KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM FA 635/09 JUDGMENT DATED 24.2.2010 PRESENT SMT.VALSALA SARANGADHARAN -- MEMBER SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER 1. Assistant Engineer, KSEB, Electrical Section, Meppadi.P.O, Wayanad. 2. Secretary, KSEB, -- APPELLANTS Vydhuthi Bhavan, Thiruvananthapuram. (By Adv.S.Balachandran) Vs. Dr.Sreekumar, Harivihar -- RESPONDENT Bilathikulam, Kozhikode. (By Adv.A.Abdulla Sait) JUDGMENT SRI.M.V.VISWANATHAN,JUDICIAL MEMBER The appellants were the opposite parties and the respondent was the complainant in CC.151/08 on the file of CDRF, Wayanad, Kalpetta. The complaint therein was filed by the respondent herein alleging deficiency in service on the part of the appellants/opposite parties in issuing A1 bill dated 11.11.08 demanding a sum of Rs.9306/-. The opposite parties entered appearance before the forum below and filed written version denying the alleged deficiency in service. They contended that the complainant is not a consumer of the connection with Consumer No.5348 and he has no locus standi to file the complaint against the opposite party. It was further contended that the unauthorized use of electricity was detected by the surprise inspection conducted by the first opposite party and thereby the A1 penal bill was issued. The opposite parties have also contended that the complainant is not a consumer and he is not entitled to get any relief in the matter. 2. Before the forum below PWs 1 and 2 and Exts.A1 to A8 documents were marked on the side of the complainant. OPW1, the Asst. Engineer, Electrical Section, Meppady was examined and B1 to B3 documents were also marked on the side of the opposite parties. An Advocate Commissioner was deputed to conduct local inspection. The report filed by the advocate commission has been marked as C1. On an appreciation of the evidence on record, the forum below accepted the contention of the opposite parties that there was unauthorized use of electricity; but the forum below found the opposite parties as deficient in rendering service in issuing A1 bill for unauthorized use of electricity for a period of 6 months. Thereby, the forum below modified the A1 bill directing the opposite parties to issue a fresh bill for the unauthorized use of electricity for a period of 3 months immediately preceding the date of inspection and to charge the unauthorized use at the rate of 1 ½ times the tariff applicable in the relevant category. Thereby the complaint in CC.151/08 was allowed partly. Aggrieved by the impugned order dated 27th August 2009 passed by CDRF, Wayanad, Kalpetta in CC.151/08 the present appeal is filed by the opposite parties therein. 3. We heard both sides. The learned counsel for the appellants/opposite parties submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on Section 126 (5) and (6) of the Electricity Act, 2003 and challenged the modification made by the forum below with respect to the A1 bill dated 11.11.08. He vehemently submitted that there was no deficiency in service on the part of the appellants/opposite parties and that the complaint in CC.151/08 ought to have been dismissed by the forum below. Thus, the appellants requested for setting aside the impugned order passed by the forum below. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the forum below. He further submitted that there was no unauthorized use of electricity and that the issuance of A1 bill itself was an act of deficiency in service. Thus, the respondent requested for dismissal of the present appeal. 4. There is no dispute that the first appellant is the first opposite party who conducted a surprise inspection of the premises of the Consumer No.5348. There is dispute regarding date of the surprise inspection. According to the appellants/opposite parties, the surprise inspection was conducted by the first opposite party, the Asst. Engineer of Electrical Section, Meppady on 23.10.08. On the other hand, the complainant would contend that the inspection was conducted by the first opposite party during November 2008. It is to be noted that no date is mentioned in the complaint filed by the complainant about the date of inspection. It is only vaguely stated that the first opposite party conducted the surprise inspection during the month of November 2008. The first opposite party himself has deposed before the forum below as OPW1 about the surprise inspection conducted by him on 23.10.08. He has also deposed about the preparation of B1 mahazer on the very same date. The evidence of OPW1, and Ext.B1 mahazer would strengthen the case of the appellants/opposite parties. The forum below has rightly accepted the evidence of OPW1 and B1 mahazer regarding the surprise inspection conducted on 23.10.08. It is to be noted that the respondent/complainant has not filed any appeal from the said finding and conclusion arrived at by the forum below. 