Andhra Pradesh

Nellore

CC/91/2014

M/S Sri Savya Aqua Feeds Rep by its Managing Partner - Complainant(s)

Versus

The Addl Divisional Engineer Operation Southern Power Distribution company of A.P Ltd - Opp.Party(s)

K.Gurivireddy

09 Mar 2016

ORDER

                                          Date of filing       : 06-12-2014

                                          Date of disposal  : 09-03-2016  

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Wednesday, this the 9^th day of MARCH, 2016.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                              

                            C.C.No.91/2014

M/s.Sri Savya Aqua Feeds,

Rep. by its Managing Partner

M.Ravindra Babu, S/o.Thirupal Naidu,

Aged about 50 years,

Jagadevipeta(V),Indukurpeta(M),

SPSR Nellore District.                                                          … Complainant

                    

                           Vs.

                                                                      

1. The Addl.Divisional Engineer(Operation)

Southern Power Distribution Company of A.P.Ltd.,

Kothur(V), Indukurpeta(M),

SPSR Nellore District.

 

  2.The Superintending Engineer,

      Southern Power Distribution Company of A.P.Ltd.,

      Dargamitta, Nellore-524004.                                       …   Opposite parties

                

 

       This matter coming on 25-02-2016  before us for final hearing in the presence of Sri K.Gurvi Reddy, Advocate for the complainant and Sri K.Padmanabhaiah,  Advocate for the opposite parties and having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

        This Consumer case is filed by the complainant against the opposite parties 1 and 2 to direct them to be ordered to provide re-connection to service no.NLR763 forthwith; to direct them also to pay Rs.2,00,000/- for causing business loss and also to pay the costs of the complaint and also to pass such other relief or reliefs as the Hon’ble  Consumer Forum may deemed it fit and proper in the circumstances of the case in the interest of justice.

 

The factual matrix leading to filing of this consumer case is as stated as hereunder:

I.(a)It is the case of the complainant that he had service no.NLR 673 from 1^st opposite party.  The complainant is the partnership firm manufacturing Aqua feed supplement for local farmers land based creature need.  He is also paying monthly power consumption bills for every month without any default.  In the meanwhile, 1^st opposite party had disconnected power service connection no.NLR673 without notice for which action of 1^st opposite party, is illegal.  So, he sent a letter dt.06-08-2014 and also got issued legal notice dt.08-09-2014 to the opposite parties.

 

(b)It is also further submitted by the complainant in paras 5 to 7 at page no.2 of his complaint that he had again sent a letter dt.19-10-2014 to the opposite parties and further requested them to re-connect power to the complainants firm.  The complainant had vexed with the negative attitude of the opposite parties for their deficiency in service and finally got issued legal notice dt.26-10-2014 once again calling them to reconnect power supply and sent to them with a copy of energy audit report of complaint firm.  It is a fact that the above said notices, even though served to them and there is no response from the opposite parties.  The opposite parties had ignored their services in providing re-connection and issuance of energy audit report.  It is established that there is deficiency in service on the part of opposite parties 1 and 2. The complainant is without power, facing manufacturing problems for causing business loss and subjected to mental agony, one cannot compensate in terms of money.

 

( c ) There is cause of action to file the complaint and having jurisdiction of this Hon’ble Consumer Forum and complaint is filed within limitation.  Hence, the complaint.

 

II.  DEFENCE:

 

(i)The 1^st opposite party was resisted the complaint by denying the allegations of the complaint filed by the complainant, had filed written version/counter on 25-02-2015 and a memo of adoption of counter was filed by the 2^nd opposite party in all particulars in it.  This complaint is not just and proper.

 

(ii) It is also further submitted by the 1^st opposite party that in para-3 of its written version/counter that the complainant is the registered consumer for H.T.Service no.673 of Jagadevipeta Vilalge, Indukurpeta Mandalam, SPSR Nellore District.  The said service connection was released in the name of complainant for the purpose of manufacturing aqua feeds.  He had been utilizing the supply of power for the purpose of rice industry, instead of manufacturing aqua feeds.  He is a habitual defaulter in paying the consumption charges.  His service connection was disconnected on           27-05-2014 due to non-payment of C.C. charges.  The amount was pendency at the time of dis-connection of Rs.2,45,090/-.  He has to pay Rs.9,85,750/- upto the month of January, 2015.  The complainant has to pay minimum charges along with surcharge amount in every month even if the service connection is under disconnection.

