CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM.
Present
Sri. Santhosh Kesavanath P. President
Sri. K.N. Radhakrishnan, Member
CC No.105/09
Friday the 21st day of October, 2011
Petitioner : Dr.T.M.Abdul Samad,
Managing Partner,
Susrusha Hospital,
Varisserry, Kottayam.
(Adv.S.Renjit)
Vs.
Opposite party : 1) K.S.E.B.,Aymanam Electrical
Section, Aymanam Rep.by its
Asst.Engineer.
2) The Secretary,
K.S.E.B., Vydyuthi Bhavan,
Pattom PO, Thiruvananthapuram.
ORDER
Sri. Santhosh Kesavanath P. President
Case of the petitioner, filed on 02/04/09, is as follows:-
Petitioner is a consumer of the opposite party. Petitioner is conducting an Allopathy Hospital, as self-employment, in Varissery Kottayam. On 21/2/08 sub engineer of the opposite party inspected the hospital premise. On inspection, a mahazar was prepared. As per the mahazar, it is assessed that petitioner’s hospital is having a connected load of 2620 watts. The permissible registered load of the hospital is shown as 14 KW. On the basis of the inspection a provisional assessment was made and a bill was issued on 23/2/08 directing petitioner to pay an amount of Rs.17,160/-. The amount of penalty was paid by the petitioner in three installments. Later the unauthorized additional load was regularized. On 24/3/09, 1st opposite party issued a bill for Rs.1,59,965/- stating that it is penalization for the unauthorized additional load of the 13 KW from February 2007 till June 2008 and short assessment from December 2005 till June 2006 as Rs.1,47,688/-. According to the petitioner mode of penalization amounts to double penalization because the very same penalty for the unauthorized consumption is already accepted and paid by the petitioner on the basis of bill dated 23/2/08. According to the petitioner act of the opposite party amounts to deficiency in service. So, he prays for direction to the opposite party to stop unfair trade practice and to set aside the bill dated 24/3/09. Petitioner claims costs and compensation.
Opposite party filed version contenting that petition is not maintainable. According to the opposite party since the electric connection is availed for commercial activities petition is not maintainable before the Forum. On 21/2/08 inspection team of KSEB inspected the premises of the petitioner, connected load was verified, and it was found that there was unauthorized connected load of 13 KW. A provisional invoice amounting to Rs.17,460/- was issued considering the fixed charge of the additional load connected to the system. Petitioner has to pay fixed charge for unauthorized additional load for the whole period but the opposite party prepared the bill for one year as per rule. The inspection squad inspected the premises on 21/2/082 and on the basis of site mahazar consumer was billed for Rs.17,160/-. After remitting the bill amount petitioner applied for regularization of the load and the load was regularized with effect from 23/6/08. The RAO during their inspection noted that bill issued to the petitioner is not as per rules. According to RAO penalization of proportionate current charge has also to be collected from the consumer. Further more as per Sub Section (5) and (6) of Section 126 of Electricity Act unauthorized use of energy can be penalized at a rate equal to twice the tariff applicable for 12 months proceeding the date of inspection. Therefore RAO audit team directed to issue bill accordingly. The RAO team further observed that from 12/2005 to 6/2006 the consumption recorded in the meter was not correct, since the consumption recorded after changing the meter was high. Short assessment bill for Rs.59,177/- was issued. According to the opposite party there is no deficiency in service on their part and they pray for dismissal of the petition with their costs.
Points for determinations are:
i) Whether there is any deficiency in service on the part of opposite party?
ii) Reliefs and costs?
Evidence in this case consists of affidavit filed by both parties Ext.A1 to A3 documents on the side of the petitioner and Ext.B1 to B4 documents on the side of the opposite party.
