Kerala
StateCommission
512/2005
The Asst.Engineer - Complainant(s)
Versus
S.Hirenissa - Opp.Party(s)
B.Sakthidharan Nair
07 Nov 2009
ORDER
| First Appeal No. 512/2005 (Arisen out of order dated 08/12/2004 in Case No. First Appeal No. 154/2004 of District Kollam) | ||||||||||||||
1. The Asst.Engineer Electrical Section,East Kallada,Kollam 2. The Secretary K.S.E.B.Pattom Thiruvananthapuram Kerala ....Appellant 1. S.Hirenissa Proprietrix,Heera Cables,Avittom,Muttom,East Kallada,Kollam ....Respondent | ||||||||||||||
*JUDGEMENT/ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD THIRUVANANTHAPURAM APPEAL NO.512/05 JUDGMENT DATED 7.11.09 PRESENT SRI.M.V.VISWANATHAN -- JUDICIAL MEMBER SRI.S.CHANDRAMOHAN NAIR -- MEMBER 1. The Asst.Engineer, Electrical Section, -- APPELLANTS East Kallada, Kollam. 2. The Secretary, KSEB.Pattom, Trivandrum. (By Adv.B.Sakthidharan Nair) Vs. S.Hirenissa, Proprietrix, Heera Cables, -- RESPONDENT Avittom, Muttom, East Kallada, Kollam. JUDGMENT SHRI.M.V.VISWANATHAN,JUDICIAL MEMBER The above appeal is preferred from the order dated 8th December 2004 passed by CDRF, Kollam in OP.154/04. The respondent in this appeal was the complainant in the said OP.No.154/04. The said complaint was filed alleging deficiency in service on the part of the opposite parties in issuing electricity bill dated 6.3.04 for Rs.32376/-. The complainant alleged that she is not liable to pay the aforesaid amount as her electricity connection to her premises was disconnected with effect from 28.6.02 and that she closed her industrial unit with effect from 1.1.02. The opposite parties therein entered appearance and filed written version contending that the complainant is not a consumer as defined under Section 2 (i) (d) of the Consumer Protection Act, 1986, that the complainant availed the electricity connection on 29.10.2000 under LT IV tariff with a connected load of 23330 watts and that the said electricity connection was availed for running industrial unit. It is further contended that the electricity service connection was disconnected on 28.6.02 for non payment of the bill for the month of June 2002, that the complainant was bound to remit the tariff premium even after the disconnection of the supply, that the complainant requested for extension of time and that the complainant was permitted to remit the arrears of charges by 10 monthly instalments, but the complainant failed to remit the amount as ordered by the first opposite party, that the connection was dismantled on 31.3.02, that the complainant is liable to pay the tariff minimum up to the date of dismantling of the electricity connection. Thus, the opposite parties requested for dismissal of the complaint. 2. Before the Forum below, the husband and authorized representative of the complainant was examined as PW1. P1 to P4 documents were also marked on the side of the complainant. The Asst. Executive Engineer, Electrical Sub Division, Kundara has been examined as DW1. Exts.D1 to D7 documents were marked on the side of the opposite parties. On an appreciation of the evidence on record, the forum below passed the impugned order allowing the complaint in OP.154/04. Thereby, the bills and notice issued by the opposite parties after 7 months from the date of disconnection are quashed with liberty to claim the charges up to 7 months from the date of default in payment of current charges. The requests for compensation and costs were disallowed. Aggrieved by the impugned order dated 8.12.04 passed by the Forum below in OP.154/04, the present appeal is filed by the opposite parties therein. 3. When this appeal was taken up for final hearing, there was no representation for the respondent/complainant. We heard the learned counsel for the appellants/opposite parties. He submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the respondent/complainant is not a consumer as defined under Section 2 (i) d (ii) of the Consumer Protection Act, 1986, that the Forum below has gone wrong in cancelling the arrear bills issued by the opposite parties, that the complainant is bound to remit the fixed charge, service line rental, guaranteed minimum etc. under regulation 34 C (ii) & (iii) and 31 (d) of the conditions of supply of electrical energy. He also relied on D1 and D2 requests submitted by the complainant for getting time to remit the arrears of charges due to KSEB. Thus, the appellants prayed for setting aside the impugned order passed by the forum below. 4. The points that arise for consideration are:- 1. Whether the respondent/complainant can be considered as a consumer as defined under Section 2 (i) (d) (ii) of the Consumer Protection Act, 1986? 2. Whether the opposite parties can be justified in issuing the electricity bill dated 6.3.04 for a sum of Rs.32376? 3. Whether the forum below can be justified in canceling the arrear bills and notices issued by the opposite parties with liberty to realize the tariff minimum of fixed charge for 7 months from the date of disconnection of the electricity connection? 4. Is there any sustainable ground to interfere with the impugned order dated 8.12.04 passed by CDRF, Kollam in OP.154/04? 