PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 29th day of February 2012

                                                                                                   Filed on :04-03-2010

Present :

          Shri. A  Rajesh,                                                     President.

Shri. Paul Gomez, Member.                                   Member.

Smt. C.K. Lekhamma,                                           Member

C.C. No.109/10

     Between

M/s. Ray Constructions Pvt. Ltd.    :         Complainant

Ray Bhavan, NH 14 By pass road,    (By Adv. Geprge Cherian

Thykoodam, Kochi-19, rep.,                Karippaparambil, NH 48,

by its Director,                                      Panampilly Nagar,

Mr. Mohananachandran Nair,               Kochi-682 036.)

S/oParameshwara Panicker.

                                                And

The Asst. Engineer,                        :         Opposite party

Electrical Section, Vyttila                          (party-in-person)

Kerala State Electricity Board,

Kochi-19.            

                                          O R D E R

A  Rajesh, President.

          The case of the complainant is as follows:

          Complainant is a private Ltd company engaged in the construction business.  Complainant is a consumer under the opposite party with Consumer No. 5556001307 with III phase connection with connected load of 6KW.  On 01-09-1999 the complainant submitted application to the opposite party seeking enhancement of the connected load.  In the meantime on 20-12-1999  the Anti Power Theft Squad inspected the premises of the complainant and imposed a penalty of Rs. 2,17,905/-.  At the instance of the complainant vide order in O.P. No. 17266/2002 E dated 09-06-2006 the Hon’ble High Court of Kerala quashed the demand for penalty and directed the opposite party to revise the demand and issue a revised bill.  But the opposite party kept in same in abeyance for no reasons stated.       At that juncture on 07-07-2008 APTS squad made another bill for Rs. 29,20,000/-.  Again the complainant approached the Hon’ble High Court  of Kerala.  As  per the direction of the Hon’ble High Court the Deputy Chief Engineer disposed of the appeal filed by the complainant finding that there is no unauthorized extension of circuit.  The opposite party has not taken any action in spite of the firm decision of the Hon’ble High Court of Kerala.  The impugned demand is issued in violation of the order of the Hon’ble High Court.  Thus the complainant is before us with a prayer to get the disputed bill set aside and to get compensation and costs of the proceedings from the opposite party.

          2. The version of the opposite party.

          The complaint is not maintainable either in law or on facts.  The detected connected load of the firm is 85KW.  This shows that this  is a large commercial establishment and hence the complainant will not come under the definition of ‘consumer’ as per Section 2 (1) (d) of the Consumer Protection Act 1986. An inspection was conducted by the APTS on 20-12-1999 which detected an additional load of 79 KW instead of existing load of 6KW and subsequently a penal bill was issued for Rs. 2,17,915/- for the unauthorized additional load.  The consumer approached the Deputy Chief Engineer, APTS, Thiruvananthapuram and in the meanwhile remitted Rs. 54,500/- i.e. 25% of the bill amount on 13-01-2000.  The Deputy Chief Engineer, APTS, Thiruvananthapuram revised the bill to Rs. 1,18,558/-. The complainant filed Writ Petition before the Hon’ble High court of Kerala numbered as OP No. 17266/2002.  The Hon’ble High Court disposed of the matter directing the respondent board to issue bill charging penalty for fixed charge portion.  The complainant filed Writ Petition before the Hon’ble High Court of Kerala numbered as O.P. NO. 17266/2002.  The Hon’ble High Court disposed off  the matter directing the respondent Board  to issue bill charging penalty for fixed charge portion.  The complainant duly paid Rs. 35,000/-.  In the meantime APTS made another inspection on the same premises on 07-07-2008 and detected that the service connection being used for Indian Bank under LT VIC tariff in the building NO. 29/373D.  It was found that the service had been extended to six other premises having separate door Nos. 29/373A, 29/373 B, 29/373 C, 29/373F and 29/374 and a total load of 108 KW was detected. Out of this 80 KW was unauthorized extension and accordingly and hence billed for Rs. 29,20,000/- (80 KWxrs.100x365 days) Out of this 14,60,000/- was paid.  The firm had furnished a bank guarantee on 07-11-2008 for Rs. 83,058/- and hence new connection was effected subject to final Judgment .  The revised bill has been issued as per the order dated 25-07-2009 of  Deputy chief Engineer, Electrical circle, Ernakulam and direction of Hon’ble High Court  in its Judgment in O.P.No. 17266/2002, based on the above order bill issued for Rs. 717963/- for the period from 7/2007 -6/2008.  The complainant regularized the load in 1/2009 only. So the penalization was to be continued up to 1/2009.  Hence that comes to Rs. 4,21,647/- for 7/2009.  Up to 7/2007 the total load was 85 Kw and no penalization for 97 Kw which is unauthorized load.  Hence penalty for fixed charge and energy charge for 79 KW is to be assessed.  This penalty amounts to Rs. 7,11,661/- for the period from 1/2000 to 6/2007.  The calculation is shown as bellow:

          Hence the consumer is liable to pay the total amount of Rs. 3,91,271/-.  The opposite party requests to dismiss the complaint.

          3. The witness for the  Complainant was examined as PW1 and Exbts. A1 to A13 were marked on the side  of the complainant.  Neither  oral nor documentary evidence was adduced by the opposite party. . Heard the counsel for the complainant and the opposite party who appeared in person.

          4. The points that arose for consideration are:

          i. Whether the complaint is maintainable in this Forum?

          ii. Whether the complainant is entitled to get the impugned bill

             set aside?

          iii. Whether the opposite party is liable to pay compensation

             and costs of the proceedings to the complainant?

          5. Point No. i.  To begin with without prejudice or pre-judgment, at the threshold the opposite party in their version has raised  the question of maintainability of this complaint before this Forum.  Admittedly the complainant is a private limited company engaged in the construction business which evidently shows that there is a contractual commitment between the complainant   and the opposite party.   During evidence PW1 the Supervisor of the complainant company  however deposed that the company is a commercial institution not proved otherwise.  Though the complainant contends that the company is been promoted by five share holders  in order to earn their livelihood  by means of self employment, nothing is on record to substantiate the same which goes to prove  the above finding of this Forum since  the complainant has availed the service of the opposite party for commercial purpose.  The complainant company can not be treated as a consumer as per the definition of consumer as per Section 2 (1) (d) of the Consumer Protection Act.    6. Even otherwise on merits  this complaint is not maintainable since Ext. A13 the disputed bill has been issued by the opposite party in furtherance of  Ext. A3 the order of the Hon’ble  High Court of Kerala.  So we are of the firm view that the remedy of the complainant lies elsewhere with a higher authority as mentioned above.  The complainant is at liberty to receive back the complaint and the related documents to file before the appropriate authority if so advised. 

          7. During the proceedings vide order in I.A. 105/2010 dated

04-05-2010 this forum need directed the opposite party to refrain from effecting disconnection of the electric supply to the premises of the complainant with Con. No.5556001307.  The order in I.A. 105/2010 dated 04-03-2010 is vacated for reasons stated above.

Pronounced in the open Forum on this the 29th day of February 2012.

                                                                                        Sd/- A Rajesh, President.

                                                                     Sd/- Paul Gomez, Member

                                                                    Sd/- C.K. Lekhamma, Member.

                                                                   Forwarded/By Order,

                                                                   Senior Superintendent.

APPENDIX

Complainant’s exhibits :

                   Ext.   A1              :         Copy of order

                             A2              :         Copy of bill dt. 07-06-2000

                             A3              :         Copy of O.P. No. 17266 of 2002 (E)

                             A4              :         copy of Site mahasar

                             A5              :         Copy of letter dt. 11-07-2008

                             A6              :         Copy of notice dt. 11/07/2008

                             A7              :         Copy of objection to site

                                                        mahasar dt. 7/7/2008

                             A8              :         Copy of proceedings of the Asst.

                                                        Engineer Electrial Section, Vyttila.

                             A9              :         Copy of notice dt. 01-09-2008

                             A10            :         Copy of order of KSEB

                                                        dt. 25-07-2009

                             A11            :         Copy of letter dt. 18-01-2010

                             A12            :         Copy of letteer dt. 15-02-2010

                             A13            :         Copy of letter dt. 23-02-2010

Opposite party’s exhibits :     :         Nil

                                    PW1            :         Anil Kumar