KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO: 80/2006
JUDGMENT DATED:12-10-2010
PRESENT
SMT. VALSALA SARANGADHARAN : MEMBER
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
1. The Deputy Chief Engineer,
KSEB, Pallom, Kottayam.
2. The Special Officer (Revenue), : APPELLANTS
KSEB, Vydyuthi Bhavan, TVPM.
3. The Secretary,
KSEB, Pattom, TVPM.
(By Adv.Sri.B.Sakthidharan Nair)
Vs.
K.E.Joseph,
Managing Partner, : RESPONDENT
Venad Rubbers, Industrial Nagar,
Changanacherry.
(By Adv.Sri.V.S.Bhasurendran Nair)
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
The appellants were the opposite parties and the respondent was the complainant in OP.11/01 on the file of CDRF, Kottayam. The complaint therein was filed alleging deficiency of service on the part of the opposite parties in issuing and demanding electricity charges including demand charge. It was also alleged that there occurred failure on the part of the opposite parties to bring down the TOD meter reading by resetting to “0” and thereby claimed refund of the excess amount collected from the complainant during the period from 12/98 to 4/99. The complainant also alleged deficiency of service on the part of the opposite parties in collecting excess amounts by way of electricity charges and penalty and interest. Thus, the complainant prayed to direct modification of the order dated:29/7/1999 passed by the Chief Engineer, KSEB.
2. The opposite parties entered appearance and the 1st opposite party filed written version on behalf of all the opposite parties. They denied the alleged deficiency of service and prayed for dismissal of the complaint in OP.11/01 as the complaint is not maintainable.
3. Before the Forum below the complainant and the 1st opposite party filed proof affidavit in support of the respective pleadings of the parties to the said complaint. From the side of the complainant Exts.A1 to A30 documents were also produced and marked. No documentary evidence was adduced from the side of the opposite parties. On an appreciation of the facts, circumstances and evidence on record, the Forum below passed the impugned order dated:17th November 2005.
1. Directing the opposite parties to refund excess amount of Rs.9,412/-.29 collected from the complainant with interest at the rate of 9% per annum from the date of collection till payment.
2. To refund the excess amount collected towards current charges at the rate of Rs.225/- per KVA instead of Rs.217/- per KVA during the period from 1/5/99 to 14/5/2000 with interest at the rate of 9% per annum from the date of collection till payment.
3. To refund Rs.13,693.48 collected from the complainant in excess during the period from 12/98 to 4/99 when they failed to reset the meter to “0” with interest at 9% per annum from the date of payment by the complainant till the date of refund.
4. To consider the claim of the petitioner with respect to the 6th allegation made in the petition for refund of the current charges for the period from 31/8/2000 to 24/11/2000 during the said period the factory was not working.
5. To refund the penalty realized from the complainant with interest at the rate of 9% per annum from the date of collection till payment.
6. To recalculate the period in which the complainant is entitled to get extension time for payment of electricity charges as per pre 1992 tariff and give concession to the complainant.
4. Opposite parties are also directed to pay cost of Rs.1000/- to the complainant. Aggrieved by the said order, the present appeal is preferred by the opposite parties therein.
5. We heard both sides. The learned counsel for the appellants/opposite parties conceded the correctness of the order passed by the Forum below with respect to the 5th relief directing refund of the penalties collected from the petitioner with interest at the rate of 9% per annum and also the 6th relief directing the opposite parties to recalculate the period in which the complainant is entitled to get extension time for payment of electricity charges as per pre 1992 tariff and give the concession to the complainant. He relied on the contentions adopted by the opposite parties in paragraph 12 of their written version and submitted that the penalty has been realized only when the bills are not paid on or before the due dates specified in the bills. So, the direction to refund the amount collected by way of penalty has been disputed and challenged by the appellants. The learned standing counsel for the KSEB has also argued for the position that Ext.A28 and A29 orders cannot be made applicable as far as the complainant is concerned because there was no power cut to the industrial unit of the complainant at 50% or more. Thus, the claim of the complainant for concession cannot be allowed. Hence the appellants prayed for modifying 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 argued for the position that the Forum below considered all the relevant aspects of the case and passed the impugned order by relying on the documentary evidence available on record. Thus, the respondent prayed for dismissal of the present appeal.
