IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 29th day of November, 2023
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 29/2023 (Filed on 30-01-2023)
Petitioner : Sreekumar P.C.
S/o. Chandrasekharan Nair,
Parathanathu House,
Koodappulam P.O.
Ramapuram, Kottayam
(Adv. Baiju Sebastian)
Vs.
Opposite parties : 1. K.S.E.B. Ltd
Rep. by its Secretary (Admn)
Vydyuthi Bhavan, Pattom,
Thiruvanthapuram -4
2. The Assist Executive Engineer,
KSEB Ltd. Electrical Section,
Ramapuram.
3. The Assistant Engineer,
KSEB Ltd. Electrical Section,
Ramapuram.
(For Op1 – 3, Adv. Deepthy S. Nath)
O R D E R
Sri. Manulal V.S. President
Complaint is filed under Section 35 of Consumer Protection Act, 2019
Case of the complainant is as follows:
Complainant is a consumer of the first opposite party with consumer number 1156293023879 availing the service connection to the premises of complainant’s
during September 2017 with tariff under LTIVA. The service connection was availed by the complainant on filing application with the third opposite party for the purpose for catering services. The third opposite party based on the inspection conducted in the premises of the complainant, effected a service connection during 9/2017 with suomoto application of tariff as LTIVA industrial. On 23-11-2022 a team of officials claiming to be the squad of KSEB Limited conducted and inspection in the Premises of the complainant. 26/11/2022 a letter accompanied by a provisional bill and calculation statement was served to the complainant by the second opposite party. In the said letter it is stated “on inspection conducted by the officials of electrical section at your premises detected tariff misuse by unauthorised extension. It is further stated in the said notice that provisional assessment bill of Rs.1,36,720/- in accordance with the Section 126 of Electricity Act 2003 is issued. As a consumer, complainant has no role to play with the tariff applied by KSCB Limited. The purpose for which service connection applied is for catering services and remains unaltered till date. After a personal hearing of the complainant the second opposite party vide letter dated 26/12/2022, informed the complaint that the entire proceedings initiated under section 126 stands dropped since the service connection under industrial tariff of LTIVA was assigned by KSEB based on the Udyog Aadhar acknowledgement as Micro Small Medium Enterprises. From this the second opposite party disagreed with the findings of the inspection party that there is tariff misuse in the premises. Regardless of the above the second opposite party issued a bill on the loss sustained to KSE B on account of Tariff change. There is no conferring of such authority under section 126 of Indian Electricity Act 2003. There are no arrears payable by the complainant as there is no demand made till date. Furthermore the second opposite party has no authority to declare the tariff of the premises other than LTIVA. The complainant is surprised to receive the letter dated 13/12/2022 of the third opposite party unilaterally classifying the petitioner’s connection under commercial tariff and claiming an amount of Rs.1,36,178/- towards the alleged loss sustained to KSEB with effect from 9/2017. Nowhere in tariff notification order dated 25/6/2022 of Kerala State Electricity Regulatory Commission it was mentioned to that tariff related to catering units are commercial. Whereas in LTIVA tariff categorization is similar industrial unit viz. bakeries where manufacturing process and sales one caused out in the same premises are classified as industry. Therefore the opposite parties have passed their authority in unilaterally declaring the tariff of the petitioner’s premises as commercial whereas no commercial activity is undertaken there. Therefore there is deficiency of service from the part of the parties. Hence the complaint is filed by the complainant to pass an order to declare tariff of the premises are under LTIVA industrial tariff and the opposite parties are directed to abide by the order of the Kerala State electricity regulatory commission and to set aside the demand cum disconnection notice issued for Rs.1,36,718/- and to pay a compensation of Rs.20,000/-.
In receipt of notice from this Commission opposite parties appeared before the commission and filed joint version contenting as follows:
The complainant is a consumer under the second opposite party by availing a service connection under LTIVA tariff during September 2017. At the time of granting service connection tariff seems assigned based on the Udyog Aadhaar acknowledgement issued during 2016. At that time operation of catering service was not started and hence the service connection seems considered under the head LTIVA industrial tariff. The name of the unit is mentioned as Aditya catering. On 23/11/2022 APTS Kollam along with Ramapuram Section team visited the premises and found that the activities of this premises as commercial in nature and not Industrial and Found that tariff 7A is applicable to this connection instead of LTIVA which is industrial tariff and the connection there is under LTIVA and there is a tarifff change.
A site Mahazar was prepared at the premises after the inspection and found that the consumer was wrongly utilising the electricity for the purpose for which it was granted at the time of application and so it was unauthorised usage of electricity. Here the activity is mentioned as cooking food and edible materials using raw vegetables and other materials and the serving at various sites based on orders received. For the disbursement of food being prepared, two vans bearing the name Aditya catering and events were parked in the premises. Even though catering units are not specifically mentioned under the head commercial the above activity of catering unit seems much similar to that of Hotels/ Restaurants, where cooking of food and its supply are the main activities which fall under the category of Commercial tariff, LTVIIA. Thus most suitable tariff applicable to meet their purpose is commercial only. In Aadhar Udyog certificate issued to the complainant they were categorised under service type D and not falling under the category manufacturing.
Provisional assessment as per section 126 was done by the assessing officer based on inspection report of AP TS and Site Mahazer which stated misuse of Tariff at the premises. Later upon verification after the conduct of hearing which came to the understanding that anomaly attributable is incorrect application of tariffs which does not attract provisions of the section 126 and hence the provisional assessment was quashed. Thus in such case the difference between the invoice amount and actual amount can be realised from the consumer under the category of short assessment as per Regulations 97, 134 and 152 of Kerala Electricity Supply Code 2014.
It is further submitted in the version that electrical connections for industrial or commercial purpose does not come within the meaning of the consumer as defined in Consumer Protection Act. There is no deficiency of service or unfair trade practice from the part of the opposite parties.
Complainant filed proof Affidavit in lieu of chief examination and marked Exhibits A1 to A5. The second opposite party filed a proof affidavit in lieu of chief
examination and marked exhibit B1 to B8 from the side of the opposite parties.
On evaluation of complaint version and the evidence on record we would like to consider the following Points.
- Whether the complaint had succeeded to prove any deficiency in service or unfair trade practise on the part of the opposite parties?
- If so, what are the reliefs and costs?
Points 1and 2 together
There is no dispute on the fact that the complainant has availed a service connection from the opposite parties vide consumer number 1156 293023879 from
September 2017 under LTIVA tariff. The complainant is engaged in conducting a small and medium enterprise in the name and style of Adithya Caterings. The first
contention of the opposite party is that the complainant would not come under the definition of consumer as defined in Consumer Protection Act. It is contended by the opposite parties that the electricity connection is availed by the complainant for the commercial purpose.
As per section 2(7) of the Consumer Protection Act, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment. In view of such section of the Consumer Protection Act 2019 the
present complainant can come before the Consumer Commission for redressal of his grievance despite enjoying commercial electric connection. Secondly, the complainant is admittedly enjoying the commercial electric connection, but he is not reselling electricity to others for earning profit, therefore the present complainant can be termed as consumer within the purview of the Consumer Protection Act.
There is no dispute on the fact that the service connection to the complainant was provided during September 2017 under LTIVA tariff. It is also an undisputed fact that 23/11/2022 Anti Power Theft Squad visited the premises of the complainant and found that the activities conducting in the said premises was commercial in nature and found that tariff 7A is applicable to the connection instead of LTIVA for a tariff.
Exhibit A1 is the copy of the service connection application filed by the complainant before the opposite parties. In exhibit A1 it is clearly stated with the purpose “Industrial and catering”. According to the opposite party at the time of branding service connection tariff was assigned based on the exhibit A3 Udyog Aadhar where it is recorded the name of enterprises as Adithya caterings. It is proved by exhibit A2 which is the D and O licence which is issued by the Secretary of Ramapuram Gramma Panchayat that the licence was given for conducting catering services.
It is proved by exhibit B3 site Mahaser that form 23-11-2022 the opposite parties conducted an inspection in the premises of the complainant’s catering unit. Thereafter the assessing officer of the opposite parties issued exhibit B4 notice on 26-11-2022 is served to the complainant on the basis of B2 inspection report and B3 site mahazer. In exhibit B4 it is stated that during the inspection it was detected unuthorised extension of load connected to the system and the service connection was effected for the industrial purpose under LT4 air tariff and the complainant have unauthorisedly taken supply for commercial purpose. It is further alleged in exhibit B4 that there was a misuse of electricity by the complainant and a provisional assessment bill in accordance with the Section 126 of electricity is issued to the complainant. Exhibit B5 is the provisional assessment bill issued by the opposite parties to the complainant LT7A tariff for an amount of Rs.1,36,720/-Thereafter a personal hearing of the complainant was conducted on 12/12/2022 vide exhibit B6 proceedings. On completion of the Exhibit B6 proceedings Assistant Executive Engineer of electrical subdivision, Ramapuram quashed exhibit B5 provisional assessment bill which is already given to the complaint and directed the third opposite party to issue a short assessment bill under section 97 of the electricity supply code.
Exhibit B8 is the short assessment bill dated 31-12-2022 issued by the third opposite party to the complainant demanding to pay Rs.1,36,718/- within 30 days from the date of receipt of exhibits B8 short assessment bill. On perusal of short assessment bill which is attached to the exhibit B8 we can see that the third opposite party demanded penal charge under Lt 7A tariff from the month of 9/ 2017 to the month of 11/2022.
It is contented by the complainant that there is no categorization made by the Kerala State Electricity Tariff Regulatory Commission that the purpose of the catering comes under LTVIIA commercial Tariff. Exhibit A4 is the of Tariff notification issued by the Kerala State electricity regulatory commission on 25/6/2022. In Exhibit A4 it is stated that the same is effected from 26/6/2022 to 31/3/2023. On going through the Ext.A4 we can see that the tariff under LTVIA category is applicable to commercial and trade establishments. On perusal of tariff notification we can see that LTIVA industrial tariff is applicable for the general purpose industrial loads which includes manufacturing units and the bakeries where manufacturing process and sales are carried out in the same premises. It further includes seafood processing units, prawn peeling and processing units granite cutting units, diary processing of milk by pasteurization and its storage and packing, soda manufacturing units, bottling plants/packing drinking water.
Opposite parties also produced the tariff notification issued by the Kerala State electricity regulatory commission. On Perusal of the same we can see that the tariff for the commercial and training establishments are included in LTVIIA tariff category. The said tariff category is applicable to commercial and trading establishment such as shops, showrooms display outlets, business houses and hotels and restaurants having connected load exceeding 2000 watts. It further includes shops selling confectionaries, sweat meats, breads and such other eatables without manufacturing process. Herein also the catering unit is not specifically included by the Kerala State Electricity Regulatory Commission.
Based on these categorization, a catering unit would typically fall under the LTIVA industrial tariff. The LTIVA tariff category is applicable for general purpose industrial loads, which include manufacturing units, bakeries where manufacturing and sales are carried out in the same premises, food processing units, and storage and packing facilities.
Since catering involves food preparation, storage, and often includes manufacturing processes related to food items without a direct sales outlet, it bring into line more closely with the LTIVA industrial tariff rather than the LTVIIA tariff, which applies more to shops, showrooms, business houses, hotels, and restaurants primarily engaged in sales with a connected load exceeding 2000 watts but without significant manufacturing processes on-site.
In case of wrong application of the tariff, the licensee can suomoto reclassify the consumer under appropriate category of tariff. Regulation 97 of the Electricity Supply Code 2014, read as Suomoto 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 suomoto 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 suomoto 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. 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.B7 which is the letter issued by the 2nd opposite party to third opposite party on 26-12-2022 that the second opposite party directed the third opposite party to recover the areas from the complaint from the date of inception of the electricity connection by issuing a short assessment bill under Section 97 of the Electricity Supply Code 2014. Ext.B8 is the short assessment bill issued by the third opposite party to the complainant on 31-12-2022. Therefore, we find that opposite party has issued Ext.B8 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. In the circumstances we allow the complaint in part and pass the following Order.
We hereby set aside the Exhibit B8 bill bearing No: BB/APTS/Assessment Bill/ dtd.31/12/2022-23 issued by the third 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.
Considering the nature and circumstances of the case no cost and compensation is allowed.
Pronounced in the Open Commission on this the 29th day of November, 2023
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 - Copy of the service connection application filed by the complainant before
the opposite parties
A2 – Copy of D&O licence issued by Secretary, Ramapuram Grama Panchayth
A3 – Copy of Udyod Aadhar MSME Certificate
A4 – Copy of Gazatte notification No.297/D(T)/2022/KSERC dtd.25-06-2023
A5- Copy of Gazatte notification No.297/D(T)/2022/KSERC dtd.25-06-2023
Exhibits marked from the side of opposite party
B1 -Copy of the service connection application filed by the complainant before
the opposite parties
B2 – Copy of joint inspection report dtd.23/11/2022
B3 – Copy of site mahazer
B4 – Copy of notice dtd.26-11-2022 issued by opposite party to complainant
B5 – Copy of provisional assessment
B6- Copy of procedure of hearing dtd.12-12-2022
B7- Copy of letter No.DB06/21-22/ESORPM/153/26-12-12 to 2nd opposite party
B8-Copy of letter dtd.31-12-2022 by 2nd opposite party to complainant
By Order
Assistant Registrar
