Andhra Pradesh

Visakhapatnam-II

CC/448/2010

Villa Naga Lakshmi - Complainant(s)

Versus

The Assistant Divisional Engineer Operations - Opp.Party(s)

W.V.B. Ramalingam

28 Feb 2015

ORDER

                                              Date of Registration of the Complaint:06-12.2010

                                                                                                Date of Order:28-02-2015

BEFORE THE DISTRICT CONSUMERS FORUM-II AT

                             VISAKHAPATNAM

 

P  r  e  s  e  n  t:

1.  Sri H. Ananda Rao, M.A., L.L.B.,

     President           

2. Smt K. Saroja, M.A. B.L.,

     Lady Member 

                                3. Sri C.V. Rao, M.A., B.L.,

                                     Male Member

 

                          Friday, the 28^th day of February, 2015.

                                 CONSUMER CASE No.448/2010

Between:-

Smt. Villa Naga Lakshmi, W/o Srinivasa Rao,

Hindu, aged 45 years, land lady, resident of

D. No.58-20-28/4, Sri Sai Villa Nivas, APSEB

Colony, Butchirajupalem, Visakhapatnam.

….. Complainant

And:-

1.The Assistant Divisional Engineer (Operations),

   Gopalapatnam, The Andhra Pradesh Eastern Power

   Distribution Corporation Ltd., Power house,

   Gopalapatnam, Visakhapatnam.

2.The Divisional Engineer (Operations) Zone-III,

   The Andhra Pradesh Eastern Power Distribution

   Corporation Ltd., Opposite:s Hotel Green Park,

   Waltair Main Road, Visakhapatnam.

3.The Superintending Engineer (Assessments),

   The Andhra Pradesh Eastern Power Distribution

   Corporation Ltd., Corporate Office, TPT Colony,

   Visakhapatnam.

4.The Chairman & Managing Director, The Andhra

   Pradesh Eastern Power Distribution Corporation Ltd.,

   Corporate Office, T.P.T. Colony, Visakhapatnam.

                                                                                          …  Opposite Parties           

          This case coming on 13.02.2015 for final hearing before us in the presence of Sri W.V.B. Ramalingam, Advocate for the Complainant and Sri Sri K.S. Sankar, Advocate for the Opposite Parties 1 to 4 and having stood over till this date for consideration, this Forum made the following:

 

                                                ORDER

          (As per Sri. H. Ananda Rao, Honourable President, on behalf of the Bench)

 

1.       This consumer complaint is filed by the Complainant against the Opposite Parties to setting aside the Final Assessment Order Lr. No. SE/A/VSP/C. VSP/D.Z-III/SD/GPT/PF.1900/D.No.913 dated 09.11.2010, and to direct the Opposite Parties to pay Rs.2,00,000/- towards compensation and Rs.10,000/- towards costs.  

 

 2.      The case of the Complainant in brief is that the 1^st Opposite Party is the Assistant Divisional Engineer (Operations), and the 2^nd Opposite Party is the Divisional Engineer (Operations) Zone-III, the 3^rd Opposite Party is the Superintending Engineer (Assessments) and the 4^th is the Chairman & Managing Director,and the Complainant is the owner of the building bearing D. No.58-1-285 situate on the Main Road, NAD Kotha Road, Visakhapatnam, and is popularly known as Sri Sai Villa Chambers and it comprises of several tenants which were let out to third parties for running their business and his building is a commercial complex and it is owned by her exclusively and she obtained an Electricity Service Connection bearing No. S. C. No. HT VSP 513 Category-II in her name and the service was released on 26.09.2006.   Therefore, she is a registered consumer, the Opposite Parties refused to provide different service connections to the tenants stating that multiple service connection in one name cannot be released in a building owned by single owner.   She has been paying electricity consumption charges to the Opposite Parties regularly.

