O R D E R

                   3. On 16.12.09 complainant received a notice from opposite party stating that they inspected the site on 2.12.09 and found that he consumed an over load of 2000 watts and also connected another 2000 watts on a temporary basis.  It is stated that complainant has to pay a sum of ` 52,472 as per the assessment made in the provisional invoice.  On 01.01.2010 complainant received another notice stating that, the provisional invoice is treated as final bill and a hand written bill in a printed form for ` 52,472 was also received.  According to the complainant, the said notices and bill is having no bonafides and the same is devoid of factual basis.  Nobody came to the complainant’s premises on 2.12.09 or any other day for an inspection and made an assessment as stated in the notices.

                   4. The entire assessment shown in the said notice is not supported by any statutory stipulations.  The figures and calculations are false and is not properly assessed.  The mandatory provision of law is not complied in the said assessment.  The readings are not properly recorded.  The notice is silent about the nature of assessment.  The calculation of load mentioned in the notice is not correct.  The complainant never made any over consumption and never connected any additional load on temporary basis.  The table of calculation adopted is also against the stipulations of law and natural justice.  The complainant has not used any overload as stated in the notice.  There is no misuse of power (connected load) in the connection allotted to him.  Complainant is a law-abiding person and a practicing lawyer at Pathanamthitta.  He would not do any unlawful act as stated in the notice.  Complainant issued a lawyers notice to opposite party’s on 11.1.2010.  No opportunity provided to him by the opposite party before the impugned assessment.  So the impugned bill is illegal.  Hence this complaint for setting aside the impugned bill with cost and allied reliefs.

                   5. Opposite party entered appearance and filed version stating that complaint is not maintainable either in law or on facts.  According to them, as per Sec.127(2) of Electricity Act 2003, 50% of the disputed bill which is the essential amount has to be deposited for entertaining an appeal for an order under Sec.126 of the Act.  The complainant has not deposited any amount.  The attempt of the complainant is to evade such payment.  Hence complaint is liable to be dismissed in limine.  It was held in (2008 CPJ 837 CPN CRC) Jharkand Electricity Board and another V. Anwar Ali.  The Executive Engineer, KPTCL and others V/s. Isheramma AIR 2006 Karnataka page 23, the Consumer Fora have no jurisdiction to entertain complaints rising out of Sec.126 of Electricity Act 2003 by virtue of Sec.145 of the Act.  Hence this complaint is not maintainable before this Forum.

                   6. Opposite party admitted that complainant is a consumer with Consumer No.15795 with a sanctioned connected load of 1005 watts under domestic tariff (LT-I(a) tariff).  There are four other electric service connections in the commercial building owned by him under commercial tariff.  The complainant is challenging a final bill for ` 52,472 based on a surprise inspection conducted at his premises on 2.12.09 under 126(1) of Electricity Act 2003. Clause 28(1) of Electricity Supply Code 2005 and Clause (1) of KSEB terms and conditions of Supply 2005.  Complainant’s premises was inspected by a special squad headed by the Asst. Executive Engineer, Electrical Sub Division, Pathanamthitta on 2.12.09 and found that an unauthorised additional load of 2000 watts was connected up and another 2000 watts was connected up as temporary extension to another premises and also indulging in misuse of power.  The sanctioned load was only 1005 watts in domestic tariff.  The unauthorised load was 1849 watts in commercial tariff and unauthorised extension of load was 1745 watts.  A site mahazar was prepared at the spot, which was witnessed by Sri. Johnkutty. B, Works Manager, Bharath Motors, Pathanamthitta and a copy of the site mahazar was also served to him.  The assessment was done by the authorised person and as per the provision of Sec.126(1) of Electricity Act 2003.

                   7. A provisional invoice, detailed calculation statement and a notice were served to the complainant on 16.12.09 through Sri. Johnkutty. B., Works Manager, Bharath Motors, Pathanamthitta.  But complainant did not file any objections.  Hence a final bill was served to the complainant on 1.1.10 along with a notice and calculation statement.  This fact is also admitted by the complainant in his complaint.

                   8. Opposite party admitted that they got a lawyer’s notice on 11.1.00 from complainant.  The same was received only after the finalisation of provisional bill.  The calculation of penal assessment was done for a period of one year for the unauthorised load of 1849 watts and unauthorised extension of 746 watts to the motor and for a period of two months for the unauthorised extension of 1000 watts to the mobile tower construction purpose and workshop usage.  Therefore, complainant is liable to pay penal amount of ` 52,472 with up to date surcharge.  Hence they canvassed for the dismissal of the complaint, as they have not committed any deficiency of service or illegal act. 