 

(iii) It is also further submitted by the 1^st opposite party in paras 4 and 5 at page no.2 of its written version/counter that if any consumer had fails to pay the consumption charges within 15 days from the date of bill, he has to pay surcharge towards belated payment at 0.5 paisa per day for each  Rs.100/- till the date of payment.  If consumer fails to pay the consumption charges, the service connection would be disconnected as per provisions of electricity tariff from time to time and terms and conditions to supply.  The Consumer had agreed for the said condition at the time of sanctioning the supply and also the said terms and conditions are also printed on the back side of the bill.  His service connection was dis-connected due to non-payment of consumption charges and it is not just and proper to re-connect the service without paying arrears.  The 1^st opposite party had demanded orally for payment of consumption charges and also, the complainant was informed that the service is liable to be disconnected if service charges are not paid.  There is no deficiency in service and negligence on the part of the 1^st opposite party at any time.  The service connection is still under disconnection.  It is therefore prayed that the Hon’ble Consumer Forum may be pleased to dismiss the complaint with costs.

 

III. The complainant had not filed his chief affidavit and also not marked his documents but there are some unmarked documents, whereas, the chief affidavit of the 1^st opposite party had filed on 25-02-2015 as RW1.  The written arguments of the complainant were filed on 09-10-2015 and the written arguments of the opposite parties 1 and 2 were filed on 30-07-2015.

 

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

(a)Is there any deficiency in service on the part of the opposite

    parties towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

                   (c) To what relief?

 

V.  POINTS 1 AND 2 :

     In view of these two points are inter-related and depends on each other, they have been taken up together for discussion and determination of the case.  The complainant has once again reiterated the facts of the case, basing on the complaint and written arguments filed herein.    It is nothing but repetition of them once again in his complaint.

 

Oral Submissions by the learned counsel for the complainant:

    Sri K.Gurvi Reddy, the learned counsel for the complainant has vehemently argued that the complaint and written arguments may be read as part and parcel of his oral arguments.  He has also further argued that without prior notice to the complainant by the opposite parties disconnected power supply though he paid power bills, causing huge loss its firm and its partners.  There is a deficiency in service on the part of the opposite parties towards the complainant. The complainant is sustained daily work loss/business loss, reputation and also goodwill in the market.  There are no replies to its letters from the opposite parties.  It is therefore prayed that the Hon’ble Consumer Forum may be pleased to allow the complaint as prayed for.    

 

Oral Submissions by the learned counsel for the opposite parties:

        On the other hand, the learned counsel of the opposite parties           Sri K.Padmanabhaiah has also vehemently argued that the complaint, affidavit and written arguments may be read as part and parcel of his oral arguments. He has also further argued that the material facts of the case are not disputed.  The complainant had been utilizing the power supply for the purpose of the rice industry instead of manufacturing aqua feeds.  He is a habitual defaulter in paying the consumption charges.  His service connection was disconnected on 27-05-2014 due to non-payment of C.C.charges.  The amount was in pending at the time of disconnection was Rs.2,45,090/- and at the same time he has to pay Rs.9,85,750/- upto to the month of January, 2015.  He has to pay minimum charges along with surcharge in every month even if the service connection is under disconnection. The said learned counsel for the opposite parties has also further contended that as usual the contents which are contained in the affidavit as well as his written arguments may be read as part and parcel of his oral arguments.  The above said service connection of the complainant is still under disconnection.  He had agreed the terms and conditions at the time of sanctioning the power supply and those said terms and conditions which are also printed on the back side of the bill.  Finally, he has argued that the opposite parties had demanded the complainant orally for payment of consumption charges and informed that its service is liable to be disconnected if the service charges are not paid.  There is no deficiency in service and negligence on the part of the opposite parties at any time towards the complainant.  It is therefore prayed that the Hon’ble Consumer Forum may pleased to dismiss the complaint with costs.

