By Smt. Bindu. R, President:
This complaint is filed by Sreekanth. M.K, Sansree Villa, Payodu (P.O), Mananthavady against the Assistant Executive Engineer, Electrical Sub Division, KSEB, Mananthavady and another alleging deficiency of service and unfair trade practice.
2. The Complainant states that the Complainant and his family were residing in building No.364/B in ward No.8 of Edavaka Panchayat. During corona period, the Complainant decided to sell the same due to financial crisis and entrusted one Anthrukutty to find out a buyer for the same. Complainant states that there after the Complainant and his family returned to his native place. Again the Complainant had a 2nd thought and he decided to start a home stay in the said building since no suitable buyers were there to buy the building. Hence he had applied for getting licence etc from the authorities concerned. According to the Complainant, he purchased the building for starting a home stay for his livelihood and he had obtained the certificates from the Pollution Control Board etc and applied for licence from local body by remitting an amount of Rs. 12,518/-. While so on 31.12.2021 Anti Power Theft Squad from Electricity Board came to the premises. Complainant states that on seeing the friends of the Complainant who were then residing in the building, they prepared a mahazar and issued notice stating that the Complainant is running a home stay without changing the tariff. The Complainant states that the squad prepared the mahazar on the basis of the receipt book found in the building pertaining to the brother concern. The Complainant states that the tariff was changed to commercial tariff by them without the consent of the Complainant and without notice and he paid the electricity bill given by the authority.
3. The Complainant further states that on 03.01.2022, the Assistant Executive Engineer, Electrical Sub Division, Mananthavady called the Complainant and told to pay an amount of Rs.20,843/- and instructed to file objection if any within 7 days and the Complainant filed his objection on 11.01.2022. Thereafter a hearing was conducted on 15.01.2022. The Complainant states that without considering the objection a final notice was mailed to the Complainant by the Opposite Parties. There after the Assistant Engineer contacted the Complainant over phone on 15.03.2022 and asked to remit the amount and the Complainant requested for time for the same since he was not at station. The Complainant states that without considering the objection and the request made by the Complainant the Opposite parties disconnected the electricity connection to the building and thereby caused loss and mental agony to the Complainant. The Complainant states that due to the financial crisis, now he has decided to use the building for residential purpose without using the building as home stay. The Complainant filed the instant complaint praying for issuing direction to the Opposite Parties to pay an amount of Rs.80,000/- towards the loss sustained to the Complainant, Rs.20,000/- towards compensation and also for a direction to the Opposite Party to bring back the tariff in to residential use instead of commercial use.
4. Upon notice the Opposite Parties appeared and filed their version contenting that the impugned actions are covered under section 126 and 127 of Electricity Act 2003 and the present petition is not maintainable before the Consumer Disputes Redressal Commission. It is contented in the version that the Opposite Parties took the recourse as prescribed in the relevant section of the Electricity Act 2003 after affording all the opportunities of being heard to the Complainant. Now the remedy available to the Complainant is to approach the Kerala State Electricity Appellate Authority under section 127 of the Act. It is contented by the Opposite Parties that since the Complainant failed to act upon in time, the Opposite Parties were constrained to issue demand cum disconnection notice after duly serving the same to the Complainant. Though the period for payment was over by 15.02.2022, Opposite Party waited till 15.03.2022 for disconnecting the supply. It is contented that the Complainant had remitted the amount on 25.03.2022 and the Opposite Party had effected the reconnection on the same day itself. It is contented that the Opposite Party had taken only legal actions against the customer and there is no violation of legal principles of law and prayed for dismissal of the complaint.
5. Even though the Opposite Party contented and challenged the maintainability of the complaint before the Commission, no steps were taken from the side of the Opposite Party for moving the Commission to hear the question of maintainability as preliminary issue.
6. Evidence in this case consists of the oral evidence of PW1 and Exts. A1 to A8 from the side of the Complainant. No oral evidence from the side of the Opposite Party. Even though site mahazar and provisional assessment bill were produced from the side of the Opposite Party, the same are not seen marked, since the same is marked from the side of the Complainant.
7. Heard both sides and the Commission has made a thorough probe in to the evidence adduced by the Complainant and also verified the allegations in the complaint and the contentions in the version.
