Kerala

Idukki

CC/30/2019

sathy Surendharan - Complainant(s)

Versus

The Secritary KSEB TVM - Opp.Party(s)

29 Nov 2019

ORDER

DATE OF FILING : 6.2.2019

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 29^th day of November, 2019

Present :

SRI. S. GOPAKUMAR PRESIDENT

SMT. ASAMOL. P MEMBER

CC NO.30/2019

Between

Complainant : Sathi Surendran,

Karuppakkattu,

40 Acre, Bysonvalley,

Idukki.

(By Adv: G. Baburaj)

And

Opposite Parties : 1. The Secretay,

Kerala State Electricity Board,

Vydyuthi Bhavan,

Pattam, Thiruvananthapuram.

2. The Assistant Engineer,

Kerala State Electricity Board,

Electrical Section, Chithirapuram,

Chithirapuram P.O., Idukki.

3. The Assistant Executive Engineer,

Kerala State Electricity Board,

APTS, Vazhathoppe,

Idukki Colony P.O., Idukki.

(All by Adv: Lizzy M.M.)

 

O R D E R

 

SRI. S. GOPAKUMAR, PRESIDENT

 

Case of the complainant is that :

 

Complainant is the owner and in possession of a building having 3 rooms, from 24.3.2008, previously owned by one C.K. Chellappan. The electric connection of this building is provided in the name of previous owner C.K. Chellappan.

 

Out of these rooms, one room is using for residence and other rooms are using as a petty shops. So the electric connection installed in this building is categorized as commercial. While so, on 17.11.2015, the Anti

(cont.....2)

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Power Theft Squad of the opposite parties inspected the building and they informed the complainant that the complainant is using the electricity under the tariff 7B and the connection should be changed from tariff 7B to 7A and the tariff rate, the complainant paying is wrong and incorrect and as per the reading, the complainant is liable to pay Rs.25,307/- and issued a demand bill on the same day as unauthorised use of electiricity. At that time, the squad threatened the complainant that if she is failing to remit the bill amount, they will disconnect the power supply to this consumer connection. Due to the threat of the squad, the complainant collected the amount and paid the bill amount to the 1^st opposite party office. Thereafter the connection continued in VII B tariff.

 

While so, on 27.11.2018, complainant received a notice from the 1^st opposite party demanding her to pay Rs.52,512/- and directed her to pay the amount in 6 equal instalments. As per the direction of the opposite party, complainant paid Rs.12000/- on 4.1.2019. As per the notice, the next instalment due is 4.2.2019. On further enquiry, the complainant came to know that, the opposite party realised an amount of Rs.25,307/- from the complainant against the prevailing laws and rules and moreover, opposite party issued bills to the complainant till 2018 as per tariff 7B and till now opposite party is not transferred the tariff from 7B to 7A. The complainant further averred that the present bill for Rs.52,512/- issued by the opposite party for a period of 30 months from 17.11.2015 to 2018 till the change of tariff from 7B to 7A, with a hike of electricity charges and other hidden charges with a retrospective effect of 30 months is illegal and unlawfull.

 

Since the opposite party has no authority to fix the tariff of the power connection of the complainant and if the inspection of APTS by following the legal formalities, they are bound to issue a bill having electricity charge of tariff VII A from 17.11.2015. Non issuance of such a bill is a gross deficiency in service on the part of opposite parties and opposite parties are bound to repay the electricity charges of Rs.25,307/- along with interest already realised from the complainant.

 

The complainant further averred that , the opposite party is calculated the penal charge beyond the period of 6 months. Eventhough the

(cont.....3)

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prevailing rules and regulations and circulars stating the opposite party has no authority to realise such amount beyond the period of 6 months back. Hence alleging deficiency in service on the part of the opposite parties, complainant filed this petition seeking relief such as to direct the opposite party to return an amount of Rs.25,307/- along with interest from 17.11.2015, and to return Rs.12000/- which was collected from the complainant on 4.1.2019 and further direct the opposite party to cancel the demand notice having No.5615181122327 and pay compensation and cost.

 

Upon notice, opposite parties entered appearance and filed detailed reply version.

 

In their version, opposite parties contended that as per section 145 of the Electricity Act 2003, “No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in Section 126 or an appellate authority referred to Section 127 or the adjudicating officer appointed under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or be taken in pursuance of and power conferred by or under this Act.”

 

Opposite party further contended that while on inspection in the premises of the complainant, the service connection with consumer No.470 was found using as hotel and restaurant, a shop and chicken stall, which is profit making and hence the complainant will not come under the definition of consumer as defined in Consumer Protection Act, 1986. The electric connection bearing consumer No.470 under 2^nd opposite party was given to one C.K. Chellappan, Cheruparambil, Bison Valley in LT 7B tariff with a connected load of 220 watts on 25.6.1969. At the time of inspection, it is found that the connected load in the connection was 2533 watts. Hence as per section 126 of Electricity Act 2003, for connecting and using unauthorised load of 2 KW, penal bill of Rs.25,307/- was issued which was remitted by the complainant on 30.3.2016. But not regularised the unauthorised load detected. The tariff was not changed from 7B to 7A.

 

Opposite party further contended that subsequently the Regional Audit officer due to non-regularising the tariff and connected load in short

(cont.....4)

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assessment under section 126 amounting to Rs.53572/- for the period from 12/15 to 3/18 was issued to the consumer on 27.11.2018. The consumer requested to remit the amount in 6 instalments and remitted 1^st instalment on 4.1.2019 amounting to Rs.12,000/-.

 

Opposite party further contended that the ownership change of the service connection, tariff change and connected load change in respect of the connection in question are not applied by the complainant till date. The opposite party is not aware about the sale of the building or the ownership and at the time of hearing on 7.12.2015 of provisional notice, necessity of changing tariff, ownership and connected load were explained to the person who attended the hearing for. The complainant's averment that the complainant was unaware of the regularisation of tariff, load etc. is not true and the same was explained in the site mahazar and provisional invoice dated 21.11.2015 and also at the time of hearing. Hence there is no deficiency on the part of the opposite parties and none of the relief claimed in the complaint can be allowable.

 

Heard both sides.

 

The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

 

The complainant was examined as PW1 and Exts.P1 to P3 are produced and marked. Ext.P1 is the instalment plan, Ext.P2 is the bill dated 4.1.2019 and Ext.P3 is the bill history. From the opposite side, one Bimal Joseph, Assistant Executive Engineer of 2^nd opposite party was examined as DW1 and Exts.R1 and R2 marked. Ext.R1 is the application for granting instalment given by the complainant, original and copy. Ext.R2 is the instalment plan.

 

The POINT :- We have heard the counsels for both parties and had gone through the records. The learned counsel for the complainant vehemently argued that section 126 of the Electricity Act 2003, specifically stated that unauthorised use of electricity has taken place cannot be ascertained. Such period shall be limited to a period of twelve

(cont.....5)

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months, immediately preceding the date of inspection. As per section 62 of the same Act, the appropriate commission shall determine the tariff in accordance with the permission of the Act (d) the retail sale of electricity.

 

By relying the decision reported in KLT (2019) Part 3, Vol.2, page 266, the Hon'ble Mr. Justice K. Vinod Chandran & Hon'ble Mr. Justice Ashok Menon, observed in the case of KSEB Vs. Alwaye Rubex (P) Ltd., that Section 126 is a power to assess and not to penalize. The Hon'ble Court further observed that if the provisional assessment is not satisfied, then the Assessing Officer, on coming to a conclusion of an unauthorised use of electricity, can assess to his best of judgement for the entire period during which such unauthorised use has taken place, subject to a limitation of a six month prior period as the provision then existed. The assessment under the Section shall also be at a rate of one and a half times the tariff applicable for the relevant category of services.

 

The learned counsel further argued that in the light of above finding of the Hon'ble High Court, the opposite party cannot assess the charges of the unauthorised consumption of electricity beyond the period of prior six months and the bills in question are issued against the prevailing laws and the act of the opposite party in this case is gross deficiency in service and unfair trade practice.

 

On the other hand, the learned counsel for the opposite party argued that at the outset the complaint is not maintainable herein on the reason that the detection of the APTS under section 126 of the Electricity Act 2003 cannot be sustainable in a Civil Court. For substantiating his plea, the counsel relied upon the decision laid down by the Hon'ble High Court of Kerala in NP(1) 6993 of 2013 dated 12.4.2017 in Seetha Ram Mills Vs. KSEB. In this case, it is specifically stated that no Civil Court shall have jurisdiction to entertain any suit or proceedings in respect of any matter which an assessing office referred in Section 126 or an appellate authority referred in Section 127 of the Kerala Electricity Act 2003.

 

The next issue raised by the learned counsel is that the complainant is having no consumer relationship with the opposite party. She is neither a consumer nor a beneficiary to the alleged electric connection having consumer No.470. (cont.....6)

- 6 -

On going through the evidence on record and the points of arguments, it is seen that, the complaint filed by one Sathi Surendran, Karuppakkattu, Baison Valley, in the 1st paragraph of the complaint, she stated that she purchased a building having three rooms, where the electric connection in question is installed, from one C.K. Chellappan, by virtue of a sale deed on 24.3.2008. Eventhough the complainant pleaded ownership of the building, no corresponding evidence such as sale deed or ownership certificate etc. is not produced before the Forum for substantiating her plea, that she is the owner and in possession of the building where the electric connection No.470 is installed. Moreover, while on cross examination, she specifically deposed that she is residing some where else and the rooms are let out for conducting business. She further deposed that the electricity connection is in the name of the prior owner C.K. Chellappan still. She further deposed that “BZ-ys¯ XpI AS-¨p-XoÀ¯p. -tijw regularise sN¿m³ 21.11.2015-þ AXv 7Aþbn-te¡v amäm³ notice X¶n-cp¶p F¶v ]d-bp-¶p(Q). F\n¡v In«n-bn-à (A).

 

From the evidence, it is seen that when the complainant received the bill for Rs.53,521/-, she filed Ext.R1 representation before the electricity authority for granting the instalment. On accepting her prayer, opposite party granted six instalments and one of the instalment was paid by the complainant on 4.12.2019. From Ext.R1 record, it is very clear that complainant was ready to remit the electricity charges, since it was used by her tenants, who are conducting business in these rooms and she was unaware that what are the electrical items which was used by her tenants.

 

Here the penal bill was issued in the name of K.C. Chellappan and no record is produced by the complainant to convince that before the issuance of the penal bill, she approached the opposite party to transfer the power connection in her name.

 

Hence absence of materials to establish the consumer relationship with the opposite party, on the part of the complainant, we cannot come to a conclusion that whether the complainant is having any consumer relationship with the opposite party or at least complainant is a beneficiary of the electric connection in question. Hence the issue raised by the opposite party relating to the consumer relationship is found in favour of them. (cont.....7)

- 7 -

 

Then regarding the power of Consumer Court to entertain the issue relating to Section 126 and 127 of the Electricity Act. In the instant case, complainant has not a case that the inspection of the opposite party cannot be considered as an inspection under section 126 of the Electricity Act. While on cross examination, complainant has not raised any question relating to the inspection. Complainant has not challenged the inspection of APTS, but she challenged only the issuance of penal bill beyond the period of 6 months as pointed out at the time of arguments.

 

Here, since the complainant is not challenged the inspection of APTS, the Forum is having no jurisdiction to entertain a complaint challenging the issuance of short assessment bill under section 126 of the Electricity Act 2003, since the Civil Courts are specifically banned from entertaining such proceedings as observed by our Hon'ble High Court in Seetha Ram Mills case.

 

On the basis of the above discussion, the Forum is of a considered view that the complaint is not maintainable on two reasons, that is, the complainant miserably failed to establish her right and possession upon the disputed rooms and the issue is related to the issuance of penal bill under section 126 of the Electricity Act 2003.

 

Hence the complaint dismissed. No order to cost.

 

Pronounced in the Open Forum on this the 29^th day of November, 2019

 

 

Sd/-

SRI. S. GOPAKUMAR, PRESIDENT

 

 

Sd/-

SMT. ASAMOL. P., MEMBER

 

 

(cont.....8)

 

- 8 -

 

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - Sathi Surendran.

On the side of the Opposite Party :

DW1 - Bimal Joseph P.

Exhibits :

On the side of the Complainant :

Ext.P1 - instalment plan,

Ext.P2 - bill dated 4.1.2019.

Ext.P3 - bill history.

On the side of the Opposite Party :

Exts.R1 - the application for granting instalment given by the

complainant, original and copy.

Ext.R2 - instalment plan.

 

 

 

Forwarded by Order,

 

 

 

SENIOR SUPERINTENDENT