DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Present: 1.Sri Raghunath Kar, President
2.Sri Basanta Kr.Mallick, Member
3. Mrs.AfsaraBegum,Member
Dated the 18th day of August , 2018
C.D.Case No. 78 of 2013
Sri Yashowanta Narayan Dixit
S/O Late Gadadhar Dixit
Prop- Dixit Oil Industries
At- Charampa, Po/Ps/District- Bhadrak ………….. Complainant
(Versus)
Executive Engineer,
Bhadrak Electrical Division, Bhadrak (North)
At- Power House , Bypass, Bhadrak
Po/Ps/District- Bhadrak …………………………………Opp.Party.
For the Complainant : In person.
For the Opp.Party : Smt. Gayatri Pradhan (D.M. Legal)
Date of hearing : 25.05.2018
Date of order : 18.08.2018
SRI RAGHUNATH KAR, PRESIDENT:
This dispute arises out of the complaint filed by the complainant alleging deficiency in service against the O.P.
The back ground facts disclosed in the complaint are to the effect that the complainant is a consumer under B.N.E.D , Bhadrak bearing consumer No. BC-2357 (MI) for his Oil Industries in the Name & Style as M/S DIXIT OIL INDUSTRIES. As per terms of the agreement on 09.05.1989 & 07.05.2005 executed between O.P and the Complainant, O.P is supposed to supply electricity for the use of the complainant and since then complainant was using energy supplied by OSEB & NESCO respectively. In the month of April 2013 the complainant had received a bill Vide No. 414 for the month of March-2013 showing an amount of Rs.18500/- as payable towards fixed demand charges. The demand is against the norms of the agreement and also violating the provisions of OERC Tariff Notification dated 23.03.2012. During the financial year 2012-2013 the complainant had to pay only Rs.500/- as per the condition of the agreement vide Bill dtd.11.05.2012. As such Complainant approached the O.P regarding violation of the agreement and conditions of OERC Tariff Notifications dtd. 23.03.2012 and paid the energy Bill for the month of march 2013 deducting the illegal charges imposed but the O.P did not receive the same. Complainant also received a bill No. 384 for the month of April 2013 and Bill No.385 for May 2013 showing excess fixed demand charges. These bills were also prepared violating the norms of the agreement and OERC tariff Notification . Complainant wrote several letters about illegal energy bill but instead of considering the grievances of the complainant ,the O.P arbitrarily issued disconnection notice to complainant on 18.06.2013. The complainant has therefore prayed for directions to the O.P for declaration the disconnection notice dated 13.06.2013 and the bills for the month of March, April & may 2013 are illegal and prays for direction against O.P to Pay Rs. 1,50,000/- towards compensation, harassment, mental agony etc..
O.P resisted the complaint and contested the claim in filing written version that the complainant/ consumer Sri Yashowanta Narayan Dixit is the proprietor of the unit of M/S Dixit Oil Industries . According to agreement executed on dtd.07.05.2005 he has been availing power supply with CD-67 KW in 110 KVA system towards his medium industry as a commercial consumer of NESCO Utility vide consumer no.BC-23537(MI). The main purpose of the complainant is to process for the extracting mustard oil and to sell it in market and to earn profit out of it. To maintain this commercial activity the complainant have been registered as large tax payer industry under the office of the Commercial taxes Odisha,under Balasore zone vide TIN NO- 21791500057. As per sec.2(d) of Consumer Protection Act-1986 the complainant is not a consumer and as such the case filed by the complainant is not maintainable before Hon’ble Forum. As the complainant has admitted in the complaint, a good number of employees are engaged to run the industry and by means of such engagement the workers of the industry are earning their lively hood .Hence this is purely a business/commercial unit set up/ installed to provide job to the job seekers with a motto to earn profit. Therefore the minimum monthly fixed charge (MMFC) is payable by the consumer with contract demand less than 110 KVA supplied. This is intended to meet a component of the fixed cost incurred in the system for meeting the consumer’s load and also recover the expenses on maintenance of meter, meter reading, preparation of bills, delivery of bills, collection of revenues and maintenance of customer accounts. From simple reading the meaning of term MMFC is minimum fixed charges to be paid by consumer to meet the fixed cost incurred in the system for meeting the consumer’s load and to recover other fixed charges. Consumer executed an agreement for a load means at any point of time he is authorized to draw a load up to his contract demand. So, whatever may be his present load, licensee is bound to keep the required load reserved for the consumer. Licensee cannot issue the balance load (difference of contract demand and less drawl of consumer) to any other consumer, thereby its opportunity to earn something by giving balance load to other consumers. So, there is direct relationship between MMFC and Contract Demand of the consumer. Hon’ble Orissa Electricity Regulatory Commission has made it clear in para-474 of RST order for Financial Year 2012-13 that the billing demand in respect of consumer with contract demand of less than 110 KVA having static meter should be the highest demand recorded in the meter during the financial year irrespective of the connected load, which shall require no verification. So, it is clear that if a consumer draws power more than its agreed load, to claim MMFC its contract demand need not require to be enhanced by verifying the premises. He has to pay monthly minimum fixed charges as per recorded demand. It does not mean that in case of less drawl the consumer will pay fixed charges as per recorded demand ignoring its contract demand.
