Orissa

Rayagada

CC/90/2017

Smt. Sulagana Patra - Complainant(s)

Versus

The SDO, Electrical Southco - Opp.Party(s)

Smt. Pranati Patro

22 Nov 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 90 / 2017.                                            Date.     22    .     11  . 2018

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                          President.

Sri  GadadharaSahu,                                             Member.

Smt. Padmalaya  Mishra,                                     Member.

 

Smt. Sulagna Patra,  W/O: Jayasankar Patra, At/Po:Muniguda,     Dist:Rayagada  (Odisha)                                                                                    …. Complainant.

Versus.

`1.The  Sub-divisional Officer,            SOUTH.CO.,  Electrial Sub-Division,  Muniguda, Dist:            Rayagada.

2.The  Executive  Engineer,  SOUTH.CO.,  Electrial  Division, Rayagada.    .…..Opp.Parties

Counsel for the parties:                         

For the complainant: - Sri Ram Prasad Patra, Advocate, Rayagada.

For the O.Ps   :- Sri  Ashish  Panda, Deputy Manager(Legal), Rayagada.

.

JUDGEMENT

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non refund of excess billing unit 730  for one month @ Rs.5,104/- from 2006 to  November, 2016 which comes in total excess billing charge Rs.7 (Seven) lakhs for which  the complainant  sought for redressal of the grievances raised by the complainant. The brief facts of the case  has summarised here under.

 On being noticed the O.Ps appeared through their learned counsel and filed written version refuting allegation made against them.  The O.Ps taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.Ps. Hence the O.Ps  prays the forum to dismiss the case against  them  to meet the ends of justice.

  Heard arguments from the learned counsel for the    O.Ps and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                         FINDINGS.

On perusal of the record it is revealed that there is no dispute that the complainant is a consumer of the O.Ps bearing consumer No. 31101002-0307 

The main  grievance of the complainant  was that. non refund of excess billing unit 730  for one month @ Rs.5,104/- from January, 2006 to  November, 2016 which comes in total excess billing charge Rs.7 (Seven) lakhs

The O.P. in their written  version para No.1 contended that the above  case filed by the  complainant is not legally  maintainable in the eyes  of  law in view of the principle laid down by the Hon’ble National Commission, New Delhi.

The O.Ps  in support of their case relied the citation it is held in Appeal No. 225 of 2006  on Dt. 12.7.2012 the Hon’ble  National Commission, New Delhi  in the case of  Lingaraj Vermicelly Works Pvt. Versus SOUTH. CO  wherein observed  “Commercial consumers are not coming under the definition of the word ‘Consumer’  as given in Section  2(1)(d)(ii) of the  C.P. Act, 1986.

The O.Ps. in their written  version  contended that the  complainant is a commercial consumer and running a Petrol pump having connected load 40 K.W. at  11,000 Volts. Due to non availability of the  H.T. metering unit, and basing upon the undertaking filed by the  consumer to pay the transformer loss as per the OERC supply regulation, 2004 in her letter Dt. 12.7.2007 L.T. metering was done and power supply  was effected. Accordingly, energy bills were served  every month charging the transformer loss as the point of supply is H.T. and metering  was in L.T.side.  Admditting  the same, without any objection the consumer go on paying the demanded charges every month. The consumer is availing  power  supply after execution of agreement with the O.P. No.1 paragraph-6 of the said agreement provides that the consumer has obtained and perused a copy of the OERC Distribution (Condition of supply) Code, 2004, understood its contents and undertakes to abide by all the  terms and conditions stipulated therein as modified from time to time. It is revealed that after going through  the Distribution code, the consumer has executed the agreement and the same forms part of the agreement and is binding to both the consumer  as well as the supplier.

 

Further the O.Ps. in their written  version contended that the  consumer is availing power supply  after execution of agreement with the O.P. No.2 . Paragraph -6 of the said agreement provides that the consumer has obtained and  perused a copy of the O.E.R.C. Distribution (Condition of supply) code 2004, understood its contents and undertakes to abide   by all the terms and conditions stipulated there in as modified from time to time .  It is revealed that after going  through the Distribution code, the consumer  has executed the agreement and the same forms part of the agreement and  is binding to both  the consumer  as well as the supplier.