8. In this connection the following are the main points to be analysed by the Commission to derive in to the merit of the case.
- Whether the complaint is maintainable as per the Consumer Protection Act 2019?
- Whether the Opposite Party have caused any deficiency of service or unfair trade practice to the Complainant?
- If so the compensation and costs to be awarded to the Complainant.
9. As regards to the maintainability of the complaint Section 100 of
the Consumer Protection Act 2019 states “ The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force”. In this case the Complainant is a consumer coming under the provisions of the Consumer Protection Act. But the crucial question to be considered in this case is that whether the complaint is maintainable before the Commission with respect to the issue involved in the case, which is also answered by the Commission along with the final orders.
10. Ext.A1 is the site mahazar prepared on the date of inspection by the Anti Power Theft Squad in the presence of Andru who was in charge of the building belonging to the Complainant Ext.A2 is the provisional assessment order dated 03.01.2022 issued under section 126(1) of the Electricity Act 2003. Ext.A3 is the objection filed by the Complainant Ext.A4 is the copy of Anti Power Theft Squad Provisional Assessment bill. Ext.A5 series is the copies of the receipt showing the payment of electricity bill dated 30.12.2021. Ext.A6 is the boarding and lodging Registration Certificate dated 27.01.2022 regarding Sansree Villa Payod, Nallurnadu P.O. Ext.A7 series are the documents to show that the Complainant had another home stay at Kavummandam named as Sansree puzhakkal stay.
11. The specific case of the Complainant is that the Complainant is running another home stay named Sansree Puzhakkal the receipt book of which is found from the building, and also finding 14 persons who were the friend of the Complainant in the building at the time of visit of the squad, the proceedings were initiated stating that a home stay is conducting in the building without changing the tariff. Ext.A1 site mahazar shows that there are evidences for the conduct of home stay and the inspection was made in the presence of an agent of the Complainant. Ext. A2 is the provisional assessment order issued on the basis of the inspection under section 126(1) of the Electricity Act 2003. As per Section 126(1) of the Act “ Assessment:-
- If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used, or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorised use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.
- The order of provisional assessment shall be served upon the person in occupation or possession or in charge of the place or premises in such manner as may be prescribed.
- The person, on whom a notice has been served under sub-section (2), shall be entitled to file objections, if any, against the provisional assessment before the assessing officer, who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person.
- Any person served with the order of provisional assessment may, accept such assessment and deposit the assessed amount with the licensee within seven days of service of such provisional assessment order upon him:
Provided that in case the person deposits the assessed amount, he shall not be subjected to any further liability or any action by any authority whatsoever.
- If the assessing officer reaches to the conclusion that unauthorized
use of electricity has taken place, it shall be presumed that such unauthorized use of electricity was continuing for a period of three months immediately preceding the date of inspection in case of domestic and agricultural services and for a period of six months immediately preceding the date of inspection for all other categories or services, unless the onus is rebutted by the person, occupier or possessor of such premises or place.
(6) The assessment under this section shall be made at a rate equal
to one-and-half times the tariff applicable for the relevant
category of services specified in sub-section (5).
Explanation - For the purpose of this section-
- “Assessing officer” means an officer of a State Government or
Board or licensee, as the case may be, designated as such by the State government;
- “unauthorized use of electricity” means the usage of electricity
- by any artificial means; or
(ii) by a means not authorized by the concerned person or
authority or licensee; or
(iii) through a tampered meter; or
(iv) for the purpose other than for which the usage of electricity
was authorized.
This clause provides that if an assessing officer on an inspection comes to the conclusion that a person is indulging in unauthorized use of electricity, he shall provisionally assess the electricity charges payable by such person. The order of provisional assessment shall be served upon the person concerned, who shall be entitled to file any objection before the assessing officer who may, after affording a reasonable opportunity of hearing to such person, pass a final order of assessment of the electricity charges payable by such person. It further provides, inter alia, that any person served with the order of provisional assessment may accept such assessment and deposit the assessed amount with the licensee within seven days of service of such order.(Notes on clauses)
12. Section 127 of the Act provides that “any person aggrieved by a final order made under section 126 may, within thirty days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed”.
