State Consumer Disputes Redressal Commission
. Kerala State Electricity ... vs P.M.Abdul Ashraf, on 27 April, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/592 (Arisen out of Order Dated 16/09/2010 in Case No. CC/03/1103 of District Trissur) 1. ASST.EXE.ENGINEER MAJOR SECTION,GURUVAYOOR TRISSUR KERALA ...........Appellant(s) Versus 1. P.M.ABDUL ASHRAF MANAGING PARTNER,BHARATH RUBBER INDUSTRIES,THAIKKAD.P.O,GURUVAYOOR TRISSUR KERALA ...........Respondent(s) BEFORE: HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU PRESIDENT PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM
APPEAL 592/2011
JUDGMENT DATED: 27..4..2012
PRESENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT
1. Kerala State Electricity Board,(KSEB), : APPELLANTS
Major Section, Guruvayur, rep. by the
Assistant Executive Engineer.
2. KSEB, Pattom Post,
Thiruvananthapuram, rep. by the Secretary.
(By Adv.B.Sakthidharan Nair)
Vs.
P.M.Abdul Ashraf, : RESPONDENT
Managing Partner, M/s Bharat Rubber Industries,
Thaikkad.P.O., Guruvayur.
( By Adv.B.Krishnakumar - Amicus curaie)
JUDGMENT
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT The appellants are the opposite parties/KSEB in CC1103/03 in the file of CDRF, Thrissur. The Forum has allowed the complaint in part and directed the opposite parties/appellants to return the excess cash deposit charges levied as well as the excess service charges and 20% of extra charged for the alleged non installation of sufficient capacitors with interest at 12% from the date of payment of the amount by the complainant till realization and also directed to pay cost of Rs.750/-.
2. The complainant is the Managing Partner of the Firm an SSI unit in rubber products and having industrial electricity connection with the opposite parties. It is alleged that for the period from 7/01 to 2/02 KSEB has collected a sum of Rs.85,944.40/- towards 20% additional charge for insufficiency of the capacitors installed. It is contended that the complainant has informed as per the letter dated 1.3.02 that the capacitors were already installed and has sought for refund of the excess amount paid. Since 3/02 the excess billing has been stopped. On 4.12.2000 the APTS had inspected the premises and issued notice mentioning that there is 6KW additional connected load and a bill for Rs.23,463/- was issued for the period from 6/2000 to 11/2000 towards penal charges. The same was remitted in 6 installments. He was having connected load of 76 KW since 20.1.97 and has paid additional CD of Rs.21750/-. For the additional connected load of 6KW the opposite parties have levied Rs.49119.30/- for the period from 11/2000 to 8/01. According to the complainant the above levy is illegal. According to the complainant he is entitled for refund of the above amounts paid. Further in December, 2001 the opposite parties have informed that the total connected load is 109 KW and directed to pay a sum of Rs.Rs.55000/- towards CD. Although the amount already deposited towards CD was permitted to be deducted only a sum of Rs.22450/- was deducted. Altogether he has remitted a sum of Rs.38784/- towards CD till 12/01. The above amounts if deducted the balance to be paid would be only 16216/-. But the complainant was made to pay Rs.32550/- as additional CD. Hence the sum of Rs.16334/- is remitted in excess and the above amount should be refunded.
