IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 20th day of April, 2023.
Filed on : 01.10.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. P.R.Sholy BAL. LLB (Member)
In
CC/No.240/2022
between
Complainant:- Opposite parties:-
Sri.Natarajan 1. Kerala State Electricity Board Ltd.
S/o Kochupillai Vydyuthi Bhavan, Pattom
Peedikachirayil Thiruvananthapuram-695004
Kandalloor South P.O.
Alappuzha-690535 2. The Assistant Executive Engineer
(Adv.Jose Y James) Kerala State Electricity Board Ltd.
Electrical Sub Division
Kayamkulam-690502
(Adv.Jayan C Das for Ops)
O R D E R
SMT.P.R SHOLY (MEMBER)
This is a consumer complaint filed under Sec.35 of Consumer Protection Act, 2019.
1. Material averments briefly discussed are as follows:-
The complainant had applied for an electricity connection for his shop rooms which built for his livelihood and after verification 2nd opposite party sanctioned the same as LT VI B Tariff. The complainant was correctly paying the bill given the opposite party since 2003 for the 3phase electricity connection which was given by the opposite party for the complainant’s building. But on 4/2/2022, four officers came and inspected the complainant’s electricity connection and informed that the Tariff was LT 1 A instead of LT VI B and it made a loss of Rs. 33,073/- for the opposite party because of the mistake in Tariff plan of the complainant’s electricity connection. At the same time the complainant showed the electricity bill for evidence of the Tariff and without even verifying they made a report and sent a letter to the complainant dtd. 4/8/2022 informing him to pay Rs. 33,073/- as the opposite party had a loss due to change in Tariff form LT 7(A) to LT 1(A). On the basis of the said letter the complainant preferred an Appeal on 16/8/2022.
2. As per the opposite party’s request, on 30/8/2022, the complainant had submitted the bills as per LT VI (B) Tariff and the opposite party informed that the intimation will be given to the complainant later.
After that, on 13/9/2022, an intimation was received stating that during the period of 2003 to 06/5/2013, Tariff was LT VI (B) and from 5/7/2013, Tariff was LT VI (F) and after that the tariff was LT 1 (A). The same was due to mistake from the part of the opposite party. At the same time the complainant was facing mental agony due to the unfair trade practice from the part of the opposite party. Hence this complaint.
3. Opposite party filed a version contenting as follows:-
Complainant is not maintainable either in law or on facts. Complaint has been preferred challenging the order issued in compliance with Sec.126(3) of the Electricity Act 2003 with regard to the final assessment order raised against the consumer on 13/9/2022 for an amount of Rs. 33,073/- The complainant is a consumer under Electrical (West) Section, Kayamkulam. The connection was initially given on 15/5/2004 to a building frontage to his house for the functioning of a Private Hospital with assigned tariff in LT VI B. As per records, the tariff was changed to LT VI-F on 6/5/2013 and later to LT1-A. Change of tariff from LT VI B to LT VI-F was only for 3 months and later it was found defective and changed to LT 1 –A tariff as requested by the complainant as per his application dated 5/7/2013 as the purpose was deviated from hospital category. Subsequently the complainant was charged the electric power at the rate applicable for residential purpose in LT 1-A tariff. However the consumer misused the tariff for commercial purpose by leasing out the rooms frontage to road for commercial establishments. The Anti Power Theft Squad (APTS) inspected the premises of the consumer on 4/8/2022 and found that the premises was being used for commercial activity.
4. The Sec. 126(1) of the Electricity Act 2003 read as. “ If on an inspection of any place or premises or after inspection of equipments, gadgets, machines, devices found connected or used, after inspection of records maintained by any person, the assessment officer comes to the conclusion that such person is indulging in unauthorized use of electricity , he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use”. When a consumer uses electricity for a purpose other than for which usage of such electricity was authorized or uses electricity for an area other than for which supply of electricity was authorized, it will amount to unauthorized use of electricity as defined under the explanation to Sec. 126 of the Act.
5. Due to detection or unauthorized use of electricity, the Assistant Executive Engineer who being the competent authority under Sec. 126 of the Electricity Act issued a provisional bill for Rs. 33,073/- being the assessment of two times rate in both fixed charge and energy charged used during the preceding 12 months immediately before the inspection. The complainant filed objection before the Assessing officer dtd. 23/ 8/2022 against the provisional assessment bill. A personal hearing was held on 1/9/2022 based on his request dtd.30/8/2022 the 2nd opposite party in the said hearing the documents furnished by the complainant were not consistent for a review to be made towards deducting/avoiding any amount from the provisional bill used and accordingly final assessment order was made vide Sec. 126(3) of the Electricity Act.
