Per Sri M.V.L.Radha Krishna Murthy, Member:

This complaint is filed u/s 12 of Consumer Protection Act praying to order for refund of excess amount of Rs.55,596/- dated 15-10-11 paid by the complainant to the opposite parties company along with interest @24%p.a. from the date of filing till realization by setting aside the provisional assessment order dated 05-10-11 , to order for changing the category III to LT 6B as per the norms of the public works scheme, to order for an amount of Rs.50,000/- towards compensation for causing mental agony and harassment to the complainant by the opposite party and for costs of the complaint.  

1. The averments of the complaint in brief are as follows

Complainant is a charitable society established with an object of rendering service to public.  In rendering service to the public the complainant’s society with a view to establish purified drinking water unit, the complainant approached the 1^st opposite party and entered into an agreement dated 09-08-10.  As per the terms of the agreement the 1^st opposite party has to provide place and electricity connection and the complainant has to bear all the costs for establishments of water unit and electricity charges in the capacity of real consumer.  Complainant paid an amount of Rs.20,760/- to the APSPDCL company for service connection to the complainant by way of D.D. dated 16-10-10.  The 2^nd opposite party issued electricity connection under category LT 6B as per the norms of public works scheme (Rural) under service number 003416 in the name of 1^st opposite party.  Since then the complainant started Reverse Asmasine Purified Drinking Water Unit and supplying the water to schools including Anganawadi schools, social Organizations, temples and physically handicapped at free of cost.  In the meal while the 2^nd opposite party issued 1^st electricity bill under another category (Street Lights).  Then the complainant made an application to the 2^nd opposite party on 21-12-10 for issuing correct bill, accordingly the company made proper enquiry and issued correct bill under category LT 6B.  Since then the complainant has been paying electricity charges without default.  While things stood like that, on 10-09-11 the 3^rd opposite party all of a sudden inspected the water unit and issued provisional order on 05-10-11 stating that the complainant is guilty of unauthorized use of electricity for the purpose other than for which the usage of electricity was authorized i.e. for running mineral water plant and ordered for payment of provisionally assessed amount of Rs.1,10,792/- to the company.  Infact after enquiry when 1^st opposite party applied for electricity connection, the company issued connection under category LT 6B.  The complainant was using the  electricity for the purpose mentioned in the application made to the company, the same does not amount to unauthorized usage.  No reasons or grounds stated in the provisional order by the 3^rd opposite party dated 05-10-11 to show how that the complainant is guilty of unauthorized usage of electricity.  The said provisional order issued by 3^rd opposite party is with molified intention to get unlawful gain from this complainant.      The 3^rd opposite party is not competent to decide whether the complainant is running mineral water plant or Reverse Asmasin purified drinking water plant.  Without proper inspection the 2^nd opposite party issued provisional order.  Hence the complainant is not liable to pay either the penalty or excess amount.  The water unit run by complainant is not a mineral water plant.  All of a sudden after making inspection the company changed the category LT 6B to category III, without notice either to the complainant or to 1^st opposite party.  The provisional assessment order is against Law and Arbitrary.  After receiving provisional assessment order, the complainant paid an amount of Rs.55,596/- by obtaining loan from Kith and Kin at 24% p.a., due to threat of disconnection of power supply.  In the meanwhile the company issued monthly bill for an amount of Rs.8,159/- under category II dated 07-11-11 without giving prior notice about the change of category and the same was paid by the complainant.   Again on 08-12-11 the company issued monthly bill for an amount of Rs.9044/- under category III without prior notice.  Subsequently the company issued a fresh bill for an amount of RS.53,202/- (including alleged arrears of Rs.47,857/-)dated 06-01-12 stating that in default of payment of bill, amount they will disconnect the electricity supply by 06-02-12. 

3.      The 1^st opposite party preferred an appeal to 4^th opposite party against the order of 3^rd opposite party and the same was upheld by 4^th opposite party by not examining the material evidence placed before him by the 1^st opposite party.  The above circumstances reveal that the provisional order issued by 3^rd opposite party dated 05-10-11 is itself null and void, against Law, principles of natural justice and the same is not binding on the complainant.   Hence, the acts of the opposite parties amounts to deficiency of service and cause mental agony and harassment and inconvenience to the public.  Hence the complaint. 

4.      The 1^st opposite party remained exparte.

5.      3^rd opposite party filed version on its behalf and the same  

         was adopted by 2^nd and 4^th opposite parties. 

The said version in brief is as follows.  

        The various allegations made in the complaint save those that are specifically admitted herein are hereby denied.  They are highly exaggerated and misleading and contrary to the facts.  The complaint is not sustainable in Law or on facts and is liable to be dismissed with costs.  The service connection No. 00003416 of D7 section issued in the Name of Sarpanch, Grampanchayat, Gorantla under LT 6B PWS Schemes of Gorantla was inspected by V.Srinivasa Rao, Asst.Divisional Engineer (3^rd opposite party) in the presence of consumer on 10-09-11 at 15 hours and observed that at the time of inspection the consumer was using the supply for mineral water plant purpose and hence the usage of electricity for the purpose other than which the usage of electricity was authorized. Thus the consumer indulged in malpractice U/s.126 of Electricity Act 2003.  Basing on the inspection notes and report 2^nd opposite party issued a provisional assessment notice to the consumer basing on the assessment rules contained in Appendix –XII R/W clause 9.3 of general terms and conditions of the supply approved by APERC and provisionally assessed the loss sustained by Corporation @ Rs.1,10,792/- and if the consumer desires to continue his service the Assessing Officer asked the consumer to pay 50% of the total assessment amount along with supervision and reconnection charges etc.,.  Further it is intimated in the notice that if the consumer aggrieved by the order, he may prefer an appeal to final Assessing Officer after paying the total assessed amount.  Accordingly the consumer paid half of the assessment amount and preferred appeal to 4^th opposite party and after hearing the consumer the 4^th opposite party confirmed the assessment on merits vide his order dated 21-12-11 which has become final.  The consumer is guilty of malpractice of the electricity U/s 126 of Electricity Act 2003.  Therefore there is no deficiency of service on the part of opposite parties 2 to 4. Hence the complaint may be dismissed. 

6.      Complainant and 3^rd opposite party filed their respective affidavits in support of their versions, reiterating the same. 

7.      On behalf of complainant Exs.A-1 to A-30 were marked.  NO documents are marked on behalf of opposite parties.

8.      Now the points that arise for consideration are:

1.  Whether the complainant is a consumer within the meaning of

     Consumer Protection Act?

2.  Whether the complaint is maintainable before this Forum in view of

     the appeal preferred on the assessment order.

3.  Whether there is any deficiency of service on the part opposite

     parties i.e. 2 to 4.

1.  To what relief the complainant is entitled to?

9.      POINT NO.1:  The case of the complainant is that it is Charitable Society and rendering service to the public and in order to supply purified drinking water complainant approached 1^st opposite party and entered into an agreement dated 09-08-10,  that as per the terms of the agreement 1^st opposite party has to provide the place and electricity connection and the complainant’s society shall bear all the costs of establishment of water plant and electricity charges and accordingly complainant paid an amount of Rs.20,823/- to the  company and obtained electricity service connection under LT 6B Category with service No 00003416 in the name of 1^st opposite party and started Reverse Assmasine Purified Drinking Water plant and supplying the water to Schools, Social Organizations, Temples, and to physically handicapped with free of cost. On 10-09-11 3^rd opposite party inspected the water unit and issued provisional order on 05-10-11 stating that the complainant was guilty of unauthorized use of electricity for the purpose other than for which it was authorized for running the mineral water plant and ordered payment of provisionally assessed amount of Rs.1,10,792/-  to the company and changed the category to Category II dated 07-11-11 and also changed the same to Category III on 08-12-11 without prior notice and that the complainant paid an amount of Rs.55,596/- due to threat of disconnection of power supply.  The 1^st opposite party preferred an appeal to 4^th opposite party against the assessment order of 3^rd opposite party and 4^th opposite party upheld the same without examining the material evidence placed by 1^st opposite party and that thereby opposite parties 2 to 4 committed deficiency of service.

