State Consumer Disputes Redressal Commission
Fa 1288 Of 09: M/S. Sathyam ... vs Fa 1288 Of 09:The Superintending ... on 10 August, 2011
BEFORE THE A BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. F.A.No.1288/2009 against C.D.No.52/2005, DISTRICT FORUM, Nellore. Between M/s. Sathyam Associates, Rep. by its Managing Partner P.Rama Krishna Reddy, O/F Flat No.5, 1st Floor, Green Medows Apartment, Saraswathinagar, Dargamitta, Nellore 524 003. Appellant/ Complainant And 1.The Superintending Engineer, APSPDCL, Vidyuthbhavan, Dargamitta, Nellore (D.T.) 2. The Divisional Engineer, APSPDCL, Vidyuthbhavan, Dargamitta, Nellore(D.T.). 3. The Asst. Accounts Officer, ERO (Rural) APSPDCL., Kotamitta , Nellore (D.T.) . Opp.paties/ Respondents Counsel for the Appellant : M/s. V.Gowrisankar Rao Counsel for the respondents : M/s. O.Manohar Reddy F.A.No.1289/2009 against C.D.No.53/2005, DISTRICT FORUM, Nellore. Between M/s.Rajeswari Feeds, Rep. by its Proprietor, P.Rajeswari, Flat No.5,Green Medows Apartment, Dargamitta, Nellore 524 003. Appellant/ Complainant And 1.The Superintending Engineer, APSPDCL, Vidyuthbhavan, Dargamitta, Nellore(D.T.) 2. The Divisional Engineer, APSPDCL, Vidyuthbhavan, Dargamitta, Nellore (D.T.). 3. The Asst. Accounts Officer, ERO (Rural) APSPDCL., Kotamitta , Nellore (D.T.) . Respondents/ Opp.parties Counsel for the Appellant : M/s. V.Gowrisankar Rao Counsel for the respondents : M/s. O.Manohar Reddy QUORUM: THE HONBLE JUSTICE SRI D.APPA RAO, PRESIDENT AND SMT.M.SHREESHA, HONBLE MEMBER
WEDNESDAY, THE TENTH DAY OF AUGUST, TWO THOUSAND ELEVEN.
Oral Oder:
(Per Smt.M.Shreesha, Honble Member) **** F.A.No.1288/2009:
Aggrieved by the order in C.D.No.52/05 on the file of District Forum, Nellore, the complainant preferred this appeal.
The brief facts as stated in the complaint are that the complainant established a factory in Sy.No.532,534/2 & 3 in Nellore Rural Mandal in the year 2002 and opposite parties sanctioned Electricity Service Connection bearing no.69800 1013 for the said factory which manufactures Aqua Feeds.
The opposite parties installed the meter on 16.12.2002 and the electricity supply was released to the said meter on 17.1.03. Four days after that when the complainant switched on AB Switch before the transformer, the fuses got burnt and the cable head turned black due to the burning of the wire. The complainant immediately reported the matter to AE and ADE (MRT). The authorities inspected the factory premises and removed the cable head and gave direct power supply to the cable without the head from the high tension line. After three days the fuses were burnt out again. The complainant did not use the electricity as the factory was not fully equipped and also due to lack of working capital.
On 20.1.2003 he received a bill for an amount of Rs.8,932/- and this was without using any electricity.
The complainant observed that the meter was running on its own @ 11 to 13 units per day without any load of lights or motors from his side. The complainant fixed the capacitor of 30 KVAR at the Panel Board and as the working capital has not been sanctioned the complainant has not started the Unit and the main switch was always in off position.
The meter is running on its own without any load and readings KWH and KVAH, the power factor is coming out less than 0.3. As the power factor is less than 0.9 the opposite party is penalizing him by billing under capacitor surcharge at Rs.1794.44. The complainant submits that the KWH is showing 25% excess , still he paid the bill under protest for the month of April, 2003 and he also sent a DD for Rs.1000/- dt.6.5.03 for testing of meter installed by the opposite parties requesting opposite parties to test the meter in the presence of Managing Partner of the complainant Firm. The complainant submits that the meter reading should be taken with a minimum gap of four hours, keeping the main switch and capacitor in the on position and applying equal load in each phase keeping 500 volts bulbs in each phase. The complainant further submits that the readings of KWH and KVAH do not show any decimals and sought for the opposite party to test the meter in the complainants presence.
But the opposite party did not choose to do so.
Asst. Divil. Engineer, (operations), Nellore sent a notice dt.7.6.2004 to the complainant factory stating that they have observed that service no.1013 is maintaining a low power factor of 0.83 in May 2004 and requested the complainant to improve the power factor to the extent 0.90 within 6 months, otherwise service would be disconnected besides levy of LPF surcharge. The complainant submits that the opposite parties did not rectify the defect in the meter but instead directed the complainant to improve the power factor. Power capacitors of 60 KVAR were fixed to the complainants factory though the required capacity is only 19 KVR.
Thereafter the complainant sent a letter dt.23.8.2004 to the ADE of the opposite parties stating that the meter readings of M/s. Rajeswari Feeds situated adjoining the complainants factory were taken instead of the complainants factory readings.
The complainant found that the opp.parties have fixed the meter bearing no. 698001014 belonging to M/s. Rajeswari Feeds to the complainants factory and service no.698001013 allotted to the complainants factory was fixed to M/s.Rajeswari Feeds. Inspite of several requests opposite parties did not rectify it and it was after the fixation of the second transformer that opposite party found that meter is showing 40 units per day without any load from the factory premises.
Opposite parties fixed the defective meter to the complainants factory and sent bill no.573 dt.1.4.05 to pay a sum of Rs.42,740/- for the month of March ,2005 and out of this Rs.42,740/- an amount Rs.37698.75 is charged under the head other charges without giving details.
The complainant further submits that according to the schedule of retail tariff rates and terms and conditions in respect of the four discoms for financial year 2004 2004-2005 of Southern Power Distribution Company of A.P.Ltd., Tirupathi (A.P.S.P.D.C.L.) L.t. Shunt Capacitor of specified rating for 74 HP of 1500 RPM is 12 + 7 = 19 KVAR the consumer has to install a capacitor/capacitors of total value of 19 KVAR in the factory to maintain a power factor of 0.9 . This is accepted and authenticated by APSPDCL Schedule and also by the notice letter no.LR.No.ADE/OR/NLR/F.No.LPF/D.No.287/04 Dt. 7.6.2004 of A.D.E.Rural (I), Nellore. For 74 HP or 55.204 KW load unless the departmental people/ respondents supply current with 0.77 power factor of load before applying capacitor, it is impossible to show a final power factor of 0.9 even after applying the capacitor of 19.045 KVAR capacity. The complainant submits that they are getting a high voltage of 450 volts after the transformer and due to this high voltage motors and tube lights are frequently burnt out. There is clear deficiency in service on the part of the opp.parties in not checking the meter and also not fixing the proper service connection to the complainants factory and also claiming the said amount of Rs.37,698-75 ps. without giving any details in the bill no.573 dt.1.4.2005 .
The complainant is using the service connection not for commercial purpose and is using this service connection for his and his familys livelihood and he is beneficiary of service of the opp.parties under Section (2)(1)(d)(ii) and the complainant is a Consumer. Hence the complaint seeking following directions to the opposite parties
a). to check the H.T.Meter fixed to the complainants factory under the conditions mentioned in the letter dated 6.5.2003 and rectify the defects therein,
b) to refund the excess bill amount and capacitor surcharges collected earlier till the date of the complaint,
c).to change the service no.698001013 to 698001014 to the complainants factory,
d).to restrain the opp.parties not to collect Rs.37,698-75 mentioned under the head of other charges in the bill no.573 dt.1.4.05 e) to install a good 3 phase L.T. meter of suitable capacity in the complainants factory before the main switch in case the opp.parties fails to rectify the defects of the H.T. metering ,
f).to direct the opp.parties to show that they are supplying current with a power factor of 0.77 to 0.8 before applying capacitor ,
g).to direct the opp.parties to show/maintain a voltage of 415 to 430 V instead of high voltage of 450 volts after the transformer
h). to grant damages of Rs.50,000/- towards mental agony .
Opposite party no.3 filed counter stating that the bill for the month of 4/2005 claiming the monthly consumption charges of 3/2005 for Rs.5041.19 and an amount of Rs.37,698.75 was added towards the shortfall amount for the period from 5/2004 to 12/2004. The Service Connection comes under Industrial Service Connection as the complainant is manufacturing Aqua Feeds from 20.1.2003. As per the schedule of terms and conditions under L.T. Category 3 A where the Service Connection loads has 50 HP to 75 HP reading is noted by ADE, operation, and billing is done under LT III(A) Industrial (Optional) Demand Tariff and therefore the complainant has to pay the consumption charges as per the rates fixed by the authorities i.e. minimum charges of 80% of contracted maximum demand.
(CMD) i.e. minimum 50 units per KVA per month or actual consumption charges which ever is higher.
The opp.party has been billing without adopting a new tariff of 2004-2005 which ought to be billed as per the tariff under LT III A Industrial (Optional) Demand Tariff as the consumer had 61.33 KVA CMD. and 80% of CMD is 49.06 KVA and minimum units 2453 units per month. This defect was detected by internal audit and the complainant has to pay Rs.37,698.75 towards shortfall of Consumption Charges from 5/2004 to 12/2004 and therefore there is no excess billing or deficiency of service.
The District Forum based on the evidence adduced i.e Exs.A1 to A14 dismissed the complaint on the ground that this Forum has no jurisdiction to entertain the complaint when there is a Tribunal constituted under Indian Electricity Act, 2000 and Section 49 C and 49 I of the said Act constitutes a special Tribunal having jurisdiction to decide any dispute relating to correctness or otherwise of any dispute.
Aggrieved by the said order complainant preferred this appeal Heard both sides at length.