6. The consumer was enjoying the subsidized tariff in Low Tension domestic since 5/7/2013 which clearly mentioned in the regular bi-monthly electricity bills issued to the complainant and the consumer made payment on account of these electricity bills. Moreover, the energy bills of complainant’s house bearing Consumer No. 10362 annexed to the commercial building is also charged in LT domestic and is identically billed. Hence the contention that the consumer was not aware about the tariff levied to the road abutted building since 2013 is untenable. The service connection for consumer No.13649 was misused for commercial purpose. On noticing the misuse of tariff, Anti Power Theft Squad Team inspected the premises of Consumer No. 13649. It was found that rooms were rented out for the running of a fertilizer shop godown, Provision Store and an Electronic shop. As per prevailing tariff, shop rooms are to be billed in LT VII-A tariff. In contrast, consumption was being billed in subsidized LT Domestic tariff. As the period of commencement of these commercial enterprises could not be established by the complainant with valid proof, a provisional assessment dtd. 4.8.2022 for a period of 12 months immediately preceding the date of inspection was given to the complainant.
7. No substantiating evidence was produced by the petitioner against the provisional assessment issued. As the complainant failed to produce any valid documents, the provisional assessment was made final vide a proceedings dtd. 13/9/2022 of the Assessing Officer. The said building was assigned with service connection for domestic purpose on 05.07.2013 on account of the activities in the premises were changed to residential use. If the stand of complainant that commercial activities were prevailing in the premises being taken into account, Board is liable to assess the commercial tariff in LT VII-A since 5/7/2013. The assessment made in the case on hand is as per rules and regulations which are to be followed by the Licensee. There is no deficiency of service on the part of the opposite parties. The complainant has approached the Commission challenging the assessment made consequent on the detection of unauthorized use of electricity. The said assessment was made under Sec.126(1) of the Electricity Act.,2003 (Central Act 36 of 2003). An appeal to the final assessment is to be heard by the Appellate Authority constituted under the act.. Hence the complaint may be dismissed.
8. On the above pleadings the points raised for consideration are:-
1. Whether there is any deficiency in service or unfair trade practice on the side of the opposite parties?
2. Whether the complainant is entitled to get an order setting aside the provisional Bill in consequence of the APTS inspection dtd. 4/8/2022 ?
3. Whether the complainant is entitled to Rs. 2,00,000/- as compensation for mental agony and other hardships?
4. Reliefs and costs?
9. Evidence in this case consists of oral evidence of PW1 and Ext.A1 to A10 on the side of the complainant and oral evidence of RW1 and RW2 and Ext.B1 to B6 (Ext.B1 to B5 subject to proof) on the side of the opposite parties. Heard both sides.
10. Point No. 1 to 3:-
PW1 is the complainant. He filed an affidavit in tune with the complaint and got marked Ext.A1 to A10.
RW1 is the Asst. Engineer, KSEBL Electrical Section, Kayamkulam (West). He filed an affidavit in tune with the version filed by opposite parties and produced 5 documents and the marking of those documents objected by the counsel appearing for the complainant.
11. RW2 is the 2nd opposite party in this case. He filed an affidavit in tune with the version and got marked Ext.B6.
PW1’s case is that the complainant had taken an electricity connection from the opposite parties under the category LT VI B tariff for his shop rooms during 2003 and he was paying the bill amount promptly. on 04.08.2022 the officers from the opposite party came and inspected the complainant’s electricity connection and informed that the tariff was LTIA instead of LT VI B and it made a loss of Rs.33,073/- for the opposite party because of the mistake in Tariff plan of the complainant’s electricity connection and accordingly Ext.A2, a notice issued to the complainant to pay Rs.33,073/-. Though the complainant had submitted the bills as per LT VI B Tariff as requested by the opposite parties, the opposite parties were not convinced. After that on 13.09.2022, an intimation was received stating that, during the period of 2003 to 06.05.2013, Tariff was LT VI (B) and from 05.07.2013, Tariff was LT VI (F) and after that the Tariff was LT 1 (A). The same was due to mistake from the part of the opposite parties and hence complainant is not liable to pay the said amount.
12. Per contra the opposite party contented that the complainant had taken an electricity connection under the category of LT VI B Tariff initially on 15/5/2004 and thereafter changed to LT VI F on 6/5/2013 and subsequently changed to LT I A. According to opposite parties the change of tariff from LT VI B to LT VI F was only for 3 months and later it was found defective and changed to LT I-A tariff as requested by the complainant as per his application dtd. 5/7/2013 as the purpose was deviated from hospital category and accordingly the complainant was charged the electric power of the rate applicable for residential purpose in LT 1 –A tariff. However the complainant misused the said tariff for commercial purpose by leasing out the rooms frontage to road for commercial establishments. Knowing the said fact the Anti Power Theft Squad (APTS) inspected the premises of the complainant on 4/8/2022 and found that the premises was being used for commercial activity.
