D.o.F:12/07/2010
D.o.O:26/8/2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.NO.159/10
Dated this, the 26th day of August 2011
PRESENT:
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.BEENA.K.G : MEMBER
The Manager,
M/s Kallarakkal Maharani Gold : Complainant
Super Market,Kasaragod.
(Adv.A.B.Nair,Kasaragod)
1. The Secretary, KSEB,
Vaidhyuthi Bhavan,Thiruvananthapuram. : Opposite parties
2. The Asst. Engineer,
Electrical Section, KSEB,Kasaragod
(Adv.P.Raghavan,Kasaragod)
ORDER
SRI.K.T.SIDHIQ : PRESIDENT
Complainant is running a jewellery and its electricity consumer No. is 6688012487. The 2nd opposite party directed the complainant to remit ` 5,33954/ as per bill dtd.11/5/09. Along with the said bill 2nd opposite party enclosed a letter stating that as per instruction of APTS(Anti Power Theft Squad) dtd 25/3/09 it was reported that one of the phase of the CT meter was not functioning and the consumption was not correctly recorded. It was further reported that there was a deficit recording of 23% and directed the complainant to remit 30% of the consumption additionally with effect from 10/2/2003. The opposite party directed the complainant to remit the amount on or before 9/6/09. Since the assessment was a staggering one, complainant approached the Hon’ble Minister of electricity Board and obtained instalment facility. He also filed a petition before CGRF Kozhikode against the demand but the same was rejected by CGRF on 8/6/10. The opposite party claimed the amount without complying the provision of Sec 126 of the Electricity Act since no provisional assessment notice was issued to the complainant and the inspection was conducted not in the presence of the complainant. The allegation that the one phase of the meter was not working due to the non removal of insulation from the wire Is not correct and further the consumer cannot be penalized for the negligence occurred on the part of officials of opposite parties . Further as per the conditions of supply of Electricity Act the opposite parties can claim six months consumption charges as an average after rectifying the defects but in the impugned bill the assessment is from 10/2003 onwards. Moreover the opposite party cannot claim more than 2 years arrears and in this case opposite parties violated the above provisions. Since the connection provided is to the shop of the complainant , he remitted `259286/- as per the order of the Hon’ble Minister to avoid disconnection. The issuance of the exorbitant sum amounts to deficiency in service. Hence the complaint bill for an order for the cancellation of the bill and for the refund of the amount already paid.
2. Opposite parties filed version. According to opposite parties the complaint is not maintainable since the complainant has already preferred an appeal U/S 127 of the Electricity Act. The bill amounting to 533754 dtd.11/5/09 was served on the basis of the irregularity noticed by the APT Squad during their inspection at the premises of the complainant on 25/3/09. During the above inspection they found that the wire connecting the secondary of one of the current transformer(CT) installed with the meter was connected to the meter without removing the varnish insulation of the wire and thus no recording of the energy in that particular phase of the meter. It was also found that the meter kept in the premise was recording 23% lesser than the electricity actually used by the complainant. This was occurred due to the presence of varnish insulation in one of the copper wires in ‘R’ phase connecting CT secondary with terminals of the meter. The bill for an amount of ` 533954/- was issued for the unbilled portion of 23% of the recorded portion of the energy for the period from 10/2003 till date of inspection. As per Sec.37(5) of KSEB Terms and Conditions of Supply 2005 the board may recover the amount under charged from the consumer if it establish the same by review or otherwise. Against the issuance of the bill the complainant approached the Hon’ble Minister of electricity for the payment of the bill in instalments and Deputy C.E, Electrical Section, Kasaragod had allowed instalment facility for remitting the amount. Complainant approached Hon’ble High Court of Kerala and the Hon’ble High Court in the order in WP( c) 34925/2009 had directed the complainant to approach Consumer Grievance Redressal Forum. The allegation of the complainant that he had not given an opportunity to submit objection as contended in the complaint is not correct. The opposite party had mentioned in the letter dtd 13/5/09 that the complainant shall file objection if any and he shall approach CGRF. The meter in this case need not be tested by the Electrical Inspector since there is no dispute regarding the accuracy of the meter and the problem is only with the insulation of the wire connected to the terminal of the meter. Further the CT and the meter situated at the premise of the complainant had been tested with the standard meter. The site mahazar shows that the energy consumed by the complainant in ‘R’ phase of the meter was not recorded due to the presence of varnish in the insulation of the wire. The unrecorded portion of the energy was actually used by the complainant and hence he is bound to remit the billed amount. The charging of the bill for a period of 6 months from the date of inspection is limited to the case if the meter become faulty or ceases to record. In this case the meter was not faulty. The period of non recording was taken from the memory data retrieved from the meter. The limitation of 2 years apply to the arrear amount only and this bill is not for the arrear of current charges but was for the unrecorded consumption. There is no deficiency in service since the bill is issued for the energy actually consumed by the complainant. The complainant has already submitted his grievance before the CGRF Kozhikode in pursuant to the order of the Hon’ble High court of Kerala in WP ( c) 34925/09 and the said appeal is dismissed by CGRF and the complainant is unnecessarily dragging the opposite parties to various courts and forums there by delaying the payment of the amount due to the opposite parties. The complaint is therefore not maintainable and hence it is liable to be dismissed.
