CONSUMER DISPUTES REDRESSAL FORUM,PALAKKAD

Dated this the 28^th October, 2016

PRESENT :  SMT. SHINY.P.R, PRESIDENT

               : SMT. SUMA. K.P, MEMBER                       Date  of filing : 17/2/2016

               : SRI. V.P.ANANTHA NARAYANAN , MEMBER

CC /21/2016

G.Radhakrishnan,                                                    :        Complainant

S/o.H.Ganapathy Sarma Residing at 2/82,

Anupama, New Kalpathy

Rep. By his power of Attorney holder

P.R.Venkitaraman, S/o.Rama Iyer Residing at 2/82,

Anupama, New Kalpathy,

P.o. Palakkad.

(By Adv.M.P.Ravi)

             Vs

1. The Assistant Engineer,                              :        Opposite parties

    Electrical section Kalpathy K.S.E.B,

    Olavakode, Palakkad.

    (By Adv.T.Reena)

2. The Executive engineer,

    K.S.E.B, T.B.Road, Palakkad.

   (By Adv.T.Reena)

O R D E R

By Smt. Suma. K.P, Member,

The complainant is the owner of a property in Ambikapuram having an extent of 6 cents.  The said property is planted with 5 coconut trees 4 mango trees, 2 jackfruit trees, Muringa curry leaves, Sappota, Betel, Pepper Plants Arecanut, seasonal crops like plantain, Ladies finger, Brinjal, Coca Casis, Elephant Yarn, and cereals.

The complainant had obtained an electricity connection from the opposite parties on 8/3/2010 for the purpose of using the electric motor erected in the well situated in the property.  The motor is having ½ H.P. capacity and it is solely used for agricultural purpose.  The electric connection was under tariff LT/5A.  The complainant had received a bill dated 11/6/2015 demanding a sum of Rs.179/- whereby the opposite parties had changed the tariff from LT/5A to LT VII/A.  The opposite party has changed the tariff without any basis.  The changing of  Tariff was objected to by the complainant and he has issued a notice dated 11/8/2015 to the opposite party whereby he has requested the opposite parties to reinstate the old tariff plan and to pay back the excess amounts collected consequent to the tariff change.

The electricity is used by the complainant solely for agricultural purpose which cannot be distinguished on the basis of extent of property held by the consumer.  It has to determined based on the usage of electricity.  The tariff plan under LT/VII A is purely for commercial activities.  The complainant is not doing any commercial activity in the plot.  As a matter of fact there is not even a structure or building and the existing connected load is below 1000 watts.  The complainant is doing cultivation in the said property and on that basis alone he entitled to continue under V/5A tariff plan.

The acts of the opposite parties are against law and against the schedule of terms and conditions for retail supply of electricity by K.S.E.B.Ltd. as approved by the Kerala State Electricity Regulatory Commission which amounts to clear deficiency of service.  Due to the deficiency of service on the part of the opposite parties, the complainant has suffered a lot of mental agony and physical strain and monetary loss.  The complainant is entitled to get a sum of Rs.50,000/- as compensation for the deficiency of service mental agony and physical strain and monetary loss and the opposite parties are liable to pay the same.  Hence the complainant had approached before the forum seeking an order directing the opposite parties to pay an amount of  Rs.50,000/- towards compensation to the complainant along with the entire  cost of this proceedings. 

Notice was issued to the opposite parties for appearance. Opposite parties entered appearance and filed version stating the following contentions.

The complaint is not maintainable either in law or on facts.  Section 145 of the Electricity Act, 2003 bars the jurisdiction of Civil Court.  Here the tariff of the consumer was changed by the Assessing Officer and hence the Petition against changing of tariff is not maintainable before this Forum.  It is true that the complainant is a consumer under the electrical section, Kalpathy bearing Consumer No.11628.  The statement of the complainant that the property is planted with several trees is per se wrong.  It is also  false that the complainant has connected ½ HP motor in his property.  It is submitted that there were no connectivity of any electrical equipments in the property.  There is no purpose of use for the consumer inside the premises.  As such, the consumer has never used the said connection for any agricultural activity inside the premises. 

It is respectfully submitted that as per B.O.(FB) No.2763/2006 (DPC1/C-G1/113/2005) dated 6.11.2006, the KSEBL ordered the following criteria to identity the persons eligible for power connection for agricultural purpose.

1. A person who possess not less than 30 cents of which 75% area is under agricultural crops.
2. A farmer who is cultivating vegetables in an area not less than 10 cents
3. A farmer who is cultivating betel vine in an area not less than 5 cents

It is submitted that none of these criteria is applicable to the land of the complainant as of now.  There are no agricultural activities going on in the said land.  No motor is seen installed so that he can use the electricity to operate the motor for watering the plants. As such, the statement of the complainant that electricity is solely used for agricultural purpose is totally wrong and misleading.  The complainant cannot be allowed to use electricity under concessional tariff under LT VA which is purely for agricultural activities.  The tariff of the consumer was changed to LT VII A from LT VA as there has not been any agricultural purpose in the premises which is legal and void.  Hence the complaint may be dismissed.

