Appeal No.6 of 2007

Between

Gudivada Nagamani,

W/o Seshagiri Rao, Prop: Vijaya Offset Printers,

D.No:7/213, Azad Road,

Machilipatnam. ... Appellant

and

1) Assistant Engineer/Operation, Machilipatnam,

2) Assistant Divisional Engineer/Operation, Machilipatnam,

3) Divisional Engineer/Operation, Machilipatnam,

4) Divisional Engineer/Assessment, Vijayawada,

5) Assistant Accounts Officer/ERO/ Machilipatnam, ... Respondents

The representation dated Nil (received on 31.01.2007) of the Appellant has come up for final settlement before the Vidyut Ombudsman on 23.07.2007 in the presence of representative of the appellant and respondents and stood over for consideration till this day, the Vidyut Ombudsman passed/issued the following:

AWARD

Aggrieved by the Order dated 29.12.2006 of the Forum for Redressal of Consumer Grievances of APSPDCL, Tirupati (for short ‘Forum of APSPDCL’), in C.G.No.90/2006-07/ Vijayawada Circle, the appellant herein submitted a representation (appeal) under clause 9(1) of APERC (Establishment of Forum and Vidyut Ombudsman for Redressal of Grievances of the Consumers) Regulation (for short ‘Regulation No.1/2004’) requesting the Vidyut Ombudsman to set aside the orders of Divisional Engineer, Assessments Division, APSPDCL, Vijayawada, in the interest of the justice.

2. The grounds of appeal raised in the Appeal by the appellant are as follows:-

(a) The Order of Forum of APSPDCL is against the probabilities of the case.

(b) The Consumer Grievances failed to notice the irregularities committed by the Respondent Authorities in fixing the penalties thereby, the order of the Forum of APSPDCL is totally not correct order.

(c) The Forum of APSPDCL failed to notice the letter which addressed by the complainant to the respondent authorities dated 05.01.2003 (5^th January, 2003). It is very clear from the order of the Consumer Disputes Redressal Forum: Krishna: Machilipatnam (for short ‘District Consumer Forum’) in C.D.No.28/2004 that the said letter is marked as Exhibit: A-1.

(d) The Forum of APSPDCL erred in not noticing very existance of the letter dated 05.01.2003 which is marked on the side of the complainant before the District Consumer Forum as Exhibit A-1 and it is the crux of the litigation. But without looking into the very existance of the said letter, the Forum of APSPDCL went on presuming that the letter is not produced by the complainant, which is totally incorrect. Failure to notice the marking of letter of the complainant dated 05.01.2003 as Exhibit A-1 in the order of District Consumer Forum shows non-application of the judicious mind by the Forum of APSPDCL. Therefore, the order of the Forum of APSPDCL is liable to be set aside on the sole count itself.

(e) The Forum of APSPDCL ought to have seen, the penalty imposed by the authorities Rs.22,000/- (Rupees twenty two thousand only) is too excessive. Even if there is any lacuna on the side of the appellant, it do not warrant imposing such a huge amount as penalty. Therefore, imposing penalty may be set aside.

(f) The Forum of APSPDCL ought to have seen, even if there is any lacuna on the side of the appellant, it can be condoned and penalty may be reduced to Rs.1,000/- (Rupees one thousand only) to Rs.2,000/- (Rupees two thousand only).

3. In response to the appeal preferred by the appellant, the Respondents No.1, 2, 3 and 5 filed a common counter dated 16.03.2007 stating that --

(a) The Hon’ble State Consumer Disputes Redressal Commission, Hyderabad (for short, ‘State Commission’) as well as Forum of APSPDCL judgments are on correct lines and there is no point either to settle the dispute with the petitioner/appellant or to set aside the orders passed by the State Commission, Hyderabad or Forum of APSPDCL.