13. When a consumer uses electricity for a purpose other than for which usage of such electricity was authorized or uses electricity for an area other than for which supply of electricity was authorized, it will amount to unauthorized use of electricity as defined under the explanation to Sec. 126 of the Electricity Act.
14. Under the said provision the 2nd opposite party found misuse of electricity by the complainant and issued a provisional bill for Rs. 33,073/- being the assessment of two times rate in both fixed charge and energy charge used during the preceding 12 month immediately before the inspection. Though the complainant had filed an objection before the 2nd opposite party against the said provisional assessment bill, on a personal hearing on his request, the documents furnished by the complainant were not consistent for a review to be made towards deducting or avoiding any amount from the provisional bill issued and accordingly final assessment order was made by the 2nd opposite party. At this juncture it is pertinent to be noted that Exts.A7 to A10 (Ext.A1 is the copy of Ext.A7 to A9) are the bills issued in connection with the disputed consumer number till 19.05.2010 under the Tariff LT 6 B. Opposite party alleged the change of Tariff from 05.07.2013 for which they produced Ext.B2 and B6. During cross examination of RW2 the counsel appearing for the complainant, though RW2 deposed that there was no page number to identify it as the same consumer number, he clarified it as continuation of 1st page in which the remittance of inspection fee, Test fee, Application fee etc. remitted on 05.07.2013 were shown. One more aspect is bear in our mind that though the counsel for the complainant objected the marking of documents produced by RW1 (Ext.B1 to B5 ) in which Ext.B3 is same as Ext.A3 which was produced from the part of complainant himself. Hence we found no relevancy in disputing the documents produced by the RW1. Accordingly in Ext.B2 also Tariff changing entered on 05.07.2013.According to the opposite parties the complainant has, at this situation, an opportunity to file an appeal to the final assessment which is to be heard by the Appellate Authority Constitute under the Act. The opposite parties further contended that the complainant had approached this Commission challenging the assessment made consequent on the detection of unauthorized use of electricity.
15. The reasoning in the ruling placed by the counsel for the complainant is not reliable with regard to the facts of this complaint.
16. In the light of Judgment in U.P Power Corporation Ltd Vs. Anis Ahmed reported in 2013 (3) KLT SN 29 (C. No. 31) SC, a complaint against assessment made by assessing officer under Sec.126 or against offences committed under Sec. 135 to 140 of Electricity Act is not maintainable before Consumer Forum. As observed by the Hon’ble Supreme Court in the said case the acts of indulgence in “unauthorized use of electricity” by a person as defined in clause (b) of the Explanation below Sec.126 of the Electricity Act, 2003 neither has any relationship with “unfair trade practice” or “restrictive trade practice” or “deficiency in service” nor does it amounts to hazardous services by the licensee. Hence the complainant is not entitled to get relief sought for in the complaint since the dispute is not relating to unfair trade practice or a restrictive trade practice adopted by the service provider or if the consumer suffers from deficiency in service or hazardous service or the service provider has charged a price in excess of the price fixed by or under any law, hence the same do not fall within the meaning “complaint” as defined in the Consumer Protection Act.
17. Point No. 4:-
In the result complaint stands dismissed. No order as to costs.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 19th day of April, 2023.
Sd/-Smt.Sholy.P.R (Member)
Sd/-Sri.S.SanthoshKumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Sri.Natarajan (Complainant)
Ext.A1 - Copy of Electricity bill
Ext.A2 - Copy of Letter dtd. 04.08.2022
Ext.A3 - Copy of appeal dtd.16.08.2022
Ext.A4 - Letter dtd.23.08.2022
Ext.A5 - Written evidence filed by complainant
Ext.A6 - Copy of letter dtd.13.09.2022
Ext.A7 - Electricity bill dtd.22.09.2004 and its receipt
Ext.A8 - Electricity bill dtd.19.11.2004
Ext.A9 - Electricity bill dtd.23.05.2006
Ext.A10 - Electricity bill dtd.19.05.2010
Evidence of the opposite parties:
RW1 - Sri.Noushad B (Witness)
RW2 - Sri.Gopakumaran Achary.B (Witness)
Ext.B1 - Certificate dtd.01.11.2022
Ext.B2 - Consumer Profile dtd.20.02.2023
Ext.B3 - Appeal dtd.16.08.2022
Ext.B4 - Letter dtd.29.09.2022
Ext.B5 - Copy of site mahazor
Ext.B6 - Bills and payment history
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Comp.by:
