State Consumer Disputes Redressal Commission
Thodupunuri Srinivas And Another ... vs A.P. Tansco And Another Nizamabad. on 28 May, 2009
A A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD. FA 1658/2005 against C.D No. 122/2004, Dist. Forum, Nizamabad Between: 1). Thodupunuri Srinivas S/o. Late T. R. Pandari Age: 39 years, Occ: Business H.No. 7-9-848, Devi Road Nizamabad. 2) Thodupunnuri Vishwanatham S/o. Late T.R. Pandari Age: 51 years, Occ: Buiness H.No. 7-9-848, Devi Road Nizamabad. *** Appellants/ Complainants. And 1). The Supeintending Engineer A.P. Tansco, Power House Nizamabad. 2). The Divisional Engineer (Elecl) Assessment, NPDC of A.P. Ltd., Nizamabad. *** Respondents/ Opposite Parties Counsel for the Appellants: Mr. Haribabu Counsel for the Resp: Mr. V. Ajay Kumar. QUORUM: HONBLE SRI JUSTICE D. APPA RAO, PRESIDENT SMT. M. SHREESHA, MEMBER
& SRI G. BHOOPATHY REDDY, MEMBER.
WEDNESDAY, THIS THE TWENTY EIGTH DAY OF MAY TWO THOUSAND EIGHT Oral Order: (Per Honble Justice D. Appa Rao, President) ***** The unsuccessful complainants preferred this appeal against the dismissal of their complaint filed u/s 12 of Consumer Protection Act.
The case of the complainants in brief is that they are residents of Nizamabad. They have a shop at Sharadhanand Gunj, Nizamabad. They took power connection with S.C. No. K3 23772. Though the power connection was in the name of one Mukkaram Kistaiah they have purchased the said house from its owner on 13.12.2000. They have given the shop on rent and the tenants were doing business. While so, the opposite parties issued a provisional notice to Sri Mukkaram Kistaiah in whose name the meter was standing. On 24.9.2003 they issued notice to the tenants of the complainants stating that one P. Narsaiah had inspected the meter and found that the meter left side body seal was missing. He booked a case under malpractice of energy and assessed the amount at Rs. 7,124/- directing them to pay Rs. 3,562/-. It was further informed that they have to pay Rs. 2,000/- towards compounding fee and booked a case under Cr. No. 4191/2003. Thereupon they have paid Rs. 3,762/- on 14.10.2003 and deposited an amount of Rs. 2,000/-. However, they have received a notice on 16.9.2004 bearing order Dt. 29.5.2004 stating that they have to pay Rs.
15,723/- and Rs. 150/- towards misused electrical energy and supervision charges. Before passing such an order, no notice was issued calling their explanation. On 22.9.2004 after disconnecting the meter, the supply of power was stopped despite payment of the amount as directed by them. Because of disconnection of the power supply they have not only suffered mentally but also financially. Therefore, they prayed for declaration that the order passed by the opposite parties as null and void and to return the amount besides compensation of Rs. 50,000/-.
The opposite parties did not choose to contest the matter. The complainants have filed affidavit and documents Exs. A1 to A4.
Ex. A1 is the original provisional assessment notice, Ex. A2 is the cash receipt, Ex. A3 is the copy of challan for Rs. 2,000/- and Ex. A4 is the original notice Dt. 29.5.2004 The Dist. Forum after perusing the record opined that the service connection is taken under Category-II for non-domestic purpose, therefore, he is not a consumer as defined under Consumer Protection Act, therefore, it dismissed the complaint.
Aggrieved by the said order the complainants preferred this appeal contending that the Dist. Forum did not appreciate the case in a correct perspective. Mere missing of seal does not amount to malpractice. There was no allegation that they have tampered the meter. The Department ought to have compared the consumption of earlier months at the time of inspection in order to know whether there is any malpractice. Therefore they prayed that the appeal be allowed and consequently the complaint be allowed.
The points that arise for consideration are:
1) Whether the complainants are consumers under the provisions of Consumer Protection Act?
2) Whether the complainant is entitled for declaration that the assessment made by the Opposite Parties was irregular or illegal?
It is not in dispute that the complainants had leased out the premises to third parties who have been running a shop for which electricity connection under Category-II was taken. Category-II is for non-domestic purpose.
It is nobodys case that the tenants were selling the electricity to third parties. They have been utilizing it for their own purpose. Presuming that the person who obtains electricity connection would not be a consumer under section 2(d) of the Act is incorrect. The definition of consumer reads as follows : Consumer means any person who
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose. Even the explanation which makes it clear that it does not include use by a person exclusively for the purpose of earning his livelihood by means of self employment.
Section 2(1)(d)(ii) makes it amply clear that a person who avails any service including supply of electrical or other energy would be a consumer and is entitled to file a complaint for any deficiency in service as provided under section 2(1)(g).