3. The complainant has been levied Rs.24750/- towards service charges. He is liable to pay only in the excess 33KW taking into consideration that the authorized connected load was 76KW .The service charge for 33 excess KW would be only Rs.7425/-(33x225) whereas complainant has been made to remit Rs.24750/-. The excess remitted ie Rs.17325 is liable to be refunded. The above facts were brought to the notice of the opposite parties in the electricity adalath held in 2002-2003 that there is no settlement. Hence he sought for refund of penal amount realized from 7/01 to 2/02 in 8 bills amounting to Rs.85944.40/- the 20% excess levied and also for refund of Rs.23463/- realized for the period from 6/00 to 11/2000 and also for Rs.49119.30 realised for the period from 11/00 to 8/01 and also Rs.16334/- the excess collected towards additional CD and Rs.17325/- from the service charge realized in excess amounting to Rs.24750/-
4. The opposite parties have filed version contending that the complainant cannot be treated as a consumer as the complainant is running an industry with 11 workers. It is pointed out as per notice dated 23.7.01 complainant was informed that the existing capacitors are not sufficient and as per the provisional tariff rules the petitioner would be charged 20% extra until the required capacitors are installed. As the required capacitors were not installed within 15 days of notice the invoice was issued with respect to 7/01 with 20% extra in fixed and current charges. The above amount was remitted without any protest. The situation continued for 8 months. The amounts were remitted without raising any dispute. On 1.3.02 the petitioner has informed that the required quantity of capacitors were already existing in this factory. There upon the opposite parties visited the factory and verified the capacitors and on finding that sufficient quantity of capacitors were installed the extra 20% being charged was stopped. It was only by letter dated 1.3.02 the installation of sufficient quantity of capacitors were informed. Hence the plea that 20% extra collected is to be refunded cannot be allowed.
5. The APTS on surprise inspection found that the complainant is having 82 KW where as the sanctioned connected load was 76KW. As per clause 42(d) of the Conditions of Supply of Electrical Energy the consumer was issued with a penal bill for unauthorized connected load of 6 KW for the previous 6 months. The petitioner has remitted the above bill of Rs.23463/- in 6 instalments. The penal bill of the unauthorized connected load of 6KW was issued upto 1/8/01. The same was also remitted without any dispute.
6. On getting application for additional power allocation the petitioner was allotted a total power of 109 KW on 1.8.01. As per the rules the required cash deposit would be Rs.68125/-(Rs.625 x 109). The cash deposit already remitted upto 4/97 ie Rs.33509 was to be deducted. The balance additional cash deposit to be remitted is Rs.34616/-. But the additional cash deposit collected is only Rs.32550/- The Board has not collected any excess cash deposit.
7.The additional cash deposit is 3 times the average monthly current charges for 12 months. Upto 04/04 it is Rs.31267/-. Three times the above amount is Rs.93801/-. The total cash deposit including additional cash deposit collected from the petitioner is only Rs.66059/-. Evidently the opposite party has not collected any extra amount. The petitioner has to remit Rs.27742/- over and above the additional cash deposit already collected.
8. Regarding the service charges as it is an SSI unit no service charge is leviable upto 50 KVA. No service connection charges were collected till December 2001 from the year 1976. As the connected load of the petitioner was raised to 110KW the service connection charges would be Rs.24750/- ie, at the rate of Rs.225 per KW which was demanded. The petitioner has concealed the fact that he has not remitted service connection charges previously. It is contended that there is no merit in the complaint filed.
9. The evidence adduced consisted of the testimony of PW1; Ext.P1 to P15 and Exts.R1 and R2. 10.One of the contentions of the complainant is with respect to the bills from 7/01 to 2/02 ie 8 bills altogether amounting to Rs.85944.40/-. As per the above bills 20% has been additionally charged as capacitors were found to be insufficient. Ext.P15 is the intimation in this regard which is dated 23.7.01 directing to install sufficient capacitors and that till then 20% additional current charges will be levied. The complainant paid the bill upto 2/02. The first intimation in this regard that the capacitors have already been installed, according to the opposite parties is letter dated 1.3.02 vide Ext.P4. Instantly the fact was ascertained and levying to additional 20% stopped. According to the complainant he had already intimated the above fact vide Ext.P3 which is dated 31.7.01 contending that the capacitors already in existence are of 40 KVAR. As per Ext.P15 the direction is to install 35 KVAR capacitors as the capacitors installed are of 17 KVAR. The opposite parties have denied the receipt of Ext.P3. It is only as per Ext.P14 dated 30.7.02 the complainant has written to the opposite parties. Therein a letter dated 31.7.01 is mentioned as an evidence. The complaint has been filed only on 29.12.03. As to why the complainant continued to remit the additional 20% of current charges levied as per Ext.A2 series of bills from 7/01 to 2/02 is not explained. The Forum has placed the burden in this regard on the part of the opposite parties that the opposite parties failed to prove that Ext.P3 was not sent on the date specified in Ext.P3. The above is not the prevailing rule as to burden to proof. We find that it is unlikely that the complainant a business establishment would have continued to remit the imposition without any protest. It is unlikely conduct on the part of such a complainant to continue to remit such a sum which amounted to a substantial increase from the amount being paid ie from RS.25000 and odd to Rs.50000 to 55000 etc. Atleast the complainant would have enquired about it at the office of the opposite party. They have continued to remit and the letter of protest has been sent only on 1.3.02. Further no letter has been issued seeking refund of the additional amount allegedly made to pay. In the circumstances we find that the contention of the complainant that the capacitors were already in existence cannot be upheld. Hence the direction of the Forum to refund 20% of the extra charged from 7/01 to 2/02 is set aside.