5. POINT NO.1 The complainant in Paragraph 4 of her complaint it is averred that the complainant started the industrial unit by name Heera cables by availing loan from Kerala Khadhi Grama Development Authority for the purpose of earning her livelihood. The aforesaid averment in the complaint would show that the complainant has got a case that she is running the industrial unit under self-employment for earning her livelihood. The aforesaid averment in the complaint has not been denied or disputed by the opposite parties in their written version. Therefore, it can be inferred that the aforesaid case of the complainant has been admitted by the opposite parties. Thus, it can be concluded that the complainant in OP.154/04 availed the service of the opposite parties for commercial purpose and that the said services were availed for the purpose of earning her livelihood by means of self-employment. Thus, the explanation to Section 2 (i) d (ii) would come into play and the said explanation would come to the rescue of the complainant. If that be so, the complainant who availed the service of the opposite parties for commercial purpose can be considered as a consumer coming within the ambit of the Consumer Protection Act, 1986. 6. Admittedly, the complainant was provided with the service connection under LT IV tariff with a connected load of 23330 watts. The said connection was availed on 29.1.2000 under Electrical Section, East Kallada with Consumer No.10437 and the said service connection was given for running an industrial unit by name Heera cables. The complainant paid the current charges till May 2002 and she defaulted payment of the current charges for the month of June 2002 and thereby the aforesaid electricity connection was disconnected on 28.6.02. The opposite parties issued the arrear bill dated 6.3.04 for a total of Rs.32376/-. The definite case of the complainant is that she is not liable to pay the aforesaid amount of Rs.32376 covered by the said bill as her connection was disconnected on 28.6.02. The forum below was of the view that the opposite party/KSEB can only claim 7 months fixed charges (tariff minimum) for a period of 7 months from the date of disconnection as the opposite party was bound to dismantle the connection immediately after the expiry of 6 months from the date of disconnection of the electricity supply connection. Thus, it can be seen that the complainant herein availed the service of the opposite parties for running her industrial unit by the name Heera cables and the said services were availed prior to 15.3.03. It is to be noted that the amended act 62/02 came into effect on 15.3.03 prior to the said amendment, service availed for commercial purpose was also included within the purview of the Consumer Protection Act, 1986. In other words, a person who availed the service for commercial purpose was also treated as a consumer as defined under Section 2 (i) d (ii) of the Consumer Protection Act, 1986. If that be so, the complainant who availed the service of the opposite parties for commercial purpose prior to the commencement of the Amended Act 62/02 can be treated as a consumer as defined under Section 2 (i) d (ii) of the Consumer Protection Act, 1986. Thus, in all respects the contention of the opposite parties that the complainant is not a consumer as defined under Section 2 (i) d (ii) of the Consumer Protection Act, 1986 cannot be upheld. So, the Forum below is perfectly justified in entertaining the dispute involved in OP.154/04. This point is answered accordingly. 7. POINT Nos. 2 to 4:- There is no dispute that the complainant was given the service connection under LT IV tariff with effect from 29.1.2000 with the permitted connected load of 23330 watts. The complainant was a consumer of electrical section, East Kallada with Consumer No.10437. Admittedly, the complainant paid the current charges till May 2002, and that she failed to remit the current charge for the month of June 2002. It is the case of the opposite parties that the current charge for the month of June 2002 was Rs.1518/- and that due to the default in paying the said current charge the service connection to the premises of the complainant was disconnected on 28.6.2002. There can be no doubt about the fact that after the disconnection on 28.6.02 the complainant is not liable to pay energy charges, but the complainant is liable to pay the tariff minimum. It is the definite case of the opposite parties that from 28.6.02 the complainant was bound to remit the tariff minimum. 8. Regulation 34 (d) of the conditions of supply of electrical energy stipulates dismantling of the connection within 6 months of disconnection of the service connection. The aforesaid Regulation 34 (d) reads as follows:- 34 (d):- No service shall remain disconnected continuously for a period of exceeding 6 months for non-payment of amount due to the Board. If the dues are not paid within the 6 months period of disconnection, the service shall be dismantled and the agreement terminated immediately after the 6 months of disconnection after giving 15 days notice to the consumer. If the dues are cleared within the notice period of 15 days, the service shall be reconnected after realizing the penalty and other charges. If the dues are not cleared within 15 days the service shall be dismantled and agreement terminated without further notice. The