DOF.27.1.2010 DOO.3.5.2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy : Member Dated this, the 3rd day of May 2011 CC.34/2010 K.P.Surendran, Five Star Stone Crusher, Kayralam Motta, P.O.Kayaralam. Complainant (Rep. by Adv.E.P.Hamzakutty) 1.Asst,Engineer, Electric Section, KSEB, Mayyil. 2.Deputy Chief Engineer, Vydhyuthi Bhavan, KSEB, Kannur. 3.Chief Engineer, Vydhyuthi Bhavan, KSEB,Thiruvananthapuram. Opposite parties (Rep. by Adv.T.Sarala for Ops1 to 3) O R D E R Sri.K.Gopalan, President This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite parties that the bill issued by opposite party on 4.1.2010 for `57,978 are not legally existing one, hence to declare that complainant is not liable to pay such amount. The case of the complainant in brief is as follows: Complainant has been running his industry with the power supplied by the opposite party-KSEB. He is regularly paying the electricity charges as and when it becomes due. Anti Power Theft Squad inspected the premises of the consumer No.3516 on 29.3.03. But nothing was revealed and stated to install one more capacitor. It was also directed to pay `2700 before the authorities as fine. Complainant paid the amount. On receiving the notice to rectify the defect of the capacitor within 7 days, rectification was done by the complainant. Electricity charges then continued to be paid on the basis of meter reading. Meter reading was taken by the employees of opposite party. Complainant received the notice on 6.1.2010 directing to pay `57978. As per the bill complainant has to pay 1. `29103 for a period from 2002 October to 2003 March 2.`27795 for a period from 2003 April to 2004 January 3.`1080 for a period from 2007 December to 2009 November The total amount comes to `57978, it has been directed to pay the amount before 28.1.2010 failing which power will be disconnected. But from 2004 February 2007 November no amount was found tobe remitted. Thus complainant had already remitted the amount liable to be paid immediately after the inspection. If the amount for the period of 2002 October to 2004 January is to be paid that is barred by limitation. If they are entitled for such an amount it has to be directed to remit within 3 years . Now this complainant is asked to remit the amount after 7 years. The regular power consumers’ bill issued has been regularly paid by the complainant. The opposite party is not entitled for the alleged notice amount. Hence this complaint to restrain the opposite party from disconnecting the power connection. Pursuant to the notice opposite parties entered appearance and filed version denying the main allegation of the complainant with the following contentions. The complaint is not maintainable either by law or on facts. He is a consumer being consumer No.3516, Mayyil. On 29.3.2003 Anti Power theft Squad inspected the premises of consumer No.3516. It was found that unauthorized load of 5 KW and also detected that one phase of the power meter was not properly recording consumption and the capacitors connected for the premises also had not been functioning properly. As per the report of a penal bill for `2700 was issued on 5.4.2003 for unauthorized load. On 7.4.03 notice as issued to rectify the defects of the capacitors within 7 days. Capacitors were replaced only on 19.1.04. The defective meter was changed on 11.4.2003 penal bill was issued only for unauthorized load Regional Audit Officers Audit report was received on 13.11.09. On the basis of this report a bill was issued for `57978 with a notice that the connection will be disconnected if he fails to remit the amount. There is no deficiency in service on the part of opposite parties. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complainant is entitled for the relief as prayed in the complaint? 3. Relief and cost. The evidence consists of oral evidence of PW1, and Exts. A1 and A2. Opposite parties have either oral evidence or documentary evidence. Issue Nos.1 to 3 Admittedly complainant is a consumer of opposite party bearing No.3516 Anti Power Theft Squad inspected the premises of 3516 and found unauthorized load and that one phase of power meter was not working properly. A penal bill for `2700 was issued for unauthorized load on 5.4.2003 based on the report. Order also issued to rectify the defects of the capacitor within 7 days. It was replaced on 19.1.04 and defective meter changed on 11.4.03. Complainant’s case is that he has paid above penal bill and rectified the defect of the capacitor without delay. But later on 6.1.10 he received a notice