Bangalore Electricity Supply
S/o Late H.B.Nagappa,
Aged about 52 yrs,
R/a No118/E, 16th Main,
Bangalore – 560 040.
01. The Managing Director,
Bangalore Electricity Supply Company Ltd.,
C B A B Complex, K.G.Road,
Bangalore – 560 009.
02. The Assistant Executive Engineer,
Bangalore Electricity Supply Company Ltd.,
North Sub-Division, Bangalore – 79.
The complainant has prayed for a direction to the Opposite Parties to pay the sum of Rs.35,182/- with interest thereon at 18% Per Annum from the date of payment and to pay Rs.3,00,000/- towards deficiency in service, mental agony and hardship caused to him on the following grounds:-
The complainant is availing power supply to his building under RR No.EH-30786. There was defect in the meter and therefore the consumption of energy was not recorded. On his request, the Opposite Party changed the meter on 18/04/2001. About two years thereafter Opposite Party No.2 raised bill on average consumption basis for the period from 18/04/2001 to 18/04/2003 claiming that the complainant has consumed 10,306 units during the said period. It is stated in the bill that the same is on the basis of average consumption and Opposite Party No.2 claimed a sum of Rs.35,182/- and directed to pay the sum within 30 days. On receipt of the said bill, the complainant went to the office of Opposite Party No.2 and expressed his dissatisfaction with regard to the bill raised and contended that he is not liable to pay the said amount, the bill is arbitrary and not sustainable. He also wrote a letter dated:14/05/2003 requesting to rectify the bill. Without considering the said letter, Opposite Party No.2 threatened that the connection will be disconnected if the payment is not made. Under the threat of disconnection, Opposite Party No.2 collected Rs.5,000/- on 02/07/2003 and Rs.5,000/- on 22/08/2003 by cheque. Those payments were made under protest without prejudice to his rights. The complainant wrote the letters dated:22/05/2003 and 29/05/2003 stating that there is no basis to collect the amount on the average of 429 units per month and claiming that the previous reading clearly shows the average consumption between 300 to 320 units and requested to raise the bill accordingly. Without considering his request, Opposite Party No.2 issued one more communication on 05/06/2006. The complainant stated that the replaced meter was showing the consumption as 4000 units at the time of installation itself, whereas the reading in replaced meter should start from 0000 units. The complainant also claimed that his residence is provided with solar heating system and entitled for 0.35 paise per unit and the claim for average consumption at 429 units per month is not proper and correct. The records maintained by Opposite Party No.2 disclose that the average monthly consumption is between 300 to 320 units only. Therefore, Opposite Party No.2 has come to an erroneous conclusion that the consumption is 429 units per month and the same has no basis. In view of his complaint, Opposite Party No.2 came forward to look into the defective meter and to replace the same if necessary. Without looking into the matter, Opposite Party No.2 again demanded Rs.35,182/- without giving deductions to the payments made. In the meanwhile, Opposite Party No.2 raised another demand letter dated:05/06/2006. Thereupon he made a representation on 17/03/2004 requesting to treat the same as an appeal and to hold enquiry in accordance with law. But Opposite Party No.2 did not take any action to call for the records and verify the same. Opposite Party No.2 sent the letter dated:13/07/2007 stating that they have reviewed the relevant records pertaining to installation and the claim for average consumption at 429 units per months is in order. His representation dated:10/05/2007 was also not considered by Opposite Party No.2. Thereupon he filed writ petition No.8235/2007 challenging the claim of Opposite Party No.2. The writ petition was disposed of by the order dated:11/04/2008 with a direction to Opposite Party No.2 to treat the back billing notice dated:06/05/2003 as show-cause notice, permitting the complainant to file detailed statement of objections within two weeks from the date of the order and to pass an appropriate orders in accordance with the provisions of the Electricity Act 2003 r/w conditions of supply of Electricity Code in the State of Karnataka and to dispose off the matter as expeditiously as possible at any rate within a period of eight weeks from the date of receipt of objections of the complainant. Accordingly he filed objections contending that the matter in question requires detailed enquiry and he is ready and willing to take steps for the same. But Opposite Party No.2 failed to hold the enquiry and on its own came to the conclusion that the enquiry is unnecessary and proceeded to pass the orders on the basis of the available records. As per Rule 4.6 if the meter is not recording properly, the bill should be raised based on previous 06 months average consumption and if the arrears is not claimed when it becomes due the same shall not be claimed after the period of two years. The complainant has no objection to claim the bill on the basis of previous six months consumption. But the