State Consumer Disputes Redressal Commission
Tneb, Rep.By S.E., & Two Others vs M.P.Ananthakrishnan & Anr. on 30 November, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt.Vasugi Ramanan, M.A., B.L., MEMBER I Thiru.S.Sambandam, B.Sc., MEMBER II F.A.No.642/2007 [Against order in O.P.11/2000 on the file of the DCDRF, Salem] DATED THIS THE 30th DAY OF NOVEMBER 2010 1.
Tamil Nadu Electricity Board, Rep.by the Superintending Engineer(O & M), Salem West, Distribution Circle, Salem.
2.The Assistant Engineer ( O & M), Tamil Nadu Electricity Board, Swarnapuri, Salem 636 016,
3. The Executive Engineer, Salem West, Salem 636 005. ..
Appellants/Opposite parties Vs.
1. M.P.Ananthakrishnan, S/o.Perumal Chettiyar, F3, Park Road, Fairlands, Salem 636 016.
2. M/s.Southern Iron and Streel Company Limited, F3, Park Road, Fairlands, Salem 636 016.
Rep. by its Secretary, P.Boopalan. .. Respondents/Complainants.
The respondents as complainants filed a complaint before the District Forum against the opposite parties/appellants praying for the direction to the opposite parties to cancel the levy of additional charges of Rs.45,864/-, to refund the sum of Rs.45,864/- with 9% interest, to pay Rs.10,000/- towards damages for hardship, mental agony and to pay Rs.2500/- towards costs to the complainant. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.22.08.2007 in O.P.11/2000.
This appeal coming before us for hearing finally on 15.11.2010, upon hearing the arguments of the counsels for bothsides, and perused the documents, written submissions as well as the order of the District Forum, this commission made the following order:
Counsel for the Appellants/ opposite parties : Mr.S.Sararanan, Advocate.
Counsel for the 1st Respondent/1stComplainant : Served. Called absent.
Counsel for the 2nd Respondent/2ndcomplainant : Mr.S.Kaithamalai kumaran, Adv.
M. THANIKACHALAM J, PRESIDENT
1. The opposite parties are the appellants.
2. The 1st complainant/1st respondent in this appeal, as the owner of the premises where there is a service connection No.531 had leased the same to the 2nd respondent/2nd complainant, who as occupier had consumed energy. During July 1996, there was a demand for Rs.6,046/- in respect of bimonthly period on the ground, that the meter was struck based upon overage of previous periods, which is arbitrary and unjust.
3. It is the duty of the opposite parties, to maintain the meter properly and if any mistake or defect in the meter crept in, that should be referred to electrical inspector and without referring the opposite parties are not entitled to, charge the consumer taking overage.
4. The sick meter was removed from the premises on 17.7.96 and a new meter was fixed only on 2.8.97. Though the complainants had consumed less energy because of the removal of the A/c.s also, unjustifiably, the complainants were taxed directing to pay a sum of Rs.45,864/- which is not permissible. The request of the complainant for reconsideration of the levy of additional charge, not considered and they have also not refunded the excess amount collected, thereby, they have committed deficiency in service, causing mental agony. Hence the additional charge of Rs.45,864/-
claimed should be cancelled ordering refund of a sum of Rs.27,864/- with interest in addition to a sum of Rs.10,000/- as damages for compensation. Thus a consumer complaint came to be filed.
5. The opposite parties admitting the service connection, as well as consumption of energy, opposed the complaint interalia contending that when the reading of the meter showed less consumption of energy, checked, verified and found that the meter was out of order on 17.5.1976 and the same was referred, for test on the same date. As per the terms and conditions, overage of bimonthly has to be adopted and in this way based on the consumption recorded during 8/95 and 10/95 amount was claimed which cannot be termed as deficiency in service. Thus, adopting the average, a sum of Rs.45,864/- was calculated, during the period from 12/95 to 2/97 which was permitted to be paid in instalments, and the complainants also paid without any tenure to some extent. Hence, they are not entitled to claim refund of the same, or question the same, since the claim is barred by limitation, thereby praying for the dismissal of the complaint.
6. The District Forum considering the rival contentions of the parties, came to the conclusion, that as per Section 26(6) of the Electricity Act, the dispute should have been referred to the Electrical Inspector, and the Department has no right to calculated on average basis. Thus concluding the demand for Rs.45,864/- was ordered to be cancelled, further directing refund of the amount paid also with interest, along with compensation of Rs.5,000/-, with cost of Rs.1,000/- which is under challenge.
