Per Sri A Hazarath Rao, President:-

The complainant filed this complaint U/s 12 of Consumer Protection Act, to set aside the provisional assessment orders relating to SC.Nos.1111400000766 and 1111400093175 dated 15-03-12 for Rs.39,570/- and Rs.33,827/- and claiming Rs.5,000/- towards mental agony; Rs.5,000/- towards compensation and Rs.10,000/- towards legal expenses. 

2.   In brief the averments of the complaint are hereunder:

          The complainant on 01-03-12 leased out his residential building i.e.,  5-5-8, 1/4 Brodipet, Guntur to one Grandhi Trivikrama Rao @Rs.4,000/- pm.   The said tenant is residing in the said premises.  The said premises consists of four rooms, one kitchen and a hall.  The said premises is having two service connections bearing Nos.1111400000766 and 1111400093175.  The said tenant is residing in the said premises with his joint family consisting of two unmarried sons, mother-in-law and his sister-in-law and her two daughters and his married daughter and her family totaling to 13 persons.   The complainant never objected the tenant for living in the said premises with the above joint family members. The service connection No.1111400000766 covered six ceiling fans, 8 tube lights, a grinder of ¼ HP., a mixer, a television, air-cooler and 6 bed lamps while the service connection No.1111400093175 covered two water motors i.e., for municipal drinking water and another for bore water.   The said tenant on 15-03-12 invited his relatives and friends on the eve of Ganapathi Homam and Satyanarayana Swami Vratham.   The 2^nd opposite party i.e., Assistant Engineer of D4 section inspected the premises on 15-03-12 and obtained signatures from one Revathi i.e., complainant’s daughter.   The Assistant Engineer of D4 section has no concern with D1 section.    The said Assistant Engineer made an inventory about the electrical appliances.  The person who inspected the premises noted the same electrical appliances for two service connections.  Basing on the inspection report, the Assistant Divisional Engineer (O), Guntur-1 issued provisional assessment order u/s 126 of the Electricity Act and made an allegation of malpractice contending that the service though released under one category the consumer is utilizing for running ladies hostel and provisionally assessed for the said two service connection Nos.1111400000766 and 1111400093175 at Rs.39,570/- and Rs.33,827/- and demanded 50% of the said amount for continuation of power supply.   The said Revathi gave reply on 05-05-12.  The complainant was put to much trouble and mental agony due to the absurd inspection done by the opposite parties without accurate inventory.   The alleged electrical appliances mentioned by the 2^nd opposite party is far from truth.   The opposite parties issued the provisional assessment order by treating the complainant’s service connection as commercial from domestic purpose.   The opposite parties failed to give a reasonable opportunity either to the complainant or his tenant before issuing the provisional assessment order.   The conduct of the opposite parties in issuing provisional assessment order dated 15-03-12 on the wrong inventory notes amounted to deficiency of service.   The complaint therefore be allowed.

3.  The 1^st opposite party adopted the version of the 2^nd opposite party and their contention in brief is hereunder:

          The service connection bearing Nos. 1111400000766 and 1111400093175 were under LT-1 category (domestic) and were in the name of the complainant herein.   The Assistant Engineer (O), D-4, APSPDCL, Guntur visited the said premises at 16.30 hrs and 16.50 hrs.   The consumer is utilizing SC.Nos.1111400000766 and 1111400093175 for running ladies hostel though took connection under domestic category and thus committed malpractice.   On the basis of inspection notes and report the Assistant Divisional Engineer (O), Gutnur-1, APSPDCL issued a provisional assessment notice to respective consumers and provisionally assessed the electricity charges at Rs.39,570/- and Rs.33,872/- in accordance with section 126 of the Electricity Act, 2003.   The Assistant Divisional Engineer (O), Gutnur-1, APSPDCL  asked the complainant to pay half of the amount if desires to have continuous power supply.   The complainant though paid Rs.39,570/- for SC.No.1111400000766 did not chose to pay the balance of 50% amount for SC.No. 1111400093175.   The complainant did not prefer an appeal to the appellate authority despite the provision mentioned in the order and straight away filed the complaint before this Forum.  The complaint is therefore premature and is liable to be dismissed.  As per regulations the inspecting officer is having power to inspect any premises situated at any place basing on the instructions issued by the Corporation from time to time.   Rest of the allegations contra mentioned in the complaint are all false and are invented by the complainant to suit his case.   The complaint therefore be dismissed.

