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(B) These Regulations also recognise the settlement of the bill including the deviation in the drawl, etc; between the Open Access generator and the licensee. In other words, these Regulations would specifically provide that where there is a deviation between the scheduled capacity and the actual capacity, being injected at an entry point, the shortfall in the capacity allocated to the scheduled consumer shall Judgment in Appeal No. 8 of 2010 be deemed to have been drawn by the scheduled consumer from the distribution company and the energy corresponding to such shortfall shall be paid for by the party who has contracted for the Open Access capacity with the distribution company. ( C) In the present case, the Appellant-1 entered into a long-term Open Access agreement with Respondent-1 and Respondent-2 in terms of the above statutory provisions. Therefore, the dispute about compensation in regard to the deviation has to be settled only amongst the Open Access generator, the 1st Appellant herein and the licensee, Respondents herein in accordance with the Regulations. The captive user of electricity, the 2nd Appellant herein, has no involvement in the same. Therefore it is not open to the Distribution licensee to claim compensation differently or additionally Judgment in Appeal No. 8 of 2010 from any other person including the 2nd Appellant, other than the 1st Appellant.

"8. Settlement of Energy/Demand at Exit Point in respect of Scheduled Consumer Judgment in Appeal No. 8 of 2010 8.1 The Scheduled energy (in kWh) at exit point shall be calculated for each time block from the scheduled capacity (kW) at the Exit point, as provided in the wheeling schedule by multiplying it with the period of time block in hours.
8.2 The Scheduled demand at exit point shall be calculated by dividing the scheduled capacity (kW) at exit point by the power factor for the time block, for which purpose the Power factor shall be equal to the recorded kWh divided by kVAh.

Appellant-2 is a Scheduled Consumer in terms of the Regulations of the State Commission.

(ii) The 1st Appellant entered into a long- 

        term    Open    Access       Agreement          with

        Respondent-1,        Transmission         licensee

        and     Respondent-2,        the    Distribution

licensee on 26.02.2008. The Appellant-2, being a captive user admittedly was not Judgment in Appeal No. 8 of 2010 a party to the said agreement. Under the agreement dated 26.02.2008, the open access user i.e. Appellant-1 has to pay Respondent-2 in accordance with the rates/charges specified by the Commission from time to time, on the basis of the settlement statement determined in accordance with the Balancing and Settlement Code approved by the Commission. The Clause 8.4 of Regulations 2 of 2006 would specifically provide, where there is a deviation between the scheduled capacity and the actual capacity, being injected at an entry point, the shortfall in the capacity allocated to the scheduled consumer shall be deemed to have been drawn by the scheduled Judgment in Appeal No. 8 of 2010 consumer from the distribution company and the energy corresponding to such a shortfall shall be paid for by the party who has contracted for the Open Access capacity with the distribution company. However, the balance demand due to short-fall in supply by the Open Access Generator is treated in the same way as excess drawal by a consumer and has to be paid to the Distribution Company in terms of the supply agreement with the Distribution Company. According to clause 10.1 of the Regulations, dealing with Settlement for Open Access Generator at Entry Point, it is stated that the energy and demand charges for the excess drawals by the Scheduled Consumer on Judgment in Appeal No. 8 of 2010 account of under-generation by the Open Access Generator for each time block shall be paid by the Scheduled Consumer to the Distribution Company in accordance with the proviso to clause 8.3 and as per clause 8.4 respectively. 

It    is    the    responsibility         of     the

Respondent        Distribution       licensee      to

provide supply during the period of outages in terms of Regulations framed by the State Commission. Even otherwise, any additional supply by the licensee on account of outages ought not to be charged at a rate higher than the cost incurred by the licensee in making such supply available to the captive consumer.

Judgment in Appeal No. 8 of 2010