IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Dated this the 11^th  day of November, 2019

Present:  Sri. Manulal V.S. President

Smt.  Bindhu R,  Member 

C C No. 09/2016 (filed on 08/11/16)

Petitioner                                  :         House of Divine Providence

Hospital (HDP),

Kaipuzha, Rep. by its Director.

Kaipuzha P.O. Neendoor,

Kottayam – 686602.

(Adv. Avaneesh V.N.)

                                                                   Vs.                            

Opposite Party                         :   1)   Kerala State Electricity Board,

                                                          Rep. by its Secretary,

                                                          Vydyuthi Bhavan,

                                                          Pattom P.O.  Thiruvananthapuram.

                                                    2) Assistant Engineer,

                                                          K.S.E.B. Section, Neendoor P.O. 

                                                          Kottayam, Pin 686601.

                                                          (Adv.Deepthy S. Nath)

                                                          O  R  D  E  R

Sri. Manulal V.S. President  

          The case of the complainant is as follows.

          The complainant is a hospital established in 1947 and consumer of the 2^nd opposite party vide consumer No.1146481000317 and the complainant is represented by its Managing Director. Complainant has been paying the electricity bill regularly without any fault. 

          On 05/12/15, the 1^st opposite party conducted an inspection in the premises of the complainant and found that the 2^nd opposite party issued bill under LT VIA tariff.  The tariff applicable to private hospitals is under LT VIF.  On 09/12/15, the 2^nd respondent issued a notice directing the complainant to produce certificate under the Charitable Societies Act. On 23/12/15 an Order was passed by the 2^nd opposite party directing the complainant to pay Rs.2,11,332/- on or before 22/01/2016 failing which the electric connection would be disconnected without any further notice.  In the bill which was attached to the said Order it was stated that the fixed charges as 45,360/- , energy charges 1,50,882/- and duty is 15,090/-.  In that Order, the 2^nd opposite party stated that the complainant was wrongly charged under LT IV A tariff instead of LT VI F.  They further stated that the calculation of bill dtd.23/12/15 is based upon a government order dtd.27/09/14.  The complainant contented that the new tariff introduced in the said Order would only effect from 16/08/14, the complainant was regularly paying the bill under LTVI A tariff and the opposite party did not take any steps to issue the bill under LT VI F, which is applicable to the complainant.  The complainant is not liable to pay the bill under the tariff applicable on 05/12/2015.  The complainant has not violated any provisions of the Electricity Act.  From beginning itself, the hospital was charged under LT VIA tariff.  The LT VI F tariff is applicable to the private hospital only after 27/09/2014.  The respondent did not disclose the tariff applicable to the complainant before 16/08/14.  As per law and the provisions relating to the electricity charges, the change in the tariff should be intimated to the consumer.  The 2^nd opposite party issued the bill every month after taking meter reading and the complainant remitted all the bills issued by the opposite party till 05/12/2015.  The calculation of the bill is not correct.  The 2^nd opposite party is trying to evade from his own or his subordinates fault for applying correct tariff and the complainant is not liable to be penalised for the same.                     The above said act of the opposite party amounts to deficiency and unfair trade practice.  Opposite parties are liable to compensate the complainant for the mental agony suffered by the complainant.  Hence the complaint.

          On receiving notices from this Forum, opposite parties appeared before the Forum and filed joint versions.  The version of the opposite party 1 and 2 is as follows.