to pay `57978 with direction to pay the amount before 28.1.10. He alleges that there was no offence detected during the 7 years on the site of the complainant. No meter defect also reported. Complainant alleges that this bill is issued without any basis complainant is not liable to pay this amount. The bill is issued after 7 years and section 56 of electricity Act 2003 is applicable to opposite party in this file. Complainant adduced evidence by way of affidavit evidence in tune with his pleadings. He further stated that he has been paying the electricity charges regularly. He further states that Anti Power Theft Squad inspected on 29.3.03. But nothing revealed from the premises and stated one more capacitors should be installed and directed to pay a fine of `2700. It is also stated that the amount was paid and capacitor was replaced. Opposite party stated in their version that ‘as per the report a penal bill for `2700 was issued in favour of the consumer on 5.4.2003 for unauthorized load’. Opposite party admitted that the consumer has paid the same. Complainant adduced evidence that he has been paying electrical charges, thereafter on the basis of meter reading which was done by employees of the opposite party. Opposite party has no case against complainant that he has done any wrong there after. It is pertinent to note that the opposite party has no case that the complainant did not pay the meter charges at any time from 2002 to 2009. Hence it can very well assume that consumption charges of these periods have been paid regularly. It is also a notable point that opposite party has stated in their version that the bill issued on 5.4.03 for `2700 goes on the basis of the report of the Anti Power theft Squad. Opposite party issued another bill on 4.1.2010 for 57978 on the basis of the same report after 7 years. According to opposite party this amount was due before 5.4.03 itself. Opposite party adduce any evidence neither oral nor documentary so as to prove their contentions. Report of Anti Power Theft Squad is not produced. Audit report also not produced. Opposite party did not produce these documents which are safely in the custody of opposite party is purposefully so as to hide the real facts from the Forum. Any how it is clearl that the alleged amount of due arose out of the report of Anti Power theft Squad following the inspection 29.3.2003. 1st bill issued to complainant paid in time. The 2nd bill is seen issued by opposite party after 7 years. 1st bill issued after examination of the report. What is the reason for excluding the amount shown in the 2nd bill at the time of issuing 1st bill itself? The version contain the non explanation for the same which reveals the irresponsible attitude of the opposite party, the amount alleged to be due is not an amount of default of regular bill. Opposite party has no case that he has not paid the regular bill. Under such situation the question arose whether or not section 56 is applicable to this amount. In other words whether the bill issued by the opposite parties are barred by limitation Act. Opposite party depends upon the decision in Southern India Marine Products Co. Vs. KSEB, 1995(2) KLT 167. How far the facts of this case applicable to the case in hand is a question that has to be taken into account while considering the principle. It is true that the charge of consumption and its arrears does not protect provisions of limitation Act. But this is a case where under the consumption of electricity have been correctly assessed and bill issued to pay the charges for what the complainant had been consumed and complainant paid all those bills during the entire period without fail. Opposite party has no case that any such payment or bill issued for the consumption of electricity has not been paid by the complainant. So also opposite party has no case that any one of the bills for the consumption of electricity has not been correctly assessed and bill issued to pay the charges. Hence the facts of the above cited case is not applicable to the case in hand. Applicability of section 56(1) & (2) of Electricity Act has not been considered in the above said case where as that is the main point deserves for consideration in the case in hand. Section 56 of the Electricity Act 2003 reads thus: (1)Where any person neglects to pay any charge for electricity or any sum other than a charge for electricity due from him to a licensee or the generating company in respect of supply, transmission or distribution or wheeling of electricity to him, the licensee or