6. The appellants/opposite parties in their appeal memorandum have urged that the respondent/complainant is not a consumer as he availed electricity for commercial purpose. The complainant in the written complaint has categorically stated that his industrial unit by name Venad Rubbers is a small scale industrial unit running for his livelihood by means of self-employment. The aforesaid statement has also been repeated in the proof affidavit sworn to by the complainant, K.E.Joseph. But the aforesaid case of the complainant regarding the running of the small scale industrial unit for his livelihood by means of self-employment is not categorically denied by the opposite parties. It is also to be noted that the complainant has been availing the service of KSEB for the purpose of consuming electricity to run small scale industrial unit by name Venad Rubbers. There is no dispute that the complainant has been availing the aforesaid services of the opposite parties as per the renewed agreement dated:31/7/1992. It is also to be noted that the complainant has been consuming electrical energy for running his industry from the year 1996 onwards. Thus, the complainant is a consumer under KSEB and he has been availing the services of the opposite parties on consideration. The opposite party/KSEB has been receiving energy charges and other charges for rendering service of giving electricity connection to the industry by name Venad Rubbers. There can be no doubt about the fact that the complainant is a consumer as defined under sec.2(1)d(ii) of the Consumer Protection Act, 1986 as it stood prior to the amendment of section 2(1)d(ii) which came into force only on 15/3/2003. Thus, prior to the amendment of section2(1)d(ii) the complainant acquired a vested right as consumer coming within the purview of the Consumer Protection Act, 1986. So, the Forum below has rightly entertained the complaint in OP.11/01. We have no hesitation to hold that the complaint as filed is maintainable under the Consumer Protection Act, 1986.
7. The Forum below by the impugned order considered all the allegations regarding deficiency of service. The appraisal of the impugned order would make it clear that the Forum below considered all the relevant aspects of the case with respect to the evidence available on record. The Forum below rightly held that a sum of Rs.9,412.29 has been collected by way of excess amount and that the complainant is entitled to get refund of the aforesaid excess amount with interest at the rate of 9% per annum. Likewise the evidence on record would also make it clear that there occurred deficiency of service on the part of the opposite parties in levying current charges at the rate of Rs.225/- instead of Rs.217/- per KVA during the period from 1/5/1999 to 14/5/2000. So, the order directing refund of the excess amount collected from the complainant is to be upheld. The Forum below has only awarded a very reasonable rate of interest at 9% per annum from the date of excess collection till payment.
8. The Forum below discussed the case of the complainant regarding collection of excess amount of Rs.13,693.48 in paragraph 9 of the impugned order. There is detailed discussion about the excess amount of Rs.13,693.48 collected by the opposite parties from the complainant. The Forum below has also considered the failure on the part of the officials of KSEB to reset the TOD meter to zero and the resultant financial loss suffered by the complainant. It is revealed that during the period from December 1998 to April 1999 there occurred such a failure on the part of the officials of KSEB in resetting the TOD meter to zero. Thus, the Forum below is perfectly justified in directing refund of the aforesaid sum of Rs.13,693.48 to the complainant with interest at the rate of 9% per annum.
9. The Forum below has also directed the opposite parties to reconsider the claim of the petitioner with respect to the 6th allegation made in the petition for refund of the current charges for the period from 31/8/2000 to 24/11/2000 during the said period the factory was not working. Admittedly, the factory of the complainant was closed down because of the non working of the transformer installed in the complainant’s factory. The transformer was not working from 31/8/2000 till 24/11/2000 and that the complainant’s factory started its operation only on 1/12/2000. It is also established in this case that the opposite parties have already collected Rs.6,238/- each for the months of 10/2000 and 11/2000. More over, the opposite parties had also collected Rs.65,751/- from the complainant during the aforesaid period. It is to be noted that the complainant was not bound to pay any such amount to the board because of the fact that the complainant had not used any electricity during the said period. Ext.A17 chart would show the annual minimum revenue payable by the complainant/consumer during the period from 12/99 to 11/2000. The Forum below considered all the relevant aspects of the case and correctly appraised the documentary evidence available on record. The discussions at paragraph 11 of the impugned order would justify the order passed by the Forum below directing the opposite parties to reconsider the claim of the petitioner with respect to the 6th allegation in the petition preferred by the complainant for getting refund of the current charges for the period from 31/8/2000 to 24/11/2000 during which the complainant’s factory was not working. So, the aforesaid direction given by the Forum below is to be upheld. Hence we do so.
