BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE:  29^th April 2016       

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.:  293/2015 

Complainant/s:

Harish s/o.Tukaram Revankar, Age: 48 years, Occ: Business, R/o. T.B.Road, Deshpande Nagar, Hubli.

                (By Sri.P.K.Jawalkar, Adv.)

v/s

Respondent/s:        

1. The Managing Director, HESCOM, Corporate Office, Navanagar

2. The Executive Engineer (Electric) O&M Division, HESCOM, Tabib Land, Hubli

3. The Assistant Executive Engineer, O&M City Sub Division No.1, Shivaganga Layout, Kusugal Road, Hubli.

4. The Chief Engineer, O&M City Sub Division No.1, Shivaganga Layout, Kusugal Road, Hubli.

5. The Financial Advisor, Corporate Office, HESCOM, Navanagar, Hubli.

(By Sri.G.B.Patil, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to pay Rs.19,99,999/- with future interest till realization along with cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, the complainant is a businessman and he has obtained  power supply bearing HT 187 to his commercial complex in CTS No.450/1A situated at T.B.Road, Deshapande Nagar, Hubli. The respondents have collected excess bill amount from the complainant illegally for the period December 2010 to November 2013. After much follow up the respondents refunded a sum of Rs.44,84,285/- on 14.08.2014 to the complainant. The collection of excess bill amount by the respondent amounts to deficiency in service. In order to avoid and to have constant power supply the complainant paid the excess billing amount made by the respondents.  On 18.11.2014 and 10.12.2014 the complainant called respondents to return the amount collected in excess along with interest @18% P.A. For the requests the respondent have sent evasive reply denying to repay the amount collected in excess illegally. For running of business and to obtain power connections the complainant had obtained huge loan amount by paying interest @18%. The excess amount collected by the respondents for the period December 2010 to November 2013 at the rate of interest @18% on the said amount till to the date 30.06.2013 the total interest amount amounts to Rs.24,18,467-86/-. Due to the deficiency in service committed by the respondent the complainant had sustained heavy loss. Hence, complainant got issued legal notice to the respondent on 07.07.2015 calling upon to refund the interest accrued on the excess amount collected Rs.24,18,467-86. For the said notice the respondents have sent evasive reply on 21.07.2015. The complainant restricting his claim to an extent of Rs.19,99,999/- out of outstanding amount Rs.24,18,467-86 filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondents appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondents taken contention that the very complaint is false, frivolous, vexatious and also taken contention the complaint as brought is suffering from mis joinder/ non joinder of parties and prays for dismissal of the complaint on the above said grounds. Among such other admissions and denials the answering respondent have also taken contention on the ground of maintainability of complaint on limitation point and to decide the same by treating as preliminary issue. The answering respondent denied all the complaint averments made in the complaint paras.2 to 11 and puts the complainant to strict proof of the same. The answering respondent also taken contention the transaction being the commercial one the complaint is barred by the jurisdiction to adjudicate by the Forum and prays for dismissal of the complaint. While the respondent admits the power supply taken by the complainant and in between time intervals the complainant submit requisition to enhance and to reduce the power supplies accordingly the respondents subject to the provisions of KPTCL Act and Rules considered and approved the requests of the complainant. Further the respondent submits, the transformer installed to the complainant’s commercial building has been provided with current transformer (CT) to measure electricity consumption on ratio basis.  While the respondent admits collection of excess bill amount by oversight as the CT Transformer was to be manually controlled to assess the measuring the electricity on ratio basis. Since the complainant had applied for enhancement and reduce of the power supply intermittently on several occasion though the CT was embelled to the transformer while handling the transmitter to assess the meter reading on ratio basis oversistedly it was not done. Under such circumstances it was wrongly billed & excess bill was collected. To that an extent there is deficiency in service but taken further contention that since the respondents only make out and traced out the excess bill charged and collected, same was noticed and informed to the complainant and all arrangements were made to refund the same though there was no system to refund the same and in usual course to adjust the excess amount collected in the future billing times and contended there is no deficiency in service. The complainant after receipt of the refund of excess amount collected received the same waiving the interest and given letter not claiming the interest on the said amount. Subsequently after in order to harass the respondent filed the instant complaint though there is no deficiency in service and cause of action to file the complaint and prays for dismissal of the complaint.

