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Judgment
THIS appeal is directed against the order dated 29th day of September, 1997 in COP No. 15/97 on the file of the District Consumer Disputes Redressal Forum, Tirunelveli.
THE appellants-officials of the Tamil Nadu Electricity Board (TNEB), are the opposite parties 1 to 4 while the respondent, General Manager, Balarama Varma Textile Mills, Sencottah, is the complainant. The complainant Mills, it is said, is having a high tension supply with service connection No. HTSC 24. The consumption of electricity is measured by the Trivector meter. On 14.2.1995, the Trivector meter connected to the complainant Mills had become defective and, therefore, the complainant informed the fact to the opposite parties 3 and 4 over phone and also sent confirmation in writing by a letter dated 21.2.1995. Subsequently the 3rd opposite party removed the meter and the bill for February, 1995 was issued based on the actual consumption recorded till 14.2.1995 and average consumption for subsequent days.
The meter, after rectification of the defects, was fixed on 28.4.1995. The power bill for the months of March, 1995 and April, 1995 were worked out by the opposite parties on the basis of the average consumption of four months from October, 1994 to January, 1995.
DURING the months of March and April, 1995 there were frequent power failures and on some days the complainant was advised over phone not to draw power from the grid supply due to voltage problems. Owing to such advice given by the opposite parties the complainant was forced to generate the requisite power with their generators. This fact was informed to the opposite parties 2 and 4 by their letter dated 23.3.1995, but the opposite parties 2 and 4 failed to consider the letter so sent. The opposite parties, without considering the power shutdown, trippings, issued the bills for March and April, 1995 based on the average consumption of four months from October, 1994 to January, 1995. During the months of March and April, 1995, the power was drawn much less than the power drawn during the previous months which was explained by the complainant to the Electricity Board Authorities with reference to the level of captive generation of power and the total number of hours of failures and number of trippings. It is not just and proper on the part of the Electricity Board to base its claim on the average consumption of four months. However, the complainant paid the bill for the two months under protest.
THE average consumption per day during the months of March and April, 1995 has suddenly increased to 19,633 units as against 17,900/- units during the months of January and February, 1995. Owing to such a wrong calculation the complainant was forced to pay an excess sum of Rs. 1,78,242.12p for the month of March, 1995 and a sum of Rs. 2,78,659.08p for the month of April, 1995, totalling to Rs. 4,56,901.20p. Without taking into consideration the amount of shutdowns, trippings and the duration of the failure of supply of energy from the grids, the opposite parties hypothetically estimated the average and collected the amounts from the complainant illegally. The complainant sent detailed letters to the opposite parties 1 and 2 by marking copies to the 4th opposite party explaining the levels of consumption that would have been consumed by the Mills during the months of March and April, 1995 and also the power generated through the generator by using diesel. A detailed report was also sent by the Mill Engineer to the concerned authorities with nil result.
THE 1st opposite party sent a reply dated 9.1.1996 informing the complainant that the request for revision of bills for the months of March and April, 1995 had already been explained in detail and as per the terms and conditions of supply the request was not feasible of compliance. THE contention of the opposite parties is untenable and without actually supplying the power they claimed the amount on hypothetical basis. THE services rendered by the opposite party are defective and imperfect. THErefore, the complainant came forward with this complaint to direct the opposite parties to refund the sum of Rs. 4,56,901.20p which was excessively collected from the complainant Mills, with costs of the proceedings.
THE opposite party filed written version denying the allegations in the complaint. As soon as the defect in the meter was informed, it was removed and electric energy was arranged directly without routing the supply through the metering set. THE TNEB terms and conditions of electricity is the contract between the Board and the consumer and the said terms and conditions are binding on the consumer. For the period between 16.2.1995 and 29.4.1995 during which there was no meter, the assessment was made as per the rules. According to the rules, the average consumption during the period of four months will be taken irrespective of the fact whether there was lesser consumption or excessive consumption in a particular month. Excepting the above mode of assessment there is no other mode known to the rules. The consumer cannot find fault with the Board when things are done in accordance with the rules. Compliance of rules cannot be considered as deficiency in service.
The consumption of electric energy was for commercial purpose and hence the present complaint is unsustainable in law. This Forum has no jurisdiction to entertain the complaint. The opposite parties have done their best to the consumer. There is no deficiency in service as alleged in the complaint. The complaint as such deserves to be dismissed with costs of the opposite parties.
THE Forum below, after taking into consideration the materials placed on record and after hearing the projection of hues of views by the parties through their respective learned Counsel, ultimately recorded a finding that there was deficiency in service on the part of the opposite parties officials of the Electricity Board and allowed the complaint directing the opposite parties to refund the amount of Rs. 4,56,901.20p stated to have been excessively collected from the complainant towards the electricity consumption charges for the months of March and April, 1995 with cost of Rs. 1,000/- of the complaint. Time given for payment is one month from the date of its order. Aggrieved by the order as above, the opposite parties resorted to the present action.
