegal and opponents are under obligations to refund the amount if any paid by the complainant for revised supplementary bill in tune of Rs.2,48,338=23 including Rs.90,000/- with running interest @ 8% p.a. Complainant has claimed Rs.5,000/- on the ground of mental agony and harassment. In our humble view, there is no sufficient evidence to justify this prayer. Therefore, only we hold this point in the affirmative for the relief of refund of Rs.2,48,338=23 including (Rs.90,000/-) paid by the complainant to opponent with running interest @ 8% p.a. In the result, following is the order :


: ORDER :

Complaint is allowed.

The supplementary bills issued by the opponent are declared as Null and Void. The amount of Rs.2,48,338=23 including Rs.90,000/- paid by the complainant be refunded to him with running interest @ 8% from the date of payment within the period of one month from the date of this order. Failing which, it will carry 10% interest.


Opponent to incur its own cost and should pay cost of Rs.2,000/- to the complainant.

Pronounced in the open forum on this 30th Day of November, 2009.

Complaint No. 13/2009

Kanaiyalal Chotalal Sheth

Legal advice assistance Centre

4/B, Merry Gold Residency

Mahila College Chowk

Beside Cosmoplex Complex

Rajkot. ..... Complainant



-Versus -



1. Gujarat Urja Vikas Nigam Ltd.

The Chairman, Race Course Circle Road

R.C. Dutt Road, Baroda-9

2. Paschim Gujarat Vij Co. Ltd.

through the Managing Director

Nanamava Main Road, Laxminagar

Rajkot.

3. Chief Engineer

(P.G.V.C.L.)

Nanamava Main Road, Laxminagar

Near Railway Station

Rajkot.

4. The Dy. Engineer (S. & N)

Millpara Sub-Division

Canal Road

Rajkot. ...... Opponent

Shri Chintan V. Sojitra - Advocate for the complainant

Shri J.S. Vitthalani - Advocate for opponent

Corum : Shri H. D. Chaglani, President

Shri B.J. Dave, Member


- JUDGMENT -


1. By filing present complaint under section-12 of the Consumer Protection Act, 1986, the complainant has claimed Rs.500/- against opponent on the ground of illegal recovery of meter charges as per bill dated 07-07-2008. Further Rs.2,000/- towards damage by way of loss of time expense etc. in paying visit to By. Engineer twice and further claimed Rs.2,500/- a day towards cost for att4ending proceedings before this Forum against opponent.

2. The facts giving rise to this complaint in short may be stated as follow :


That the complainant had been the President since 1982, for 25 years of "Nandanvan Low Rise Building". It is alleged that on 12-03-2007, the Deputy Engineer of opponent PGVCL Company asked the complainant personally that meter box at "Nandanvan Low Rise Building" is 25 years old and meter as well as cable are not in proper order. It requires installation of new meter and cable. At that time about 18 families of the said society ("Nandanvan Low Rise Building") were out of station. But in the capacity of President of the society, he co-operated the Deputy Engineer of opponent PGVCL Company, and old electrical meters were removed in presence of Panch, and it was signed by the complainant in the capacity of President and thereby incurred RS.500/- towards cost of new wiring and Rs.500/- for electrical expense. Now it is the case of the complainant that after removal of the old electric meters, opponent PGVCL Company has charged Rs.500/- per meter on the ground that the coils of the meters were burnt including coil of complainant as per receipt dated 07-07-2008. Now it is the allegation of the complainant that meters, which were removed by opponent company belongs to opponent and those were given on hire to the consumers. Therefore, opponent Company was not legally entitled to charge RS.500/- for the coil of the meter which was burnt, steel it was illegally recovered by the opponent company and thereby opponent has committed deficiency in service. So the present complaint for the relief stated at out set.



3. Opponent has been served with notice, in response; opponent has filed written statement at Exh-17 and opposed the complaint. The contentions of opponent are stated in detail at its written statement Exh-17. Inter-alia, main contention of opponent may be stated as follow :


Opponent has denied the allegation made against them in the complaint and further contended that old electric meter was got down in presence of the complainant by the official of opponent company only in connection of application of the complainant dated 12-03-2007 and for that the signature of the complainant was also obtained in Checking Report, and that old meter was sent for laboratory test and new meter was installed in place of old meter. Further, it is contended that on 11-05-2007, the laboratory test was made in presence of the complainant, at that time coil of the meter was found burnt. Because of this reason, the mater was not in working condition. In the contention of this opponent, cost for burnt coil of the meter, was recovered by opponent as per GEB Distribution Circular No. 766 dated 12-09-2001, as such, it was quite in accordance with the rules of opponent Company. Therefore, complainant is not entitled to any of the relief claimed for, as the recovery of the charges (burnt coil) was made as per rule, and there was no deficiency in service on part of the opponent. So complaint deserves to be dismissed.



4. In support of his case, complainant has produced documentary evidence at Mark-4/1 to Mark-4/12 and Proof affidavit at Exh-21. Except this, complainant has adduced no other evidence.



5. The opponent has produced documentary evidence at Mark 18/1 to Mark-18/7 and proof affidavit of Dy. Engineer Mr. Bipinbhai M. Shah at Exh-19 and Exh-24. Except this opponent has adduced no other evidence.



6. The complainant has submitted written arguments at Exh-25.

7. Opponent No. 1 has submitted written arguments at Exh-26.

8. From the facts of pleadings, evidence on record and in view of the arguments of the parties, following points arose for our determination :

1) Whether complainant proves that opponent has committed deficiency in service in as much as it recovered Rs.500/- illegally for burnt coil of complainant's meter vide receipt dated 07-07-2008?



2) To what relief complainant is entitled for?



3) What order?
9. Our findings on the above stated points are as follow for the reasons stated below :

1) In the Affirmative

2) Complainant is entitled Rs.500/- which was recovered by opponent from the complainant towards meter repairing charges.

3) As per final order.



10. Reasons :

Issue No. 1 :


On this point, it is the case of complainant that he is President of the society namely "Nandanvan Low Rise Building". On 12-03-2007, the official of opponent company asked the complainant that meter box is very old and the meter as well as wiring is not in proper condition, it needs to be changed. Thereafter, it was changed and new meters were installed. But what is the grievance of the complainant is that opponent have illegally charged Rs.500/- for burnt coil of the old meter in fact meter was of the ownership of opponent. It was hired to the consumer. So it was not open for opponent to charge any amount for repairing defect in the meter. Still wrongfully the amount was charged and recovered. It amounts to deficiency in service on part of opponent.



As against this, the defence of the opponent is that the official of the opponent company visited the society namely "Nandanvan Low Rise Building", in connection with the application of complainant dated 12-03-2007, and old meters were removed and new meters were installed. The meters removed were packed in presence of Panch and complainant. The complainant also signed the Checking Report, and those meters were sent for laboratory test, and in presence of the complainant, meters were checked in the laboratory, and it was found that coils of the meters were burnt. Therefore, in view of GEB Distribution Circular No. 766 dated 12-09-2001, the amount Rs.500/- for burnt coil of the meters were charged and it was quite legal as per rules of opponent company, and there was no deficiency in service on part of the opponent.



Now it is the argument of the complainant that it is admitted position between the parties that complainant is the customer of the opponent and there is not dispute about that. Now, it is argument of the complainant that he is consumer of the opponent company, the meters installed in "Nandanvan Low Rise Building" belongs to opponent; it was installed in ground floor. Complainant used to stay at 3rd story of the building. Opponent used to charge rent for the meter. It is of the ownership of opponent. They are under obligation to maintain it in proper condition. Meter was 25 years old. It was installed by staff of opponent and after very long time, if the coil of the meter was found burnt then for that consumer (complainant) cannot be blamed. May it be on account of excessive load or on account of improper installation by incompetent staff of the opponent. At least after long time, the coils of the old meters were found burnt, for that complainant was not at fault. Inspite of that the charge for burnt coil of the meter in tune of Rs.500/- was illegally recovered. It is quite illegal and amounts to deficiency in service.

As against this, it is the arguments of opponent that opponent has produced distribution circular No. 766 dated 12-09-2001 and No. 548 dated 15-10-1992 at Mark-18/5 and Mark-18/6 respectively, and recovery of meter charges were made according to these circular were quite legal. In view of controversy between the parties, turning to evidence on record, Mark-4/3 is the copy of Electric Consumption bill issued by opponent to the complainant, in column No. 7 against meter charge, Rs.20/- is shown. That means the meter is hired to the consumer (complainant) and that meter belongs to opponent. Admittedly, the meter was 24 years old and at the time of laboratory test, it was burnt. As per Mark-18/4 the coil of the meter was found burnt, but at the same time MMB/TC seal were found OK. There is nothing in this laboratory report that complainant has tempered with the meter. The meter was old and in the due course, coil of the meter was found burnt, but it is not on account of any fault on part of the consumer (complainant). It is the arguments of Mr. Vikas K. Sheth, proxy Advocate for the complainant that meters belongs to opponent and rent was also charged for electric consumption bill , so it was for the opponent to keep the meter correct as per Sec-26 of the Electricity Act, and in case of default, it was for the opponent to repair it and can not charge the consumer in view of Section-26, Sub section-2 of the Electricity Act. For sake of convenience, it is reproduced below :



"26 - Meters :

(1) In the absence of an agreement to the contrary, the amount of energy supplied to a consumer or the electrical quantity contained in the supply shall be ascertained by means of a correct meter, and the licensee shall, if required by the consumer, cause the consumer to be supplied with such a meter.



