w w w . L a w y e r S e r v i c e s . i n

M/s. Digvijay Biscuits (P) Ltd. v/s Secretary K.E.B. & Another

    Complaint No. 44 of 1990

    Decided On, 27 August 1992

    At, Karnataka State Consumer Disputes Redressal Commission Bangalore

    By, MEMBER

    For the Appearing Parties: ----------

Judgment Text

D.R. Vithal Rao, President

1. In this complaint which came to be filed on 19.4.1990, the complainant had sought the following relief:-

'to quash the impugned 3 demands, of Rs. 7,92,055-90 of A.E.E., K.E.B., Anekal and also to order for refund of amount paid by them Rs. 1,00,000/- from 25% to 50% of total back bill amount towards the first and second back bill cases and also to order for refund of Electricity Tax paid from 1985-1988 for a period of 3 years amounting to Rs. 53,724-20 making the total of Rs. 9,45,780-10 in the interest of justice and equity'.

The complainant, during the enquiry on 5.9.1991, filed a memo restricting his claim as under:-

'The complainant reserving their right to proceed against the Karnataka Electricity Board for the loss sustained due to the illegal disconnections restrict this complaint insofar as it relates to the demand and back-billing of Rs. 1,72,550/- .

The complainant prays that this Hon’ble Commission may declare that the illegal disconnection effected on 1.12.1989 amounts to deficiency in rendering the services by the respondent K.E.B. and therefore the complainant is not liable to pay the back-billing amount of Rs. 1,72,550/- .

The complainant further prays that the KEB be directed to give electrical connection to the complainant’s factory forthwith and lo award such compensation as this Hon’ble Commission deems fit in the facts and circumstances of the case and in the interest of justice'.

Hence, we shall hereunder consider the facts and the circumstances relating to this restricted and modified claim referred above.

2. It is the case of the complainant that on 1.12.1989 the Asstt. Ex. Engineer, KEB, Anekal, Sub-Division visited the premises of the factory of the complainant for meter reading and made an untrue allegation that the sealing wire provided to G.O.S. plastic seal was found to be melted and-cut, that the lead seal affixed to the glass window of the meter chamber was also found to be a fake one and so stated that the complainant had tempered with the meter. The material facts in this regard averred in/the complaint read as under:-

'Further we would like to mention that on 1.11.1989, the A.E.E., Anekal Sub-Division, KEB, had come to our Industry and taken the readings of KWH and KVA meters and not obtained the signatures of the Manager of the Factory for having sealed the meter which was in vogue in the previous months. The meter reading date of this HT installation AKLHT 30 is on 1st of every month. 1/11/1989 was being the holiday, i.e., for Kannada Rajyotsava Day, which is a declared holiday, the A.E.E.(E), Anekal Sub-Division had purposely gone on holiday on 1.11.1989 and took the reading and we do not know whether he had sealed the meter and other equipments or not and if sealed with which seal he have sealed the meter and also he had not approached on the next day or any other days in that month to get the signature of the Manager of the Factory or he has not complained about the originality of the seals.

3. This clearly establishes a fact that the A.E.E. is purposely doing this act of high handedness and hardship and also purposely he had gone on 1.12.1989 and alleged that the sealing wire provided to G.O.S. Plastic seal was found to me melted and cut. But it is very astonishable to see that the plastic in contact with the steel wire is not even slightly melted when the steel wire which is of very high melting point is melted and cut. The lead seal affixed to the glass window of the meter chamber was also found to be fake one and purposely alleging on us stating that we have tampered the meter and put the fake seal to the meter which is far from truth. He threatened that the installation will be disconnected and the meter will be removed. So, the Manager of the Factory went to the S-I, Anekal Police Station and lodged a complaint against A.E.E., Anekal and also T.A.C. staff and requested the Police not to allow the K.E.B. Staff to handle the metering Cubicle (copy enclosed) and disconnect the power. But without informing to the consumer and without obtaining a witnesses signature, they have taken away the meter and deposited with the SI, Anekal Police Station. The KEB Staff have only put the signature in the Mahazar although there are so many factories nearby to get a witness and they have unnecessarily removed the meters. When taking meter reading, A.E.E., Anekal demanded a bribe to an extent of Rs. 5,000/- not to disconnect the power supply by about 11.00 a.m. and as we have not paid they harassed us for a long time and booked a case at about 6.00 p.m. After disconnection, we contacted KEB both personally and by letters (copy enclosed) asking why our installation was disconnected. After 13 days they calculated according to their wish and send a back bill for Rs. 1,72,550/- '.