 

3.       The first Opposite Party made inspection of the building on 23.08.2010 and alleged that she is indulging in malpractice of re-sale of energy to her tenants and issued a Provisional Assessment Order Under Section.126 of the Electricity Act in Lr. No. ADE/O/GPT/DOC No.35/09-10/DNO.220/10 dated 07.10.2010 by installing separate energy meters and charging Rs.6-50 paisa and Rs.200/- towards consumer charges, then she immediately made a representation to the 3^rd Opposite Party against the said order stating that she has not committed any malpractice on that the 3^rd Opposite Party passed a final order without applying its mind directing her to pay 50% out of Rs.12,32,404/- and even otherwise asked her to challenge it by way of appeal.

 

4.       That any tenant will pay only those consumer charges which she has utilized but not more than that the bill issued by the Opposite Parties is for the entire building and her tenants have to be given a split up of the usage of power by them.    Apart from the power consumed, they are also expected to share the charges of the power consumed in the common areas, and all these matters shall be decided mutually between herself and her tenants.     The tenants cannot be expected to pay any amount as their share of power consumption from out of the total amount without any termination;   therefore, she has installed sub-meters to every unit and have been the collected the charges from the tenants.   The amount collected for each unit is inclusive of the power consumption for the common areas generally.   The other amount of Rs.200/- collected from the tenants used towards maintenance of the building.

 

5.       That the 3^rd Opposite Party without considering her representation in a causal manner passed an order therefore, it is not maintainable and the Opposite Parties are obligated to see that the consumer has given fair deal in every transaction and the conduct of the Opposite Parties in not providing services to her as they are expected to is clearly deficiency of service on their part.    Hence, this Complaint.

 

6.       The 1^st Opposite Party filed a counter adopted by the Opposite Parties 2 to 4 denying the material averments of the Complainant admitted that the Complainant has obtained Electricity Service Connection from them under Category-II (Commercial) under Service No. S.C. HT VSP 523 and it was released on 26.09.2006 and building bearing Door No.58-1-285 situated on the Main Road, NDA Kotha Road, Visakhapatnam and he is a registered consumer.   They further submitted the said premises was leased out to different tenants by the owner but the tenants by virtue of the Lease Agreement did not apply for service connections and therefore, individual service connections in the name of one single owner cannot be given and  and under those circumstances, the Complainant obtained HT service connection in her name.   Since the other occupants did not apply the service was released in the name of the Complainant only.      On 23.08.2010 the 1^st Opposite Party inspected the said building and found that the Complainant is indulged malpractice of resale of energy to her tenants by installing separate energy sub-meters and charging Rs.6-50 paise per unit and Rs.200/- towards consumer charges every month.   When the said Provisional Assessment Notice was given, she made a representation to the 3^rd Opposite Party.   Notice was given for payment of Rs.15,67,613/- and the Opposite Parties requested the Complainant to pay Rs.7,83,807/- towards 50% of the Provisional Assessment but she was failed.   However, the 3^rd Opposite Party after careful consideration of the records considered the representation given by the Complainant and reduced the assessed amount to Rs.12,32,404/- and directed her to pay 50% and asked her the challenge the same by way of an appeal.   Without preferring any appeal or filing a suit before the Special Court under Electricity Act under Section 154 filed the present case is filed which is not maintainable.

 

7.       That the Opposite Parties are supplying the energy to the Complainant at Rs.4-30 paise per unit excluding the demand charges which will come to Rs.5-40 paise in total which includes the demand charges, as per the tariff rate prescribed by the Regulatory Committee.   But the Complainant, is charging at Rs.6-50 paise per unit from the tenants thereby getting profit and the profit amount is only being paid to the department where under the Complainant is benefited by not paying the actual consumer charges to her premises under her control.   Thus by virtue of resale of energy there is a loss of Rs.1-10 paise per unit to the department which related inspection and assessment of the aforesaid amount the consumer complaint is not maintainable as there is no deficiency of service on the part of the Opposite Parties.   They acted under good faith after making inspection made provisional assessment was given.    For these reasons, the complaint filed by the Complainant is deserves to be dismissed.

 

8.       To prove the case on behalf of the Complainant, she filed her evidence affidavit and got marked Exs.A1 to A12.   On the other hand, on behalf of the Opposite Parties, the 1^st Opposite Party filed his evidence affidavit and got marked Exs.B1 to B6.