3. On the side of complainant Exts.A1 to A5 marked. Learned counsel for opposite parties produced Exts.B1 to B4 to substantiate their contention. Both the counsels heard in detail and documents perused carefully.
4. The following issues were raised for consideration.
1. Whether the complaint is maintainable?
2. Whether there is any deficiency in service on the part of the opposite parties
3. Whether the impugned bill is legally sustainable?
4. Whether the claim of the opposite parties is barred by limitation?
5. If so what order as to relief and costs?
5. Issue No.1 Maintainability of the complaint:
The contention of the opposite parties that the complaint is not maintainable in view of the decision of the Hon’ble National Consumer Disputes Redressal Commission in the case of Jharkhand State electricity Board and Another vs. Anwar Ali reported in 2008 CPJ 837 (CP) since the complainant has filed an appeal U/S 127 of the Electricity Act.
6. But the said contention is not acceptable since no documents produced by opposite parties to prove that complainant has submitted any appeal U/s 127 of the Electricity Act to the Deputy Chief Engineer. The only role of Deputy Chief Engineer in this case is clear from Ext.A2. As per Ext.A2 the Deputy Chief Engineer has directed the Executive Engineer to allow 20 monthly instalments for the payment of the amount. Ext.A2 further shows that the Deputy CE has allowed the instalments in reference to the order of the Hon’ble Minister (B&SC&E) dtd 5/6/09. It cannot be treated as an appeal U/S 127 of the Electricity act.
7. Moreover in this matter there is no scope for filing any appeal U/S 127 of the Electricity Act. An appeal under Sec.127 will lie only against an order U/S 126(1) of the Electricity Act. For the sake of convenience Sec.126(1) of the electricity Act is reproduced below:
126. Assessment (1) If on an inspection of any place or premises or after inspection of the equipments, gadgets, machines, devices found connected or used , or after inspection of records maintained by any person, the assessing officer comes to the conclusion that such person is indulging in unauthorized use of electricity, he shall provisionally assess to the best of his judgment the electricity charges payable by such person or by any other person benefited by such use.
2.
3. omitted since not relevent
4.
5.
6.
Explanation: - For the purposes of this section:-
( a) ‘’assessing officer ‘’means an officer of a State Government or Board or licensee, as the case may be, designated as such by the State Government;
(b)’’ unauthorized use of electricity’’ means the usage of electricity-
(i) by any artificial means; or
(ii) by a means not authorized by the concerned person or authority or licensee;
or
(iii) through a tampered meter ; or
(iv) for the purpose other than for which the usage of electricity was authorized.
8. On a bare reading of Sec126 combined with explanation to the term’ unauthorized use of electricity’, it is manifest that the complainant has not involved or done any unauthorized use of electricity. Even according to opposite party the short assessment bill is generated on account of the non-recording of 23% of consumed electricity due to the non removal of varnish from the insulation of the wire provided to the ‘R” phase of the CT meter. This is no way amounts to unauthorized use of electricity as defined and explained U/S 126 of the Electricity Act. Hence the complaint is maintainable before the Forum.
9. The disposal of the petition seeking the same reliefs filed by the complainant before the CGRF also will not prevent the Forum constituted under the Consumer Protection Act to entertain and dispose the complaint on merits. Sec.173 of the Electricity Act 2003 provides that nothing contained in the Electricity Act or any rule or regulations made there under or any instrument having affect by virtue of that Act, rule or regulation shall have effect in so far it is inconsistent with any other provisions of the Consumer Protection Act.
10. The CGRF is constituted in accordance with the provisions of sub section (1) of section 181 and sub section (2) ® (s) & (ZP) of the Electricity Act. As per sec 174 the constitution of the CGRF and OMBUDSMAN shall not be inconsistent with the provisions of Consumer Protection Act.
11. Section 3 of the Consumer Protection Act says that it is not in derogation but an addition to all other laws. If that be so the disposal of a petition filed by the complainant before the CGRF will not prevent the consumer from filing a complaint before the CDRF under Consumer Protection Act. Therefore this point is found against the opposite parties.
12. Issue Nos.2&3 are discussed together:
Sustainability of the short assessment bill. According to opposite party the short assessment bill is issued for the period 10/2003 to 2/2009 under Regulation No. 37(5) of the KSEB Board Terms and Conditions of Supply, 2005. As per that if the Board establishes that it has undercharged the consumer either by review or otherwise, the Board may recover the amount undercharged from the consumer by issuing a bill and in such cases at least 30 days shall be given to the consumer to make payment against the bill.
13. The opposite parties state that the period 10/2003 is taken based on the memory data retrieved from the meter. But to substantiate this contention no such datas are produced before us. In the absence of such datas, the fixation of 10/03 for calculating the under charge electricity is not acceptable. No premises meter card or the meter reading register is produced to establish this contention.
14. Another important aspect to be noted here is that the short assessment bill is not sustainable legally also. The KSEB Terms and Conditions of Supply ,2005 is coming in to force w.e. from 1/2/2006 and it is applicable only from that date. It has no retrospective operation. Hence the application of Regulation 37(5) to a retrospective date ie 10/2003 is neither legal nor sustainable. The earlier Conditions of Supply of electrical Energy 1990 does not envisage any provision to issue bill for undercharged electricity. Hence at the most they can claim it from 1.2.2006 onwards only.
15. further it is seen that the bill is issued due to the non recording of the consumed energy in ‘ R’ phase of the CT meter because of the non-removal of varnish from the copper wire fixed at the time of providing the connection by the officials of opposite party. How a consumer can be penalized for that? It is the duty of the licensee(KSEB) to see that the meter is properly working and recording the actual consumption and also to maintain and check the manner in which the connection is provided. A consumer therefore in no way can be penalized for the defective activation of electricity connection by the KSEB.
But it is a fact that some energy is consumed by the consumer which is not metered. Obviously it is not due to their fault. Hence the opposite parties should have considered all that aspects before issuing the short assessment bill.
16. Issue No.4 :Limitation:
The learned counsel for complainant Sri. A.B.Nair has submitted that the short assessment bill is legally barred since it is from the period 10/2003 to 2/2009. According to him as per Sec.56(2) of the Electricity Act ‘ no sum due from any consumer, under this section shall be recoverable after the period of two years from the date when such sum became first due unless such sum has been shown continuously as recoverable as arrear of charges for electricity supplied and the licensee shall not cut off the supply of the electricity.
17. On a close perusal of the said section it is clear that the said section is not applicable to the instant case. Therefore now it is necessary to analyse the case in accordance of 56(2) of Electricity Act. The basic question for determination is what is the meaning of ‘first due’ occurring in Sec 56(2) of the Electricity Act 2003.
18. It as argued by the learned counsel for complainant Sri. A Balakrishnan Nair that the words ‘ first due’ is construed as meaning consumption. It would imply that the electricity charges would become due and payable the moment electricity is consumed. In that case failure to pay charges will entail consequences leading to disconnection of electricity to consumers even though the consumer will only know the units consumed by him and will not know the exact amount payable by him as per the approved tariff and the actual consumption depends upon different parameters and tariffs. The responsibility to determine the amount payable by the consumer is that of the licensee. The consumer cannot be expected to discharge the duties of the distributor of the electricity. Moreover it will create an anomolous situation as it would be difficult to determine the last date by which the payment is to be made by the consumer and in case the last date is not known it will be difficult to levy surcharge for delayed payment. Besides there will be difficulty for issuing notice for disconnection for failure to pay the charges on consumption. It appears that it would never be the intention of legislature to equate the words ‘first due’ with consumption. Though the consumption of electricity will certainly create liability to pay but the amount will become due and payable only after a bill or demand is raised by the opposite party for consumption of electricity by the consumer in accordance with the tariff. Thus in our opinion the liability to pay electricity charges is created on the date of electricity is consumed or the date the meter reading is recorded but the charges would become first due for payment only after a bill or demand notice is served or issued by the licensee.
19. The learned counsel for opposite parties Sri.P.Raghavan placed reliance on the decisions reported in 2009 (2) KLT SN 5 and 2007(3)KLT SN9. In both these cases it has been held that it is upon issuance of bill that the amount becomes due though the liability of consumer arises on consumption of electricity. Therefore we hold that the claim of the opposite parties is not barred by limitation as provided U/S 56(2) of the Electricity Act.
20 . To sum up we reached on the following conclusion.
The short assessment included in the bill for the period 10/2003 to 1/2006 is not sustainable. Regulation 37(5) of the KSEB terms and Conditions of Supply has no retrospective effect. It comes in to operation w.e.f 1/2/2006 onwards. Hence the period prior to that date has to be exonerated for calculating the short assessment bill issued to the complainant.
In the result complaint is allowed and the short assessment bill dtd 11/5/2009 for ` 533954/- for the period 10/2003 to 2/2009 is cancelled and the opposite parties are directed to issue revised bill for the short assessment from 2/2006 to 2/2009. The amount already paid by the complainant i.e ` 259286/- shall be adjusted to the revised bill to be issued and the balance if any shall be recovered without any interest or surcharge in 10 monthly instalments. In the circumstances there is no order as to costs. Time for compliance is 30 days from the date of receipt of copy of the order.
Exts:
A1-Copy of demand and disconnection notice
A2-6/5/09- copy of letter from Deputy Chief Engineer,Ksd to EE,Ksd
A3-copy of order of CGRF,Kozhikode
A4-dt.21/6/10-copy of letter from 2nd Op to complainant
A5- copy of certificate of registration(form No.4)
B1-25/3/09- copy of report from APTS
B2-copy of site mahazar
B3-11/5/09- copy of electricity bill
B4-13/5/09- copy of letter from 2nd op to complainant
Sd/ Sd/ Sd/
MEMBER MEMBER PRESIDENT
Eva /forwarded by Order/
SENIOR SUPERINTENDENT