4. The complainant further averred that he had filed a Writ Petition No. 421/1990 before the Hon'ble High Court which came to be. disposed of directing the complainant to approach the appellate authority under Regulation 46 of the K.E.B. Supply regulations. The complainant was unable to proceed with the. said appeal due to paucity of funds. So had approached the Commission for necessary reliefs.

5. The complainant further averred that he was running a biscuit factory for which he. had taken 250 KVA HT Power on 11,000 volts by installing one number 500 KVA, 11,000 V/430V, 3 Phase, 50 Cycles Power transformer and it was serviced in the year 1985.

6. The. complainant nextly averred that the. allegations of tampering of meter made by A.E.E., Anekal were all untrue and in consequence of disconnection of supply of energy on the basis of such untrue allegations, he has suffered considerable loss for which the Opp. party is liable, to compensate.

The complainant, on basis of these averments, sought the relief as referred above.

7. The opp. party KEB filed its statement of objections and disputed the. allegations contained in the complaint and the claim made there on by_ the. complainant. The opp. party averred that the installation was disconnected as per the supply regulations. The. material and the relevant averment in the statement of objections at para 13 & 14 read as under:-

Para 13 :- It is true that on 1.12.1989 the Asstt. Ex. Engineer (Elect.) visited the premises of the said installation for taking readings as monthly reading date is 1st of each month. Sri. Gangadhar, Manager of the factory accompanied him to KEB metering equipment premises and both of them observed as follows :-

(1) The lead seal bearing one fact AEE 54 and other face as KEB provided to the H.T. metering cubicle door by the Asstt. Ex. Engineer ''(Elect), KEB, Anekal on 1.11.1989 while taking monthly reading was found replaced by another lead seal one face as KEB and another face, as CDP 34.

"(2) The plastics seal No. 043583(blue) provided to the Board side G.D.S. was existing but the sealing wire was found cut duly with melted ends.

(3) The readings were taken without opening the door through the glass window and without resetting the MD needle to Zero.

A mahazar was drawn in the presence of Sri Gangadharan, Manager of the Factory (photostat copy of which is enclosed) who has agreed and signed. The meter readings are to be taken in the interest of Board’s revenue though the reading date falls on holidays. It is the responsibility of the consumer to see that the premises is kept open to read the meters by the Board Officers on the reading dates, the consumer can also have the same readings for verification of the bills, if necessary, hence the question of taking the consumers acknowledgments does not arise. The Manager of the Factory has agreed regarding the seals in the mahazar conducted hence the question of whether sealed or does not arise. The other allegations made are false and baseless'.

In view of the above allegation that the Officers of the Board purposely doing act of highhandedness etc., are all untenable They were discharging their duties as per the rules.

Para 14 :-It is submitted that immediately on intimation given by the Asstt. Ex. Engineer (Elect.) Anekal, the installation was inspected by the Technical Audit Cell itself on 1.12.89 itself and noticed that the sealing wire provided to the GOS plastic seal melted and cut and the lead seal affixed to the glass window of the meter chamber was also found to be a false one, thereby getting easy access to the registering mechanism of the meter facilitating the consumer to adjust the consumption at his will ultimately resulting in stealing of electrical energy. The Audit Cell has also given the report vide their letter dated 4.12.1989. The matter was also reported to the police by the Audit Cell The police subsequently drew a detailed mahazar and the installation was disconnected again as per the supply regulations and the meters were seized by the police. The allegation that the officials of the Board demand bribe etc., is absolutely false besides beings malafide. The consumer without making payments as demanded by the Board has been making reckless allegations which are all untenable and approaching various authorities of the Board for restoration of energy supply. The Board has again preferred a bill dated 13.12.1989 for Rs. 1,72,550/- being the back billing charges. The consumer has not paid the same. But instead again approached the Hon’ble High Court in W.P. No. 421/90 in which the court has directed to pay 331/5 of the back billing amount of Rs. 1,72,550/- and to get reconnection and then appeal to the appellate authority under regulation 46 of the Supply Regulations It is thus seen that the matter is yet to be decided by the Appellate Authority and the complainant cannot invoke the jurisdiction of this Hon’ble Forum. It is also clearly established that the complainant is a habitual offender and has no regard for law. They are in the habit of making frivolous complaints time and again to the courts and to the authorities attributing motives to the officers of the Board without realising their responsibility'.

