1) Zainul Abedin Khan

10/4 A, Topsia Lane,

Kolkata – 700 039.

-- Vs --


1) M/s. CESC Ltd.

CESC House,

Kolkata – 700 001.

PS-Hare Street

2) Deputy Manager, Loss

Control Cell, Kolkata

O R D E R

One Md. Zainul Abedin Khan has filed a complaint under section 12 of the Consumer Protection Act, 1986 (as amended up to date) alleging deficiency of service against the OPs. The case of the complainant is that he is a consumer of electricity under the OPs. The complainant states that on 25/07/2006 some personnel of the O.Ps came to his premises at midnight and disconnected his domestic electric line. On the next day he went to the office of the O.Ps and requested them to restore the electric line, but the O.P.s did not consider his request and sent him a final assessment bill for Rs. 22,368/- (Twenty Two thousand Three hundred and Sixty Eight only). According to the complainant CESC has no power to disconnect the complainant’s electric line at midnight without giving any notice.

The complainant states that the personnel of the CESC takes meter reading every month and if the seal was tampered, it must have been noticed by the meter reader. The complainant also mentioned that in the final order of assessment the load has been taken as 3.5 K.W., though the complainant’s actual load is 3 K.W. and hours of use has been takes as 24 hours, which is also not possible. The complainant further states that he did not consume any electricity unauthoriselly and disconnection of his electric line is totally illegal. Prayers has been made that the O.Ps may be directed to restore the complainant’s electric line immediately and to pay Rs. 25,000/- to the complainant for his harassment, mental agony and unfair trade practice and to refer his electric meter to Chief Electrical Inspector, West Bengal for testing.



The O.P.s contested the case by submitting written version denying deficiency of service. According to the O.Ps it is a case of theft of electrical energy and not a consumer dispute and this Forum has no jurisdiction to settle the matter. The OPs have stated that the electrical line of the complainant was disconnected on 25/07/2006 upon service of disconnection notice on the ground of pilferage of electricity and at the time of disconnection the following points were observed :

a) Seal on the terminal plate was found tampered with.

b) Incoming phase and neutral found interchanged.



F.I.R. was lodged on 25/07/2006 with Tiljala Police Station and provisional assessment of order dated 25/07/2006 was issued to the consumer through courier and final order of assessment was made on 05/08/2006 by providing an opportunity of being heard to the consumer and the value of unauthorised use of electricity was finally assessed at Rs. 22,368/-. There is a provision of appeal U/s 127 of the Electricity Act, 2003, but without filing an appeal a complaint has been filed to this Forum. The OPs have mentioned that the complainant on inspection was found selling electricity to others in exchange of money and prayed that the complainant is to be dismissed in limini with cost.



The complainant submitted affidavit affirming the contents of his complaint and the OP.s have also submitted counter-affidavit. Both the parties submitted brief notes on arguments. The matter was heard on 20/04/2009 in presence of both the parties. The documents as produced by respective parties in support of their contents were perused and considered along with their submissions.



Decision

The complainant has disputed the assessment order on the ground that it is impossible to consume electricity for 24 hours a day and that the appellate authority has no power for testing meter and prayed that the disputed meter may be referred to the C.E.I., West Bengal for testing. The OP Parties on the other hand has stated that it is a case of theft of electricity and Consumer Forum dose not have jurisdiction in this respect and since there is specific provision in Electricity Act, 2003 for redressal of his grievance the consumer should have followed that by preferring appeal to the Appellate authority. The OP.s have further stated that after detection of the theft of electricity, FIR was lodged with the concerned Police Station, both provisional and final order of assessment order have been made by giving opportunity to the complainant of being heard and so there is no deficiency on part of the OPs and the complainant is liable to be dismissed.



The OPs have further mentioned that they are not liable to restore the electric line of the complainant, unless the value of the unauthorised use of the electricity as finally assessed amounting to Rs. 22,368/- is paid by the complainant. The OPs submitted that the Hon’ble Apex Court in various decisions observed that the FORA is lacking jurisdiction to settle disputes relating to theft of electricity and consumer has to take resourse of the provision under section 127 of the Electricity Act. The complainant has not referred to any judgement of the Hon’ble National Commission or Apex Court by which Consumer Forum may settle any allegation of theft of electricity. Since there is no dispute regarding malfunctioning of the electric meter of the consumer, we do not consider that any useful purpose will be served by sending the meter to C.E.I., West Bengal for testing.

The Hon’ble High Court, Karnataka held that in view of the section 145 of the Electricity Act, 2003, by implication it would exclude jurisdiction of Civil Court or any other Forum for adjudicating cases regarding theft of electricity.



Both the provisional and final assessment order have been passed. There is a clear provision of appeal to the appellate authority u/s. 127 of the Electricity Act, 2003 and the jurisdiction of the Civil Courts have been barred U/s. 145 of the Electricity Act, 2003. According to us specialised knowledge is required to adjudicate the allegations of theft of electricity and to decide about final assessment order.



In view of the clear provision u/s. 145 of the Electricity Act, 2003 and the decision of the Hon’ble Hogh Court, Karnataka, we are of the opinion that this Forum can not settle the matter fruitfully and the complaint is liable to be dismissed.

Hence,

Ordered

1) The complaint is dismissed against the OP on contest.