5. The appellants/opposite parties have also got a case that the complainant is not a consumer and he has no locus standi to file the complaint in CC.151/08. Admittedly, the dispute is with respect to the issuance of A1 bill to the consumer with consumer No.5348. It is to be noted that the complainant Dr. Sreekumar is not the consumer of the electricity connection with consumer No.5348. The aforesaid connection with consumer No.5348 stands in the name of Varghese.K, Kalathingal House, Rippon, Meppady. There is nothing on record to show as to how the complaint herein namely Dr.Sreekumar got the right, interest or possession over the premises where the electricity connection with consumer No.5348 is existing. No evidence has been adduced from the side of the complainant to show that he is the consumer or that he is the beneficiary under the aforesaid consumer Mr.Varghese.K. It is also to be noted that the complainant has not been examined in this case only his agent has been examined as PW1. PW1 has also not stated anything about the right of the complainant Dr.Sreekumar with respect to the consumer No.5348. It is for the complainant to allege and prove that he is the consumer or he is the beneficiary under the consumer with consumer No.5348. It is also not stated in the complaint as to how the complainant got the right over the premises where consumer No.5348 is existing. In the complaint it is stated that the complainant is the consumer. It is further stated that the house and the property having the consumer No.5348 is being managed by Saju.P.K. who has been examined as PW1. PW1 is the agent of the complainant Dr.Sreekumar. But, nowhere it is stated as to how Dr.Sreekumar got the right over the said premises where the consumer No.5348 is located. The mere fact that the complainant is paying the electricity charges cannot be taken as a ground to hold that he is the consumer or he is the beneficiary under the consumer. More over, there is nothing on record to show that the complainant is remitting the electricity charges. On the other hand, the electricity bills and the receipts would show that Varghese K., Kalathingal House, Rippon, Meppady is the consumer and the electricity charges are being paid by the said consumer. Thus, in all respects, the respondent/complainant has no locus standi to file the complaint in CC.151/08. The forum below has not properly considered the relevant contention raised by the opposite parties regarding the locus standi of the complainant to prefer the complaint in CC 151/08. The forum below considered the said points regarding the locus standi of the complainant based on the general principle that the complainant is to be treated as a beneficiary under the consumer. But, there is no evidence to support the aforesaid finding and conclusion. Hence, this Commission is of the view that the respondent/complainant is not the consumer and he has not established the allegation that he is the consumer of the consumer No.5348. There is also nothing to show that the respondent/complainant is the beneficiary of the service rendered by the opposite parties. Thus, in all respects, the complaint in CC.151/08 is liable to be dismissed as not maintainable and that the complainant has no locus standi to file the said complaint. 6. The forum below modified the A1 bill dated 11.11.08. It is to be noted that A1 bill was issued based on the assessment made by the assessing officer for the unauthorized use of electricity. It is established by the evidence of OPW1 and Ext.B1 mahazer that the consumer with consumer no.5348 has used the electricity supplied under domestic tariff for other purposes. Thus, there was an unauthorized use of electricity by the consumer with consumer No.5348. So, the assessment of the electricity charges can only be treated as one under Section 126 of the Electricity Act, 2003. Section 126 (5) and (6) of the Electricity Act, 2003 reads as follows:- Section 126 (5):- If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place and if that period cannot be ascertained, such period shall be limited to a period of twelve months immediately preceding the date of inspection (6) The assessment under the section shall be made at a rate equal to (twice) the tariff applicable for the relevant category of services specified in sub section (5) Explanation:- For the purposes of this section:- (a) “assessing officer” means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government; (b) “unauthorized use of electricity” means the usage of electricity-- (i) by any artificial means; or (ii) by a means not authorized by the concerned person or authority or licensee; or (iii) through a tampered meter; or (iv) for the purpose other than for which the usage of electricity was authorized; or (v) for the premises or areas other than those for which the supply of electricity was authorized. 7. It is also to be noted that sub section (5) and sub section (6) of Section 126 of the Electricity Act, 2003 have been amended by Act 26 of 2007 w.e.f.15/6/07. So, at the relevant time the amended sub section (5) and (6) of Section 126 of the electricity Act 2003 were in force. The forum below directed the opposite parties to limit the un authorized use for a period of 3 months by relying on the sub section (5) of Section 126. But after the said amendment the said period has been enhanced to 12 months. So, the forum below cannot be justified in amending A1 additional bill dated 11.11.08. The aforesaid finding of the forum below is liable to be set aside. Hence we do so. 8. The forgoing discussions and findings thereon would make it clear that complaint in CC.151/08 ought to have been dismissed by the forum below. So, the impugned order dated 27.8.09 is set aside. In the result, the appeal is allowed. The impugned order dated 27.8.09 passed by CDRF, Wayanad, Kalpettain in CC.No.151/08 is quashed. The complaint in CC.No.151/08 on the file of CDRF, Wayanad, Kalpetta is dismissed. The parties are directed to suffer their respective costs though out. M.V.VISWANATHAN -- JUDICIAL MEMBER s/L VALSALA SARANGADHARAN -- MEMBER | 