8. The opp. party denied having made any untrue allegations against the complainant and so sought the complaint to be dismissed.

9. During enquiry the opp. party examined RW1 to RW6 and got exhibits R1 to R-19 marked in evidence. RW2 is the Sub-Inspector of Police, Anekal Police Station, Anekal. RW1, RW3, RW4, RW5 and RW6 are the officials of KEB. The complainant examined himself as CW1 and his manager as CW2 and got exhibits C1 to C-4 marked in evidence.

10. The learned Counsel for the complainant submitted that the opp. party failed to prove that the sealing wire provided to G.O.S. plastic seal or the lead seal affixed to the glass window of the meter chamber or the meter were tampered with. He further submitted that it has been satisfactorily established that the officials of KEB disconnected the installation on some untrue allegations. They had no power to disconnect the installation. The learned Counsel for the complainant relied on the decision, Municipal Corporation of Delhi v. Ajantha Iron & Steel Company, reported in (1990) 2 SCC Page 659 wherein it has been held as under:-

'The learned Counsel for the appellant has contended that in view of the conduct of the plaintiff in stealing electricity, the court should in its discretion refuse to issue a direction for restoration of the electric supply. We are afraid, it is not possible to agree with the appellant for more reasons than one. The Plaintiff is seriously denying the allegation of theft and it is not possible to assume the accusation as correct without a full fledged trial on this issue. The case ofJagarnath Singh v. B.S. Ramaswamy relied upon on behalf of the appellant is clearly distinguishable inasmuch as the consumer in that case was convicted under the Indian Penal Code, and the conviction was being maintained in appeal. Besides, the service of notice is a prerequisite for disconnection, and the appellant cannot be allowed to go back upon its words and refuse the consumer the benefit of notice as contemplated by the agreement. The learned Counsel for the appellant urged that the Delhi Electric Supply Undertaking will seriously suffer if this view is upheld. We do not understand as to what is the difficulty in the way of the appellant to serve a notice on the consumer before discontinuing the supply. It has to be appreciated that the licensee undertaking is performing a public duty and is governed by a special statute and the law also contemplates service of a notice before disconnection of supply of electricity. The courts below have made it clear that they have not examined the case on merits. The question whether, the allegations of theft are true or not has to be examined and decided in an appropriate proceeding, and the appellant will not, therefore, be prejudiced by the present judgment in its claim. In the result, the appeal is dismissed but, without costs.

He also relied on a decision, Karnataka Electricity Board v. N.R. Pawar, reported in ILR 1992 Karnataka Page 584 wherein it was held as under:-

'The decision to disconnect the consumer’s installation forthwith and without notice is reserved to the Board and not to any authorised Officer of the Board, for clause (c) of Regulation 44.07 does not provide that the word ‘Board’ shall include the authorised officers of the Board, as, for example, clause (a) of Regulation 44.07 does. The context in which the word ‘Board’ is used in clause (c) clearly does not permit that word to be. interpreted as including an authorised officer of the Board'.

11. The Learned Counsel for the complainant submitted that the. disconnection of the installation by the officials of the Board is clearly illegal and so the service, rendered by opp. party is clearly deficient in nature and so the complainant is entitled to immediate restoration of supply of energy to the factory of the complainant and is also entitled for award of adequate compensation, for the loss and injury that the complainant had suffered at the hands of the opp. party.

12. The Learned Counsel for the opp. party submitted that whether the seals put to the. glass window of the meter chamber and other seals and the meter were tampered with or not is a question, pending consideration before the Criminal Court, wherein after investigation the police have placed a charge sheet against the, complainant for having committed the offences punishable under Sees. 39 and 44 of the. Indian Electricity Act and also for having committed the offence punishable under Sec. 379 I.P.C.

