KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM APPEAL NO:380/2009 JUDGMENT DATED:16..01..2010. PRESENT SMT. VALSALA SARANGADHARAN : MEMBER SRI. M.V. VISWANATHAN : JUDICIAL MEMBER Jacob Alex, Puthumadathil Ebenezer, : APPELLANT Manakkala, Adoor. (By Adv:Sri.G.Johnkutty) Vs. 1.The Assistant Engineer, Electrical Section, KSEB, Adoor. 2.The Assistant Executive Engineer, Electrical Major Section, : RESPONDENTS Adoor. 3.The Secretary, KSEB, Vydyuthi Bhavan, Pattom, Thiruvananthapuram. JUDGMENT SRI. M.V. VISWANATHAN : JUDICIAL MEMBER The above appeal is preferred from the order dated:13th October 2008 passed by CDRF, Pathanamthitta in CC.180/06. The appellant was the complainant and the respondents 1 to 3 were the opposite parties 1 to 3 in the said complaint in CC:180/06 which was filed alleging deficiency of service on the part of the opposite parties in issuing A1 penal bill for Rs.33,750/- and also to get the aforesaid amount refunded. It was the case of the complainant that he remitted the aforesaid amount covered by A1 bill as he was threatened by disconnection of the electricity supply. The opposite parties entered appearance and contended that A1 bill was issued under the provisions of the Electricity Act, 2003 and that the inspection conducted by the officials of the KSEB detected unauthorized use of electricity and thereby A1 penal bill was issued. Thus, the opposite parties denied the alleged deficiency of service. 2. Before the Forum below the complainant was examined as PW1 Exts.A1 to A4 documents were marked on his side. From the side of the opposite parties DW1, the Assistant Executive Engineer, KSEB was examined. B1 to B4 documents were also marked on the side of the opposite parties. On an appreciation of the evidence on record, the Forum below justified the action of the opposite parties in issuing A1 penal bill for Rs.33,750/-. Hence the complaint in CC:180/06 was dismissed. Aggrieved by the said order, the present appeal is filed by the complainant therein. 3. We heard both sides. The learned counsel for the appellant/complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He canvassed for the position that A1 bill was issued without following the provisions of the Electricity Act and the Conditions of Supply of Electrical Energy. Thus, the appellant prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned counsel for respondents/opposite parties supported the impugned order dated:13th October 2008 passed by the Forum below in CC:180/06. He argued for the position that A1 bill was issued under the tariff order for low tension 8-temporary extension. Thus, the respondent justified their action in issuing A1 penal bill. 4. The points that arise for consideration are:- 1. Whether the respondents/opposite parties can be justified in issuing A1 bill demanding payment of Rs.33,750/-? 2. Is there occurred any deficiency of service on the part of the opposite parties in issuing A1 penal bill? 3. Is there any sustainable ground to interfere with the impugned order dated:13..10..2008 passed by CDRF, Pathanamthitta in CC:180/06? 5. Point Nos: 1 to 3:- For the sake of convenience, we will refer the parties to this appeal according to their rank and status before the Forum below in CC:180/00. 6. The complainant is beneficiary of the consumer P.C.Baby who is no more. There is no dispute that a new building has been constructed by Annamma Rachel, the wife of the consumer, P.C.Baby. The complainant is the son in law of the consumer, P.C.Baby and Annamma Rachel. Admittedly an extension of the electricity line was drawn to the new building from the electricity connection provided for consumer No:1856. It is also admitted by the complainant in his proof affidavit that the new building was constructed in the year 1997 and the construction was over by October 1997 and the said building has been assessed with the Door No:EP-40 of the local Panchayath and from 1997 onwards electricity line was drawn to the said house from Consumer No:1856. Thus, the complainant and Annamma Rachel were consuming energy for both the said houses and the consumption was for domestic purpose. It is also to be noted that the complainant has been remitting electrical energy charges for actual consumption of energy which was recorded in the energy meter provided for consumer No:1856. In fact, there was no financial loss to the opposite party/KSEB because of the fact that electricity charges for the energy consumed have been remitted regularly. It is also to be noted that after the issuance of A1 penal bill a new electricity connection has been provided for the new building bearing Door No:40. There is no case for the parties to the complaint that energy meter installed at the premises of the Consumer No:1856 was not recording the actual consumption of energy. 7. Ext.A1 penal bill was issued for Rs.33,750/-. A reading of A1 penal bill would make it clear that the said bill was issued based on the inspection of the premises and detection of unathorised temporary extension of 5KW by the consumer. It is specifically stated in A1 penal bill that the said bill for Rs.33,750/- has been issued by virtue of the relevant provisions of the Indian Electricity Act. It was also stated in Ext.A1 penal bill that in the event of failure to remit the said amount of Rs.33,750/- within 7 days of acceptance of the notice, the electricity supply will be disconnected without further notice or intimation. Thus, it can be seen that A1 penal bill was issued under the provisions of the Indian Electricity Act. 8. A1 Bill was issued on 4..8..2005. The Electricity Act, 2003 has come in to force on 10/6/2003. Therefore, it can be inferred that the A1 bill was issued under the relevant provisions of the Electricity Act, 2003. When this appeal was taken up for hearing, the learned counsel for the respondents/opposite parties submitted that the A1 bill was issued under the provisions of Sec.126 of the Electricity Act, 2003 and the tariff order LT-VIII-temporary extension. A reading of LT-VIII temporary extension would make it clear that the said provision is provided for submitting an application to get temporary extension of the supply line. It is also stated in the said tariff order that for getting a temporary extension of the line, fee at the rate of Rs.50/- per KW per day is to be remitted with necessary application fee, testing fee etc. There is no provision under LT-VIII temporary extension tariff order for issuing penal bill for unauthorized extension of electricity line. So, the submission made by the learned counsel for the respondents/opposite parties that A1 bill was issued under LT-VIII temporary extension tariff order cannot be accepted. 