claim made by Opposite Party No.2 is contrary and is without any basis and is in contravention of the rules. In the order passed by Opposite Party No.2 it is stated that the Meter Testing Department has confirmed that the meter is in good working condition and recording properly and presumed that there is no possibility of abnormal consumption in the meter. The conclusion is totally contradictory to the contentions raised by the complainant. The order passed by the Opposite Party No.2 is nothing but reiterating the earlier letters. The conclusion arrived at by Opposite Party No.2 in passing the impugned order is not in accordance with the letters. The Opposite Party No.2 failed to discharge their duties in considering the case of the complainant and the same amounts to deficiency in service. He is not liable to pay the amount as claimed. The order passed by Opposite Party No.2 is in contravention of the provisions of law and principles of natural justice. The complainant succumbed to the pressure tactics of the Opposite Parties and paid the amount. Consequently he is put to lot of mental pain and inconvenience for no fault. Hence, the complaint.
3. In the version, the contention of the Opposite Parties is as under:-
The averments in para-5 of the complaint that the faulty meter was replaced on 18/04/2001 is correct. The sum of Rs.35,182/- claimed for the period from 18/04/2001 to 18/04/2003 is in accordance with law. Even in the letters dated:15/05/2003 and 22/05/2003, the complainant has admitted his liability to pay towards consumption charges according to his calculations which have no basis. The suggestion of the complainant in the letter dated:29/05/2003 to calculate the consumption charges at the average of 300 units per month is misconceived, arbitrary and whimsical. There is no basis for the complainant to allege that the initial reading was 4000 units at the time of installation. It is not known on what basis the complainant states that the records maintained by the Opposite Parties speak of consumption of 300 to 320 units. The representation dated:17/03/2004 makes it clear that the complainant was aware about the appeal provision in case of dispute, but he has not filed appeal before the Appellate Authority. The representation to the same authority and asking to treat the same as appeal before the Appellate Authority is something unknown to law. The complainant is availing power supply to his building under RR No.N2EH 30786 from 21/05/1998 for domestic use. The faulty meter was replaced on 18/01/2001. For the period from 18/04/2001 to 18/04/2003 for a period of 24 months only fixed charges were collected without collecting actual consumption charges. The meter installed on 18/04/2001 was recording the consumption details, but because of certain administrative problem in locating certain departmental documents, bills were not raised for actual consumption but were raised only for fixed charges. After collecting the relevant departmental documents, the bill was raised for Rs.35,182/- towards consumption of 10,309 units as per the tariff in force. The said demand was in conformity with regulation 29.09 of KERC Electricity Supply and Distribution Code 2000-01. Whenever the complainant approached the Opposite Parties, proper explanation was given. The complainant was insisting that instead of 429 units per month worked out for 24 months, it should be averaged for 300 to 320 units and amicable settlement be arrived at. But the Opposite Parties maintained that there was no defect in the meter installed on 18/01/2001, the recording at the time of installation was 00001 only and no 4000 as contended by the complainant in his complaint. At the request of the complainant, the meter was also got tested by the staff of the Meter Testing Department on the spot on 08/12/2005. The Competent Authority issued the certificate stating that the initial reading at the time of installation was 00001 and the meter is working alright. Whenever the meter is changed, the initial reading in the new meter will be always 0000 or 0001 or 0002 and it will not be 4000 as contended by the complainant. When there is no defect in the meter and the meter is recording consumption correctly, there is no question of averaging the consumption to 300 to 320 units per month as requested by the complainant. Proper explanations were furnished to all the letters given by the complainant. The complainant had also approached the Managing Director of BESCOM with his letter dated:10/11/2003. The issue was examined by the Zonal Chief Engineer and also the General Manager, Electrical, North Zone and endorsement was issued stating that the average consumption calculated and the bill issued by the local office is in order. The energy consumption pattern for the period from July-2003 to September 2008 shows variation from 198 units to 731 units per month. On many occasions, consumption has crossed 700 units per month. The amount claimed in this case is short claim for the period from April 2001 to April 2003 and not back billing charges. In the letter dated:14/05/2003 the complainant has admitted that the meter reading started from 4000 units in January– 2002. In subsequent correspondence also, he stated that the