13. The learned Counsel further submitted that the disconnection of the supply of energy to the complainant’s factory was made by the police during the course of investigation and after investigation a charge sheet has been placed against the. complainant for having committed the offences as narrated above. So, it is the Criminal Court which would consider whether disconnection of the supply of energy and seizure of meter board etc., was made, by the police or otherwise and therefore this Commission has no jurisdiction to hold an enquiry into the factual question as to whether seals to the meter were tampered or whether it was the. officials of the board who disconnected supply of energy when the said matter is sub-judice before the Criminal Court.

14. Learned Counsel for (he opp. party nextly submitted that the complainant had challenged before the High Court the back billing of the installation and as per the direction of the High Court he had filed the appeal before the appellate authority of the. board and got it dismissed, and so he gets no right to challenge the same order again before this Commission. Therefore, even in that view, the complaint is liable, to be dismissed.

15. Having regard to the facts and the circumstances of the case and the submissions of the Learned Counsel for the parties, the point that arises for consideration is as to whether the service rendered by the opp. party did suffer from deficiency in any respect; if it is answered in the affirmative, whether the complainant did suffer any loss or injury and if so to what amount of compensation the complainant is entitled to?

16. It is not disputed that it was RW3, Muniyappa, Asstt. Executive Engineer, K.E.B. who had gone to the factory of the complainant on 1.12.1989 to take the monthly meter reading. RW3 recorded a mahazar as per Ex. R-10 regarding the cognitions under which he found the. seals affixed to the. meter board. The Manager of the. factory CW-2 has in this regard stated thus :-

On 2.11.1989, our watchman told me that on 1.11.1989 Chandapur KEB people had come and taken the readings. On 1.12.1989 when the readings were taken I was present. On 1.12.1989 Mr. Govindappa, Mr. Parthasarathy, and Mr. Ainapur from Chandapur and Mr. Muniyappa, A.E., Anekal had come to our factory. The A.E. Mr. Muniyappa told me that the seal put to the glass window of the meter board was of that Chandapur KEB and asked me as to how it came there. He came inside the factory and he showed me a mahazar and asked me to sign it.

He has further admitted that he signed the Mahazar as per Ex. R-10B.

RW3 Muniyappa has stated that after recording mahazar as per Ex. R-10 at the premises of the factory, reported the matter on phone to his superior officials. RW1, the Executive Engineer on the same day in the evening made a complaint to the police alleging tampering of meter and commission of theft of energy as per Ex. R-l. The Police that is RW2, Kamalappa, the Sub-Inspector of Police, Anekal Police Station, Anekal, on receipt of the complaint Ex. R-l registered a case in Crime No. 544 of 1989. Under Secs. 39 and 44 of the Indian Electricity Act, read with Sec. 3791.P.C. and took up investigation, it is clear from the evidence of RW2 that after completing the investigation he has already submitted a charge sheet against the complainant CW1 for having committed the offence punishable under Secs. 39 and 44 of the Indian Electricity Act read with Sec. 379 of I.P.C.

RW-2 has further stated that during the course of the investigation when he visited the spot he had prepared a Mahazar as per Ex. R-2 and seized the sealing wire and the meter board MO’s 3, 1 & 2.

17. Ex. R-2 is the seizure Mahazar prepared by RW-2 on 1.12.1989. The material and relevant portion of the recital contained therein reads thus:-

Matter omitted in religion language.

(Mahazar is drawn to the effect that the supply of electricity of the factory was got disconnected by the KEB linemen H.C. Narayana Reddy and R. Mahadevappa of Chandapur O.A.M., that the plastic of GOS and lead seals, main door to which meter was fixed, meter along with duplicate lead seals and test terminal block seals which were opened and sealed, wrapped with the white cloth on which the seals were put with the letters ‘MTD-13’ and for further proceedings police seized the same.

This would go to show that the electricity supply was got cut by RW2 during the course of investigation and for the purposes of investigation when he seized the meter board, etc.

