Heard learned counsel for both the sides.

2.        Captioned appeal is filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.        The case of the complainant in nutshell is that complainant being a partner of partnership firm along with other members of his family have commenced the Hotel Business under the name and style as ‘Royal Palace’ under self employment scheme to earn their livelihood.

4.        It is alleged inter alia that the complainant has executed an agreement with the opposite party to become a consumer of opposite party. It is alleged by the complainant that the complainant has been paying the bills pending against the use of energy in hotel ‘Royal Palace’ but suddenly the an additional bill for an amount of Rs.2,76,045/- was received by the complainant from the opposite party. It is also mentioned therein that if the amount is not paid, there would be disconnection of the power supply. So, the complaint was filed.

5.        The opposite party filed the written version stating that the case is not maintainable in view of the decision of the Hon’ble Supreme Court in the case of Assistant Engineer, Ajmer Vidyut Vitran Nigam Ltd. & Anr. Vrs. Rahamatullah Khan, reported in (2020)4 SCC 650. It is also averred that as per agreement transformer loss is payable by O.P. as  it was raised after following the Electricity Act read with OERC Code.

6.        After going through the pleadings of both the parties, learned District Forum have passed the following order:-

              “xxx   xxx   xxx

              The Bill issued by the Opposite Party amounting to Rs.2,76,045/- (Rupees Two Lakh Seventy Six Thousand Forty Five) only in favour of the Complainant is not being within the ambit of law is declared as illegal and the same is declared as inoperative against the Complainant and as such quashed, further the Opposite Party is directed not to disconnect the service line of supply of electricity to the premises of the Complainant vide his Consumer No. 512001110836 in connection with this case. Further the opposite party is directed to comply with this Order within one month of receipt of this Order.

              In the result, the complaint is allowed against the opposite party, and the same being pronounced in the open Forum is disposed of today i.e. on dated 2.3.2020, without any cost.”

7.        Learned counsel for the appellant submitted that the case is involved with Transformer loss which is payable by the complainant in view of the agreement in Clause 6 executed between the parties. He submitted that Transformer loss is payable by the complainant being the consumer under the opposite party. Further he submitted that the assessment made by them is also admissible under Section 56(2) of Electricity Act read with OERC Code and the complainant is not a consumer under the Act. Therefore, he submitted to allow the appeal by setting aside the impugned order. He relied on a decision of Hon’ble Apex Court in  Assistant Engineer, Ajmer Vidyut Vitran Nigam Ltd. (supra).

8.        Learned counsel for the Respondent submitted that whatever bill has been demanded by the opposite party, they have paid the same. The question of ‘Transformer loss’ is a new phenomenon to the case of the complainant. He submitted that he is a consumer under the opposite party and obtained normal bills for use of energy in hotel business. The consumer under the Act does not include a person who obtains any goods or service for resale or for commercial purpose. In this regard, he further submitted that the complainant being a member of the said partnership firm constituted by the members of the joint family of complainant has obtained electricity connection entering into the agreement with the opposite party for earning their livelihood. Furthermore, the same electricity connection is not being used for resale which is more particularly has been restricted by the Act. It is also submitted that such bill being raised after two years, case is barred under Section 56(2) of Electricity Act, 2003. So he supports the impugned order.

9.        Considered the submissions of both the counsel for the parties. It is admitted fact that the complainant has made agreement with the opposite party to take power supply through individual transformer set up by the complainant for the purpose of use of same in the hotel business. It is also not in dispute that the opposite party issued bills raising a sum of Rs. 2,76,045/-. During the argument, a question arose about the Transformer loss.

10.     We find from the agreement executed between the parties which discloses that as per Clause-6, the complainant is liable to pay the Transformer loss  to the opposite party for better relationship. Clause-6 of the agreement reads as follows:-

            “6.  Charges to be paid by the consumer:

            The consumer shall pay to the Engineer for power demanded and electrical energy supplied under this Agreement, minimum ‘monthly charges’, ‘demand charges’, ‘energy charges’, and ‘other charges’ in accordance with the provisions of OERC Distribution (Conditions of Supply) Code, 2004 and is notified in the Tariff Notifications from time to time.

            Provided that the annual sum payable by any individual consumer under the provisions of Section 2 of the Indian Electricity Act, 1920 shall not be deemed to be part of the minimum monthly charges or demand charges, if any, payable by the consumer or the particular class of consumers under Regulations 84 and 85 of the OERC Distribution (Conditions of Supply) Code, 2004.

            Provided further that the consumer shall pay electricity duty or such other levy, tax or duty as may be prescribed under any other law in addition to the charges, fuel, surcharge and transformer loss payable under the OERC Distribution (Conditions of Supply) Code, 2004.”

11.     With the above provision and specifically the contracts for payment of Transformer loss, there is force with the submission of the learned counsel for the appellant. With regard to the bill raised after so many years, is another point of attack by the learned counsel for the appellant. It is submitted by the learned counsel for the appellant that in view of the Judgment of the Hon’ble Superme Court of India passed in the case of Assistant Engineer, Ajmer Vidyut Vitran Nigam Ltd. & Anr. Vrs. Rahamatullah Khan, reported in (2020)4 SCC 650 where Their Lordships have observed that any escaped assessment can be asked under Section 56(2) of Electricity Act, 2003 and limitation of two years cannot be pressed to counter the provision of Section 56(2) of the Electricity Act, 2003.

12.     With due regard to the aforesaid decision, we are of the view that  the amount raised is payable being not barred by Section 56(2) of Electricity Act, 2003. From the order of the learned District Forum, we find that learned District Forum has not gone through the facts and law involved in the case, as such, the impugned order of the District Forum is set aside.

13.     The appeal stands allowed. No cost.   

 DFR be sent back forthwith.

           Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.