D.o.F.18/1/12

D.o.O:19 /12/12

 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                       CC.No.16 /2012

                        Dated this, the 19th  day of December 2012

PRESENT

SRI.K.T.SIDHIQ                                 : PRESIDENT

SMT.RAMADEVI.P                       : MEMBER   

SMT.BEENA.K.G                               : MEMBER

Ibrahim Haji. C.M, 

S/o Late Muhammed Haji,

Proprietor, Family Super Market,                 : Complainant

Choori, Po.R.D.Nagar,Kudlu,

Kasaragod.

(Adv.Shajid Kammadam,Kasaragod)

1. The Asst.Engineer,

     Electrical Section,

     Nellikunnu Section,KSEB,Kasaragod.

2.The Asst.Executive Engineer,

    KSEB  Electrical Sub Division,KSEB,Kasaragod.  : Opposite parties

3 The Secretary, KSEB,

   Vidyuthi Bhavan, Thiruvananthapuram.

                                                                             ORDER

SRI.K.T.SIDHIQ: PRESIDENT

       Complainant is a consumer under the opposite parties and he is running a grocery shop for eking out his livelihood on 11/10/2011.  Opposite party issued him a demand notice for Rs17493/- being the additional consumption charges as arrears by modifying the tariff unilaterally without affording any opportunity  to raise any objection.  According to the complainant he has not made any excess consumption to attract the impugned bill.  Hence the complaint.

2.  According to opposite party complainant is not a consumer since his concern is a commercial one and he is doing profit making business.  On merits the contention of opposite party is that the bill in contention is only short assessment of 3 meters as 3 different connections are in the same premises for same purpose.  This short assessment bill was calculated by charging the entire units  in all 3 meters existing in same premise vide consumer Nos 10121,10220,10118 at the rate of Rs 6.75 per unit under LT VII A whereas the regular bills were charged at the rate of  Rs 3.30 units under  VII B  tariff.  The difference was calculated for the period  from 12/07 to 12/2010 when anomaly was detected   in the section and the balance amount was  charged as  short assessment bill for consumer No.10121 for Rs17447/-.  The amount claimed is not for the excess consumption of electricity but for short assessment due to  charge in tariff.  The complainant  already  remitted 2 instalments of Rs6030/- and Rs5922/- on 25/10/11 and 25/11/2011 by accepting the  short assessment bill and  he is  liable to pay the balance amount also. 

3.   Complainant filed proof affidavit .  ExtsA1 to A6 marked on his side.  Opposite party has not adduced any oral or documentary evidence.  Both sides heard.  Documents scrutinized.

4.  The points arise for consideration are:

1. Whether the complainant is a consumer and the dispute is maintainable before the Forum?

2.   Whether there is any deficiency in service  on the part of opposite parties?

3.  What is the order as to relief and costs.

5.   Issue No.1 Maintainability of the complaint

     The contention of the opposite party is that the complainant is a businessman and the electricity is  provided in his business concern and he is  using the  electricity for commercial purpose and therefore he is not a consumer.  The said contention is not acceptable.  The complainant  may be a  businessman doing business in the shop room in which the disputed electricity connections are provided.  But the opposite party has no case that complainant is generating any profit out of the use of electricity.  In other words the electricity provided has no direct nexus  With the commercial establishment run by the complainant.  Complainant is not generating any  profit by selling the electricity.  The Hon’ble National Consumer Disputes Redressal Commission in the case of Harsolia Motors Vs. National Insurance Co.Ltd reported in 1986-2005 CONSUMER 9756(NS)  has held that unless the service availed  has direct nexus with the profit generation the said service cannot be considered as one for commercial purpose and hence such services will come within the purview of the Consumer Protection Act. Hon’ble National  Commission  held

‘’ for any commercial purpose would means that goods purchased  or services hired should be used in any activity directly intended to generate profit.  Profit is the main aim of commercial purpose.  But in a case where goods purchased or services hired in an activity which is not directly intended to generate profit, it would not be commercial purpose’’.

