(Smt. M. Shreesha, Incharge President)
Aggrieved by the order in C.C.No.82/2010 on the file of District Forum, Srikakulam, the opposite parties preferred this appeal.
The brief facts as set out in the complaint are that the complainant is running a small Poultry farm in Gorlevanipeta Village, Gara Mandalam in Srikakulam District and eking her livelihood and has electrical power supply bearing SC No.691 under category-III and was using the power and paying the bills regularly to the opposite parties. The complainant submitted that on 08-4-2010 the service connection No.691 of the complainant was inspected by the Assistant Engineer, Operation, Ranasthalam and found that it was being used for commercial purpose for a connected load of 1710 W and found domestic load of 1660 W in the absence of the complainant. The complainant submitted that after the alleged inspection, she received a provisional Assessment Notice for Malpractice dated 16-4-2010 from the 2nd opposite party under category III and provisionally estimated the value of the energy allegedly misused at Rs.4,577/- along with Rs.50/- towards supervision charges. The complainant submitted that she immediately approached the 2nd opposite party On 10-6-2010 and she was directed to pay an amount of Rs.4,727/- immediately and she paid the same on 14-6-2010. The complainant submitted that thereafter she submitted her objections to 2nd and 4th opposite party on 29-6-2010 and was eagerly waiting for the opposite parties responding positively but surprisingly the 5th opposite party issued a final assessment order dated 04-9-2010 calculating the electrical charges from April, 2009 to April, 2010 and demanded to pay a sum of Rs.45,506/- and supervision charges of Rs.150/- and the complainant again approached the 2nd opposite party questioning the final assessment order which was issued without prior notice and questioned about mentioning excessive amount more than mentioned in the provisional assessment for malpractice dated 16-4-2010 and that the opposite parties have wrongly issued the final assessment order without any enquiry illegally. The complainant further submitted that the 5th opposite party issued the final assessment order dated 04-9-2010 and mentioned that the complainant did not file any objections against the provisional assessment order dated 16-4-2010 which is false and submitted that without proper enquiry into the matter and verification of records and objections dated 29-6-2010, the opposite parties issued final assessment order illegally which is nothing but deficiency in service. The complainant submitted that the power supply for her service connection No.691 was disconnected and thereby she was put to great financial loss and severe mental agony. The complainant submitted that she never committed any malpractice of power and she is not liable to pay the amount mentioned in the final assessment order dt.04-9-2010 and the same was issued without following the rules and without considering the objections filed by the complainant. Hence the complaint for a direction to the opposite parties to set aside the final assessment order dated 04-9-2010 and refund the amount already paid by her together with compensation of Rs.50,000/- and costs.
Opposite party No.1 filed counter which was adopted by opposite parties 2 to 5 resisting the complaint. It admitted that the complainant paid Rs.4727/- dt.14-6-2010 as the service had appeared in the defaulters list. Opposite party denied that it did not consider the objections raised by the complainant as the appellate authority i.e. the Superintending Engineer/Assessments/Visakhapatnam had given date for personal hearing at the request of the complainant scheduled to 17-8-2011 but she neither attended nor raised any objection and after due time, the appellate authority has given the proceedings dated 04-9-2011 for Rs.45,506/- towards energy misused and Rs.150/- towards supervision charges for the malpractice committed by the complainant under Section 126 of I.E.Act, 2003 and amended in 2007. Opposite party No.1 submits that the appellate authority while issuing final assessment order will take available the furnished records by the consumer in justifying their claims and only after giving proper time for objections and as the complainant did not attend for personal hearing nor raised any objections, they issued the final assessment order as per general terms and conditions of supply. Opposite party No.1 further submitted that as per IE Act, 2003 amended in 2007 U/s.126(5), the assessment shall be made for the entire period during which such unauthorized use of electricity has taken place cannot be ascertained and such period shall be limited to a period of 12 months immediately preceding the date of inspection and if the assessing officer reaches the conclusion that the unauthorised use of electricity has taken place, he will issue final assessment order calculating the misused energy for the period from April, 2009 to April, 2010. Opposite party No.1 submitted that the department will act as per the provisions in General terms and conditions of supply which is binding the consumer and the department and the inspections will be conducted, necessary notice will be issued as per the provisions of Electricity Act, 2003 and amended in 2007 and it is the statutory duty of the persons responsible to issue notices whenever a disparity is identified during the course of inspections for the loss sustained by the department. In case the power supply was released under LT category IV with an agreement by the complainant that they will use the power supply for lighting requirements of poultry farms less than 1000 birds but during inspection in presence of the complainant, it was observed that the power supply was extended to 4 Nos. round sheds catering 300 to 400 birds each and 4 Nos. big sheds catering 600-700 birds each which is well over the limit of LT category i.e. 1000 birds with a connected load of 1182 watts. Therefore, the inspection officer i.e. the Assistant Engineer recorded the findings in the L.T. inspection and submitted that there is no deficiency in service and prayed for dismissal of the complaint with costs.
Based on the evidence adduced i.e. Exs.A1 to A5 and B1 to B5 and the pleadings put forward, the District Forum allowed the complaint directing the opposite parties to set aside the provisional assessment order dated 16-4-2010 and final assessment order dated 4-9-2010 issued by 2nd and 5th opposite parties for the service connection No.691 and directed the opposite parties to adjust the amount of Rs.4,727/- already paid by the complainant together with costs of Rs.3,000/-.
Aggrieved by the said order, the opposite parties preferred this appeal.
The learned counsel for the appellants/opposite parties contended that the complainant applied electricity connection for âDomestic Purpose and she used the said connection for running the poultry farm which is a âCommercial Purpose and that they have issued final assessment order under Ex.B4, according to the provisions of Electricity Act and the same was communicated to the complainant vide Ex.B5, provisional assessment given U/s.126 of Indian Electricity Act, 2003.
The facts not in dispute are that the complainant is running a small poultry farm and is having electricity power supply connection bearing No.691 under category III. On 08-4-2010 an inspection was conducted and the said service connection was stated to be under commercial purpose and the complainant submits that this inspection was done in her absence. She only came to know about the said inspection after receipt of the provisional assessment notice dated 16-4-2010 received on 10-6-2010 evidenced under Ex.A1. The value of the energy allegedly misused was computed at 4577/- and Rs.50/- towards supervision charges It is the complainants case that she had approached the second opposite party on 10-6-2010 itself and she was asked to pay the entire amount which she had paid on 14-6-2010 evidenced under Ex.A2 receipt. Thereafter the 5th opposite party issued a final assessment order evidenced under Ex.A5 dated 04-9-2010 received on 20-9-2010 demanding the complainant to pay an amount of Rs.45,506/- and supervision charges of Rs.150/-.
It is the appellants/opposite parties case that at the time of inspection they were more than 1000 birds and the complainant used the connection for commercial purpose. The learned counsel for the appellants/opposite parties contended that running a poultry farm also comes under commercial activity. He drew our attention to the decision of the National Commission in II(2011) CPJ 202 (NC) in FARMERS POULTRY BREEDING FARM v. PUNJAB STATE POWER CORPN. LTD., in which the National commission held that if the electricity service connection is being used for commercial purpose, it does not fall within the ambit of Section 2(1)(d) of Consumer Protection Act, 1986. In view of the aforementioned judgement and also the documentary evidence filed which shows that the electricity connection was used for commercial purpose, we are of the considered view that it does not fall within the ambit of Section 2(1)(d) of Consumer Protection Act, 1986.
In the result this appeal is allowed and the order of the District Forum is set aside and the complaint is dismissed, however, with a liberty to the complainant to approach the appropriate forum and seek redressal of her grievance and also claim limitation of the time spent before the District Forum and this Commission. There shall be no order as to costs.