Punjab

Ludhiana

CC/20/371

Manju Kakkar - Complainant(s)

Versus

Punjab State Power Corporation Limited - Opp.Party(s)

Complainant in person

06 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:371 dated 23.12.2020.                                                        Date of decision: 06.04.2023.

 

Manju Kakkar aged about 58 years W/o. Sh. Kuldip Kakkar, Resident of 84-C, 1^st Floor, Rishi Nagar, Ludhiana.                                                                                                                                                 ..…Complainant

                                                Versus

1. Punjab State Power Corporation Ltd., through its Chairman/Managing Director, The Mall, Patiala.
2. Senior Executive Engineer, Punjab State Power Corporation Ltd., U-III, P.S.P.C.L., Agar Nagar, Special Division, Ludhiana.
3. Senior XEN, Punjab State Power Corporation Ltd., U-III, P.S.P.C.L., Agar Nagar, Special Division, Ludhiana.

…..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Vikrant Verma, Advocate.

For OPs                         :         Sh. Yash Paul, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that the complainant availed the services of opposite party for consideration by supply of electricity through account No.3002792279 and consumer No.W53CF430773N installed at 84-C, 1^st  Floor, Rishi Nagar, Ludhiana in her name and using the electric connection. The complainant stated that she has been regularly paying the electricity bills raised by opposite parties from time to time and no arrears pending against her. There are two electricity connections are installed out of which electric connection account No.3002792279 installed at 84-C, 1^st floor, Rishi Nagar, Ludhiana in her name and another electric connection account No.3002792096 installed is the same house at Ground Floor, Rishi Nagar, Ludhiana  is in the name of Kuldip Kakkar. The complainant is residing with her family at ground floor of the said building. 1^st floor has been given on rent. The supply of disputed electricity bill account was used by the tents.  The complainant further stated that on 25.04.2018 to 26.06.2018, a bill of 3642 units on the basis of average consumption was issued wrongly by inserting code as “D”.  The portion was vacant in those/these days and the white wash was in process which reduced the consumption and meter reader wrongly entered the code “D”  and issued the electricity bill on average basis. On request of the complainant, the meter was checked by AEE Piara Singh and reported vide LCR 11/2088 dated 05.07.2018 that “The reading of meter is 59932 and the pulse of the meter blinks on loading”. That means meter is OK. On the basis of this report, the bill was correctly issued by the opposite parties as Rs.1170/- which was paid by the complainant.

                   The complainant further submitted that in the month of October 2018, when the meter reader came to make the bill, she verbally said that the display of the meter is not showing properly  and the meter should be replaced. The complainant gave a request letter to the office on 25.10.2018 and a report from JE vide No.LCR 46/2197 dated 09.11.2018 reported that the display of meter is faulty and the meter should be changed and meter MCO No. 100606959270 dated 12.11.2018 was changed on 05.12.2018 which was returned vide store challan No.791 t ME lab and the reason for the return of meter was wrongly written as “Dead”., while the meter was OK and only the display was bad. As mentioned by JE on the spot on the LCR made on 09.11.2018, only display of the meter was in fault but the meter was running correctly and bearing all the loads and the department did not issue the DDL. The complainant further stated that from April to September the above said portion of the house was vacant due to which consumption has become less. During that time only the white wash was in process so there is a little bit consumption of the electricity from the said meter. If any average charge has to be made, then it has to be taken from October till 05.12.2018. The average was wrongly calculated and charged by the Audit. The complainant submitted her case in Dispute Committee of P.S.P.C.L and by order of the committee, 20% of the amount of disputed amount which comes to Rs.15,800/- was deposited by the complainant on 30.07.2019. After hearing on the various dates, the D.S.C. has decided her case on 27.09.2019 whereby it was ordered that Meter was running properly till 05.07.2018, it has been decided that the consumer’s account should be revised from 05.07.2018 till the meter is changed on the basis of consumption recorded in these months of last year and it was decided that the complainant was called upon to deposit the amount of Rs.34,280/- which was deposited by her under protest just to avoid harassment. The said order was received by the complainant vide memo No.7995 dated 22.11.2019. The complainant was not agree with the decision dated 27.09.2019of D.S.C. as her meter was not dead which was confirmed by LCR No.46/2197 dated  09.11.2018 and the checking agency has also written that the display of the meter is damaged “not shown” but pulse is blinking on load meaning thereby the meter is in running/working condition. On the basis of the report, opposite parties issued meter charge order for replacement of meter but the reason for change of meter was mistakenly written as meter defective and when the meter returned to ME Lab, then the report with “Meter Defective” written and returned. The meter was in working condition and there was no need of average load. As the portion of the property was vacant and there was no electricity consumption from this meter. As such, the complainant requested the DSC in writing and orally that the said portion was vacant so there was no consumption of electricity in those days. The consumption was low after the meter of this account was changed but DSC has not listened her genuine request. The complainant further submitted that she visited the office of opposite parties number of times with request to rectify the bills but they lingered on the matter on one pretext or the other. The complainant has suffered due to deficiency in service and unfair trade practices on the part of the opposite parties for which  she is entitled to a refund of Rs.50,080/- along with compensation of Rs.1,00,000/- and litigation expenses of Rs.15,000/-.   In the end, the complainant prayed for directing the opposite parties to rectify their records and to issue bill at the rate as per consumption of the complainant. The complainant further sought direction to the opposite parties to refund the amount of Rs.50,080/- deposited along with interest as well as compensation of Rs.1,00,000/- and litigation expenses of Rs.15,000/-.