amount due to the Board shall be realized through R.R. action. The aforesaid Regulation 34 (d) can be considered as the relevant regulation applicable to the case on hand. Admittedly, the service connection to the premises of the complainant was disconnected for non-payment of the current charge due to the KSEB for the month of June 2002, and due to the failure to remit the said amount of Rs.1518/-, the opposite parties disconnected the service connection on 28.6.02. Thus, it can be seen that Regulation 34 (c) has no application as far as the present case is concerned. Regulation 34 (c) is related to temporary disconnection owing to non-tendency/non occupation of the premises. But, as far as the present case is concerned, the disconnection was effected for non-payment of electricity charge due to the Board for the month of June 2002. In Paragraph 5 of the written version, it is specifically contented that the service connection was disconnected on 28.6.02 for non-payment of the current charge for the month of June 2002 amounting to Rs.1518/-. There cannot be any dispute that the Regulation 34 (d) stipulates dismantling of the service immediately after the 6 months of disconnection after giving 15 days notice to the consumer. In this case the service connection to the premises of the complainant was disconnected on 28.6.02 six months period expired by 28.12.2002. The opposite parties were bound to dismantle the service immediately after 28.12.2002. They were bound to give 15 days notice as stipulated under Regulation 34 (d) of the conditions of supply electrical energy and expiry of 15 days the agreement ought to have been terminated. But, in this case the opposite parties failed to follow the provisions of Regulation 34 (d) of the conditions of supply of electrical energy. In this case the opposite parties dismantled the service only on 31.3.04. They ought to have dismantled the service on 28.12.02 or after 15 days from 28.12.02. At any rate, the service ought to have been dismantled by the end of January 2003. There was deficiency in service on the part of the opposite parties in not dismantling the service as stipulated under Regulation 34 (d) of the conditions of supply of electrical energy. 9. The case of the opposite parties that the complainant made a request for extension of time and so they could not dismantle the service cannot be accepted. The learned counsel for the appellants much relied on D1 request dated 16.9.03 and D2 submission dated 22.9.03 made by the complainant. The D1 request was submitted to the first opposite party/Asst. Engineer, Electrical Sub Division, East kallada and D2 submission was submitted to the then Electricity Minister. As per D1 request the complainant requested for one months time to remit the arrears of charges due to the KSEB and thereby requested to drop the proceedings dismantling the service. In D2 submission also it was requested to give concession for the arrears and to provide reconnection of the disconnected electricity service connection. It is to be noted that D1 and D2 submissions were made during the month of September, 2003. There is nothing on record to show that prior to September, 2003 the complainant made any request for payment of arrears of charges due to KSEB. It is to be noted that as per Regulation 34 (d) the opposite parties were legally bound to dismantle the service immediately after the expiry of 6 months from the date of disconnection. The opposite parties were bound to dismantle the service by the end of December 2002 or by the end of January 2003. So, the case of the opposite parties that they could not follow the procedures prescribed under Regulation 34 (d) of the conditions of supply of electrical energy because of D1 & D2 submissions made by the complainant cannot be believed or accepted. There was no such request or submission made by the complainant during December 2002 or during January 2003. There was no need or necessity for the opposite parties to wait up to September, 2003. So, the failure on the part of the opposite parties in dismantling the service by December 2002 or January 2003 would amount to deficiency in service. The opposite party/KSEB is not entitled to get the tariff minimum up to 31.3.04, the date on which the service was dismantled. In fact, the opposite party/KSEB is only entitled to get tariff minimum for 6 months from the date of disconnection of the service connection. The aforesaid 6 months period expired by the end of December 2002. The Forum below has rightly held that the opposite parties are only entitled to get the tariff minimum for 7 months from the date of the disconnection. So, the claim for tariff minimum has been limited for a period of 7 months from the date of disconnection (28.6.02). The impugned order passed by the forum below is to be confirmed. The present appeal is devoid of merits and liable to be dismissed. These points are answered accordingly. In the result, the appeal is dismissed. The impugned order dated 8.12.04 passed by CDRF; Kollam in OP.154/04 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respect costs. M.V.VISWANATHAN -- JUDICIAL MEMBER S.CHANDRAMOHAN NAIR -- MEMBER Pronounced Dated the 07 November 2009
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