4.   Exs.A-1 to A-9 on behalf of complainant and Exs.B-1 to B-8 on behalf of opposite parties were marked.  

5.    Now the points for consideration in this case are these:

1. Whether the complainant committed malpractice by using the power supply for other purpose which the supply was given?
2. Whether the provisional assessment orders dated 15-03-12 can be set aside?
3. Whether the complainant is entitled to any compensation?
4. To what relief?

6.   Admitted facts in this case are these:

1. The complainant is the consumer for SC. Nos. 1111400000766 and 1111400093175.
2. Both the service connections were given under domestic category.
3. The Assistant Engineer, D-4 section inspected the premises belonging to the complainant covered by the said service connections on 15-03-12 (Ex.B1, B2,  B5 and B6).
4. The opposite parties passed provisional assessment orders on 16-03-12 demanding Rs.39,570/- and Rs.33,827/- for the above service connections numbers alleging malpractice                             (Exs.A-6 & 7=B3 & B7).
5. One K. Revathi on 05-05-12 gave a representation to the Divisional Engineer, APSPDCL, Tirupathi (Exs.A-8 & 9).

7.    POINTS 1&2:-    The Divisional Engineer (Assessments), Tirupathi passed final assessment orders under the originals of Exs.B-4 and B-8 dated 19-06-12.   In those orders the Divisional Engineer (Assessments), Tirupathi requested ADE/OP/Guntur –I to serve copy of that order on the consumer (Complainant) and obtain acknowledgement.   The version as well as the affidavit was silent whether the ADE/OP/Guntur-1, served copy of Exs.B-4 and B-8 orders to the complainant and the date of acknowledgment.   The opposite party failed to file acknowledgement of those orders by the complainant though it is within their special knowledge even before filing this complaint on 25-07-12.    It can therefore be inferred that the orders under Exs.B-4 and B-8 were not served to the complainant.  Under those circumstances, Exs.B-4 and B-8 will not help the opposite parties in any way. In Jharkhand State Electricity Board and another vs. Anwar Ali                  2008 CTJ 837 NCDRC the National Consumer Disputes Redressal Commission held:

          “i) Section 3 of the Consumer Protection Act and Section 175 of the Electricity Act, provide that they are in addition to and not in derogation of rights under any other law for the time being in force.  Therefore, the rights of the consumers under Consumer Protection Act are not affected by the Electricity Act.

ii) A bare reading of Section 173, 174 and 175, makes it clear that the intent of Legislature is not to bar the jurisdiction of the Consumer For a constituted under the Consumer Protection Act.  The provisions of the Electricity Act have overriding effect qua provisions of any other law except that of the Consumer Protection Act, 1986, the Atomic Energy Act, 1962 and the Railway Act, 1989.

          iii) Section 42(8) of the Electricity Act specifically provides that the remedies conferred on consumer under sub sections (5), (6) and (7) of Section 42 are without prejudice to the right which the consumer may have apart from the rights conferred upon him by those sub sections.

          iv) Section 145 of the Electricity Act specifically bars the jurisdiction of the Civil court to entertain any suit or proceedings in respect of any matter which an assessing officer referred to in Section 126 or an Appellate Authority referred to in section 127 of the Electricity Act or the Adjudicating Officer appointed under the Electricity Act is empowered to determine………………………………………

          v) Consumer of electrical energy provided by the Electricity Board or other Private Company, is a consumer as defined under section 2(1) (o) of the Consumer Protection Act and a complaint alleging any deficiency on the part of the Board or other private company including any fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance which is required to be maintained by or under any law or in pursuance of any contract in ‘relation to service, is maintainable under the Consumer Protection Act.