2.                Upon notice, the opposite parties appeared and filed joint written statement by taking preliminary objections that the complaint is not maintainable and lack of jurisdiction of this Commission as the complainant has already availed remedy before Dispute Settlement Committee, Ludhiana. The opposite parties alleged that the Audit party vide its half margin No.144 dated 12.02.2019 pointed out that the accounts of the consumer is required to  be overhauled as the meter of the consumer as per the store challan No.799 dated 19.12.2018 was dead stopped and as such, after overhauling the accounts of the consumer by taking the reading of the previous year, an amount of Rs.78,966/- was required to be charged from Consumer. Accordingly, the opposite parties issued a notice vide memo No.7344 dated 30.05.2019 to the complainant for the amount of Rs.78,966/- but the consumer challenged the said demand before the DSC as the consumer was disagree with the said demand of Rs.78,966/- then she requested the opposite parties to refer her case before the Dispute Settlement Committee. On 27.09.2019, Kuldeep Makkar, husband of the consumer appeared before DSC and stated that earlier the first portion was on rent which is now vacant. He also submitted one LCR No.11/2188 dated 05.07.2018 and as per said LCR the meter of consumer was okay up to 05.07.2018. The Committee has verified the documents of both the parties and ordered that account of the consumer is required to be overhauled from 05.07.2018 up to change of the meter by taking the base of consumption  of the previous year of the same months. The Committee also offered the consumer that incase the consumer is not satisfied with the decision of the DSC then he challenge the said order within 2 months before the CGRF, Ludhiana. After passing the said order, the opposite parties again overhauled the consumer account by serving the memo No.7995 dated 22.11.2019 for the amount of Rs.26,961/-. The opposite parties further alleged that the meter of the consumer was dead stop as such, they rightly overhauled the accounts of the consumer as per decision of DSC.

                   On merits, the opposite parties reiterated the crux of averments made in the preliminary objections. The opposite parties admitted the factum of supply of electricity by them through account No.3002792279. The opposite parties alleged there is no document on the court file which shows that the first portion of the property was vacant and they have rightly sent the bills to the consumer as per the actual position of the meter at site. The opposite parties further submitted that whatsoever amount has been deposited by the consumer after the decision of DSC, the same was deposited by the consumer after admitting her liability. Decision of the Dispute Settlement Committee is legal and genuine and after consideration the documents and arguments of the husband of the complainant, the committee decided the case after considering the LCR dated 05.07.2018 and ordered that the accounts of the consumer was required to be overhauled since 05.07.2018 up to change of the meter. The opposite parties further submitted that the consumption was low after the meter of this account had been changed.  The opposite parties have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                In support of her claim, the complainant tendered her affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of memo No.571 dated 16.09.2019, Ex. C2 is the copy of memo No.7340 dated 30.05.2019, Ex. C3 is the copy of consumer checking register dated 05.07.2018, Ex. C4 is the copy of bill dated 26.06.2018, Ex. C5 is the copy of bill dated 09.07.2018, Ex. C6 is the copy of 09.11.2018, Ex. C7 is the copy of job order for device replacement dated 12.11.2018, Ex. C8 is the copy of challan No.799, Ex. C9 is the copy of account statement, Ex. C10 is the copy of bill dated 25.06.2019, Ex. C11 is the copy of order of Dispute Settlement Committee, Ex. C12 is the copy of memo No.7995 dated 22.11.2019, Ex. C13 is the copy of bill dated 29.10.2018, Ex. C14 is the copy of bill dated 23.02.2019 and closed the evidence.