the generating company may, after giving not less than fifteen clear days, notice in writing, to such person and without prejudice to his rights to recover such charge or other sum by suit, cut off the supply of electricity and for that purpose cut or disconnect any electric supply line or other works being the property of such licensee or the generating company through which electricity may have been supplied, transmitted, distribute or wheeled and may discontinue the supply until such charge or other sum, together with any expense incurred by him in cutting off and reconnecting the supply, are paid, but no longer: Provided that the supply of electricity shall not be cut off if such person deposits, under protest,- (a) an amount equal to the sum claimed from him, or (b) The electricity charges due from him for each moth calculated on the basis of average charge for electricity paid by him during the preceding six months, Which ever is less, pending disposal of any dispute between him and the licensee. (2) Notwithstanding anything contained in any other law for the time being in force, no sum due from any consumer under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut of the supply of the electricity”. It can be seen that penal bill issued on the basis of the report after the inspection of the squad has been paid by the complainant. It is in connection with the same incident that the opposite party issued a bill for an amount of `57978 after 7 years on 4.1.2010. Payment of regular electricity charge no way connected with this bill. This bill is issued after 7 years of the incident. Incident being not proved as continuous liability it can be safely hold that section 56 of Electricity Act 2003 is applicable in this case. The opposite party is not entitled to charge this amount from the complainant in the light of the above section 56. Ext.A1 would make it abundantly clear the nature of amount due. It is stated thus “Xm¦-fpsS ]-\-¯n 29.3.2003 \v \S-¯nb F.-]n.-Sn.-Fkv ]cn-tim-[-\-sb-¯p-S#182;v Xm¦#161;v \ÂtI-n-bn-cp¶ 6 amks¯ ]o\ _nÃpT {]h#175;\ cln-X-amb I¸m-kn-am--¶-Xp-hsc A[n-I-ambn hmt§-n-bn-cp¶ XpI-bv¡p-ff _nÃpT \ÂIn-bn-«p-m-bn-cp-¶-söv doPn-b-W HmUn Hm^o-k-dpsS 10/2009 se ]cn-tim-[-\-bnÂI-s-¯p-I-bp-m-bn. HmUn dnt¸m#171;v {]Im-c-ap-ff Ipdªv t]mb-Xp-I-¡p-ff _nÃv CtXm-sSm-¸T \ÂIp-¶p. {]kvXpX _nÃv _n XpI AS-bvt¡ Ah-km\ Xob-Xnt¡m AXn\p ap³t]m Cu B^o-kn AS-bvt¡--Xm-Wv. AÃm¯ ]£T as-c-dn-bn-¸n-ÃmsX Xm¦-fpsS ]-\-¯n-te-¡p-ff sshZ-yp-Xn-_- hnt¨-Zn-¡p-¶-Xm-bn-cn-¡pT”. The specific reason in penalizing the complainant is quite clear from Ext.A1 that it is as a result of the inspection on 29.3.2003. The amount payable by the complainant is 6 months penal bill and the amount of disfunctioned capacitors supposes to collect more till its replacement. This is not a continuous liability if it is an amount of regular current charge there is no doubt the liability is continuous. The inspection of audit committee and its resultant report does not change the nature of the amount due. If it is contended that the amount is that of continuous liability opposite party has the burden to prove that the same due has been shown continuously as recoverable as arrears of charges for electricity supplied without which the clutches of section 56 of the electricity Act 2003 cannot be discarded. In the light of the above discussion we are of the opinion that the disputed amount shall not be recoverable since it is attracted by section 56 of Electricity Act 2003. Hence the opposite parties have no right to cut of the supply of the electricity on the reason of non payment of this disputed mount. The issuance of such a bill after 7 years can only be considered as a deficiency in service leaving the question what prevented opposite party from recovering the amount within the period of 2 years. Thus issues 1 to 3 are answered in favour of the complainant. In the result, the complaint is allowed directing the opposite parties to cancel and withdraw the bill dt.4.1.2010 issued to complaint for the amount of `57978, since it is not recoverable under section 56 of Electricity Act 2003 within one month from the date of receipt of this order. There is no order as to costs. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1. Letter dt.4.1.10 issued by OP A2.Detailed calculation statement of the Audit issued by OP Exhibits for the opposite party: Witness examined for the complainant PW1.Complainant Witness examined for the opposite party: NIl /forwarded by order/ Senior Superintendent Consumer Dispute Redressal Forum, Kannur. | 