          Against the Assessment Order passed under Section 126 of the Electricity Act, a consumer has option either to file appeal under section 127 of the Electricity Act or to approach the Consumer Fora by filing complaint.  He has to select either of the remedy.  However, before entertaining the complaint, the Consumer Fora would direct the consumer to deposit an amount equal to one-third of the assessed amount with the licencee (similar to section 127(2) of the Electricity Act.)”

8.      In this case the complainant questioned the provisional assessment order passed by the opposite parties.  The opposite parties failed to prove that it served the final assessment orders on the complainant even before filing the complaint.   The contention of the opposite parties about the lack of jurisdiction to entertain the complaint is therefore devoid of merit.  Therefore this Forum has jurisdiction to entertain the complaint.   

9.      The complainant contended that the AAE, D-4 division had no authority to inspect the premises out side his jurisdiction.  Opposing the said contention the opposite parties relied on General terms and conditions of supply of distribution and retail supply licenses.   The relevant portion at page 135 of General terms and conditions of supply of distribution and retail supply licenses is extracted below for better appreciation:

          On seeing the above table ADE, in charge of the distribution alone can issue provisional assessment order. But nothing was mentioned for conducting inspections and issue of inspection report (inspecting officer) except AAE/AE. Under those circumstances, the contention of the complainant that the opposite party (AAE-D4) had no authority to inspect premises outside his jurisdiction is devoid of merit.  

10.    The learned counsel for the complainant contended that the authority ignored the amendments made to sections 126 (3) (5) and (6) of The Electricity Act, 2003 while issuing provisional assessment order.   On the other hand, the learned counsel for the opposite party contended that the opposite parties considered amendments made to those sections which came into force from 15-06-07.   The learned counsel for the complainant filed xerox copy of section 126 of the Electricity Act, 2003.  

11.  After perusal of the Electricity Act, 2013 the amendments made to section 126 (3), (4), (5) and (6) were incorporated in the said Act itself mentioning the sections prior to amendment at the bottom.  The contention of the learned counsel for the complainant therefore is devoid of merit.  

12.    The further contention of the learned counsel for the complainant is that the inspecting authority did not follow the section 135(4) of the Electricity Act while conducting search.   The learned counsel for the opposite party on the other hand, contended that the said section is not applicable to the case on hand.  Section 135 (4) of the Electricity Act, 2003 says that the provisions of the code of Criminal Procedure, 1973 relating to search and seizure shall apply as far as may be, to searches and seizure under this Act.  

13.    Section 100 Cr.P.C. dealt with searches or inspection of closed places or other premises. As seen from Ex.B-1 one K. Revathi was present at the time of inspection by the opposite party.  The opposite party took an inventory of the appliances said to have been found in the said premises on Exs.B-1 and B-5 which the complainant is now disputing. Not following the procedure as contemplated u/s 100 Cr.P.C. by the opposite party while inspecting the premises in our considered opinion did not amount to deficiency of service.   At the same time, the opposite parties took the risk of proving the truth or otherwise of contents of Ex.B-1 and B-5 in our considered view.  

14.   The complainant is a registered consumer for the said service connections in the records of the opposite parties and as such is a consumer.   Normally a tenant pays electricity consumption charges.                                     In this case the same was corroborated by Ex.A-8 representation made                   by one K. Revathi to the Assistant Divisional Engineer, Tirupathi corroborated that the tenant is paying consumption charges and is the aggrieved                person.  The tenant also comes under the purview of consumer as he is       using power supply with the deemed consent of a registered                                                                         consumer.   The complainant approached this Forum instead of tenant for the reasons best known to him.          