                   9. From the above pleadings, following points are raised for consideration:

(1)   Whether the complaint is maintainable before the Forum?

(2)   Whether the reliefs sought for in the complaint are allowable?

(3)   Reliefs & Costs?

          10. Evidence of the complainant consists of the proof affidavit filed by the complainant along with certain documents.  He was examined as PW1 and the documents produced were marked as Ext.A1 to A6.

          11. Evidence of the opposite party consists of the oral evidence adduced by one Sub Engineer of opposite party as DW1.  The opposite party was examined as DW2.  The documents produced by them were marked as Exts.B1 to B6.  DWs.1 and 2 were not cross examined by the complainant.  After closure of evidence opposite party was heard.  Complainant was not heard due to his continuous absence. 

                      12. Point Nos. 1 to 3:  In order to prove the complainant’s case, complainant filed a proof affidavit along with certain documents. He was examined as PW1 and the documents produced were marked as Exts.A1 to A6.  Ext.A1 is the provisional penal bill for ` 52,472 dated 16.12.09 issued by opposite party.  Ext.A2 is the notice-dated 01.01.2010 issued by opposite party.  Ext.A3 is the copy of final bill for ` 52,472 dated 01.01.2010 issued by opposite party.  Ext.A4 is the copy of lawyers notice issued to opposite party dated 11.01.2010.  Ext.A5 is the postal receipt of Ext.A4.  Ext.A6 is the postal acknowledgment card of Ext.A4.

          13. In order to prove the opposite party’s contention, one Sub Engineer and opposite party were examined as DW1 and DW2 and the documents produced were marked as Exts.B1 to B6.  Ext.B1 is the certified copy of the site mahazar.  Ext.B2 is the copy of certificate of posting sent to complainant enclosing provisional bill copy, notice, calculation statement etc.  Ext.B2(a) is the copy of notice sent to the complainant.  Ext.B2(b) is the copy of provisional bill dated 16.12.09 sent to the complainant.  Ext.B2(c) is the copy of calculation statement sent to complainant.  Ext.B3 is the copy of certificate of posting sent to complainant enclosing final bill, notice etc.  Ext.B3(a) is the copy of notice sent to complainant.  Ext.B3(b) is the copy of final bill sent to complainant.  Ext.B4 is the copy of advocate notice sent to opposite party by complainant’s counsel.  Ext.B5 is the copy of application of Mobile Tower Company dated 25.1.10 for regularising the said connection of the complainant’s premises.  Ext.B5(a) is the copy of consent letter issued to mobile company by complainant attached to Ext.A5.  Ext.B5(b) is the ownership certificate of complainant attached to Ext.B5.  Ext.B5(c) is the possession certificate of complainant attached to Ext.B5.  Ext.B5(d) is the copy of  the sanction order for building construction issued by Pathanamthitta Municipality attached to Ext.B5.  Ext.B6 is the copy of consent to install generator in connection with mobile tower issued by District Electrical Inspectorate.

          14. On the basis of the contention and averment of the parties, we have perused the entire materials on record.  Complainant’s case is that opposite party issued a bill for ` 52,472 alleging unauthorised additional load.  According to complainant, the assessment and calculations are not properly done by opposite party.  Nobody came to complainant’s premises and prepared any site mahazar.  Complainant has not used any additional load.  Opposite party’s contention is that their special squad detected unauthorised load of 1849 watts and unauthorised extension of load of 1745 watts.  A site mahazar also prepared for the same.  Complainant’s sanctioned load was only 1005 watts.  Opposite party acted as per rules of electricity and proper notice were also served.  Therefore, complainant is liable to pay penal amount of ` 52,472.

          15. On a perusal of Ext.B1, it is seen that opposite party prepared a site mahazar of the complainant’s premises.  Ext.B2 shows that opposite party sent copies of bill, notice, calculation statement etc. to complainant.  Ext.B3 shows that opposite party sent notice and final bill to complainant.  Ext.B5 shows that mobile company applied for regularising the unauthorised connection detected by special squad.  Ext.B5(a) to B5(d) shows that the mobile company applied for regularising their connection with the consent of the complainant.  Ext.B6 shows that District Electrical Inspectorate has given consent to mobile company to install generator in connection with the functioning of mobile tower.