 

9.       Ex.A1 is the Photo copy of the H.T. Meters Reading Register dated 26.09.2006.   Ex.A2 is the office copy of the letter issued by the Complainant to the Opposite Parties dated 7.10.2010.    Ex.A3 is the office copy of letter issued by the Complainant to the Opposite Parties dated 7.10.2010.    Ex.A4 is the office copy of letter issued by the Complainant to the Opposite Parties dated 07.10.2010.   Ex.A5 is the office copy of letter issued by the Complainant to the Opposite Parties dated 07.10.2010.    Ex.A6 is the Assessment Notice for Short Billing Document No.36 issued by the 1^st Opposite Party to M/s. Sai Villa Chambers dated 07.10.2010.    Ex.A7 is the Provisional Assessment Notice for Short Billing Document No.35 issued by the 2^nd Opposite Party to the Complainant dated 07.10.2010.   Ex.A8 is the Final Assessment Order dated 09.11.2010.   Ex.A9 is the photo copy of Electricity Bill dated 22.11.2010.    Ex.A10 is the photo copy of Status of Electricity Bill January, 2009 to September, 2010.   Ex.A11 is the Mutual Agreement between Land Lord Tenants dated 12.11.2007.    Ex.A12 is the Proceedings issued by the 3^rd Opposite Party dated 18.10.2011.

 

10.     Ex.B1 is the photo copy of Monthly Electricity Bill issued by the Complainant to May New York dated 10.05.2010.   Ex.B2 is the photo copy of Monthly Electricity Bill issued by the Complainant to HDFC Standard Life dated 10.05.2010.   Ex.B3 is the photo copy of Monthly Electricity Bill issued by the Complainant to the ICICI Prudential Bank dated 10.05.2010.   Ex.B4 is the photo copy of Monthly Electricity Bill issued by the Complainant to the ICICI Prudential Bank dated 10.06.2010.   Ex.B5 is the HT Inspection Forms with Statement of the Complainant 28.08.2010.   Ex.B6 is the photo copy of Form of HT Agreement dated 21.07.2006.

 

11.     Both parties filed their respective written arguments.

 

12.     Heard oral arguments from both sides.

 

13.     Now the point that arises for determination is:-

Whether there is any deficiency in service on the part of the Opposite   Parties and the Complainant is entitled for the reliefs of advance amount with interest, compensation damages and costs.

 

14.     The first contention of the Opposite Parties is that as per Electricity

Act, 2003 under the Provisions of Section 154 the civil liability has to be fixed through a Special Court constituted under the Act, which is the 1^st Addl. District Judge of Visakhapatnam who is the competent to try the suit and fix up the civil liability and this court has no jurisdiction.   The record shows that the Complainant herein is the owner of the building bearing D.No.58-1-285 situated at Main Road, NAD Kotha Road, Visakhapatnam and the building consisting of several tenants which was let out to the third parties for running business and that the building is commercial complex which was leased out to establishments like banks and restaurants etc., and the Complainant obtained an Electricity Service Connection from the Opposite Parties under Category-II under Service No. S. C. No. HT VSP 513 Category-II and the service were released on 26.09.2006 and that the Complainant is a registered consumer.

 

15.     The next contention of the learned counsel for the Complainant is that the persons availing services for commercial purposes do not fall within the meaning of consumer therefore the Complainant cannot file a complaint before this Consumer Forum and relied upon a decision reported 2013 (5) ALT 33.3 (DN SC) 2013 (6) SCJ 153.    It is held therein the nature of transaction U/S 126 of 2003 of Electricity Act does not come within the ambit of the Complaint under Section-2 (1) (c) of 1986 Act i.e., persons availing services for commercial purposes do not fall within the meaning of the consumer and therefore the Complainant cannot file a complaint before this Consumer Forum.   Thus, it is evident that no complaint either against the assessment under Section-126 or against action taken U/S-135 to 140 maintainable before this Consumer Forum.