Point No.1
Petitioner challenges the bill issued by the opposite party on 24/3/09 for an amount of Rs.1,59,965/-. Petitioner produce disputed bill the same is marked as Ext.A1. Ext.A2 is the covering letter dated 24/3/09. In Ext.A2 opposite party stated the details of the bill amount. According to the opposite party the meter installed at the petitioner’s premises was not recording the correct consumption from 12/2005 to 6/2006. As short assessment opposite party calculated Rs.59,177/-, being the average consumption during the meter faulty period. According to the opposite party as per the inspection conducted on 21/2/08 opposite party detected unauthorized additional load of 13 KW. On detection of the UAL opposite party issued a bill for Rs.17,460/- for the fixed energy portion. Subsequently as per the direction of the Regional Audit Officer the penal bill for Rs.100788/- is included in the Ext.A2 bill. Counsel for the petitioner vehemently argued that the assessment made in Ext.A2 bill is not legal and proper on following grounds.
1) Issuance of the Ext.A2 bill amounts to double jeopardy and opposite party cannot collect proportionate energy charge for the unauthorized additional load in addition to the fixed charge.
2) Opposite party has not assessed the penalty for that part of energy which is assumed to be consumed by the petitioner.
3) Opposite party has not declared the meter of the petitioner as faulty. So no short assessment bill can be issued to the petitioner
The first contention raised by the petitioner in our view is not sustainable because the principle of double jeopardy is only applicable in case of penal provision and criminal offences. Here the bill is issued for the unauthorized additional load detected by the opposite party. Further more as per Section 126(5) and (6) of Electricity Act 2003 the assessing officer can issue bill. So the said argument will not sustain.
In (WPC 12068/09)Maria Palana Society Vs.KSEB Hon’ble High Court of Kerla upheld that as per sub Section(3) of Section 45 of the Electricity Act 2003 the charges for electricity supplied by distribution licensee may include(a) fixed charge in addition to the charge for actual electricity supplied. Since tariff included both fixed and variable charges. We are of the view that rate is applicable for both fixed and energy charges. The 2nd argument of the petitioner is that he is not penalized for that part of the energy which is consumed.
The 2nd argument put forth by the learned counsel for petitioner is that in case of unauthorised, additional load penalty can be imposed, only for that part of energy which is assumed to be consumed due to unauthorised additional load. We agree with the submission made by the counsel for the petitioner. In an order passed by the Electricity Regulatory commission on 19th January 2010 in Kerala State Small Industries Association Vs.KSEB. Regulatory Commission opined that for imposing the penalty on energy charges the total energy is apportioned in proportion to the additional load detected. Penalty is to be imposed for that part of energy which is assumed to be consumed.
It can be calculated by stating the difference between average monthly energy consumption for last 12 normal months before the additional unauthorized load is connected and the monthly energy consumption after the unauthorized load is connected, shall be used for charging the penalty.
The 3rd submission of the counsel for the petitioner is that without declaring the meter of the petitioner as faulty. Opposite party cannot issue a short assessment bill for Rs.59177/-. We also agree with the submission of the petitioner. Here opposite party has not placed any expert opinion with regard to the fault with the meter. Even though opposite party has specific case that the meter of the petitioner is not recording the actual consumption from 12/05 to 6/06. But nothing has placed on record to prove the same so short assessment bill for the faulty meter is not sustainable. In our view act of the opposite party in issuing Ext.A2 bill amounts to deficiency in service. So point No.1 is found accordingly.
Point No.2
In view of the findings in point No.1 petition is allowed.
In the result bill dated 24/3/09 is cancelled. Opposite party is ordered to issue a fresh bill, without an assessment for the faulty meter. While calculating the UAL alternative method discussed in point No.1 is to be applied for estimating the energy and the corresponding penalty to unauthorized portion. Considering the facts and circumstances of the case no costs and compensation is ordered. Amount if any remitted by the petitioner is to be adjusted in the fresh bill. Opposite party is not entitled for any interest or penal charges during the litigation period. Order shall be complied with within 30 days of receipt of copy of the order.
Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 21st day of October, 2011.
Sri. Santhosh Kesavanath P. President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
Documents of the petitioner
Ext.A1-Bill dated24/3/09 for Rs.159965/-
Ext.A2-Covering letter dtd 24/3/09
Ext.A3-Bill dtd 23-2-08 for Rs.17160
Documents of the opposite party
Ext.B1-Copy of BO(FM)No.368/08 dtd 7//2/08
Ext.B2-Copy of the site mahazar
Ext.B3-Copy of the meter reading register
By Order,