That, regulation 84 of the Orissa Electricity Regulatory Commission Distribution (Condition of Supply) Code, 2004 reveals that every consumer, during continuance of agreement under regulation 15, shall be liable to pay minimum monthly charges even if no electricity is consumed for any reason whatsoever or supply has been disconnected due to default of the consumer. In other words MMFC is also payable by the consumer on the basis of the agreed contract demand during the period of disconnection of power supply with record of zero demand. Hence, in addition to the demand of charges for actual consumption of electricity, a consumer is also liable for payment of MMFC on the basis of contract demand as stipulated in the agreement provided the consumption is within the agreed contract demand.The bills of the consumer for the month March, April, May-2013 have been prepared according to M.M.F.C. of the contract demand (C.D.) of 67 K.W. in 110 KVA system. It is pertinent to mention here that, 1 KW is equal to 1 KVA × 0.9 for which the contract demand of the consumer being 67 KW is equal to 74.4 KVA and by multiplying of Rs.250/-( per KVA × Rs.250/-) amounting the status in MMFC of the bills for the period so there is no illegality done in preparing the same and the consumer is bound to pay the same along with the amount in energy meter record. On 23.10.2013, the 11- KV charampa-1 feeder became faulty for which power supply to around 3000 consumer was disrupted. Receiving complaints from the consumers, for immediate restoration of power supply verification was made by the local Junior Manager (J.E) and other staffs to detect the fault. After thorough checking, effort was made to charge the feeder but the same was not stand OK and it was noticed that when trying to charge the feeder there was sudden flash in intake D.P of the complainants oil unit. So, it was apprehended that their might have been some defect in the installation of the complainant and if the said D.P is not isolated, 11KV feeder cannot be charged and the same may likely to effect injuriously to use of energy by multi thousand consumers and also likely to cause danger to the repair personnel. So, after isolating the D.P of the petitioner, again the said feeder was charged and stood OK. As such the apprehension of the J.E, Charampa was confirmed that there is some fault in the installation of the complainants oil unit. on 23.10.2013 after isolating the said D.P, the matter was intimated to the representative of the petitioner, who was present on the spot during isolation of the D.P and it was advised to submit an inspection report of the oil unit from Dy.Electrical Inspector. However, due to non submission of the said inspection report, vide letter No-6726, dt 07-11-2013 a letter was issued from opp. party. After obtaining the letter, the petitioner had submitted a report obtaining from a private Electrical Contractor. But in the afore said letter, it was categorically requested to submit the inspection report from Electrical Inspector under Rule 46 and 49 of Indian Electricity Rules1956. The private electrical contractor is not authorized by law to submit any report under the afore said rules. Moreover, it was also detected in the office record that the petitioner since 1995 the complainant has not filed any inspection report from the competent authority of his oil industry. So, for inspection of the industrial premises, letter has also been issued to the Dy. Electrical Inspector (T & D) Jajpur Road from the office of opp party vide letter No 6724 dt-07-11-13 and No-91(2) dt-06-01-14 and lastly to the Dy. Electrical Inspector (T& D ) at I.G Marg Near ITI Squire, Balasore, PIN 756001 and to the complainantvide letter No- 1538 and 1539 on 27.03.2018. The complainant is not complying the request of the opp. party so there is no deficiency of service or unfair trade practice. It is the complainant who is not co -operating in running his oil industry. That, the case is bad for non-joinder of necessary party. Complainant very well knows that the presence of the Deputy Electrical Inspector, Balasore is very much necessary in this case for better and complete adjudication of the case yet he did not implead him as opp. party in this case only with a fear of discloser of the fact that his premises has not been inspected since 1995. The main prayer of the complainant is to declare the demand notice as illegal. The consumer Forum cannot pass declaratory order as per Consumer Protection Act 1986. complainant has suppressed the real truth and has not approached the forum in clean hands. Hence Prays for dismissal of the complaint.
