BEFORE THE ELECTRICITY OMBUDSMAN (Appointed by the Maharashtra Electricity Regulatory Commission under Section 42(6) of the Electricity Act, 2003) 606, KESHAVA, Bandra Kurla Complex, Bandra (East), Mumbai 400 051 Tel. / Telefax: 022-2659 2965 ELECTRICITY OMBUDSMAN REPRESENTATION NO. 33 OF 2008 In the matter of provisional assessment bill raised in a theft case. M/s. Magtech Mobile Spares Pvt. Ltd Appellant V/s Maharashtra State Electricity Distribution Co. Ltd. Respondent Present: 1. Shri W.G.Gorde, Electricity Ombudsman 2. Shri S.M.Lohkare, Secretary On behalf of the Appellant: 1. Shri P.S.Shahane, Director On behalf of the Respondent: 1 Shri K.S. Murty, Executive Engineer 2 Shir K.D. Humane, Dy. Ex. Engineer 3 ORDER Date: 20 th June, 2008 1. Magtech Mobile Spares Pvt. Ltd. (hereinafter referred to as the Appellant) has filed this representation on 12 th May, 2008 and the same is registered at Serial No. 33 of 2008. The representation arises out the Consumer Grievance Redressal Forum, (in short, the Forum) Bhandup s order dated 26 th March, 2008 dismissing the case with an advise that the consumer should approach the appropriate Court. M/s. Magtech Mobile Spares Pvt. Ltd. is aggrieved with the Forum order and has stated his case as under. 2. The Appellant is a low tension consumer of electricity with a consumer no. 000111423016/6, supplied by Maharashtra State Electricity Distribution Co. Ltd., Vashi, Navi Mumbai (hereinafter referred to as the Respondent). The consumer has been using energy and paying bills regularly. On 10 th January, 2001, he received provisional bill dated 3 rd January, 2001, asking him to pay Rs. 12, 18,986/- for the period from January Page 1 of 7
1998 to December 2000, on account of theft of electricity. The Appellant was forced to pay an amount of Rs. 2, 45,000/-, (20% of the assessed bill) which he did under protest, as the supply was disconnected. 3. Before that, in June, 1999, the Respondent had sent bills mentioning that the Appellant s meter is faulty. The Appellant, in turn, on 21 st August, 1999, requested the Respondent to remove the remarks of faulty meter and revise the bills. At the instance of the Appellant, the meter was checked on 29 th September, 1999 and was found to be in order. 4. Subsequently, the Respondent filed First Information Report (FIR) with Vashi Police Station and a Criminal Case No. 118 of 2001 came to be filed in the Court of Judicial Magistrate (First Class) Vashi. The said Court delivered judgement dated 9 th February, 2005, acquitting the Appellant of charges of theft of energy. Upon acquittal, the Appellant approached the Respondent on 10 th October, 2005 for refund of Rs. 2,45,000/- paid in January, 2001. Instead of refunding the amount, the Respondent, by its letter dated 16 th November, 2005, asked the Appellant to pay Rs. 9,73,985/- towards the balance amount (Rs. 12,18,985/- - Rs. 2,45,000/-). The Appellant states that the Respondent s demand is erroneous and without any base. 5. With this grievance, the Appellant approached District Consumer Forum vide Complaint No. 23 of 2006. The Forum dismissed the complaint on the ground that the Appellant is not a consumer under Consumer Protection Act, 1986. The Appellant then approached the Superintending Engineer, Vashi Circle for redress. No decision was given within two months. The Appellant had no alternative but to approach the Consumer Grievance Redressal Forum (under the Electricity Act, 2003). Upon hearing the matter, the Forum passed an order on 26 th March, 2008 observing that the dispute relates to civil liability against theft of energy. Therefore, it does not fall within the competence of Forum, and hence this representation. In this context, the Appellant has prayed as under: a) It be held and declared that, the provisional bill dated 3/1/2001 and letter dated 16/11/2005, issued by the opponent is null and void and the consumer is not bound to pay the said amount. b) Till hearing and disposal of this complaint the opponent company be restrained by an order of injunction from disconnecting the electricity supply to the consumer company. c) Ex-parte, ad-interim relief in terms of prayer clause (b) be granted. 6. The Respondent filed its written statement on 11 th June, 2008. It agrees having raised the provisional bill of Rs. 12,18,986/- on 10 th January, 2001 for theft of energy against the Appellant. It refutes the allegation that the Appellant was forced to pay an amount of Rs. 2,45,000/- and enclosed the Appellant s reply dated 3 rd February, 2001 to support this point. It agrees that the electricity meter was checked on 29 th September, 1999 but this spot inspection report shows the meter was okay but only on physical verification. It was not tested by accuchek meter. The Respondent submits that it is Page 2 of 7