15.   The contention of the opposite party is that the complainant is using the power supply unauthorisedly for running ladies hostel though connection was taken for domestic purpose.  Explanation to section 126(b)(4) says that unauthorised use of electricity means for the purpose other than for which the usage of electricity was authorised.  Except the self serving inspection notes under Ex.B-2 and B-5 the opposite party neither recorded statements of hustlers said to have been staying there nor neighbors of that locality.

16.   The complainant in para III (5) of his complaint and para 6 of affidavit mentioned that the tenant on 15-03-12 conducted Ganapathi Homam and Satyanarayana Swami Vratham and invited his friends and relatives for attending pooja.   The said aspect did not find place in Ex.A-8 explanation sent by one K. Revathi to the Divisional Engineer, APSPDCL, Tirupathi.

17.    The provisional assessment orders were made on 16-03-12.   Tenant of the complainant under Ex.A-8 representation questioned the inspection reports as well as its assessment and sought for personal hearing at Guntur.  In a way the tenant approached the appellate Forum i.e., the Assistant Divisional Engineer, Tirupathi. On the other hand, the complainant approached this Forum after Ex.A-8.  

18.    A consumer can either approach the appellate authority referred to in Sec. 127 of the Electricity Act or other adjudicating authority or consumer Forum as held in the decision referred supra 2008 CTJ 837 (NCDRC). 

19.  The said Revathi referred to in complaint in Ex.A-8 representation mentioned that the inspecting authority obtained his signatures on white paper under threat and made a false report.   The complainant in para III (6) of his complaint and para 6 of his affidavit mentioned that the inspecting authority obtained signatures from one K. Revathi daughter of his tenant.   Both the above statements are contradicting each other. 

20.   The tenant on 05-05-12 having questioned the provisional assessment order under Ex.A-8 in my considered opinion at a later stage cannot approach this Forum either by herself or registered consumer of service connection of electricity.

21.    The complainant in para III (2) it was mentioned “It is further submitted that the said tenant is having joint family consisting of married daughter and her family, unmarried two sons, mother-in-law and his sister-in-law and her two daughters total number of                persons 13. The family members are living under one roof…………………………..  There is no objection from the land lord about the number of persons living in the rented building”.   The complainant mentioned the same in para 2 of his affidavit.   The complainant filed copy of representation (Ex.A-8) addressed by one K. Revathi to the Divisional Engineer, Assessment, APSPDCL, Tirupathi.   The said Revathi was present while the subject premises was inspected by the opposite party.   The relevant portion in Ex.A-8 is extracted below for better appreciation:

“My family took the said house from                                     K. Seetharamaiah, advocate, notary and Ex-public prosecutor on rent in the month of March, 2012 for residential purpose.   Myself and my family members only residing in the said house.   My father, mother and two brothers are also residing along with me in the said house”.         

22.   The inspection notes did not reveal how many persons were residing in the said premises at the time of inspection.   The complainant in his complaint and affidavit mentioned that he leased out the subject premises to one Grandhi Trivikrama Rao working as UDC, Tobacco Board, Ministry of Commerce, Guntur.   The complainant for the reasons best known to him did not file affidavit of the said Grandhi Trivikrama Rao.   The said Revathi referred to in Ex.A-8 cannot be a member of joint family of her parents after marriage as rightly contended by the opposite parties.   Ex.A-8 and the averments made in the complaint are self contradictory in our considered opinion and prima facie corroborated the contention of the opposite parties. Therefore we opine that the complainant did not approach the Forum with true state of affairs.   We therefore hold that the opposite parties did not commit any deficiency of service and answer these points against the complainant.  

23.  POINT No.3:-   In view of above findings we opine that the complainant is not entitled to any compensation and answer this point also against the complainant.

24.  POINT No.4:-  In view of above findings, in the result the complaint is dismissed without costs.

          Typed to my dictation by Junior Steno, corrected by me and pronounced in the open Forum dated this the 24^th day of April, 2013.

MEMBER                                  MEMBER                           PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties: -

          PRESIDENT     

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.