D.O.F:05/12/2019
D.O.O:30/06/2023
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KASARAGOD
CC.247/2019
Dated this, the 30th day of June 2023
PRESENT:
SRI.KRISHNAN.K : PRESIDENT
SMT.BEENA.K.G : MEMBER
Smt. Aisha Beevi, Aged 58 years,
W/o Ibrahim
R/at Povval,
Muliyar Village and Post,
Kasaragod Taluk and District : Complainant
(Adv: Madhavan Malankad)
And
- The Assistant Executive Engineer,
Electrical Sub Division,
KSEB Limited, Cherkala
- The Secretary
KSEB Limited, Cherkala: Opposite parties
(Adv: Mohanan Nambiar.M)
ORDER
SRI.KRISHNAN.K :PRESIDENT
The case of the complainant is short is that she is a consumer of electricity having domestic service connection under the opposite party. On 11/11/2019 opposite party inspected his premises, prepared a Mahazar with the allegation of committing theft of electric power causing damage to pay compounding fee served the Mahazar with a notice claiming Rs. 43142/-and compounding fee Rs. 16,000/-. The complainant denied the liability. The allegation of the opposite party involved in theft of Electricity from domestic connection is all false. In any event it comes under section 135 of Electricity Act 2003. The imposition of the penalty charges, collection of compounding fee is fixed unilaterally against the provisions of electricity supplies act 2003claiming tariff treating as section126 of electricity act and passing an order under section 135 is against the rules and not legally enforceable. The complainant therefore claimed refund of Rs. 43142/- after deducting the tariff if any payable to pay Rs. 25,000/- as damages, deficiency in service Rs. 16,000/- as compounding charges and cost of litigation.
2. The opposite party appeared and filed written version. The opposite party contended that consumer commission has no jurisdiction to try the case. The opposite party admitted that complainant is a consumer having domestic and agricultural purpose. And admitted the inspection conducted on 11/11/2019. The version shows consumer deliberately used power supplied for irrigation for agricultures to one for domestic purpose. Issued bills as per rules. No objection raised before the assessing or compounding authority. Bills are issued for power tariff from agricultural having commercial tariff for commercial profit. The complainant requested for restration of connection refund request off is not sustainable under law. Complaint against offence committed under section 135 to 140 of electricity Act is not maintainable before the redressal commission and hence prayed the dismiss of the complaint.
3. Both parties not adduced oral evidence. Complainant filed Ext A1 to A6 documents were marked. Ext A1 Mahazer, Ext A2 disconnection notice, Ext A3 notice from Opposite party Ext A4 bill issued by under section 135, Ext A5 bill, and Ext A6 receipt. The Opposite party produced Ext B1 proceedings of Engineer of Opposite party.
Following points arise for consideration:
- Whether consumer deliberately used power supplied for irrigation for agricultural to domestic purpose? If so whether it amounts to offence of theft contemplated under section 126 to 135 of Electricity Act 2013?
- Whether imposing of penalty and compounding fee imposed is sustainable or not?
- Whether complainant is entitled for relief claimed in the complaint?
- Whether there is deficiency in service from opposite party? Whether complainant entitled for compensation? If so for what reliefs?
4. In the case Opposite party says bills are issued as per rules. No objection raised before the assessing authority or compounding authority. It is pertinent to note that no notice is issued prior to issue of bills. According to Opposite party bills are issued and compounding having concessional tariff from an existing connection.
5. Ext A2 notice shows that it is issued under section 135 A of Electricity Act treating it as power theft. Complainants case is that Mahazar and version shows that there is no theft of any power but power is used from irrigation use to existing connection having concessional tariff for agricultural use thereby proceedings can be issued only under section 126 of Electricity Act treating its use as “un authorized use” and not amount to theft of electricity under section 135 of the act.
6. Provisional assessment was not made under section 126(1) of the 2013 Act for unauthorized use of Electricity and respondent was required to file objections but no steps taken under section 126(3).
7. Section 135 applies when dishonestly taps or makes a connection with any line or cable, consume or use electricity is considered to have committed an offence of “theft of Electricity”
8. Anybody who tampers with an electric meter or uses a tempered meter or any other devise or methods which interferes with accurate metering of electric current for personal or corporate gains is liable for an offence of theft of electricity.
“ theft of electricity” is different from unauthorized use of electricity the former employs an element of dishonest intention.
9. Section 126 of the 2003 act puts an implied restriction on such unauthorized consumption of electricity. It embodies complete process for assessment, determination and passing of a demand order.
Section 135 of 2003 Act significantly used the words “whoever dishonestly does any of the listed actions so as to abstract or consume electricity would be punished in accordance with the provisions of the 2003 Act.
iii) The assessing officer to provisionally assess, to the best of his judgement, the electricity charges payable by such person.
Generally when electricity is consumed in violation of any or all these it would be understood as “unauthorized use of electricity”.
b) “Unauthorized use of electricity” means
(i) by any artificial means; or un authorized use of the electricity as well as to ensure prevention of revenue, loss . Under section 126 of act there is no imposition of penalty.
10. In the present case notice Ext A3 issued under section 135 of the act. Thus notice assessing Rs. 16,000/- as compounding fee, as per section 135 is not sustainable and therefore demand notice Ext A4 and Ext A5 are also not sustainable.
The Opposite party is at liberty to initiate action under section 126 following the procedure therein as per law.
Officials visited the place and prepared the mahazar and issued the bills treating it as power theft instead of treating it as an unauthorized use. Ext A5 such it cannot be treated as deficiency in service and hence compensation and litigation cost is not allowed in the case.
When proceedings are initiated under section 126 of the Act, if any as compounding fee and penalty is found not payable. The Opposite party is directed to pay the excess amount collected either as compounding fee as the excess amount collected in the case. The Opposite party is also at liberty to adjust the said amount already collected in future bills if any.
In the result complaint is allowed in part. Demand notice Ext A2 to A5 are not as per section 126 of the electricity Act being an unauthorized use. But it is treated as theft of electricity and proceedings initiated under section 126 of the Electricity Act.
Sd/- Sd/-
MEMBER PRESIDENT
Exhibits
A1- Mahazer.
A2- Disconnection notice.
A3-Notice from Opposite party.
A4 & A5- Bill.
A6- Receipts.
B1- Compounding order
Sd/- Sd/-
MEMBER PRESIDENT
Forwarded by Order
Assistant Registrar
Ps/
