Appeal No. 34 of 2007

Between

Sri.Chaganti Venkateswarlu

Penuganchiprolu

Krishna Dist.

… Appellant

And

1. The Asst. Divisional Engineer/DPE-II/ APSPDCL / Vijayawada

2. The Asst. Divisional Engineer/ Operation/APSPDCL/Jaggayyapeta

3. The Divisional Engineer/Operation / Rural / APSPDCL /Vijayawada

4. The Superintending Engineer / Operation / APSPDCL /Vijayawada

5. The Asst. Accounts Officer / ERO / APSPDCL / Jaggayyapeta

… Respondents

The appeal / representation dated 14.09.2007 filed by the appellant (received on 20.09.2007) came up for final hearing before the Vidyut Ombudsman on 12.05.2008 at Vijayawada in the presence of appellant and respondent Nos. 1 to 4 and having stood over for consideration till this day, the Vidyut Ombudsman passed / issued the following:

A W A R D

Aggrieved by the order passed by the Forum for Redressal of Consumer Grievances of APSPDCL (for short the “Forum”) in C.G. No. 22 / 2007-08 / Vijayawada Circle dated 06.09.2007, the appellant herein filed an appeal / representatioin mentioned supra stating that :-

(a) the Forum below has not taken into consideration the written submissions dated 23.08.2007 submitted by the complainant therein (appellant herein) and it has not indicated its views in its order dated 06.09.2007. It has been clarified with recorded evidence that respondent No. 1 and 2 colluded and damaged the interests of the appellant in respect of S.C.No. 2942 and booking a pilferage case with regard to S.C.No. 2123. A copy of the written submissions is enclosed herewith which is self-explanatory.

(b) The action taken by corporate office of APSPDCL in invoking the order issued by the appellate authority, SE / AS / TPTY is illegal in view of section 127(4) of the Electricity Act, 2003. Further, the Corporate Office invoked clause 39(11) of old GTCS on 20.06.2006, when the new GTCS has come into operation on 06.01.2006.

(c ) The respondent No.2 and other officers have violated GTCS, the Electricity Act and booked an authorized agricultural service 2123 under pilferage of energy case and collected amounts ignoring the rules and law in force with malafide intention.

(d) The case booked by respondent No.1 stating that the meter is not working in ‘B’ phase is not correct and it should be proved.

(e) The Forum has not followed the procedure and erred in stating that the son of appellant, Ch.S.N.Rajesh signed inspection report as a witness without objection when it was not stated by respondents. The son of appellant, is deaf & dumb and cannot understand the contents of the inspection report. He only learnt to sign in English. The Forum could have examined Ch.S.N.Rajesh.

(f) Similarly, the Forum erred in stating that old GTCS will apply when the respondents have not stated the same. All the transactions including removal of the meter and assessment, etc., occurred after 06.01.2006.

(g) The meter was removed on 06.01.2006 and respondent No.3 issued orders on 05.09.2006. Therefore, the new GTCS which came into force on 06.01.2006 will only apply to the case. The respondent No. 3 has to comply the clause No. 7.5.1.3 of new GTCS, whereas the Forum referred to clause 22.2.3 of old GTCS. Non application of APERC proceedings dated 06.01.2006 on 5.09.2006 is violation of said proceedings of APERC.

(h) The observation of the Forum that non-functioning of the meter is not disputed is not correct as it was already disputed vide letter dated 14.12.2005.

(i) GTCS which came into force on 06.01.2006 does not mention that a consumer has to pay 50% of the amount before making appeal to the appellate authority viz., respondent No.4.

(j) For all these reasons there is default and deficiency on the part of respondents in not sending the meter for MRT laboratory for testing in the presence of the consumer.

(k) Therefore, the order passed by respondent No.3 may be set aside. The appellant may also be awarded damages for flouting the provisions of new GTCS and any other relief as deem fit and proper in the circumstances.

3. In terms of Clauses 8(1)(c) and 11 (1) of the “APERC Establishment of Forum and Vidyut Ombudsman for Redressal of Grievances of Consumers Regulation, 2004” (for short “Regulation No.1 of 2004”) the Vidyut Ombudsman is required to promote settlement by mutual agreement between the parties. However, instead of best efforts, made by the Ombudsman the grievance of the appellant herein could not be settled by mutual consent between the parties.

4. On behalf of respondent Nos. 1 to 5 a common counter affidavit was filed by respondent No. 4 stating that

(a) The S.C.No. 2942 Cat –I Single phase 1 KW was released to Sri Ch.S.N.Rajesh on 03.07.2002 and the same was converted to 3-phase with Contracted Load (total) of 3 KW on 05.08.2002. Seals were provided to meter T.B on 09.11.2005

(b) Respondent No. 1 inspected the service on 05.12.05 and notice that the meter was stuck up in ‘B’ phase. On 28.12.2005, respondent No.2 served assessment notice vide D.No. 1195, dated 23.12.2005 for an amount of Rs.2754/-

(c) On 06.12.2005, the meter No. 5326553 was replaced and the same was not referred for special testing as the consumer has not insisted for testing the meter in a lab. In the month of February 2006 the meter was handed over to MRT laboratory and to test it, the meter is not available as lot of meters were auctioned.

