Appeal No. 35 of 2007

Between

Sri Ande Krishna Murthy

S/o Ande Venkatesu, cultivation,

R/o Andevaripalli, H/o Kothavaripalli,

Madanapalle Mandalam, Chittoor Dist. … Appellant

And

1. The Divisional Electrical Engineer / Operation / APSPDCL / Madanapalle

2. The Assistant Engineer/Operation / South Section / APSPDCL / Madanapalle

3. The Assistant Divisional Engineer / Operation / APSPDCL / Madanapalle

4. The Asst. Accounts Officer / ERO / APSPDCL / Madanapalle

… Respondents

The appeal dated 30.09.2007 filed by the appellant (received on 04.10.2007) came up for final hearing before the Vidyut Ombudsman on 24.09.2008 in the presence of appellant; Sri T.S.Rajasekhar Reddy ADE/Rural-2/Madanapalle (respondent No.3) and Sri C.Rajasekhar, Junior Accounts Officer/ERO/Madanapalle on behalf of respondent No. 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. 26 / 2007-08 / Tirupati Circle dated 07.09.2007, the appellant herein filed an appeal by way of an affidavit sworn before an advocate on 30.09.2007 at Madanapalle, together with certain documents as per the list annexed to the said affidavit. In the appeal it is stated that : -

(a) the appellant is having agricultural lands with two Agricultural Service Connections (for short ‘ASC’) under category–V Group M for two borewells, which are situated at Mekalavaripalle H/o Kothavaripalle, Madanapalle Rural Mandal, viz., A.S.C.Nos.156, 202;

(b) the appellant, an agriculturist, is not an income tax assessee for the past 10 years. Income Tax Officer, Ward-I, Madanapalle issued letter dated 06.10.2006 to respondent No.1 herein stating that the appellant is not an income tax assessee;

(c) eventhough the appellant is exempted from payment of electricity charges to his agricultural connections, being a non-income tax assessee, C.C bills are being served on him with huge amounts as if he is an income tax assessee;

(d) the appellant further submits that his son, namely Ande Venkat Nageswar got separated from him long ago on 02.10.1988 by way of mutual partition deed. The son of the appellant residing at Madanapalle. He has got a separate ration card and Pattadar pass book for the lands belonging to him. He owns the house at Madanapalle and paying Municipal taxes in his name. His son got separate individual telephone connection and electricity connection to the said building at Madanapalle. Thus, the documentary evidence prima facie shows that the appellant and his son are living separately on their own accord;

(e) the appellant submits that without considering all the above mentioned facts and the documentary evidence, the Forum below came to a wrong conclusion and dismissed his complaint / petition.

(f) the appellant is a senior citizen, aged about 67 years and living by cultivation and suffering with severe ill health;

(g) In view of the above and after considering the documentary evidence, it is prayed that the Vidyut Ombudsman may (i) allow the appeal by setting aside the order dated 07-09-2007 passed by the Forum; (ii) direct the respondents to exempt the appellant from payment of electricity charges for his service connections bearing Nos. 156 and 202 and (iii)

pass such other or further orders as the Ombudsman may be pleased to deem fit and proper in the circumstances of the case and in the interest of justice.

2. The appellant submitted a letter dated 30.10.2007 (received on 02.11.2007) stating that after coming to know about filing the appeal, authorities concerned disconnected service connection. The appellant raised paddy crop, but unable to water the crop from the bore well. Under these circumstances, the appellant requests that electric supply may be restored.

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. On perusal of the records, the Vidyut Ombudsman is of the view that there is no possibility of settlement of the matter by way of mutual agreement between the parties.

4. A copy of the appeal filed by the appellant was sent to the respondents by letter dated 18.03.2008 wherein the Vidyut Ombudsman directed the respondents to submit their comments / remarks. In response thereof, the respondents submitted common counter with a copy to the appellant. In the said counter received on 09.04.2008 (a copy of which was sent to appellant on 10.04.2008) , it is stated that :

(i) the appellant has got two ASCs and his son Venkata Nageswar has also got two ASCs bearing S.C. Nos. 298 and 395 in the same Mekalavaripalle distribution;

(ii) as the father and son are living in the same house, these 4 nos. service connections were included in the “4 & above list of ASCs” during enumeration of ASCs and they are being charged as per the Government policy for agricultural consumers having 4 and above services from 21.02.2005;

(iii) the ASCs of the appellant were not included in Income Tax assessees list of agricultural services as complained;

(iv) the appellant produced a certificate from the IT Department that he is not an income tax assessee or payee and requested to recategorise his service into free power category. But, as per the standing instructions of APSPDCL for recategoring the services from paying to free category, in case of 4 and above services, the party has to produce documentary evidence with authenticated pattadar pas book issued by Revenue authorities or registered patta deeds as the case may be as a proof that the property was subdivided. Further, the appellant has to pay the arrears till date;

(v) the appellant has not submitted any of the above documents and pursued legal course for recategorisation by virtue of income tax department certificate which is not correct as per the guidelines from APSPDCL;

(vii) Hence, the appellant’s request for exemption from payment of electricity charges is not justified.

