BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 27/04/2011

Date of Order : 29/08/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 219/2011

Between

 

And

O R D E R

Paul Gomez, Member.

1. The short, facts of the complaint :

The complainant is the beneficiary of the electric connection granted by the opposite parties to his grand father with the consumer No. 5922. A penal bill in the sum of Rs. 22,806/- was issued to the complainant by the 2^nd opposite party on the basis of audit report of RAO Perumbavoor. The complainant is of the view that the demand is barred by limitation by the Regulation 18 (8) of the Kerala Electricity Supply Code, 2005. It is pertinent to note that the unauthorised additional bill had been regularized in 2007 after collecting the penal charges. Hence it is prayed that the bill for realizing penal charges may be quashed.

2. The action of the opposite parties is justified in the version filed by the 2^nd opposite party for himself and on behalf of the 1^st opposite party. The Electricity Board has the power to penalize the unauthorised use of electricity as per clause 50 (5) and 50 (6) of the K.S.E.B. Terms and Conditions of Supply 2005. The rate at which assessment of penalty to be made also is prescribed in the terms and conditions. The period of such assessment is limited 12 months, in cases where the period is unascertained. The complainant has regularized the unauthorised additional load only on 01-05-2011. The penal charges assessed by the Regional Audit Officer, Perumbavoor pertains to short assessed penal charges upto 12/2008 and unauthorised additional load upto 4/2010. According to Regulation 18 (8) of the Kerala Electricity Supply Code 2005, no arrear can be recovered after 2 years from the date on which such arrear became due. The said provision is not applicable in this case, because the impugned bill is not an arrear bill, but a short assessment bill. Regulation 24 (5) of Electricity Supply Code provides that the licensee may recover the amount under charged by issuing a bill. So, the bar of limitation is not applicable in the case of the complainant. Lastly, the opposite parties contend that the complainant has rushed to the Forum without exhausting the administrative remedies. Hence it is urged to dismiss the complaint on the above grounds.

3. There was no oral evidence for the parties. Ext. A1 was marked on the side of the complainant while Exts. B1 and B2 were marked on behalf of the opposite parties. The learned counsel Advocate Tom Joseph appearing for the complainant and the learned lawyer appearing for the opposite parties respectively were heard.

4. The points that emerge for settlement :

1. Whether the impugned bill is enforceable or not?

2. What are the reliefs, if any?

5. Point Nos. i. and ii. :- The issue involved in the complaint is not complex. The complainant is urging to set aside the impugned bill in the sum of Rs. 23,806/- issued to him by the 2^nd opposite party on 28-03-2011. Mainly two pronged contentions are raised in the complaint by learned counsel Advocate Tom Joseph against the levy. Firstly, he argues that the recovery of Ext. A1 bill amount is barred by limitation and he presses into service Regulation 18 (8) of the Kerala Electricity Supply Code 2005 for the purpose. In the second place, he relies on the regularization of unauthorised additional load.

6. The aforesaid contentions are refuted by the learned counsel by holding that Regulation 18 (8) of the Kerala Electricity Supply Code 2005 is not applicable in the instant case, because the bill under dispute is not an arrear bill, but a short assessment bill. Regarding regularization of additional load, the opposite parties are of the view that it was regularized only on 01-06-2011. The learned counsel has also urged on us that the complainant has not exhausted the administrative remedies available within the Board.

7. We shall begin our discussion with addressing the last limb of the contents raised by the opposite parties stating that the complainant ought to have approached the Appellate Authorities of Board with his grievance regarding the impugned bill. We think it is a feeble contention in view of Section 3 of the Consumer Protection Act read with the preamble of the statute, which declares that the framers of the statute have envisaged it as a piece of legislation for the better protection of the consumer by providing expeditious and inexpensive remedies. In that light, we do not think the aforesaid contention holds much water.

8. Now regarding contention based on limitation, the opposite parties are of the view that Regulation 18 (8) cannot be applied in the instant case because Ext. A1 is a short assessment bill whereas the said provision addresses arrear bill. To reinforce their argument, they are also relying on Regulation 24 (5) of the Kerala Electricity Supply Code which according to them, authorizes the Board as licensee of electricity to recover the amount under charged by issuing a bill. We do not think the opposite parties can take shelter under these provisions in as much as those provisions have to be harmoniously construed. One cannot take Regulation 24 (5) as authorizing the Board to approach the consumer with a bill for realisation of under charged amount at any time. In that case, Regulation 18 (8) would be rendered redundant because those provision would run counter to each other. Therefore, in our view Section 24 (5) authorizes the licensee to levy under charged amount by issuing a bill before the stipulated period set out in Regulation 18 (8). When the bill is served beyond the dead line of two years, the levy would be bad in law as barred by limitation.

9. The learned counsel also made an attempt to distinguish the present levy as an amount in respect of short assessment in distinction to arrear. We can conceive it only as stretching the provisions too much to yield a result one would desire. Our response to such an effort is simple and we hold the view, that recovery of money, when it is effected beyond the prescribed limit set out in law is barred by limitation and hence bad in law. Hence the conclusion is inescapable that the validity of the impugned bill cannot be upheld, because it is barred by limitation. Conducting the internal audit by the opposite parties in time is their pigeon and the consumers cannot be penalised for their delay.

10. Lastly regarding regularization of unauthorized additional load, the complainant has submitted that the 2^nd opposite party had issued penal bill for unauthorised additional load and consequent on payment of charges the additional load was regularized way back in 2007. But in the version, it was contended that the unauthorized additional load was regularized only on 01-06-2011. Both the parties have not produced any material to prove their respective contentions. Even if we go by the date mentioned by the opposite parties, the matter ends with the regularization. After regularizing the additional load, the opposite parties cannot turn round and demand arrears, even if it arises out of audit report. They should have settled the matter once for all with the regularization. If there were any legal impediment, they ought to have deferred the act of regularization. The opposite parties cannot appropriate and reprobate. Therefore on the basis of that score also, the complainant stands to succeed.

11. In the result, we do not think that the contentions raised by the learned counsel for the opposite parties are tenable, eventhough they are forcefully put forth by him. Therefore in view of the discussions, we just had, we allow the complaint and set aside Ext. A1 bill issued by the 2^nd opposite party to the complainant on 28-03-2011.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 29^th day of August 2011.