BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

                                                                    Dated this the 21^st of October 2010

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT                 

                        SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.138/2010

(Admitted on 24.04.2010)

Sri.H.G.Sathish,

So. Gidde Gowda,

Aged about 36 years,

RA. Gundya, Puttur Taluk,

Dakshina Kannada.                           …….. COMPLAINANT

(Advocate for the Complainant: Sri. Sanjay D).

          VERSUS

Assistant Executive Engineer,

MESCOM,

Kadaba Sub Division,

Kadaba, Puttur Taluk,

Dakshina Kannada.                      ……. OPPOSITE PARTY

(Advocate for the Opposite Party: Sri. S.M. Bhat).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant submits that, he is a consumer of electricity power supplied by the Opposite Party as per meter No.UDY 8386 for his shop premises.  The average bill of the Complainant is between Rs.350/- to Rs.400/- per month.  The Complainant has been paying the bill as and when issued by the Opposite Party and there is no due whatsoever payable by the Complainant.

It is stated that, when the matter stood thus, the Opposite Party has issued a bill dated 27.07.2009 for Rs.8,525/- to the Complainant.  In the said bill, the Opposite Party has shown Rs.7,813/- as due.  The Complainant issued a registered notice to the Opposite Party and the same was served on the Opposite Party.  It is stated that, the bill amount shown in the bill dated 27.07.2009 is arbitrary and which amounts to deficiency in service. 

It is further submitted that, the Opposite Party has disconnected the power supply to the Complainant’s premises on 17.03.2010 without disconnection notice.  Since the Complainant required the power had paid half amount on 18.03.2010 to avoid the disconnection.  It is stated that, the action taken by the Opposite Party is not correct and hence the above complaint is filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to declare that the bill dated 27.07.2009 for Rs.7,813/- as null and void and to refund the amount paid and also claimed Rs.15,000/- as compensation and cost of the proceedings.

2.       Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version, admitted that the Complainant is the consumer of electricity power and holding meter No.UDY 8386. It is stated that, the Complainant obtained the electricity power for commercial purpose from the Opposite Party on 01.09.2006.  From 01.09.2006 the above said power connection was running under commercial purpose.  While issuing the bill till the date of 27.05.2009 the Opposite Party issued a bill under domestic tariff instead of commercial tariff.  This has been pointed out by the auditor while conducting internal auditing and thereafter the auditor directed to collect the bill as per the commercial tariff i.e., LT-3.  The Opposite Party after making adjustment the difference amount has been claimed by the Opposite Party by issuing a bill dated 27.07.2009.  Since the Complainant not paid the difference amount, the Opposite Party has taken steps to disconnect the power connection.  The Complainant sought installment to pay the bill amount and thereby the installment was given to the Complainant.  On 04.06.2010, the entire payment has been made by the Complainant and contended that there is no deficiency and prayed for dismissal of the complaint. 

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Party has committed deficiency in service?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

4.         In support of the complaint, Sri.H.G.Sathish (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Ex C1 to C9 were marked for the Complainant as listed in the annexure.   One Mrs.Rajani (RW1), working as Senior Assistant of the Opposite Party filed counter affidavit and answered the interrogatories served on her. Opposite Party produced two (2) documents as listed in the annexure. Both parties produced notes of arguments along with Distribution Code.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:         

                       Point No.(i): Affirmative.

                       Point No.(ii) & (iii): As per the final order.   

Reasons

5.  Point No. (i) to (iii):

          From the outset of the records available on file, we find that, the Complainant is the consumer of electricity power supplied by the Opposite Party as per meter No.UDY 8386 for his shop premises. 

Now the point in dispute between the parties are that, according to the Complainant the average bill is between Rs.350/- to Rs.400/- per month and the Complainant has paying the bill as and when issued by the Opposite Party and there is no due whatsoever payable by him.  When the matter stood thus, the Opposite Party has issued a bill dated 27.07.2009 for Rs.8,525/- to the Complainant is arbitrary and also without issuing notice disconnected the power supply.  On 17.03.2010 since he required the power the Complainant forced to pay the amount and contended that the service rendered by the Opposite Party amounts to deficiency. 

On the contrary, the Opposite Party contended that, the electricity connection availed by the Complainant is under commercial tariff i.e., LT-3 on 01.09.2006 but while issuing the bill he has been charged by considering under domestic tariff i.e., LT-2 till 27.05.2009.  This has been pointed out by the auditor while doing the internal auditing and hence the Opposite Party in order to claim the difference amount issued a bill for Rs.7,813/- which is correct.

However, the Complainant filed evidence by way of affidavit and produced Ex C1 to C9.  The Opposite Party also filed evidence by way of affidavit and produced two documents.

In the instant case, the outset of the complaint as well as the documents placed by the parties clearly reveals that, it is a dispute with regard to issuing of electricity bill and disconnection of electricity power supply without prior notice.  On scrutiny of the documents, the Ex C1 i.e., the bill dated 27.07.2009 for Rs.8,525/- issued by the Opposite Party in respect of RR No.UDY 8386 shows that, the Complainant is due of the above said amount to the Opposite Party.  The Ex C2 is the legal notice dated 16.10.2009 issued by the counsel for the Complainant calling upon the Opposite Party to give an explanation with regard to the amount claimed by the Opposite Party stating that there is no arrears of the electricity bill issued by the Opposite Party till date from the side of the Complainant.  The Ex C3 is the reply dated 23.10.2009 issued by the Opposite Party to the Complainant’s counsel calling upon the Complainant to collect the details from Kadaba Sub-Division of the Opposite Party.  The Ex C4 is one more legal notice dated 18.03.2010 issued by the Complainant counsel to the Opposite Party calling upon the Opposite Party to cancel the amount of Rs.7,813/- in bill dated 27.7.2009.  The Ex C5 is the postal acknowledgement, it shows that the notice was served on 19.3.2010 to the Opposite Party.  The Ex C6 is the receipt (reconnection memo) issued by the Opposite Party reveals that, on 17.03.2010 the reconnection of the power supply was done and the Opposite Party collected disconnection and reconnection charge of Rs.50/- could be seen on the receipt issued by them.  Further The Ex C7, C8 and C9 are the bills produced by the Complainant shows that the average electricity consumption was in between Rs.350/- to Rs.400/- per month.  On the other hand, the Opposite Party also produced two documents i.e., a letter dated 31.05.2009 and 02.07.2010 reveals that, while issuing the bill towards the meter No.UDY 8386 the Opposite Party considered the electricity consumption under domestic purpose (LT-2) instead of commercial tariff (LT-3).  The above said matter was pointed out by the auditor while auditing the same, with the direction of the auditor, the Opposite Party called upon to pay the short claim of Rs.8,204/- within 30 days from the date of the notice.  And further the letter dated 02.07.2010 produced by the Opposite Party shows that, the Complainant has failed to pay the amount within 30 days and hence they have called upon the Complainant to pay the amount or else the power is going to be disconnected.  No doubt, the above notices produced before this Forum clearly reveals that, the Opposite Party called upon the Complainant to pay the short claim amount but there is no document to show that those letters were duly served on the Complainant.  In the absence of the same, one cannot hold that the notices issued by the Opposite Party were served to the Complainant.

The Section 29.04 of the Code i.e., Supplemental claims defines as follows:

“For preferring the supplemental claims, the jurisdictional Sub divisional Engineer of the Licensee shall serve a provisional bill with 15 days’ notice to the Consumer to file his objections, if any, against the provisional back billing charges on account of prejudicial use of power or on account of faulty meter or short claims caused due to erroneous billing and obtain his reply.  After considering the objections of the Consumer the Sub divisional Engineer shall issue the final bill.  The Consumer shall be intimated to make the payment within 30 days of the date of intimation failing which the power supply to the installation shall be disconnected and such amount shall be deemed to be arrears of electricity charges.

