Per Mr. S. M. Shembole, Hon’ble Presiding Member
1. Challenge in this appeal is the judgment and order dated 13/08/2007 passed by District Consumer Forum, Amravati in Consumer Complaint No.111/2005 partly allowing the complaint and setting aside the electric bill of Rs.96,916.10 and directing the opponent/appellant to issue revised bill etc.
Brief facts giving raise to this appeal are that,
2. Respondent/ Original complainant Kalimuddin is running a petrol pump at Amravati since 1959. He is a consumer of appellant/original opponent Maharashtra State Electricity Distribution Company. He has obtained electric connection at his petrol pump. The electric meter bearing No. 8000526930 is installed at his petrol pump. He used to pay electric bill amount regularly as per the bills issued by the appellant.
3. On 03/02/2005 members of the Flying Squad of the appellant company gave surprise visit to the said petrol pump for inspection of electric meter and when inspected the electric meter, they found that the electric meter was tampered and made slow by 50%. Therefore, members of the flying squad made panchanama and disconnected the electric supply. Thereafter, they made assessment and issued supplementary bill of Rs.96,916/-. The complainant paid the same amount of bill and also reconnection charges and thereafter filed the consumer complaint alleging deficiency in service, alleging that the opponent/appellant disconnected the electric supply by visiting his premises without notice, etc. Further according to the complainant/ respondent members of the flying squad of the appellant –Board visited his petrol pump without notice and issued supplementary bill alleging that the electric meter was tampered, etc. He has claimed the refund of amount Rs.96,916/- and also compensation Rs.10,000/- for causing mental torture. He has also claimed Rs.1,000/- per day more towards disconnection of electric supply for 4 days.
4. In response to the complaint notice, the appellant/opponent- board appeared before the District Consumer Forum, Amravati and resisted the complaint vide its written version denying the claim in toto. It is submitted that members of the flying squad legally visited the petrol pump and on inspection of electric meter found that electric meter was tempered by breaking its seal. It is also submitted that the electric meter was made slow by 50% and, therefore, the electric supply was disconnected and thereafter by making assessment for preceding 12 months on the basis of sanctioned load, issued the supplementary bill with penalty as per the provision of Sub Section 5 of Section 126 of the Electricity Act. It is submitted that since the respondent –consumer shown his willingness to pay the supplementary bill, the F.I.R. was not lodged against him. However, respondent-consumer paid the amount of supplementary bill without protest and after restoration of electric supply made false complaint. It is submitted that the complaint is not at all tenable. It is submitted to dismiss the complaint.
5. On hearing both the sides and considering the evidence on record the District Consumer Forum, Amravaiti held that the opponent/appellant-Board issued incorrect supplementary bill and recovered the bill amount without verifying the electric meter by referring the same for testing. The District Consumer Forum, Amravati also held that the opponent/appellant-Board has made wrong assessment without following proper procedure and thereby committed deficiency in service
6. In keeping with these findings the District Consumer Forum, Amravati partly allowed the complaint, setting aside the electric bill and directing the appellant-Board to issue fresh bill making assessment for preceding 6 months considering the average monthly consumption of 500 unit and recover the same bill by adjusting the amount which is already deposited by the opponent, etc.
7. Feeling aggrieved by the impugned judgment and order Opponent-Board has preferred this appeal.
8. In spite of service of appeal notice the respondent/complainant did not turn up. Therefore, the appeal came to be proceeded exparte.
9. We heard Adv. Mr. S.D. Babarekar, for the appellant, perused the written notes of arguments submitted by the Ld. Counsel for the appellant and also the copy of impugned judgment and order, copies of complaint, written version and copies of other documents including disputed electricity bill, etc.
10. From the record, some undisputed facts can be gathered as under:-
On 03/02/2005 members of the flying squad of the appellant-Board made surprise visit to the petrol pump belonging to the complainant and found that electric meter was slow by 50%. Therefore, the members of the flying squad made joint panchanama and disconnected the electric supply. Thereafter making assessment on the basis of electric load and levying penalty, supplementary bill of Rs. 96,916/- was issued. The amount of same bill was paid by the complainant/respondent; therefore, no F.I.R. was issued against the complainant. After 4 days, the complainant paid the restoration charges and his electric supply was restored. However, thereafter complainant made consumer complaint alleging deficiency in service in issuing incorrect electricity bill, presuming monthly electric consumption of 1220 unit for 12 preceding months. On perusal of the copy of impugned judgment it reflects that the District Consumer Forum, Amravati wrongly held that members of flying squad wrongly presumed that the meter was slow by 50% and also wrongly presumed that the monthly electric consumption was 1220 unit, etc. and set aside the bill. The District Consumer Forum, Amravati also held that the appellant-Board made wrong assessment for preceding 12 months instead of 6 months that to with penalty.
11. In view of the above facts and observations of the District Consumer Forum, Amravati, the following points arises for determination.
i. Whether the electric meter was found slow?
ii. And if yes, whether the members of flying squad of the appellant- Board legally made assessment?