18. Ex. R-10 as referred above is the mahazar prepared by RW3, the Asstt. Ex. Engineer of the Board who had gone to the factory for meter reading which admittedly contained the signature of CW2 the factory Manager. It does not show that RW3 did cut the electric supply.

19. Ex. C-2 is the complaint given by CW2 to the police on the same day that is on In that complaint also CW2 has not alleged that RW3 did cut the electric supply.

The averments contained in the complaint as referred above, do not show any allegations against the opp. party having disconnected the supply of electricity.

Ex. R-l9 is the appeal memo filed by the complainant before the Chief Engineer, the appellate authority constituted under Regulation 46.01 of the Electricity Supply Regulation of 1988. The averment at para 4C of the appeal memo reads thus:-

Para 4C :-The readings were taken without opening door through the glass window and without re-setting the MD needle to zero at 11.00 a.m. Further the Petitioner submits that the A.E.E. Rural Sub-division (South alleges that the above three points were observed in the presence of Sri Gangadhar, Manager of the Factory and suspected that the Plastic seal provided to the above said metering equipment and lodged a Police complaint and the Police Authorities have visited at 8.30 p.m. and conducted mahazar and seized the meter and disconnected the power to the above industry at 9.00 p.m. (Night hours).

which makes it quite clear that it was the police authorities who during the course of the investigation held mahazar seized the meter and disconnected the power supply to the factory at 9.00 p.m. on 1.12.1989.

20.CW2, the Manager of the factory who was admittedly present at the time when RW3 visited the factory for meter reading has stated thus :-

'Then I went to Anekal Police Station and gave a complaint. Since they had threatened to disconnect the power'.

This goes to show that apprehending the disconnection of the power, he made the complaint to the Police as per Ex. C-2.

21. The Learned Counsel for the complainant argued with reference to the evidence of RW1 and with reference to averments contained in the statement of objections that it was the authority of the Board who disconnected the power supply illegally.

22. As per the material referred above, it would be very difficult to hold that it was the K.E.B. officials who had disconnected the power supply to the factory of the complainant.

23. The learned Counsel for the complainant further submitted that the opp. party failed to establish the fact that seals and the meter were tampered with, though the opp. party has led some evidence in the evidence of RWs 5 & 6 to show that seals to the meter board were found

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to be tampered with but we refrain from recording any finding on this aspect of the matter as the matter is sub-judice before the Criminal Court. We refrain from holding an enquiry into the factual question as to whether the allegations in this regard are correct and true when the matter is pending before the Criminal Court. In view of these facts and in the circumstances of the case, the decisions referred above relied upon by the Learned Counsel for the complainant have no relevance. 24. Ex. C-3 is the copy of the order of the Hon’ble High Court made in Writ Petition No. 421 of 1990 filed by the complainant, wherein it was held as under :- 'Therefore, this petition is not maintainable at this stage. It is rejected subject to the observation that instead of half the amount prescribed by regulation, if the petitioner deposits 33 percent of the demand, reconnection shall be effected and the matter referred to arbitration in accordance with regulation 46'. 25. The complainant as per the above direction of High Court filed an appeal before the competent authority under the Electricity Supply Regulation of 1988 as per Ex. R-19, but failed to prosecute the said appeal. The complainant made an application as per Ex. C-4 before the competent authority and got the said appeal dismissed. The averments contained in Ex. C-4 read as under :- 'With reference to the above we make it clear that we are not in a position to make any deposit since our factory has been closed due to the illegal disconnection of the electricity. We have also approached the. Consumer Disputes Redressal Commission in Karnataka seeking redressal of our grievances. In the circumstances, we will have no objection if you do not process our case further'. 26. Having regard to the material placed on record, we are clearly of opinion that this is not a case where there has been any deficiency in service on the part of the opp. party Board, so as to entitle the complainant to seek relief before the Consumer Disputes Redressal Commission, set up under the Act. In the result, therefore, this complaint fails and it is dismissed. The Parties are directed to bear and pay their own costs. M.S. Nos. 1 to 7 marked in this case are directed to be returned to the Police for producing the same before the Criminal Court wherein, the Criminal case against the complainant is pending trial. Complaint dismissed.