orders
THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Sri. Santhosh Kesavanath P., President
Smt. Bindhu M. Thomas, Member
Sri. K.N. Radhakrishnan, Member
CC No. 128/2010 & 139/2010.
Monday, the 29th day of August , 2011
Petitioner : T.O Philip
Thattanieth Gardens
Nagampadom
Kottayam.
(By Adv. George Itty. T)
Vs.
Opposite parties : 1) The KSEB,
Vydyuthi Bhavan,
Thiruvananthapuram
reptd. by its Secretary.
2) The Asst. Engineer,
KSEB, Electrical Section,
Kottayam East.
COMMON ORDER
Sri. Santhosh Kesevanath P., President.
Case of the petitioner in CC No. 128/2010 filed on 20..5..2010 is as follows.
Petitioner is a consumer of the opposite party Electricity Board with vide consumer No. 3015 of second opposite party. Petitioner is a conducting an advertising agency as self employment for earning his livelihood. The connected load of the petitioner is fixed by the opposite party as 5 KW. On the basis of the connected load tariff of the petitioner was fixed under LT VII –A. According to the petitioner he is remitting all the energy bills issued by the opposite party. On 29..11..2008 second opposite party inspected the premises of the petitioner, prepared a mahazar and issued a bill for Rs. 51854/- against the bill petitioner filed objection to the second opposite party. Second opposite party after considering the objection revised the unauthorized load from 7KW to 4 KW. Opposite party issued a revised bill Dtd: 26..12..2008 for Rs. 36308/-.
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Petitioner remitted the entire amount covered by the bill on 31..11..2009. On 16..1..2009 petitioner filed an application before the second opposite party along with the requisite fee, completion report and test report for enhancing connected load. There after the petitioner was regularly remitting the bill issued by the opposite party. On 6..5..2010 petitioner received a bill Dtd: 5..5..2010 for Rs. 24,634/-. Said bill is a penal bill from 3..3..2010 to 3..5..2010. On 10..5..2010 petitioner filed a petition for cancellation of the bill Dtd: 5..5..2010. Immediately on receipt of the petition an official from the office of the second opposite party visited premises of the petitioner and verified the connected load. That on enquiry with the office of the second opposite party they informed the petitioner that petitioner is liable to remit a bill for Rs. 51,357/- for fixed charges for un authorized connected load and proportionate penal charges for the period from January 2009 to March 2010 and the same is under preparation and will be issued shortly. According to the petitioner act of the opposite party in issuing bills after bills, without considering application for regularization submitted by the petitioner on 16..1..2009, is arbitrary and amounts to deficiency in service. So, he prays for an order canceling the demand for Rs. 7857.13 Dtd: 5..5..2010. Pass an order directing the opposite party to consider the application Dtd: 6..1..2009. Petitioner claims cost and compensation.
Case of the petitioner in CC- 139/10 filed on 5..6..2010 is with regard to issuance of the subsequent short assessment bill for Rs. 51,357/- for the un authorized additional load. In that case petitioner prays for cancellation of the bill Dtd: 10..5..2010 for Rs. 51,357/-. According to the petitioner said bill is issued for the un authorized connected load of 4 KW. On 16..1..2009 filed an application before the second opposite party, along with requisite fees, completion report and test report
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for enhancing the connected load as 9 KW instead of 5 KW. There after the petitioner was regularly remitting the bill for consumption of the electrical energy. On 6..5..2010 a bill for Rs. 24,634/-, for un authorized connected load was received to the petitioner. According to the petitioner, act of the opposite party is issuing bills without considering the petitioner’s application for regularization, amounts to deficiency in service. So, he prays for cancellation of the demand for Rs. 51,357/- dtd: 10..5..2010. Petitioner also seeks direction of the forum to the opposite party to consider the application Dtd: 6..1..2009, submitted by the petitioner. Petitioner claims Rs. 1,000/- as compensation and Rs. 2,000/- as litigation costs.
Opposite party filed joint version in CC 139/10 and 128/10. According to the opposite party petitioner is not a consumer because the service is availed for commercial purpose. Un authorized additional load was detected by the opposite party. A provisional assessment was made under section 126 of Electricity Act 2003 and after hearing the petitioner the final assessment was made. Since subsequent claims raised is the continuation of the penal assessment for the non regularization of un authorized additional load, petitioner ought to have approached the assessing official or the Appellate Authority as provided under section 126 and 127 of the Electricity Act. Connection to the petitioners premises is LT VII A commercial tariff. On 29..11..2008 premises of the petitioner was inspected by Assistant Engineer. During inspection the total load premises was found to be 11400 watts instead of 5 KW. The sight mahazar was prepared and provisional assessment bill for a period of one year was issued as per section 126 Indian Electricity Act 2003. After hearing objection of the petitioner professional bill issued to the petitioner was cancelled and the revised bill for Rs. 36,308 /- was issued to the petitioner. The bill was remitted by
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the petitioner on 31..11..2008. As per regulation 51(4) of KSEB terms and conditions 2005 un authorized load should be got regularized on application to the Assistant Executive Engineer after paying the additional security deposit and other charges as per rules. Due to over sight, penal bills was not continued in the subsequent bills. Opposite party admitted that on 16..1..2009 petitioner filed an application, before the A.E, along with completion report. Immediately after receiving same at the office of the second opposite party premises was inspected by the Sub Engineer. During verification of the connected load of the premises. Sub Engineer found that the connected load shown in the completion report and physically installed in the premises are not matching . Moreover, during verification on application it is seen that required court fee stamp worth Rs. 50/- and seal of the institution were not seen affixed this irregularities were informed to the consumer personally who was present at the time of verification. But till date he has not rectified the mistakes and informed the same to the second opposite party and due to this reason the connected load should not be regularized. Since the UAL is regularized or removed due to oversight, penal billing was not continued in subsequent bills with effect from 1/09. This omission was noticed only during the issuance of spot bill for 5/10 and while issuing the normal bill penal charges is also incorporated. Opposite party admitted that on 10..5..2010 the complainant was requested for canceling the bill Dtd: 5..5..2010 for Rs. 24364/-. Since the bill was issued in accordance with the law prevailing second opposite party is not able to cancelled the same. According to the opposite party since the UAL is continuing further short assessment bill for Rs. 51,357/- is issued to the petitioner. According to the opposite party both bills in dispute in CC 128/10 and
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CC 139/10 are issued legally and properly and there is no deficiency in service on their part and they pray for dismissal of the petition with their costs.
Points for determinations are:
i) Whether there is deficiency in service on the part of the opposite party?
ii) Relief and costs?
Evidence in this case consists of affidavit filed by both parties and Ext. A1 to
A6 documents on the side of the petitioner and Ext. B1 to B7 documents on the side of the opposite parties and deposition of DW1.
Point No. 1
The bill is dispute in CC No. 128/10 is the bill Dtd: 5..5..2010 for Rs. 7857.13. The copy of the said bill produced is marked as Ext. A5. The bill Dtd: 10..5..2010 for Rs. 55357/- disputed in CC-139/10 produced is marked as Ext. A7. The detection of the unauthorized additional load on 29..11..2008 is admitted by the petitioner. The bill for unauthorized additional load for Rs. 36,308/- is admittedly remitted by the petitioner on 31..12..2008. According to the opposite party since the petitioner was not regularized un authorized additional load the penalization will be continued as per law. Petitioner alleges deficiency in service in not considering the application submitted by the petitioner on 16..1..2009 to the Assistant Engineer for regularizing the un authorized additional load. According to opposite party immediately on receiving the application, at the office of the second opposite party, premises was inspected by the Sub Engineer. During verification of connected load of the premises, Sub Engineer found that connected load shown in the completion report and that physically installed in the premises are not matching. Moreover during verification of application required court fee stamp worth Rs. 50/- and seal of the
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institution were not seen affixed this irregularities were informed to the consumer personally, who was present at the time of verification. But till date consumer has not rectified the mistake and informed the same to the second opposite party. Hence the connected load could not be regularized. Opposite party produced the original application-cum-completion report submitted by the petitioner for regularizing the un authorized additional load the same produced as marked as Ext. B7. Admittedly Ext. B7 is in the custody of the opposite party. In the remarks portion of Ext. B7 it is stated that the actual connected load in the premises is found to be grater than the declared load. Further more it is stated that no court fee stamp affixed and seal of the institution not affixed. Opposite party has a definite case that the above mentioned facts were intimated to the consumer but no scrap of paper is produced to prove the same. From page No. 2 of Ext. B7 it can be seen that the court fee stamp of Rs. 50/- is affixed there. From the remittance of the penal bill after date of the un authorized additional load and subsequent filing of Ext. B7 application shows the bonafides of the petitioner. Further more, Regulation 51 (4) of KSEB terms and conditions of supply 2005 states that unauthorized load should be got regularized by the consumer on application to the Assistant Executive Engineer and after payment of the additional deposit and other charges as per rules. The regulation specifically stated that the Assistant Executive Engineer shall issue proceedings to this effect. But no proceedings were seen issued in this case by the Assistant Executive Engineer. Sub Engineer is examined as DW1. From Ext. B7 document it can be seen that the inspection was conducted by Sub Engineer. From deposition of DW1 it can be seen that Ext. B7 was forwarded to the Sub Engineer by the Assistant Engineer and the inspection report was submitted to the Assistant Engineer. Further more DW1 stated
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that no defect for regularization of load was intimated to the petitioner in written. From the deposition of DW1 it can be seen that the defect in the application were intimated in person at the time of inspection by the Sub Engineer. But as per regulation the proceedings shall be issued by the Asst. Exe. Engineer. Further more from non mentioning of the un authorized additional load in the subsequent bill after submission of the Ext. B7 shows that there was some omission or latches on the part of the opposite party. Deficiency is defined in Section 2 (g) of Consumer Protection Act 1986 as any fault imperfection or short coming or inadequacy in the quality or nature and manner of performance, which is required to be maintained by law for time being in force or has been undertaken to be performed by a person in pursuance of a contract or in relation to any service.
Here in our view act of the opposite party in not intimating the petitioner with regard to the defects in the Ext. B7 application is an imperfection shortcoming in the manner of performance which is required to be maintained by law and amounts to deficiency in service. So, point No. 1 is found accordingly.
Point No. 2
In view of the finding in point No. 1 both petitions allowed. Bill Dtd: 5..5..2010 for Rs. 7857.13 and bill Dtd: 10..5..2010 for Rs. 51357/- is cancelled. Opposite party is ordered to consider the application Dtd: 6..1..2009, filed by the petitioner, at the earliest. Opposite party is directed to issue revised bill to the petition without penalizing him, as if the connection of the petitioner was regularized on 16..1..2009. Order shall be complied with within one month of receipt of a copy of order. Amount if any deposited by the petitioner to the licensee is to be deducted from the revised fresh bill. Considering the facts and circumstances of the case no cost and compensation is ordered.
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Dictated by me, transcribed by the Confidential Assistant, corrected by me and
pronounced in the Open Forum on this the 29th day of August, 2011.
Sri. Santhosh Kesavanath P., President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
APPENDIX
Documents for the petitioner
Ext. A1: Copy of the bill Dtd: 26..12..2008 for Rs. 36,308/-
Ext. A2: Copy of the receipt Dtd: 31..12..2009
Ext. A3: Copy of the application Dtd: 6..1..2009
Ext. A4: Copy of the receipt for application filing fee Dtd: 16..1..2009
Ext. A5: Copy of the bill Dtd: 5..5..2010
Ext. A6: Copy of the complaint Dtd: 10..5..2000
Ext. A7: Copy of the bill Dtd: 10..5..2010
Ext. A8: Copy of letter Dtd: 10..5..2010
Documents for the Opposite party
Ext. B1: Copy of meter reading register.
Ext. B2: Original Mahazar
Ext. B3: Copy of spot bill Dtd: 5..5..2010
Ext. B4: Copy of short assessment bill Dtd: 11..5..2010
Ext. B5: Covering letter Dtd: 11..5..2010
Ext. B6: Copy of objection Dtd: 12..12..2008
Ext. B7: Original application –cum-completion report submitted by the
petitioner.
By Order,
Senior Superintendent