entitled to charge the consumer for electricity abstracted through pilferage under provision Condition 31(e) of the Conditions and Miscellaneous Charges for Supply of Electrical Energy of the Respondent. 7. On the First Information Report against the consumer, the Respondent states that it was filed with the Rabale Police Station on 2 nd January, 2001 and not with Vashi Police Station as stated by the Appellant. Similarly, criminal case no. 118 of 2001 as quoted by the Appellant is incorrect and the correct number of the case is 188. Being a case of theft of electricity and unauthorized extension of load, it is beyond purview of the Forum and therefore, the Forum has dismissed the Appellant s grievance with advice to approach the appropriate Court or the Appellant may file an appeal before the Electricity Ombudsman. The Respondent states that the Appellant is acquitted by the Hon ble Court from the punishable offence under the Indian Electricity Act, 1910 only and not from payment of civil liability. Therefore, the Respondent wrote a letter on 16 th November, 2005 asking for balance payment of Rs. 9,73,985/-. It agrees that the Appellant s electricity supply was disconnected upon detection of pilferage of energy but the same was restored on 4 th January, 2001 on payment of 20% of the billed amount (i.e. Rs. 2,45,000/-). The Respondent reiterates that the Appellant s meter was found 83.61% slow and that the actual connected load was found as 161.71 HP against the sanction load of 66.35 HP. This amounted to using electricity unauthorisedly beyond the sanctioned load. The Respondent refuted the allegation of any harassment, humiliation or pressure on the Appellant. It pleads unaware of spending of more than Rs. 2 lakhs by the Appellant on the criminal case. With this submission, the Respondent has prayed for dismissal of the representation and to advise the Appellant to pay the balance amount. 8. The matter was heard on 19 th June, 2008. Shri P.S.Shahane, Director of M/s. Magtech Mobile Spares Pvt. Ltd., the Appellant, was present. The Respondent was represented by Shri K.S.Murty, Executive Engineer assisted by Shri K.D.Humane, Dy. Ex. Engineer. At the outset, Shri Shahane argued that the Respondent visited his premises on 30 th December, 2000 when he was not present. It was alleged that there was tampering of the meter and there was theft of energy. He strongly refuted these allegations. He submitted that the Respondent s officials had earlier inspected the meter on 29 th September, 1999 and found the meter in order. Nothing was mentioned about tampering of seal of the meter or the meter box. He further referred to and relied upon the judgement of the Court of Judicial Magistrate (First Class) especially few paragraphs showing that there was no tampering of meter or theft of energy. Continuing his argument, he stressed that since there was no theft of energy, there should be no question of any civil liability or the bills to be raised in that behalf. He mentioned that upon refusal of the Respondent to refund Rs. 2.45 lakhs after his acquittal, he approached the District Additional Consumer Forum, New Mumbai. Unfortunately, the Forum held that he is not a consumer in terms of the Consumer Protection Act, 1986 and dismissed his complaint. He conceded that he did not appeal against the said order as he was not aware of the provisions. He reiterated his prayer that he should not be liable to pay any civil liability once he is acquitted of the charges of theft of energy. He felt that the Forum should have considered his prayer instead of advising to approach the appropriate Court. Page 3 of 7
9. Shri K.S.Murty, Executive Engineer and Shri K.D.Humane, Dy. Executive Engineer argued for the Respondent. Shri Humane recalled the events to say that during the inspection of the premises in December 2000, tampering of meter was observed and the meter was found slow on accuchek test by 83.61%. He conceded having filed the FIR and reiterated subsequent developments including the Court case. He agreed that the Court has acquitted the Appellant of the charges of theft of energy but maintained that the Court allowed the Respondent to recover civil liability. On this point, the Respondent was asked to refer to the Court order and show if such permission to recover civil liability is mentioned. On going through the Court order, he then conceded that there is no such mention of civil liability. Continuing his argument, the Respondent submitted that it is entitled to recover charges for energy extracted and used by the Appellant due to slowness of meter. Upon query, he agreed that the issue of slow meter was not referred to the Electrical Inspector under Section 26(6) in terms of the provision in the earlier Act. He could not also point out any specific provision in the Electricity Act, 2003 enabling the Respondent to su-moto raise civil liability. Summing up his arguments, the Respondent stated that since the matter relates to theft of energy and civil liability connected therewith, the case would be beyond the jurisdiction of the Forum and also of the Hon ble Electricity Ombudsman. 