          16. It is seen that complainant received provisional bill of ` 52,472 on 16.12.09.  Ext.A2 shows that he got final bill on 1.1.10.  But evidence on record does not reveal that complainant has lodged any objection against the provisional bill.  Instead of filing objection, complainant sent Ext.A4 to opposite party after receiving Ext.A3 final bill. 

                   17. As per Ext.B1, it is evident that complainant has used unauthorised load and unauthorised extension.  Ext.B5 to B5(d) shows that mobile company on behalf of the complainant applied for regularising the connection.  Ext.B6 shows that consent has given by Electrical Inspectorate for functioning the generator of mobile company.  Therefore, after the issuance of Ext.A3 final bill complainant admitted the unauthorised extension and unauthorised connected load.  Complainant has not challenged Ext.B1.  He has failed either to prove his own case or to disprove the opposite party’s contention.  Therefore, even though complaint is maintainable, it lacks any bonafides.  Hence in the absence of better evidence, complaint is not allowable.

                   18. On the basis of the above finding, the amount of ` 17,500 deposited in this Forum by the complainant as per the order in IA.36/10 can be treated as part payment of the impugned bill (Ext.A1) which can be withdraw by the opposite party.

                   19. In the result, complaint is dismissed with the above direction.  No cost.

                   Declared in the Open Forum on this the 16^th day of June, 2011.

                                                                                                        (Sd/-)

                                                                                                N. Premkumar,

                                                                                                     (Member) 

Sri. Jacob Stephen (President)            :         (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :         D. Ashoka Kumar.

Exhibits marked on the side of the complainant:

A1     :         Provisional penal bill of ` 52,472 dated 16.12.2009 issued by

                    opposite party to the complainant.

A2     :         Notice dated 01.01.2010 issued by opposite party to the complainant.

A3     :         Copy of final bill dated 01.01.2010 for ` 52,472  issued by opposite

                     party to the complainant.

A4     :         Copy of Lawyer’s Notice issued to opposite party dated 11.01.2010.  A5     :         Postal receipt of Ext.A4.

A6     :         Acknowledgment card of Ext.A4.

Witness examined on the side of the opposite party:

DW1  :         Raju. S.

DW2  :         Jose George.

Exhibits marked on the side of the opposite party:

B1     :         Photocopy site mahazar prepared by S. Rajeev, Sub Engineer,

                    Electrical Section Office, Kumbazha.

B2     :         Copy of certificate of posting sent to complainant by the opposite

                     party.

B2(a) :         Copy of notice dated 16.12.2009 sent to the complainant by the

                     opposite party.

 B2(b):         Photocopy of the provisional penal bill dated 16.12.2009 issued to the

                     complainant.

B2(c) :         Copy of calculation statement sent to complainant.

B3     :         Copy of certificate of posting sent to complainant.

B3(a) :         Photocopy of notice dated 01.01.2010 sent to complainant. 

B3(b) :         Photocopy of final bill dated 01.01.2010 for ` 52,472 sent to

                     complainant. 

B4     :         Photocopy of advocate notice dated 11.01.2010 issued to opposite

                      party by complainant’s counsel.

B5     :         Copy of application of Mobile Tower Company dated 25.01.2010. 

B5(a) :         Photocopy of consent letter issued to mobile company by

                     complainant.

 B5(b):         Photocopy  of the Ownership certificate dated 14.10.2009 issued by

                     the Municipal Secretary, Municipal Office, Pathanamthitta.

B5(c) :         Photocopy of the possession certificate dated 30.09.2009 issued by the

                    Village Officer, Pathanamthitta.

B5(d) :         Photocopy of  the sanction order dated 03.11.2009 for building

                      construction issued by Pathanamthitta Municipality.

B6     :         Photocopy of  the proceedings dated 20.03.2010 issued by the

                     Electrical Inspector, District Electrical Inspectorate, Pathanamthitta.

                                                                                      (By Order)

                                                                          Senior Superintendent.

Copy to:- (1) D. Asokakumar, Kodiyattu Madom, Thazhevettippuram,

                      Mylapra.P.O., Pathanamthitta.

      (2) The Asst.Engineer, Electrical Section, Kumbazha, Pathanamthitta.

     (3)  The Stock File.