5. On 15.04.2008, the appellant submitted written submissions dated 11.04.2008 in Telugu stating that:

(i) the appellant and his son partitioned their properties 15 years back. The son of the appellant is living in house bearing No. III/239-AB at Gollapalle in Madanapalle town. Mandal Revenue Officer (MRO) issued a certificate. Similarly, the house tax receipt, pattadar pass book, etc have also been issued.

(ii) all the record showing that the appellant and his son have got separated are submitted to respondent No.2. But without examining the file, we have been informed that we are living in the same house.

(iii) subsequently, the appellant was informed that the office at Tirupati has got power to waive electricity charges. Accordingly, all records were sent to Tirupati office through advocate. But, the Tirupati office without hearing the advocate, passed an order stating that we are residing in the same house and further informing that if we have pattadar passbook issued by MRO, we can appeal to Hyderabad office, within 30 days. Accordingly, I sent all documents to Vidyut Ombudsman office.

(iv) Partition of our family was done in O.S.No. 2 of 2001 in District Court, Madanapalle. A copy of order of the said court is enclosed. As seen from it, the address of my son A.Venkata Nageswar, who is shown as Defendant No.2 is mentioned in detail. The Decree was passed on 18.04.2006.

(v) For all the reasons above, the Vidyut Ombudsman is required not to take into consideration the counter filed by respondents herein. Earlier they have stated that we are living in same house and now they are afraid they will come to trouble if they disclose truth.

(vi) the appellant also filed O.S. No.92 of 2008 against DE / Madanapalle. Notice was also received.

(vii) the appellant requests Vidyut Ombudsman to do justice and declare power supply to him as free supply. Further, it is also requested to refund the amount, which was forcibly collected from the son of the appellant, because as a policy Government waived arrears, which the Vidyut Ombudsman is aware.

6. The issue that arises for consideration of the Vidyut Ombudsman is whether “the appellant is entitled for exemption from payment of electricity charges in respect of ASC Nos. 156 and 202 as per the Government Policy and, if so, from what date”.

7. Heard the arguments and perused the record. As seen from the record, the entire issue revolves around the contention of the appellant that his son and himself are living separately vis-a-vis contention of the respondents that they are living in the same house. It is an admitted fact that the appellant has got two ASC Nos. 156 and 202 in Mekalavaripalle and his son Sri Venkata Nageswar has got two ASC Nos. 298 and 395 in the same village.

8. In the order dated 07.09.2007 of the Forum, it is observed that farmers in dry land areas having up to 3 connections in the name of their family will continue to get free power, as per Government policy and that family includes, husband, wife and dependent children. Therefore, the question that falls for consideration is whether Sri Venkata Nageswar (son) is dependent on Sri Ande Krishna Murthy (father and appellant herein).

9. The Forum in its order stated that the respondents in their written statement (filed before it in C.G.No.26/2007-08 – Tirupati Circle) served on the complainant (appellant herein) on 02.09.2007 have clearly stated that they had informed the complainant to produce proof of documentary evidence division of property, if any, among their family members to extend free power, but the complainant is silent on this issue and hence the Forum construed that they are living together in a combined family. Thus, the Forum instead of ascertaining on its own the contention of the appellant that his son and himself living separately, solely relied on the written statement filed by the respondents before it to come to a conclusion that they are living together in a combined family. The Forum which is established u/s 42 of the Electricity Act, 2003 for the purpose of redressing the grievances of consumers is required to act independently and ascertain veracity of the rival contentions in a dispassionate manner.

10. Perusal of the order passed by the Forum reveals that it has not made any effort, whatsoever, to test the above mentioned principal contention of the appellant which is the crux of the issue, in an independent manner and on its own, before relying on the written statement filed on 23-08-2007 by the respondents. A cursory look at the order of the Forum reveals that it had not examined the appellant, especially in view of the contention of the respondents that the son of the appellant and the appellant are living together or to ascertain the allegation of the respondents that the appellant failed to produce evidence regarding division of property. Before relying on the written statement of the respondents, the Forum ought to have given an opportunity to the appellant to substantiate his contention that his son and himself are living separately and divided the property. Thus the decision arrived at by the Forum behind the back of the appellant and merely relying on the written statement of the respondents is against the principles of natural justice and cannot stand legal scrutiny.