It is not in dispute that a provisional notice under Ex. A1 was issued on 24.9.2003 alleging that meter cover left side seal is missed constitutes malpractice of energy. On that the value of energy pilfered was assessed at Rs. 7,124/- wherein he was directed to pay Rs. 3,562/- for obtaining restoration of supply + provisional charges of Rs. 150/-. On the reverse of notice calculations were noted informing as to how they arrived at Rs. 7,124/-. The complainant had paid Rs. 3,762/- vide Ex. A3 besides an amount of Rs. 2,000/-. It seems that disconnection was made despite the payment and on that the complainant filed an application u/s 14 of C.P. Act for restoration of service connection. The Dist. Forum directed for restoration of service connection obviously in view of payment made by them.
Though a representation was directed to be made in this regard by a notice Dt. 24.09.2003 the complainant instead of filing reply to the show cause notice had chosen to file a complaint under Consumer Protection Act. The Dist. Forum opined that when the seal of the meter was found missing and there was malpractice, it cannot be said that there was deficiency in service on the part of opposite parties and dismissed the complaint. At this juncture, it is useful to note that the Consumer Forum has jurisdiction to redress upon the cases arising under Electricity Act, 2003.
Recently, the National Commission in Accounts Officer, Jarkhand State Electricity Board Vs. Anwar Ali, reported in 2007 (2) CPC 713 after exhaustively considering the case law on the subject observed .(i). Section 3 of the Consumer Protection Act and Section 175 of the Electricity Act, provide that they are in addition and not in derogation of rights under any other law for the time being in force. Therefore, the rights of the consumers under the Consumer Protection act are not affected by the Electricity Act.
.(ii). A bare reading of Sections 173, 174 and 175, makes it clear that the intent of the Legislature is not to bar the jurisdiction of the Consumer Fora constituted under the Consumer Protection Act. The provisions of the Electricity Act have overriding effect qua provisions of any other law except that of the Consumer Protection Act, 1986, the Atomic Energy Act, 1962 and the Railways Act, 1989.
.(iii). Section 42(8) of the Electricity Act specifically provides that the remedies conferred on consumer under Sub-sections (5), (6) and (7) of Sec.42 are without prejudice to the right which the consumer may have apart from the rights conferred upon him by those Sub-sections.
.(iv). Section 145 of the Electricity Act specifically bars the jurisdiction of the Civil Court 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 in Section 127 of the Electricity Act or the Adjudicating Officer appointed under the Electricity Act, is empowered to determine.
Second part of Section 145 provides that no injunction shall be granted by any Court or Authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. For this purpose, if we refer to Sections 173 and 174 and apply the principle laid down there-under, it would mean that qua the consumer fora there is inconsistency and, therefore, other Authority would not include consumer fora.
.(v). Consumer of electrical energy provided by the Electricity Board or other Private Company, is a consumer as defined under Section 2(1)(o) of the Consumer Protection Act and a complaint alleging any deficiency on the part of the Board or other private company including any fault, imperfection, shortcoming or inadequacy in quality, nature and manner of performance which is required to be maintained by or under any law or in pursuance of any contract in relation to service, is maintainable under the Consumer Protection Act.
Against the Assessment Order passed under Section 126 of the Electricity Act, a consumer has option either to file Appeal under Section 127 of the Electricity Act or to approach the Consumer Fora by filing complaint. He has to select either of the remedy. However, before entertaining the complaint, the Consumer Fora would direct the Consumer to deposit an amount equal to one-third of the assessed amount with the licensee [similar to Section 127(2) of the Electricity Act].
Hence, the issue of law which was required to be determined is decided as stated above. The revision petitions are to be heard on merits.
Ex. A4 is the provisional order that was passed wherein it was mentioned that an appeal could be filed before the Appellate Authority within 30 days from the order. The complainant had a right to do so in the light of above decision. The complainant questioned the authority in issuing the notice Dt. 24.9.2003 alleging that there was no tampering of meter or drawal of electrical energy and he insisted that earlier bills be seen in order to find out whether they had used excess consumption, unless the opposite party Board could explain either before the Dist. Forum or before this Commission as to how the assessment could be made on the basis that there was unauthorised drawl of electrical energy. Since the averments of the complainants were not refuted, it cannot be held that the complainants had committed any irregularity in utilizing the electrical energy. Since the supply was restored by virtue of Interim orders against which no appeal or revision has been preferred by the opposite party and the same has become final.
The complainants, in fact, did not submit any explanation when notice was issued under Ex.
A1. What all they did was payment of the amount as contemplated under notice. Since, we are of the opinion, both are at fault, i.e., the complainant in not making representation to the Electricity Board and the opposite parties in not submitting its version to either of these courts. In the light of above decision, we direct the complainants to make a representation to the notice issued under Ex. A1 and on such representation the opposite parties are directed to dispose of it within 30 days.
Since the appellant did not choose to contest when the respondent alleged that there was drawal of excess electrical energy and tampering of meter, it is too late to contend that there was irregularity as he had paid the amount demanded, basing on the calculations made by the Electricity Board .
We do not see any ground to interfere with the order passed by the Dist. Forum.
There are no merits in the appeal.
Appeal is dismissed.
However, each party to bear their own costs.
PRESIDENT LADY MEMBER Dt. 28. 05. 2008