(d) Respondent No.3 issued proceedings No. 3782 / 06 dated 05.09.2006 for an amount of Rs.1412/- duly considering the fact that upto the time of providing TB seals, the meter is intact and limited the assessment for the period from 09.11.2005, i.e., the date of providing seals upto 06.12.2005, i.e., the date of changing the meter (Infact the meter was replaced on 06.01.2006 even as per the submissions made by the respondents before the Forum which is evident from the order passed by the said Forum).

(e) Respondent No. 4 has not considered the appeal as the appellant has not paid 50% of final assessment.

5. In the rejoinder dated 18.03.2008 (received on 26.03.2008), the appellant stated that

(a) It is the responsibility of the respondents to send the meter for testing to MRT laboratory as per clause 7.5.1.2 and the contention of the respondents that the consumer has not insisted for testing is not true and correct. The responsibility to satisfy themselves by taking the opinion from MRT with certification as provided in GTCS lies with respondents and respondents take advantage of such failure on their part.

(b) In GTCS it has not mentioned that appellant has to pay 50% of the amount for considering his appeal by respondent No. 4 and therefore the appellant did not pay such amount.

5. After conclusion of arguments on by the appellant as well as by the respondent Nos. 1 to 4 on 12.05.2008, the appellant submitted a letter dated 14.05.2008 reiterating his earlier submissions and summed up stating that

(a) The inspection made is questionable and shall not be relied upon .

(b) Clause 7.5.1.2 of GTCS as approved by APERC is not implemented.

(d) It is the responsibility of the respondents to safeguard interests of customers, which is not taken care in this case.

6. The point that arises for consideration is whether the order of the Forum below suffers from any infirmity, and if so, whether the same is liable to be interfered with by the Vidyut Ombudsman in exercise of its appellate powers.

7. Perused the records and heard both the parties.

8. The Forum below has rightly framed the issue for examination by it, which is “whether testing of the meter in MRT laboratory is necessary”, as the issue in this matter revolves around testing of the meter.

9. The Forum below has also rightly came to the conclusion that old GTCS will applicable to the case, but not the new GTCS which came into force with effect from 06.01.2006. However, the Forum is not correct in relying on clause 22.2.3 of old GTCS while examining the issue involved therein.

10. The Forum extracted the said clause in its order, but it failed to notice that the said clause is an enabling provision which entitles a consumer to seek for special test of meter to be carried out at any time. The words “the consumer shall be entitled on application to the Board” makes it clear that a right conferred on consumer to have such (special) test of meter carried out and for that purpose he is required to make an application to the Board’s Engineer of the area. In this case the consumer or the complainant (appellant herein) has not sought for such testing of the meter, but respondent No.1 on his own inspected the service on 05.12.2005 and noticed the meter was stuck up in ‘B’ phase. Therefore, relying on the said clause 22.2.3 of old GTCS for arriving at a decision by the Forum is not correct.

11. Notwithstanding the above, it is not in dispute that respondent No.1 in discharge of his duties inspected the S.C.No.2942 on 05.12.2005 and noticed that the meter was stuck-up in ‘B’ phase. Only meters, which are running, slow or fast need to be tested in MRT Laboratory to assess correctness of the meter. Meter stuck-up in one phase need not be tested in the laboratory as the defect of meter stuck-up in one phase can be noticed at the site itself. Therefore, there is no force in the contention that there is default and deficiency on the part of the respondents in not sending the meter to MRT laboratory for testing.

12. The other contention of the appellant is that clause 7.5.1.2 of GTCS is not implemented. The procedure to be followed by the respondents under the said clause relates to defective meters, other than stuck up meters (7.5.1). Therefore, there is no force in the contention of the appellant that clause 7.5.1.2 of GTCS is not implemented.

13. It is also not in dispute that respondent No.2 served assessment notice for an amount of Rs.2754/-, but respondent No.3 issued proceedings dated 05.09.2006 revising the assessment amount to Rs.1412/- duly considering the fact that up to the time of providing TB seals, the meter is intact and therefore, limited the assessment period from the date of providing seals up to the date of changing the meter. There is no merit in the contention of the appellant that the demand of the respondents is not based on valid reasons.

14. In view of the above, the finding of the Forum that there is no necessity to test the meter is correct and is justified. Thus, there is no necessity to interfere with the order dt: 06.09.2007 passed by the Forum below. Moreover, as mentioned above, the respondent concerned took into consideration the fact of providing TB seals and consequently limiting assessment from the date of providing such seals till the date of changing the meter. The appellant alleged that respondent Nos. 1 and 2 colluded and damaged the interests of dthe appellant in respect of S.C.No.2942 and booked a pilferage case in respect of another service connection also belonging to him (viz., S.C.No.2123). That by itself will not be sufficient to arrive at a conclusion that the respondents have acted unfairly and injustice is caused to the appellant.

15. For all these reasons, the Vidyut Ombudsman is of the opinion that there is no necessity to interfere with the order dt: 06.09.2007 passed by the Forum below. Accordingly, the appeal is dismissed. If the appellant has not paid Rs.1412/- as demanded by respondent No.3, is directed to pay the same within one month from the date of receipt of this order.

This order is corrected and signed on the 6^th day of June 2008.

VIDYUT OMBUDSMAN