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Judgment
-COMPLAINANT, who is a consumer of electricity under S. E. S. Co. has filed this complaint under Section 17 of the Consumer Protection Act, in short, the C. P. Act, claiming compensation of Rs. 6,10,000 towards mental agony, loss of business and cost of litigations, against the opposite parties.
CASE of the complainant in brief is that he has a Small Scale Industry of manufacturing trolly and agricultural implements registered under the District Industrial Centre, Jeypore, District, Koraput since 1995. As per an agreement dated 3. 2. 2001 (Annexure 1) between the S. E. S. Co. and the complainant, S. E. S. Co. supplied power to the aforesaid unit for the contractual period of five years from the date of supply of power and both parties undertook to observe and abide the terms and conditions of O. E. R. C. Distribution (Conditions of Supply) Code, 1998, in short, the Code, 1998. It was agreed upon and was also given effect to that the S. E. S. Co. would supply energy to complainant''s unit upto and not exceeding 12. 5 K. W. and the tariff rate will be applicable to supply of power at a single point for industrial production purpose with a contract demand/connected load upto but excluding 22 K. V. A. where power is generally utilized as a motive force and the monthly charge shall be 320 paise per K. W. on the units consumed. Thus, when the unit of the complainant is continuing as a small industry consuming electricity within the limit as per the agreement, opposite party No. 2 sent a Notice No. 1531 dated 7. 8. 2002 (Annexure 3) to execute an agreement with Executive Engineer, S. E. S. Co. , Jeypore Divison, to convert the unit into commercial tariff depositing differential S. D. within seven days of issuance of the notice as the complaint is enjoyig commercial tariff instead of small industries in contravention of the agreement or else power supply would be disconnected to his unit. Accordingly, energy bill of commercial tariff for the month of October, 2002 (Annexure-4) has been issued. Though, complainant represented in writing letter dated 22. 8. 2002 (xerox copy - Annexure 5) to the Executive Engineer to reconsider the matter yet his request has been turned down. Due to this complainant claimed to have sustained loss of business to the tune of Rs. 2 lakh and mental agony to the tune of Rs. 4 lakh. Therefore, he filed the case for compensation of Rs. 6,00,000 and cost of litigation Rs. 10,000. The opposite parties have stated in their joint written version that though there was agreement between them for supply of 12. 5 K. W. to the small Industries tariff category of the complainant yet during verification of complainant''s unit on 19. 7. 2002 in his presence, it was detected that as against the total connected load of 12. 5 K. W. , 9 K. W. excess load is connected through two numbers of welding machines. Copy of the verification report has been filed by opposite parties as Annexure-1 also. Thus, according to the opposite parties when the meter load was found less than 50% of the total contact demand of 12. 5 K. W. , the Executive Engineer, Jeypore issued notice dated 7. 8. 2002 (copy of which is filed by opposite parties along with Annexure-1) to the complainant to execute fresh agrement for commercial tariff category by paying differential S. D. within seven days from the date of issuance of the notice. Accodingly, bill demanding commercial tariff category has been issued in respect to said unit. They have also challenged the action of the complainant in filing the case in the Consumer Fora as has not exhausted the remedy available under Clause 110 of the Code, 1998. They claim that classification of Small Industry of the complainant to commercial category is justified as per Clause 82 of Code, 1998. Thus, opposite parties have challenged the maintainability of the C. D. case.
We have heard the learned Counsels appearing from both sides and perused the xerox copies of the documents (Annexures 1 to 5) including electricity bills for the month of September, 2002 (Annexure 2) and for the month of October 2002 (Annexure 4) filed by the complainant. Also we went through aforesaid Annexure 1 and copy of notice filed by the opposite parties.
