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CASE NO.: Appeal (civil)  2325 of 2006

PETITIONER: Haryana State Electricity Board

RESPONDENT: Mam Chand

DATE OF JUDGMENT: 28/04/2006

BENCH: ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT: J U D G M E N T [Arising out of SLP (C) No.18892 OF 2005]

KAPADIA, J.

       Leave granted.

       Is the consumer beneficial jurisdiction extendable to assessment  and quantification of duty (including penalty) under the Electricity  Act, 2003, is the question which arose before the State Commission  under the Consumer Protection Act, 1986.                  With the industrial revolution and development in the  international trade and commerce, there has been a substantial  increase of business and trade, which resulted in a variety of consumer  goods appearing in the market to cater to the needs of the consumers.   With globalization and with free market economy the possibility of  deficiency in the services rendered warranted enactment of the  Consumer Protection Act, 1986, as amended from time to time.  This  law has been enacted for the welfare of consumers and to protect them  from their exploitation for which the said 1986 Act has made  provisions for the establishment of Commissions for settlement of  consumer disputes and matters connected therewith.  In the case of  Skypak Couriers Ltd. etc.  v. Tata Chemicals Ltd. etc., (2000) 5  SCC 294 this court has held that \026 "the Commissions, under the Act,  are quasi-judicial bodies to provide speedy and simple redressal to  consumer disputes and for that purpose, they have been empowered to  give relief of a specified nature and in an appropriate way, to award  compensation." (emphasis supplied by us)                   The key question which arises for determination in this civil  appeal is : whether disputed and complicated questions of fact and law  arising under the provisions of the Electricity Act, 2003 concerning  assessment of unauthorized use of electricity,  tampering of meters,  interfering with calibration or metering of electric current resulting in  theft of electricity under section 126 and section 135 of the Electricity  Act, 2003 could be decided in a summarily manner by the Consumer  Forum or whether in such cases the complainant should be directed to  approach the competent authorities under the said Electricity Act,  2003.

       Respondent herein was having small power electric connection.   That connection was checked by the junior engineer on 24.11.94.  On  checking, the junior engineer found the seals of the meter to be  broken.

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       On 25.11.94 notice was issued to the respondent calling upon  him to deposit Rs.10,150/- as per the rules of the Nigam.  The  respondent did not raise any dispute whatsoever with the Nigam.  In  fact, he submitted an application to deposit the said amount in two  instalments.  He was allowed to deposit the said amount in  instalments.

       In 1995, however, the respondent filed Complaint Case  No.42/95 before the District Consumer Disputes Redressal Forum,  Ambala against the Nigam alleging that his electric supply was  illegally disconnected without showing any cause for disconnection.   This complaint was filed under section 12 of the Consumer Protection  Act, 1986 (hereinafter referred to as, ’the said 1986 Act’).  In the  complaint it was alleged that the concerned meter was not checked by  the Nigam and, therefore, the respondent was not liable to pay the  demanded penalty as claimed by the Nigam.  The respondent herein  denied tampering of the meter as alleged by the Nigam.  According to  the respondent, as a consumer he had suffered financial loss of  Rs.50,000/- on account of the Nigam making a false allegation of theft  against him.

       By written statement filed on behalf of the Nigam, the  allegations made by the respondent herein as a complainant came to  be denied.  According to the written statement, notice was given to the  respondent herein as per the rules of the Nigam and the respondent  was called upon to pay Rs.10,150/- as the connected load was of 10  B.H.P.  According to the written statement the respondent herein  never complained against the demand.  He did not make any  application making grievance against the Nigam.  On the contrary, he  had requested the Nigam to allow him to deposit the said amount in  two instalments.  According to the Nigam, the demand was raised on  account of breaking of seals.  In the written statement it was submitted  by the Nigam that breaking seals of the meter amounted to theft on  account of which the Nigam had suffered losses.                  By judgment and order dated 7.7.1997 the said District Forum  allowed the complaint and directed the Nigam to refund the  aforestated amount of Rs.10,150/- with interest at 18% per annum  from the date of deposit till payment.  However, the Nigam was  ordered to pay Rs.500/- by way of costs.

       Aggrieved by the said judgment and order passed by the said  District Forum, the Nigam preferred First Appeal No.411 of 1997  before the State Consumer Disputes Redressal Commission, Haryana,  Chandigarh under section 15 of the said 1986 Act.  By a non-speaking  order and without discussing the merits of the case the said State  Commission dismissed the First Appeal preferred by the Nigam.