The above provision is very clear that, the Opposite Party shall serve a provisional bill with 15 days notice to the consumer to file his objection if any against the provisional back billing charges on account of erroneous billing or any other fault and obtain his reply.  After considering the objections of the consumer, the Opposite Party shall issue the final bill and thereafter the consumer shall be intimated to make the payment within 30 days of the date of intimation, failing which the power supply to the installation shall be disconnected.  That means, the Opposite Party is governed by a special statute.  The law under the special statute contemplates certain procedure.  We do not understand as to what is the difficulty in the way of the Opposite Party to serve a notice on the consumer before claiming or disconnecting the electricity supply.  The Opposite Party ought to have served a provisional bill with 15 days notice to the consumer/Complainant herein to file his objections.  But in the instant case, the Opposite Party failed to issue a notice to the Complainant in other words, the Opposite Party has miserably failed to establish that they have served provisional bill with 15 days notice and called upon the Complainant to file his objections and after considering the objections of the Complainant, the Opposite Party issued the final bill and called upon to pay the amount within 30 days.  There is no proof produced before this Forum to show that the Opposite Party has followed the procedure contemplated under the special statute.   

In as much as, the notice is a pre-requisite for claiming supplemental claim as stated herein above.  But in the given case, the Opposite Party without following any procedure contemplated under Electricity Act 2003 drawn a supplemental bill and called upon the Complainant to pay the amount.  Further, we have noticed that, the Complainant with the apprehension of disconnection of the power supply paid the bill amount of Rs.4,255/- on 18.03.2010 in order to avoid the disconnection of the power supply.  The Opposite Party without complying the procedure issued a bill dated 27.07.2009 without there being any fault on the part of the Complainant, the Opposite Party cannot straight away issue the bill to the Complainant.

          From the evidence produced by the parties, it is proved beyond doubt that the Opposite Party is not just in issuing the supplemental bill.  And further, it is difficult to hold the legitimacy of the demand made by the Opposite Party.  The non-observance of minimum requirement of principles of natural justice or non-application of mind by the board in its proper perspective inclusive of its failure to inform the Complainant the mode or method adopted, the demand made in Ex C1 without complying with the principles laid under the Code must be held to be illegal and void.

          In view of the foregoing discussion, we are not satisfied that, there is valid basis for issue of Ex C1 because of denial of a reasonable opportunity of hearing to the Complainant in violation of principles laid under the statute.   For the reasons stated above, we hold that the bill raised by the Opposite Party for Rs.7,813/- is null and void and the Opposite Party is directed to refund the amount to the Complainant or else adjust the bill amount in future electricity bills and also pay Rs.1,000/- as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.                                                                                                   

6.       In the result, we pass the following:

ORDER

          The complaint is allowed.  The bill raised by the Opposite Party for Rs.7,813/- (Rupees seven thousand eight hundred and thirteen only) is null and void and the Opposite Party is directed to refund the said amount to the Complainant or else adjust the bill amount in future electricity bills and also pay Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party is hereby directed to pay interest at the rate of 10% p.a. on the total amount from the date of failure till the date of payment.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.

(Page No.1 to 11 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 21^st day of October 2010.)

         PRESIDENT                                                      MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Sri.H.G.Sathish – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 27.07.2009: Original bill issued by the Opposite Party.

Ex C2 – 16.10.2009: Copy of the notice issued to the Puttur Sub-Division of the Opposite Party.

Ex C3 – 23.10.2009: Reply of Puttur Sub-Division.

Ex C4 – 18.03.2010: Copy of the notice issued to the Opposite Party.

Ex C5 – 19.03.2010: Postal acknowledgement.

Ex C6 – 18.03.2010: Receipt/reconnection memo for Rs.4,255/-.

Ex C7 – 27.03.2009: Original bill and receipt for Rs.805/-.

Ex C8 – 27.06.2009: Original bill for Rs.912/-.

Ex C9 – 27.03.2010: Copy of the bill for Rs.4,707/-.

Witnesses examined on behalf of the Opposite Party:

RW1 – Mrs.Rajani, working as Senior Assistant of the Opposite Party.

Documents produced on behalf of the Opposite Party:   

Doc. No.1: 31.05.2010 – Demand notice issued by the Opposite Party to the Complainant.

Doc. No.2: 02.07.2010 – Disconnection notice issued by the Opposite Party to the Complainant.

Dated:21.10.2010                            PRESIDENT