consumption was 4000 units in December-2001 and January-2002. Even if the said consumption is adopted from 18/04/2001 to January 2002 for nine months, it works out to 445 units. Therefore the calculation adopted by the Opposite Parties is perfectly in order. As per the instructions of the Hon’ble High Court in writ petition No.8235/2007, the complainant appeared before Opposite Party No.2 on 26/02/2008 and at his request, the matter was adjourned to several dates. After considering all the objections, decision was taken by Opposite Party No.2 as per the provisions of regulations of S&D Code and the directions issued by the Hon’ble High Court. Though alternative and efficacious remedy is available in the Electricity Act by way of an appeal, instead of seeking remedy before the Appropriate Authority, the complainant has filed this complaint and therefore this Forum has no jurisdiction. On these grounds, the Opposite Parties have prayed for dismissal of the complaint.
4.In support of the respective contentions, both the parties have filed affidavits and have produced copies of documents. We have heard the arguments of the learned counsel on both side.
5. The points for consideration are:-
1.Whether the complainant has proved deficiency in service on the part of the Opposite Parties?
2.Whether the complainant entitled to the relief prayed for in the complaint?
6. Our findings to the above points is in the NEGATIVE for the following:-
7. Before Considering the merits of the case, it is necessary to consider the contention of the Opposite Parties regarding the jurisdiction of this Forum to entertain the complaint. Admittedly after the Opposite Party raised the bill dated:06/05/2003 demanding Rs.35,182/- towards their claim in respect of the consumption charges for the period from 18/04/2001 to 18/04/2003, the complainant sent several representations to the Opposite Parties and since the same were not considered favorably, he filed writ petition No.8235/2007 challenging the correctness of the communication dated:25/04/2007. The Hon’ble High Court disposed of the said writ petition by the order dated:11/04/2008 directing to treat the back billing notice dated:06/05/2003 as show-cause notice, permitting the petitioner (complainant herein) to file detailed statement of objections to the show-cause notice within a period of two weeks from the date of the receipt of the order and directing the responding in the writ petition (Opposite Party No.2 herein) to receive the objections filed by the complainant and pass the appropriate orders strictly in accordance with relevant provisions of the Electricity Act 2003 r/w conditions of supply of Electricity Code under the State of Karnataka 2006 after affording reasonable opportunities to the complainant. As per the instructions of the Hon’ble High Court, Opposite Party No.2 held an enquiry and passed order dated:17/09/2008 holding that the electricity charges claimed for the period from April-2001 to April 2003 for a sum of Rs.35,182/- is in order. It is thereafter the complainant has filed the present complaint invoking the provisions of Section 11 & 12 of the Consumer Protection Act alleging deficiency in service on the part of the Opposite Parties. In this regard, the Opposite Parties have contended that alternative and efficacious remedy is available to the complainant under the Electricity Act and instead of seeking remedy before the appropriate Authority, the complainant has filed this complaint and as such this Forum has no jurisdiction to entertain the complaint. In other words, it is the contention of the Opposite Parties that when alternative and efficacious remedy is available to the complainant under the Electricity Act the complainant is not entitled to file the complaint before this Forum invoking the provisions of the Consumer Protection Act. To negative this contention, the learned counsel for the complainant relied upon the decision of the Hon’ble National Commission reported in II(2008) CPJ 284 in the case of JHARKHADN STATE ELECTRICITY BOARD & ANR. V/S ANWAR ALI. In the above decision, after considering several decisions of the Hon’ble Supreme Court, the Hon’ble National Commission has held as under:-
“(ii) Jurisdiction of Fora – Electricity dispute – Electricity Act and Consumer Protection Act runs parallel regarding limited purpose in respect of arbitrary, illegal, unjustified action against rules and regulations of electricity code – Jurisdiction of For a cannot be curtailed in absence of express provision prohibiting jurisdiction – Section 3, Consumer Protection Act and Section 175, Electricity Act, not in derogation of provisions of any other law – Consumer has option either to file complaint under Consumer Protection Act or under Electricity Act against order passed under Section 126 Electricity Act – No complaint can be entertained by For a against final order passed by Appellate Authority under Section 127, Electricity Act – jurisdiction of For a not barred even if provision of other statute provides alternate remedy to consumer – Jurisdiction of Fora expressly saved under Sections 174, 175 of Electricity Act – Complaint alleging deficiency in service on part of Electricity Board/its officers, maintainable.”