       Aggrieved by the decision given by the said State Commission,  the Nigam preferred Revision Petition No.2154 of 1999 before the  National Consumer Disputes Redressal Commission, New Delhi.  The  revision was dismissed by National Commission without reasons.   Hence, the Nigam has come to this court by way of special leave  petition.

       The basic contention advanced on behalf of the Nigam before  us was that the State Commission has been constituted under Section  15 of the said 1986 Act as the first statutory appellate authority and  consequently the State Commission had erred in dismissing the said  appeal by a non-speaking order.  Before us, it is further urged that in  this case the check report duly signed by the respondent in Hindi  indicated that the seals on the meter had been tampered for which the  respondent was ready to pay the penalty as indicated by the above  facts.  This aspect is important because all the three courts below

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proceeded on the basis that mere breaking of the seals on the meter is  not a conclusive proof of theft of electric energy.  This aspect has not  been appreciated by the State Commission as well as by the National  Commission.  This circumstance coupled with the fact that the  respondent had asked for time to deposit in instalments also showed  that the respondent had notice of the demand raised by the Nigam.

       On behalf of the respondent reliance is placed on the judgment  of the Consumer Forum and particularly on paragraphs 10, 11 and 12.   It is urged on behalf of the respondent that mere breaking of the seals  on the meter did not constitute a conclusive proof of theft of electric  energy.  It is urged that the State Commission as well as the National  Commission have indicated in their impugned orders that they were in  agreement with paragraphs 10, 11 and 12 of the decision of the  Consumer Forum and therefore no interference was called for by this  Court under Article 136 of the Constitution.

       In this case we are concerned with the scope and extent of the  beneficial consumer jurisdiction, particularly with regard to technical  subjects falling under provisions such as the Electricity Act, 2003.   Under Section 2(c) of the 1986 Act "complaint" is defined to mean  allegation in writing made by a complainant that the service provider  has charged for the services, a price in excess of the price fixed under  the law for the time being in force [See: Section 2(c)(iv) ].  Under  section 2(d) "consumer" is defined to mean any person who hires or  avails of any services for a consideration which has been paid or  promised or partly paid and partly promised.  Under section 2(g) of  the said 1986, Act the word "deficiency" is defined to mean 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 under a contract or  otherwise in relation to any service.  The word "goods" is defined  under section 2(i) to mean goods as defined in the Sale of Goods Act,  1930.  "Service" also defined under section 2(o) of the said 1986 Act  to mean service of any description which is made available to users in  connection with banking, financing, insurance, transport, processing,  supply of electrical energy, entertainment etc.  Therefore, supply of  electric energy by the Nigam falls under section 2(o) of the said 1986  Act.  However, the question which arises for determination and which  has not been decided is : whether the beneficial consumer jurisdiction  extends to determination of tortious acts and liability arising  therefrom by the Consumer Forum.  In this connection, it is urged on  behalf of the Nigam that assessment of the duty for unauthorized use  of electricity, tampering of meters, distribution of meters and  calibration of electric current are matters of technical nature which  cannot be decided by the Consumer Forum.  It is urged that under the  Electricity Act, 2003 the jurisdiction of the civil court is excluded.  In  this connection reliance was placed on section 145 of the said 2003  Act under which the jurisdiction of the civil court to entertain suits in  respect of matters falling under Section 126 is expressly barred.    These are matters of assessment.  According to the Nigam, the said  2003 Act is a complete code by itself and therefore in matters of  assessment of electricity bills the Consumer Forum should have  directed the respondent to move before the competent authority under  the Electricity Act, 2003 read with rules framed thereunder either  expressly or by incorporation.

       In our view, the contentions advanced on behalf of the Nigam  require deeper consideration by the State Commission.  None of the  above points have been discussed by the State Commission in this  case.   Disputes of this nature are repeatedly arising before this court.   At this stage, we do not wish to express any opinion.  In our opinion,  for the foregoing reasons the civil appeal filed by the Nigam deserves  to be allowed and is hereby allowed.

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       We accordingly direct the State Commission to decide the  matter on facts of this case in the light of the provisions of the  Electricity Act, 2003 read with the rules framed thereunder.

       The impugned orders passed by the State Commission and  National Commission are hereby set aside and the matter is remitted  to the State Commission for fresh disposal of the complaint in  accordance with law and on the points formulated hereinabove.

       The appeal stands disposed of accordingly with no order as to  costs.