KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM 

APPEAL NO.83/2009

JUDGMENT DATED : 15.01.2010

PRESENT:-

SHRI.M.V.VISWANAHTAN                             :          JUDICIAL MEMBER

          Siju Punnoose,

          Velamkadavil  House,

Kurichi Village,

          Changanacherry, Kottayam                     :          APPELLANT

 (By Adv.Sri.R.Vijayamohan)

                Vs

1.    The Kerala State Electricity Board,

     Vydyuthi Bhavanam, Pattom,

     Thiruvananthapuram

                                                    :     RESPONDENTS

2.    The Assistant Engineer

     Electrical Section, Nattakom,

     Moolavattom.P.O., Kottayam.

3.    The Sub Engineer,

     KSEB, Nattakom, Kottayam

          (By Adv.Sri.B.Sakthidharan Nair)      

JUDGMENT

SRI.M.V.VISWANATHAN    :          JUDICIAL MEMBER

1.        Appellant was the complainant and the respondents were the opposite parties in C.C.No.41/2008 on the file of CDRF, Kottayam.  The complaint therein was filed alleging deficiency of service on the part of the opposite parties in issuing A1 penal bill dated 29.02.08 for an amount of Rs.2,02,003/-.  The opposite parties entered appearance and filed written version and contended that the complaint is not maintainable as the Consumer Forum has no jurisdiction to entertain the dispute with respect to issuance of provisional assessment under Section.126 of the Electricity Act , 2003.  They also denied the alleged deficiency of service on their part.  It was also contended that the provisional assessment under Sec.126 (1) of the Electricity Act was made on the basis of the inspection conduced by the anti power theft squad on 25.02.2008.

2.          Before the Forum below A1 to A5 series and B1 and B2 documents were marked from the side of the opposite parties in the complaint.  On an appreciation of the documentary evidence on record, the Forum below passed the order dated 11.12.2008 dismissing the complaint in C.C.41/2008 as not maintainable.  Hence the present appeal by the complainant therein.

          3.          We heard both sides.

          4.          The learned Counsel for the appellant/complainant submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He vehemently argued  for the position that the appellant was not given an opportunity to deposit half of the A1 bill amount covered by A1 bill as provided under Sec.127(2) of the Electricity Act, 2003.  Thus, the appellant/complainant requested to set aside the impugned order passed by the Forum below. On the other hand, the learned Counsel for the respondents/opposite parties support the impugned order passed by the Forum below.  He much relied on the provisions of secs. 125, 126, and 127 of the Electricity Act.  Thus, the respondents requested for dismissal of the present appeal.

          5.          The points that arise for considerations are:

1.                Whether the Forum below can be justified in dismissing the complaint as not maintainable?

2.                Whether Forum below is having the jurisdiction to entertain the complaint in C.C. 41/08?

6.          Points 1and 2:-    Appellant/complainant is a consumer under the opposite party K.S.E.B.  He has been provided with an electricity connection with Consumer No.7920.Admittedly the appellant/ complainant was served with A1 bill dated 29.02.08 directing him to pay an amount of Rs.2,02,003/-.  The aforesaid payment was supported by A2 penalty bill / letter dated 29.02.08 issued by the second opposite party Assistant Engineer, Electrical Section, Nattakom.  The aforesaid letter would show that there was unauthorized use of electrical energy by exceeding the connected load by 23 KW.  It would show that the aforesaid unauthorized connected load was detected in the inspection conducted by Anti power Theft squad on 25.02.08.  The A1 bill would also show that the same was issued as provisional assessment as provided under sec. 126(1) of the Electricity Act of 2003.  Against Ext.A2 penalty letter dated 29.02.08, the appellant/complainant filed A4 objection dated 04.03.2008.  A1 and A2 demands can be treated as provisional assessment made by the assessing authority under Sec. 126(1) of the Electricity Act, 2003.  It is on getting A1 and A2 bill and penalty letter the complaint   in C.C.41/08 was filed by the complainant before the CDRF, Kottayam.  Admittedly no final order or assessment has been passed or issued as provided under sec. 127(2) of the Electricity Act.  So, the complaint in C.C.41/08 cannot be treated as an appeal under Sec.127 of the Electricity Act 2003.  If that be so, the Forum below cannot be justified in dismissing the complaint on the ground that the complainant failed to deposit half of the disputed amount as provided under sec.127(2) of the Electricity Act, 2003.  On that ground alone the impugned order passed by the Forum below can be quashed.  

7.         The Forum has relied on decision rendered by the Hon’ble National Commission in Jharkhand State Electricity Board v/s. Anwar Ali reported in II (2008) CPJ 284(NC).   In the aforesaid decision it has been categorically held by the Hon’ble National Commission that the person aggrieved by the order passed by the assessing officer can very well approach the consumer Forum by filing complaint. It is further held that under sec.145 of the Electricity Act, 2003 would not prohibit or prevent the right of a consumer to approach Consumer Forum under the Consumer Protection Act, 1986.  The aforesaid decision (Supra) would also make it abundantly clear that under sec.3 of the Consumer Protection Act, a consumer of Electricity can very well approach the Consumer Forum constituted under the Consumer protection Act. It is also held that the provisions of sec.173,174 and 175 of the Electricity Act, 2003 cannot bar the jurisdiction of consumer Fora constituted under C.P.Act. In such a situation it was not fair on the part of the Forum below in dismissing the complaint in C.C.No.41/08 by holding that the complaint is not maintainable.

          8.          The Forum below dismissed the complaint in C.C.41/08 by relying on the decision in Anwar Ali’s case.  The discussion at para 36 of the aforesaid reported decision would make it clear that the Consumer Forum would direct the consumer to deposit an amount equal to 1/3 of the assessed amount with the licensee.  The 1/3 of the amount has been modified as ½ of the assessed amount by the subsequent amendment.  The aforesaid observations made by the Hon’ble National Commission would make it more clear that it was the duty of Forum below to afford an opportunity to the complainant to make deposit as provided under Sec.127(2) of the Electricity Act.  But in the present case, there was no direction to make such a deposit because of the fact that no final order has been passed by the assessing authority.  Thus, in all respects it can be safely concluded that the Forum below was having the jurisdiction to entertain the dispute involved in the complaint in C.C.41/08.  The Forum below cannot be justified in dismissing the complaint as not maintainable.  So, this commission has no reluctancy to interfere with the impugned order passed by the Forum below. Hence the same is quashed. These points are answered accordingly.

                              In the result, the appeal is allowed.  The impugned order dated 11.12.08 passed by CDRF, Kottayam in C.C.No.41/08 is set aside and the matter remanded to the Forum below for fresh disposal of the same in accordance with law.  It is made clear that the parties will be at liberty to adduce further evidence in support their respective case.  There will be no order as to costs.  The parties are directed to appear before the Forum below on 27.02.2010.    

M.V.VISWANAHTAN                     :          JUDICIAL MEMBER

Kb.