Undisputedly, complainant is a consumer under the O.P and had executed agreement to that effect with the O.P and accordingly availed power supply to his Oil Industries premises as per the agreement on 09.05.1989 & 07.05.2005 executed between complainant and the O.P .The electricity bills filed by the complainant clearly go to show that power supply was given to the Oil Industry under the category of H.T Industrial (M) Supply. This shows power supply was availed by the complainant for Industrial purpose. The complainant is silent as to how power supply is used to the oil Industry. Taking the units of consumption and as mentioned in the energy bills filed by the complainant and the fact that power supply to the Oil Industry of the complainant was used for industrial purpose, it appears that power supply was used in the industry for the purpose of production of oil. That means complainant has been utilizing electrical energy in his oil production unit for commercial purpose. As such the complainant is not a consumer within the meaning of Sec.2(1)(d)(ii) of C.P.Act,1986. (Rajaram Mej Products vs Chhattisgarh Rajya Vidyut . on 14 December, 2017)
In Bhim Sain Vs. Punjab State Electricity Board, 2014 (1) CLT 607 (Pb), Punjab State Consumer Disputes Redressal Commission, Chandigarh has observed that "The connection was obtained by the complainant for running the Rice Mill with the help of a number of workers. The complainant, in his complaint, has only stated that it is his sole source of income for earning his livelihood, but it is nowhere pleaded or proved that he was running this Rice Mill by way of self employment. The explanation added to the Section 2(1)(d)(ii) of the Act stipulates that the commercial purpose does not include use by a person of the goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment. Every business run by an individual or a group of person is meant to earn the livelihood, but to be a 'consumer' under the Act, one has to prove that he is running the business for commercial purpose by way of self employment. In the instant case, the complainant is running a Rice Mill with the help of number of works. He has nowhere stated that he himself is running the business by way of self employment. Electricity // 25 // connection for 'commercial purpose' only. Consumer complaint not maintainable."
In Dakshini Haryana Bijli Vitran Nigam & Others Vs. Birender Singh, 2015 (1) CLT 382 (Har), Haryana State Consumer Disputes Redressal Commission, Panchkula has observed thus :-
"Consumer Protection Act, 1986, Section 2(1)(d) - Electricity - Commercial purpose - Complainant obtained the electricity connection for running liquor vend. Held - It is for "commercial purpose" and not for earning livelihood - Complaint not maintainable."
In Major Vishwani Puri, Complete Surveying Technologies (P) Ltd. & Ors. Vs. DLF Universal Ltd. (Earlier known as DLF Commercial Complexes), 2015 (1) CPR 301 (NC), Hon'ble National Commission has observed thus :-
In Sanjay Agro Industries Ltd. Vs. UHBVN Ltd. & Anr. IV (2011) CPJ 333 (NC), Hon'ble National Commission has observed thus :-
"Consumer Protection Ac, 1986 - Sections 2(1)(d)(ii), 21(b) - Electricity - Commercial Purpose - Penalty - District Forum quashed bills imposing penalty - State Commission set aside order on ground that complainant being a commercial entity and having availed services of Nigam purely for commercial purpose was not a consumer - Order passed by State Commission upheld."
Further the allegations against the norms of the agreement and also violating the provisions of OERC Tariff Notification dated 23.03.2012 , the Orissa Electricity Regulatory Commission has made it clear in Clause (Vi) Retail Supply tariff effective from 1st April 2012 (Annexure -4 ) Annexed by the complainant for Financial Year 2012-13 that, the billing demand in respect of consumer with contract demand of less than 110 KVA having static meter should be the highest demand recorded in the meter during the financial year irrespective of the connected load, which shall require no verification.
In view of the above it is clear that complainant has suppressed the real facts in the complaint and has not approached the Forum in clean hands. Taking the above facts and circumstances and the documents available on record in to consideration, we have no other alternative except to arrive at a conclusion that complainant has suppressed the entire truth and has not approached this Forum in clean hands for redressal of his grievance. As such the complaint is not sustainable and the complainant is not entitled to the reliefs sought for by him. Hence, ordered:
O R D E R
The complaint be and the same is dismissed on contest against the O.P but in the circumstances without cost.
This order is pronounced in the open Forum on this the 18th day of August,2018 under my hand and seal of the Forum.
