Per Shri B.A.Shaikh, Hon’ble Presiding Member.
1. This appeal is filed by the original opposite party (for short O.P.) against the order dated 27/01/2005 passed by the Additional District Consumer Forum Nagpur in Consumer Complaint No.153/2003, by which complaint has been partly allowed.
2. The facts in brief giving rise to present appeal are as under.
The original complainant who is the respondent herein obtained electric connection to his house from the O.P. The complainant had made complaint to the O.P. about not recording reading in accordance with the meter. Therefore Junior Engineer of the O.P. namely Shri Kolte visited his house on 18/09/2002 and inspected the meter and found that seal of the electric meter is broken and noted in the diary. The O.P. then installed new meter on 01/02/2003. The complainant received bill of Rs.8989/- dated 04/03/2003 alongwith regular consumption charges of Rs.410/- .The amount of Rs.8989/- was claimed towards recovery on account of theft of electrical energy. The complainant paid regular bill of Rs.410/- only and he was asked to pay 30% of the disputed bill of Rs.8989/- to avoid disconnection. He lodged the complaint about the bill of Rs.8989/- with the O.P. and paid 30% of the bill i.e. Rs.2700/-. It is alleged by the complainant that the new meter also recorded the consumption equal to the consumption recorded by the old meter and therefore allegation of theft of energy and thereby recovery of Rs.8989/- is false and not tenable. There upon the O.P. disconnected the supply for non payment of bill dated 26/11/2003. Then complainant had showed readiness vide letter dated 04/12/2003 to deposit the entire amount if the meter is tested and test report is supplied to him. However no test report was supplied. Therefore alleging deficiency in service on the part of the O.P. Consumer Complaint was filed before the Forum requesting that direction be given to the O.P. to send the meter for testing and after report is received infavour of the complainant, then the bill for Rs.8989/- be cancelled and O.P. be directed to refund Rs.2700/- alongwith interest @ 18% p.a. and also O.P. be directed to not to change meter or disconnect it during pendancy of the complaint and to pay him compensation of Rs.5000/- for physical and mental harassment and cost of Rs.2000/-
3. The said compliant was resisted by O.P. by filing reply before the Forum. It was the case of O.P. in brief that when meter bearing connection No.BL645 was inspected by the O.P.on 18/09/2002, it was found that body seal of the meter was broken and spot punchnama was prepared and theft of the electrical energy was committed. Thereafter on 30/11/2002 the meter was replaced and the disputed bill of Rs.8989/- dated 04/03/2003 was issued as assessed on the basis of theft of electrical energy which is correct and proper. Therefore it is alleged by the O.P. that complaint is not maintainable before the Forum and the remedy available to the complainant is to file appeal Under Section 127 of the Electricity Act, 2003. Therefore it was prayed that complaint may be dismissed.
4. The Forum after hearing both the parties and considering evidence brought on record passed the impugning order and thereby partly allowed the complaint. The Forum held under impugning order that the provisions of Section 126 and 127 of Electricity Act, 2003 are not applicable to the present case since the theft of the electric energy is alleged and no un-authorize use of the electricity is alleged. The Forum also concluded that there is no evidence to prove the theft of electricity and therefore issuance of bill for Rs.8989/- is arbitrary and illegal. The Forum therefore directed the O.P. under impugning order to refer the matter for testing to electrical inspector within 30 days and its report will be binding on both parties and till the receipt of report from Electrical Inspector, O.P. is directed not to enforce illegal recovery of Rs.8989/-. The Forum also directed the O.P. to refund Rs2700/- to the complainant with interest @ 9% p.a. from 07/06/2003 till its realisation and also to pay him compensation of Rs.2000/- for physical and mental harassment. The Forum also directed the O.P. to restore the supply of the meter without any charges as disconnected on 26/11/2003 for illegal recovery. The Forum also directed the O.P. to pay cost of Rs.1000/- to the complainant.
5. As observed above this appeal is filed by the original O.P. against said order.
6. The learned Advocates of both parties filed their respective written notes of argument on the lines of the aforesaid submission of the parties to which they represent in appeal. We have perused the copies of the record of original complaint and written notes of arguments filed on record. The learned Advocate of the appellant in her written notes of arguments mainly contended that there was sufficient evidence before the Forum showing that the meter was tampered with by breaking open its seal and thereby theft of energy was committed and therefore the Forum had no jurisdiction to entertain and decide the complaint and therefore she requested that the impugning order may be set-aside.
7. On the other hand the learned Advocate of the respondent/original complainant argued that the impugning order has been already complied with by the O.P. and therefore the appeal has become anfractuous and hence it may be dismissed. However she submitted that as the record of original complaint and execution proceeding has been already destroyed by the Forum, no document can be produced in appeal to show that the impugning order has been duly complied with by the O.P. She submitted that the otherwise also the Forum has properly considered evidence brought on record and reached to correct conclusion and finding and hence she requested that appeal may be dismissed.
8. It is thus not disputed that the bill which was challenged by the complainant as issued by the O.P. for Rs.8989/- was based on assessment on account of theft of the electricity energy, as alleged to have been committed by complainant by breaking the seal of the meter and thereby tampering with it. We find that as it is the case of theft of electrical energy, the Forum had no jurisdiction to give any finding on as to commission of theft of the electrical energy. The Hon’ble Supreme Court in the case of U.P.Power Corporation and others….V/s….Anis Ahemad, reported in AIR 2013 S.C. 2766, has specifically laid down that the complaint made against assessment of unauthorized use of electricity Under Section 126 of Electricity Act, 2003 or against the assessment made on the basis of theft of the electrical energy is not maintainable before the Consumer Forum. Therefore we are of the considered view that the Forum erred in entertaining the complaint and partly allowing it. We also find that there is no evidence on record to show that the O.Ps. have complied with the impugning order without reserving their right of appeal. Hence we are not inclined to hold that the appeal has become anfractuous.
9. There is also an application for condonation of delay that occurred in filing of the appeal. We find that as the complaint itself was not maintainable before the Forum, on this sole ground the delay is condoned.
10. In the result we find that the impugning order can not be sustained under law and it deserves to set aside.
// ORDER //
- The appeal is allowed.
- The impugned order is set aside.
- The complaint stands dismissed.
- The complainant is at liberty to approach the competent authority under Electricity Act, 2003 for seeking redressal of his grievance against the disputed bill.
- The copy of order be furnished to both parties free of costs.