6. The learned counsel for the appellant, urged before this Forum that the claim is barred by limitation, that Section 26 of the Indian Electricity Act cannot be made applicable to the present case, and that, as per the rules, regulations they are entitled to take average and demand the amount, which they did accordingly for the period, direct connection was given, which cannot be termed as deficiency in service. But, unfortunately, it is the submission of the learned counsel, that the District Forum without considering the above facts committed an error in ordering cancellation as well as refund which should be set aside, opposed by the complainants/respondents.
7. The order sought to be cancelled is Exhibit A1 dated 20.3.97. It is not the case of the complainant that they came to know this order, at later point of time and in fact it was communicated in the same month also. Based upon that order, Exhibit A2 demand was issued on 25.4.97 as seen from Exhibit A2.
According to complainants, the authorities are not entitled to demand this amount taking average, when there was a direct connection, taking in to consideration, the previous consumption of energy average. If that is to be accepted, the complaint ought to have filed, within 2 years from the date of cause of action, namely demand made in April 1997. But the complaint was filed only in the year 2000 i.e. the beyond period of the limitation which was not at all considered by the District Forum. Even in the complaint, though so many legal fiction, has been raised, how the claim is in time is not pleaded. The first prayer reads, Cancel the levy of additional charges of Rs.45,864/- , which is the demand made under Exhibit A2 dated 25.4.1997. Section 24-A (i) of the Consumer Protection Act mandates, the District Forum shall not take the case on file, if it is filed beyond two years from the date of cause of action. The date because of action, for the cancel taken must be the date of order or at least the receipt of the order, which was questioned under Exhibit A3 by issuing a notice, dated 12.7.97. Even taking that date, it is clear, it is more than two years. Therefore, on the ground of limitation, the case should fail.
7. The 2nd prayer in the complaint is , to refund a sum of Rs.27,864/- paid by the 2nd complainant, with interest. When the demand order cannot be cancelled question of refund does not arise for consideration. In this view, the 2nd prayer is also not maintainable, which should follow, the alleged deficiency cannot be decided by the Consumer Forum. Even on merit also, we find, no meritorious case acceptable in nature in the complaint.
8. As pleaded by the opposite parties, when they have inspected the premises, periodically they found the meter was out of order on 17.6.96. There by removing the meter probably giving direct connection. Because of the non availability of the meter, as pleaded no new meter was fixed, and new meter was fixed only on 2.8.97, there by showing some delay. But during that period also electricity was consumed, for that the complainant should pay consumption charge. As per the Board Regulations, they are competent to take the average of the electricity supplied, during the preceding 4 months and in this way alone calculating the previous consumption, taking average, working out the charge a sum of Rs.45,854/- was arrived, in which we are unable to find any deficiency as such, that too, when the authorities have acted according to the rules and regulations.
9. The main grievance for the learned counsel for the appellant was when there was a dispute, regarding the defective meter it should have been referred to the Electrical Inspector, and upon his report alone action should have been taken. By going through the facts and circumstances of the case, we feel, this case will not come under Section 26 as pleaded in the written statement. The meter was out of order and it is not the case of incorrect recording of consumption, thereby though functioning, not properly functioning. After the removal of the old meter, direct connection appears to have been given, and for the consumption period alone, as per the Board rules average was worked out, amount claimed and without objection, at the first instance, some instalments have also been paid.
Therefore on the ground the meter was not sent for testing, deficiency cannot be attributed, when the authorities have acted as per the guidelines. We find no case, that the meter was defective, in the sense not recording the actual consumption, because of the inherent defect, whereas it is the case of the opposite parties, the meter was out of order, not recording energy when removing the same for testing. Unfortunately the District Forum not considering the nature of the complaint, and the power conferred upon the opposite partiies, in our considered opinion, recorded a erroneous findings as if the case is in time, there was deficiency, in which findings we are unable to concur. Hence, the appeal deserves, to be accepted.
10) In the result, the appeal is allowed, setting aside the order of the District Forum in O.P No.11/2000, dated 22.8.2007 and the complaint is dismissed. Under the facts and circumstances of the case, there will be no order as to cost, through out.
The Registry is directed to hand over the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellant, duly discharged.
S. SAMBANDAM VASUGI RAMANAN M.THANIKACHALAM MEMBER II MEMBER I PRESIDENT.
INDEX : YES / NO sg/mtj/EB