          The complainant is a private hospital and not a consumer under the Consumer Protection Act.  Hence the complaint is not maintainable before this Forum.  The complainant is a consumer of the opposite parties. On inspection conducted by the Anti Power Theft Squad of the opposite parties it was found that the complainant was charged under LT VI A tariff, which is applicable for the private hospitals and charitable institutions registered under Travancore, Cochin, Literary, Scientific and Charitable Societies Act 1955, the donations are exempted from payment of income tax and having a sanction for connected load of 26.026 watts.  During the inspection, the complainant did not produce the registration certificate under the Charitable Societies Act.  Site mahazar was prepared and duly acknowledged to the HR Manager of the complainant.                   On 09/12/15, the 2^nd respondent has issued a notice directing the complainant to produce certificate of registration under Charitable Societies Act 1955, within 7 days.  Since the complainant failed to produce the certificate on 23/12/15, the short assessment bill for an amount of Rs.2,11,332/- for the period from 01/14 to 12/15  on which the wrong application of tariff was applied to the consumer.  According to the Extraordinary Gazatee dtd.09/09/2013 LT VI A is applicable with effect from 01/05/13 to 31/03/14 to the private hospitals registered under the Charitable Societies Act 1955 and the private hospitals come under the classification of LT VIII tariff.  As per the terms and conditions of retail supply by KSEB registered under Charitable Societies Act 1955 is LT VIA with effect from 16/08/14 to 31/03/15 a private hospitals come under LT VI F tariff.                 The opposite party issued short assessment bill on the basis of the above said tariff.  Provisions of the Kerala Electricity Supply Code empower the licensee to realise the amount of electricity charge short collected by licensee in case of wrong application of tariff.  The opposite parties are acted as per the provisions of the law and the complainant is bound to pay the bill.  Therefore opposite parties pray for dismissal of the complaint.

          Complainant filed proof affidavit in lieu of chief examination and Ext.A1 to A3 were marked.  The 2^nd opposite party filed proof affidavit and Ext.B1 to B5 were marked.

          On perusal of complaint, version and evidence on record, we would like to frame the following for consideration.

1. Whether the complaint is maintainable or not?
2. Whether there is any deficiency in service or unfair trade practice from the side of opposite parties?
3. Relief and costs?

Point No.1

     The respondent contented that, the petitioner being a private hospital would not come under the purview of the Consumer Protection Act and the complaint is not maintainable.  Section 2 (1) (d) of the Consumer Protection Act “consumer” means any person who-

1. Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. Hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised; or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised; or partly paid and partly promised, or under any system of deferred payment, when such services are availed or with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.

As per sub Section (ii) of S.2 (i)(d), the person, who hires any service

for consideration, it has been paid or partly paid or promise to pay is the consumer of the service provider, if he does not avail the said service for any commercial purpose.  The provision of facilities in connection with electricity by the opposite party to the consumer is a service and would be covered under Section 2 (1) (o) of the Consumer Protection Act.  The opposite party has no case that the complainant is a reseller of the electricity or conducting any business related to electricity.  The opposite party has not adduced any evidence to prove that the complainant has generating any profit by using the electrical energy.  Therefore, we are in the opinion that the complaint is maintainable.

Point No. II

          The complainant is a consumer of the opposite party vide consumer No. 1146481000317.  There is no dispute on the fact that on 05/12/2015, the 1^st opposite party conducted an inspection on the premises of the complainant.  Ext.B1 is site mahazar prepared by the Sub engineer of the 2^nd opposite party in the presence of the Anti Theft Power Squad.  On inspection, it was found that the 2^nd opposite party used to issue the electric bill under LT VI A tariff to the complainant.  LT VI tariff is applicable for private hospitals and charitable institutions registered under Travancore, Cochin, Literary, Scientific and Charitable Societies Act 1959, the donations are exempted from payment of income tax and having a sanction for a connected load of 26.026 watts.                    The tariff applicable to the private hospital is under LT VI F.  On 23/12/15, the 2^nd opposite party issued Ext.A2 directing the complainant to pay Rs.2,11,332/- on or before 22/01/16.  The 2^nd opposite party stated that in case of non payment of electric bill, electric connection will be disconnected without any further notice.  On perusal of Ext.A2, we can see that on 09/12/15 2^nd opposite party issued a notice directing the complainant to produce the registration certificate under the Charitable Societies Act 1955.  It is further stated in Ext.A2 that the opposite party was wrongly billed under LT VIA due to the wrong application of tariff.

          The schedule of tariff and terms and conditions of the retail supply of electricity has been changed by the Kerala State Electricity Regulatory Commission.  Ext.B4 is the gazetted notification dtd.03/09/2013 regarding terms and conditions of the supply approved by KSERC for the period of 03/09/2013 to 01/03/2014.  Accordingly private hospitals come under LT VIII tariff with effect from May 2013.  According to Ext.B4 (a) gazette notification the tariff for private hospitals is LT VI F with effect from August 2014 to 31/03/15.  As per Regulation 134 (1) of the Kerala Electricity Supply Code 2014, the opposite parties are entitled to recover the balance amount of  under charged bill by issuing a notice of 30 days.  The opposite parties are entitled to realise the amount of electricity charges short collected in case of wrong application of tariff under Regulation 152 of the Supply Code.  In case of wrong application of the tariff, the licensee can suo moto reclassify the consumer under appropriate category of tariff. Regulation 97 of the Electricity Supply Code 2014, read as  Suo moto  reclassification of consumer category by the licensee

1. If it is found that a consumer has been wrongly classified in a particular category or the purpose of supply as mentioned in the agreement has changed or the consumption of power has exceeded the limit of that category as per the tariff order of the Commission or the category has changed consequent to a revision of tariff order, the licensee may                      suo moto reclassify the consumer under appropriate category.
2. The consumer shall be informed of the proposed reclassification through a notice with a notice period of thirty days to file objections, if any.
3. The licensee after due consideration of the reply of the consumer, if any, may reclassify the consumer appropriately.
4. Arrear or excess charges shall be determined based on the actual period of wrong classification and the account of the consumer shall be suitably adjusted.
5. If the actual period of wrong classification cannot be ascertained reasonably, the period shall be limited to a period of twelve months or a period from the date of last inspection of the installation of the consumer by the licensee whichever is shorter.

Provided that in the case of reclassification consequent to change of the purpose of supply by the consumer without due authorisation, the licensee may examine each case and initiate proceedings under Section 126 of the Act if found necessary.

          It is the bounden duty and responsibility of the licensee to reclassify the consumer suo moto under appropriate category consequent to revision of schedule of tariff and terms and conditions of retail supply of Electricity.  Hence it is not fair from the part of licensee to burden the complainant with a huge arrear bill.  Here in this case, the opposite parties have not taken timely action to reclassify the consumer category.  If the officers of the respondent were negligent in the matter of reclassification of tariff, it is totally unjust to sadle the complainant with a liability to pay a huge amount all of a sudden in lump.  This shows irresponsible attitude of the staff of the licensee in taking reading of consumers in general.  There is no justified reason for not changing the tariff category of the complainant as per tariff order issued by KSERC from time to time  as per Clause (2) of Regulation 97 of supply of Electricity Code.  It is mandatory that the consumer shall be informed about the proposed reclassification through notice with a period of 30 days to file objections if any.

          On perusal of record, we can see that Ext.A2 notice is issued by the 2^nd opposite party on 23/12/15 and that day itself Ext.A1 bill was also issued by the 2^nd opposite party.  Therefore, we found that opposite party has issued Ext.A1 bill without giving an opportunity to file objection under Clause 2 of the Regulation 97 of the Kerala Electricity Supply Code 2014.  We are of the opinion that the above discussed act of opposite party amounts to deficiency in service.   The complainant had deposited Rs.1,05,666/- as per Order of this Forum in IA 20/2016.  In the circumstances we allow the complaint in part and pass the following Order.

1. We hereby set aside the bill bearing No.4648151209128 dtd.23/12/15 issued by the opposite party to the complainant.  Opposite parties are at liberty to issue a fresh bill in accordance with the relevant provisions of the law without levying any penal charges from the complainant.
2. The opposite parties are directed to adjust Rs.1,05,666/- towards the future bill of the complainant as per the provisions of law.
3. Considering the nature and circumstances of the case no cost and compensation is allowed.

Dictated to the Confidential Assistant, transcribed and typed by her,

corrected by me and pronounced in the Open Forum on this the 11^th day of November, 2019.    

Sri. Manulal V.S. President Sd/-

Appendix

Exhibits marked on the side of the complainant

A1  :   Bill dtd.23/12/15 issued by opposite party

A2  :  Letter dtd.23/12/15 by 2^nd op to petitioner

A3  : Bill for Rs.105666/- by opposite party

Exhibits marked on the side of opposite party

B1  :  Copy of the site mahazar dtd.05/12/2015

B2  :  Copy of letter dtd.09/12/15 by opposite party to petitioner

B3  :  Calculation statement for the period of 01/14 to 12/15

B4  :  Gazette notification dtd.09/09/13

B4 (a) : Gazette notification dtd.27/09/14

B5: relevant pages of meter reading register 

                                                                                      By Order

                                                                             Senior Superintendent