10. Facts of the case and documents on record reveal that the Appellant is a consumer of electricity supplied by the Respondent. On 30 th December, 2000, the Dy. Executive Engineer of the Respondent checked the Appellant s electrical installation and metering equipment. During inspection, the Respondent reportedly observed some alterations in meter, meter box seals and meter body seals. The meter was found 83.61% slow on accuchek. Actual connected load was found 161.71 HP against the sanctioned load of 66.34 HP. On the basis of inspection report, the Respondent issued provisional bill of Rs. 12,18,986/- on 3 rd January, 2001. Details of the bill appear as under: (i) charges for assessed consumption of 232506 units Rs. 6,99,126.77 (ii) 25% surcharge Rs. 1,74,781.69 (iii)various charges of extra load Rs. 3,37,466.40 (iv) charges for unbilled consumption upto 30 th Dec, 2000 Rs. 7,610.76 Total Rs.12,18,985.92 (Rounded to Rs.12,18,986/-) 11. On the basis of said inspection report, the Respondent filed FIR with the police who instituted criminal proceedings in the Court of Judicial Magistrate (First Class) under Section 39 and 44 of the Indian Electricity Act, 1910. The Court of Judicial Magistrate (First Class), by its judgement dated 9 th February, 2005, acquitted the Appellant of the offences punishable against Section 39 and 44 of the Indian Electricity Act, 1910. As a sequel to this, the Appellant approached the Respondent with a request to refund the amount of Rs. 2, 45, 000/- which he has paid in the year 2001 as 20% of the assessed charges raised by the Respondent. 12. In response, the Respondent, vide its letter dated 16 th November, 2005, informed that the Court has acquitted the Appellant only from punishment against theft of energy Page 4 of 7
and not from payment of supplementary bill amounting to Rs. 12,18,986/- raised by the Respondent. Since the Appellant had paid Rs. 2,45,000/-, the Respondent requested the Appellant to pay balance amount of Rs. 9,73,985/- within 15 days. It is this action of the Respondent which gave rise to the present dispute apart from the Respondent s refusal to refund Rs. 2, 45, 000 /-. 13. According to the Respondent, the Court has acquitted the Appellant only from criminal charges but he is required to pay the civil liability, raised through the bill in January 2001 towards the assessment of theft, excess load and unpaid bills. The Appellant s case is that since it is acquitted by the Court from charges of theft of energy, no more case exists and he is not liable to pay the amount of Rs. 12,18,986/- raised by the Respondent in the year 2001. He contended that this amount necessarily represents provisional assessment for theft of energy and charges due to excess connected load. Since the Court has already acquitted him of the charges of theft, there should be no civil liability on this account. 14. It is not disputed by either parties that the Court of Judicial Magistrate decided the case and delivered the judgement on 9 th February, 2005 acquitting the Appellant of offences punishable under Section 39 and 44 of the Indian Electricity Act, 1910. Upon receiving the judgement, the Appellant approached the Respondent on 10 th October, 2005 seeking refund of Rs. 2.45 lakhs paid by him on 3 rd January, 2001. It is also on record that the Respondent did not grant any refund as requested but wrote back to the Appellant on 16 th November, 2005 asking him to pay Rs. 9,73,985/- towards the balance amount of original bill. The Appellant feels that this is erroneous and without any base, since the Court has already acquitted him of charges of theft of energy. He states that the Respondent s officials inspected and checked the meter on 29 th September, 1999 and certified that it is running properly. The Respondent charged the Appellant from June 1999 to November 2000 at a fixed rate and therefore it cannot raise any bill for a faulty or tampered meter. 15. The Respondent s case is that it found the Appellant s meter tampered during inspection and therefore FIR was filed with the Police Station. Criminal case came to be filed for theft of energy. The Respondent agrees that although the Court of Judicial Magistrate has acquitted the Appellant from the charges of theft of energy, the Appellant is not absolved from payment of civil liability on account of theft of energy. The Respondent argues that the meter was indeed tampered affecting its performance. As the meter was 83.61% slow, the Appellant is bound to pay for the energy which he has actually extracted and used. Similarly, the Appellant had put connected load of 161.71 HP as against the sanctioned load of 66.35 HP. This amounts to unauthorized load beyond the sanctioned load and as such, is bound to pay the penal charges. 16. In summary, the Respondent claims that the Appellant is bound to pay Rs. 9,73,985 towards the provisional assessment and there is no question of refunding Rs. 2,45,000/- paid by him earlier on this account. Page 5 of 7