Complainant filed application for appointment of an Advocate Commissioner to inspect the property and to file report to prove that there is no commercial activity at the complainant’s alleged property.  Application was allowed.  Commissioner inspected the property and filed a detailed report. 

Complainant filed chief affidavit and objection to Commission report.  Opposite parties also filed chief affidavit and objections to the Commission report.  Ext.A1 to A4  was  marked from the part of the complainant. Commission Report was marked as C1. Evidence was closed and the matter was heard.

The following issues are to be considered.

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

2. If so, what are the reliefs and cost? 

 ISSUES 1 & 2

The case of the complainant is against the proper classification of tariff from LT VA to LT VII A.  Opposite parties admits that the complainant is a consumer under the electrical section Kalpathy bearing consumer number 11628.  But they deny the fact that the property is planted with several trees.  To prove the said fact the complainant had taken out a commission and in the commission report it has been stated that there is no commercial activity in the plot and there  is not even a structure or building.  The reports also states that the complainant is doing cultivation in the said property.  The commissioner has also noted the fact that there is an ½ HP motor erected in the well for irrigating.  The main objection of the opposite party was that the complaint is not maintainable before this Forum and section 145 of the Electricity Act bars the jurisdiction of Civil Court.  If at all the complainant is aggrieved by any of the acts of the opposite parties, only remedy available for him is to approach the Consumer Grievance Redressal Forum u/s 111 (1) of electricity Act and to the Electricity Ombudsman.  The petition against changing of tariff is not maintainable before this Forum.  As per Regulation 97 of Kerala Electricity Supply Code 2014 the licensee can classify a consumer to a proper category if it is found that he is wrongly classified.  It was also submitted that as per B.O (FB) No.2763/2006 (DPC1-C-G1/113/2005) dated 6/11/2006 the opposite parties has ordered criteria for identifying the person eligible for power connection for agricultural purpose.

1. A person who possess not less than 30 cents of which 75% area is under agricultural crops.
2. A farmer who is cultivating vegetables in an area not less than 10 cents
3. A farmer who is cultivating betel vine in an area not less than 5 cents

Since none of the above criteria is applicable to the land of the complainant and since no agricultural activities are done in the said land the complainant cannot be allowed to use electricity under concessional tariff under LT VA which is purely for agricultural activities.  But the grievance of the complainant is that the opposite party has changed the tariff without any basis.  The tariff plan under LT VII A is purely for commercial activities.  Since he is not doing any commercial activities the existing connected load is below 1000 wats and he is entitled to continue under   LT VA tariff plan.  According to the Commission report also the property is planted with 5 coconut trees, 4 mango trees 2 jackfruit , sappotta and other seasonal crops. It can be inferred that the said property is used by the complainant only for agricultural purpose.  The judgment dtd.1/7/2013 in Civil Appeal No.5466/2012, the Hon’ble Apex Court had held that in case of in consistency between the Electricity Act and the consumer protection act, the provisions of consumer protection act will prevail. The complainant had obtained electricity connection from the opposite parties on 8/3/2000 for the purpose of using the electric motor erected in the well situated in the property.  The electric connection was classify under tariff VA considering the usage of electricity.  Electricity is used by the complainant only for the agricultural purpose which cannot be distinguished on the basis of extent of the property held by the consumer but it has to be determined based on the actual usage of electricity.  The tariff plan under LTVII A is purely for commercial activities.  Since there is no evidence to show that the complainant is doing any commercial activity in the plot it cannot be determined  under LT VII A. Hence the opposite parties are bound to reinstate the old tariff . 

In view of the above facts the complaint is allowed and we direct the opposite parties to reinstate the tariff with LT VA and to pay a sum of Rs.5,000/- (Rupees Five thousand only) towards compensation  for the mental agony suffered by the complainant and also to pay Rs.5,000/- (Rupees Five thousand only) towards cost of this proceeding.  The afore said amount shall be paid within 1 month from the date of receipt of this order failing which the complainant is entitled to get 9% interest for the said amount from the date of order till realization. 

Pronounced in the open court on this the 28^th  day of October, 2016.

                                                                    Sd/-

                                                                    Shiny.P.R

                                                                     President

                                                      Sd/-                                                                                        Suma. K.P

                                                                     Member

                                                                        Sd/-

                                                          V.P. Anantha Narayanan

                                                                     Member

A P P E N D I X

Exhibits marked on the side of complainant

Ext.A1 –Power of attorney issued in favour  of complainant dtd.29/01/2016

Ext.A2– Bill issued by the opposite party dtd.10/2/2015

Ext.A3– Bill issued by the opposite party dtd.11/6/2015

Ext.A4-Notice issued by the complainant with postal receipts and acknowledgement

C1- Commission Report – (Adv.V.Swapnalatha)

Witness marked on the side of complainant

Nil

Exhibits marked on the side of opposite party

Nil

Witness examined on the side of opposite party

Nil

Cost Allowed

Rs.5,000/- as  cost.