In view of the decision of the Hon’ble National Commission in the above decision, it is clear that even though remedy by an appeal is available that by itself will not oust the jurisdiction of the Consumer Forum, it is the option of the complainant either to prefer an appeal or to file a complaint under the provisions of the Consumer Protection Act. In the case on hand, the complainant has chosen to file the complaint under the provisions of the Consumer Protection Act instead of preferring an appeal under section 127 of the Electricity Act. That being so, we are unable to uphold the contention of the Opposite Parties that this Forum has no jurisdiction to entertain the complaint. Accordingly the said contention is REJECTED.
8. The fact that the complainant is availing power supply from the Opposite Parties under RR No.N2EH30786 from 21/05/1998 and since there was some fault in the meter some time prior to 18/04/2001 on the complaint of the complainant, the meter was replaced on 18/04/2001 is not in dispute. The contention of the Opposite Parties that for the period from 18/04/2001 to 18/04/2003 for 24 months only fixed charges were collected from the complainant without collecting actual consumption charges is also not disputed by the complainant. The complainant has also not produced any material such as the bills raised during the above period to show that besides fixed charges, the Opposite Party had also collected consumption charges for consumption of electricity. Therefore, it goes without showing that during the above period the Opposite Party had collected only fixed charges without collecting the actual consumption charges. It is the contention of the Opposite Party that though the newly installed meter was recording consumption details, on account some administrative problems in locating certain departmental documents, the bills were not raised for actual consumption and were raised only for fixed charges and after locating the departmental documents, the bill for Rs.35,182/- was raised towards consumption of 10,309 units consumed during the period from 18/04/2001 to 18/04/2003. The fact that the meter reading was showing the consumption of electricity as 10310 units as on 18/04/2003 is evident from the copy of the chart regarding the consumption details produced by the Opposite Party for the period from April-2003 to September 2008. In the letter dated:06/05/2003 demanding Rs.35,182/- towards consumption charges for the period from 18/04/2001 to 18/04/2003 also the meter reading as on 18/04/2003 is shown as 10310 and deducting one unit which the meter was showing on 18/04/2001 the date of installation the charges have been calculated for 10309 units. From the documents placed on record it is also seen that considering the contention of the complainant that the meter is not recording the consumption properly, the meter was subjected to test by the Meter Testing Department on 08/12/2005 and the said Department certified that the meter is in good working condition. Though the complainant filed the writ petition in 2007, he did not challenge the finding of the meter testing department that the meter is in good working condition. In the complaint also the complainant has not alleged that subsequent to 18/04/2001 the meter was found faulty and not recording consumption properly. In view of the admission of the complainant in his letters dated:14/05/2003 and 25/09/2003 we are unable to uphold the contention of the complainant that as on the date of installation itself namely on 18/04/2001 the meter was showing the reading as 4000 units. Because in the letter dated:14/05/2003 the complainant has stated that in January -2002 the meter reading was 4000 units. In the letter dated:29/05/2003 the complainant has stated that the meter reading was showing 4000 units in December-2001. In view of this admission on the part of the complainant, he cannot now contend that on the date of installation itself the meter was showing the reading as 4000 units. It may be that for the period from 18/04/2001 to 18/04/2003, the Opposite Parties did not raise the bill as per the actual consumption for want of certain documents as contended and therefore the bills were raised only towards fixed charges. If that is so, as provided in caluse-29.09 of the Electricity Supply and Distribution Code 2000-01, the Opposite Parties are entitled to raise the bill towards short claim. Clause 29.09 of the Code provides as under:-
(a) At any time during verification of the Consumer’s account if any erroneous claims are noticed, the Consumer is liable to pay the difference, in case the revised claims are more than the claims already made within 30 days form the presentation of a separate supplemental bill for the short claim. However, the Licensee shall not claim any payment towards short claim for back period beyond 3 years.