11. Moreover, as per clause 5 (11)(a) of Regulation No.1 of 2004 a Forum while deciding a complaint shall give reasons for support of its decision. In the case on hand, the Forum has not given any reason for not accepting the contention of the appellant that his son and himself are living separately but relied on the version of respondents that inspite of their information to produce proof of documentary evidence regarding division of property regarding extending free power, the appellant kept silent and therefore construed that the appellant and his son are living together in a combined family. As mentioned above, the Forum did not make any effort on its own, including directing the appellant to produce evidence in support of his above mentioned contention and then come to a decision based on such efforts. Had the appellant refused / failed to produce proof or evidence regarding division of property inspite of specific directions by the Forum to produce the same, the Forum would have concluded that the appellant failed to substantiate his contention and ought to have drawn an adverse inference against the appellant. Therefore, the Vidyut Ombudsman is of the opinion that mis-carriage of justice has occurred to the appellant at the hands of the Forum.

12. Whatever it might be, in support of his claim, the appellant produced photocopy of mutual partition deed executed on 02.10.1988 in the presence of witnesses. Similarly, the appellant also produced a copy of the order of II Additional District Judge, Madanapalle in O.S.No.2/2001 wherein certain properties were ordered to be partitioned among the family members of the appellant. Similarly, the appellant also produced photocopy of his house-hold card issued on 27.09.2006, wherein the name of Sri Venkata Nageswar (son of appellant) is not shown as one of the family members of the appellant. On the other hand Sri Venkata Nageswar was issued a separate house-hold card wherein the names of his wife and three daughters are mentioned as family members. Similarly, separate pattadar passbooks have been issued to the appellant as well to his son. A copy of residence certificate issued by Tahsildar, Madanapalle Mandal dated 13.09.2007 stating that Sri Venkata Nageswar is residing at house bearing no. III-239-A.B. Gollapalle village, Madanapalle, receipts of house tax paid by Sri Venkata Nageswar are produced.

13. As seen from the above, it is clear that there is force in the contention of the appellant that his son is major, living separately and is not dependent on the appellant. Therefore, agriculture service connections of Sri Venkata Nageswar cannot be tagged on to the appellant. Agriculture service connections of Sri Venkata Nageswar have to be treated separately as he is major and not dependent on his father (appellant herein). Therefore, inclusion of ASC Nos. 156 and 202 of the appellant in “4 & above list of ASC’s” by respondents is not correct.

14. For the reasons mentioned above, the conclusion arrived at by the Forum that the family members of the appellant are having more than three agriculture service connections on the inference drawn that Sri Venkata Nageswar is a dependent on the appellant is not correct. As per the definition of ‘family’ referred by the Forum in its order, only agriculture service connection(s) of dependent children can be taken into consideration for inclusion in “4 & above list of ASC’s”. In other words, as Sri Venkata Nageswar is not dependent on the appellant, ASC Nos. 298 and 395 standing in his name cannot be taken into consideration for computing 4 & above agriculture service connections of the appellant for the purpose of categorisation of such agriculture service connections of the appellant under ‘free power’ category. Because the appellant is not an Income Tax assessee, he is eligible for such ‘free power’ as per Government Policy.

15. For all the reasons mentioned above, the first issue is answered in favour of the appellant and held that the appellant is entitled for exemption from payment of electricity charges in respect of ASC Nos. 156 and 202. Coming to the other issue as to the date from which the appellant is entitled for such exemption, the Ombudsman is of the opinion that not extending the benefit of payment of electricity charges under ‘free category’ by the respondents is due to bonfide belief that the agricultural service connections of the son of the appellant also have to be taken into consideration for the said purpose. As there is no extraneous consideration or bad motive on the part of respondents in this regard, Ombudsman is of the opinion that interest of justice will be met if the respondents are directed to extend the Government Policy of ‘free power’ to the ASC Nos. 156 and 202 of the appellant and exempt him payment of electricity charges to the extent eligible as per the said policy from the billing month of October, 2008.

16. With the result, the order dated 07.09.2007 of the Forum is set aside. The respondents are directed to remove ASC Nos. 156 and 202 of the appellant from ‘4 & above list of ASCs’ and exempt the appellant from payment of electricity charges in respect of said ASCs to the extent eligible, from the billing month of October 2008, as per the Government Policy. Accordingly, the appeal is allowed partly.

17. If the above mentioned award (in paragraph 16) is acceptable to the appellant herein, he is required to send a ‘Letter of Acceptance’ to respondent No. 1 herein stating that the award is in full and final settlement of his claim, within one month as required under sub-clause 6 of clause 12 of Regulation 1 of 2004. After receipt of such ‘Letter of Acceptance’ from the appellant, the respondents are directed to comply the award within 15 days from the date of receipt of such letter from the appellant and intimate compliance of the award to the Vidyut Ombudsman.

This order is corrected and signed on the 29^th day of September 2008.

VIDYUT OMBUDSMAN