State Consumer Disputes Redressal Commission
1. The Kerala State Electricity vs The Post Master, on 3 March, 2014
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/12/921 (Arisen out of Order Dated 25/08/2012 in Case No. CC/10/180 of District Pathanamthitta) 1. SECRETARY,KSEB KSEB PATHANAMTHITTA KERALA ...........Appellant(s) Versus 1. THE POST MASTER HEAD POST OFFICE PATHANAMTHITTA KERALA ...........Respondent(s) BEFORE: HON'ABLE MR. SRI.K.CHANDRADAS NADAR PRESIDING MEMBER SMT.A.RADHA MEMBER SMT.SANTHAMMA THOMAS MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.921/12
JUDGMENT DATED: 03/03/2014
(Against the order in CC No.180/2010 on the file of CDRF, Pathanamthitta,
Dated: 25/08/2012)
PRESENT
SMT. A. RADHA : MEMBER
SMT. SANTHAMMA THOMAS : MEMBER
1. The Kerala State Electricity
Board,R/by the Secretary,
KSE Board
APPELLANTS
2. The Assistant Engineer,
KSE Board, Electrical Section,
Pathanamthitta
(By Adv. Sri. B.Sakthidharan Nair)
V/s.
The Post Master,
Head Post Office, RESPONDENT
Pathanamthitta
(By Adv. Sri. Narayan.R)
JUDGMENT
SMT. SANTHAMMA THOMAS: MEMBER This is an appeal by KERALA STATE ELECTRICITY BOARD and the Assistant Engineer, KESB (Electrical Section) Pathanamthitta ("KSEB" or "Appellants") who were opposite parties in the Lower Forum, against the order dated 25/08/12 passed by the District Consumer Forum, Pathanamthitta, allowing the consumer complaint by the Post Master ("Respondent") in CC No.180/2010 and directing Ext. A1 bill is set aside and opposite parties are directed to regularize the connected load of the complainant as per Regulation 7 of Kerala Electricity Supply Code 2005 and Regulation 4 of KSEB Terms and Conditions of Supply 2005 within 30 days from the date of receipt of this order. Opposite parties are further directed, either to refund or to adjust in the future bills, the penal charges collected subsequent to the issuance of Ext.A1 along with cost of 2,500/- (Rupees Two thousand five hundred only) to the complainant.
2. Brief facts of the case are that Respondent on modernizing Head Post Office and Postal Division Office Pathanamthitta during the year 2007, the total electricity connected load had to be increased from 5 KW which had already been the connected load for a long time to 37 KW. The respondent approached the appellants and requested for enhancement of the existing connected load as per the rules. KSEB after an inspection issued a letter on 03/11/2008 stating that the capacity of the transformer from where the connection is given at present has to be enhanced from 100 KW to 160KW to meet the requirement at respodent's cost and provided an estimate of Rs.1,41,736/- as cost for enhancement. The respondent came to a self assessment that the new connected load of energy consumption for their office will be 37 KW and hence connected loan from transformer is much less than 100KW; hence there is no need for an enhancement of transformer. Even if there is any additional cost to be deposited by the respondent that is required only for the extra fittings from the transformer to the respondent's premises/terminal arrangements and decided no to make any payments as demanded by the KSEB. Later on receiving a letter dated 23/04/2008 from the Executive Engineer, KSEB, Electrical Division, Pathanamthitta stating the above facts; the respondent approached the 2nd appellant on the above said matters and waited for their reply. On 28/07/2010 Appellants made a surprise visit and made a provisional invoice dated 06/08/2010 for an amount of Rs.4,48,357/-. The Respondent refuted this assessment by making a representation to the KSEB on 11/08/2010 and later ignoring the Respondent's objection, Appellants issued a final bill for the same amount of Rs.4,48,357/- on 02/10/2010. On 27/10/2010 2nd Appellant issued a regular monthly bill for Rs.2,10,624/-, wherein the said bill also charged penalty for the unauthorized use of 25KW.
3. As per an order of KSEB dated 30/09/2010, they provide the voluntary disclosure scheme for consumers for voluntary disclosure of any additional load. By this scheme, the government consumers (including the buildings where governemnt offices are functioning) and other consumers requiring installation of new transformer for conversion to higher voltage lending shall be given time up to 31/01/2011 for regularizing the load. As this scheme is in effect up to 31/01/2011, the action now taken by the opposite party against the Respondent by issuing bill dated 12/10/2010 is against the notification/order stated above. On 29/10/2010 and 22/11/2010 Respondent had remitted the bill amount of Rs.2,13,042/- which also included the penalty of the additional connected load. Despite of several request from Respondent, on 24/11/2010 the 2nd Appellant disconnected the electric supply of the respondent without any notice. The electric supply disconnected is a public office, where the Pathanamthitta Head Post Office and Pathanamthitta Postal Division office are functioning with a total 85 staffs working there. Hence the respondent and the public at large are put to heavy loss and hardship due to the illegal disconnection of electric supply by the opposite parties. Therefore the disconnection is illegal, which amounts to deficiency of service to the respondent/consumer is alleged by the respondent in the Lower Forum.
4. Appellants objected the averments primarily stating that the Respondent is a low tension three phase consumer with a sanctioned connected load of 5 KW under LT VIC tariff and denied that the Respondent had applied for an additional load of 37 kilowatts but had requested only for additional load of 24 KW only in addition to the existing 5 kilowatts allowed furing 2008. According to Appellants, Respondent's requirement of additional load of 24 kilowatts could not be met from the existing 100 KVA YMCA transformer which was fully loaded and there was no spare capacity available in this transformer to be provided. The appellants urged that they have got the right to decide technically, whether extention of electric line is required or not whether a new transformer to be provided. The appellants urged that they have got the right to decide technically, whether extension of electric line is required or not or whether a new transformer is to be commissioned or not or whether both extension of electric line with commissioning of new transformer is required or not. The decision entirely depends upon technical parameters like existing and proposed connected load of consumer and transformer, existing conductor size, length of conductor, existing capacity and load of transformer etc. Opposite party stated that for below 50 KVA consumers, installation of new transformer is optional depending on the technical feasibility at site whereas for above 50 KVA consumers, installation of transformer is compulsory even if it is technically feasible without a new transformer. As per terms and conditions of Kerala Eelectricity Supply Code 2005, the licensee shall complete the work within the time frame stipulated only after the receipt of the required amount from the applicant. The respondent had not approached the Appellants or their subordinates or higher officials even after the receipt of the demand notice issued by the second appellant on 03/11/2008. The appellants have got every right to penalize the respondent for the unauthorized usage of additional load till the unauthorized load is regularized or removed. The Anti Power Theft Squad's surprise inspection was conducted on 28/07/2010, but the voluntary disclosure scheme order issued only on 30/07/2010, it has no retrospective effect.
5. The Lower Forum based on contention raised and perusal of the entire materials on record concluded there is a clear deficiency of service. Forum noted that though respondent had remitted bi-monthly bill which included the proportionate penal fixed and current charges for the unauthorized usage of connected load, the service was disconnected on 24/11/2010 due to the non-payment of the assessed amount dated 21/10/2010, hence Appellants acted lawfully and didn't commit any deficiency of service. On verifying of Ext.A2, it is seen that on 30/07/2010 KSEB has introduced a liberalized policy by ordering voluntary disclosure for regularizing the unauthorized connected load of consumers. In this case, Respondent has already disclosed the connected load as per Ext. B2. The Lower Forum noted that Respondent is not the only beneficiary of the existing transformer, a large number of consumers are using electricity as stated above, the burden of the new transformer imposed to the Respondent by the opposite parties cannot justified. Moreover, it is seen that respondent the Head Post Office is a public functionary and the function carried out by them is a public utility service for the well being of the public and hence Respondent being a Central Government Department and public office, the weapon of disconnection has to be used sparingly and not mechanically.