11. The other reliefs sought is with respect to the amounts collected towards the unauthorized additional connected load of 6KW. As per Ext.R1 inspection report of APTS dated 4.12.2000 the excess unauthorized connected load of 6KW was detected. The permitted connected load was 76 KW. According to the complainant there was no such unauthorized connected load of 6KW. The additional bill issued in this regard amounting to Rs.23463/- was admittedly remitted in 6 instalments. According to the complainant the above additional bill is illegal. There is nothing to show that the complainant has made any protest with respect to the above penal charges levied and paid in instalmnets from 3/01 to 27.8.01. Even in Ext.P14 dated 30.7.02 there is no allegation that the complainant is using only 76 KW. The Forum has rejected the above contention and rightly so. No interference in this part of the order is called for.
12. The other contention of the complainant is that the additional CD collected from him is excessive. The complainant was asked to remit Rs.55000/- as additional CD and on representation the amount was reduced. According to the complainant he had already remitted Rs.38784/- till 12/01. In fact he was liable to pay only Rs.16260/- in addition it is contended. According to the opposite parties CD to be collected is at the rate of 625 per KW. The total connected load is 109 KW. Hence the amount would work out to Rs.68125/-The amount already remitted is Rs.33509/- The same was deducted. The additional CD collected from the petitioner is only Rs.32550/-. The Forum has held that there is no evidence to show that the connected load during December 2001 is 109 KW. As per Ext.R1 the total connected load is 82KW including 6 KW as additional unauthorized connected load. We find that Ext.R1 is dated 4.12.2000. The levy is with respect to period including December 2001. It is specifically mentioned in para 6 of the version that on application of the complainant connected load was raised to 109 KW from 1.8.01. The above has not been disputed. In the circumstances the contention that the complainant is liable to remit only Rs.16216/- in addition cannot be upheld. Hence the order of the Forum in this regard directing to return Rs.16334/- is set aside.
13. The other contentions of the complainant is that he has been made to pay Rs.24750/- as service charges. According to him is liable to pay Rs.7425/- He has sought for refund of Rs.17325/-. The contention of the opposite parties that service charges is at the rate of Rs.225/- per KW is not in dispute. The sum for 110KW(109 KW is rounded to 110 KW as per the tariff rules) would be Rs.24750/-. Upto 50 KW no service charges is levied for SSI units. The original power load was only 30HP ie at the time of availing connection. Subsequently connected load was enhanced. Hence till now no service charges were levied to connected load as exceeded. The exempted connected load is 50KW. On exceeding the same it is liable to be imposed with the service charges. The legal position in this regard is not disputed. The Forum has directed to levy only with respect to 33KW which is excess of 76 KW. The complainant has no case that he has remitted any service charges till then. In the circumstances we find that the direction of the Forum to refunded sum of Rs.17325/- with respect to the service charges cannot be approved. Hence the direction of the Forum in this regard is set aside.
In the result the order of the Forum is set aside and the appeal is allowed.
The office will forward the LCR along with this order to the Forum.
JUSTICE SRI.K.R.UDAYABHANU : PRESIDENT ps [HONARABLE MR. JUSTICE SHRI.K.R.UDAYABHANU] PRESIDENT