BEFORE THE VIDYUT OMBUDSMAN
Present
K.Rajagopala Reddy, Director(Law) and
Vidyut Ombudsman
Dated 04-08-2007
Between
The
Branch Head,
ING-Vysya
Bank Limited,
D.No.23-1-87
& 88, Gold Shop Centre,
Main
Road, Guntur. ... Appellant
and
1)
Assistant
Divisional Engineer/Town-3, Guntur,
2)
Superintending
Engineer/operation/Guntur,
3)
Assistant
Accounts Officer/ERO/Town-2, Guntur
4)
Assistant
Divisional Engineer/LT Meters, Guntur ... Respondents
The representation dated 10.01.2007 & 11.01.2007 of the Appellant has come up for final settlement before the Vidyut Ombudsman on 24.07.2007 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 13.12.2006 of the Forum for Redressal of Consumer Grievances of Southern Power Distribution Company of A.P.Limited (for short ‘Forum’), Tirupati in C.G.No.87/2006-07/ Guntur 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 order dated 13.12.2006 of the Forum and to pass suitable orders to revise the back billing amount given by APSPDCL authorities.
2. The averments made in the representation (appeal) to the Ombudsman by the Appellant are as follows:-
(a) The appellant Bank namely M/s. ING VYSYA Bank is situated at Door No.23-1-87 & 88, Gold shop centre, Guntur and the said premises has got electrical Service No.50415 (Category-II) with a connected and contracted load of 35 KW.
(b) The appellant is paying electricity bills regularly as per the demand notice given by the APSPDCL authorities, Guntur.
(c) But all of sudden a notice was received by the appellant vide letter No.ADE/OSD/T3/ GNT/FDKT/D.No.3031/05 dated 20.02.2006 stating that the service connection meter is tested and observed that the meter is intermittently stuck up and recording energy with error (-)75.14%. The appellant is required to pay the assessed amount of Rs.2,06,842/-.for the energy consumed for the period from 31.07.2005 to 08.02.2006.
(d) The error calculated was not shown to the department personnel of the appellant. The appellant is not aware of the methodology adopted for calculating error. But officer concerned of APSPDCL has taken sign on inspection notes. For ready reference, actual recorded & billed consumption of appellant service connection is as shown below:
|
YEAR 2004 |
YEAR 2005 |
YEAR 2006 |
||||||
|
Sl.No |
Month |
Units |
Sl.No. |
Month |
Units |
Sl.No. |
Month |
Units |
|
01 |
Oct |
2125 |
01 |
Jan |
2575 |
01 |
Jan |
500 |
|
02 |
Nov |
3050 |
02 |
Feb |
2474 |
02 |
Feb |
2023 |
|
03 |
Dec |
2525 |
03 |
Mar |
1325 |
03 |
Mar |
4777 |
|
|
|
|
04 |
April |
5500 |
04 |
April |
6402 |
|
|
|
|
05 |
May |
5864 |
05 |
May |
6500 |
|
|
|
|
06 |
June |
5775 |
06 |
June |
6051 |
|
|
|
|
07 |
July |
2650 |
07 |
July |
7751 |
|
|
|
|
08 |
Aug |
2850 |
08 |
Aug |
6002 |
|
|
|
|
09 |
Sept. |
2700 |
09 |
Sept. |
6044 |
|
|
|
|
10 |
Oct |
1795 |
10 |
Oct. |
5629 |
|
|
|
|
11 |
Nov. |
2150 |
11 |
Nov. |
3875 |
|
|
|
|
12 |
Dec. |
3060 |
12 |
Dec. |
4855 |
(e) Vide proceeding No. SE / O / GNT / Coml / D.No.2579 / 06 dated 25.08.2006, Respondent No.2 confirmed the amount to be paid by the appellant as per the assessment Notice issued by Respondent No.1 on 20.02.2006 without considering the appeal of the appellant.
(f) For ready reference the consumption as per the back billing notice duly comparing with the recorded consumption after the charge of said defective meter is given below:
|
Month |
Actual recorded |
Back billed Units |
Consumption after replacement of defective meter during the year 2006 |
|
June |
|
|
|
|
July |
|
|
|
|
Aug |
2850 |
|
6002 |
|
Sept |
2700 |
10861 |
6004 |
|
Oct |
1795 |
7220 |
5629 |
|
Nov |
2150 |
8648 |
3875 |
|
Dec |
3060 |
12308 |
4855 |
|
Jan.2006 |
500 |
2011 |
|
|
Feb.2006 |
2023 |
|
|
Note: For the month of Aug’05 & Feb’06 back billed units are not shown as the
Error was proposed for part of consumption in the above months.
