Kerala

Idukki

CC/99/2018

Marcy Joseph - Complainant(s)

Versus

Asst Exe Enginner KSEB - Opp.Party(s)

Adv.K M Sanu

30 Jun 2020

ORDER

DATE OF FILING :23/05/2018

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30^th day of June 2020

Present :

SMT.ASAMOL P. PRESIDENT-IN-CHARGE

SRI.AMPADY K.S. MEMBER

CC NO.99/2018

Between

Complainant : Mercy Joseph,

Moolayil House,

Thodupuzha East P.O.,

Thodupuzha.

(By Adv: K.M.Sanu)

And

Opposite Party : 1 . The Assistant Engineer,

KSEB Section II,

Thodupuzha, Thodupuzha P.O.,

2 . The Executive Engineer,

KSEB Section II,

Thodupuzha P.O., Thodupuzha.

3 . The Secretary,

KSEB, Vydhuthi Bhavan,

Pattam P.O., Thiruvananthapuram.

(All By Adv: Lissy M.M.)

 

O R D E R

SRI. AMPADY K.S. (MEMBER)

 

Allegations of the complainant are as under.

 

1 . Complainant Smt.Mercy Joseph is the owner of building named “Eliza Plaza” situated at Mangattukavala, Thodupuzha. By renting out rooms in the said shopping complex, she obtains rent and it is used for her livelihood.

 

2 . She installed half HP motor in the building compound for taking water from the well situated therein for the use in certain rooms situated in the building and separate electric connection as consumer number 1156205012807 was taken for

(Cont....2)

 

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the above purpose. It was taken in 2005 under 7B tariff. Above motor and two CFL bulbs were used from the above connection. She has remitted electricity charges promptly for the said connection.

 

3 . While so, as per bill obtained in March 2017, she was directed to pay Rs.78900/- (Seventy Eight Thousand and Nine Hundred only). She had pumped about 1000 liters water within a period of 2 or 3 days and also used 2 CFL bulbs at the time.

 

4 . On receipt of above bill, she filed complaint before electricity office requesting to install parallel meter and to inspect the meter already installed. While installing parallel meter consumption was below 165. On 14/03/2017 after preparing mahazar, old meter was dismantled for inspection and new meter was installed and normal reading was shown in new meter.

 

5 . On 03/05/2018, demand and disconnection notice was received stating that above amount should be paid before 29/05/2018 failing which supply will be disconnected. On enquiry, it is replied by the officials that meter tested is not showing complaint. No information was given to the complainant either by opposite parties or testing agency. Name of testing agency was also not given to her. Said meter was not re-installed in her premises.

 

6 . Amount demanded by opposite parties is without any basis. So much corrent consumption was not availed by her at any time. Opposite parties have no authority to demand such huge amount. Such amount was raised either due to complaint of the meter or due to improper reading taken. There was no dues as stated in the notice.

 

7 .Above acts of the opposite parties are deficiency in service as well as unfair trade practice. She is entitled to set aside the baseless bill issued and to obtain compensation for the deficiency in service.

 

 

(Cont....3)

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So she prayed for the following reliefs.

 

1 . To set aside the bill dated 03/05/2018 demanding Rs.78900/-.

2 . Allow Rs.25,000/- as compensation for deficiency in service and

3 . Allow costs Rs.4000/-.

 

Opposite parties jointly filed written version denying almost all contentions of the complainant.

 

All the averments in the complaint are denied except those which are specifically admitted hereunder.

 

The complaint is not maintainable either under law or on facts for the following reasons. The complainant premises is a shopping complex under the name “Eliza Plaza” having many shops, which is a profit making complex. Hence the complainant will not come under the definition of the word “consumer” as defined in Consumer Protection Act, 1986. The complainant is not a consumer in the light of the reported case in Lexmi Engineering Works Vs.PSG Industrial Unit as reported in 1995 (2) CPJ under Section 2 (1) (d) of Consumer Protection Act. It is clear that the shopping complex is not for the complainant's livelihood but for profit making. Hence the complaint may be dismissed in limine.

 

From the very pleadings in the complaint and the relief sought for it can be seen that the complainant has approached this Hon'ble Forum alleging defects in the meter and hence for getting the bill to be quashed. It is seen that the complainant has approached this Hon'ble Forum suppressing the material facts to suit his cause.

 

Electricity industry in the land is governed by Electricity Act, 2003 (Central Act 36 of 2003) and as per section 145 of the Said Act the present complaint is not maintainable before this Hon'ble Forum. For clarity the same is reproduced as under.