9. It is also submitted by the learned counsel for the respondents/opposite parties that A1 penal bill was issued under the provisions of Sec.126 of the Electricity Act, 2003. Sec.126 empowers the assessing officer to issue provisional assessment order for unauthorized use of electricity. Sec.126(5) of the Electricity Act, 2003 reads as follows:- “If the assessing officer reaches to the conclusion that unauthorized use of electricity has taken place, it shall be presumed that such unauthorized use of electricity was continuing for a period of 3 months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of 6 months immediately preceding the date of inspection for all other categories of services, unless the onus is rebutted by the person, occupier or possessor of such premises or place.” 10. Section 126 (6) stipulates the tariff for making the provisional assessment. It is as follows;- Section 126(6):- “The assessment under the section shall be made at a rate equal to 1 ½ times the tariff applicable for the relevant category of services specified in sub section (5). Thus, the reading of Sec.126 of the Electricity Act, 2003 would make it clear that the provisional assessment can be made by demanding electricity charges at the rate equal to 1 ½ times of the tariff applicable for the connection with respect to consumer No:1856. Admittedly the tariff provided for the said consumer was the domestic tariff. The consumer has already been billed for the consumption of energy. So, the penal bill for Rs.33,750/- cannot be one issued under the tariff provided for unauthorized use as provided under Sec.126 (6) of the Electricity Act, 2003. The A1 penal bill issued by the opposite parties cannot be treated as one issued under the provisions of the Electricity Act, 2003. If that be so, the same is to be quashed. But the Forum below has not properly considered the provisions of sec.126 of the Electricity Act, 2003. The impugned order passed by the Forum below is liable to be quashed. Hence we do so”. 11. Admittedly, the complainant is a beneficiary of the original consumer P.C.Baby with consumer No:1856. The other new building was owned by the wife of the original consumer P.C.Baby. It is admitted by the Assistant Executive Engineer of KSEB that he made enquiries regarding the unauthorized use and it could be realized that Annamma Rachel is the wife of the original consumer P.C.Baby and that the original consumer P.C.Baby is no more. It is also admitted that a new electricity connection with consumer No:23929 has been provided in the name of Annamma Rachel with respect to the new building. Another pertinent point to be borne in mind is that on the death of the original consumer P.C.Baby his wife has become the legal heir entitled to get the connection with consumer No:1856 transferred. It is to be noted that the unauthorized use was for providing electricity connection to the new building owned by Annamma Rachel and the consumption of energy was for domestic purpose. It is also to be noted that the aforesaid extension of the line to the new building was taken in the year 1997 and that practice has been following till new connection was taken to the new building. The opposite parties were fully aware of this fact regarding use of energy for both the houses. They were also aware of the fact that the electricity was provided by drawing connection from the consumer No:1856; that the energy charges were also remitted by the consumer continuously without any default and the said payments were also accepted by the opposite parties. Considering all these aspects, the opposite parties ought to have taken a lenient view in the matter and it was also incumbent upon the opposite parties to instruct the consumer Annamma Rachel or her beneficiary to get a new connection in the new building. This is a fit matter to be settled by the parties to the complaint in CC:180/06. 12. The foregoing discussions and the findings thereon would make it clear that A1 penal bill was issued without any basis and ignoring the provisions of Sec.126 of the Electricity Act, 2003. The Forum below failed to consider the relevant aspects of the case and the evidence on record in its correct perspective. The Forum below omitted to consider the admission made by DW1, the then Assistant Executive Engineer, KSEB. The Forum below cannot be justified in dismissing the complaint in CC:180/06. This is a fit case to be remitted back to the Forum below for fresh consideration and disposal of the same on merits. Hence we do so. The points are answered accordingly. In the result the appeal is allowed. The impugned order dated:13..10..2008 passed by CDRF, Pathanamthitta in CC:180/06 is set aside and the matter remanded to the Forum below for fresh consideration and disposal of the same on merits. As far as the present appeal is concerned, the parties are directed to suffer their respective costs. The parties shall appear before the Forum below on 27..2..2010. M.V. VISWANATHAN : JUDICIAL MEMBER VALSALA SARANGADHARAN : MEMBER VL. | 