10. The Forum below has also directed the opposite parties to refund the penalty realized from the petitioner with interest at the rate of 9% per annum. The Forum below considered the aforesaid claim preferred by the complainant for refund of the penalty amount collected from him by the opposite parties. In paragraph 14 of the impugned order, the aforesaid claim made by the complainant for refund of the penalty amount has been considered. The definite case of the opposite parties in their written version regarding realization of penalty is that penalty has been realized only when the bills are not paid on or before the due dates specified in the bills. It is also contended in paragraph 12 of the written version that interest (penalty) has been levied as per the provisions of clause 12 ( C ) of the Conditions of Supply of Electrical Energy. It is also categorically stated in the written version that the 2nd opposite party, the Special Officer, (Revenue) KSEB, Tiruvananthapuram has undertaken to refund any amount levied as interest if it is established by the petitioner that interest has been levied even though bills were paid on or before the due dates. On the basis of the aforesaid admission or undertaking, the order passed by the Forum below directing refund of the penalty amount with interest at the rate of 9% per annum is to be upheld. It is made clear that the penalty or interest levied from the complainant is to be refunded only if it is shown by the complainant that the said penalty/interest has been levied even though the bill amounts were remitted on or before the due dates. The finding of the Forum below at paragraph 14 of the impugned order would make it clear that the opposite parties need only refund the penalty or interest, if it is established by the petitioner that the penalty/interest has been collected unauthorisedly. In other words, the complainant will get refund of the penalty only on condition that the complainant produced necessary documents to show that he paid the relevant bill amounts on or before the due dates. Hence the aforesaid order passed by the Forum below is upheld subject to the aforesaid condition as contended in paragraph 12 of the written version.
11. The Forum below has also passed an order directing the opposite parties to recalculate the period during which the complainant is entitled to get extension of time for payment of electricity charges as per pre 1992 tariff with a further direction to give the aforesaid concession to the complainant. The aforesaid direction has been given by the Forum below on the strength of the discussions at paragraph 15 of the impugned order. The findings thereof would make it abundantly clear that the complainant is entitled to get the extension of the concessional tariff on the strength of Ext.A28 Government order and A29 order dated:6/3/1992 issued by KSEB. The Forum below has rightly held that the complainant was entitled to get electricity for working 3 shifts per day and thereby assessed the total units of electricity required for the complainant at 40,392 units. The Forum below is perfectly justified in interfering with A20 order dated:29/7/1999 passed by Chief Engineer extending the period for 109 days ie from 26/2/1991 to 12/6/1991. The Forum below is also justified in interfering with the quota fixed by the Chief Engineer at 13,464/- units. The materials available on record would make it clear that during the power cut period the complainant suffered power cut of 50% or more and thereby the complainant is entitled to get the benefits under Ext.A28 and A29 orders passed by the Government and KSEB respectively. Thus, it can very safely be held that the complainant is entitled to get the period extended for availing the concessional tariff. Thus, the opposite parties are liable to recalculate the aforesaid period for extending the benefit of concessional tariff to the complainant’s, Venad Rubbers. We have no hesitation to uphold the aforesaid direction given by the Forum below.
12. The Forum below has also awarded cost of Rs.1000/- to the complainant. The Forum below has found deficiency of service on the part of the opposite parties under various counts. So, the complainant is to be awarded cost of the proceedings. In fact the cost of Rs.1000/- ordered by the Forum below is only very very reasonable. We do not find any reason or ground to interfere with the said order regarding the liability of the opposite parties to pay cost of Rs.1000/- to the complainant.
13. The foregoing discussions and the findings thereon would make it clear that the present appeal is devoid of merits and the same is liable to be dismissed. The impugned order dated:17/11/2005 passed by CDRF, Kottayam in OP.11/01 is to be confirmed. Hence we do so.
In the result the appeal is dismissed. The impugned order passed by the Forum below is confirmed. As far as the present appeal is concerned, parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
VALSALA SARANGADHARAN : MEMBER
M.K.ABDULLA SONA: MEMBER
VL.