NOW, first of all the question to be decided by us is as to how far the opposite parties are justified in demanding change of power supply from Small Industries tariff to commercial tariff of the complainant''s unit. The next question to be decided by us is as to whether the present case is maintainable in the C. P. Act in view of Clause 110 of the Code, 1998. Since complainant is availing electric energy on payment of energy charges for his Small Industry, he is a consumer under the opposite parties. In respect to first point to be decided, there is no doubt about it that in exercise of power under Clause 82 of Code, 1998, the concerned Engineer is empowered to reclassify a particular category of energy enjoyed by a consumer when the purpose of supply of energy mentioned in the agreement has been changed or the consumption of power has exceeded the limit of the category as per the agreement. In the instant case, the complainant does not admit inspection of meter and load census on 19. 7. 2002 by the concerned Engineer in his presence or in the presence of his representative. He denies consuming excess energy load of 4 K. W. as per one welding machine and consuming excess energy load of 5 K. W. as per another welding machine in total 9 K. W. as has been alleged in the meter inspection and load census, Annexure-1 (filed by opposite parties) in contravention of the terms of agreement (Annexure-1 ). The Annexure-1 (filed by opposite parties) has only been filed on the date, this case was finally heard and reserved for orders. When complainant has challenged this report and his signature appearing in it, opposite parties have not proved about either inspection of the meter on 19. 7. 2002 or the contents of the report. Thus, this report loses its evidentiary value. Further, Clause 80 of Code, 1998 provides that, "licensee may classify or reclassify the consumer into various categories from time-to-time as may be approved by the Commission and fix different tariffs and conditions of supply of differnt class of consumers," including ''commercial'', ''small Industries'', etc. It seems that the Commission viz. , Orissa Electricity Regulatory Commission has not approved the change of category of "small Scale Industry" of the complainant into "commercial" category for which in spite of verification and verification report dated 19. 7. 2002 (Annexure -1 filed by opposite parties) electric bill for the month of September, 2002 (Annexure -2) has been issued on 4. 10. 2002 by the Issuing Officer in respect to Small Industry in conformity to the terms of agreement (Annexure-1 ). Thus, when approval of change of category to ''commercial" by the Commission is not established by the opposite parties, the Issuing Officer has issued electric bill for the month of October, 2002 (Annexure-4) on 4. 11. 2002 treating complainant''s unit as ''commercial''. In body of both the bills, the Issuing Officer has given notice to disconnect electric connection on a different ground that unless complainant deposits the amount outstanding against him within seven days from the date of receipt of the notice. There is no reference to the aforesaid inspection report and notice dated 7. 8. 2002 of the Executive Engineer, Electrical, J. E. D. , Jeypore. The copy of this notice dated 7. 8. 2002 is filed by complainant as Annexure-3. This is an example of one sided and highhanded action of the authority of Electricity Department to harass innocent consumers by whimsical act of changing tariffs. Due to this action of the opposite parties, there cannot be any doubt about it that complainant has suffered mentally for deficiency of service of the opposite parties much before completion of the period of agreement.
COMING to the next point for consideration, no doubt an aggrieved person can take recourse to Clause 110 and other relevant clauses of Code, 1998. However, the C. P. Act can only provide compensation where there is deficiency in service relating to supply of electrical energy, etc. , more particularly, when the provision of the C. P. Act is not in derogation of any other law for the time being in force in view of Section 3 of the C. P. Act. Therefore, this proceeding is maintainable. Moreover, during course of argument, Mr. Nayak appearing for the opposite parties had urged that the present case is not maintainable as the claim of compensation Rs. 6,10,000 is below the pecuniary jurisdiction of the State Commission. But this complaint was filed when the pecuniary jurisdiction of the State Commission was exceeding Rs. 5 lakh but does not exceed Rs. 20 lakh prior to the amendment of C. P. Act (Act 62 of 2002) and the amended Act came into operation with effect from 15. 3. 2003. Hence, complaint filed here is maintainable. Thus, we arrive at a finding that the complainant all along is consuming power supply for industrial production with contract demand below 22 K. V. A. and his unit is a Small Industry. At no point of time, it has been converted into a commercial unit. Therefore, notices for disconnection as per electric bills dated 4. 10. 2002 (Annexure 2) and dated 4. 11. 2002 (Annexure 4) as well as notices dated 7. 8. 2002 (Annexure 3) and dated 1. 7. 2006 by the Executive Engineer, Electrical J. E. Division, Jeypore being ambiguous are quashed. The complaint has not proved in any means the loss of Rs. 4 lakh and Rs. 2 lakh for mental agony and in business respectively. Therefore, we are not going to award any compensation in his favour in this respect. Hardly he would have spent Rs. 500 towards litigation.
IN the result, we allow the complaint and quash the aforesaid notice dated 7. 8. 2002 (Annexure-3 ). We award litigation expenses of Rs. 500 only in favour of the complainant in the circumstance of the case. The opposite parties are directed to pay such litigation expenses to the complainant within a period of one month from the date of receipt of copy of this roder and advised to demand electric power consumption charges as per the tariff of Small Industries from the complainant from the period under dispute if not realized as yet and to adjust the power consumption charges if already realized as per the tariff of commercial unit, from him with the amount of future electric bills in respect to Small Industry. Mr. Subash Mahtab, Member-I agree. Complaint allowed.