(b) The State Commission as well as Forum of APSPDCL came to the conclusion that the appellant failed to prove about the submission of letter dated 16.01.2003 requesting to change the category and also further came to the conclusion that the petitioner/appellant is not the Registered Consumer and one Sri M.M.Venkatacharyulu is the registered consumer and the Service Connection No.5458 released under category-1 is in his name. It is further submitted that there is no truth in the representation of the appellant with regard to the starting of printing press in the premises of M.M.Venkatacharyulu and the appellant failed to produce:

i) lease deed

ii) requisition from the original consumer/appellant asking for change of category of service filed with Section Officer

iii) original bills showing about the purchase of computer printing machine (the dates of the bills are seems to be manipulated)

(c) The appellant has been contending that she has been using power for commercial purpose. Hence, the appellant is precluded to approach the District Consumer Forum under Consumer Protection Act. The proceedings under Consumer Protection Act before the District Consumer Forum are not tenable under law.

(d) In fact the provisional assessment Notice issued is as per the guidelines only. the appellant having paid half of the amount not pursued the Departmental remedies available under the Electricity Act and the terms and conditions of supply.

(e) With regard to Point No.3 of grounds of appeal, it is submitted that except mention of the alleged letter dated 05.01.2003 there is no proof of its submission to the authorities. In the representation dated 20.05.2003 appellant stated that she submitted letter to the Assistant Engineer, South, Machilipatnam requesting to change the category on 16.01.2003 (variation with regard to date). The husband of the appellant who was physically present on 25.03.2003 i.e., at the time of inspection has stated that they are using the shop since 3 months prior to the date of inspection and he has not stated that he applied for change of category either under letter dated 05.01.2003 or 16.01.2003. Further it is to submit that as per appellant letter dated 20.05.2003, the date 05.01.2003 is the date on which the press established and there is no possibility of letter with date 05.01.2003 to Assistant Engineer, South, Machilipatnam. Hence there is no failure of the Forum of APSPDCL in not noticing the letter as contended by the appellant.

(f) The contentions in para no.4 of the appeal grounds that the Forum of APSPDCL, erred in not noticing the existence of letter dated 05.01.2003 though the same was marked as Exhibit A-1 in the order of District Consumer Forum is not at all true and correct. The letter that marked as Exhibit A-1 is only a self made letter, there is no proof about its submission to the Electricity Authorities under acknowledgement, on the said point only the State Commission allowed the appeal filed by the respondents and set aside the order of the District Consumer Forum.

(g) The averments made in para no.5 of the appeal grounds that the penalty of Rs.22,000/- imposed by the Electricity Authorities is excessive is not at all true and correct. The provisional assessment was made based on the connected load, hours of using as well as the meter reading one year prior to date of inspection only as required for back billing under the Electricity Act.

(h) Hence, there are no tenable grounds to consider the appeal. Therefore, the appeal may please be dismissed in the interest of justice.

4. Respondent No.4 filed counter stating that –

(a) The premises of SC.No.5458 was inspected by Ch.V.Someswara Rao, the then Addl.Asst.Engineer, Operation, D-1, Machilipatnam at 11.45 hrs on 25.03.2003 and since the consumer utilises supply other than the stipulated purpose i.e., Printing Press, a case for unauthorised use of electricity is booked. (A copy of the Inspection Notes is filed).

(b) The provisional Assessment Notice for an amount of Rs.22,693/- was issued by the Asst.Divisional Engineer/Operation/Machilipatnam vide D.No.385/03 dated 31.03.2003 (A copy of the said Notice is filed).

(c) The Showcause Notice for an amount of Rs.22,495/- was issued by the Divisional Electrical Engineer, Assessments Division, Vizayawada vide D.No.2983/03 dated 19.05.2003 (A copy of the said Notice is filed).

(d) The Consumer sent representation to the Divisional Electrical Engineer, Assessments Division, Vizayawada on 09.08.2003.

(e) The Divisional Engineer issued orders vide Proceedings No.424/VZA/DE/A/ VZA/Dock No: MTM-589/D.No:8248 dated 26.12.2003 for an amount of Rs.22,698/-

(f) Instead of appearing, the next appellant authority i.e., to Superintending Engineer, Assessments, Tirupathi, the consumer had approached the District Consumer Forum.

(g) The District Consumer Forum on erroneous appreciation of facts and material evidence on record, was pleased to pass the order dated 14.09.2004 directing the respondents herein to change the category from I to II from 05.01.2003 and to adjust the amount paid by the appellant in future bills. It further directed the respondents to pay compensation of Rs.1,000/- and costs of Rs.500/-.

(h) However, the State Commission set aside the order of the District Consumer Forum.

(i) Subsequently, the consumer approached the Forum of APSPDCL vide C.G.No.90/2006-2007, Vijayawada Circle, which pronounced Judgment in favour of respondents on 29.12.2006.

5. On 23.03.2007, the appellant herein filed additional supporting affidavit, in which it is stated that --

(a) the allegations made in the counter affidavits of Respondent Nos.1 to 5 are totally incorrect and they are filed only to support their case.

(b) It is a fact that the appellant had issued letter dated 05.01.2003 to the Department authorities requesting to change the category which is an admitted fact but the said document was not marked on behalf of the appellant as the document before District Consumer Forum and the said letter is not in dispute. Moreover, the respondent authorities never disputed the very existance of the said letter. Therefore, now the respondents cannot be allowed to dispute about the presentation of the letter dated 05.01.2003 to the respondent authorities.

(c) The said letter is considered and well reasoned order was passed by the District Consumer Forum. It is not the case of respondents that the said letter was not presented to the authorities requesting to change the category. Simply because, the appellant lost the case in State Commission the respondent cannot go back on their stand and state that the appellant has not presented the letter.

(d) The District Consumer Forum relied upon the letter dated 05.01.2003 which is marked as Exhibit A-1 and gave the judgment basing on the said letter. If such letter is not produced before the District Consumer Forum, the Consumer Forum ought not have marked the said letter and relied on it. Hence the amount paid by the appellant may be ordered to refund to her.

6. The Vidyut Ombudsman endeavoured to promote a settlement by mutual agreement between the appellant and the respondents as required under Regulation No.1 of 2004. However, as the representation (appeal) filed by the appellant could not be settled through mediation or conciliation, the Vidyut Ombudsman had no other alternative except to pass an award.

7. Facts relating to existence of L.T. Cat-I (Domestic) Service Connection bearing No. 5458 in the name of Sri.M.M. Venkatacharyulu, owner of the premises bearing No. 7/213, located on Azad Road, Machilipatnam; conducting inspection of the said service by the Additional Assistant Engineer, Machilipatnam on 25.03.2003, when it was noticed that it was being used for non-domestic purposes; issue of provisional assessment notice on 31.03.2003 by respondent No.2 herein demanding payment of a total amount of Rs.22,698/- for the malpractice committed; issue of show cause notice by respondent No.3 on 19.05.2003; submission of representation dated 20.05.2003 by the appellant herein addressed to the Divisional Electrical Engineer (Operation), Vijayawada; submission of another representation dated 09.08.2003 by the appellant herein to the show cause notice and issuance of final assessment order on 26.12.2003 by respondent No. 4 confirming the provisional assessment amount of Rs.22,698/- are not in dispute.

8. As early as on 20.05.2003, in the representation to the DEE (Op), Vijayawada, the appellant admitted that she set up Vijaya Offset Printers in the premises bearing No. 7/213 mentioned above, about four months ago, i.e., in the month of January, 2003. However, the claim of the appellant is that she submitted an application in the month of January, 2003 itself for change of S.C. No. 5458 from Cat-I to Cat-II. On the other hand the case of the respondents is that the appellant did not submit such application for change of service connection and the contention of the appellant to the contrary is an after thought.

9. In support of her contention, the appellant relayed on order dated 14.09.2004 of the District Consumer Forum wherein letter dated 05.01.2003 supposed to have been addressed by the appellant herein to the Divisional Engineer, Vijayawada is marked as Ex.A-1. However, it is a fact that on 20.03.2006, the State Commission set aside the order of the District Consumer Forum. Therefore, the appellant cannot rely on the document which is supposed to have been filed before the District Consumer Forum. Admittedly, the appellant herein filed complaint before the Forum of APSPDCL i.e., in the month of December, 2006 which is about six months after passing the order by the State Commission in the month of March, 2006. Admittedly, after setting aside the order of the District Consumer Forum by the State Commission, the appellant did not choose to take back letter dated 05.01.2003 (Ex.A-1) from the District Consumer Forum and submit the same before the Forum of APSPDCL along with her complaint filed before it in the month of December, 2006.

