KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 560/2015
JUDGMENT DATED:18/06/2024
(Against the Order in C.C. 127/2013 of DCDRC, Ernakulam)
PRESENT:
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
SRI. RADHAKRISHNAN K.R. : MEMBER
APPELLANT:
The Assistant Engineer, Kerala State Electricity Board, Electrical Section
Central, Ernakulam, Cochin.
(By Adv. B.Sakthidharan Nair)
Vs.
RESPONDENTS:
- Joseph.M.J, Hakoba Buildings, Shanmugham Road, Ernakulam, Cochin – 682 031.
(Adv. Reported dead IA.1407/2016 filed on 10/11/2016 is allowed on
10/11/2016)
- Sara Varghese, Residing at 302, Seven Seas Apartments, T.D.Road, Ernakulam, Cochin – 682 031.
(By Adv.Rajesh Vijayendran)
- Dr.Peter Manak, Manak House, Chathankary.P.O., Nedumpuram, Thiruvalla – 689 112.
(Impleaded as per order in IA.1407/2016 order dated 10/11/2016 )
JUDGMENT
SRI. AJITH KUMAR D.: JUDICIAL MEMBER
This is an appeal filed by the opposite party in C.C. No. 127/2013 on the file of the District Consumer Disputes Redressal Commission, Ernakulam (District Commission for short). On 28/11/2014 the complaint was allowed by setting aside the arrear bill issued by the opposite party. Being aggrieved by the aforesaid order this appeal has been filed.
2. The case in the complaints in short is that: They are running a hotel for the purpose of the earning their livelihood by means of self employment. A three phase electricity connection was provided by the opposite party to the premises . The opposite party had issued a short assessment bill amounting to Rs.15,48,010/- alleging non regularization of unauthorized connection load of 15 KW detected in 2006. The bill was issued without considering the contention of the complainant. The demand is barred by limitation. The complainant had sought for an order by setting aside the disputed bill.
3.The opposite parties had entered appearance and filed written version that the 2nd complainant is not a consumer as defined in the Kerala Electricity Supply Code 2005. An unauthorized additional load of 15 KW was detected against the authorized load of 8 KW. This anomaly was detected during the audit conducted by the Regional Audit Wing of the KSEB. Bills were issued only with the fixed charge for 23KW instead of 8 KW for the period from 22/08/2006 to 15/01/2013. The 1st complainant is liable to pay penalty as per 15 KW of the KSEB Terms and Conditions of Supply 2005. Hence additional demand was raised and the complainants are bound to pay the amount. The opposite parties had sought for the dismissal of the complaint.
4.No oral evidence was adduced by the complainant Exts. A1 to A3 were marked on their side. Opposite party was examined as RW1 Ext.B1 to B6 were also marked.
5. During the pendency of the appeal the 1st respondent /1st complainant was reported dead whose legal heir was additionally impleaded as 3rd respondent /3rd opposite party as per IA.1407/2016.
6.In the appeal memorandum the main contention raised by the appellant was that the complaint is not maintainable in view of the dictum laid down by the ruling of the Hon'ble Supreme Court in UP Power Corporation Limited Vs. Anis Ahmad reported in (2013) 8 SCC 491. The District Commission ought to have found that the complainant is not a consumer as he was running a hotel for commercial purpose. Another contention of the appellant is that the 2 years period of limitation contained in Section.56(2) of Electricity Act 2003 will start to run only from the date of issuance of the bill as settled by the Hon’ble High Court of Kerala in “Sunderdas.P Vs. Kerala State Electricity Board” reported in (2009) (2) KLT SN 5. Hence, the appellant would seek for setting aside the order passed by the District Commission.
7.The records from the District Commission were called for. Heard the counsel for the appellant and the respondents.
8.We have carefully examined the records and the evidence let in by both parties.
9. The learned counsel of the appellant would submit that the opposite party had filed written notes of argument before the District Commission with a specific contention that the complaint was not maintainable in view of the decision of Hon’ble Supreme Court of India in UP Power Corporation Limited Vs. Anis Ahmad. But the District Commission never considered this aspect in the order. According to the learned counsel unauthorized load was detected by the squad by inspecting the premises on 22/08/2016. The demand was also raised by the resorting the Sec.126 of Electricity Act. Apex Court in UP Power Corporation Limited took a view that the transactions of persons indulging in unauthorized use of electricity under Sec.126 of Electricity Act 2003 did not come within the scope of a complaint as per the Consumer Protection Act 1986. Here consequent to the detection of the unauthorized load penalty was imposed and the complainant had already remitted the said penalty. The above process had come to an end.The instant demand arose from an audit conducted at the office of the KSEB.Such a demand can never be construed as a demand under Sec.126 of the Kerala Electricity Act 2003. So the ruling cited by the appellant is not applicable to the instant case.
10.The next contention put forth by the appellant is that only on issuance of a bill the amount will become due. To support this argument the learned counsel for the appellant placed reliance upon a ruling of our Hon’ble High Court reported in 2009 (2) KLT 945 in Sunderdas P. Vs. Kerala State Electricity Board and another. It was a case were a bill was issued and the consumer had sought for permission for payment of the amount in instalments instead in lumpsum so in case of belated payment interest @ twice at the bank rate for the number of days from the due date shall be charged. Demand for surcharge would also arise. The consumer had refused to remit surcharge and the dispute arose which was considered by the Hon’ble High Court. Here the situation is entirely different. This bill was issued towards arrears of unauthorized additional load of a period of six years and no demand was raised for the first time for a period of 2 years from the date when such amount becomes first due unless such amount due is in the arrears which must be shown continuously in the current bill. Here the bill was issued on 13/02/2013 with respect of the period from 22/08/2006 to 15/01/2013. The bill in question is not a regular bill issued to the complainant but an additional bill with a demand for penalty and penal charge. In the reported ruling a provisional bill was issued and the complainant has remitted the amount towards the said bill and it was in respect of a regular bill not an arrear bill. A period of 2 years is contemplated under Sec.56(2) of Indian Electricity Act which should be 2 years from the date of such amount arose for realisation . Here the first bill was issued on 22/08/2006 and the complainant had already remitted the amount shown in the provisional bill. Subsequently Ext,A2 was issued on 13/02/2013 i.e. after elapsing a period of 7 years. As per Sec.56(2) of Electricity Act the demand should be made within a period of 2 years from the date when the amount became due.Here the demand is highly belated which has been raised after the elapsing a period of 7 years. The State Commission in Appeal No.301/2015 dated 30/04/2019 took a view that an arrear bill exceeding a period of 2 years is barred by virtue of Sec.56(2) of Indian Electricity Act. The learned counsel of the appellant would submit that the fixed charge shown in Ext.A2 is a continuous demand and Sec.56(2) provides a protection from the bar of limitation. A protection is given to the arrears of charges which has been shown continuously as recoverable as arrears of charge. Here such a charge was not shown as recoverable arrears.
As per the contention of the appellant demand arose on inspection conducted by the audit wing of the KSEB. As long as the fixed charge was not shown as continued arrears no protection could be given from the limitation period of 2 years. As per Sec.56(2) of Electricity Act 2003 the view taken by the District Commission in setting aside the bill is perfectly correct. Two authorities cited by the learned counsel for the appellant are not applicable to this case. The order passed by the District Commission does not suffer any infirmity. The appeal lacks merit which is only to be dismissed.
In the result, the appeal is dismissed. Parties shall bear their respective costs.
AJITH KUMAR D.: JUDICIAL MEMBER
RADHAKRISHNAN K.R. : MEMBER