12. On perusal of the copy of complaint it reflects that the main grievance of the complainant/respondent was that members of the flying squad of the appellant-Board illegally visited his petrol pump without any prior notice to him. But such allegation is not at all sustainable, because the members of the flying squad of the appellant-Board are legally entitled to give surprise visit and inspect the electric meter. If prior notice is given then no such electric theft can be detected and no purpose of surprise visit can be served. The only point arises as to whether the members of the flying squad of the appellant-Board properly verified and found that the meter was 50% slow. The copy of joint panchanama which was made by members of the flying squad clearly reflects that the meter was checked by stopping main switch and putting load 1000 watts in R phase and also putting the same load on Y & B phase. The report also reflects that the meter was tempered by making interference with the seal, the same panchanama was prepared in the presence of complainant as well as panchas and it is not specifically disputed. Therefore, though the meter was not referred for testing to the meter testing unit, it cannot be accepted that the meter was intact and was functioning properly. Therefore, the allegation of the complainant/ respondent that the meter was not properly tested and on the basis of wrong presumption the panchanama was prepared showing meter slow by 50% cannot be sustained. It appears from the copy of impugned judgment and order that the District Consumer Forum, without considering the joint panchanama, wrongly held that the members of flying squad committed error holding that the meter was slow by 50%, etc. The same finding is being erroneous cannot be sustained.
13. The copy of the impugned judgment further reflects that though the complainant paid the amount of bill without protest, wrongly held that the F.I.R. was not lodged etc. As per the provision of Sub Section 4 of Section 126 of the Electricity Act, 2003, when the consumer is showing his readiness to pay the amount of assessment within 7 days, it is not necessary to lodge F.I.R. Therefore, such erroneous finding of the District Consumer Forum can not be sustained.
14. Now, only question arises is as to whether the assessment was legally and properly made by officers of appellant-Board or not.
15. It is submitted by Mr. Babarekar, Ld. Counsel for the appellant-Board that, the electric supply provided to the respondent/complainant is of 60 K.W. and therefore, the electric consumption would be 1220 units per month. Therefore, as per the then tariff the assessment was properly and legally made for preceding12 months and accordingly supplementary bill of Rs. 96,916/- was issued, etc. But we find little force in the submission of Mr. Babarekar, Ld, Counsel for the appellant because during the period prior to the amendment of Section 126 of the Electricity Act which came into force on 15/06/2007 the assessment for unauthorised use of electricity was to be made for preceding 3 months in case of domestic and agricultural services and for 6 months for other categories including commercial services. Therefore, the electric connection is being used by the complainant for commercial purpose; the assessment would have been made for 6 months immediately preceding the date of inspection i.e. 03/02/2005. But members of the flying squad wrongly made assessment for 12 months. However, Mr. Babarekar, Ld. Counsel for the appellant/opponent-Board, relying on the amended provision of Sub section 4 of the Section 126 of the Electricity Act, 2003 tried to justify the amount of electric bill for 12 months and contended that as per provisions of the Electricity Act prior to amendment of 2007 the assessment bill was required to be assessed for entire period during which such unauthorised use of electricity was made. But we find no force in this contention of Mr. Babarekar, Ld. Counsel for the appellant/opponent-Board, because as per the amended provision of Section 5 of the Section 126 of the Electricity Act the assessment for entire period of unauthorised use of electricity is required to be made if such period of unauthorised use of electricity can be ascertained. In the present case it is not the contention of the respondent/complainant that such entire use was for any particular period and therefore, such period can not be ascertained. But prior to amendment i.e. prior to 15/06/2007 there was no such specific provision to make the assessment for entire period in the event of none ascertaining the specific period of the unauthorised use. The provision of Sub Section 5 of the Section 126 of the Electricity Act prior to amendment of 2007 reads as under:-
“If the assessing officer reaches to the conclusion that unauthorised use of electricity has taken place, it shall be presumed that such unauthorised use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place.”
16. The bare glance at the above provision of Sub Section 5 of the Section 126 of The Electricity Act, 2003 it manifest that the assessment was required to be made for unauthorised use of electricity other than domestic and agricultural services was to made for the period of 6 months immediately preceding the date of inspection. But in the present case the appellant-Board has wrongly made assessment for 12 months instead of 6 months. Therefore, the District Consumer Forum has rightly directed the appellant-Board for making assessment for 6 months. However, the District Consumer Forum has wrongly directed to make assessment by presuming the average monthly consumption of 500 unit instated of 1220 units though the assessment was legally and properly made by members of flying squad of the appellant-Board considering monthly average consumption of 1220 units.
17. For the forgoing reasons it is obvious that the appellant-Board though properly presumed monthly average consumption of electricity of 1220 units, wrongly made assessment for 12 months instead of 6 months. Therefore, respondent/complainant is entitled to get refund 50% bill amount of Rs.96,916/-.
18. In the result the appeal deserves to be partly allowed. Hence, the following order.
ORDER
1. Appeal is partly allowed and impugned order is modified as under:-
The appellant shall refund the 50% amount of bill of Rs.96,916/- i,e, Rs.48,458/- to the respondent/complainant or this amount be adjusted with future electricity bill for 12 months.
2. No order as to cost.
Dated:-25/07/2012.