6. From the overall facts and circumstances and the available evidence on record, the Lower forum are of the view that Appellants disconnection of respondent's connection is illegal, unjust, irrational and against the spirit of Ext.A4. Therefore issuance of Ext.A1 and the penal portion of the subsequent bills are improper and irregular and are liable to be set aside. Hence complaint was allowed and orders were passed as above.
7. We have accorded careful consideration to the contentions, and rival contentions, of the parties, at length and gone through the records.
8. It is not in dispute that Respondent required an enhancement in the required load for their daily functioning of the office, although the required amount of load was in dispute between the parties. The appellants have neither denied the fact that Respondent had approached them for enhancement and whereby it proves that respondent is not at fault as per the order attached as Ext.A2 of KSEB dated 30/07/2010, introducing a liberalized policy by ordering voluntary disclosure for regularizing the unauthorized connected load of consumers. The respondent can be well placed under the protection of the said order because while comparing the dates of cause of action the stated fact it is clearly proved and hence the opposite parties arguments does not sustain clarity and legitimacy. However we feel the Lower forum in deciding this case have not given sufficient insights as to the rights and remedies of KSEB do have in this matter. Respondent claims that based on their logical calculation, they felt there were no requirement as to enhancement of transformer for increasing the required load and hence decided not to comply with advice of KSEB notice issued on 03.11.2008 after their inspection at the said premises. We are of the opinion that KSEB solely reserves the right to decide on the requirements for enhancement of certain load for their consumers. It also should be noted that respondent had the option to approach Consumer Grievance Redressal Forum & Electricity Ombudsman challenging the said notice rather than waiting for so long. Rather the respondent opted in using excess load from the existing load available in and around their premises which were found out during the inspection of KSEB on 28/07/2010, which by then 2 years have been elapsed. We do not see any relation with KSEB inspection and alleged KSEB order specified under Ext. A2. "In Maharashtra State Electricity Board V.Sheshrao Ajabrao Sherkar, 1998(1)CLT 186, the Commission was of the view that the consumer has either to take electricity supply on the conditions on which it is offered or to go without it. The Commission, re-affirmed its earlier view that the resonableness or otherwise of the cost or price charged for service is not a matter falling within the purview of the adjudication under the Consumer Protection Act and all that forums are concerned with is whether there has been any deficiency in the matter of rendering service that has been contracted for. It has been a consistent view of the Commission that the resonableness of cost or price charged for rendering a service is not a consumer dispute under Consumer Protection Act".
9. The KSEB is empowered to frame conditions for supply of electricity which included not only the power to recover the cost of electricity but also charges of service interest, penalty etc. The Respondent twice without any objection had made payments to the KSEB based on bills received and we are in doubt as to why the Respondent did not resort to alternative remedies challenging the said bills, but waited till the disconnection took place. We find no reason to disbelieve the definite and cogent evidence of the KSEB in regard to excess load having been found, the KSEB is duly authorised to prepare assessment bill as envisaged under Indian Electricity Rules read with the relevant provision of the Kerala Electricity Supply Code 2005 and Terms and Conditions of the assessment of bill by KSEB was illegal. Consequently, the impugned order based on such an erroneous conclusions cannot be legally maintained and is liable to be set aside. The Respondent was legally obliged to pay the bill drawn against him in the above circumstances and he was not entitled to any relief prayed for in the consumer complaint.
For the reasons aforesaid, this appeal is allowed. However considering the fact that respondent is public office and due to the disconnection of electricity will eventually affect the common public, the opposite parties are directed to reverse the disconnection and provide adequate time to the respondent. Order dated 25/08/2012 of the District Forum is set aside and the complaint is dismissed. No order as to cost.
SANTHAMMA THOMAS: MEMBER
A. RADHA : MEMBER
nb
[HON'ABLE MR. SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER
[ SMT.A.RADHA] MEMBER
[ SMT.SANTHAMMA THOMAS] MEMBER