 

Forum’s Findings and observations

 

       Heard, the learned counsel for the both parties and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability.  The 1^st opposite party has alone filed its affidavit through one Mr.P.Sudhakar who is Addl. Divisional Engineer, A.P.S.P.D.C.Ltd., Indukurpeta Mandalam, Nellore District. Each case has to be judged on its own facts. 

   

      The first and foremost point is for our consideration that the opposite parties have disconnected complainant’s service connection legally or not?

 

    The complainant’s main allegations against opposite parties 1 and 2 are that 1^st opposite party had disconnected power supply to its service connection no:NLR673 without notice.  Thereafter, it had sent a letter dt.06-08-2014 and got issued legal notice dt.08-09-2014 to the opposite parties through the said learned counsel for the complainant.  Again, the complainant had also sent its letter by regd. Post on 19-10-2014 to the 2^nd opposite party. As per record is available with us, a registered letter dt.26-10-2014 issued from complainant’s advocate to the 1^st opposite party for re-connection of power supply as a final notice.  The copy of the said letter is also addressed  and it sent to the 2^nd opposite party also.  There is no reply from the opposite parties to the complainant.   The said service connection was disconnected on 27-05-2014 by opposite parties for non-payment of C.C. charges of complainant.

 

Electricity and its law:

  Supply of electricity for domestic and industrial use is also ‘service’ as per express provisions of section 2(1)(0) of the C.P.Act, 1986.  Being service, but a person receiving supply of electrical energy for consideration can invoke jurisdiction of the Consumer For a.  Virtually, the suppliers of electricity are expected to exhibit due fair play and care.  Supply of electricity has been held to be a ‘consumer service’ even if the energy put to a commercial use.  Section 26(6) of the Electricity Act, 1910 being very clear on the point that arrears on account of a defective meter can be recovered only for six months period Northern India Tiles Corporation Vs. DESU, 1993 CCJ 136 Delhi.

 

Disconnection:

  Where a consumer gets his service disconnected before the expiry of the agreement period and the bill was given for minimum charges after disconnection for the entire period of agreement, the Supreme Court of India, in the case of Uttarkhand Power Corporation Limited Vs.ASP Sealing products limited 2010(1) CPC 80 held that Consumer is liable to pay the minimum charges for the agreed period or for 6 months from the date of disconnection whichever is earlier.

 

Disconnection of service without notice as per the Indian Electricity Act, 1910:- Disconnection without issuing notice was deficiency in service – Haryana State Electricity Bord Vs. Naresh Kumar, 1996(1)CPJ306(NC).  Issue of 7 days notice was mandatory -  Isha Marbles Vs.Bihar State Electricity Board, 1995(2) SCC 648; A.P.State Electricity Board Vs.Narayana Murthy, 1999(2) CPJ 293 A.P.  Under the new Indian Electricity Act of 2003, 15 clear days notice is necessary before disconnection.  Here, we do not find any such notices of disconnection had been served to the complainant by the opposite parties at any time.

 

Lapses on the part of the opposite parties towards the complainant:

1)The demand notices for payment of arrears of electricity bills to the complainant are not served to him for the reasons best known to the opposite parties.  It is not there in the record of case.

2) There is no response from the opposite parties inspite of the letters are served to them by the complainant on the above said dates.  What are the reasons for not giving any reply to the complainant?  The opposite parties had not disclosed at any time before filing the complaint before us by the complainant.

3) What is the due amount and arrears of electricity bills from the complainant? The opposite parties are kept silent for the reasons best known to them, without expressing anything by them.

4) The opposite parties are not yet filed their detailed statement of account relating to complainant’s allegations in particular, payments of amounts to the opposite parties as per record.

5)By making simple and grave allegations against the complainant by the opposite parties in their written version/counter by saying that habitual defaulter is not enough, it must be supported by documentary evidence to prove it contrary.  That has not been done by the opposite parties for the reasons best known to them.

6) What is the actual due amount at the time of disconnection of power supply to the complaint on 27-05-2014?  It is not mentioned by the opposite parties for the reasons best known to them.  We are required them for our consideration to analyze it clearly.    Simply making figures such as by opposite parties that Rs.2,45,090/- and Rs.9,85,750/- is not sufficient.  There is no correspondence between the opposite parties and the complainant as the case may be. Everything, we cannot presume and assume is correct unless documentary evidence is established in their (opposite parties) favour.