 

 

(Cont....4)

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Section 145-Civil Courts not to have jurisdiction:-

 

No Civil Courts shall have jurisdiction 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 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 to be taken in pursuance of any power conferred by or under this Act. Hence the complaint may be dismissed.

 

The averments in Para 1 and Para 2 are admitted. It is respectfully submitted that electric connection bearing Consumer No.1156205012807 under Electrical Section, Thodupuzha II, tariff 7 B in the premises of Eliza Shopping Complex is under the jurisdiction of Opposite party. The consumer is bimonthly billed for the actual electricity supplied through the energy meter.

 

The averments vide Para 3, 4 and 5 are partly admitted. An amount of Rs.78,900/- was issued for the consumption period from 01/12/2016 to 01/02/2017. The consumer had consumed 7694 units as recorded in the energy meter. Aggrieved by this, the complainant remitted Rs.110/- on 14/02/2017 towards checking the credibility of the energy meter. Thereafter a check meter was installed in the premises on 20/02/2017 parallel to the existing meter and the result are as follows (marked as Ext.(1).

 

Particulars Existing Meter Check Meter

Initial Reading 7903 438

Final Reading 7904 439

Consumption 1 1

Period of Checking 20/02/2017 23/02/2017

 

The periodical testing of meter at site were done and nothing material, questioning accuracy of the same, came to the notice of this opposite party and his subordinates.

 

(Cont....5)

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It is submitted that in furtherance to the above parallel meter test, by complying Regulation 115(1) of Kerala Electricity Supply Code, 2014, the meter having No.0922871615 was sent for testing in the accredited laboratory on 25/02/2017 after preparing a site mahazar in this regard duly acknowledged by the complainant's son. True copy of the site mahazar produced herewith may be marked as Exhibit (2). The opposite party installed a new meter in the complainant's premises and no discrepancies occurred to the complainant regarding the power supply. It is submitted that the opposite party submitted meter in the Meter Testing Laboratory, TMR Division, Angamaly on 18/03/2017. The opposite party received Laboratory test results on 28/03/2017 vide test report No.MTL (AGY) TR – 753/16-17 from the Laboratory and result confirms that the meter is in good working condition. True copy of the test result produced herewith may be marked as Exhibit (3).

 

The meter test result was communicated to the complainant which she admitted in para 5 of her complaint and reminded her that the complainant/ consumer is liable to remit the electricity charge issued as per the actual consumption recorded in the meter. Further grievances weren't adduced by the complainant to opposite parties. If disputed about the test result of the laboratory the meter shall be got tested at a laboratory selected by the consumer from among the laboratories accredited by NABL as per Regulation 115 (8) of Supply Code, 2014. The premises is a shopping complex with many shops herein specified as the consumption hike occurred.

 

The Regulation 21 (1) of the Kerala Electricity Supply Code, 2014 stipulates as follows:

 

Regulation 21 “ the safe custody of the meter and other equipment of the licensee (1) it is the responsibility of the consumer to keep in safe custody, the meter and other equipments of the licensee and seals in the meter and associated equipments installed within the premises of the Consumer”.

 

From the above it goes without elucidation that the existing meter is a sound one and is recording consumption accurately. Therefore the consumer is bound to remit the said bill for Rs.78,900/- which was issued for electrical energy

(Cont....6)

 

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actually consumed in the said premises and recorded by the energy meter. The consumer was made aware of the position and averments to the contrary are not true to facts.

 

The averments in para 6 are false and hence denied. From the above submitted facts, it can be seen that there is no unfair trade practice on the part of this opposite party and what has done was to demand charges for electricity supplied through a sound meter which was actually consumed by the consumer. As such this Hon'ble Forum may be pleased to advise the complainant to see reason and honour the demand.

 

Also it is respectfully submitted that as per Section 177 (3) of the Electricity Act, 2003 the yardstick to be followed for ensuring safety in the supply of electricity energy is the Regulations to be formulated by the Central Electricity Authority. Accordingly the said authority has formulated regulations known as Measures Relating to Safety and Electric Supply, 2010 Regulation 13 (3) and (4) of same read as follows:-

 

Regulation 13(3). “The Consumer shall as far as circumstances permit, take precautions for the safe custody of the equipment on his premise belonging to the supplier. (4) The consumer shall also ensure that the installation under his control is maintained in a safe condition.”