4.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

Both have admits sworn to evidence affidavit and have availed opportunity of cross examination of both the witnesses and relied on documents. Heard. Perused the records.

Finding on points is as under.

1.  Negatively
2.  Negatively  
3.  As per order

R E A S O N S

P O I N T S 1 & 2

5.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact,  the complainant had availed power supply bearing HT 187 to his commercial complex from the respondent. Further there is also no dispute with regard to the fact that the respondents have collected excess billing amount from the complainant on tracing the excess charged the respondents have refunded the amount and the complainant reports the receipt of the same.

6.     Now the question to be determined is, whether the complainant is entitled for the interest on the amount excess collected and refunded by the respondent and non payment of the interest on the excess amount collected and returned amounts to a deficiency in service, if so, for what relief the complainant is entitled.

7.     Since the facts have been revealed in detail which requires no repetition.

8.     On going through the pleadings and evidence of respondent the respondent had taken 2 specific contentions viz., limitation point and transaction being a commercial one, complaint as brought is not maintainable.

9.     As per the own admissions by the parties the respondents have collected excess amount against to the power consumed by the complainant for the period commencing from December 2010 to November 2013. Though the complainant has not pleaded anything with regard to the fact that he noticed the excess bill charged by the respondent he came on paying the same with an intention to have constant power supply to his complex thinking that the respondent will disconnect the same. Though the complainant has not stated this fact either in the complaint pleadings nor in his chief examination while at the time of cross examination complainant answered, he was well known of the fact that the respondents have collected excess amount against to the power consumed for the period December 2010 to November 2013 he has not made any claim to the respondents to refund the same or questioned why they have collected excess amount against the power consumed. If this fact is true and the complainant was well aware of the bill collected during the relevant period itself then limitation starts from the period December 2010 itself, then filing of this complaint before this Forum on 19.10.2015 without any application u/s.24(A) to condone the delay is not maintainable and it amounts to barred by limitation. However the complainant has not pleaded anything either in his complaint pleadings or in his chief examination, for the moment if it is taken the complainant is not aware of this discrepancy either in the month December 2010 or November 2013, then taking into consideration of acceptance of refund as admitted by the complainant 14.08.2014 and filing of the present complaint on 19.10.2015 is within time. For this purpose and also for divergent contention taken by the complainant limitation point has not been seriously considered in the present complaint.

10.   The respondent raised another point that the complainant is running business in a commercial building. For the said purpose he has obtained power supply bearing No.HT187 to his commercial complex in CTS # 450/1A situated at Hubli. Though the respondent has raised above dispute i.e. complainant is running business in a commercial complex wherein in this complaint the complainant prayer is in respect of payment of interest on the excess amount collected by the respondent against to the meter reading and against to the powers consumed by the complainant. Whereas complaint against to the electricity board except in the case of theft of power supply by the consumers, consumer complaint filed by the such consumers are barred and Forum has no jurisdiction to adjudicate the case. Whereas in the event of dispute with regard to the power supply either it is for commercial or non commercial such disputes have jurisdiction of the Forum to adjudicate the same. In this regard this Forum would like to rely on 1992 (2) CPR 567 –Jainendra Kumar vs. M.P.Electricity Board: 1999 (1) CPJ 625 –Consumer – commercial held: that a person gets electricity from electric board for using the same for a commercial purpose was a consumer and can invoke jurisdiction under the Act. Hence, contention of the respondent the present complaint not maintainable based on the complainant has availed commercial connection holds no water. On this point this Forum has got jurisdiction to adjudicate the  complaint.

11.   As discussed supra there is no dispute with regard to the fact that the respondent in between the period December 2010 to November 2013 irrespective of power used have charged excess bill and have collected the excess amount from the complainant. In a straight jacket the complainant admits he has been refunded the amount by the respondent to a tune of Rs.44,84,285/-. On going through the pleadings, evidence of both the parties it is evident that the respondent only traced out the fact of excess billing and in turn have collected excess charges from the complainant. This fact has been rectified by perusal of Ex.R5, R6, R7, R8. As discussed supra though complainant has not persuaded or noticed the excess billing and excess bill amount collected by the complainant for the period December 2010 to November 2013 and even though these facts have not been pleaded either in the complaint pleadings nor in the evidence affidavit of PW.1, the PW.1 in his cross examination by the respondent for the first time admits he was well aware of the fact of excess billing and excess amount by the respondent for the relevant time and at its relevant period only he was known of those facts. For this purpose and to establish this fact i.e. he knows the fact in the period of December 2010 to November 2013 the complainant has not produced any documents. By the documents Ex.R5, R6, R7 it is evident that respondents only suemoto traced out and intimated the complainant and have settled the excess amount collected by them from the complainant. So, there does not arise question of deficiency in service, because there is no intentional act have been played by the respondent. The mistake have been committed due to oversight and when it was traced out it has been set right voluntarily without any dispute, then it will not amounts to deficiency. Even under the CP Act the deficiency is described as

1.6-2 What is meant by “deficiency” in service - Section 2(1)(g) of the Act provides that, “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been under­taken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

12.   Whereas in the instant case deficiency has been cured voluntarily by the person who has committed without any demand or insist by the person who has been suffered, which has been unnoticed by the suffered person. However as discussed supra the complainant admits he has report the receipt of the amount which has been excessively collected by the respondent on 14.08.2014 itself.

13.   As rightly discussed supra the claim of the complainant is only with regard to the interest on the amount which has been excessively charged and received by the respondent from the date of receipt to the date of refund. The respondent opposed and resist the demand of interest by the complainant contending that the discrepancy / deficiency has been committed oversightedly and respondent voluntarily settled the claim. Under those circumstances paying interest on the amount does not arise. Added to it the respondent argued and protest the paying of interest on the said amount relying on Ex.R8 the undertaking letter given by the complainant on 15.04.2014. Wherein the said letter the complainant recites – “subject: Request to refund the excess amount collected towards RR No.HT187. With reference to the above subject, it is hereby requested before this authority to kindly arrange to refund collected by your good office. Since, it is your good office who have ascertained the excess amount we would like to receive only the principal amount remitted by us. We therefore also affirm before the authority that we will not claim any interest amount with regard to the excess amount collected……………………………...Thanking you, Yours faithfully (sd) Harish T.Revankar”.