7)The opposite parties are capable of furnishing the existing details of the complainant with regard to his service connection and levy of charges from time to time but they are for one reason or other kept silent without furnishing or declaring the true facts and those circumstances an adverse inference against a party is usually drawn, if the opposite parties are deliberately abstains from adducing better evidence which they are in a position to adduce them.  That has not been done so by the opposite parties for the reasons best known to them. 

 

 CASE-LAW:

1)A quasi-Judicial authority(Forum) must record reasons in support of its conclusions – 2011 CTJ(SC)(CP) 135.

2)In the case of Consumer dispute redressal Forums, the judgment must set out the points in dispute and a decision on those points supported by some reasons – 1995(1) CPR 832(NC)

3)Compensation or damages can be awarded only if the complainant has suffered loss or damages due to negligence of manufacturer or service provider – 2011(2)CPR101(NC).

4)The complainant must prove his claim by reliable evidence – 2011(3)CPR81(NC).

    In view of the Hon’ble Apex Court’s and Hon’ble National Commission’s Rulings as mentioned above, are with the authority as and when the circumstances arise, depending on the facts of each case, applicable according to the facts of each case, applicable according to the situations and contentions put forth by the parties concerned.  Here, the opposite parties are clearly committed their gross-negligence and it amounts to their deficiency in service towards the complainant.

    As per version of opposite parties, still power supply is not restored to the complainant and his service is disconnected. How long it will be or so? Is it not sufficient for them since 27-05-2014?  What are the opposite parties that are required from the complainant? We do not know about it.  Let it be disclose clearly till then the opposite parties are committing continuously deficiency in service towards the complainant.  In these circumstances of the case, the Forum will not sit as spectator witnessing the events that took place and it will punish the wrong-doer.  The party who is seeking relief or reliefs or defend the case must come forward or approach us with clean hands.

  

      We have bestowed our best of consideration to the rival oral submissions of the parties. The Consumer Forum is primarily would function on the principles of natural justice, equity and good conscience.  It is crystal clear that opposite parties had adopted so far a dogmatic, diffident and unhelpful approach in denying the rightful claim to the complainant.  Repeated deficiency in service of the Service Provider amounts to gross-deficiency in its service for which the Consumer herein has to be adequately compensated.  There is a force in the contentions of the said learned counsel for the complainant.  We have convinced with his oral arguments of the case.  The opposite parties have miserably failed in their attempt to convince us. Mental agony of the complainants cannot be measured in terms of money.  Justice is rendered in accordance with the Law. These two points are held in favour of the complainant and against the opposite parties, accordingly.

 

POINT NO.3 In the result, the complaint is partly allowed ordering the opposite parties 1 and 2 to provide re-connection to service no.NLR763 immediately; and jointly and severally liable to pay Rs.25,000/-  for causing financial loss to the complainant and also to pay him, costs of Rs.3,000/-  towards the complaint within one month from the date of receipt of the order.

 

Typed to the dictation to the stenographer and corrected and pronounced by us in the Open Forum this the 9th day of MARCH,              2016.    

 

               Sd/-                                                                             Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

  APPENDIX OF EVIDENCE

 WITNESSES EXAMINED FOR COMPLAINANT:

 

NIL -

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1

25-02-2015

:

P.Sudhakar S/o.Chandramouli, aged about 46 years, Hindu and working as  Addl. Divisonal Engineer, APSPDCL Ltd., Indukurupeta Mandalam, SPSR Nellore District.

                                                                              

EXHIBITS MARKED FOR COMPLAINANT:

 

NIL -

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                      

 

			NIL -

 

              Id/-                                                                                     PRESIDENT(FAC)

 

Copies to:

 

1. Sri K.Gurivi Reddy, Advocate, Nellore.
2. Sri  K.Padmanabhaiah, Advocate, “Sreerama Nilayam” 1^st Street, 23/1301, Tekkemitta, Nellore-3.   

           

 

Date when order copies are issued: