BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 01/06/2011

Date of Order : 21/12/2013

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 279/2011

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :-

The complainant is the beneficiary of the electrical energy supplied by the opposite party. The complainant had taken the godown premises with door No. 6/711 B on lease within the limits of Thrikkakara Municipality from one Mr. Abdul Latheef. On an arrangement with M/s. Samsung Electronics India Pvt. Ltd., the complainant is using the godown for storing their products to earn his livelihood by means of self-employment. The facts while so on 23-05-2011, the opposite party issued a bill demanding Rs. 41,145/- alleging penal assessment of 3KW unauthorised load. Along with the bill, the opposite party also forwarded a covering letter and in the letter it is stated that in the inspection an unauthorised additional load of 2 KW was detected and the provisional penal assessment bill for Rs. 41,145/- is issued. The penal assessment is made in total violation of Section 126 sub-clause (b) of the Electricity Act. The complainant is not liable to pay any amount as demanded by the opposite party. The complainant is entitled to get set aside the disputed bill and also entitled to get a compensation of Rs. 50,000/- and costs of Rs. 5,000/- from the opposite party. This complaint hence.

2. The version of the opposite party is as follows :-
Electricity connection being Consumer No. 22603 under VII A category is registered in the name of Sri. Abdul Latheef with connected load of 1060 watts. The K.S.E. Board inspected the premises on 21-05-2011 and detected 3 KW unauthorized additional load being connected and is using without the permission of the Board and hence the provisional penal assessment invoice for Rs. 41,145/- was served on the complainant as per Section 126 (2) of Electricity Act 2003. As per B.O. (FM) No. 368/2008 (DPCI/C-G1/182/2007) dated 07-02-2008 the penalty rate shall be applicable to both fixed and energy charges for the unauthorized use. The complainant is liable to pay the amount as per the bill in question.

3. The complainant was examined as PW1 and Exts. A1 to A3 were marked. No evidence was adduced by the opposite party. Heard the learned counsel for the complainant.

4. The points that arose for consideration are as follows :-

1. Whether the complainant is entitled to get set aside the impugned bill?

2. Whether the opposite party is liable to pay compensation and costs of the proceedings to the complainant?

5. Point No. i. :- During the proceedings in this Forum, at the instance of the complainant vide order in I.A. No. 288/2011 dated 01-06-2011, this Forum restrained the opposite party from disconnecting the electric connection until further orders.

1. 1. 6. According to the learned counsel for the complainant, as per the decision of the Hon'ble High Court of Kerala in Ray Constructions Ltd. and Anr. Vs. The Assistant Executive Engineer and 2 Others (O.P. No. 17266/2002), the issuance of penalty bill for the electrical energy for the alleged unauthorised additional load is illegal.

       

7. The Hon'ble High Court in O.P. No. 17266/2002 (E) (decided on 09-06-2006) held as follows :-

“As far as penalty for unauthorised connected load is concerned, it is now settled law in view of the Bench decision of this Court in W.A. 1231/03 that the penalty has to be limited to the fixed charge portion. It is held that there shall not be any penalty by way of proportionate energy charges. The impugned demands are quashed making it clear that the liability of the petitioner shall only be for the penalty for fixed charge portion. The revised demand shall be issued to the petitioner and the amounts already remitted by the petitioner shall be adjusted.”

The Hon'ble Consumer Disputes Redressal Commission has taken the same view in Aboobacker V.M. Vs. Secretary, K.S.E.B & Anr. (Appeal No. 568/2012 decided on 24-04-2013) and in Brijith Mathew Vs. Secretary K.S.E.B. and Anr (Appeal No. 570/2012 decided on 24-04-2013). In view of the categorical pronouncement of the Hon'ble High Court of Kerala and the Hon'ble State Commission, this Forum has no hesitation to hold that the complainant is only liable to pay penalty for fixed charge portion only.

8. Admittedly, Ext. A2 the impugned bill has been issued for proportionate energy charge as well as for penalty for fixed charge portion. In the above circumstances, we are only to set aside Ext. A1 bill and direct the opposite party to issue a fresh bill in tune with the direction of the Hon'ble High Court of Kerala.

9. Point No. ii. :- This Forum duly considered the grievances of the complainant and quashed the bill under dispute. It is to be noted that the opposite party has issued the bill under the bonafide belief that they are empowered to issue a penal bill based on the 2 circulars of the K.S.E. Board as referred in the version. In that view of the matter, we cannot find any deficiency in service on the part of the opposite party. Thereby this Forum refrain from ordering compensation and costs of the proceedings.

10. In the result, this complaint is partly allowed and direct as follows :-

1. The order in I.A. No. 288/2011 is made absolute.

2. We set aside Ext. A2 the impugned bill.

3. The opposite party shall issue a fresh bill in line with the direction of the Hon'ble High Court of Kerala mentioned earlier to recoup the fixed charges, if any in toto in letter and spirit.

4. The complainant shall take steps to regularise the excess connected load if any in the disputed premises.

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

Pronounced in the open Forum on this the 21^st day of December 2013.

Forwarded/By order, Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil

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