   In the  instant case on hand the complainant is not using electricity actively and directly to generate profit.  He may be using the electricity for lighting the shop room, but that does not mean that the complainant is using the electricity actively and directly to generate profit.  Hence we hold that complainant is a consumer and the complaint is maintainable before the Forum.

6.  Issue No.2:   The case of the complainant is that he never used electricity that attract Rs17447/- as additional bill.  But according to opposite party it is issued for the short assessment since complainant was  using 3 connections of electricity for the same establishment under the tariff VII B .  According to opposite party had the complainant used a single meter then his tariff would have been VII A which is higher tariff.  According to opposite party the difference of both tariff for the period 12/07 to 12/2010 is calculated when anomaly is detected and the balance amount is charged as per the short assessment bill.  

   From the above statement it is clear that the additional amount claimed as short assessment for a period of  3 years from the date on which when anomaly of three different electricity meters in a single establishment is detected.  If fixing three different meters in a 3 different rooms is an anomaly  then how and why the opposite parties provided such anomalous  connections? That is not explained by them.  Hence the said billing and billing period calculated is not  legally sustainable.

7.  Sec.56 (2) of the Electricity Act 2003 clearly bars the licensee from recovering any charge for electricity or any sum other than a charge for electricity after the period of 2 years from the date when  such sum became  first  due unless such sum has been shown continuously as recoverable as arrears of charges for electricity supplied unless the same has been shown continuously as recoverable as arrears of charges for electricity supplied.

8.   From the bill impugned it is seen that it is for the period  from 12/2007 to 12/2010.  This is quite repugnant to Sec 56(2) of  Electricity Act.  Hence the bill impugned is clearly barred by limitation.  Therefore we are of the view that  there is deficiency in service on the part of opposite party in claiming an amount which is legally not recoverable.

9.  There is yet another reason for setting aside the bill impugned. 

   The opposite parties have no case that for revising the tariff of complainant from LTVII B to LTVII A they sought  permission from the Electricity Regulatory Commission.  After coming into force of Electricity Act 2003 it is no longer open to the KSEB to unilaterally increase the tariff.  It can be done only after getting approval from Regulatory Commission.

    The Hon’ble High Court of Kerala had  an occasion to consider the above issue and  they held below (case reported in 2006(1) KLT 529)

                  Section 86 of the Electricity Act, 2003 confers power on the State Commission to determine the tariff for generation, supply, transmission and wheeling of electricity, wholesale, bulk or retail, as the case may be within the State. Powers have already been conferred under Section 86(1)(f) to adjudicate upon the disputes between the licensees and generating companies and to refer any dispute for arbitration. After the coming into force of the Electricity Act, 2003 it is no longer open to the Board to unilaterally increase the tariff. Same can be done only after getting approval from the Commission. No power has been conferred on the Board under the Electricity Act, 2003 to resolve any dispute with regard to the category under which a particular group of establishments falls; either industrial or commercial.

  Therefore the unilateral revision of tariff of complainant  from LTVII B to LTVII A itself constitutes deficiency in service

      Hence the  bill impugned  amounts to Rs17447/- is not legally sustainable and it is liable to be  cancelled.

  In the result complaint is allowed and opposite parties are directed to set aside  the bill issued in consumer No.10121 for Rs17447/-.  The instalments  complainant already remitted  Rs5922/- on 25/10/11 and Rs6030/- on 25/11/2011 towards the impugned bills are liable to be refunded.  The opposite parties shall either refund the said amount of  11952/- or adjust the same in the  future bills of the complainant.  The opposite parties further directed to issue bills under LT VII B tariff to the complainant till approval is received from Electricity Regulatory Commission for revising the tariff.  In the circumstances there is no order as to cost.  Time for compliance  is limited to 30 days from the date of receipt of copy of the order.

Exts:

A1-copy of rent bond

A2- copy of electricity bill

A3-instalment facility  sanctioned by the Executive Engineer.

A4-copy of memo regarding under protest

A5—do-

A6-copy of electricity bill

PW1- Ibrahim Haji- complainant

Sd/                                                                Sd/                                      Sd/

MEMBER                                           MEMBER                          PRESIDENT

eva

/Forwarded by Order/

SENIOR SUPERINTENDENT