In case the revised claims are less than the claims already made, the excess amount pointed out shall be credited to the Consumer’s account with in one month under intimation to him. If for any reason there is delay in crediting to the Consumer’s account, interest at 2% per month shall be paid to the Consumer for the period beyond one month from the date of pointing out of revised claims.
Having regard to admitted facts, this appears to be a case of short claim for the period from 18/04/2001 to 18/04/2003 and not a case of back billing as rightly contended by the Opposite Parties. The claim for back billing charges arises only in case of faulty meter and in such circumstances the consumption will be decided on the basis of average consumption during the previous six months. In the case on hand as stated earlier it is not the case of the complainant that for the period subsequent to 18/04/2001 the meter itself was faulty and was not recording consumption properly. If that is so, the complainant is not entitled to contend that the Opposite Party is liable to raise the bill taking the average consumption as 300 to 320 per month. On the basis of the meter reading as on 18/04/2003 for the purpose of computing the average consumption per month during the period of 24 months, the Opposite Parties divided the consumption of 10,309 units by 24 and arrived at 429 units per month. Therefore, the average consumption arrived at by the Opposite Parties as 429 units per month cannot be said to be incorrect or excessive. The consumption charges for 24 months for the period from 18/04/2001 to 18/04/2003 was made in the demand notice dated:06/05/2003. In view of what is provided in Clause 29.09 of the Electricity Supply and Distribution Code 2000-01, the Opposite Parties are entitled to make claim for the back period of three years and it is not entitled to claim the amount for the back period beyond three years. In that view of the matter, the demand towards short claim made in the notice dated:06/05/2003 for the period from 18/04/2001 to 18/04/2003 is well within three years. We are unable to uphold the contention of the complainant that the Opposite Party is not entitled to demand the charges towards short claim for a period beyond two years because the period of two years for recovery of arrears is prescribed in condition No.29.08 of the conditions of Supply of Electricity of Distribution Licensee in the State of Karnataka which came into force w.e.f.17/06/2006. The complainant is not entitled to avail the benefit of the above provisions that came into force w.e.f. 17/06/2006 because the claim pertains to the period from 18/04/2001 to 18/04/2003 when the KERC Electricity Supply and Distribution Code 2000-2001 was applicable. Even assuming for the sake of argument that the Opposite Party is not entitle to make demand towards arrears for a period beyond two years, only the claim for the month April-2001 is beyond two years and the claim in respect of the rest of the period is within two years. Therefore, we are unable to agree with the contention that the entire claim made by the Opposite Party is beyond a period of two years and as such the Opposite Party is not entitled to claim the said amount. When the demand made by the Opposite Party towards consumption charges is based on the consumption record in the meter as on 18/04/2003, the complainant is not entitled to contend that the Opposite Party is liable to raise the bill restricting the consumption at 300 to 320 units per month. In view of the fact that the demand made in the letter dated:06/05/2003 is based on the consumption record in the meter as on 18/04/2003, we are unable to find any deficiency in service on the part of the Opposite Parties. In the order dated:17/09/2008 also Opposite Party No.2 has considered all the aspect of the case and has come to the conclusion that the claim for Rs.35,182/- is in order. On considering the material on record we also find that the claim made by the Opposite Parties is based on the consumption recorded as on 18/04/2003 and only for the purpose of computing the consumption charges per month, the consumption record on 18/04/2003 is divided into 24 parts and thereupon the consumption for every month is arrived at. Therefore, we hold that there is no deficiency in service on the part of the Opposite Parties and as such the complainant is not entitled to any relief. In the result, we pass the following:-
1.The complaint is DISMISSED. No order as to costs.
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