(g) From the above, it is evident that the back-billed consumption is not comparable with the recorded units after meter change. That means, the error calculated by the respondent authorities might be higher side.
(h) Hence, it is requested to pass favourable orders to reduce the back billed units duly considering the following few lines:
i) Contracted load of appellant is 35 KW (which includes lights, computers, centralised split A/Cs)
ii) Working hours: 8 hours (i.e. from 9.30 AM to 5.30 PM)
iii) Appellant utilises Air Conditions in peak summer fully & other seasons partially, so the consumption may vary.
iv) Appellant never used total load i.e. 35 KW. Even if appellant used 35 KW the assessed consumption may come around 5600 units, i.e. 35 KW *0.8 (Diversity factor) * 8 hrs. * 25 days (Max working days per month).
Note: The lists of Bank holidays from 31.07.2005 to 08.02.2006 are herewith enclosed for your consideration.
|
Month |
Sundays |
Holidays |
|
July, 05 |
31 |
|
|
Aug, 05 |
7, 14, 21, 28 |
15 |
|
Sep, 05 |
4, 11, 18, 25 |
7, 24, 29 |
|
Oct, 05 |
2, 9, 16, 23, 30 |
12 |
|
Nov, 05 |
6, 13, 20, 27 |
1, 4 |
|
Dec, 05 |
3, 11, 18, 25 |
26 |
|
Jan, 06 |
1, 8, 15, 22, 29 |
11, 14, 26 |
|
Feb, 06 |
5 |
|
The above theoretical assessed consumption is very near to recorded consumption of appellant after change of defective meter.
(g) In view of the above, appellant requests to consider its grievance favourably and orders may be passed on justification.
3. The Respondent Nos.1 to 4 filed a common counter stating as follows:
(a) The various allegations made in the grounds of appeal save those that are specifically admitted herein are hereby denied.
(b) It is submitted that the appellant was availing the supply of electricity from the respondent-Company under the terms and conditions of supply notified by the Company from time to time and the Company released the supply vide Service Connection bearing No.50415 under category-II in Distribution Section-2, Guntur. The premises of the Service Connection was inspected by the 4th respondent herein on 30.01.2006 in the presence of the appellant consumer and on testing it was found that the meter is intermediately stuck up and recording energy have has an error of 75.14% which is in negative. The 4th Respondent drafted the inspection report and the appellant consumer signed on the report by accepting the test results. Therefore, the allegation that the respondents never informed about the fault in the meter is nothing but false.
(c) It is further submitted that basing on the inspection report, the Respondent No.1 herein issued an assessment notice dated 20.02.2006 asking the appellant consumer to pay an amount of Rs.2,06,842/- towards back-billing amount as per the provisions of terms and conditions of supply and it is further mentioned in the notice that if the appellant is aggrieved by the notice it may submit a representation to Divisional Engineer, Op., Guntur or the superintendent Engineer, Op., Guntur within 15 days after receipt of the notice, failing which it will be construed that the appellant have no objection for the assessment. The said notice was acknowledged by the consumer on 02.03.2006. But the appellant herein neither made any objection for the assessment nor paid the amount shown in the notice. Therefore, the Divisional engineer, Operation, Guntur construed that there is no objection from the appellant consumer for the back-billing amount, concluded that the issue of back-billing notice is justified and the consumer is liable to pay the amount. In his proceedings dated 25.04.2006, the Divisional Engineer, Operation, Guntur specifically stated that if the appellant consumer has any objection against the final order, he may prefer an appeal to the Superintending Engineer, Operation, Guntur, the 2nd respondent herein. Against which the appellant made a representation to the office of 2nd respondent. On detailed examination of the facts of the case, the 2nd respondent concluded that the recorded consumption was fallen from the month of Aug., 2005 and after replacement of the meter from Aug, 2005 actual consumption was recorded. The Respondent No.2 also concluded that detailed examination indicates that the meter was defective from Aug, 2005 and there is no necessity to revise the back-billing amount and vide his proceedings, dated 25.08.2006 confirmed the final assessment order dated 25.04.2006 of the D.E. mentioned above. Therefore, the allegation that the appellant does not know about the levy of back-billing amount and that the 2nd respondent finalised proceedings on 25.08.2006 without considering appeal are nothing but motivated. The appellant is fully aware about the facts of inspection and the assessment of back-billing amount. The appellant filed the present appeal before this Hon’ble Authority without revealing the real facts in order to avoid the payment of assessment amount, which is not tenable under law.
