IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA

Monday the 30^th   day of  January, 2012

Filed on 08-06-2010

Present

1. Sri. Jimmy Korah (President)
2. Sri. K. Anirudhan (Member)
3. Smt. N. Shajitha Beevi (Member)

in

C.C.No.124/2010

between

                                                         O R D E R

                                  SRI. JIMMY KORAH (PRESIDENT)

             The complainant’s case in succinct is follows: - The complainant is the consumer of the opposite parties. The complainant and his family were residing in the residential building wherein the material electric connection exists. Thereafter, on personal reasons, the complainant was constrained to leave the said building vacant and started residing with his son. In the meantime, the complainant on compassionate grounds allowed some 'Tamilian staffs' of his son's Textile shop to dwell in the said building. When matters stood thus, on 29th October 2009, the 4th opposite party inspected the said building and on the basis of the said inspection arbitrarily issued an order dated 4^th November 2009 alleging misuse~ of electrical energy, and imposed a penalty of Rs.2,22,782/-( Rupees two lakhs twenty two thousand seven hundred and eighty  two only) on the complainant.  That apart, the opposite parties changed the billing of electrical consumption from domestic tariff (LT-IA) to commercial (LT-VIIA) tariff. In this way, the opposite parties unlawfully collected av amount of Rs.169701-(sixteen thousand nine hundred seventy) from the complainant. The complainant on 11^th   November 2009 lodged an objection with the 3^rd opposite party against the said unfair action of the 4^th opposite party which yielded no results. As a matter of fact, the complainant on 5^th January 2009 had filed a complaint with the opposite parties as to the imperfection of the meter reader of the electric energy. Strangely yet, the said meter was replaced only on 21^st January 2010. Thus, when the defective meter was replaced, it was revealed that excess energy was being read in the meter than the actual use of the complainant. In this manner also, the opposite parties illegally obtained an excess amount of Rs.4973l- (Rupees forty nine thousand seven hundred thirty one only). Got aggrieved on all these, the complainant approached this Forum for compensation and other relief.

2. On notice being served, the opposite parties turned up and filed version. The crux of the contentions of the opposite parties is that the complainant after availing the connection of electric energy under domestic category converted the material building as a private hostel for the accommodation of 25 staffs of M/s. Maheswary Textiles, Alappuzha. According to the opposite parties (LT-IA) bill is applicable to residential accommodation for family life. On inspection carried out in the premises of the complainant, it was revealed that the material building was rented out to 25 staffs of M/s. Maheswary Textiles, Alappuzha all of whom belonged to different families. The complainant had unauthorizedly converted the residential building as a hostel was drawing income from the building in the said manner. In this circumstance the bill in question for an amount of Rs. 2,22,782/-(Rupees two lakhs twenty two thousand seven hundred and eighty two only was issued to the complainant, the opposite parties contend. Thereafter, the complainant was allowed to file objection and on hearing of the same, the complainant admitted that he had rented out the said building to 25 Tamil staffs MIS Maheswary Textiles, Alappuzha, the opposite parties assert. The complainant had never lodged any complaint as to the defect of the meter existed in the complainant premise. The complaint has been filed experimentally to prolong the payment of the material bill to the opposite parties. The complainant is not entitled to any relief. The complaint is only to be dismissed with cost to the opposite parties, the opposite parties fervently contend.

3.  The complainant’s evidence consists of the testimony of the complainant himself and the documents Exbts. Al to A13 were marked. On the side of the opposite parties, affidavits and counter affidavits were filed and documents were marked as Exbts. B1 to B4. The Expert commission was examined as CWl and the commission was examined  as Cw2 and the documents Exbts. C1 & C2 were marked.

 4. Bearing in mind the contentions of the parties, the issues that come up before us for consideration are:-

 (1) Whether the complainant converted his residential building as a private hostel?

 (2) Whether in the sail building 25 persons from different families were residing?

 (3) Whether the Exbt.A12(e)  bill is legal?

 (4) If the complainant it-entitled to any relief?

5. The complainant's case is that the complainant had been occupying the residential building wherein the material electric connection exists. In an inevitable context, the complainant and his family shifted the residence thereof with his son. After a short while on compassionate reasons the complainant let the Tamilian staffs of M/s. Maheswary Textiles, Alappuzha reside in the aforesaid building. M/s. Maheswary Textiles, Alappuzha is being run by the complainant's son. The said staffs had been residing with their family at the time of inspection by the opposite parties. Yet the opposite parties alleged conversion of the building to a hostel by the complainant and arbitrarily levied unreasonable penalty on the complainant. The opposite parties without appropriate basis changed the tariff of the consumption of electric energy from domestic category to commercial one. In the said manner, the opposite parties got the complainant remit an excess amount of Rs.16,970/- (Rupees sixteen thousand nine hundred and seventy only). What is more, the meter existed in the complainant premise was faulty. Notwithstanding the complainant's repeated complaints, the faulty meter was replaced belatedly by the opposite parties. Consequent upon the opposite parties said omission, the complainant was constrained to remit another surplus amount of Rs.49,731/-     (Rupees forty nine thousand seven hundred and thirty one only). On the other hand, the opposite parties contend that the complainant rented out the material building to 25 staffs of  M/s. Maheswary Textiles, Alappuzha. According to the opposite parties, the staffs were lodging there without anybody's family. The complainant has transformed the building in question to a private hostel. The complainant was drawing income from the said new arrangement. On a close look on the contentions of the parties, we are of the view that the immediate important question to be examined is whether the occupants of the building in question at the material time were residing there in the arrangement of a lodge or were residing with their families in the nature of a domestic accommodation. Keeping this momentous question in mind, we made a searching survey of the materials available before us on record. We anxiously went through Exbts. Al to 13 documents. We cautiously perused the Exbt.C2 commission Report. On a bare perusal or even on a close scrutiny of the commission report and her assertive testimony, it is emphatically unfolded that the habitation in the building in question was one of family dwelling and not of a private lodging meant for profiteering commercially. In the Exbt.C2 commission Report, it is categorically stated that 5 staffs and their spouses and children were residing in the material residential building. Moreover, the opposite parties have not adopted any meaningful steps either to discredit the commission report or even to challenge the same. It is pertinent to notice that no material is forthcoming from the part of the opposite parties to show before us that the habitation of the occupants in the material building was a sort of commercial lodging. The opposite parties have not made it a point to produce any document to prove the nature of occupation as alleged by them. Thus, in the context of the complainant's assertive case backed up by the convincing Exbt.A13 document, Exbt.C2 commission report and testimony, and more so in the absence of any inspiring materials on the part of the opposite parties to bring home their allegation, we are persuaded to hold that the complainant case is more trustworthy. Needless to say, the opposite parties contention to the effect that the material building was being used as a commercial lodge does not merit acceptance. The complainant is entitled to relief.

6. Coming down to the question as to the faulty meter, and the excess charge the opposite parties availed, Exbt.C1 Expert commission Report is relevant and revealing. The Exbt.C1 Expert commission Report and his testimony convincingly brings out that there was replacement of the meter on 21^st  January 2010.  It is worthwhile to notice that the opposite parties had denied aforesaid replacement.  Further the said Exbt.C1 Expert commission Report reasonably underlines that the opposite parties have availed a surplus amount of Rs.48,757/- from the complainant in consequence of the said defective meter, which is negligibly different from what the complainant alleged. Obviously, the complainant is entitled to get back the surplus amount the opposite parties obtained from him.

7. For the forging discussions and findings in the instant case, we hold that the Exbt.A12(e) bill dated 4^th November 2009 for an amount of Rs.2,22,782/- (Rupees two lakhs twenty two thousand  seven hundred and eighty two only) issued to the complainant by the opposite parties stands cancelled. The opposite parties are directed to restore the earlier domestic tariff (LT-IA) in the material building in the instant case, and give back the complainant an amount of Rs.16,970/­- (Rupees sixteen thousand nine hundred and seventy only) collected arbitrarily against commercial tariff and another amount of Rs.48,757 (Rupees forty eight thousand seven hundred and fifty seven only) availed in consequence of the imperfection meter or adjust the said amounts in future bills. The opposite parties shall restore the domestic tariff as aforesaid within 30 days of receipt of this order.  

  The order in IA No.90/l0 already passed in the instant case is hereby made absolute.

                The complaint is allowed accordingly. No order as to compensation or cost.

     Pronounced in open Forum on this the 30^th  day of January   2012.

                                                                                                                                    Sd/- Sri.Jimmy Korah

    DISSENTING ORDER BY MEMERS

       SRI. K.ANIRUDHAN (MEMBER)

Sri. Nagaraja Reddiyar has filed this complaint before the Forum on 8.6.2010 alleging deficiency in service on the side of the opposite parties.  The allegations of the complainant are as follows:-  He is the father of the Managing Partner of the textile show room under the name and style M/s. Maheswari Textiles at Alappuzha and is the consumer of the opposite parties (Town Section) vide Consumer No.4888.  Nearly 25 number of  Tamil employees who are working in the above said firm have requested him to private his home including the Hall for their residential purpose, on condition that the employees shall pay electric charges and water charges, and as such the employees are fully occupied the residence.  While so, on 29.10.2009, a team of the 4^th opposite party visited the site and assessed the electric charges of a sum of Rs.2,22,872/- after treating the site as a Hostel.   He filed the objection regarding the above matter before the 3^rd opposite party.  Since there was no response to inspect the defective meter, he had arrayed to conduct an inspection through private party and found that the meter is defective.  On his repeated requests to the opposite parties, they installed a new meter, and the reading was noted as below 25 unites per day.   The opposite parties had collected an excess sum of Rs.9125/- and due to that the opposite parties had collected a total sum of Rs.49,731/- from him for the year.  The 3^rd  opposite party had directed to remit the amount of Rs.2,22,782/- as per the inspection on 29.10.2009, on the basis of  treating the site as a Hostel, and assessed the amount was on the basis of commercial tariff from the domestic tariff.  The bill dt.  8.4.2010 was issued based on the commercial tariff.  Any way, with protest, he had paid the bills dt. 14.12.2009, 8.2.2010 and 8.4.2010.  As per the above bills, the opposite parties have received a total sum of Rs.52,542/- and opposite parties have recovered an excess amount of Rs.16,970/- from 14.12.2009 to as on date.   The opposite parties had not considered his objection regarding the above.  The opposite parties have assessed the amount in an arbitrary  way and changed the tariff in an illegal way.  Hence this complaint seeking relief.         

2.  Notices were issued to the opposite parties.  The opposite parties entered appearance and filed detailed version.  In the version, it is stated that they have conducted an inspection in the premises which was occupied as a Hostel by the employees of the reputed textile shop of the complainant instead of his family, and that the complainant himself admitted that, more than 25 employees are residing in the building and that the misuse of energy is an admitted fact.  It is stated that they have detected the misuse of electricity in the premises and accordingly they issued a provisional bill for the unauthorized use of electricity.  It is further stated that the electric connection under Consumer No.4888 was originally registered in name of one Neelakanda Iyer, for domestic purpose with a connected land of 4594 watts  under the domestic tariff in LT 1 (A) and the complainant is the present owner of the three phase electric connection.    It is stated that the complainant is not residing in the disputed House and he has been residing in another place.  As per Section 2 (15) of Electricity Act 2003, a consumer means any person who is supplied by electricity for his own  use by a licence.  It is further stated that the complainant has converted the building into a private house for accommodation of staff of the said unit and that the complainant has been earning income from hostel. They are issued bimonthly bills to the complainant by domestic tariffs on the presumption that the complainant is using the said building for his residential purpose.  But at the time of inspection by them, it was seen that the building was using as a private hostel for accommodation for the staff of the said unit.  The tariff application for private hostel is LT VII A (Commercial).   It is stated that, earlier, the complainant had availed  electric connection for domestic purpose in LT I (A) tariff and later he had unauthorizedly changed the purpose of use of electric energy to commercial tariff by way of giving the building to the employees of the said firm for  private hostel purpose, and that their nature of usage and purpose of electricity does not related with family residential nature.  It is further stated that the meter reader had reported that the premises is used for lodging and mess purpose for the employees of the said firm.    So they conducted inspection and detected unauthorized use of electricity for non-domestic purpose (details of use of electricity  and charges imposed are stated in the version).  It is stated that they are inspected the meter and found recording excess consumption, and bill issued was as per rules.  There is no deficiency in service on their part and they have every right to recover the amount of Rs.2,22,782/- with interest from the complainant.

            3.  Considering the contentions of the parties, this Forum has raised the following issues for consideration:-

            1)  Whether there is any deficiency in service on the side of the opposite parties?

            2)  Whether the complaint is entitled to rmit the amount vide Bill dt. 4.11.2009?

            3)  Compensation and costs.

4.  Issues 1 to 3:-  Complainant has filed proof affidavit in support of his case, and produced documents in evidence – Exts.A1 to A13 – marked.  Ext.A1 is the copy of the title deed showing the ownership of the schedule building,  Ext.A2 series (2 Nos.) are the building tax receipts,  Ext.A3 is the certificate obtain from the Village Officer, Ext.A4 is the letter sent to the opposite party, Ext.A5 is the copy of the Mahazor prepared by the Sub Engineer regarding the details of Meter reading, Ext.A6 is the letter sent by Sri.Neelakumar Iyer/Nagarajan to the opposite party regarding the remittance of final bill amount, Ext.A7 is the copy of the objection filed before the opposite party, Ext.A8 is the copy of the  additional statement  of Sri. Nagarajan, Ext.A9 is the copy of the Mass petition, Ext.A10 is the  proceedings of the opposite party in connection with the provisional bill amount of Rs.2,22,782/-, Ext.A11 are the receipts of remittance of amounts before the opposite parties by the complainant, Ext.A12 series (5 Nos.) are the bills for the remittance of amounts issued by the opposite parties to the complainant and Ext.A13 is the certificate of Chair person of Alappuzha Municipality. 

            5.  3^rd opposite party had filed proof affidavit for himself and on behalf of opposite parties 1, 2, 4 and 5 in support of  their case and produced documents in evidence – Exts.B1 to B4 – marked.  Ext.B1 is the Mahazar dt. 29.10.2009 prepared by the Sub Engineer Town,  Alappuzha, Ext.B2 is the Bill and calculation statement dt. 4.1.2010, Ext.B3 is the application filed by the complainant to the opposite party.  Ext.B4 is the reply given by the opposite party to the complainant in order to ascertain the details of the residence and other matters.  One expert commissioner and an Advocate commission were appointed by this Forum.   They have filed their report and marked the same as Exts.C1 and C2.    Complainant filed  counter affidavit against the opposite parties’ proof affidavit.  Opposite parties have also filed counter affidavit and examined the commissioner.

            6.  We have carefully examined the whole matter involved in this case and perused the documents produced by the complainant and the opposite parties in evidence and verified the commission report and examined his deposition.  The allegations of the complainant is that the 4^th opposite party along with the other staff members have conducted a search at the building of the complainant on 29.10.2009 and after the inspection of the meter of the Consumer No.4888 and after inspection/ascertaining the details, the opposite parties assessed an amount of Rs.2,22,782/- after taking the residential building as a Hostel.  The electrical connection under the said consumer was under LT 1(A) Tariaff for domestic purpose with a connected load of 4594 watts.   In this matter, it is noticed that the complainant had admitted that he has given the site to 25 employees who were working in their firm M/s. Maheswari Textiles, Alappuzha.   The opposite parties have inspected the site and ascertained the details.  There is no dispute regarding the residence of the 25 employees.  The commission report shows that there are 5 staff members and their families were residing in the said building.    It is to be further noticed that the complainant is not residing in that building, since he has given the building for the residence of the employees of their firm.  At the time of inspection of the opposite parties, they have confirmed that the employees are residing there.  Originally the site was under the domestic tariff.   After the inspection, the opposite parties have assessed the tariff.  They assessed the tariff, applicable for private hostel – LT VII A (Commercial) since the purpose of  consumption in the premises does not  come under the purview of domestic category.  On a detailed study of the entire evidence and circumstances of this matter, we are of the view that the complainant is not entitled to get any benefit of domestic tariff, since he is not residing in the said schedule building.   So the action taken for assessing the rate,  by the opposite parties  cannot be treated as illegal and arbitrary.  After perusal of the documents given in evidence, we are of the further view that the complainant has not a genuine cause of action.  In this respect, it cannot be say that he is  a consumer, and that the allegations put forwarded by him lacks merit.  On an overall readings of the entire matter, it can be say that the action taken by the opposite parties are within the purview of the provision of the Electricity Act.  The action taken by the opposite party shows that opposite parties have not committed any deficiency in service.  The opposite parties have acted in a genuine manner to assess the rate, since the electricity was used by the employees of the firm run by the complainant.  In such circumstances, the complainant cannot insist the opposite parties to change tariff from commercial tariff to domestic tariff.  Since there is no provision to change the tariff, the Forum cannot insist the opposite parties to take action as per the request of the complainant.  The action taken by the opposite parties are within the purview of norms and the complainant has not a genuine cause of action.  Since the action taken by the opposite parties are within the provisions of the Act, complainant’s allegations cannot be treated as genuine.  Considering the entire aspects of this case, and after verification of the documents and  the commission Report, we, the members of the Forum have  further view that there is no deficiency in service or negligence on the side of the opposite parties in assessing the amount.  In such circumstances the complaint is to be disallowed.  Since the opposite parties are  assessed the amount as per rules and norms, and they are entitled to proceed further for the realization of the assessed amount.  So the complaint is to be disallowed, since it has no merit.  The opposite parties are free to proceed further against the complainant for the realization of the said amount.  The interim order already issued is  stands cancelled.

            In the result, the complaint is disallowed.   

            Complaint disallowed.

            Pronounced in open Forum on this the 30^th  day of  January, 2012.

                                                                                       Sd/- Sri.K. Anirudhan:

                                                                                       Sd/- Smt.N.Shajitha Beevi:

Appendix:-

Evidence of the complainant:-

Ext.A1             -           Partition Agreement (Photo copy) 

Ext.A2 series    -           Tax receipts (2 Nos.)

Ext.A3             -           Certificate dated 16.6.10

Ext.A4             -           Letter dated 5.1.2009

Ext.A5             -           Cite Mahazor (Photo copy)

Ext.A6             -           Letter from the 4^th opposite party to the complainant (Photo copy)

Ext.A7             -           Application dated 11.11.2005 (Photo copy)

Ext.A8             -           Additional statement dated 11.11.2009 (Photo copy)

Ext.A9             -           Letter dated 27.7.2009 (Photo copy)

Ext.A10           -           Order of KSEB dated 21.5.2010 (Photo copy)

Ext.A11           -           Receipts of KSEB

Ext.A12series   -           Bill for Rs.20148/- (Photo copy)

Ext.A12(a)       -           Bill for Rs.14023/- (Photo copy)

Ext.A12(b)       -           Bill for Rs.30731/-  (Photo copy)

Ext.A12(c )      -           Bill for Rs.14863 /- (Photo copy)

Ext.A12(d)       -           Bill for Rs.13552/- Photo copy)

Ext.A12(e)       -           Bill for Rs.2,22,782/- (Photo copy)

Ext.A13           -           Certificate dated 28.9.2011

CW1                -           K.S. Shymaprasad (Court Witness)

Ext.C1             -           Vimala Balakrishnan C.M. (Court Witness)

Ext.C2             -           Commission Report

Evidence of the Opposite parties:-   

Ext.B1              -           Mahazor dated 29.10.2009

Ext.B2              -           Bills and calculation statement dt. 4.1.10

Ext.B3              -           Application filed by the complainant to the opposite party

Ext.B4              -           Reply given by the opposite party to the complainant

 // True Copy //

                                                                                                                                                            By Order                                                                                                                                       

                                    Senior Superintendent

To

         Complainant/Opposite parties/S.F.

Typed by:- pr/-

Compared by:-