10.   The case of opposite parties 2 to 4 is that the service connection of 1^st opposite party  was inspected by 3^rd opposite party on 10-09-11 at 15 hours and observed that the consumer was using the service for water mineral plant and the usage of electricity for the purpose other than for which the usage was authorized and thus the consumer has been indulged in malpractice U/s126 of Electricity Act 2003, that basing on the inspection notes and reports of 3^rd  opposite party 2^nd opposite party issued provisional assessed order for Rs.1,10,792/- being the loss sustained by the Corporation stating that if the consumer desires to continue the service the consumer has to pay 50% of the total assessed amount along with supervision and reconnection charges etc., and also intimated that if the consumer aggrieved by the said order he may prefer an appeal against it to the Final Assessing Officer after paying the total assessed amount, but accordingly consumer paid half of the amount and preferred an appeal under assessment order through 4^th opposite party who confirmed the assessment on merits vide his order dated 21-12-11, therefore there is no deficiency of service on the part of opposite parties 2 to 4 as consumer is guilty of malpractice of electricity U/s 126 of Electricity Act 2003. 

11.   In this case the complainant is a charitable society.  The complainant obtained electricity service connection in the name of the 1^st opposite party. Complainant entered into an agreement with 1^st opposite party (Ex.A-3) and as per the terms of agreement 1^st opposite party has to provide place and electricity connection and complainant has to bear all the costs of establishment of water unit and electricity charges.  The contention of the complainant is that he started reverse asmasine purified dirking water unit for supplying water to schools including Anganawadi schools, social organizations, temples and to physically handicapped at free of cost.   The electricity connection was provided by 2^nd opposite party in the name of 1^st opposite party under category LT 6B and the 2^nd opposite party company has been issuing bills accordingly and the complainant has been paying the charges without any default. Being the beneficiary of the service connection and liable to pay the consumption charges as per the agreement Ex.A-3 the complainant filed this complaint before this Forum.

12.   When 3^rd opposite party inspected water unit on 10-09-11 the complainant was found guilty of unauthorized use of electricity for the purpose other than for which the usage of electricity was authorized i.e. for running mineral water plant and there by issued provisional order dated 05-10-11 (Ex.A-7) U/s 126 of Electricity Act 2003 by provisionally assessing the loss to the tune of Rs.1,10,792/-.   As seen from Condition 8 of Ex.A-3 for 20 liters of purified water Rs.4/- will be collected towards the charge by the complainant.  It was contended by the complainant that they are supplying the purified water at free of cost in various schools and organizations and in support of their plea complainant filed Exs.A-26 to A-29 letters issued by various institutions but no affidavits are filed in support of the said letters.  But as already stated above as seen from condition 8 of Ex.A-3 the complainant was collecting Rs.4/- for 20 liters of purified water from the consumers.  Therefore, it can be safely concluded, even though the complainant is supplying purified water at free of cost to some of the institutions, they are collecting Rs.4/- for 20 liters of purified water from the other consumers.  In view of the same it can be safely concluded that the complainant is indulged in commercial activity under the guise of a charitable trust.  Therefore we are of the opinion the complainant is not a consumer within the meaning of Consumer Protection Act.  Accordingly this point is answered. 