It is an admitted  fact that the consumer is a H.T. consumer due to non availability of H.T. metering unit L.T. metering was done at the time of energisation of the unit  basing upon the undertaking and agreed to pay the transformer loss . Regulation 93(9) of the OERC supply code   provides Transformer loss “that in the case of high tension supply if  H.T. metering set can not be readily provided and installed, L.T. metering  set shall be provided and connected on the L.T. side of the Consumer’s Transformer”. The average  losses in the transformer calculated in the manner provided  the said  provision shall be  added to the reading of such metering set.  Accordingly, the transformer loss unit was added along with the reading of such metering set. So, as per the above regulation the consumer  is liable to pay the transformer loss which is  the admitted  dues to the O.Ps. The demand  is justified and consonance  with the following  prevailing rule and regulation of OERC Supply code. So, there is at all no illegality for demanding the same.  

That it is submitted that the parties are governed by a set of statutory rules/regulations which forms part of  the agreement. The specific provision of  regulatin i.e. 93(9) of the code specifically provides  how the  energy loss in transformer   in units per  month  is to be calculated where L.T. metering set has been installed and metering is done in L.T. side of the consumer transformer. Accordingly the calculation has been made   and demanded. It is well settled principle of law that when the statute provides a thing to be done in a particular manner, the thing must be done in the said manner or not at all.

It is submitted that the demand for transformer loss unit is genuine  and admitted  dues of the O.Ps.  There is no illegality and improperly to demand the same. At this stage demanding the same by the complainant is baseless and without any justification.

.

Admittedly the complainant was availing power supply for the purpose of running a Petrol pump and for that it had taken power connection from the O.Ps for  40 K.W. load at 11,000 volts in three phases bearing consumer No. 31101002-0307. Agreement between the parties were executed(copies of the agreement Dt. 12.7.2007 is in the file which is marked as Annexure-I.

Section 2(1)(d)(i)of the C.P. Act, 1986 defines the word ‘Consumer’ but it excludes the person who avails of any service for a commercial purpose.  Since the complainant was availing power supply for the purpose of running a Petrol pump and had obtained  the connection for a commercial pupose, it would not fall within the definition of the work ‘Consumer’ as  given  in Section 2(1)(d)(i) of the C.P. Act,1986.

 

                Further this forum relied another citation it is held and reported  in 2009 (III) CPJ-5 S.C. date of decision  09.02.2009 in the case of Karnataka Power Transmission Corporation Vrs. Ashok Iron works Pvt. Ltd.  where in the Hon’ble Supreme Court observed  “A company is not a ‘person’ under Section 2(1)(m)  of the  C.P. Act,  1986 and the complainant is not a ‘Consumer  within the Section  2(1()d)  of the  said Act since it purchased  electricity for commercial production. Further  the Court held that the amendment to the CPA effective from 15 March 2003, excluding services availed of for commercial purposes”.

This forum completely agreed with views taken  inter alia related  documents filed by the O.Ps in  the present case. Hence  this forum  feel the complainant is not entitled any  relief from this forum and   liable to be dismissed. To meet the ends of justice the following order is passed.

ORDER.

            In resultant the complaint petition stands  disposed.. The complainant  is free to approach the court of competent  having  its jurisdiction.   Parties are left to bear their own cost.  Accordingly the case  is  disposed of.

          “The time spent before consumer forum shall be set-off  by  the  authority, where the proceedings are taken up, as per provision of Section-14 of Limitation Act for condoning the delay  as reported  in SCC 1995(3) page No. 583   the Hon’ble Supreme Court   in the case of Laxmi Engineering works Vrs. P.S.G.Industrial Institute where in observed   the above  point.

Copies be  served on the parties as  per  rule. 

Dictated and corrected by me               Pronounced on this      22nd^t.      Day of   November,  2018.

 

Member.                                             Member.                                                             President