(d) Consumption particulars before and after replacement of the meter are furnished for reference of this Hon’ble Authority. The particulars reveal that the consumption has raised after replacement of the meter and demand of back billing amount is correct.
|
BEFORE REPLACEMENT |
AFTER REPLACEMENT |
||||
|
Month |
Consumption |
Remarks |
Month |
Consumption |
Remarks |
|
July, 2005 |
2900 |
|
Feb, 2006 |
2023 |
Meter repla- ced |
|
Aug, 2005 |
2850 |
|
Mar, 2006 |
4777 |
|
|
Sep, 2005 |
2700 |
|
Apr, 2006 |
6402 |
|
|
Oct, 2005 |
1825 |
|
May, 2006 |
6580 |
|
|
Nov, 2005 |
2700 |
|
June, 2006 |
6051 |
|
|
Dec, 2005 |
2150 |
|
July, 2006 |
7751 |
|
|
Jan, 2006 |
500 |
|
Aug, 2006 |
6002 |
|
Comparative consumption for the respective months in the year 2005 and 2006 are as under.
|
YEAR 2005 |
YEAR 2006 |
||||
|
Month |
Consumption |
Remarks |
Month |
Consumption |
Remarks |
|
Mar, 2005 |
1325 |
|
Mar, 2006 |
4777 |
|
|
Apr, 2005 |
5775 |
|
Apr, 2006 |
6402 |
|
|
May, 2005 |
5500 |
|
May, 2006 |
6580 |
|
|
Jun, 2005 |
6875 |
|
June, 2006 |
6051 |
|
|
July, 2005 |
2900 |
|
July, 2006 |
7751 |
|
|
Aug, 2005 |
2850 |
|
Aug, 2006 |
6002 |
|
|
Sep, 2005 |
2700 |
|
Sep, 2006 |
6209 |
|
|
Oct, 2005 |
1825 |
|
Oct, 2006 |
5629 |
|
|
Nov, 2005 |
2700 |
|
|
|
|
|
Dec, 2005 |
2150 |
|
|
|
|
(e) It is submitted that there are no sufficient or reasonable grounds to allow the appeal. In fact there is neither negligence nor deficiency of service on the part of the respondents. There is no fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance that is required to be maintained by the Department. Hence, the Hon’ble Authority may be pleased to dismiss the appeal with costs.
4. The appellant filed rejoinder to submit the following additional points for consideration of the Ombudsman in which it is stated that –
(a) The allegation in the counter filed by the respondents that grounds of appeal filed by the appellant are highly exaggerated, misleading and contrary to the facts is false and baseless.
(b) The allegation in the counter that as per the inspection of the service connection of the premises by the 4th respondent the meter is intermittently stuck and there is an error in the recording energy is false and baseless. Admittedly, except for the bill received for the month of Feb., 2006, Appellant has been regularly receiving the electricity bills for the power consumed and it has been promptly paying the same.
(c) The allegation that appellant has signed the inspection report drafted by the 4th respondent and has accepted the test results outlined therein is false and baseless. It is unfair to construe the acknowledgment of inspection report by the appellant as acceptance of test results as this appellant is a layman in so far as the inspection report and test results are concerned.
(d) The procedure adopted by the respondents to assess and determine the back billing amount is improper and is not tenable. It is not the case where the meter got stuck and the appellant has not received bills for the impugned period. As stated in the foregoing paras the appellant has received the bills for the power consumer and bills pertaining to the same were promptly paid. Had there been defect in the meter as alleged by the respondents this appellant would not have received bills for the amounts stated in the counter and the criteria devised i.e. before replacement and after replacement of the meter is illusionary and cannot be accepted for the reasons stated supra.
(e) Therefore, it is requested to give appropriate directions to the respondents to withdraw the notice sent to the appellant demanding payment of back billing amount of Rs.2,06,842/- and examine the same afresh.
5. On examination of the material placed before the Ombudsman, it is evident that the building bearing SC No.50415 is occupied by appellant Bank and the sanctioned load of its electrical service connection is 35 KW. The meter of the service was inspected by
Respondent No.4 on 30.01.2006 in the presence of appellant. In the assessment notice No.3031 dated 20.02.2006, issued by Respondent No.1, it is stated that the faulty meter is to be replaced and an amount of Rs.2,06,842/- is back billed for the period from 30.07.2005 to 08.02.2006 for a period of 6 months. Based on inspection of Service Connection, the meter of the appellant service was replaced on 08.02.2006. The assessment notice dated 20.02.2006 was received by the appellant on 02.03.2006. Subsequently, the Divisional Engineer/operation, Guntur in his proceedings No.57 dated 25.04.2006 and Respondent No.2 in his proceedings No.2579 dated 25.08.2006, confirmed the provisional assessment of back billed amount of Rs.2,06,842/-.
6. Aggrieved by the proceedings issued by the respondents, the appellant preferred a complaint before the Forum contending that the proceedings issued by the respondents demanding to pay sum of Rs.2,06,842/- by way of back billing is erroneous and liable to be set aside. The Forum after giving an opportunity to the appellant and respondents herein passed an order on 13.12.2006 in CG.No.87/2006-07/Guntur Circle stating that assessment of Rs.2,06,842/- ordered by the respondents is correct, but the Forum set aside the demand of the respondents for short fall levied during the period from 08/2003 to 10/2003 and partly allowed the petition filed by the appellant herein. Since the Forum has confirmed the assessment order of the respondents demanding for payment of Rs.2,06,842/-, the appellant herein preferred this appeal contending that the assessment made by the respondents and demanding to pay sum of Rs.2,06,842/- is erroneous and liable to be set aside. The contentions raised by the appellant and replies to the contentions by the respondents were narrated above.
7. The main contentions of the appellant herein are that the officials of the bank are not technical persons and have no knowledge about what the officials of the respondents did at the time of said inspection and the Divisional Engineer/Operation, Guntur without giving an opportunity to the appellant to present its case, wrongly concluded that there is no reason to revise the assessment of back billing done by Respondent No.4. Similarly, simply because after replacement of meter normal consumption was recorded, Respondent No.2 in his proceedings dated 25.08.2006 concluded that there is no necessity of revision of back billing and confirmed payment of Rs.2,06,842/- by the appellant.
8. Respondent No.4 has stated that the meter is intermittently stuck up and the meter error is (-) 75.14%. It is not the case of the respondents that the appellant is responsible or interfered with functioning of the meter. On its own, appellant is not guilty of any malpractice with regard to any fault with the meter. Moreover, the appellant is a financial institution and it would not have indulged in any malpractice to gain undue financial benefit by interfering with the functioning of the meter. Thus it is clear that the incident of intermittent stuck up of the meter is due to defect in it. Thus the MRT test conducted on the meter assumes importance. But, the respondents have not placed on record “Dial Testing” details. Therefore, the Ombusman is of the opinion that as the meter is intermittently stuck up, meter error given by MRT wing cannot be taken as fool-proof basis to arrive at consumption of the appellant for the disputed period under challenge before the Ombudsman.
9. After replacement of the meter, data pertaining to eight months is available on record. Therefore, in order to arrive at a decision, the average consumption from March to October, 2006, which is given below, is considered as the basis to arrive at the consumption of disputed period i.e. from 30.07.2005 to 08.02.2006.
|
Month |
Units of consumption |
|
March, 2006 |
4,777 |
|
April |
6,402 |
|
May |
6,500 |
|
June |
6,051 |
|
July |
7,751 |
|
August |
6,002 |
|
September |
6,209 |
|
October, 2006 |
5,629 |
|
Total of 8 months consumption |
49,321 |
Average consumption per month comes to 6165.125 units (i.e., 49321 units divided by 8 months = 6165.125 units). As per the Electricity Act, 2003 back billing can be done for 6 months. Therefore, the appellant is liable to pay for short fall in the billing for the disputed period. Such consumption of electricity for 6 months by the appellant comes to 36990 units (i.e., 6165 x 6 = 36,990 units) Already billed units is 10845 (i.e., 433.8 x 25 = 10845 units at Multiple Factor of 25). Balance of units to be billed comes to 26145. Value of 26145 units comes to Rs. 1,63,406/- (i.e., 26145 units x Rs.6-25 = Rs.1,63,406).
10. Therefore, the Ombudsman is of the opinion that interest of justice would be met if the appellant is directed to pay an amount of Rs.1,63,406/- for the electricity consumed by it for the period from 07.08.2005 to 08.02.2006 instead of Rs.2,06,842/- for the period 30.07.2005 to 08.02.2006 as assessed by the respondents.
11. In case the appellant had already paid any amount in pursuance of back billed amount demanded by the respondents i.e., Rs.2,06,842/-, the said amount may be deducted from the amount awarded by the Ombudsman i.e., Rs.1,63,406/- and the appellant is directed to pay such balance amount within 30 days from the date of receipt of this order. On the other hand, if the appellant had paid any amount in pursuance of inspection of the meter conducted on 31.01.2006 which is in excess of Rs.1,63,406/- now awarded by the Ombudsman, the respondents are directed to adjust such excess amount paid by appellant the 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-9 above.
12. If the appellant accepts the above award of the Ombudsman, it
may send a letter of acceptance stating the award is in full and final
settlement of its 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 it, the respondents are not required to implement the award passed
by the Vidyut Ombudsman.
This award is
corrected, signed and issued on 4th
day of August, 2007.