13.    POINTS 2  :  During the course of arguments the learn counsel for the complainant argued that the complaint is maintainable before this Forum and in support of his contention he relied on a decision reported in 2011 (4) CPR 207 (NC) between The SDO. (OP), Industrial Area Sub Division UHBVNL, Yamuna Nagar – Petitioner Vs Mohan Singh & Anr. Respondents, where in it was held

“Consumer Fora can adjudicate matter relating to assessment of penalty for unauthorized abstraction of electricity”

 In this case a penalty of Rs.1,10,666/-  was imposed on the Respondents/complainants by the petitioner/appellant/opposite party on the ground that on 05.03.2009, when the Assistant Executive Engineer, Enforcement Wing of the petitioner Nigam along with some other officials inspected the electricity connection (no.YA-15-3655) in the shop premises of the Respondents, the Team found a naked joint in the in-coming PVC wire before the meter (adjacent to the shutter of the shop) and two single core flexible copper wires with 3-pin power plug at one end inside the shop with approximately four meter of the yellow and blue wire near the naked joint.  The actual electricity load of the respondents was also found to be 4,420 KW against the sanctioned load of 2.9 KW.  A case of theft (dishonest abstraction of electricity under section 135 of the Electricity Act, 2003) was made out against the respondents, leading ultimately to imposition of the assessed penalty mentioned above. 

14.    The respondents/complainants in that case deposited the amount with the petitioner under protest and filed a complaint before the District Consumer Forum.  But whereas in the case on hand when Ex.A-7 provisional assessment order was served on the consumer, and complainant preferred appeal before 4^th opposite party against the said order and the 4^th opposite party upheld Ex.A-7 order and issued final assessment order under Ex.A-12 confirming the liability of the consumer.   Thus the consumer in this case preferred appeal against the provisional assessment order Ex.A-7 before 4^th opposite party who confirmed the same and issued final order under Ex.A-12 confirming Ex.A-7 provisional order.  Thus the consumer adopted a route for redressal of his grievance as stated above and later also the consumer approached the Forum for Redressal of consumer grievances, APSPDCL, Tirupathi,   on the final order       Ex.A-12.  Therefore in view of the facts of the present case the decision relied on the counsel for the complainant is not applicable to the case on hand, in view of the following decision. 

15.    In a decision reported in 2007(2) CPR (NC) between Dhir Sing and Haryana State Electricity Board, the National Commission held as follows : 

“Where consumer adopted a certain route to get his penalty reduced, then he cannot file a complaint against it before Consumer Fora.  Proper course is to go in appeal before competent authority in that route”. 

     “By now it is settled Law that if a consumer adopts a certain route for Redressal of his grievances, then he should pursue that route only.  Section 3 of the Consumer Protection Act only provides as additional remedy, in case any consumer ab inito adopts a route of grievance before a Consumer Forum.  In this case, the petitioner voluntarily adopted a certain route for Redressal of his grievance i.e., HSEB and there is no doubt that he got some relief there  In case he was not satisfied with the relief granted by the appropriate authority then he should have proceeded in appeal against that order.  The petitioner could not have filed the complaint before a Consumer Form as we are not an appellate authority against orders passed by HSEB.  In these circumstances, the revision petition as also the complaint is dismissed.”

Therefore, in view of the circumstances of the case and in view of the above reported decision, the case on hand is not maintainable before this Forum, since the consumer has already chosen to adopt a certain route for redressal of his grievance by preferring appeal to the 4^th opposite party on Ex.A-7 and also approached the Forum for Redressal of consumer grievances, APSPDCL, Tirupati as seen from Ex.A-30 on the final order Ex.A-12. Accordingly this point is answered against the complainant.

16.    POINT NO.3:-  The provisional assessment was made U/s.126 of Electricity Act, 2003 under Ex.A-7.  Assessing the consumer U/s126 of Electricity Act, 2003 is not a deficiency in service and accordingly sending a demand notice for the assessed amount is also not a deficiency in service.  Therefore we cannot find any deficiency of service on the part of opposite parties 2 to 4.  This point is answered accordingly. 

17.    POINT NO.4:-  In view of the findings on points 1 to 3 above this complaint is liable to be dismissed.

In the result, the complaint dismissed.  But in the circumstances of the case each party shall bear their own costs. 

Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 12^th day of June, 2012.

MEMBER                                  MEMBER                           PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainants:

For Opposite Party  : Nil

 PRESIDENT