Provided that the licensee may require the consumer to give him security for the price of a meter and enter into an agreement for the hire thereof, unless the consumer elects to purchase a meter.



(2) Where the consumer so enters into an agreement for the hire of a meter, the licensee shall keep the meter correct, and, in default of his doing so, the consumer shall, for so long as the default continues, cease to be liable to pay for the hire of the meter.



(3) Where the meter is the property of the consumer, he shall keep the meter correct and, in default of his doing so, the licensee may, after giving him seven days' notice, for so long as the default continues, cease to supply energy through the meter".



Mr. Sheth Ld., Advocate for the complainant has relied in support of his arguments on the decision of Hon'ble Suprement Court in the case of Belwal Spinning Mills Ltd. Vs. U.P. State Electricity Board in appeal No. 4401-03 of 1997 dated 10-07-1997. In that case, it was held by Hon'ble Supreme Court that "the scheme under the Electricity Act clearly reveals that a correct meter is to be installed and such correct meter is to be maintained by the licensee in the premises of the consumer".



Hon'ble National Commission has also taken similar view in Case of Y.N. Gupta Vs. D.E.S.U. reported in 1993 CCJ 289. In that case it was held by the Hon'ble National Commission that- "Consumer Protection Act, 1986, Section-2(1)(g) and Electricity Act, 1910 Section-26(6)-Deficiency in service-Electricity-Defective meter-Meters belong to D.E.S.U., rent is charged by it and it is responsible of defective meter constitutes deficiency in service-Held: yes; it inevitably leads to wrong billing against the consumer and the consumer should not be unduly penalized for it; the maximum period for which a bill can be raised in respect of a defective meter is six months and no more".



Now it is the arguments of Miss. J.S. Vithalani, Ld. advocate for opponent that the above cited authorities of Hon'ble supreme Court and National Commission are under old Act, namely Indian Electricity Act-1910, which is revealed by Electricity Act, 2003, so it is not applicable in our case. But the meter charge RS.500/- was recovered in accordance with GEB Distribution Circular No. 766 dated 21-09-2001 is also prior to new Electricity Act-2003, and opponent could not produce any authority in support of her argument. There is no express provision empowering the opponent to recover the charges for burnt coil in the meter that too without fault of the consumer. The new Electricity Act-2003, Section-55 is pertaining to the use of meter, there is nothing in this provisions to show that when meter given on hire to the consumer in that case also for the meter repairing charge can be recovered from the customer. On common analogy, it is clear that thing or article in which fault occurred, then it is for the person who owns it to repair it and it would not be open to charge rent for the meter at one hand and also claim repairing charge from the consumer at the event of fault in the meter at least without fault of the consumer. Under these circumstances, in our humble view, the repairing charges and recovered by the opponent from complainant in view of GEB Distribution Circular No. 466 dated12-09-2001, at that time the new Electricity Act-2003 was not came in force and that circular was in violation of Sec-26(2) of the Indian Electricity Act-1910 which was in force at relevant time. At least the circular that is in violation of express provision of law legally cannot be enforced. Under these circumstances, opponent could not justify the recovery of repairing charge of the meter from the customer to whom it was hired, in absence of any express provision of law. In course of human conduct, it would be always for the owners to get repaired the thing or article, which belongs to him and had given on hiring. Under these circumstances, in our humble view, complainant succeeds in establishing deficiency in service on part of the opponent in as much as illegal recovery of meter repairing charges in tune of Rs.500/-. Therefore, we hold this point in the Affirmative.


Issue No. 2 :

Complainant has claimed Rs.500/-, which is illegally recovered from complainant under receipt dated 07-07-2008. In view of affirmative answer to point No. 1, in our humble view, complainant is entitled to that amount. Further, he claimed Rs.2,000/- towards damage in paying visit to the Deputy Engineer of opponent and loss of business by way of sparing time to visit the Deputy Engineer and for that period or time, he could not attend his profession or business, and further Rs.2,500/- towards the cost for each adjournment in attending this Forum. There is no evidence on record in this regard adduced by the complainant. Further, it is remote damage. It has not direct bearing with dispute in question. Therefore, in our humble view, above prayer of the complainant cannot be justified legally. In the result, we hold this point in the affirmative only for the relief of refund of illegal recovery of Rs.500/- towards meter repairing charge. In the result, following is the order :

: ORDER :

Complaint is partly allowed.


Opponent do pay Rs.500/- in refund to the complainant, which was recovered from him towards meter repairing charges or meter replacing charges as case may be within 1 month period from the date of this order


Opponent to incur its own cost and should pay cost to the complainant in tune of Rs.200/-.

Pronounced in the open forum on this 11th day of November, 2009.