4.                On the other hand, counsel for opposite parties tendered affidavit Ex. RA of Er. Daljit Singh, Additional SE, Agar Nagar Division (Special), PSPCL, Ludhiana and another affidavit Ex. RA of Sh. Paraminder Singh, Senior Executive Engineer, Agar Nagar Division (Special), PSPCL, Ludhiana along with documents Ex. R1 is the copy of memo No.7340 dated 30.05.2019,  Ex. R2 is the copy of half margin No.144 dated 12.02.2019, Ex. R3 is the copy of consumer checking register dated 05.07.2018, Ex. R4 is the copy of job order for devise replacement, Ex. R5 is the copy of challan No.799, Ex. R6 is the account statement, Ex. R7 is the copy of order of Dispute Settlement Committee, Ex. R8 is the copy of memo No.7995 dated 22.10.2019 and closed the evidence.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.     

6.                By invoking the jurisdiction of this Commission, the complainant has alleged that the demand made by the opposite parties is illegal as she had been regularly paying all the previous bills. The complainant has failed to pin point how the demand made by the opposite parties is illegal and what are the provisions/rules and regulations which have not been complied with by the opposite party before issuing the memo No.7340 dated 30.05.2019 for the amount of Rs.78,966/-. The complainant has failed to discharge the intial onus of deficiency in service on the part of the opposite party. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

7.                On the other hand, the counsel for the opposite parties has contended that due process was followed before making demand of Rs.78,966/- as per rules and regulations of Punjab State Power Corporation Limited. He has drawn the attention of this Commission towards rule 21.5.2 of Electricity Supply Instructions Manual of PSPCL, which is reproduced as under:-

          21.5.2         Defective (other than inaccurate)/Dead Stop/Burnt/Stolen                            Meters.

The accounts of a consumer shall be overhauled/billed for the period meter remained defective/dead stop and in case of burnt/stolen meter for the period of direct supply subject to maximum period of six months as per procedure given below:

a) On the basis of energy consumption of corresponding period of previous year.

b) In case the consumption of corresponding period of the previous year as referred in para (a) above is not available, the average monthly consumption of previous six (6) months during which the meter as functional, shall be adopted for overhauling of accounts.

c) If neither the consumption of corresponding period of previous year (para-a) nor for the last six months (para-b) is available then average of the consumption for the period the meter worked correctly during the last 6 months shall be taken for overhauling the account of the consumer.

d) Where the consumption for the previous months/period as referred in para (a) to para (c) is not available, the consumer shall be tentatively billed on the basis of consumption assessed as per para -4 of Annexure-8 and subsequently adjusted on the basis of actual consumption recorded in the corresponding period of the succeeding year.

e) The energy consumption determined as per para (a) to (d) above shall be adjusted for the change of load/demand, if any, during the period of overhauling of accounts.

Further it is also evident from Ex. R2 that the calculation was made in accordance with the provisions of the aforesaid law. As such, the demand of Rs.78,966/-  is legal and valid and there is no deficiency in service or unfair trade practice on the part of the opposite party.

8.                Reference can be made to Civil Appeal No.7235 of 2009 in M/s. Prem Cottex Vs Uttar Haryana Bijli Vitran Nigam Ltd. and others decided by the Hon’ble Supreme Court of India vide order dated 05.10.2021, it has been held in para No.20 and 21 of the judgment, which is reproduced as under:-

20. The fora constituted under the Consumer Protection Act, 1986 is entitled to deal with the complaint of a consumer, either in relation to defective goods or in relation to deficiency in services. The word “deficiency” is defined in Section 2(1)(g) of the Consumer Protection Act, 1986 as follows:­

“2(1)(g) “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;

21. The raising of an additional demand in the form of “short assessment notice”, on the ground that in the bills raised during a particular period of time, the multiply factor was wrongly mentioned, cannot tantamount to deficiency in service. If a licensee discovers in the course of audit or otherwise that a consumer has been short billed, the licensee is certainly entitled to raise a demand. So long as the consumer does not dispute the correctness of the claim made by the licensee that there was short assessment, it is not open to the consumer to claim that there was any deficiency. This is why, the National Commission, in the impugned order correctly points out that it is a case of “escaped assessment” and not “deficiency in service”.

In view of the law laid down in the above cited law and as per facts and circumstances of the case, the complainant has failed to prove the deficiency in service on the part of the opposite party by any cogent and convincing evidence.

9.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:06.04.2023.

Gobind Ram.

Manju Kakkar Vs Punjab State Power Corp. Ltd.                  CC/20/371

Present:       Sh. Vikrant Verma, Advocate for complainant.

                   Sh. Yash Paul, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:06.04.2023.

Gobind Ram.