WHEN this matter came up for hearing today at 12.15 noon, learned Counsel Mr. V. Dhanasekar, appearing for the appellants/opposite parties was not present. One Mr. S. Ramasamy, Assistant Executive Engineer, Sencottah, rushed to this Commission in a hurly burly manner exactly at that time. He said he had come from Sencottah yesterday noon to assist the learned Counsel Mr. V. Dhanasekar appearing for the appellants/opposite parties. He would also further say that he had given instructions to learned Counsel and he had come to the Commission, obviously, to watch the proceedings. It is not as if this matter is coming up for argument today ( ) for the first time. The sordid fact is that this matter came up for arguments on an earlier occasion, on 12.11.1999 for arguments. On the said day, the said learned Counsel for the opposite parties and also learned Counsel appearing for the respondent/complainant were present and they were orally informed by this Commission to produce the terms and conditions, particularly Nos. 17.10 and 17.11 for the supply of electric energy to high tension consumers. The said learned Counsel for the opposite parties did not care to be present in the Court at the time when the matter was called. But nonetheless, Mr. S. Ramasamy, Assistant Executive Engineer, Sencottah, was present, as already indicated, and when he was questioned, he was able to produce the terms and conditions of supply of electricity issued by the Tamil Nadu Electricity Board. The fact that learned Counsel for the appellants/opposite parties is not present in the Court, does not mean that we cannot dispose of this appeal, which is relatable to the year 1998, on merits, of course, after hearing learned Counsel for the respondent/complainant Mr. B.R. Ramesh Babu and after perusing the materials placed on record before the Forum below. That is exactly what we have done in the case on hand. From the nature of projection of contentions by the respective parties before the Forum below, it was rather obvious that the controversy appears to have hinged on the question as to whether No. 17.10 or 17.11 of the terms and conditions of supply of electricity as issued by the TNEB was applicable to the case on hand. It is the contention of the opposite parties Electricity Board that the relevant term and condition of supply of electricity applicable to the case on hand is referable to 17.10 and not 17.11 as contended by the complainant. Even now, we may state that the approbate of the Forum below in ordering refund of the sum of Rs. 4,56,901.20p to the complainant is not in accord to the terms and conditions of supply of electricity. Whether No. 17.10 or 17.11 is made applicable, the question of refund of the said amount will not at all arise for consideration. We are rather puzzled to understand such an order made by the Forum below.
THE moot question that arises for consideration on the facts and in the circumstances of the case is as to what is the term and condition that has to be made applicable to the case on hand on the facts and in the circumstances of the case.
THERE is no denial of the fact that No. 17.10 governs a particular situation as contemplated therein whereas No. 17.11 is made applicable in a situation as contemplated therein. In normal circumstances, it appears when the meter turns out to be defective, such a meter is removed and the electric energy supplied is given directly without the electric energy passing through meter and till up to the fixation of the meter, the supply of electric energy is calculated by taking into account the average consumption for the preceding four months during the period when the meter was removed for rectification of defects. This sort of a procedure is contemplated by term and condition No. 17.10. We may reproduce term and condition No. 17.10 which is as below for the better understanding of the applicability of the said term and condition : "Where supply to the consumer is given without a meter or where the meter fixed is found defective or to have ceased to function and no theft of energy or violation is suspected, the quantity of electricity supplied during the period when the meter was not installed or the meter installed was defective, will be assessed as mentioned hereunder : The quantity of electricity, supplied during the period in question will be determined by taking the average of the electricity supplied during the preceding four months in respect of High Tension service connections and two assessment periods (four months) in respect of Low Tension service connections, provided that the conditions in regard to use of electricity during the said four months/two assessment periods were not different from those which prevailed during the period in question. In respect of High Tension service connections, where the meter fixed for measuring the Maximum Demand becomes defective, the Maximum Demand will be assessed by computation on the basis of the average of the recorded demand during the previous four months. Where the meter becomes defective immediately after the service connection is effected, the quantum of electricity supplied during the period in question is to be determined by taking the average of the electricity supplied during the succeeding two assessment periods, provided the conditions in regard to the use of electricity in respect of such Low Tension service connection are not different."
In cases where the situation is extra-ordinary, in the sense of the conditions with regard to the use of electricity during the period were different, the assessment was to be made on the basis of any consecutive four months period during the preceding 12 months'' when the conditions of working were similar to those for the period covered by the Bill. This is the procedure contemplated by term and condition No. 17.11 which runs as under : "If the conditions in regard to use of electricity during the two periods as mentioned above were different, assessment will be made on the basis of any consecutive four months period during the preceding twelve months when the conditions of working were similar to those in the period covered by the billing."
NO material worth the name in support of the special conditions which were stated to be in existence by the complainant for the applicability of the term and condition NO. 17.11 which had been accepted by the Forum below has been placed on record by the complainant. What is placed on record is the self-serving statement in the shape of Ex. A1 letter dated 12.5.1995 of the complainant addressed to the Assistant Executive Engineer, Tamil Nadu Electricity Board, Kalankarai Sub-Station, Sencottah. The calculation given in the said letter, admittedly, had not been accepted by the opposite parties and this is getting revealed with the communications Ex. A3 dated 15.4.1996 and Ex. A6 dated 23.3.1995 sent by the complainant. Apart from the non-acceptance of the calculations so made by the complainant in Ex. A-1, no tangible material in the shape of any document to support such a calculation had been filed. As such, the document under Ex. A1 by itself is of no intrinsic value and worth to be taken into consideration for coming to the conclusion that there was excess billing during the period in question. Unfortunately, the Forum below had not taken the little bit of care in scanning and sifting such a document and that perhaps was the reason for the Forum below to have come to the conclusion that there was excess billing on the part of the opposite parties. In such state of affairs, this document cannot at all be taken into consideration for the existence of conditions as contemplated by the term and condition NO. 17.11 so that the calculation was to be made not in accordance with term and condition NO. 17.10, but in accordance with term and condition NO. 17.11. In such circumstances, we are of the view that the correct term and condition that is applicable on the facts and in the circumstances of the case is NO. 17.10 and not NO. 17.11. Such being the case, the calculation made by the opposite parties for the consumption of the electric energy during the disputed period cannot at all be stated to be incorrect. For the reasons as above, the appeal deserves to be allowed.
IN fine, the appeal is allowed by setting aside the order of the Forum below. We make no order as to costs on the facts and in the circumstances of the case. Appeal allowed.