The learned counsel for the respondents/opp.parties contended that the complainant is not a consumer as he owns a factory manufacturing Aqua Feed. The contention of the respondents/opposite parties is that as per Indian Electricity (Andhra Pradesh amendment) Act 2000 which came in force on 31.7.2000 constituted special tribunal under Section 49 C which reads as follows:
49-C: (1).Constitution of Special Tribunals:- (1) For the purpose of providing for speedy trial, the State Government shall with the concurrence of the Chief Justice of the High Court, by notification in the official Gazette, specify for a District or Districts, a court of District and Sessions Judge to be special Tribunal to try the offences under this Act and determine the compensation to be awarded to the Electricity utility where the compensation to be awarded is upto the value of rupees five lakhs;
(5) Any case pending before any Court or other Authority immediately before the commencement of the Indian Electricity (Andhra Pradesh Amendment) Act,2000, as would have been within the jurisdiction of a special Tribunal shall stand transferred to the special Tribunal, having jurisdiction as if the cause of action on which such suit or proceeding is based had arisen after such commencement.
The learned counsel for the respondents/opp.paries also relied on 41 1 which reads as follows . :
49-1.
Disputes relating to Meters:
Notwithstanding anything contained in sub-section (6) of Section 26 and the Schedule of this Act or any judgement or order of any Court, a special Tribunal and a special Court constituted under this Act shall have jurisdiction to decide any dispute relating to correctness or otherwise of any meter.
As against this, the learned counsel for the appellant/complainant submitted that the complainant is not carrying on any commercial activity. But as seen from the record in the very complaint itself the complainant submitted that they have established a factory for manufacture of aqua feeds and relied on the judgement of Apex Court 3 2009 CPJ 5 SC in which the Apex Court held supply of electricity to consumer being service is covered under Section 2(1)(O) of Consumer Protection Act. The facts in the instant case are different in the sense that the cause of action relates to the period after the amendment and the disputed bill is with reference to the period 5/2004 to 12/2004 which is subsequent to the amendment dated 15 March,2003. Paras 24 and 25 of the aforementioned apex courts judgement clearly also states that the case refers to the period prior to amendment whereas the disputed bill in the instants case refers to the period after amendment. The Apex Court in its recent judgement in Birla Technologies Ltd. vs. Neutral Glass and Allied Industries Ltd. reported in 2011 NCJ 390 (SC) held as follows:
In view of the findings of the National Commission that the goods sold by the appellant to the respondent/complainant amounted to goods and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1.8.2000. In that view, it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15.3.2003 by way of the amendment by the same Amendment Act, as it is nobodys case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondents livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto.
In the instant case the complaint was filed in the year 2005 much after the amendment and keeping in view the judgement of the Supreme Court in which they have held that even if services are hired or availed of for commercial purpose do not fall within the ambit of Section 2(1)(d)(i) of the Act , we are of the considered view that this complainant does not fall within the definition of Consumer and this complaint is therefore dismissed. However it is open to the complainant to approach the Electricity Tribunal under Section 49 C and 49(1) of Indian Electricity (Andhra Pradesh Amendment ) Act,2000 and the period spent in the wrong Forum will be excluded while determining the limitation.
In the result this appeal is dismissed and consequently the complaint is also dismissed with the aforementioned directions. No costs.
F.A.1289/09: Aggrieved by the order in C.C.No.53/05 on the file of Dist.Forum, Nellore , the complainant preferred this appeal. In this case also the complainant is running a factory for manufacturing poultry/cattle feed and it is not in dispute that the opposite party has given the complainant service connection under category III A , Category C (optional) which comes under Industrial Service Connection and therefore the judgement of the Apex Court in Birla Technologies Ltd., vs. Neutral Glass and Allied Industries Ltd. reported in 2011 NCJ 390 (SC) wherein the Apex Court held as follows:
In view of the findings of the National Commission that the goods sold by the appellant to the respondent/complainant amounted to goods and that such goods were purchased for commercial purpose of earning more profits, there could be no dispute that even the services which were offered had to be for the commercial purpose. Nothing was argued to the contrary. It seems that the whole error has crept in because of the wrong factual observation that the complaint was filed on 1.8.2000. In that view, it has to be held that the complaint itself was not maintainable, firstly, on the count that under Section 2(1)(d)(i), the goods have been purchased for commercial purposes and on the second count that the services were hired or availed of for commercial purposes. The matter does not come even under the Explanation which was introduced on the same day i.e. on 15.3.2003 by way of the amendment by the same Amendment Act, as it is nobodys case that the goods bought and used by the respondent herein and the services availed by the respondent were exclusively for the purpose of earning the respondents livelihood by means of self-employment. In that view, it will have to be held that the complaint itself was not maintainable in toto.
Even in this case the disputed bill pertains to the period after amendment and therefore the complainant does not fall within the definition of consumer under Section 2(1)(d)(i) of C.P.Act ,1986.
However it is open to the complainant to seek redressal before the Electricity Tribunal constituted under 49 C and 49 I of Indian Electricity (Andhra Pradesh Amendment) Act, 2000. The time period spent before the wrong Forum will be excluded for the purpose of limitation.
In the result this appeal is also dismissed and consequently the complaint is also dismissed with the afore mentioned directions . No costs.
Sd./PRESIDENT Sd./MEMBER Pm* Dt. 10.8.2011