10. When appellant intends to rely on a statement in her complaint filed before Forum of APSPDCL i.e., submission of application for change of service connection, a duty lies on her to substantiate her statement by producing documentary evidence. Eventhough, such proof was submitted before another judicial authority, in this case District Consumer Forum, the appellant cannot be relieved of the burden to place such document before the Forum of APSPDCL, especially when the order of the District Consumer Forum is set aside as already mentioned supra. Therefore, the Forum of APSPDCL rightly did not rely on the statement of appellant that she applied for change of service connection from Cat-I to Cat-II in the month of January, 2003. The appellant also did not choose to produce such application before the Ombudsman.

11. Therefore, the contention of the appellant that the Forum of APSPDCL erred in not noticing existence of letter dated 05.01.2003 which is marked before District Consumer Forum as Ex.A-1 is untenable and cannot be accepted. As mentioned above, burden is on appellant to place such letter before the Forum of APSPDCL.

12. Irrespective of submission of application for change of service connection by the appellant or otherwise, it is admitted by the appellant herself that she set up Vijaya Offset Printers as mentioned by the appellant in her representation dated 20.05.2003. It is also on record that she purchased second computer equipment from Modern Offset Process and second hand off-set printing machine from Satish Printers. But, on one hand, the appellant claims that she set up press in the month of January, 2003 and states that penalty if any, can be levied for the electricity consumed by her from the month of January, 2003 but not from one year prior to date of inspection in the month of March, 2003 (i.e., from the billing month of February, 2002) as mentioned in the report of Addl.Asst. Engineer (Op), Machilipatnam dated 25.03.2003. She relies on the bills of equipment procured by her from Modern Offset Process and Satish Printers in support of her claim of setting up press in the month of January, 2003. On the other hand the respondents contend that the appellant did not submit any application for change of service and her claim to the contrary is only an after thought. Long after inspection of the service where it is found that the appellant is using service for purposes other than the purpose for which it is released, she came up with a plea of submission of application for conversion with an intention to get over the liability for the malpractice being committed by her. The respondents also contend that the dates on the photo copies of the bills relied on by the appellant are altered to suit her version of the case. She did not produce original bills before the Forum of APSPDCL.

13. Due to afflux of time, the Ombudsman is of the opinion that it is desirable to dispose of the representation (appeal) of the appellant herein, fairly and equitably based on the material available on record. The Ombudsman is also of the opinion that interest of justice would be met if the appellant is directed to pay one and half times the cost of electricity consumed by her at commercial rate of tariff from 25.03.2002 to 25.03.2003. Based on the inspection report, provisional and final assessment, the Ombudsman calculated the amount to be payable by the appellant for the electricity consumed by her at commercial rate of tariff from 25.03.2002 to 25.03.2003 (at one and half times) and the appellant is directed to pay an amount of Rs.9187/- including supervision charges of Rs.150/-. Calculation of charges payable by the appellant, i.e., Rs. 9036.68 (rounded of Rs. 9037/-) excluding supervision charges, as arrived at by the Ombudsman is shown in Annexure – I appended to this award.

14. The appellant already paid 50% of provisional assessment amount i.e., Rs.11,424/- on 12.05.2003. The respondents are directed to adjust excess amount paid by the appellant over and above the amount awarded by the Ombudsman i.e., Rs.9187/- in the future bills of the appellant, in not more than 10 instalments. Thus the appeal is allowed partly to the extent as stated in Para-13 above.

15. If the appellant accepts the above award of the Ombudsman, she may send a letter of acceptance stating the award is in full and final settlement of her claim, within one month from the date of receipt of the award. Thereafter, the licensee shall comply the award within 15 days of the receipt of the acceptance letter from the appellant and report compliance to the Vidyut Ombudsman. However, if the Appellant does not intimate acceptance of the award passed by the Vidyut Ombudsman within the above mentioned period of 30 days from the date of receipt of award by her, the respondents are not required to implement the award passed by the Vidyut Ombudsman.

This award is corrected, signed and issued on 3^rd day of August, 2007.

Appeal No.6 of 2007

VIDYUT OMBUDSMAN