17. Facts of the case illustrated as above, are more or less undisputed except that the Appellant feels that there was no tampering of meter while the Respondent feels otherwise. The Appellant states that the meter was checked by the Respondent on 29 th September, 1999 and found it correct while the Respondent argued that it was slow due to tampering. In any case, the Respondent had filed the FIR with the Police Station and the criminal case in this behalf is decided by the Court of Law. It is on record that the Appellant is acquitted from the theft of energy charges under Section 39 and 44 of the Indian Electricity Act, 1910. 18. Limited point at this juncture that arises for decision relates to whether the Respondent should refund Rs. 2,45,000/- recovered by it earlier on account of provisional assessment or whether it is entitled to recover the balance amount of Rs. 9,73,985/- in this behalf. Thrust of the Respondent s argument is that the provisional assessment of Rs. 12,18,986/- was raised in January 2001 on account of theft of energy. The Appellant is already acquitted by the Court. The issue is now limited to civil liability on account of alleged theft of energy. Earlier, Section 39 and 44 of the Indian Electricity Act, 1910 provided for dealing with the matters related to theft of energy. With effect from 10 th June, 2003, the Electricity Act, 2003 came into force and corresponding relevant sections in the new Act are Section 135 to 140. On dealing with the cases relating to theft of electricity, etc., Maharashtra Electricity Regulatory Commission (Consumer Grievance Redressal Forum & Electricity Ombudsman) Regulations, 2006, more specifically the Regulation 6.8 provides that if the Forum is prima facie of the view that any grievance referred to it falls within the purview of the unauthorized use of electricity under Section 126 or offences and penalties as provided under Section 135 and 139 of the Act, the matters are excluded from the jurisdiction of the Forum. Here, the Forum was not called upon to deliberate and decide the matter of theft of energy. It is already decided by the Court. But, the issue at hand relates to payment of civil liability in connection with the theft of energy. As regards civil liability, Section 154 of the Electricity Act, 2003 provides Section 154: Procedure and power of Special Court. (1).. (2) (3). (4). (5) The [Special Court shall] determine the civil liability against a consumer or a person in terms of money for theft of energy which shall not be less than an amount equivalent to two times of the tariff rate applicable for a period of twelve months preceding the date of detection of theft of energy or the exact period of theft if determined whichever is less and the amount of civil liability so determined shall be recovered as if it were a decree of Civil Court. (6) In case the civil liability so determined finally by the Special Court is less than the amount deposited by the consumer or the person, the excess amount so Page 6 of 7
deposited by the consumer or the person, to the Board or licensee or the concerned person, as the case may be, shall be refunded by the Board or licensee or the concerned person, as the case may be, within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India prime lending rate for the period from the date of such deposit till the date of payment. Explanation For the purposes of this section, civil liability means loss or damage incurred by the Board or licensee or the concerned person, as the case may be, due to the commission of an offence referred to in [sections 135 to 140 and section 150]. 19. As is clear from the above provisions, it is the Special Court who has to determine the civil liability against the consumer or person in terms of money for theft of energy. The Sub Section 6 thereof further provides that in case of civil liability so determined by the Special Court is less than the amount deposited by the consumer, any excess amount or deposit shall be refunded within a fortnight from the date of communication of the order of the Special Court together with interest at the prevailing Reserve Bank of India rate. In the present case, the Appellant has deposited Rs. 2,45,000/- and is now claiming refund thereof. On the other hand, the Respondent claims the balance amount of Rs. 9,73,985/- on account of civil liability. Provisions in this behalf, clearly ousts the jurisdiction of the Forum as well as of this Electricity Ombudsman to deliberate and decide the issue of civil liability. The Forum has made similar observations and advised the Appellant to approach the appropriate Court. This is perfectly in consonance with the provisions of the Act and Regulations. I do not find any infirmity in the Forum s order and therefore, it does not call for any interference. 20. In the result, the Appellant s prayer in the representation deserves to be and is hereby rejected. 21. The Appellant s representation stands disposed of in terms of this Order. 22. No order as to cost. Sd/- (W.G.Gorde) Electricity Ombudsman Sd/ Secretary Page 7 of 7