 

Moreover in exercise of the powers conferred by sub section (1) of Section 55 and clause (e) of Section 73 read with sub section (2) of Section 177 of Electricity Act, 2003 the Central Electricity Authority hereby makes the following regulations for regulating the installation and operation of meters and as per Rule 9 (4) of the Central Electricity Authority (Installation and Operation of meters) Regulations, 2006 “ Consumers shall install the Earth Leakage Protective Device (ELPD) in accordance with the provisions of the rules or regulations in this regard”. This being so, it can be seen that consumer is bound by the quantum of electrical energy supplied by this opposite party and it is the duty of the complainant to prevent leakage of electricity.

 

(Cont....7)

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It is also submitted before the Hon'ble Forum that as per Regulation 31 of the Supply Code, 2014 and also as per section 45 of the Electricity Act, 2003, the Board has every right to recover the charge in accordance with such tariff fixed from time to time. Therefore, there is no deficiency in service in the matter. The complainant is not entitled for any of the relief sought for in the complaint.

 

Thus it is humbly prayed that this Hon'ble Forum may be pleased to accept this version and dismiss the complaint filed by the complainant with cost.

 

Complainant and the second opposite party filed proof affidavit. Complainant and opposite parties produced following documents and above persons were examined as PW1 and DW1 respectively and marked following documents by both sides. Documents marked on the side of complainant.

 

1 . Ext. P1 – Electricity bill dated 03/05/2018.

2 . Ext.P2 – Copy of site mahazar dated 14/03/2017 prepared by Sub Engineer,

Electrical Section, No.2, Thodupuzha.

3 . Ext.P3 (Series) – Copy of electricity bill payment receipt dated 21/12/2016 for Rs.104/- receipt dated 19/10/2016 for Rs.104/- and receipt for Rs.152/- for the payment in December 2017 (date not clear).

 

Following documents are marked from the side of opposite parties.

 

1 . Ext.R1- profile details of the connection from ORUMA NET software,

2 . Ext.R2- copy of page Nos.285 of the meter testing register.

3 . Ext.R3- copy of site mahazar dated 14/03/2017 of sub engineer.

4 . Ext.R4 -meter test report from TMR division, Angamaly.

 

On 18/06/2020 complainant was heard and no representation from opposite parties' side and therefore posted for orders.

 

We have examined the contentions of both parties, proof affidavit, depositions and documents produced from both sides. On a perusal of contentions and documents following points arise for consideration.

 

(Cont....8)

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1 . Whether the complainant is a “Consumer” as defined in the Consumer

Protection Act, 1986?

2 . Whether the complainant is entitled to get an order setting aside the bill

dated 03/05/2018 for Rs.78,900/-?

3 . Whether the complainant is entitled to claim Rs.25,000/- (Twenty Five

Thousand only) for deficiency in service?

4 . Cost of the case.

 

It is the specific contentions of the complainant that she is using one half HP motor and 2 CFL lamps only from the Consumer No.1156205012807. Motor is used for taking water from the well for the use of certain rooms in the shopping complex and the rent received therefrom is used for her livelihood. The various bills produced prior to the disputed bill and after that shows that the maximum current consumption is below 185. But the disputed bill is for Rs.78900/-. Normally the period of current consumption should be mentioned in the bill. Besides, previous reading and current reading have also to be noted in the bill. But no such details were shown in the bill in dispute which shows the carelessness on the part of opposite parties in preparing the bill. It is admitted fact that separate connections were taken for rooms in the concerned shopping complex. The proof affidavit filed by the complainant support the contentions raised in the complaint.

At the same time opposite parties have relied on section 145 of the electricity act 2003, regulation 115(1) of Kerala electricity supply code,2014, section 21(1) kerala electricity supply code, section 177(3) of electricity act 2003, section 13(3) and (4) of central electricity authority (measures relating the safety and electric supply) regulation 2010, section 55(1) and 73(e) along with section 177(2) of electricity act 2003, rule 9(4) of the central electricity authority (installation and operation of meters) regulations 2006, section 31 of supply code 2014 and also section 45 of the electricity act 2003 etc. On a perusal of the provisions quoted by opposite parties shows that there was grave irregularities on the part of opposite parties in complying with the provisions contained therein. The complainant had reported the irregularity in the disputed bill to the opposite parties and they have prepared site mahazar the check meter was also installed for certain days. In the bill dated 07/06/2017 previous reading was noted as 13792 and current reading as 13795. The current consumption is shown as 3 and

(Cont....9)

 

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the bill amount is Rs.184/-. It is deposed by the complainant in cross examination that the meter in dispute which was sent for checking is not reinstalled in her premises.

 

In cross examination DW1 admitted that during inspection, complainant had used half HP motor and 2 CFL bulbs from the above consumer number and also that separate connection were taken for each rooms in the complex.

 

Connection in issue is not seen used for any other purpose. It is also admitted that if the concerned motor is used and for lighting 2 CFL lamps for one hour, ¾ unit will be consumed. Another admitted fact is that if the battery is complaint, no display will be shown when there is no power supply. Battery was complaint. So reading could not be taken for 10/2016 and 12/2016.

 

The deposition of DW1 shows that battery was complaint. But no action is seen taken to rectify the complaint.

 

Even though certain provisions of Act, Regulations etc., stated above were shown by opposite parties, on a perusal of the those provisions, it is seen that opposite parties have not complied with the mandatory conditions specified therein.

 

Point No:1

The contention of opposite parties on the basis S.145 of Electricity Act, 2003 is unsustainable. As per S.3 of Consumer Protection Act and Reg.31 of KSERC (Consumer Grievance Redressal Forum and Electricity Ombudsman) Regulations, 2005 this Forum have ample power to entertain and decide complaints. Considering the facts of the case, present complaint comes under Consumer Protection Act and complainant is a “consumer” as defined in the Act. So the contention fails. Point No.1 is answered accordingly.

 

 

 

(Cont....10)

 

 

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Point No:2

 

Opposite parties have not complied with the provisions of S.115 (5) of Kerala Electricity Supply Code. As per S.116 (1) and (2) of above code, the

licensee shall periodically inspect and check the meter and associated apparatus and if the meter is found defective, the meter shall be replaced with a correct meter. In the instant case, even though meter in dispute is got tested, result shown is that “complied with the requirement of the standard in the above test”. If the meter was not defective, what prevented the opposite parties in re-installing the same at complainant's premises? This is not answered by opposite parties. There is no allegation against the complainant that power theft was done by her or earth leakage detected etc. Besides, meter in dispute is not produced before this Forum. Moreover, the opposite parties have not stated the directives of Electricity Regulatory Commission in a situation like this. All these facts leads to the conclusion that the opposite parties have not complied with the statutory condition prescribed. In the absence of specific allegations against the complainant regarding any unauthorized use, theft or leakage etc., opposite parties are not justified in charging the above huge amount.

 

In the light of above provisions and discussions, we are of the view that contentions of the complainant are having force. Without complying with the mandatory conditions of the provisions and stating the reasons, opposite parties cannot levy exorbitant charge from a consumer. So, we are inclined to allow the prayer of the complainant on point No.2 and set aside the bill dated 03/05/2018 for Rs.78,900/-. This would not preclude the opposite parties to levy any amount legally due for the period in dispute after complying with all statutory provisions and principles of natural justice. Point No.2 is decided as above.

 

 

 

 

(Cont....11)

 

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Point No.3 and 4

 

Considering the facts and circumstances of the case, we are not inclined to allow the claim of the complainant on above points.

 

In the result, complaint is allowed as shown above.

 

Pronounced in the Open Forum on this the 30^th day of June, 2020.

 

Sd/-

SRI.AMPADY K.S., MEMBER

Sd/-

SMT. ASAMOL P., PRESIDENT -IN -CHARGE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Cont....12)

 

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1 - Mercy Joseph

On the side of the Opposite Party :

DW1 - Sajeev K.

Exhibits :

On the side of the Complainant :

Ext. P1 – Electricity bill dated 03/05/2018.

Ext.P2 – Copy of site mahazar dated 14/03/2017 prepared by Sub Engineer,

Electrical Section, No.2, Thodupuzha.

Ext.P3 (Series) – Copy of electricity bill payment receipt dated 21/12/2016 for

Rs.104/- receipt dated 19/10/2016 for Rs.104/- and receipt for

Rs.152/- for the payment in December 2017 (date not clear).

On the side of the Opposite Party :

Ext.R1 - Profile details of the connection from ORUMA NET software,

Ext.R2 - Copy of page Nos.285 of the meter testing register.

Ext.R3 - Copy of site mahazar dated 14/03/2017 of sub engineer.

Ext.R4 - Meter test report from TMR division, Angamaly.

 

 

Forwarded by Order,

 

 

SENIOR SUPERINTENDENT