IN THE COURT OF MS.[ENTITY] : CIVIL JUDGE01(NORTH) : DELHI Suit No. 691/2008 Unique ID No. 02401C0107932006 Sh.[ENTITY] R/o B11/24, Sector - 18, [ENTITY], Delhi 85 Through Mr.[ENTITY] (Duly Constituted Attorney) Through Mrs. [ENTITY] (Duly Constituted Attorney) Both R/o B11/24, Sector 18, [ENTITY], Delhi 85 Plaintiff Versus [ENTITY] (A Tata Power & Delhi Govt. Joint Venture) Grid SubStation Building, Hudson Lines, Kingsway Camp, Delhi - 09 Also at [ENTITY] Office of HOG - Enforcement Assessment Cell Opposite C2 Block, Keshav Puram, New Delhi 32 Defendant Date of institution of suit : 15.02.2006 Date of Judgment : 31.01.2013 [ENTITY] Vs. NDPL [CASE NUMBER] Page No.1 of 11 JUDGMENT :
1. This is a suit for recovery of Rs.8703/.
2. Briefly stated, the facts of the case as alleged by the Plaintiff are as follows.
(i) The Plaintiff is the allottee of the flat no.B11/24, Sector 18, [ENTITY], Delhi110085, which he had given to his duly constituted attorney for residence alongwith his family. An electric meter was installed at the plaintiff's place by the defendant bearing K.no.120401. The Plaintiff used to pay the bills regularly to the Defendant as and when raised.
(ii) On 28072001, the Enforcement Department of the Defendant company visited the Plaintiff's premises and inspected the meter. Thereafter on [SECTION], the plaintiff received a showcause notice along with an electricity bill of Rs.8704/. It was alleged that the meter had been tampered and the seasonal load was found as 3.91KW and the total load of the house was 7.21KW. The plaintiff was asked to attend the personal hearing on [SECTION] at 11.00 a.m., although the notice was served on the same day at 2.30 p.m. Thus no proper opportunity was granted to plaintiff to present his case.
(iii) It is submitted that the plaintiff has not done any tampering in the meter as alleged, and if there is any tampering at all, the plaintiff is not responsible for the same as the meter is situated beyond the control of the plaintiff, i.e., at the common place on the ground floor of the premises and the plaintiff resides on the third floor.
(iv) Further the Plaintiff was not present at the time of inspection and it was only later when the reports were already prepared by the defendant, that the plaintiff was asked to sign the same as acknowledgment only of the copy of the report. Also, the total load mentioned by the defendant was not correct as they had taken into account the loads of all the available points as well as the electric equipments which the plaintiff had in his house.
(v) Due to personal problems i.e. the illhealth of his wife the plaintiff [ENTITY] Vs. NDPL [CASE NUMBER] Page No.2 of 11 had paid the bill of Rs.8704/ on 06082001. Further to avoid any future dispute, the plaintiff had asked for the change of meter vide letter dated 03092001, and the same was subsequently changed by the defendant. The plaintiff had even approached the Consumer Forum against the defendant. The order in this regard is dated 15022003. Instead the plaintiff received another letter from the defendant dated 27102005 asking him to again make the payment of Rs.8703/. The plaintiff attended the personal hearing granted to him on 09112005, and submitted the proof of payment and asked for refund. However, his grievances were not redressed. As the bill which is raised is illegal and not liable to be paid, the Plaintiff filed the present suit for recovery as well as pendentelite and future interest.
3. Summons of the suit were served upon the Defendant who has filed their written statement, the brief of the same are as follows :
(i) The Defendant has submitted that the plaintiff is the registered consumer of the electricity connection against [CASE NUMBER] with the sanctioned load of 3.58KW for domestic light purposes. On 28072001, the premises of the Plaintiff was inspected where the meter installed in the Plaintiff's premises was found to be tampered as the following discrepancies were found:
The connected load was found to be 7.27 kw against the sanctioned load of 3.58 kw.