13. A reading of the complaint itself shows that the Complainant filed his objections on 11.01.2022 and the hearing was conducted on 15.01.2022. But the case of the Complainant is that the final notice was given without considering the objection properly.
14. The counsel for the Opposite Party, for substantiating their arguments submitted the decision of the Apex Court in UP Power Corporation Ltd and others Vs. Anis Ahmad in Civil Appeal No.5466/2012 and other connected matters in which the Apex court has made it very clear that an un authorized usage of electricity by diversion shall not comes under the ambit of a complaint under the Consumer Protection Act. The decision in this regard is as follows:
46. The acts of indulgence in “unauthorized use of electricity” by a person, as defined in clause (b) of the Explanation below Section 126 of the Electricity Act 2003 neither has any relationship with “unfair trade practice” or “restrictive trade practice” or “deficiency in service” nor does it amounts to hazardous services by the licensee. Such acts of “unauthorized use of electricity” has nothing to do with charging price in excess of the price. Therefore, acts of person in indulging in ‘unauthorized use of electricity’, do not fall within the meaning of “complaint”, as we have noticed above and therefore, the “complaint” against assessment under Section 126 is not maintainable before the Consumer Forum. The Commission has already noticed that the offences referred to in Sections 135 to 140 can be tried only by a Special court constituted under Section 153 of the Electricity Act, 2003. In that view of the matter also the complaint against any action taken under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before the Consumer Forum.
- . In view of the observation made above, we hold that:
(i) In case of inconsistency between the Electricity Act, 2003 and the Consumer Protection Act, 1986, the provisions of consumer Protection Act will prevail, but ipso facto it will not vest the Consumer Forum with the power to redress any dispute with regard to the matters which do not come within the meaning of “service” as defined under Section 2(1)(o) or “complaint” as defined under Section 2(1)(c) of the Consumer Protection Act, 1986.
(ii) A “complaint” against the assessment made by assessing officer under Section 126 or against the offences committed under Sections 135 to 140 of the Electricity Act, 2003 is not maintainable before a Consumer Forum.
(iii) the Electricity Act, 2003 and the Consumer Protection Act, 1986 runs parallel for giving redressal to any person, who falls within the meaning of “consumer” under Section 2(1)(d) of the Consumer Protection Act, 1986 or the Central Government or the State Government or association of consumers but it is limited to the dispute relating to “unfair trade practice” or a “restrictive trade practice adopted by the service provider”; or “if the consumer suffers from deficiency in service”; or “hazardous service”; or “the service provider has charged a price in excess of the price fixed by or under any law”.
15. Here in the instant case, the very gist of the complaint itself is regarding the issuance of a notice and disconnection in view of the same by electricity authorities under Section 126 of the Electricity Act 2003. Hence this Commission do not have powers to entertain the case since the cases are registered under Section 126 of the Electricity Act 2003.
16. Circumstances being so, the instant complaint is not maintainable before this Commission and hence we do not have analysed point Nos. 2 & 3 and the complaint is only to be dismissed.
Hence the complaint is dismissed as not maintainable.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 15th day of November 2023.
Date of filing:23.03.2022.
PRESIDENT : Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
APPENDIX.
Witness for the Complainant:
PW1. Sreekanth. M.K. Business.
Witness for the Opposite Party:
Nil.
Exhibits for the Complainant:
A1. Copy of Site Mahazar.
A2. Copy of Provisional Assessment Order. dt:03.01.2022.
A3. Copy of Letter. dt:11.01.2022.
A4. Copy of APTS- Provisional Assessment Bill- Electrical Section
Mananthavady.
A5(a) Copy of Receipt No.1210103806/G120105. dt:30.12.2021.
A5(b) Copy of Receipt No.1210103804/G120105. dt:30.12.2021.
A5( c) Copy of Receipt No.1210103805/G120105. dt:30.12.2021.
A6. Copy of Boarding & Lodging Registration Certificate. dt:27.01.2022.
A7(a) Copy of Boarding & Lodging Registration Certificate. dt:06.01.2022.
A7(b) Copy of Registration. dt: 13.08.2021.
A7(c ) Copy of Sanitation Certificate. dt:23.11.2021.
A8. Copy of Registration Card.
Exhibit for the Opposite Parties:
Nil.
PRESIDENT: Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
