Appeal No. 11 of 2008

Between

Sri M.Arunachalam

Non – Trading Rice Mill,

Papanaidupet,

Chittoor District … Appellant

And

Assistant Accounts Officer / ERO / APSPDCL / Srikalahasti … Respondent

The Appeal dated 09.06.2008 (received on 10.06.2008) filed by the appellant has come up for final hearing before the Vidyut Ombudsman on 30.03.2009 in the presence of the appellant; his legal counsel, Sri.S.Prasad Rao, Sri.G.Ramaiah Pillai and Ms. K.Bharathi, Advocates and Sri.M.Srikanth, AAO / ERO / Srikalahasti and having stood over for consideration till this day, the Vidyut Ombudsman passed / issued the following:

AWARD

Aggrieved by the order dated 22.05.2008 passed by the Forum for Redressal of Consumer Grievances of Southern Power Distribution Company of A.P. Limited (for short, ‘the Forum’) in C.G.No. 03 / 2008-09 of Tirupati Circle, the appellant filed representation dt. 09.06.2008 (received on 10.06.2008) requesting the Vidyut Ombudsman to render justice.

2. In continuation of the above mentioned representation, the appellant filed ‘Memorandum of Appeal’ dated 19.06.2008 on the grounds that

(a) the Forum erred in dismissing the complaint without any due regard to the grounds urged in the rejoinder.

(b) The department of the respondent did not prefer any appeal against the acquittal of the appellant. Therefore, it is not entitled to collect assessed charges for pilferage as the competent court held the appellant not guilty of offences under section 44 of the Electricity Act.

(c) Thus, the Forum committed great error of judgment in dismissing the complaint. The Forum ought to have allowed the complaint in view of the case law reported in 3 of 2003 Consumer Protection Judgment 393 by Punjab State Commission Disputes Redressal Commission, Chandigarh. In the said judgment it is held that when the allegations of theft of energy were not proved, the opposite party is liable to refund the penalty charged with interest at 15% p.a.

(d) Therefore, it is prayed that the appeal may be allowed by setting aside the order dt.22.05.2008 of the Forum and the department of the respondent be directed to refund the amount of Rs.1,97,028/- to the appellant with interest at 24% p.a. and further declare that the appellant is not liable to pay any surcharge as levied by the respondent and to award costs.

3. As the Vidyut Ombudsman is of the opinion that there is no possibility of settling the grievance of the appellant by way of mutual agreement between the parties, respondent was directed to file written submissions / counter.

4. In response respondent submitted para-wise remarks vide Lr.No.AAO/ ERO.SKHT/JAO.III/UDC/D.No.1600/08, dt.24.09.08 stating that:

(a) acquittal of the appellant from the offence will not entitle him to get refund of the amount already paid by him;

(b) the judgment relied upon by the appellant is not applicable to the facts of the case on hand;

(c) as per General Conditions of H.T. Supply (No.8) of Schedule of Retail Tariff Rates prescribed by APERC from time to time as well as the Terms and Conditions of Supply notified by APERC, the appellant is liable to pay additional charge at seven (7) paise for one hundred rupees per day of delay on the amount of the bill for the period of delay. Therefore, the appellant is liable to pay the amount for belated payments;

(d) It is, therefore, prayed the Ombudsman may be pleased to dismiss the above appeal.

5. A copy of the para-wise remarks filed by respondent was sent to the appellant. The appellant filed another representation dt.16.10.2008 ( received on 17.10.2008) stating that even after payment of entire amount of Rs.1,97,000/-, the Assistant Engineer and Assistant Divisional Engineer are demanding payment of about Rs.3 lakhs towards interest, surcharge and threatening the appellant as well as the household women that unless the said amount is paid, not only their service connection, but also those of their relatives will be cut-off and requests the Vidyut Ombudsman to render justice.

6. The appellant also filed rejoinder dt.18.10.2008 (received on 24.10.2008) reiterating that when the appellant is acquitted of the offence of theft, he is entitled to get refund of Rs.1,96,618/- which was paid by him earlier, especially when no appeal is filed against the said order of acquittal.

7. The issue that arises for consideration of the Ombudsman is whether the appellant is entitled for the relief as prayed for in this appeal ?

8. Perused the record. Facts of the case are not in dispute. On 22.02.1999, the premises of the mill of the appellant was inspected and it was found that the appellant was indulging in theft of electricity (S.C.No. 19210000074). According to the Assistant Divisional Engineer, the estimated value of the energy pilfered was Rs. 3,05,515/-. However, upon the representation of the appellant, the Superintendent Engineer by his proceedings dt. 30.08.1999 revised the assessment to Rs. 1,96,618/- (say Rs.1,97,000/-). Upon further appeal by the appellant, the Chief Engineer by his proceedings dt. 20.07.2000 confirmed the above mentioned proceedings of the Superintendent Engineer. In the process, the appellant paid different amounts on different dates to the department of the respondent.

9. However, the appellant further questioned the correctness of the final assessment order passed by the Superintending Engineer as confirmed by the Chief Engineer before the Hon’ble High Court of Judicature in W.P.No. 17892 of 2000. Pending finalization of the writ petition, the Hon’ble High Court on 20.09.2000 passed interim orders in W.P.M.P.No. 22742 / 2000, wherein the officers of the company of the respondents were directed to reconnect supply of electricity to the rice mill of the appellant, subject to the condition that the appellant pays 50% of the balance of assessed amount. As per the directions of the Hon’ble High court, the appellant paid Rs. 52,650/- on 22.11.2000. Consequently, the service connection was restored and the appellant has been paying current consumption charges regularly.

10. That apart, the department of the respondent filed a case u/s 44 of the Electricity Act, 1910 against the appellant before the Additional District Munsif Magistrate, Srikalahasti. By judgment dated 17.06.2003, the appellant was found guilty of theft of electricity and was sentenced to imprisonment of 3 years and to pay fine of Rs. 1,000/-. However, the appellant herein preferred an appeal before the VI Additional District Judge, Tirupati vide Appeal No. 340 / 2003. The said appeal was allowed on 31.01.2005 and the conviction and sentence passed by the trial court was set aside as the appellant was not found guilty of the offence u/s 44 of the Electricity Act, 1910 and acquitted him of the said charge.

11. Thereafter, the Hon’ble High Court by its order dated 22.08.2007 dismissed W.P.No. 17892 / 2000 and confirmed the assessment made by the Superintending Engineer. Thereafter on 15.10.2007, the appellant paid the balance amount of Rs. 53,000/- out of the total assessed amount of Rs. 1,97,000/-. But consequent to the dismissal of the said writ petition, the respondent herein by letter dated 18.10.2007 demanded the appellant to pay additional charges, Rs. 3,13,067/- in all for the period from November, 2003 to October, 2007 at the rate of seven (7) paise for one hundred rupees per day of delay as per clause No. 8 of the Schedule of Retail Tariff rates and the Terms and Conditions of Supply as notified by APERC for the belated payment of assessment amount of Rs.1,96,618/- finalized by the Superintending Engineer.

12. Aggrieved by the above mentioned letter dated 18.10.2007 of the respondent, the appellant herein filed a compliant before the Forum. However, the Forum by its order dt.22.05.2008 dismissed the complaint, stating that the action of the respondent in demanding surcharge, penal interest, etc., is in order and refused to interfere with the demand made by the respondent.

13. As seen from the above, the appellant paid the entire assessed amount on different dates while exercising legal remedies permissible under law. Moreover, ever since passing the interim order by the Hon’ble High Court, the appellant has been paying current consumption charges regularly. In the peculiar facts and circumstances of the case mentioned in detail above, the Vidyut Ombudsman is of the opinion that the delay in paying the assessed amount is neither willful nor wanton. Soon after dismissal of the writ petition by the Hon’ble High Court, the appellant paid the balance of assessed amount also.

14. Simply because, the Distribution Company of the respondent did not prefer any appeal against the judgment dated 31.01.2005 of the VI Additional District Judge, Tirupati which acquitted the appellant of the charge of theft, it cannot be stated that respondent is not entitled to collect assessed amount for pilferage of electricity as contended by the appellant. In W.P.No. 17892 / 2000, on behalf of the appellant it was urged before the Hon’ble High Court that as the appellant was acquitted of the offence alleged u/s 44 of the Electricity Act 1910, the assessment order dated 30.08.1999 passed by the Superintending Engineer as confirmed by the Chief Engineer may be set aside. The said contention of the appellant did not find favour with the Hon’ble High Court and after careful consideration of the matter, the court by its order dated 22.08.2007 dismissed the writ petition. The Hon’ble High Court examined the matter in detail and found that there are no valid grounds or justification to interfere with the assessment made by the Superintending Engineer. For the said reason, the above mentioned contention of the appellant that the respondent is not entitled to collect assessed amount is rejected as untenable.

15. In view of the above, respondent cannot be directed to refund the amount of Rs.1,97,000/- to the appellant with interest at 24% p.a.

16. Therefore, the next question that falls for consideration of the Vidyut Ombudsman is whether the appellant is liable to pay additional charges as demanded by the respondent herein vide his letter dated 18.10.2007 for the belated payment of assessment amount of Rs.1,96,618/- finalized by the Superintending Engineer. Even though, the respondent is entitled to demand such charges from the appellant, Vidyut Ombudsman is of the opinion that in view of the facts and circumstances of the case as explained at paragraph-13 supra, ends of justice will be met if the respondent is directed not to collect the amount demand in his letter dated 18.10.2007.

17. Accordingly, the appeal is partly allowed directing the respondent not to collect the amount demanded by him in his Lr.No. AAO/ERO/SKHT/JAO/UDC/ D.No. 1727 / 07 dated 18.10.2007 from the appellant.

This order is corrected and signed on this 31^st day of March, 2009.

VIDYUT OMBUDSMAN