Both the half seals were found tampered.
(ii) Due to these irregularities a show cause notice for FAE was issued to the consumer and he was also afforded an opportunity of personal hearing on 27082001. The bill dated 27082001 was also issued to the plaintiff, and which according to the records of the defendant stands paid. The allegation of the plaintiff with regard to late sending of the showcause notice is denied. The consumption pattern was analysed and the average recorded consumption was found to be only 64.38% of the computed consumption. Thereafter, a case was booked for FAE and the impugned bill was raised with an advice to the Plaintiff [ENTITY] Vs. NDPL [CASE NUMBER] Page No.3 of 11 to pay the bill. Hence, the Plaintiff is liable to pay the impugned bill as the same has been raised as per the relevant provisions of the tariff and it is prayed that the suit of the Plaintiff be dismissed.
4. [ENTITY] to the WS filed by the Plaintiff wherein, the Plaintiff reiterated the facts as alleged in the plaint and denied those alleged by the Defendant. On the basis of the pleadings of the parties, following issues were framed vide order dated 15.03.2007 :
1. Whether the suit is not maintainable in view of the judgment of Honourable Supreme Court in case of [PRECEDENT] ? OPD
2. Whether the Plaintiff is entitled to the decree of Rs.8,703/ against the defendant? OPD
3. Relief.
5. Thereafter, the matter was fixed for Plaintiff's evidence. The Plaintiff got examined only one witness namely Mrs.[ENTITY] as PW1 and who exhibited the following document(s):
Ex.PW1/1 Original power of attorney Ex.PW1/2 Copy of legal notice Ex.PW1/3 Proof of service Mark A Letter written by the plaintiff to the defendant dated 16082001 Mark B Copy of receipt of purchase of air conditioner Mark C Copy of order dated 15022003 passed by Consumer Redressal Forum
6. After closure of PE, the matter was fixed for Defendant's evidence. The Defendant examined two witness namely Sh.[ENTITY] as DW1, who has exhibited the following documents:
[ENTITY] Vs. NDPL [CASE NUMBER] Page No.4 of 11 Ex.DW1/1 Load report Ex.DW1/2 Show cause notice Note : Affidavit of another DW Mr. [ENTITY] is on record, however the defendant had failed to examine him.
7. Thereafter, on closure of DE, the matter was fixed for final arguments. I have heard the arguments of both the parties and have gone through the record carefully. My issue wise findings are as follows.
Issue No.1 :
Whether the suit is not maintainable in view of the judgment of Honourable Supreme Court in case of [PRECEDENT] ? OPD
8. Vide the ordersheet, the onus to prove this issue lies upon the Defendant. The defendant has stated in the preliminary objection that the plaintiff has already made the payment of the bill raised on the basis of the inspection carried out on 28072001. The bills were raised after following due process of law and after compliance of the principles of natural justice. It is submitted that speaking order was passed thereafter and the bill was raised according to the tariff provisions. Hence, the same cannot be subject to judicial review. Reliance has been placed on the case of [PRECEDENT] .
9. The cited judgment has been perused in its entirety. The factual scenario in that case is completely different from the present case. In that case, the consumer had filed a writ petition before the Hon'ble High Court under [SECTION] of the [ACT], and the order passed therein was under
challenge in the Hon'ble Supreme Court. It was in that context that the Supreme Court had discussed the scope of judicial review under [SECTION]. In a case such as the present one, the plaintiff has filed the suit for recovery [ENTITY] Vs. NDPL [CASE NUMBER] Page No.5 of 11 challenging the bill on various grounds and violation of principles of natural justice is one of them. Hence, the ratio of the abovecited judgment as regards the aspect of judicial review is not at all applicable in the present case. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
Issue no.2 :
Whether the Plaintiff is entitled to the decree of Rs.8,703/ against the defendant? OPD
10. Onus to prove the issue was on the defendant. However, seeing the nature of the issue, the onus should be on the plaintiff.
11. It is an admitted fact that the impugned connection is installed at the Plaintiff's premises. It is the case of the Plaintiff that on 28072001, certain officials of the Defendant company visited the Plaintiff's premises where they alleged that the meter of the Plaintiff was tampered and that he was indulged in FAE as following discrepancies were found:
The connected load was found to be 7.27 kw against the sanctioned load of 3.58 kw.
Both the half seals were found tampered.
12. Thereafter, the impugned bill was raised. It is argued that the Plaintiff never committed FAE and hence, the bills which has been raised is not liable to be paid by the Plaintiff. To prove its case, the Plaintiff produced Mrs.[ENTITY] in the witness box as PW1, his duly constituted attorney. The power of attorney is Ex.PW1/1. The Attorney is executed in favour of PW1 by Sh.[ENTITY]. The PW1 reiterated on oath the averments made in the plaint. The defendant's counsel has argued that since PW1 has no personal knowledge of the case, she cannot depose in the witness box. However, according to the case titled as "[PRECEDENT]", where the Hon'ble Apex Court summarized the position for giving [ENTITY] Vs. NDPL [CASE NUMBER] Page No.6 of 11 evidence involving personal knowledge as:
(a) An attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney holder has done any act or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge.
(d) Where the principal at no point of time had personally handled or dealt with or participated in the transaction and has no personal knowledge of the transaction, and where the entire transaction has been handled by an attorney holder, necessarily the attorney holder alone can give evidence in regard to the transaction. This frequently happens in case of principals carrying on business through authorized managers/attorney holders or persons residing abroad managing their affairs through their attorney holders.
(e) Where the entire transaction has been conducted through a particular attorney holder, the principal has to examine that attorney holder to prove the transaction, and not a different or subsequent attorney holder.
(f) Where different attorney holders had dealt with [ENTITY] Vs. NDPL [CASE NUMBER] Page No.7 of 11 the matter at different stages of the transaction, if evidence has to be led as to what transpired at those different stages, all the attorney holders will have to be examined.
(g) Where the law requires or contemplated the Plaintiff or other party to a proceeding, to establish or prove something with reference to his 'state of mind' or 'conduct', normally the person concerned alone has to give evidence and not an attorney holder. A landlord who seeks eviction of his tenant, on the ground of his 'bona fide' need and a purchaser seeking specific performance who has to show his 'readiness and willingness' fall under this category.
There is however a recognized exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or 'readiness and willingness'. Examples of such attorney holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad."
13. The present case can be taken to be covered under exception (b) as carved out. Hence, the objection of the defendant is not tenable.
14. As the allegation of theft has been averred by the Defendant, the onus to prove that theft was actually being committed by the Plaintiff shifted upon the Defendant and also to prove the consequent fact that the bill was justified. The Defendant got examined Sh.[ENTITY] as DW1 who deposed that the inspection was carried out in his presence and that the above [ENTITY] Vs. NDPL [CASE NUMBER] Page No.8 of 11 mentioned discrepancies were found at the time of inspection. He proved the load report Ex.DW1/1 and the showcause notice Ex.DW1/2.
15. However, it has repeatedly been held in a number of cases that merely because the connected load is more/less than the sanctioned load and the seals are tampered, a case of FAE cannot be booked. ("[PRECEDENT]", "[PRECEDENT]", "[PRECEDENT]", Harvinder Motors v.
B.S.E.S. Rajdhani Power Ltd. 135(2006)DLT198; [PRECEDENT]; [PRECEDENT]; [PRECEDENT] and [PRECEDENT]. Further, it has been held that other supporting and conclusive evidence must be there to prove that the Plaintiff was indulged in FAE. Reliance can be placed on "[PRECEDENT]", where the Hon'ble High Court of Delhi has held that:
"An inference of fraudulent abstraction of energy must be based on some conclusion evidence that the user has tampered with the meter in a manner that has enabled such user to either slow down the meter or make it record lesser units of consumption. There must be a link established between the physical evidence of tampering noticed on inspection and the consumer. An inference of FAE should not be permitted to be drawn on the mere fact that a meter had been found with broken seals. An electricity meter is admittedly not kept enclosed in a tamper proof environment under the lock and key, with one meter is kept in a location that permits any person intending to do mischief to have easy access to the meter, then to fasten the charge of FAE on the consumer in the event of the meter being found tampered, is not being reasonable or even realistic. Something more would have to be demonstrated to infer an intention by the consumer to [ENTITY] Vs. NDPL [CASE NUMBER] Page No.9 of 11 "fraudulently" abstract electricity. In this context it is necessary to emphasise that the analysis of consumption pattern cannot constitute substantive proof of DAE in the absence of tangible physical evidence of DAE in the manner explained above. In other words, the analysis of consumption pattern can only corroborate what is found on physical inspection which can indicate whether the consumer has herself or himself employed a device or a method to dishonestly abstract electricity. It will not be open to the respondent, in the absence of any tangible evidence of DAE, to proceed on the basis of the consumption pattern to infer DAE".
16. In another similar case reported in [PRECEDENT] titled as [PRECEDENT], Hon'ble High court has gone to the extent of saying that even existence of a artificial means for abstracting energy does not ipso facto make a case of FAE unless it is shown on record that a tampering has been done and further meter has been converted into a instrument for recording less than the units actually passing through it and in such case accucheck meter affords an easy method of proving that the consumer's meter is recording less unit then the actual units consumed .
17. Hence, it has been held that in the absence of any tangible evidence showing that the consumer himself employed a device or method to dishonestly abstract energy, the presumption of DAE cannot be taken. In the present case also, the Defendant has failed to show that the consumer himself employed a device or method to dishonestly abstract energy. Hence, it cannot be said the Plaintiff was indulged in Dishonest abstraction of energy on 28072001.
18. Also the PW1 has admitted in her crossexamination that she received the show cause notice and was also called for personal hearing. However the defendant has failed to show that any speaking order was passed before raising the impugned bill. Hence, the bill is liable to be set aside also on [ENTITY] Vs. NDPL [CASE NUMBER] Page No.10 of 11 the ground of non compliance of principles of natural justice.
19. Also nothing is on record to show that the consumption pattern of the subject connection was analysed by the defendant. Moreover, as per the rulings cited above any finding of the study of consumption pattern is corroborative of the material evidence found at the time of inspection. In this case no physical evidence has been found at all.
In view of above discussion, this issue is decided in favour of the Plaintiff.
Relief In view of the above discussion, the suit of the Plaintiff is decreed and the plaintiff is held entitled to the recovery of Rs.8703/ alongwith interest of 9% per annum from the date of deposit till actual realisation. The inspection dated 28072001 Ex.DW1/1 is declared as null and void. As the bill or any receipt showing payment has not been produced by the plaintiff, the plaintiff shall be entitled for recovery on the production of the same at the time of execution.
No order as to costs.
Decreesheet be prepared accordingly.
File be consigned to record room.
Announced in the Open Court Today on 31.01.2013 [[ENTITY]] CIVIL JUDGE01 (NORTH) DELHI Certified that this judgment contains 12 number of pages and all pages are signed by me.
[[ENTITY]] CIVIL JUDGE01 (NORTH) DELHI [ENTITY] Vs. NDPL [CASE NUMBER] Page No.11 of 11 31.01.2013 Present : None Vide separate judgment of even date, the suit of Plaintiff stands decreed.
No orders as to cost.
Decree sheet be prepared accordingly.
File be consigned to record room.
[[ENTITY]] CIVIL JUDGE01 (NORTH) DELHI [ENTITY] Vs. NDPL [CASE NUMBER] Page No.12 of 11