 

16.     Exs.A1 to A12 clearly and categorically goes to show after due inspection the payment Provisional Assessment Notice was given for payment of Rs.15,67,613/- and requested the Complainant to pay 50% the Provisional Assessment charges but she failed to do so.   However, she made a representation before the 3^rd Opposite Party who after careful consideration of the records considered her representation and reduced the assessed amount of Rs.12,32,404/- and directed the Complainant to pay 50%   of the amount first to the department and then file an appeal or a consumer case or a civil suit under Section 154 of Electricity Act under the provisions of Special Court and can pursue the proceedings.    The owner is expected to provide electricity to the tenants may be correct, but that does not mean that the owner is expected to resale the energy received by him from the Opposite Parties, according to the Opposite Parties the consumer complaint is not maintainable as there is no deficiency of service on their part.     It appears the Opposite Parties have acted under good faith and after making inspection made provisional assessment which was challenged and a final assessment was given after due representation by the Complainant herein.   Therefore, by strictly following the procedure contemplated under the act the department has issued the final assessment order appeal court, but the Complainant instead of agitating before higher authorities filed the present complaint.    Wherein, it is held supra, this Forum has no jurisdiction for entertains the same.

 

17.     On a careful reading of Exs. A1 to A12 exhibits coupled with the evidence of the Opposite Party, it is evident that after following due procedure only, they served provisional assessment notice against the Complainant and on her representation, they reduced the amount but instead of payment she approached this Forum.           Having regard to all these facts and circumstances, we are of the considered view, that there are no merits in the contention raised by the Complainant and therefore, the complaint deserves to be dismissed.

 

 19.    In the result, this Complaint is dismissed.   No costs.

     Dictated to the Steno, transcribed by him, corrected and pronounced by us in the Open Forum, this the 28^th day of February, 2015.

    Sd/-                                               Sd/-                                      Sd/-

Male Member                           Lady Member                                President

 

 

                                      APPENDIX OF EVIDENCE

For the Complainant:-

NO.	DATE	DESCRIPTIONOFTHEDOCUMENTS	REMARKS
Ex.A01	26.09.2006	H.T. Mete4rs Reading Register	Original.
Ex.A02	07.10.2010	Letter issued by the Complainant to the Ops	Office copy
Ex.A03	07.10.2010	Letter issued by the Complainant to the Ops	Office copy
Ex.A04	07.10.2010	Letter issued by the Complainant to the Ops	Office copy
Ex.A05	07.10.2010	Letter issued by the Complainant to the Ops	Office copy
Ex.A06	07.10.2010	Assessment Notice for Short Billing Document No.36 issued by the 1st OP to the complainant	Original
Ex.A07	07.10.2010	Provisional Assessment Notice for Short Billing Document No.35 issued by the 2nd OP to the Complainant	Original
Ex.A08	09.11.2010	Final Assessment Order	Original
Ex.A09	22.11.2010	Electricity Bill	Photo copy
Ex.A10	Jan.2009 to Sep. 2010	Status of Electricity Bill	Photo copy
Ex.A11	12.11.2007	Mutual Agreement between Land Lord Tenants	Original
Ex.A12	18.10.2011	Proceedings issued by the 3rd OP	Original

For the Opposite Party:-                                             

NO.	DATE	DESCRIPTIONOFTHEDOCUMENTS	REMARKS
Ex.B1	10.05.2010	Monthly Electricity Bill issued by the Complainant to May New York	Photo copy
Ex.B2	10.05.2010	Monthly Electricity Bill issued by the Complainant to HDFC Standard Life	Photo copy
Ex.B3	10.05.2010	Monthly Electricity Bill issued by the Complainant to the ICICI Prudential Bank	Photo copy
Ex.B4	10.06.2010	Monthly Electricity Bill issued by the Complainant to the ICICI Prudential Bank	Photo copy
Ex.B5	28.08.2010	HT Inspection Forms with Statement of the Complainant	Original
Ex.B6	21.07.2006	Form of HT Agreement	Photo copy

 

    Sd/-                                      Sd/-                                                Sd/-

Male Member                     Lady Member                                   President