14.   Ex.R8 is addressed to respondent 3 in the present complaint, respondent 3 has been examined before this Forum as RW.1. As per the admission of the complainant, complainant reports the refund on 14.08.2014. Ex.R8 is dtd.15.04.2014. Ex.R9 is the letter of the complainant to the respondent.3 on 10.12.2014 demanding interest on the said amount. Under those circumstances it is to see the complainant after having receipt of the amount without protest as an after thought got issued demand notice as per Ex.R9 & filed the instant complaint on 19.10.2015. The LC for respondent protested to pay interest on the said amount contending that they have given power supply under commercial connection bearing no.HT 187 to the commercial complex of the complainant we are charging the bill according to the meter reading of HT187 the complainant in the said commercial complex running his hotel business apart from running hotel business he has also running lodges and also few flats in the said commercial complex have been sold to some other persons and in their ownership and also he has let out some flats to some other persons and they are running shops. For all those tenants and shop owners the complainant has installed separate meters and supplying electric supply to their inmates of the commercial complex. This fact has been admitted by the complainant PW1 in his cross examination. In the cross examination PW1 also admits he is collecting electric charges from all consumers of sub meters as per the readings in accordance with the consumption made by those inmates of commercial complex. Further the PW1 admits he is paying the meter reading bills as charged by the respondents to HT 187 and the said charge paid by him is also collecting by him by inmates of the commercial complex as per their consumptions according to the meter reading. He further also admits the respondents are not collecting any charges from the inmates of the commercial complex users. Accordingly RW1 also in his chief as well as in the cross exam admits they are noway concerned with regard to sub meters installed by the complainant to his commercial complex inmates. Further the LC for respondent argued and submits, when the position is as above said i.e. the respondents have no concern with regard to the sub meters installed by the complainant to his tenants and the respondents are charging only to the HT187 supply. When the respondents have collected excess amount from the complainant accordingly the complainant reimburse the same from his inmates and tenants. Under those circumstances there is no question of personally suffering loss by the complainant due to over charge collected by the respondent from the complainant. So also the complainant has not stated anything when he got refund of the amount excess collected by the respondent he has paid / returned to his tenants and inmates of the commercial complex consumers. Tracing of these points the LC for respondent argued, where it arise question of suffering or loss directly by the complainant, when he paid the amount and the same was reimbursed by his consumers does not circumstances to undergo sufferings by the complainant. In the cross examination the PW1 admits he has not refund any amount to his dwellers or commercial complex consumers. In order to establish these facts only the respondent filed I.A.1 praying to issue direction to the complainant to produce the documents as per the list of documents annexed to the I.A.1, but the complainant did not produced any one of the 6 documents enlisted in the documents, instead the complainant produced only income tax returns, profit and loss statement. Non production of the documents as per the list annexed to the IA.1 went adverse inference against the complainant. This fact has been established by the respondent. Based on these facts and circumstances the LC for respondent protest and oppose to pay interest on the said amount and submits the complainant is not entitled for the said interest. Even otherwise as per the observations of the appellate courts once the consumer or the person accept the amount under settlement without protest subsequently having accept and receipt of the final settlement raise dispute in such an event such persons are debarred by instituting the claim under the Consumer Act, in such an events such complaints are barred. In this regard this Forum would like to rely on 2012 (2) CPR 521 NC- M/s.Shivram Gramodyog Samsthan vs. United India insurance co., held: complainant cannot make any claim after full and final settlement of claim. Whereas in the instant complaint the complainant he himself given letter Ex.R8 and he specifically in his pleadings admits he reports refund amount on 14.08.2014. Under those circumstances after giving undertaken that he do not claims interest after the settlement the complainant approached and filed this complaint. Hence, this complaint is not maintainable. Accordingly the complainant is not entitled for any reliefs.

15.   Added to all the above facts though the complainant had pleaded he had availed loan for the purpose of business as the complainant has collected excess amount than the power utilized the complainant had underwent loss as he availed loan. For this the complainant has not produced any documents of bank to show that to avail power service he has availed loan and due to excess payment made by him he underwent financial loss. Even perusal of profit & loss statement produced by the complainant Ex.C18 (1 to 8) at page 7 of Ex.R18 in the head of current liabilities it is shown electric charges payable Rs.1,99,637/-. While in the assets and properties column electricity charges receivable it is shown Rs.2,16,898-50. It reveals that returns is more than that of payment. In the Ex.R18 nowhere it is seen the complainant has distributed the refunded amount to his consumers/ tenants/ inmates of commercial complex of the amount refunded to him by the respondents. By this it is further rectified that instead of loss the complainant has benefited more because the excess amount recovered from respondent by complainant has been collected by complainant from his consumers  of sub meters but, no evidence to show that the refunded amount has been distributed among the consumers of the sub meters. So sustaining loss as contended and alleged by complainant is not established.

16.   In view of the above discussions we have arrived and proceed to held issue.1 and 2 in negatively.

17.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

O R D E R

        Complaint is dismissed. No order as to costs.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 29^th day of April 2016)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR